May have to file Pro Se

[SinkingFast]

Well,......... We'd chatted with several attnys and settled on one we liked. Hubby signed the Contract other night and told me to take it by the attny's office and give them the retainer fee the next day. I decided it might be best to call the office first to see how they wanted it handled.

Attny's assistant asked if the attny gave us a check list when we came for the Consult. Yep. Assistant said the attny usually wants clients to collect as much as they can off the check list and bring that stuff in with the contract and retainer. Sometimes, the attny will want to sched another meeting to discuss things. I also had some questions. Do we pay January's CC bills?? What about our mortgage payment?? Attny was gone, assistant would have to call me back about that.

Last night, about 10pm, I noticed the light flashing on the phone. Someone had called while I was out running an errand. After the phone call to the attny's office. Listened to the message. It was attny's assistant. She had the answers to my questions. That I could call the office today and she'd give me some answers.

So I call today. Attny said not to pay the bills. I asked about our mortgage. Told her I'd read on the net in our old home state, the lender can start foreclosure after as little as 2 missed payments. Should we pay that for January. Attny was in the office so the assistant asked me to hold while she checked on that. On hold. On hold. On hold. When the assistant finally came back, she said the attny had declined to take our case. The attny didn't want to deal with the out of state stuff. We needed to find an attny who wasn't quite so busy. Thank you, she said, and the assistant hung up on me.

That's the 3rd time already an attny has said No due to the outa state stuff.

So I call another attny's office. Before I even go there about setting up a Consult appt, I specifically asked if the attny would even take us. I told the receptionist that other attnys had turned us down when they heard we had recently moved and had to use old state's exemptions. Didn't even wanna waste our time or the attny's time if that's the way it would be there. She's gonna check and call me back. Haven't heard from her yet. Guess that says something right there.

Regular folk, like us, who've recently moved and want to file soon, evidently are screwed if we are hoping for an attny to represent us. At least that's the case where we live. Unless we decide to go with the geeky/nerdy guy who lives in fear of the Court and likes to grease the palms of the Trustee.

[JimH]

I really don't get this. I've heard many people complain about attys not wanting to spend even a little time on a case. It's not even difficult to find what other state's exemptions are. I hope you find someone to work with you; otherwise, pro se it will have to be.

[bkfiler]

keep going until you find one. get all the consults you can.

about mortage issues:

remember that it takes awhile to get your application ready to file with the court. you are not protected until you file the petetion. that is different then retaining an attorney.

he can however file an emergency petition but with the new laws im not sure how fast you are gonna have to get everything else in as well.

[SinkingFast]

I've scheduled another consult with another attny. I told the gal that answered the phone about the outa state issues we've been having. Asked her if she would ask the attny if he would consider us. Didn't wanna waste his time or ours if he wouldn't take our case after he knew we had to use another state's exemptions. She finally called back, right at 5pm today, and said the attny was fine with proceeding with outa state exemptions. So we have another appt for another consult.

[StaciMM]

I don't know anything about this-but I've heard something like a 'deed in lieu of foreclosure' where you basically give the house back to the lender. Have you considered something like this?

[SinkingFast]

Yeah we did actually.

But we learned from one of the attnys if we take the house thru the BK we'll avoid Capital Gains.

That was confirmed in a Consult with another attny. 2nd attny suggested we market for another couple months and then do DIL. Some sort of paperwork he'd file on our behalf with the lender that would explain why we weren't making payments. He didn't really explain it clearly. We asked if we could just give it back w/o the additional mkt time. He asked how long we'd tried to sell. 6 months. He said Yep. He could go ahead and do that for us. Then I asked about what the other attny had said about taking the house thru the BK and avoiding Cap Gains. 2nd attny said, "That's right! I hadn't thought of that, but sure enough you would avoid Cap Gains." He asked how much we'd paid and what the asking price is and said that was definitely the way to go.

It just gets tricky if our lender initiates foreclosure on us too soon. There could be additional fees/penalties for us, I think. The attnys ran thru it all real fast.

[JimH]

I am not convinced a DIL will mean capital gains since you are giving it up for payment of the debt. From what I understand, you do not get the money above what the outstanding balance on the mortgage was. It's no longer your money. Don't rely on my view on this though as I'm not 100% sure of that.

Also, it has come up before that DIL's are not viewed the same by FHA as a bk / foreclosure. There are guidelines that allow people 2 years after bk to get a home loan but I don't believe a DIL falls under that. You might want to check into that.

