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Related videosRecover Unclaimed Funds from the U.S. Bankruptcy Court-Work from Home 2020
The point of is to give the debtor a fresh start and that is not achieved by the refusal to avoid a lien which will remain in place post discharge and could eventually be foreclosed when property values increase. It appears that the judgment lien and the right to enforce that lien survive a Chapter 7. If the judgment creditor seeks to enforce its lien prior to the expiration of that lien, perhaps the owner could file a Chapter 13 and pay the creditor the value of the excess equity.
The expense in the form of bonding the Sheriff of this procedure make it very price prohibitive. Pacific, et al. Castleton, et al. December 27, — 1 CA-CV — Issue:Whether a judgment creditor may attach a judgment lien to homestead property, or whether it may execute on its judgment only by way of a forced sale of the property under Ariz. Holding: The court holds that a recorded judgment is not a lien on homestead property.
Section thus establishes the general rule that a recorded judgment does not become a lien on homestead property. See also Union Oil Co. Norton Morgan Commercial Co. See In Evans v.
Young , Ariz. Sirignano , Ariz. In re Awdisho , bkDPC. The judgment recorded by Midland prior to the Petition Date does not constitute a lien against the homestead property owned by the Debtors.
It depends on the law of the state where the judgment debtor lives. It also depends on the type of assets the judgment debtor has — exempt versus non-exempt. Assuming this is in Arizona then you are dealing with a title company that does not know how to read Arizona law. See Arizona Revised Statutes :. Except as provided in sections and , from and after the time of recording as provided in section , a judgment shall become a lien for a period of ten years from the date it is given, on all real property of the judgment debtor except real property exempt from execution, including homestead property , in the county in which the judgment is recorded, whether the property is then owned by the judgment debtor or is later acquired.
A civil judgment lien obtained by this state and a judgment lien for support, as defined in section , remain in effect until satisfied or lifted. If this is your Arizona home homestead then do not let the title company bully you into paying the judgment.
Move to a different title company who knows how to read the law. The amount of equity is immaterial. The only method of enforcement is by Sheriff sale. There is no such thing as a judgment lien that attaches to a homestead. This does not apply if the realty is not a homestead. Again, the Arizona law applies even if you filed for bankruptcy. Even if you forget to list this judgment it is still not a lien against your home see the Arizona law above. Note — selling your home while in bankruptcy will be a problem.
Most likely you will need to get permission from the court, or at least the trustee, in order to sell your home. Talk to your bankruptcy attorney before deciding to sell your home. If your bankruptcy attorney does not know the answer to your questions then hire another attorney. This issue is a very basic one and every bankruptcy attorney should know the process. If the title company refuses to change their requirements then move the escrow to a title company that will such as North American Title or First American Title.
If the creditor fails to go through the sheriff sale process before the property is transferred, the creditor has lost its remedy to get paid with respect to the homestead. When is a house a home? The bankruptcy court erred because it did not determine whether the debtor intended to continue to reside in the property in question. The court explained: physical occupancy on the filing date without the requisite intent to live there does not establish residency, which is necessary for a homestead exemption.
Differing opinions on whether to use date of filing or date of plan confirmation: In a real estate climate where values are quickly changing, the question arises when is the value of the residence determined? The date of filing of the Chapter 13 petition, the date of confirmation, the date of the hearing on for determining the value or some other day?
Cal ; In re Boyd, B. Aug 04, The trustees will require the following generic list :. A purchase contract. A proposed amendment to schedules I and J. If there is no title company involved yet, they will require that once a sales offer is made, and escrow opened, Preliminary Closing docs. But, the best practice is to open escrow before going this far. Once sold, the debtors must file the amended schedules which means they need to be in another property and know the expenses associated with that property.
The letters from the trustee usually take less than a week to process. More often than not, they do not require a court order assuming the confirmed plan re-vests the home to the debtor s. If pre-confirmation will probably need a Motion to sell. If post-confirmation the sale can be done informally as long as the plan is confirmed.
