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re: Debtor receiving exempt amount of liquidated real property
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Sorry, I should given the numbers. House is worth about $525,000; liens/mtgs: $293,000. Equity$231,000 ($156,000 after homestead exemption). There's no way the Trustee's going to abandon it. Unsecured debts are close to $300,000, primarily credit card for failed business. They are going to need the $75,000 to assist in moving to new premises, so the delay could be significant, and this surcharge that David mentioned would be really "unfortunate". Thus, I posited the idea of them selling prior to filing. I doubt they could settle with credit card creditors for enough to save any of the nonexempt proceeds from the sale (as that would be about 50% of the debt which is pretty much the MAX you can settle for and that would have to be ALL the creditors agreeing). So a Ch. 7 after would be much simpler and quicker.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Cc: bklawr@bklaw.com
Sent: Monday, January 24, 2005 11:01 PM
Subject: RE: [cdcbaa] Debtor receiving exempt amount of liquidated real property
It looks like there are 2 possibilities here: (1) Trustee may be interested in liquidating residence if there remains a significant surplus after debtors are allowed the $75,000 homestead exemption, in which case the foreclosure will be stayed by the BK, creditor eventually gets paid off and your client walks away with $75,000 (although it may take a while to receive)- BUT ULTIMATELY, AN APPARENT WIN-WIN SITUATION FOR EVERYONE or (2) Trustee abandons the property after Chapter 7 case is filed because there is no surplus for creditors after the homestead exemption is allowed debtors.
In the first scenario, your client at least has a chance to walk away with $75,000 . In the second one, your clients will lose their property, anyway, in the foreclosure (unless Chapter 13 is a possibility) and get nothing from the residence.
Thus, it seems like choosing the better course of action depends on the current market value of the property. If the estimated amount of equity in the property is such that the trustee is likely to abandon the residence, then, yes, it would make more sense for your clients to try to sell the house on their own WHILE THERE IS TIME and not file Bk at all. After the sale, how about using the proceeds to settle with creditors for cents on the dollar?
Just my thoughts.
Sent: Monday, January 24, 2005 9:05 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Debtor receiving exempt amount of liquidated real property
Do you think it would be safer/wiser to have the debtors sell the property on their own, and then file Ch. 7 after, as they can exempt the $75,000 for up to 6 months after receipt? They're just a couple weeks away from a Notice of Default being entered which could make a sale more difficult, but maybe they can hold off the mtg company.
***********************************************
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)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
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----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, January 24, 2005 2:35 PM
Subject: RE: [cdcbaa] Debtor receiving exempt amount of liquidated real property
Not so fast, Mark. Some trustees want to hold the $75,000 for awhile to make sure the debtor "cooperates" with the estate, and they look for an opportunity to surcharge the $75,000. Some judges believe that the debtor can live without the $75,000 homestead for an indefinate period of time so long as they get it eventually. Best of luck.
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
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
Business bankruptcy specialist cert. by Amer. Bd. of Certification
-----Original Message-----
Sent: Monday, January 24, 2005 11:50 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Debtor receiving exempt amount of liquidated real property
I'm about to file a CH. 7 for debtors who understand the Trustee will sell their residence, but they want to be 100% sure that they will in fact receive their entitled homestead exemption ($75,000). I just want to be sure, is there anything they need to do to ensure this? I don't think they even need to have a declaration of homestead recorded, but like I said, I want to be sure I'm not missing something. Does the Trustee automatically pay the homestead exemption to the debtors upon sale of the property? I assume it gets put somewhere in the Motion to Sell that is filed with the court, right?
***********************************************
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)
e-mail: bklawr@bklaw.com
web: http://www.bklaw.com/
************************************************
Confidentiality Note: This e-mail is intended only for the person or
entity to which it is addressed and may contain information that is privileged,
confidential, or otherwise protected from disclosure. Dissemination,
distribution, or copying of this e-mail or the information herein by anyone
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delivering the message to the intended recipient, is prohibited. If you
have received this e-mail in error, please notify us immediately at (818)
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