want to know if my lawyer is lying

[miozelous]

Hi, I am new here and have been trying to find out if the lawyer my husband and I hired is lying to us. We live in TX. We owe over 110,000 in cc due to loss of jobs over the past 4 years. We passed the means test. Our lawyer said that we can file for the Texas homestead but that the laws have changed and you can not have more than 125,000 in equity in your home. We moved to texas 6 years ago and bought the house. We refinanced in 12/2006 but have owned the house for 6 years. We tried to sell the house but the housing market is tough and can not wait any longer. He told us to try to get our county apprasial district to lower our homes value by 50,000, yea like that is going to happen and then he would proceed with filing for us. Does this sound right? I keep reading that you can keep your home no matter how much it is worth if you have owened it for over 3.3 years. Any help with this would be greatly appreciated.

Confused in texas.

[HHM]

Well, if you can't sell it, how much equity do you really think you have. The exemption covers equity. Do you really have more than $125K equity?

[miozelous]

home is apraised for 350,000 and we owe 159,000 which leaves us with about 50,000 more and the lawyer does not want to proceed till we can get the house apprasial lowered. The county does not start hearing cases until may.

[NewDawn]

I thought, also, that the $125,000 cap only applied if you bought the house within 1215 days before filing. Also, since the Enron executives that were guilty of fraud were allowed to protect their multi-million dollar mansions, the new Federal Bankruptcy law passed in October 2005 restricted the exemption to $125,000 in those cases as well.

Otherwise, I was led to believe you could have an unlimited homestead exemption in Texas so long as the property is located on 10 acres or less in town or 100 acres or less outside of town. I am hoping this can be verified because my parents need to file Chapter 7 soon. They also live in Texas and they bought their property back in the 70's and it's been paid for moons ago. The value of their property is probably only $135,000, though, at most.

[justbroke]

Our lawyer said that we can file for the Texas homestead but that the laws have changed and you can not have more than 125,000 in equity in your home.

Well, that exemption limitation is in 11 USC 522(m). It's specifically to tame down the so-called unlimited homestead exemptions for debtors having acquired such homestead less than 1,215 days prior to filing their petition. The limitation was $125,000 when the BAPCPA code was written in 2005. However, it is modified often due to the affects of 11 USC 104.

The current amount per debtor is $136,875 (effective 4/1/2007). And, to make it even better, a husband and wife can both claim this exception. That makes the total $273,750 for the limitation if both spouses file on the same petition.

But that's only if you acquired the property within the last 1,215 days (3.32 years). What I'm saying is, that since you have not acquired the property within the 1,215 days, this doesn't even apply to you anyhow.

Put it this way... no matter what... you are covered by 11 USC 522(m) if it's less than 1,215 days... and the full power of the unlimited Texas homestead exemption, if you have acquired the property more than 1,215 days ago.

I'm also wondering, if you're using the Country Appraiser's value, or you actually had a professional (licensed) appraisal recently? (Or, at least a Comparative Market Analysis performed by a licensed real estate agent?) Not that it matters right now.

(Add standard caveats that your land acreage, inside/outside city limits, and other provisions of the homestead exemption can affect this too.)

Property cannot exceed 1 acre in town, village, city or 100 acres (200 acres for families) elsewhere; sale proceeds exempt for 6 months after sale (need not occupy if not acquire another home, Property 41.003)

[StartingOver08]

Actually it sounds like you need to interview other attorneys! Based on that statement alone, I would not hire that BK attorney - you want an attorney that knows what is going on now in the BK world.

Also, for the attorney to say that the value is dependent upon the tax assessed value is extremely short sighted. As has been pointed out - you can get an appraisal or a CMA to determine value. Tax assessments are not the same as market value for sale purposes. Market value tax assessments are to determine the tax value only...two vastly different things!

[PoorGrammyinBK7]

Is your lawyer one who specializes in bankruptcy? Sounds like he is not up to date on the law. Maybe he did not lie to you, but he may have misinformed you due to lack of knowledge. Maybe you should talk to a more experienced lawyer?

[2Bshinyandnew]

Hi, I am new here and have been trying to find out if the lawyer my husband and I hired is lying to us. We live in TX. We owe over 110,000 in cc due to loss of jobs over the past 4 years. We passed the means test. Our lawyer said that we can file for the Texas homestead but that the laws have changed and you can not have more than 125,000 in equity in your home. We moved to texas 6 years ago and bought the house. We refinanced in 12/2006 but have owned the house for 6 years. We tried to sell the house but the housing market is tough and can not wait any longer. He told us to try to get our county apprasial district to lower our homes value by 50,000, yea like that is going to happen and then he would proceed with filing for us. Does this sound right? I keep reading that you can keep your home no matter how much it is worth if you have owened it for over 3.3 years. Any help with this would be greatly appreciated.

Confused in texas.

If you have owned the house for 6 years, did this attorney say why you would not be eligible for Texas's unlimited homestead exemption?

I would go to a few more attorney's. My husband and I had a consult with one attorney who wasn't even aware of some very important Florida exemptions that were incorporated into the Florida Statutes in July 07. When I asked him about those exemptions during the consult, he had no idea what I was talking about. I had a printout in my folder of the Florida Statute I was referring to, and he played it off by saying it was "new" and there wasn't enough caselaw to make him comfortable to use that exemption and that if we tried, the Trustee would almost certainly question it.

He was pretty convincing. Truth was, we caught him unprepared, with his pants down, so to speak,

Good thing we consulted more attorneys! My husband filed his CH7 using the $4000 Florida exemption, my husband was able to exempt 100% of the equity in his 2000 Honda. The attorney we used could not figure out why we were told he couldn't use it. The trustee didn't even blink at the 341.

Moral of the story? Go to another attorney if something doesn't make sense.

[miozelous]

Thank you every one for your imput. I did a little research on my own and found a case similar to mine. The Bankruptcy Court of Western District of Texas ruled in favor of both debitors using $136,875 homestead exemption for $273,750. I sent an email with a copy of the case to my lawyer and am waiting to here his response. I will keep you posted with my progress and be interviewing some more lawyers!