If no purchaser, a generic request to allow the sale with the provide that additional information, including amended schedules, can usually be filed. The motion should allege that based on market prices, and opinions of the realtor, the sale price is reasonable and the sale would not impact on the creditors of the estate.
If the sale could reasonably produce non-exempt proceeds, then will need to allow for higher and better offers. When there is a difficult lender — consider drafting the order to give the option to hold escrow out a specified amount of money and sell it free and clear of the mortgage lien.
That will help if later the lender continues to be difficult to work with obtain payoff. Lowe v. March 7, When Curtis DeBerry filed for chapter 7 bankruptcy he exempted his homestead without objection by the trustee. Post-petition he sold the residence and transferred some of the proceeds to his wife and used the rest to pay unrelated criminal attorney fees. The trustee filed an adversary complaint arguing that, because Mr.
DeBerry did not reinvest the proceeds in another homestead within six months as required by Texas proceeds law, the proceeds were not exempt. The bankruptcy court found in favor of Mr. DeBerry and the district court reversed. On appeal, Mr. DeBerry relied on Hawk v.
Engelhart In re Hawk , F. The circuit court found that the purpose behind the homestead proceeds rule is to allow the homeowner time to reinvest the proceeds in a new homestead without fear of attachment by creditors. In the bankruptcy context, the proceeds rule protects the debtor who no longer owns the homestead at the time of filing, by preventing the proceeds from the sale of homestead within six months of filing from entering the bankruptcy estate.
In this case, however, it was not the debtor seeking the protection of the rule, but the trustee seeking to use the rule to bring the proceeds into the estate.
To find otherwise, the court cautioned, would leave the issue of exemptions open through the entire course of the bankruptcy, the length of which would be at least partially controlled by the trustee, since a debtor could sell his homestead at any time. The court distinguished In re Zibman , F. In contrast, Mr. DeBerry owned the homestead when he filed for bankruptcy and, therefore, his exemption was unconditional. The court also distinguished In re Frost, F.
The fact that Frost was a chapter 13 case was dispositive because, under section a 1 , property acquired post-petition is added to the bankruptcy estate.
There is no comparable post-petition asset capture provision in chapter 7. Based on its reasoning in Hawk, the Fifth Circuit reversed the district court and reinstated the order of the bankruptcy court. In re Black , B. Shortly after that dismissal, her home was sold to Sweetheart Properties, Ltd.
She filed a second bankruptcy petition seeking to have the sale of her home vacated for gross inadequacy of price. Bankruptcy Judge Redfield T. Whittle Development, Inc. Due to the circumstances of foreclosure sales, however, often such sales do not result in as a high a sale price as would a private sale transaction.
In the recent case of Whittle Development, Inc. In re Whittle Development, Inc. Section provides for the avoidance of a prepetition transfer made to a creditor, on account of an antecedent debt, if the debtor was insolvent and the transfer enabled the creditor to receive more than it would have in a hypothetical chapter 7 liquidation. Whittle is significant not only because it calls into question the long-accepted notion that foreclosure sales are final, but also because it represents a departure from Supreme Court precedent in the related area of fraudulent transfers under section of the Bankruptcy Code.
Background In , Whittle Development, Inc. The foreclosure sale complied with all relevant state law requirements. Within ninety days of the foreclosure sale, Whittle filed a Chapter 11 petition. Thereafter, Whittle brought an action to avoid, as a preferential transfer, the foreclosure sale. Resolution Trust Corp. BFP v. In BFP , the Supreme Court addressed whether a foreclosure sale could be avoided as a constructively fraudulent transfer under section This ruling effectively insulated regularly conducted foreclosure sales from avoidance under fraudulent conveyance law.
