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Timing of Selling of Real Property
Update, Debtor has since remarried (former spouse passed away couple
years ago). Since there is caselaw saying the increase in value
belongs to the estate, is it possible to argue that the equity in
the real property is part community property despite the marriage
being post petition? In essence, what was formerly excess equity
beyond the homestead exemption no longer exists due to community
property laws. If this works, I would them amend debtor' schedules
to reflect the change and let trustee object? Any thoughts?
Khiem Tran, Esq.
3500 W. Olive AVe, Suite 300
Burbank, CA 91505
wrote:
> PS: Don't forget that time is on the side of the Trustee since
there are
> several 9th circuit cases which say that any increase in value due
to
> appreciation belongs to the estate. I would argue that any
increase in
> equity which results from post-petition payments made by the debtor
> belongs to the debtor, but even this position is not certain.
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem
> 500 N. Brand Blvd., #460, Glendale, CA 91203
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Personal & small business bankruptcy specialist cert. by State
Bar of
> CA Bd of Legal Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of
Certification
>
>
>
> -----Original Message-----
> Sent: Thursday, June 03, 2004 8:19 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Timing of Selling of Real Property
>
>
> I have one more caution and a very small bone to pick with Steve's
> comment below. A deal is not necessarily a deal because,
unfortunately,
> the Trustee gets to have it both ways. Because the "agreement"
has not
> been approved by the Court, the Trustee is probably not bound by
the
> "agreement". If your client wants certainty, I second Steve's
> suggestion that you proceed cautiously and appoach the Trustee
gently to
> see what happened to the deal. On the other hand, if the client
can
> live with the uncertainty, I might do nothing and wait it out.
Taking a
> strong approach could be counter-productive.
>
> Regardless, the client needs to be fully advised of all options,
> probably in writing. It is up to the client to dictate your
course of
> action. I strongly recommend against your making any
recommendation
> since if it turns out you are wrong, you have set yourself up for a
> malpractice case.
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem
> 500 N. Brand Blvd., #460, Glendale, CA 91203
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Personal & small business bankruptcy specialist cert. by State
Bar of
> CA Bd of Legal Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of
Certification
>
>
>
> -----Original Message-----
> Sent: Wednesday, June 02, 2004 7:13 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Timing of Selling of Real Property
>
>
> Dennis is correct concerning the two aspects of a chapter 7 life.
> However, an agreement is an agreement. I would not do a motion to
> compel abandonment until I communicate with the trustee. Ask him
again
> for a written stip and ask for a time certain. Don't assume
anything.
> You might blow the deal. And if the trustee decides to put up a
sign,
> both you and your client may be in trouble.
>
>
> Steven L. Bryson
>
> Certified Specialist
>
> Personal & Small Business
>
> Bankruptcy Law
>
> (310) 477-
4555 >
>
>
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The post was migrated from Yahoo.
Dennis is correct concerning the two aspects of a chapter 7 life. However,
an agreement is an agreement. I would not do a motion to compel abandonment
until I communicate with the trustee. Ask him again for a written stip and ask
for a time certain. Don't assume anything. You might blow the deal. And if
the trustee decides to put up a sign, both you and your client may be in
trouble.
The post was migrated from Yahoo.
Here's the situation. Client files Chapter 7 in 01/04 and has
excess equity in property. Talked with trustee on phone settle the
trustee's interest in the property (would mean a payout to trustee
of about $30k) and trustee indicated that a stipulation for
settlement agreement would be forthcoming. All the while, Trustee
has already obtained permission to hire real estate agent to sell
property. This was about 5 weeks ago and nothing has happened.
There has already been a discharge.
can I file a motion fo abandonment or should I wait to allow the
cased to be closed. Of course I would like to save the client from
paying anything out, but he is amenable to the settlement so he can
move forward and be free and clear to do other things with the
property.
Thanks in advance.
Khiem Tran, esq.
3500 W. Olive Avenue, Suite 300
Burbank, CA 91505
The post was migrated from Yahoo.