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death of debtor in Ch. 13/dismissal
Thanks, Dennis. I have no idea who obtained the rights upon the passing of
the debtor. I think that can only be determined after a lengthy probate.
But I'm not going to get involved in that. I think your analysis is a good
one, and reasonable, and is essentially what I planned to do. I just
didn't want to find out that I was completely off base.
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Mark:
You represent the rights of a debtor in an estate. Once the debtor passed, who obtained the rights? You can tell the daughter to get another attorney or you can make the motion.
Is there property that would otherwise be distributed to general creditors in a chapter7?
If nothing to be distributed in a 7, the answer seems pretty simple.
Make a motion to dismiss. Disclose, Disclose, Disclose, i.e. tell the judge, through the daughter's declaration (she is a party in interest) the debtor is deceased, the house is in arrears and will probably be foreclosed if the case is not dismissed. You will likely get an order dismissing.
If there would be a distribution in a 7, tell the daughter to get her own lawyer.
dennis
Subject: RE: [cdcbaa] death of debtor in Ch. 13/dismissal
To: cdcbaa@yahoogroups.com
Date: Monday, February 9, 2009, 12:33 AM
At this point Im not so concerned about advising the daughter on
the issues of the validity of the quitclaim or anything else. Im concerned
about whether I even have the ability to properly request a dismissal of the
Chapter 13 case on behalf of the debtor, when the debtor is deceased?other words, do I have an obligation to essentially do NOTHING and wait for the
plan payments to default, and a motion to dismiss be filed by the Trustee?That would be fine except for two things: 1. Could result in a conversion to
Ch. 7 and; 2. The mortgage creditor could seek and obtain relief from the stay
in the interim.
Ugh.
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At this point I'm not so concerned about advising the daughter on the issues
of the validity of the quitclaim or anything else. I'm concerned about
whether I even have the ability to properly request a dismissal of the
Chapter 13 case on behalf of the debtor, when the debtor is deceased? In
other words, do I have an obligation to essentially do NOTHING and wait for
the plan payments to default, and a motion to dismiss be filed by the
Trustee? That would be fine except for two things: 1. Could result in a
conversion to Ch. 7 and; 2. The mortgage creditor could seek and obtain
relief from the stay in the interim.
Ugh..
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Mark;
You may have some probate issues as well here. Look into that. How did the
deceased debtor hold the property? Any chance it was in a trust? A joint
tenancy deed?
A deed is valid even if not recorded, so long as it was notarized and met
all other formalities, but if he has a will that contradicts it then you
might have other issues. Did he leave a will or trust? Does he have other
potential heirs?
Your right that this is complex.
Steve
Law Offices of Steven B. Lever
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I have a complicated one I don't know what to do with.
I represent(ed) a debtor in a Chapter 13, the purpose of which was to stop a
foreclosure sale and catch up on arrearages on a piece of real property that
was being used by debtor's daughter to run a business. Debtor passed away
a few months ago, but the daughter has been maintaining the plan payments.
The monthly payment on the mortgage has increased to a point where she can
no longer afford it, but she wants to keep the property and maintain the
business. So now she wants to dismiss the Chapter 13 case so she can
record a quitclaim deed that the debtor signed prior to passing away, and
then negotiate and/or sue the mortgage company to modify the loan.
My questions are:
1. Can I dismiss the case on their request? I am signing as
attorney for the debtor, who is deceased. Do I have any obligation to the
daughter? Is there any problem with me seeking to dismiss the case?
2. Under California law, can the daughter transfer title by
recording a quitclaim deed executed prior to the death of the grantor?
3. If the foreclosure sale has been taken off "calendar", must the
mortgage company publish a new 21-day notice of sale in order to foreclose?
Answers to any or all of the above, comments, suggestions, etc. will be
appreciated.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
Toll Free: 1-866-576-6275
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at
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