? re surrendering primary home in ch 13

[justdone2011]

and moving back to our original home (now a rental property).
The mortgage amount on the rental home is lower, the payment is less and includes taxes and insurance, the APR is better also. The reason for the ch 13 is to strip the second mortgage.
The retainer is paid and I have an appt with my attorney this week but my question is, would a trustee allow us to do this or would we have to live in that house at the time of filing? I still need to give the tenant notice.
This house that I currently live in is underwater and I don't want to try a short sale, just surrender it.
Thanks in advance.

[jetsfan2010]

Double check with your lawyer but you should be able too.

[lrprn]

To include the payment for the currently rented house on your Means Test and Schedules expenses, you have to be living in the currently rented home when you file.

Which second mortgage are you trying to strip? The currently rented home or the home you are living in now? Are you going to surrender the home you are living in now when you file?

[despritfreya]

If you wish to benefit from the homestead (not a big deal since there is no equity at the moment and probably won’t be any over the next 5 years even with the strip off) you MUST be residing in the home before you file. Otherwise, in theory, it should not be a problem but. . .

I normally require my clients to move back in before filing regardless of the equity/homestead issue as I do not want the Trustee arguing it is not "necessary for an effective reorganization" and therefore should be surrendered. Remember, if you are not living in it and it is not generating income equal to or more than the debt service it is burdensome and not necessary. I have never had to deal with the issue as my none of my clients have balked at holding off filing until they were back in the home.

Des.