See Chase Manhattan Bank v. Pulcini In re Pulcini , B. Chelec, Inc. In re Glaser , WL Bankr. In contrast, other courts analyzing the preference test simply highlight the plain language of the statute and point out that the test for whether a transfer is a preference is fundamentally different than the test used in the fraudulent conveyance statute.
In Whittle , the Court sided with this second group of cases, holding that BFP was inapplicable in the preference context based on the clear language of the statute. It only received the sum of the amount paid at foreclosure and a deficiency claim. Although the Whittle decision does not stand for the proposition that all valid prepetition foreclosure sales are susceptible to avoidance as preferential transfers, it does carve out a narrow subset of such sales for which the foreclosure sale may be anything but final.
Based on this ruling and others like it, secured creditors and purchasers of foreclosed property who are also creditors of the estate should be cautious. These parties should view this case as a clear warning that, depending on the jurisdiction, the foreclosure sale may not be final. Additionally, purchasers of a foreclosed property must also take into account the risk that the property owner will file bankruptcy and seek to avoid the sale as a transfer under section of the Bankruptcy Code.
Purchasers may discount the price they are willing to pay for foreclosed properties to account for this additional risk, a result that is detrimental to the secured creditor, the debtor and its general creditors. If the Whittle opinion gains a widespread following in other jurisdictions and the market reacts to this risk by low bids from third parties, lenders may experience an increased incidence of being required to credit bid and take such assets into its OREO inventory.
The determination of the amount of the credit bid may require re-examination as well in light of the risk that the credit bid will be determined to result in the lender receiving a voidable preference.
Hicks v. D Civil Code c e , and g d do not prohibit the postponement of a foreclosure sale for successive periods of five of fewer business days during the period a sale is on hold because of an injunction or bankruptcy stay.
Section d. Timbers of Inwood Forest Associates, Ltd. Helvetica Servicing Inc. If a property is subject to two deeds of trust and the senior lienholder purchases the property at a foreclosure sale without joining the junior lienholder, the junior lienholder may seek to redeem the property under A. The redeeming junior lienholder is not required to pay any portion of the senior lien that is unenforceable against the judgment debtor under the statutes. In re Sapphire Investments , 19 B.
Cohen v. Chernushin In re Chernushin , 10th Cir. Gregory and Andrea Chernushin owned a second home in Colorado in joint tenancy with right of survivorship. Eventually, Mr. Chernushin but not Ms. Chernushin filed for bankruptcy. During the bankruptcy proceedings, Mr. Chernushin died. The bankruptcy trustee, Robertson B. Cohen, then filed an adversary complaint against Ms. Chernushin, seeking to sell the home. Chernushin argued the bankruptcy estate no longer included any interest in the home because Mr.
The bankruptcy court agreed with Ms. Chernushin, as did the district court on appeal. Cohen now appeals to this court. Because the bankruptcy estate had no more interest in the home than Mr. Chernushin and Mr. Madatian v. Trustee filed a Motion for Turnover to compel debtor to vacate her residential property and turn over possession of the property and certain records. Specifically, the Trustee argued that debtor had a duty to cooperate and turn over all property of the estate.
The agent twice attempted to make these arrangements with debtor, but debtor did not respond. At the hearing on the Motion for Turnover, the bankruptcy court ruled that the Trustee was entitled to turnover of the Residential Property and the records associated with certain rental property. The court concluded that Ms. PMSIs in consumer goods are perfected without any recording other than vehicles. See ARS 1. Panels probably are part of the real estate. However, the attached case says because the air conditioner is a consumer good, no recording was necessary either UCC-1 or fixture filing.
Also, even assuming a lien is avoidable in BK, perfection is about priority and notice which may not be required to make a security agreement enforceable.
In other words, a security interest is not void by the fact a UCC or fixture filing is not recorded assuming it is required because the collateral is not a consumer good. See attached case that says no recording was required for an air conditioner, which seems akin to solar panels. Carolina : UCC not necessary to grant security interest in consumer goods.
