FloridaFiler (Chapter 7) giving up homestead �Help!

[FloridaFiler]

We are very upside down in our home here in SW FL and we were not going to reaffirm our mortgage in our filing. We wanted to stay & pay as long as possible. However, we are now forced to give up our homestead for the additional $8K in exemptions to help offset personal, nonexempt property.

My question ... Since we are telling the bank (BOA/CW) that we are giving up our home how long will it take for them to foreclose and boot us out. In other words, will the procedure follow the same time frame as not paying the mortgage and going into foreclosure or will it be fast tracked?

Anyone have any experience with this in Florida? Any thoughts and comments will be greatly appreciated!!!

Thanks to everyone who has made this forum a God send!!

FloridaFiler

[poorold]

if you are upside down in your home, you would not be using the "homestead" exemption anyway. That is used when you want to protect equity in your home. You have no equity to protect.


w/r/t foreclosure, it took just past 90 days till I got my notice of default (I'm in Florida). Then it took months till the mortgage company filed for the foreclosure. That was back in January of this year and I wish they would hurry up and file for summary judgement and take the darn house already.

You can probably stay in your home a good six months at least from the time you stop paying your mortgage. I have not paid my mortgage since May 2008.

[FloridaFiler]

[poorold]

loridafiler,

I would check with another attorney because you WILL NOT be claiming a Homestead Exemption because you have no equity to claim under this exemption.

If you do not claim the Homestead Exemption, then...

$4,000 of any personal property in lieu of homestead exemption. This exemption does not apply to a debt owed for child support or spousal support.
Fla. Stat. Ann. � 222.25


The trustee will only want your home if there is equity in it. if there is no equity, the trustee will abandon it. That means you get to keep your home as long as you continue paying for it.

My understanding (and perhaps you should check with another attorney) is within 30 days of filing bankruptcy, you must file a Statement of Intentions with regard to your home. Basically whether you intend to surrender the home or reaffirm the mortgage and keep it. If you are current, you can say you plan to reaffirm the mortgage. You can later decide not to reaffirm by not signing a reaffirmation agreement (for instance, you later realize you can't really afford to keep the home, etc.) If you do not sign the reaffirmation agreement, your home loans will be discharged. If you subsequently stop paying your monthly payment, the bank will move to foreclose--but your loan has already been discharged so you will not get a 1099-C or face any collection action on the home loans. You can just walk away. In the meantime, you could live rent-free for a while to save money to move.

Check around with one or more attornies because I think you are being mis-informed.

[2Bshinyandnew]

loridafiler,

I would check with another attorney because you WILL NOT be claiming a Homestead Exemption because you have no equity to claim under this exemption.

If you do not claim the Homestead Exemption, then...

$4,000 of any personal property in lieu of homestead exemption. This exemption does not apply to a debt owed for child support or spousal support.
Fla. Stat. Ann. � 222.25


The trustee will only want your home if there is equity in it. if there is no equity, the trustee will abandon it. That means you get to keep your home as long as you continue paying for it.

My understanding (and perhaps you should check with another attorney) is within 30 days of filing bankruptcy, you must file a Statement of Intentions with regard to your home. Basically whether you intend to surrender the home or reaffirm the mortgage and keep it. If you are current, you can say you plan to reaffirm the mortgage. You can later decide not to reaffirm by not signing a reaffirmation agreement (for instance, you later realize you can't really afford to keep the home, etc.) If you do not sign the reaffirmation agreement, your home loans will be discharged. If you subsequently stop paying your monthly payment, the bank will move to foreclose--but your loan has already been discharged so you will not get a 1099-C or face any collection action on the home loans. You can just walk away. In the meantime, you could live rent-free for a while to save money to move.

Check around with one or more attornies because I think you are being mis-informed.

The most recent caselaw says that a debtor must state their intent to abandon any property they may have a homestead interest in, even if underwater to be eligible for the $4000.

I wouldn't bother trying. This has already been attempted and well argued.




One example:

http://www.flsb.uscourts.gov/opinions/JKO/pdf/08-16859OLIVER.pdf

The statement of intentions (Form 8) referred to in the caselaw is filed WITH the original petition.

Maybe if you were current on your payment for your underwater property at the time of filing and stated you intended to abandon your homestead property on your petition and instead rode it through??? I don't know...

[poorold]

Thanks for the information 2Bshinyandnew.

"Maybe if you were current on your payment for your underwater property at the time of filing and stated you intended to abandon your homestead property on your petition and instead rode it through??? I don't know..."

I don't know either, but given the mortgage companies are in such disarray and have so many untrained people handling foreclosures, I suspect that "surrendering" the home and staying current would result in a ride-through.

Either way, if FloridaFiler surrenders the home on paper and even if another payment is not made, FloridaFiler likely has 6 months rent free and quite possibly longer.

[FloridaFiler]

Thank you for the posts!

I'm afraid there is no other recourse. I'll need to "abandon" the home for the additional exemptions. I don't think this is what the FL legislature had in mind when they passed the Non Homestead exemption clause.

Oh well. Thanks again for your input!

We'll make it through...

FloridaFiler