[SinkingFast]

Cap Gains would apply to us unless they sell the house for what we paid when we bought or less.

Take the sales price and subtract your basis. Basis is the purchase price plus the costs of any improvements you've made to the property. Improvements like finishing an unfinished basement. Not routine upkeep and repairs. That's the Capital Gains.

Our house has gone up quite a bit in value over the years we've owned it. If we were to sell today, at the current asking price, we are looking at a Capital Gain of over $100K. We wouldn't clear that much money, by any means. We refi'ed a few years ago, consolidated a bunch of debt, so we owe way more now than when we bought it. If we sell it today, at the current asking price, we cover our costs to sell and pay the lender. We're at break even in that we'd get no money in our pockets. And we'd still have Capital Gains.

[JimH]

You are correct about how capital gains are calculated. From your previous posts, I thought you had more into it than you could get out of it - selling it at a loss. A DIL would be bad advice.

[SinkingFast]

If we had sold the house for the price the Real Estate Agents comp'd it at, we wouldn't be considering BK today. We woulda cleared enough to have paid a major chunk, about half, of our CC debt. The rest woulda been manageable.

Hubby loosing his job was a stumble compared to not selling the house. That really tripped us.

Checked out the new attny that will take us in spite of outa state exemptions on PACER. He's a BK Mill attny. He's filed over 4500 BK's in his career. Checked the Trustees he's worked with, on a few cases. Didn't recognize their names. Couldn't figure that out. There's 2 here in town, but neither one have sat on his recent cases. Looked at his office address again and saw he's in another town, up the road a piece. He must take his cases to a different BK Court. Dunno if that's a good thing or a bad thing. I've heard the Trustees here are decent folk, willing to work with people, at least to some extent.

[JimH]

It doesn't sound ideal but at least you have an atty taking your case. The good thing is you are involved enough in the process that you will be fully aware of the issues and problem areas in you case. Sort of like you are filing pro se but through an atty.

[SinkingFast]

There's another one that will take us, but I've only had a phone Consult with him.

When I first called, his office had me leave a message on an answering service/machine. His paralegal called back the next day. We chatted for a tad over an hour. She answered a lot of questions. When she found out about outa state, she wasn't sure he'd take us, but she would see. Didn't hear anything for days. So I called and left another message just to follow-up.

Couple days later, the attny calls. We chat for right at an hour. He answered lots of different questions. Suggested maybe we get an attny in old home state to consult on application of the statutes. Generous with his time and info, sounded very nice. When I asked if he wanted us to schedule an appt to come in so he could look over our papers and such, he said, "Nope. Just call me when you're ready to file. We'll schedule an appt to meet then."

Odd.

That gave me a wierd vibe so I was kinda afraid of using him. But I'm learning all attnys are a little odd in their own way. Maybe we should drive by and take a look at his office. See if that tells us something. LOL

[JimH]

For the most part, atty's only give the free consults so they can get someone in their office. The majority of people go with the first atty that will talk with them. He probably feels an hour on the phone was ample time and that you'll either go with him at this point or you'll go see someone else and come back to him at a later time. That's just my gut feeling.

[SinkingFast]

keep going until you find one. get all the consults you can.

about mortage issues:

remember that it takes awhile to get your application ready to file with the court. you are not protected until you file the petetion. that is different then retaining an attorney.

he can however file an emergency petition but with the new laws im not sure how fast you are gonna have to get everything else in as well.

I wonder if we could get an emergency petition on a house we don't physically live in, or if that's just for owner occupied.

Your comment about taking time to get the petition ready,........ One of the attnys we Consulted with mentioned something about how long it takes. He said we'd need to come to his office several times. Each visit would be a couple hours or so each time as we entered things.

That attny wanted us to start coming to see him 30-45 days before we reached the 90 day after last CC use mark to get started. Does it really take that long???

[bkfiler]

yes. mine was 'simple' and still took them 45 days. back and fourth, corrections, changes. learning new things, finding incorrect things. they dont do it as you would think. errors are made.

they put you in a queue and run you through their process. their staff collects things, gets it ready, stackes it in place, walks by it when putting the next stack in place...

it seems to me that with less filings then they will be able to pay more attention to it quicker.

im not sure about emergency filings. before they use to do skeleton filings. then submit everything else later. but with the new laws and deadlines in which to get things submitted you are under the gun a bit more it seems.