What does this mean????????? HELP.

[MaMom]

Your in a tight spot. As far as the homestead goes, in most state, it only has legal significance once it is filed with the county clerk. So if it was filed after the date you filed BK, then the homestead is null with regard to your BK.

Even if your attorney was supposed to file it before hand, that may not be a proper defense to the trustee's actions because it really doesn't matter. All you probably have is a cause of action against your former attorney for the damages you are incurring because of his/her mistake.

Do you have any evidence that you actually signed it on the 6th. You may have to subpoena your former attorney (you can do that) to testify (but unless there is something writing indicating that you signed it ahead of time, odds are the attorney will deny it to try to cover his ass).

Yes, we actually have the original that was signed and DATED by us on Dec 6th, and Notorized on that same day as well.

[MaMom]

Update

Here is my update

We met with an attorney who specializes in special cases. we were there late into the night last night trying to iron this out as best we could.

Basically we're screwed.

Because our BK was discharged already, we can't withdraw. The atty is going to TRY to file a motion to withdraw anyway, but he's never seen one that went through after the discharge.

Since the trustee still has his part of the case open, the attn is also going to file a motion to turn the homestead into federal instead of state. By going Federal, we're protected up to 36K in equity (we have about 60K in equity), so upon sale of the house we'll still get the first 36K before any creditors are paid. Of course this could get thrown out as well.

The Attny made the point to tell us that since the Trustee still has the case open, we do have a right to fight. HE can, why can't we? Of course the trustee is motivated to object to everything we do, and I'm sure he will, but we at least have to give it a try.

It would also look good for a lawsuit against the former attny if we at least try to correct the problem.


So there's a high probability that we're going to be losing our home... something that's been in my husbands family for 80 years.

At best, we'll have the 36k from the sale of the home if we're allowed to amend the homestead to Federal.

At worst, we walk away with nothing.

Either way, we're looking for a new place to call home, and we're heartbroken.


Oh and we're filing suit against the former attorney for malpractice... which I'm sure will be drug out in court until my 18 month old twins are teenagers.

[lrprn]

Either way, we're looking for a new place to call home, and we're heartbroken.

OH NO! MaMom, I am so sorry to hear you are going to lose your home because your incompetent first lawyer didn't file your homestead claim until a few days after filing your bankruptcy. This just seems so unfair!

Oh and we're filing suit against the former attorney for malpractice...

Good! Let's hope you'll end up taking a good sum of money from that jerk! Of course, it can't ever make up for losing your beloved home . My heart is breaking for you!

Please come to the forum to get a virtual hug every time you need one - sounds like it could be a rough go for the next few months . And of course, keep us posted on your lawyer's attempts at damage control and to bring suit against lawyer #1. I so hope that at least some good comes out of this mess for you. Hang in there - we are all rooting for the best outcome possible.

[wrinkleigh]

Just a curious question... how long have you lived in the home? Why had you not applied for homestead in the past (before all of this started).

I am curious because that is not even something I had ever thought about. We lived in our home for 5 years before we ever applied for homestead through the county. We only did it then to make our taxes go down. We were given two acres of land by my husbands grandfather, and paid taxes without claiming homestead exemption for all those years because we didnt know we "had" to file it.

Guess I am glad we did now, in hindsight, like I said, this is something we would never even have though about, or we would have been in your exact situation.

I am so sorry this is happening to you.

[MaMom]

lrprn, I am filing a complaint with the Bar Overseers. They were able to tell me that the old attrny is now in another state. He JUST moved there and is already practicing law again. OH and he did NOT have malpractice insurance. I'm going to file a chapter 93A against him regardless. My only hope is that HE has a home that HE loses over this.


wrinkleigh, my husband has lived here 22 years. I've been here 10 years. He inherited the house from his grandparents when they passed on. He spent a good number of years trying to get the deed turned over to him due to family dispute. I'm not even sure why he never filed for homestead.

[BKOnce]

I bet that many victims had fallen to his quick scheme practice besides you. If you coudl find other BK victims/clients of his, they you guys should join in together for a bigger "class action" suit for a guaranteed win !

Probably, a quick start begins with PACER web site, where one can search all previous "local" cases # filed under same attorney/firm name (might take long time if he had filed many cases before) in your county, then jot down all his client names & addresses, then cold contact or mail letters to all these addresses to ask/solicite/interview them to join you for a ready big fight. Good luck!

[lrprn]

lrprn, I am filing a complaint with the Bar Overseers. They were able to tell me that the old attrny is now in another state. He JUST moved there and is already practicing law again. OH and he did NOT have malpractice insurance. I'm going to file a chapter 93A against him regardless. My only hope is that HE has a home that HE loses over this.

I hope he loses his house AND his law license to practice! I hadn't heard of 'chapter 93A' before - it's great that Massachusetts has such a good consumer protection law. For those interested, here's a link that explains Chapter 93A in MA and how it can help MaMom and her husband - http://www.durkinlawpc.com/consumerprotection.jsp

[MaMom]

yes! It's basically a law that protects the consumer from unfair business practices. It's apparently very quick turnaround, like within 30 days according to my new attorney. And it means that we'd possibly get 3 times our money back. For us that's about 5k.

He also said there's a fund that could help us with legal fees that is set up by the Board of Overseers. It's something that the attorneys pay into, and it's purpose is to help those who have to hire 2nd council to correct the mistakes of the other guy.

I'm waiting for a call back from the Board of Overseers to see what they can do for me.