In order to include house in BK... do you have to file before the sale date?

[hopeforus]

Our house is being auctioned off on Dec 16th. Do we have to file before this date in order to include our house and use the unused homestead exemption? Or will that be considered a foreclosure and now we can only just add a bankruptcy separately?

Thanks

C

[jjsmith]

My attorney said that in order to get a homestead exemption, you must live in the property and the title must be in your name. So when your property is sold at the trustee's sale, the title will no longer be in your name and you can no longer claim a homestead exemption on that property.

[hopeforus]

Thank you! So we need to be quick about this. Because once we actually file then it would put the whole thing on hold and we will be good right?
If no one buys it... then it will still be in our name right?

Thank you so much... I thought of this the other day and was all annoyed that I didn't think of it sooner. We will be getting a bonus check in Feb, taxes and an extra paycheck for a 3 paycheck month in Jan. So would like to protect those

[hopeforus]

kind of stinky though... I don't think we have all the money to file right now. ugh. I'll have to see what we can do. Hopefully we are able to.

[jjsmith]

If no one bids on your home at the auction, then the property goes to the first mortgage, who I'm assuming is the one with the foreclosure suit against you. That's what happened with the 2 foreclosures we've had so far.

Also, about your taxes you want to protect for next year. Consider those gone if you file bankruptcy. If you file at the end of the year or before you have done your tax return for 2009, the trustee will require you to turn over any tax refund to the court.

If you don't have the money to file, I would try
1. Find an attorney willing to work with you on payment or ask friends or family for help.
2. Convince the bank to postpone the auction by presenting them with a short sale offer. Most banks will postpone the auction if they have an offer to consider. We've had 4 auctions postponed trying to negotiate short sales. We only got one of those short sales to go through, but their policy was still to postpone the auction and review the offer on the table. Most of mine were postponed the day of the auction, so it's a gamble!

[hopeforus]

We can't protect our taxes with the homestead exemption???

I ran our numbers and we have half of what we need to file and will have the rest on the 4th. So we can get all our paperwork in order and hopefully they can file it before our house sale date.

We couldn't do a short sale offer as we just simply don't have time to ready the house to even try to sell. Hubby is actually still bringing stuff out of there. I am taking 4 classes and we just can't deal with it anymore.

So we will have the money to file before... just hope the lawyer will actually do it before. Will have hubby call and ask Monday.

[jjsmith]

I'm sorry things are so overwhelming for your family right now. But you have lots of friends here who are here to help you through these tough times. Bankruptcy is pretty stressful. But I for me, it's been so stressful for the last several years the stress of bankruptcy is actually a relief. I just feel stupid for suffering as long as I did to end up here anyway.

I'm not sure what state your in and what your exemptions are for your state. I did a google search to find them in my state. Some states have exemptions for cash, which would help with your tax refund. But, I haven't ever heard of an exemption specifically for taxes.

The homestead exemption only will protect the equity in your house. So, if you have a bit of equity the trustee can't sell your home from under you, or if you have a lot of equity, the trustee at least has to pay you your homestead exemption when the property sells.

We could have a bit of potential equity and need our homestead exemption. We owe $350K and with our homestead exemption of $20K each and including the trustee fees and realtor fees, our attorney said the trustee would need to sell our home for $420K to make it worth his while. If he were able to sell it for over $420K, the homestead exemption would at least give us $40K after the sale.

Hope that helps! Just make sure you've interviewed many attorneys and you feel good about your attorney. Seems like the majority of bankruptcy nightmares are because of attorneys dropping the ball or giving bad legal advice.

[hopeforus]

We are able to use 10k of the unused homestead exemption towards anything else we want. That's what I'm talking about. If you aren't keeping your house then you can use the unused allowance. We are in Wisconsin.

I'm not all that stressed out about all of this thankfully... I've done a lot of research and know a good deal of info which is nice. Just realized all of a sudden that we were coming upon our sale date and was unsure whether we could still use that exemption after that.

[jjsmith]

That's awesome that you can use your homestead exemption for your taxes! We aren't so lucky here. Never thought I'd be looking at different states as good places to live because of their bankruptcy laws!

Good luck! We'll be filing next week as well. We tried to file on Friday, but had a hiccup and now have to spend my husband's paycheck he gets on Monday as fast and possible and try to file before a pending judgment gets placed against me and I lose the opportunity to go on title to our home to claim the 2nd homestead exemption.

[hopeforus]

What state are you in? Because this is a Federal exemption , not state.
This is what the federal exemption states:

Real property, including co-op or mobile home, or burial plot to $20,200; unused portion of homestead to $10,125 may be applied to any property

It's not just protecting taxes but it's like another wild card.

[jjsmith]

We're in Utah. My understanding is that it's up to your state as to whether or not you can follow the federal exemption and my state isn't one of those.

[hopeforus]

ah ok. Our lawyer already was planning on using it so I guess it's ok here.

[StartingOver08]

Make sure your attorney knows that the sale date for your home is Dec 16 2009 and you don't plan to file until after the sale date.

My concern would be that if the sale occurs on Dec 16 then you don't have any type of home ownership. Ask him if that effects your homestead exemptions that you can use for your filing. Make sure to contact him right away on Monday so you can plan accordingly. I don't know the answer to this question, just trying to make sure you get the right answer in enough time to file before Dec 16 if needed.

[hopeforus]

Thanks, we are going to do everything in our power to file as soon as we get our pay on the 4th. Hopefully he can get us filed between then and the 16th. We'll def call Monday.