A Form 8 pickle...amended pickle anyway...
Posted: Sun Mar 07, 2010 1:09 pm
Good answer Jess. Let me add that lawyers entering into the bankruptcy practice of law must get their arms around the concept that more than any other area of the law, bankruptcy is an umbrella that covers many other areas of law.
When it comes to residential real property, lawyers must embrace the understanding of the the California mortgage, deed of trust and foreclosure statute, and the tricky strategy of timing between bankruptcy, short sales, the means test, foreclosure, reaffirmation agreements, recourse versus nonrecourse debt, the antideficiency statute and one action rule, etc. Overlay tax issues - both income and capital gains.
If you do not fully understand the complexities seek a mentor who does, research the issues, read treatises, but don't put the client at risk, as they have enough stress and distress. And remember, the practice of law cannot be learned through Twitter or Facebook length questions and answers. That is why it is called the "practice" of law.
Lou Esbin
>
> You are making things way to complicated. The statement of intentions is merely a statement, nothing more. Why would you need to reaffirm real property? The debt being discharged does not prevent any later sale. If the trustee files a no asset report, trustee does not care if your client takes steps towards short sale. Technically cannot sell until case is closed. Just disclose to prospective buyers that your client cannot consummate deal until case is closed. Can always file motion to force trustee to abandon property if cannot wait.
>
> Mark Jessee
> Sent from my BlackBerry smartphone with SprintSpeed
>
> -----Original Message-----
> Date: Fri, 5 Mar 2010 21:51:19
> To:
> Subject: [cdcbaa] A Form 8 pickle...amended pickle anyway...
>
> In original Chp 7 joint petition, statement of intention correctly reflect
> client's desire to reaffirm underwater house.
>
> After 341 meeting, clients has change of heart, and asks to discharge house
> and surrenderr to lender. (only 1st mortgage so no recourse).
>
> Counsel files amended form 8 and serves Trustee and Lender.
>
> Form 8 then is rejected by clerk due to lack of holographic signature.
>
> Client calls later in the week and informs attorney "Uh, we listed house for
> short sale, can we do that?"
>
> Obviously, the answer was "NO" b/c property is part of BK estate....but
> client has fallen victim to idiot real estate agent
>
> Where does attorney go from here...Have client reaffirm debt and short sale
> home after discharge? Call real estate agent and scream?
>
>
> --
> Robert S. Vitt
> VITT LAW FIRM
>
> 3200 E. Guasti Road Ste 100
> Ontario, CA 91761
> 909.275.7594 Office
> 909.275.7621 Facsimile
> www.bankrutpcy-ie.com
> www.vittlawfirm.com
>
> 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.
>
> 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.
>
The post was migrated from Yahoo.