file a petition to the court to force the trustee to abandon the property

[tdawg]

Here is the problem with NOT claiming the exemption, that means that ANY Equity, no matter how derived by the trustee is vulnerable. Thus, it doesn't matter that the house has no equity, you STILL NEED TO claim the exemption.

In this scheme by the trustee (which I think is illegal), to take a fee for short selling the house; the trustee would be in an even weaker position, because any money received from the sale beyond what is required to pay off the secured creditor would then go to you because of the exemption.

(I missed the part about you already being discharged).

OK. So, it sounds like I don't have much to worry about. It will be a little weird explaining to neighbors and friends why there is a "for sale" sign in the yard though when it gets to that point. But it sounds like I should just wait it out. The contract the trustee has with the real estate agent is until 5/31. So, hopefully the trustee will abandon the property after that. If he just tries to go (ex parte) to the judge and get another 3, 6, or 12 months, then I think I should file a motion to compel abandonment.

I needed to use my homestead exemption on other things and since I had negative equity, my attorney said there was NO reason to exempt my house. Looking back on it, maybe it would have been good to exempt $1 of my house? As far as I know, I am the only person that has ever run into this situation. Has anyone heard of it happening to someone else on their primary residence?

[HHM]

Here is the problem with NOT claiming the exemption, that means that ANY Equity, no matter how derived by the trustee is vulnerable. Thus, it doesn't matter that the house has no equity, you STILL NEED TO claim the exemption.

In this scheme by the trustee (which I think is illegal), to take a fee for short selling the house; the trustee would be in an even weaker position, because any money received from the sale beyond what is required to pay off the secured creditor would then go to you because of the exemption.

(I missed the part about you already being discharged).

[SleepWellNow]

There is nothing wrong with telling the agent you need to talk to your attorney before showing the property.

I know you are worried about the Trustee talking the lender into a short sale but, remember, the Trustee is trying to obtain money for the bankruptcy estate to pay out to creditors. If the lender WOULD take the short sale payoff, there STILL would be no money for the Trustee unless the lender would pay him some sort of fee on top of the broker commissions and closing costs. This would cost the lender tens of thousands of dollars on top of the amount they are loosing from accepting a short payoff. It would make no sense for the lender to do this with you being current on the loan. I think the Trustee is trying to see if he can get MORE than the $395K you owe plus commissions and closing costs. From what you say, that won't be happening.

Let us know how things progress. If the Trustee starts playing games with this, you might need to kick it up a notch. How would it look for a Trustee to force an American Veteran and his young family out of a home that he is current on? I don't think that would sit well with your Congressman, the Veteran's Administration, or the general public.

If you don't mind, can you tell me what state you are in?

[tdawg]

I've got a thought...why don't you call your lender and tell them it is your intention to stay in the house and continue making your payments. Tell them you do not want to sell. Explain to them the Trustee has, against your wishes, put the house on the market. I would be prepared to tell the lender how much you think the house is currently worth. Have a real estate agent do a Comparative Market Analysis for you.

If you are correct that you owe more than the house is worth and you are current on the mortgage, there would be no reason for the lender to approve a short sale. Remember, the lender has the final say if the house gets sold or not in a short sale, not the Trustee. The Trustee can't make them accept a short payoff. The lender is going to do what nets them the most money and, if you are continuing to make the payments as agreed, I don't see any reason why the lender would want to accept a short sale.

In the meantime, continue to try and get a hold of your attorney to know what your rights are regarding showing the house to potential buyers. Camp out in his office if you must! If it turns out you legally have to show the house to potential buyers, the agent does not need to have a key. You can tell the agent you do not want a lockbox on the house and all showings will be by appointment only with you being there. That is not being unreasonable. You can even set showing days and hours.

My friend just went through an ordeal with a Trustee regarding a short sale on her rental house. The Trustee would not abandon the property so the short sale could go through. He said he had a fiduciary duty to see if there was any money to be had for the bankruptcy estate. Hopefully, your Trustee is "testing the waters" to see if the house will sell for over what you owe. If no offers come in or they are too low, he can take this as proof there was no money to be had for the estate from the sale of the house. Then he can let it go.

Thanks for your response! That's a great idea! I'm going to contact the lender on Monday and say exactly what you've said here. The only reason I think the lender might accept a short sale is because it's a VA loan, and so it's insured, so maybe they'd get the full amount regardless? I'm not sure, I'm just trying to figure out what's going on.

I cannot camp out in my lawyer's office, but I will call him several times tomorrow. I just emailed 3 different lawyers who specialize in bankruptcy and real estate. I would really like to talk with a lawyer before I contact the real estate agent. But I'll get back to him by Tuesday for sure, I don't want him to think I'm ignoring him. And the more responses I see, the more I agree that I do NOT need to "give him a key". I think telling him I need to be home, need at least 24 hours notice, and it needs to be during certain hours is totally reasonable.

[SleepWellNow]

I've got a thought...why don't you call your lender and tell them it is your intention to stay in the house and continue making your payments. Tell them you do not want to sell. Explain to them the Trustee has, against your wishes, put the house on the market. I would be prepared to tell the lender how much you think the house is currently worth. Have a real estate agent do a Comparative Market Analysis for you.

If you are correct that you owe more than the house is worth and you are current on the mortgage, there would be no reason for the lender to approve a short sale. Remember, the lender has the final say if the house gets sold or not in a short sale, not the Trustee. The Trustee can't make them accept a short payoff. The lender is going to do what nets them the most money and, if you are continuing to make the payments as agreed, I don't see any reason why the lender would want to accept a short sale.