Serap v. Idnani In re Serap. Dissent disagreed with ruling on Nevada law. Hooker v. By listing a nominal beneficiary that is clearly described in the trust deed as anything but the actual beneficiary, the MERS system creates confusion as to who has to do what with the trust deed.
When a borrower on the verge of default cannot find out who has the authority to modify the loan, a modification, or a short sale, even if beneficial to both the borrower and the beneficiary, cannot occur. After an individual debtor receives a bankruptcy discharge, a creditor may not seek to recover the discharged debt.
Under section a 2 of the Bankruptcy Code, a discharge injunction permanently enjoins creditors from trying to collect discharged debts and prohibits a creditor from collecting any debt where the debtor has been discharged of personal liability.
A bankruptcy discharge does not completely extinguish the prepetition debt. Home State Bank, U. Bullard, U. The mortgage servicer must balance trying to communicate with the discharged debtor about the mortgage without engaging in collection attempts that may violate the discharge injunction or other law.
This Note provides guidance to mortgage servicers when servicing the residential mortgage debt of a discharged debtor-borrower, highlights the risks that servicers encounter from this continued relationship, and provides recommended language for post-discharge communications to help servicers mitigate the risk of discharge injunction violations. Debtors in both Chapter 7 and Chapter 13 bankruptcy may seek to retain their primary residence in bankruptcy.
While debtors in a Chapter 11 or 12 bankruptcy may also seek to retain their residence, this Note addresses only individual Chapter 7 and 13 bankruptcies because individual Chapter 11 and Chapter 12 cases are less common.
A Chapter 7 debtor has several options to retain real property encumbered by a loan. A Chapter 7 debtor may:. Unless the debt has been reaffirmed, a Chapter 7 discharge relieves an individual debtor from personal liability for mortgage debt and prevents the mortgage servicer from taking any collection actions against the debtor personally.
A Chapter 13 debtor will typically elect to file a Chapter 13 case to keep the family home. Generally, this is done when a Chapter 13 debtor chooses to catch up on past due payments and make go forward payments under the terms of the Chapter 13 plan of repayment.
A Chapter 13 debtor can also elect to surrender the property through the Chapter 13 bankruptcy plan. If the debtor receives a discharge but remains in possession of the property despite an intent to surrender in the confirmed plan, the debtor is discharged of personal liability. However, the security interest survives the discharge. Under particular circumstances, a creditor may take certain actions with respect to the mortgage outside of foreclosure without violating the discharge injunction.
Section j does not completely protect against allegations of discharge injunction violations that can arise from communications relating to collecting payments on the mortgage debt.
If servicers elect to accept payments in lieu of foreclosing on the property post-discharge, it is critical to ensure that all servicing activity, particularly communications:. Nationstar Mortg. LLC, B. Therefore, servicers must adapt servicing correspondence to avoid a discharge violation through routine correspondence such as:.
The only way to fully eliminate the risk of violating the bankruptcy discharge injunction is to cease all communications with debtor-borrowers who receive a discharge. This drastic change in practice is not realistic because:. Servicers must balance between providing statutorily mandated correspondence to debtor-borrowers and avoiding allegations that the correspondence violates the discharge injunction. In these cases, a carefully worded, narrowly tailored disclaimer is advisable.
To determine whether a post-discharge communication violates the discharge injunction, courts conduct a fact-intensive inquiry into whether the communication was an attempt to collect the debt from the debtor-borrower personally.
Courts heavily scrutinize the existence of and language within bankruptcy disclaimers on debtor-borrower communications. As part of this scrutiny, courts view these communications from the perspective of the unsophisticated consumer.
Mortgage servicers should be mindful that there is no language that has been deemed an absolute shield for a bankruptcy disclaimer. Even innocuous statements under the right facts may be found to violate the discharge injunction.
