Listing house on chapter 7 documents in Delaware

[hallsm500]

Hi all,

HELP!!! I'm trying to file pro se and having a lot of questions about the forms. I am upside down on my house and I do understand that there's no advantage to reaffirming the debt. However, I would like to keep it and continue paying, at least for the time being. I have a lot of questions though. Citimortgage is the mortgage company.

1. I don't know if to list the house as "exempt" or "non-exempt" property, since I have no equity.
2. I also don't know how to complete the debtor's statement of intention. Do I check surrender or reaffirm, even though I don't want to do either?
3. Do I put "retain and pay" in the "other" option along with either "surrender" or "reaffirm"?
4. What are the most common reasons that pro se filers are unsuccessful? If I make a mistake and this gets thrown out I could end up with a wage garnishment.

Did I mention that my head is about to explode from trying to stuff all this information in so quickly?!?!?

I would appreciate any advice anyone can give.

[justbroke]

You may have better responses by posting in the Pro Se section of BKForum.

1. I don't know if to list the house as "exempt" or "non-exempt" property, since I have no equity.

This is really a legal question, and I'll provide some guidance but won't tell you what to put. If you keep the property, in Florida for example, you may still be receiving the benefits of the homestead exemption Generally though, most people will exempt their home, just in case.

2. I also don't know how to complete the debtor's statement of intention. Do I check surrender or reaffirm, even though I don't want to do either?

Since you want to keep and pay, you'd put "retain: continue paying" in the "other" category.

3. Do I put "retain and pay" in the "other" option along with either "surrender" or "reaffirm"?

Hmmm. Asked and answered!

4. What are the most common reasons that pro se filers are unsuccessful? If I make a mistake and this gets thrown out I could end up with a wage garnishment.

They don't understand or misunderstand procedure (Federal Rules of Bankruptcy Procedure, Federal Rules of Civil Procedure, and Federal Rules of Evidence), Title 11 (the Bankruptcy Code) and/or underlying State non-bankruptcy laws..

Did I mention that my head is about to explode from trying to stuff all this information in so quickly?!?!?

No, but I would assume so.

First, do you have a guidebook, such as the one from NoLo Press? If not, you shouldn't be attempting to do this without that type of guide.

[hallsm500]

Thanks! More questions I forgot to mention...

Thanks very much for your reply. I do have the NOLO Chapter 7 book, but was having a hard time finding the answers to these questions, nonetheless. Quite honestly Ive been looking all over and am finding it hard to get answers to my specific situation from anyone. I've visited two attorneys and joined Prepaid Legal and gotten nowhere. They will not tell you anything unless you pay an attorney the whole bk fee, which I cannot pay. After this I will also go to the Pro Se list and read. If you know... 1.)Can I assume that the state exemptions as shown in the Nolo book are correct for Delaware? It seems every website I go to has different information regarding exemptions for Delaware. For example most websites say that Delaware has no homestead exemption (unless you're a co-owner, which I'm not), and you must only use the Delaware list of exemptions. Federal exemptions aren't allowed. 2.) Therefore I'm not sure if the house is to be shown as exempt if there's no Delaware exemption for it. 3.) Is money that was received from life insurance death benefits (and spent on bills) in the last year considered income, even if not received in the last 90 days prior to the bk? If any life insurance death benefits were received during the 90 days.. is that considered income, even if I will not ever receive it again? Do these dollars come into play on some forms and not others? 4.) I am also coexecutrix of an estate account and not sure where, if anywhere I need to document that. The estate has not completely settled yet, and I don't know yet when it will. 5.)If a creditor is attempting to take you to court does that information go on the Financial Statement where it says "lawsuits debtor is a party to?" Or, does that mean only if I'm suing someone else?

[whipster1]

You are really asking a bunch of legal questions, and your situation is not very normal from what you have posted. Are you sure pro-se is appropriate in your case?

[justbroke]

1.)Can I assume that the state exemptions as shown in the Nolo book are correct for Delaware? It seems every website I go to has different information regarding exemptions for Delaware. For example most websites say that Delaware has no homestead exemption (unless you're a co-owner, which I'm not), and you must only use the Delaware list of exemptions. Federal exemptions aren't allowed.

No. This is why you need to read your Actual State exemptions as amended (or not) for the year in which you file. For example, I looked up the exact Florida Statutes and Constitution when I filed to be sure I was specifying the correct Statute/Article.

2.) Therefore I'm not sure if the house is to be shown as exempt if there's no Delaware exemption for it.

Then it's not exempt.

3.) Is money that was received from life insurance death benefits (and spent on bills) in the last year considered income, even if not received in the last 90 days prior to the bk? If any life insurance death benefits were received during the 90 days.. is that considered income, even if I will not ever receive it again? Do these dollars come into play on some forms and not others?

This is an exemption question and specific to the underlying State exemption law(s) for death benefits.

4.) I am also coexecutrix of an estate account and not sure where, if anywhere I need to document that. The estate has not completely settled yet, and I don't know yet when it will.

The executor/executrix is not eh owner of the estate. Are you a beneficiary of the estate?

5.)If a creditor is attempting to take you to court does that information go on the Financial Statement where it says "lawsuits debtor is a party to?" Or, does that mean only if I'm suing someone else?

Not for an attempt.

You do have some peculiar issues and you would probably be better served with an attorney. I only say this because I don't understand the Estate that you administer, whether you're also a beneficiary, and the death proceeds/benefits that you're received. It would be a shame to lose that by incorrectly apply the correct law that protects it.

