FW: Help [1 Attachment]
Posted: Tue Apr 30, 2013 11:13 am
I think it would be better if you were more direct with your question
because it's complicated. i.e. state your question, state relevant facts.
For example, you said, "is the property the Debtors primary residence? it
will be protected by the Homestead Exemption which for a couple is
$100,000.00 pursuant to CCP 704.730(a)(2)
C7T Yoo will be required to pay the Debtors $100,000.00 out of the* proceeds
of any sale regardless of equity*. Arguably, if the encumbrances on the
property exceed $280,000.00, C7T Yoo will NOT be permitted to sell the
property. read Pladson II attached."
I added the emphasis.
If the home is worth 300k with a 100k exemption and 260k encumberance. Upon
a sale, the encumberance would be paid first, then 40k less fees and
costs distributed to Debtors.
They would not be entitled to 100k.
If the home is worth 350k with a 100k exemption and 260k encumberance. Upon
a sale, the encumberance would be paid first, then 90k less fees and costs
distributed to Debtors.
They would not be entitled to 100k.
If the home is worth 380k with a 100k exemption and 260k encumberance. Upon
a sale, the encumberance would be paid first, then of the remaining 120k,
fees an costs (assuming 8% which is .01*380,000 3,800 x 8 28,400 would
be deducted leaving about 91.6k which would go to Debtor.
They would not be entitled to 100k.
Under any of these scenarios, the trustee wouldn't sell the property
because nothing is left over for creditors, but if s/he did sell the
property, the Debtors would NOT be entitled to a full 100k.
I am also keeping it simple because I am avoiding tax issues.
If you didn't properly exempt the home, I am not experienced enough to know
what the best play is now. Do you amend the schedules and hope that the
trustee does not object based on reliance or do you convert to chapter 13
then amend the schedules? etc.
As an aside, my personal preference is that I wouldn't ask questions in an
open forum like CDCBAA that are very specific to the facts of your case. I
would ask in a more general manner just to protect myself and my client.
I hope I helped you in some way!
Sincerely,
Michael Avanesian
On Mon, Apr 29, 2013 at 3:52 PM, PHiLiP E. KOeBeL, Esq.
wrote:
> **
>
> [Attachment(s) from PHiLiP
> E. KOeBeL, Esq. included below]
>
>
> Hello, this post is from Philip Koebel. He thinks that the homestead
> applies regardless of equity. I have asked him to explain why a debtor
> cannot encumber debtor's equity. He has not supplied an answer. So, do not
> rely on this post without your own research. I am publishing the post so it
> can be debated. I have asked him to posit this type of post as a theory,
> but he repeatedly makes this assertion as if he is 100% correct, which make
> me add this warning.
> dennis, list-serve sergeant-at-arms.
>
>
> is the property the Debtors primary residence?
>
> it will be protected by the Homestead Exemption which for a couple is
> $100,000.00 pursuant to CCP 704.730(a)(2).
>
> C7T Yoo will be required to pay the Debtors $100,000.00 out of the
> proceeds of any sale regardless of equity. Arguably, if the encumbrances on
> the property exceed $280,000.00, C7T Yoo will NOT be permitted to sell the
> property.
>
> read Pladson II attached.
>
>
> On Mon, Apr 29, 2013 at 1:57 PM, Ed Figaredo ed@figaredo-law.com> wrote:
>
>> **
>>
>>
>> **
>>
>>
>> ------------------------------
>> *From:* Rosendo Gonzalez [mailto:rossgonzalez@gonzalezplc.com]
>> *Sent:* Monday, April 29, 2013 1:34 PM
>> *To:* ed@figaredo-law.com>
>> *Subject:* Re: Help
>>
>> I can meet with them, but not sure how much I can do to satisfy their
>> need.
>>
>> Sent from my iPhone
>>
>> On Apr 29, 2013, at 1:01 PM, "Ed Figaredo" ed@figaredo-law.com> wrote:
>>
>> Do you want to get involved? Seems Yoo may respect you a lot more
>> than moi.
>> If you dont want to I can ask Jim King. What do you think?
>>
>> ------------------------------
>> *From:* Rosendo Gonzalez [mailto:rossgonzalez@gonzalezplc.com]
>>
>> *Sent:* Monday, April 29, 2013 12:59 PM
>> *To:* ed@figaredo-law.com>
>> *Subject:* Re: Help
>>
>> Difficult to litigate since the open market is best test; as to buying
>> more time, may be telling new attorney to get involve and ask for short
>> continuance
>>
>> Sent from my iPhone
>>
>> On Apr 29, 2013, at 12:51 PM, "Ed Figaredo" ed@figaredo-law.com> wrote:
>>
>> Well the clients do believe the price is much closer to 305K. But
>> they dont want to get rid of the house. They want to keep the property but
>> not pay the money. Isnt there a way to litigate this, but fighting the
>> value of the house?
>> Can you/do you want to become involved?
>> They gave me deadline for tomorrow, how do I buy more time?