For example, if:. Crafting correspondence to discharged debtor-borrowers is complicated when both an FDCPA disclaimer and a bankruptcy disclaimer are necessary. The servicer can appear to tell the debtor-borrower that it intends to collect the debt under the FDCPA disclaimer while also recognizing that they cannot do so under the bankruptcy disclaimer. Millions of people have filed for bankruptcy and the courts and bankruptcy trustees know all the tricks.
And the law prevents you from transferring your assets out of your name and then filing for bankruptcy at least it prevents you from getting away with it. If you sell something prior to the filing of your bankruptcy case you must sell it for approximately what it is worth.
If you are thinking of filing for bankruptcy and are needing to sell something, ask your lawyer first, and then make sure you sell it for what it is worth and that money actually changes hands. However, if you have a cabin, condo, or some other sort of real estate in your name, and if that property has any equity in it, then there is no homestead exemption and the bankruptcy trustee will step in and sell the property, paying off any liens on the property and then taking the money and paying it out to your other creditors.
If you have real estate that is not your personal residence, and you have equity in it, then you may want to look at a chapter 13 bankruptcy and for sure discuss this situation with your lawyer. In order for your home to be protected under the homestead exemption you must utilize the property as your home and the property must be located in the state of Arizona. If you own a cabin in southern Utah or a condo on the beach in California you will not have any homestead protection in those properties and would lose them in a bankruptcy.
If the HOA has secured a lien against your home then the debt is considered secured and will not be eliminated in your bankruptcy case. In a chapter 7 bankruptcy the income you receive after your case is filed is largely irrelevant to the bankruptcy court.
However, if you become entitled to an inheritance within days approximately 6 months after your bankruptcy case is filed, you must notified your lawyer and the bankruptcy trustee and your inheritance can then be seized to pay your creditors.
It is important to understand that the law states that if you become entitled to an inheritance within days, not that you have received an inheritance within days. If prior to the filing of your bankruptcy you are injured and become entitled to a settlement or payout due to your injuries, those funds can be seized by your bankruptcy trustee if they are received after your bankruptcy case is filed.
It is important to let your bankruptcy lawyer know if you have been in an accident or expect some type of settlement or payout so that your lawyer can properly advise you as to when your bankruptcy case should be filed.
Often it is better to wait until the personal injury claim has been settled and paid before jumping into a bankruptcy case. If you file a chapter 7 bankruptcy you will likely lose part or all of your tax refund. If you file a chapter 13 bankruptcy there is a good chance you will lose your tax refunds for the years your case is pending usually 5 years. Here are a few guidelines on what you can expect if you file your bankruptcy during the following months:. The typical chapter 13 case last 3 to 5 years in length.
During that time period the bankruptcy trustee is going to give you two options when it comes to tax refunds. First, you can adjust your with holdings on your paycheck so that you keep more of your pay and thus reduce your chances of getting a large tax refund click HERE to find out how to find out what your tax with holdings should be.
An alternative is to keep your withholdings where they are and then if you get a tax refund each year you can turn it over to the chapter 13 trustee for distribution to your creditors. This last one is a sneaky way some bankruptcy trustees try and come after additional money for your creditors. The most common scenario I run into with this one is with real estate agents.
The best way to work around this is if you have a large commission check coming or paycheck, then it may be best to wait until the commission is paid and spent prior to filing for bankruptcy. The point of this article is to help you avoid some of the grief that can come along with a consumer bankruptcy case. Many if not all of these pitfalls can be avoided with a little planning and the help of a good bankruptcy lawyer. The problems often hit the unweary the hardest resulting in a really painful bankruptcy experience.
If you are in need of help filing for bankruptcy give us a call. I offer a free consultation and am happy to walk you through the bankruptcy process and go over your options — John Skiba, Arizona Consumer Law Group, John Skiba, Esq. We offer a free consultation to discuss your debt problem and help you put together a game plan to eliminate your debt once and for all.
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