Schedule D Question

[limonrod]

Hello all.

I live in GA, am married, going to file Chapter 7 individually. I am on the deed of our house, but not on the note. My husband is the only one on the note. I do not have financial responsibility for the house, and the loan is not on my credit report.

We are about $90k upside down on our house. I have listed my portion of the value of our home in Schedule A, as it asks for "current value of debtor's interest in property, without deducting any secured claim or exemption." and I have also listed the entire amount of the secured claim on this same schedule.

My question is, would I list the lender (BOA) under Schedule D, even though it is technically not my debt? Or, since it is not my debt, just not list anything?

Thanks!

[tobee43]

if you are filing individually, and you are not on the note you can't list it as a liability against your income. however, if you name is on the deed, and there is equity in the house, that could be considered an asset for you.

[LadyInTheRed]

I think you need to list the creditor.

You are supposed to list anyone that holds a claim secured by your property. Even if your name is not on the deed of trust, it is secured by your property unless it is secured only by your wife's half of the property (that would be unusual). Put an "x" in the co-debtor column and fill out Schedule H.

I am basing this not on any personal experience, but on the instructions at the top of Schedule D:

State the name, mailing address, including zip code, and last four digits of any account number of all entities holding claims secured by
property of the debtor as of the date of filing of the petition. The complete account number of any account the debtor has with the creditor is useful
to the trustee and the creditor and may be provided if the debtor chooses to do so. List creditors holding all types of secured interests such as
judgment liens, garnishments, statutory liens, mortgages, deeds of trust, and other security interests.
[snip]
If any entity other than a spouse in a joint case may be jointly liable on a claim, place an “X” in the column labeled “Codebtor,” include the
entity on the appropriate schedule of creditors, and complete Schedule H – Codebtors. If a joint petition is filed, state whether the husband, wife,
both of them, or the marital community may be liable on each claim by placing an “H,” “W,” “J,” or “C” in the column labeled “Husband, Wife,
Joint, or Community.”

[tobee43]

georgia is a "equitable distribution" state which in simple words really meaning property possessed by either spouse during the marriage is presumed to be marital property unless it can be shown that the property is actually separate property. it you're name is on the deed, i would likely believe it would be presumed to be marital property. you will be responsible for your spouse's debts only if you voluntarily assumed those debts by, for example, co-signing on a loan given to your spouse. since in a non-community property state, one spouse can file for bankruptcy and be eligible to eliminate all of their unsecured debts without the involvement of the other spouse.

[LadyInTheRed]

georgia is a "equitable distribution" state which in simple words really meaning property possessed by either spouse during the marriage is presumed to be marital property unless it can be shown that the property is actually separate property. it you're name is on the deed, i would likely believe it would be presumed to be marital property. you will be responsible for your spouse's debts only if you voluntarily assumed those debts by, for example, co-signing on a loan given to your spouse. since in a non-community property state, one spouse can file for bankruptcy and be eligible to eliminate all of their unsecured debts without the involvement of the other spouse.

I don't see how this is relevant to the question of whether the holder of the note should be listed on Schedule D.

Both spouses' names are on the deed. If the note is validly secured by 100% of the property and not just the non-filing spouse's interest in the property, the bank holds a claim secured by the debtor's property. Therefore, based on the instructions at the top of Schedule D, the creditor should be listed. If the note was in the OP's sister's or best friend's name, I'd give the same answer. If the note is secured by only the non-filing spouse's interest in the property, the creditor does not need to be listed.

[limonrod]

Thank you all for responding! I will go ahead and list it as Ladyinthered suggested and also complete Schedule H. Thanks again!

[tobee43]

I don't see how this is relevant to the question of whether the holder of the note should be listed on Schedule D.

Both spouses' names are on the deed. If the note is validly secured by 100% of the property and not just the non-filing spouse's interest in the property, the bank holds a claim secured by the debtor's property. Therefore, based on the instructions at the top of Schedule D, the creditor should be listed. If the note was in the OP's sister's or best friend's name, I'd give the same answer. If the note is secured by only the non-filing spouse's interest in the property, the creditor does not need to be listed.

yes, they are on the deed but not the mortgage. and since this state is not common law with respect to assets, i do believe it is relative and she would not have to list the mortgage as a codebtor. the status of how the state views property i think is appliable here.

If the note is secured by only the non-filing spouse's interest in the property, the creditor does not need to be listed

that was my long winded point. if i could prove just my name was on the deed but i was no way a contributing factor to the loan, i wouldn't list it as my debt. i KNOW i might be incorrect (wouldn't be the first time ).

also, what's important is if OP is contributing to the payments and those payments are traced back in anyway to his/hers income, they i would agree and list it.