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Chapter 7 Dilemma -
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I don't see it as a fraudulent transfer. I see it as a sale of an interest
in the house for fmv. What do the facts say?
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Dennis McGoldrick
Sent: Wednesday, February 24, 2010 9:25 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Chapter 7 Dilemma -
More likely trustee just sues son for money. If house has no equity now, no
reason to chase house. But, equity now has nothing to do with equity at
the time of the transfer.
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On Feb 24, 2010, at 8:59 AM, "Stephen" wrote:
Dear Listmates:
FACTS:
Debtor seeks to discharge about $40,000 in unsecured debt and $35,000
stemming from Heloc on foreclosed property and timeshare properties. Debtor
receives retirement of about 5500 month, but supports 24 year old son who
does work part-time while attending school. Son lives in house with
Debtor/mother, who owns 21 percent of house (claims son for 2 person
household); other son and his wife own 79 percent and also reside at house
with their two children. Debtor put entire $80,000 down on California house
less than 3 years ago. Debtor pays only $300 month on mortgage while 71
percent owner pays $2400 to earn their 71 percent ownership. At Creditor's
meeting, attorney learns Debtor relocated to california in 2008 and not 2007
(as had been told), prompting trustee to request new Sched. C -- Change to
Nevada Exemptions (opt out state). Trustee mentions that there is a
technical fraudulent transfer to son of the 71 percent ownership because
Debtor had put up entire $80,000 down payment. Realtor provided a value
based on comps to show property upside down, whereas Zillow shows some
equity.
ISSUE:
1) Nevada has homestead protection to $125,000 but debtor must have
registered real property as homestead before filing...but property in
California. What controls?
2) What is actual potential of Trustee forcing sale of property against son
based on technical fraudulent transfer.
3) Other thoughts?
Thanks,
Stephen Stern, Esq.
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Message
I don't see it as a
fraudulent transfer. I see it as a sale of an interest in the house for
fmv. What do the facts say?
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
More likely trustee just sues son for money. If house has no equity now, no reason to chase house. But, equity now has nothing to do with equity at the time of the transfer.
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On Feb 24, 2010, at 8:59 AM, "Stephen" wrote:
Dear Listmates:
FACTS:
Debtor seeks to discharge about $40,000 in unsecured debt and $35,000 stemming from Heloc on foreclosed property and timeshare properties. Debtor receives retirement of about 5500 month, but supports 24 year old son who does work part-time while attending school. Son lives in house with Debtor/mother, who owns 21 percent of house (claims son for 2 person household); other son and his wife own 79 percent and also reside at house with their two children. Debtor put entire $80,000 down on California house less than 3 years ago. Debtor pays only $300 month on mortgage while 71 percent owner pays $2400 to earn their 71 percent ownership. At Creditor's meeting, attorney learns Debtor relocated to california in 2008 and not 2007 (as had been told), prompting trustee to request new Sched. C -- Change to Nevada Exemptions (opt out state). Trustee mentions that there is a technical fraudulent transfer to son of the 71 percent ownership because Debtor had put up
entire $80,000 down payment. Realtor provided a value based on comps to show property upside down, whereas Zillow shows some equity.
ISSUE:
1) Nevada has homestead protection to $125,000 but debtor must have registered real property as homestead before filing...but property in California. What controls?
2) What is actual potential of Trustee forcing sale of property against son based on technical fraudulent transfer.
3) Other thoughts?
Thanks,
Stephen Stern, Esq.
More likely trustee just sues son for money. If house has no equity now, no reason to chase house. But, equity now has nothing to do with equity at the time of the transfer.Dennis McGoldrick350 S. Crenshaw Bl., #A207BTorrance, CA 90503On Feb 24, 2010, at 8:59 AM, "Stephen" <legalsos4u@yahoo.com> wrote:
Dear Listmates:
FACTS:
Debtor seeks to discharge about $40,000 in unsecured debt and $35,000 stemming from Heloc on foreclosed property and timeshare properties. Debtor receives retirement of about 5500 month, but supports 24 year old son who does work part-time while attending school. Son lives in house with Debtor/mother, who owns 21 percent of house (claims son for 2 person household); other son and his wife own 79 percent and also reside at house with their two children. Debtor put entire $80,000 down on California house less than 3 years ago. Debtor pays only $300 month on mortgage while 71 percent owner pays $2400 to earn their 71 percent ownership. At Creditor's meeting, attorney learns Debtor relocated to california in 2008 and not 2007 (as had been told), prompting trustee to request new Sched. C -- Change to Nevada Exemptions (opt out state). Trustee mentions that there is a technical fraudulent transfer to son of the 71 percent ownership because Debtor had put up
entire $80,000 down payment. Realtor provided a value based on comps to show property upside down, whereas Zillow shows some equity.
