Surrendering an investment property in a 13

[CoBelle]

At the beginning of my 13, just after the creditors meeting,the trustee said I had to give up my investment property. I was a couple of months behind and I really couldn't afford to keep both it and my house, so I advised the lender who was the seller (contract for deed)and i was told that I could be liable for resale costs, attonrey fees and taxes.

But then my 13 was dismissed because ...well really because my X threw a lot of money around...but they used the excuse that my investment property wasn't really secured and taht this put me over the debt limits.

SO,Ifiled a 7 and I'm discharged but I lost my home...not to foreclosure or trustee sale, X 'sold it' to his intimate friend for much less than my Ch 13 plan called for buying out his minority interest. So I'm homeless, but that isn't enough for X. He now wants to have the trustee take my alimony and retiremetn funds to pay him.

But I digress.....My question is that the Ch 7 trustee is trying to say that my payments made the last 2 years for the investment property are fraudulent transfers and has filed anAP.
So my question is this: did I do something wrong in giving back the property after the Ch 13 trustee told me to? Should I have waited for an order from the court abandoning it? If I should have waited, should I try to get it back? As for how I filed my 7 shedules I said it was a secured debt but that the judge ordered it an unsecured debt for purpose of qualification....and I marked it as disputed.

[newbie2]

Was there anything in writing from the Chapter 13 trustee about giving back the investment property? If not, is there a transcript of the hearing?

[CoBelle]

Yes, it was in writing...and I suspect it is in the record...there was a long list of things and I think my attonrey said that the next step was that she and the trustee 'talk' but they never did. I assume it was put in the record but if not I still have the letter somewhere .

[lrprn]

CoBelle, remind me....didn't you file your 13 pro se (on your own without a lawyer)? I don't see a mention of a lawyer in any of this, so I'm assuming you filed on your own. If I'm wrong, then please forgive me and share what your lawyer has been doing to deal with all of this.

At the beginning of my 13, just after the creditors meeting,the trustee said I had to give up my investment property. I was a couple of months behind and I really couldn't afford to keep both it and my house, so I advised the lender who was the seller (contract for deed)and i was told that I could be liable for resale costs, attonrey fees and taxes.

So the trustee said during your 341 that you had to give up your investment property, so you did. Again, no mention of a lawyer. Did you do this on your own? Was your plan amended to account for surrendering this property or was that when you converted to the 7? If you amended your plan to include the surrender, unless you already agreed to reaffirm the mortgage (which should never happen in a 13) then you would *NOT* have been liable for anything and any liens could be stripped afterwards.

...they used the excuse that my investment property wasn't really secured and taht this put me over the debt limits.

the important question here is was your investment property secured or unsecured? How did the trustee arrive at the conclusion the property was unsecured?

So I'm homeless, but that isn't enough for X. He now wants to have the trustee take my alimony and retiremetn funds to pay him.

On what legal grounds?

My question is that the Ch 7 trustee is trying to say that my payments made the last 2 years for the investment property are fraudulent transfers and has filed an AP.

See my previous question. Was this investment property secured or not?

So my question is this: did I do something wrong in giving back the property after the Ch 13 trustee told me to?Should I have waited for an order from the court abandoning it? If I should have waited, should I try to get it back? As for how I filed my 7 shedules I said it was a secured debt but that the judge ordered it an unsecured debt for purpose of qualification....and I marked it as disputed.

I'm left to ask again - where is your lawyer in all this?

As I said already, assuming that you filed both bk's pro se (on your own) then the real error you made here is trying to file and then handle all of these complex legal complications without a experienced bk lawyer to help you. Whatever you might have saved trying to do this yourself is long gone now with a lot more potentially to lose coming your way.

If you haven't already, you need to confer with several experienced bk lawyers in your area. If you do have a lawyer, then your lawyer is doing a lousy job or you aren't sharing what's going on and doing things on your own. You need to get sound legal counsel about what can be done in this situation. Go get some.

[CoBelle]

I hired a lawyer for my Chapter 13 and paid her a lot of money...4k up front 6k in the plan. My 13 was 'simple' on one side: I had no cc or med debt or mortgage or car loan. I filed to save my house, not from foreclosure, but from it being sold at 1/3rd its appraised value to X's 'intimate friend'. I filed because I had a very friendly to X famlaw judge who threatened me with taking my house if I appealed oneof his more egregious orders.( a book in itself). My reorg plan was to exert my state court ordered right to buy out X's share of my home, repair the home (I built 5 houses) , sell the home, and pay my creditors 100%. Pretty simple plan and everyone should have been happy. BUT...my X and my old divorce attorney both knew their 'liens' on my house were invalid and preferential (X's)...so they didn't want me to get the house because they knew that if I had time and money that I'd sue them for their claims. My X and attorney have lots of money. I don't.