>>
>> ------------------------------
>> *From:* Rosendo Gonzalez [mailto:rossgonzalez@gonzalezplc.com]
>>
>> *Sent:* Monday, April 29, 2013 7:19 AM
>> *To:* ed@figaredo-law.com
>> *Subject:* RE: Help
>>
>> If your client actually believes that the 305k is the accurate value,
>> then it probably makes sense to allow the trustee and his broker to market
>> and list the property (since they will not be able to sell it); if the
>> client believes it is closer to 380k (and I am assuming that the claimed
>> homestead exemption does not cover all the equity value), then your client
>> should consider whether he wants to keep the property (either by making an
>> offer to the trustee for some amount of the non-exempt equity value in the
>> property or considering voluntarily dismissing the case, which will likely
>> be opposed and even if granted would result in payment of administrative
>> fees and costs).****
>>
>> ****
>>
>> *From:* Ed Figaredo [mailto:ed@figaredo-law.com ]
>> *Sent:* Monday, April 29, 2013 4:59 AM
>> *To:* Rosendo Gonzalez
>> *Subject:* Help****
>>
>> ****
>>
>> Ross, Ed Figaredo here. Need your help. ****
>>
>> File Chap 7, got a formal appraisal for residence, independent, sent
>> client to get it. Appraisal comes back $305K. I file accorddingly. ****
>>
>> Trustee Yoo says property worth $380 or something. ****
>>
>> They want the property. I called them and they said they dont give a
>> rats ass what appraisal says. ****
>>
>> I have no clue what to do. Can I hire you? If not who? How do we get
>> around this?
>> These people want answer by 4-30-2013 or they will send broker to
>> list property. Client is ready to skin me though I amm covered, I think..
>> ****
>>
>> I dont know why I am still in this business. ****
>>
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>>
>> ___________________________________****
>>
>> Edward F. Figaredo, Attorney At Law****
>>
>> LAW OFFICES EDWARD F. FIGAREDO****
>>
>> A PROFESSIONAL CORPORATION****
>>
>> 10507 Valley Boulevard, Ste 822****
>>
>> El Monte, California 91731-9998****
>>
>> (626)444-9542****
>>
>> ****
>>
>> ****
>>
>> NOTICE: ****
>>
>> Privileged And Confidential Communication.
>> This electronic transmission, and any documents attached hereto, (a) are
>> protected by the Electronic Communications Privacy Act (18 USC
>> 2510-2521), (b) may contain confidential and/or legally privileged
>> information, and (c) are for the sole use of the intended recipient named
>> above. If you have received this electronic message in error, please notify
>> the sender and delete the electronic message. Any disclosure, copying,
>> distribution, or use of the contents of the information received in error
>> is strictly prohibited. ****
>>
>> Any tax advice contained in the body of this e-mail was not intended or
>> written to be used, and cannot be used, by the recipient for the purpose of
>> avoiding penalties that may be imposed under the Internal Revenue Code or
>> applicable state or local tax law provisions.****
>>
>> NOTICE: The above is not to be received or understood as legal advice.
>> No attorney-client relationship exists with this office until you have
>> signed a retainer agreement or engagement letter. If you are serious about
>> pursuing your matter, retain counsel without delay. If you fail to
>> strictly observe the time limitations applicable to your particular
>> situation you are likely to lose your rights to proceed FOREVER.
>>
>> ****
>>
>> ****
>>
>> ****
>>
>>
>
>
I think it would be better if you were more direct with your question because it's complicated. i.e. state your question, state relevant facts. For example, you said, "is the property the Debtors primary residence? it will be protected by the Homestead Exemption which for a couple is $100,000.00 pursuant to CCP 704.730(a)(2)
C7T Yoo will be required to pay the Debtors $100,000.00 out of the proceeds of any sale regardless of equity. Arguably, if the encumbrances on the property exceed $280,000.00, C7T Yoo will NOT be permitted to sell the property. read Pladson II attached."
I added the emphasis. If the home is worth 300k with a 100k exemption and 260k encumberance. Upon a sale, the encumberance would be paid first, then 40k less fees and costsdistributed to Debtors.
They would not be entitled to 100k.
If the home is worth 350k with a 100k exemption and 260k encumberance. Upon a sale, the encumberance would be paid first, then 90k less fees and costs distributed to Debtors. They would not be entitled to 100k.
If the home is worth 380k with a 100k exemption and 260k encumberance. Upon a sale, the encumberance would be paid first, then of the remaining 120k, fees an costs (assuming 8% which is .01*380,000 3,800 x 8 28,400 would be deducted leaving about 91.6k which would go to Debtor.
They would not be entitled to 100k. Under any of these scenarios, the trustee wouldn't sell the property because nothing is left over for creditors, but if s/he did sell the property,
div>I am also keeping it simple because I am avoiding tax issues.
If you didn't properly exempt the home, I am not experienced enough to know what the best play is now. Do you amend the schedules and hope that the trustee does not object based on reliance or do you convert to chapter 13 then amend the schedules? etc.
As an aside, my personalpreference is that I wouldn't ask questions in an open forum like CDCBAA that are very specific to the facts of your case. I would ask in a more general manner just to protect myself and my client.
I hope I helped you in some way!Sincerely, Michael Avanesian
On Mon, Apr 29, 2013 at 3:52 PM, PHiLiP E. KOeBeL, Esq. <lawofpek@gmail.com> wrote:
The post was migrated from Yahoo.