ISSUE:
1) Nevada has homestead protection to $125,000 but debtor must have registered real property as homestead before filing...but property in California. What controls?
2) What is actual potential of Trustee forcing sale of property against son based on technical fraudulent transfer.
3) Other thoughts?
Thanks,
Stephen Stern, Esq.
The post was migrated from Yahoo.
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Not sure if Nev exemptions have extra-territorial effect. You need to check
that issue. But exemption issue is red-herring. If sons are really owners,
then father does not need exemption. I don't see why father can sell to son
and take back seller financing. Suggest you reanalyze the facts using this
concept. It seems like father is getting sons to pay for their equity.
That is the definition of a sale, not a fraudulent transfer.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Stephen
Sent: Wednesday, February 24, 2010 9:00 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Chapter 7 Dilemma -
Dear Listmates:
FACTS:
Debtor seeks to discharge about $40,000 in unsecured debt and $35,000
stemming from Heloc on foreclosed property and timeshare properties. Debtor
receives retirement of about 5500 month, but supports 24 year old son who
does work part-time while attending school. Son lives in house with
Debtor/mother, who owns 21 percent of house (claims son for 2 person
household); other son and his wife own 79 percent and also reside at house
with their two children. Debtor put entire $80,000 down on California house
less than 3 years ago. Debtor pays only $300 month on mortgage while 71
percent owner pays $2400 to earn their 71 percent ownership. At Creditor's
meeting, attorney learns Debtor relocated to california in 2008 and not 2007
(as had been told), prompting trustee to request new Sched. C -- Change to
Nevada Exemptions (opt out state). Trustee mentions that there is a
technical fraudulent transfer to son of the 71 percent ownership because
Debtor had put up entire $80,000 down payment. Realtor provided a value
based on comps to show property upside down, whereas Zillow shows some
equity.
ISSUE:
1) Nevada has homestead protection to $125,000 but debtor must have
registered real property as homestead before filing...but property in
California. What controls?
2) What is actual potential of Trustee forcing sale of property against son
based on technical fraudulent transfer.
3) Other thoughts?
Thanks,
Stephen Stern, Esq.
charset="windows-1251"
Message
Not sure if Nev exemptions
have extra-territorial effect. You need to check that issue. But
exemption issue is red-herring. If sons are really owners, then father
does not need exemption. I don't see why father can sell to son and take
back seller financing. Suggest you reanalyze the factsusing this concept. It seems like father is getting sons to pay for their
equity. That is the definition of a sale, not a fraudulent
transfer.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
Dear Listmates:
FACTS:
Debtor seeks to discharge about $40,000 in unsecured debt and $35,000 stemming from Heloc on foreclosed property and timeshare properties. Debtor receives retirement of about 5500 month, but supports 24 year old son who does work part-time while attending school. Son lives in house with Debtor/mother, who owns 21 percent of house (claims son for 2 person household); other son and his wife own 79 percent and also reside at house with their two children. Debtor put entire $80,000 down on California house less than 3 years ago. Debtor pays only $300 month on mortgage while 71 percent owner pays $2400 to earn their 71 percent ownership. At Creditor's meeting, attorney learns Debtor relocated to california in 2008 and not 2007 (as had been told), prompting trustee to request new Sched. C -- Change to Nevada Exemptions (opt out state). Trustee mentions that there is a technical fraudulent transfer to son of the 71 percent ownership because Debtor had put up entire $80,000 down payment. Realtor provided a value based on comps to show property upside down, whereas Zillow shows some equity.
ISSUE:
1) Nevada has homestead protection to $125,000 but debtor must have registered real property as homestead before filing...but property in California. What controls?
2) What is actual potential of Trustee forcing sale of property against son based on technical fraudulent transfer.
3) Other thoughts?
Thanks,
Stephen Stern, Esq.
The post was migrated from Yahoo.