My attonrey was bad news...didn't answer any of the objections and then we had a hearing to Dismiss becausee I didnt' have enough money to fund a plan. In the meantime my attonrey tried to shake me down for an extra $5k up front , and when I pointed out her contract that included even AP's, she decided to withdraw but the judge wouldn't let her. And then, I suspect, the other side, which had done this before in fam law court, paid her to take a dive. Or else she is the absolute worst attorney in the world...she called me the hnight before thehearing and asked me to write out her questions for her. Which I did, but then she couldn't seem to ask them. Didn't know the word 'hearsay'...and actually mixed up the exhibits (that I'd prepeared for her) to MY disadvantage. On a Friday before a Monday hearing, the otherside bought up the quesiton of a deed for my investment property. About a week prior they had amended their motion to include saying thatI was over thedebt limits...I had little debt so i couldn't figure out where they were headed, but I responded in full to their allegations in re thedeed of trust. My attorney didn't file the response addressing these concerns, even tho I wrote it for her. So on Sat morning I'm told that I need a copy of the deed, with a certifgied translation, as the property and deed are in Costa Rica withthe notario who recorded them. Even tho ihadthe sales contract promissory note and DOT, I didn't have a deed...because in a contract for deed you don't get the deed until its paid for. Andthe judge found I had enough money to fund theplan but thatthe investment property, which I'd already given up months ago due to the trustee saying I had to....was unsecure thus putting meover the unsecure debt limit. My 13 was dismissed, the Receiver appointed to sell theproperty was trying to evict me, my attonrey refused to takemycalls, and I had to file a 7 within 24 hours to stop the eviction by getting the auto stay back. No lawyers on a weekend. I filed my papers and everything was correct. I had a trustee but all of sudden, the trustee was replaced. I told thetrustee that there were many higher offers on the home including mine and thatI'd send her an appraisal etc to prove its worth. It was beetter for her tosell than to have it sold for so littlethatit impaired my homestead exemption.

At first , trustee said yep not a burden, but then strangely two days later she did a 180 and made a deal with X and divorce attorney to abandon the house. Well, it was abandonedto me, andI had a priority right and acontract to buy out x's share AND (most impt) friendly to X judge retired, so I hoped that the new judge would let me buyout X's share as my contract was already filed with the court andit was for more....but instead of getting the new jduge, I got a 'visiting' judge who signed a WRitofRestitution, even tho there was no summons or hearing....and I was evicted even tho I wasn't a tenant nor had my house beenin forecdlosure.

Then the house was soldin secret and all money disbursed to X and Receiver and attonrey...even my homesteadexemption. So, I'm homeless and livingon$890 monthsocialsecurity. Yes, I had 2 attonreys for the WRit and sale part. who took the last of mymoney.

Now X is saying that he didn't getpapid enough from the sale and I still owe him more and he's filed an AP so that his debt isn't discharged in re divorce debt which it isn't.The trustee , who I told could get money for unsecureds by avoiding his lien as preferential, instead filed an AP against the lender who carried backtheloan onthe investment property (FT and preferential). and the trustee filed objection to my alimony in the bank as being non exxempt because of comingling and my retirement because of no reason. She says that thejudge has had a belly full of me andthat i won't win anything. (she said this to my lender in anattempt to make lender settle, but lender has no money either). So yes, I need an attonrey but on $890 /month this is difficult.

So: when I gave back the land it was'secure'. By laws of Costa Rica, it's secure. But by bk judge after the fact..it may be unsecure or maybe just unsecure for purpose of qualificationfor 13. The trsutee is only trying to get payments and not the property itself, which would be hard in any case as CR doesn't recognize bk lawsof foreign countries and doens't really haveany bklawsitself. the reason i asked was because I know we didn't do anything wrong, but wondering if it can bemade out to look as if we did. Of course with all my other problems...loss of home, homestead, belongings, pets, I guess it really is such a small thing.

[Pandora]

OMG Cobelle, I'm just flabbergasted at everything you've encountered thus far (biggest hugs to you).

I just cannot fathom an entire jurisdiction being corrupt, from the trustee to the judge to all the lawyers on both sides - in your case. There has to be some sort of recourse for this, especially if you have concrete proof. Like lrprn, I'm just knocked for a loop at how legally they can go after pensions and whatever else was awarded to you in a court of law. This is just insane.

Very hard to wrap one's head around.... i'm so sorry you're having to endure all of this. Damn from the sound of it all, its like an episode of the Soprano's! (dont tell me if thats the case... I'm a worrier by nature )

one more hug for the road (hug)

[CoBelle]

Thanks for the hugs Pan....always appreciated.
I haven't ever seen the Sopranos, but let me tell ya, I'd certainly appreciate having a Godfather or two right now. I doubt I'd be having to worry about ex's next move if I did...i think X would have 'moved on' by now, one way or the other.

I can imagine how people might wonder how all of this can happen in today's world. Our legal system, especially involving familly law,is horribly corrupt.I happened to run afoul
of a ego driven judge who was 'friendly' with my X. And it all went downhill from there. I kept telling myself that at least I'd have to get the amount that was awarded to me (about 25% of our assets) but I was wrong in believing that. I was naive.

And now, sadly, I've become a victim and I hate it. I hate it so much, but I can't seem to find a way out. I'm trying tho.