In the meantime, continue to try and get a hold of your attorney to know what your rights are regarding showing the house to potential buyers. Camp out in his office if you must! If it turns out you legally have to show the house to potential buyers, the agent does not need to have a key. You can tell the agent you do not want a lockbox on the house and all showings will be by appointment only with you being there. That is not being unreasonable. You can even set showing days and hours.

My friend just went through an ordeal with a Trustee regarding a short sale on her rental house. The Trustee would not abandon the property so the short sale could go through. He said he had a fiduciary duty to see if there was any money to be had for the bankruptcy estate. Hopefully, your Trustee is "testing the waters" to see if the house will sell for over what you owe. If no offers come in or they are too low, he can take this as proof there was no money to be had for the estate from the sale of the house. Then he can let it go.

[tdawg]

i wouldn't worry. in this market there is no way it will sell for that price especially since in 08 it was bought for the same amount. you are stressing over nothing.

I really am not worried about it selling for that amount. What I am worried about is someone offering $50,000 less and the trustee talking the bank into taking it...

Maybe I should just not worry about that until/unless it happens?

[nc73]

i wouldn't worry. in this market there is no way it will sell for that price especially since in 08 it was bought for the same amount. you are stressing over nothing.

[tdawg]

You need legal counsel here. I understand that your Atty is not responding to your calls or emails, and that should tell you that he is done with the case. Unfortunately your only other remedy is to retain other counsel to file the amended petition, as was suggested.

As to the key, if you have personal property in the home, there is NO WAY I would be giving him a key. I do not think that you are under any obligation to do so, but only my opinion. What I would propose are hours for showings, with 24 hr notice. This would be standard procedure if you were a tenant in the property, and even though you are in Bk you do still command some privacy and right to security of your pers property. Of course all this would be much better coming from your newly retained Atty; so get one.

I live in my house, and I have 2 small children. How do you think I should find a lawyer that could help with this? I emailed an attorney today, but he kind of blew me off. By the way, do you think I could get the money I paid my attorney back?

[tdawg]

Go back, amend your petition, put the homestead exemption in there.

I think in this case, I would file a Motion to Abandon. At least get it before the judge and make the trustee explain what he is attempting to do.

I don't understand why amending the petition would be necessary. I am already discharged btw. There is negative equity in the house.

If I file a Motion to Abandon, is that something I can do myself? I emailed a lawyer today and explained my situation and he blew me off saying, "this sounds like a real estate law issue". I'm thinking it's going to be hard for me to find a lawyer willing to work on this.

[Mensa1]

I just received a Voicemail at home from the real estate agent saying that he needs me to give him a key.

You need legal counsel here. I understand that your Atty is not responding to your calls or emails, and that should tell you that he is done with the case. Unfortunately your only other remedy is to retain other counsel to file the amended petition, as was suggested.

As to the key, if you have personal property in the home, there is NO WAY I would be giving him a key. I do not think that you are under any obligation to do so, but only my opinion. What I would propose are hours for showings, with 24 hr notice. This would be standard procedure if you were a tenant in the property, and even though you are in Bk you do still command some privacy and right to security of your pers property. Of course all this would be much better coming from your newly retained Atty; so get one.

[HHM]

Go back, amend your petition, put the homestead exemption in there.

I think in this case, I would file a Motion to Abandon. At least get it before the judge and make the trustee explain what he is attempting to do.

[tdawg]

contacted by the real estate agent today

tdawg: I think what you probably have here is a situation where the TT has in a prior case(s) worked out a short sale with the same lender that holds the mtg/dot on your property. This could turn yours into an asset case, and result in distribution for creditors and of course TT.

I would hardly make sense to rob from a secured creditor and dist to unsecured's, which is what would result here if it shook out that way. So maybe my thoughts are off the mark here... It would be more than a little bit interesting to know exactly what the situation happens to be. Might not ever know, but if you do... please share the info.

I just received a Voicemail at home from the real estate agent saying that he needs me to give him a key. I really don't know what to do at this point. I don't want to jeopardize my discharge being revoked by not cooperating with him, but I also don't want to cooperate with him more than I need to. I really think what the trustee is doing here is unethical and would set a terrible precedent. Basically, if he can get away with this, then what I have read everywhere I have looked (that you won't lose your house if you're current and it has negative equity) will have to be rewritten. I emailed my attorney again, but no answer yet...

[Mensa1]

tdawg: I think what you probably have here is a situation where the TT has in a prior case(s) worked out a short sale with the same lender that holds the mtg/dot on your property. This could turn yours into an asset case, and result in distribution for creditors and of course TT.

I would hardly make sense to rob from a secured creditor and dist to unsecured's, which is what would result here if it shook out that way. So maybe my thoughts are off the mark here... It would be more than a little bit interesting to know exactly what the situation happens to be. Might not ever know, but if you do... please share the info.

[BCA2009]

I'm sorry, I guess I'm dense, I just don't get why anybody thinks the trustee has done something that you would be justified in complaining to the Judge, the AG, a congressman etc.

The house was not reaffirmed, there was no homestead exemtion applied, the trustee is obligated to act in the interest of the creditors to try and get any available assets to pay against debts owed. Being current on the payments has no bearing.

It has only been a month since discharge and the trustee has already said he only trying to sell until May 31.

Even if you think there is no equity in the house (and there probably is not).
The trustee is in no way obligated to take your word for it or your research.

If I were you I would also be stressed and frustrated, but if you annoy the trustee he might put it on the market for another 6 months just to be spiteful.

I hope the trustee abandones the property soon, but I just don't see where you have any standing to force his hand.

[ben1381]

I might also suggest you seek legal counsel in this matter even if it means paying another lawyer.