[hallsm500]

I probably would be better served by an attorney, but I haven't the money to pay one. I assume that is why most people file pro se, isn't it?

[hallsm500]

Yes, I am also a beneficiary of the estate, along with 4 other family members, but I don't expect to receive more than a few thousand dollars more from the estate funds. It also may be distributed outside the window of time when it would matter.

[hallsm500]

Also, I'm very limited by time, due to this creditor trying to garnish my wages. I'm filing the preliminary papers tomorrow. Does anyone know if you begin without a lawyer like that if you can retain one for the rest of the documents or at some point during the whole process? It doesn't seem too many attorneys here in Delaware are flexible when it comes to bk, although I did read that it is becoming more common for attorneys to do just some of the parts of the bk.

[hallsm500]

Justbroke, where did you find the actual legal statutes? Were they online? Thanks again, by the way!

[justbroke]

I probably would be better served by an attorney, but I haven't the money to pay one. I assume that is why most people file pro se, isn't it?

No, they file Pro Se because they "think" they can't afford a lawyer. Others do so because they think they can do it by themselves. However, as assets loom and complexity is added, filing pro se becomes much less desirable.

Also, I'm very limited by time, due to this creditor trying to garnish my wages. I'm filing the preliminary papers tomorrow. Does anyone know if you begin without a lawyer like that if you can retain one for the rest of the documents or at some point during the whole process?

Don't just file "preliminary" papers unless you know what you're doing. This is known as an "emergency" petition or a "skeleton" filing. You must file additional schedules in 15 days. You don't really want to be "changing" your petition by filing blank schedules one day, then "updating" them the next. (Not that it will definitely cause you problems but may due to judicial estoppel issue.)

Most attorneys won't touch your case once you file it. That's because you'll probably have errors that will "cost" them in time and effort. That's why most won't touch you unless you get your case dismissed so they can refile it "their" way. I think it's more an art form than a science.

It doesn't seem too many attorneys here in Delaware are flexible when it comes to bk, although I did read that it is becoming more common for attorneys to do just some of the parts of the bk.

I don't know what you mean by that. Do you mean they don't want to work "fast"? Filing can take weeks to prepare a petition. It took me 2 weeks to prepare just "skeletal" petition, and another 15 days to complete the other required components. (I did file everything but one required piece when I did file, so mine wasn't really an "emergency" petition.)

It is extremely common and practical for attorneys to do either Chapter 7, 11 or 13 cases exclusively because they each have their own nuances.

Justbroke, where did you find the actual legal statutes? Were they online? Thanks again, by the way!

You need to find them on-line for your State. I like NALDP (National Association of Legal Document Preparers) website for a "hint" at what they are, but I still go look them up on my State's actual legislative website. Remember, you may be in a State that allows State or Federal and tghere may be Federal Supplemental exemptions as well.

[hallsm500]

I probably wasn't clear

Thanks again for your prompt replies. I am having a creditor taking me to court and I was only able to move out the court date by saying I wanted a hearing to contest the charges (as advised by one attorney). I never had any intention of attending that hearing. It was just a stall tactic. I have consulted with two other attorneys in person since then and I'm sure I can't afford them before the court date of December 7th. That is why I'm filing the emergency petition. None of the attorneys I spoke with would act until the fee was paid in full and I simply don't have it. If I were to take money out of the Estate funds, I could pay them, but I'm really not inclined to do that. I may lose that money anyway just because of filing Ch 7, but I will lose it for sure by paying an attorney $1300-$1850. What I was referring to before about a bk attorney doing some of the work... I read that it is becoming more common for filers to do some parts of the bk themselves and only retain legal help for the parts that the need help with. However there have been no attorneys in Delaware willing to do that (& I've called many!). I don't qualify for Legal Aid; I've checked that as well. I feel that I have no other option right now than to try to file by myself, since I don't want a lien on my house or my wages garnished. The creditor won't settle for anything less than a lump sum, which is even more out of range than the bk fees! I'm scared to death, and I may not be successful, but doing this is better than doing nothing.

[justbroke]

What I was referring to before about a bk attorney doing some of the work... I read that it is becoming more common for filers to do some parts of the bk themselves and only retain legal help for the parts that the need help with. However there have been no attorneys in Delaware willing to do that (& I've called many!).

If I were a practicing attorney, I wouldn't do this either. The problem is that you must still enter an appearance and/or sign the forms! That ties you to the case.

I feel that I have no other option right now than to try to file by myself, since I don't want a lien on my house or my wages garnished. The creditor won't settle for anything less than a lump sum, which is even more out of range than the bk fees! I'm scared to death, and I may not be successful, but doing this is better than doing nothing.

Doing this, may hurt, and I want you to realize this. Once you file a Chapter 7, it takes on a life of its own, especially since you do have assets that may be administered. I want you to be successful.

I just want you to be sure that you have made sure that your share of the Estate that you administer, is exempt. I don't know what other property (real or personal) that you have, but you must consider those too.

[hallsm500]

I realize this may hurt, but not eating will hurt too. If I do nothing today, but fail to show at the hearing on Monday then I may end up with a judgement and/or my wages being garnished. I don't know how or if that will happen, but if it does ...my daughter and I won't be able to EAT. I have heard the phrase of being "judgement proof", but still they can put on lien on the house which will accrue huge amounts of interest by time it will ever get paid. My house is already underwater; a lien would mean that we'd be stuck there forever with no means to pay. I see no good solution which is the worst part of all of this.

[hallsm500]

by the way..I just now had an attorney tell me on the phone that it's not true that an attorney would not touch the case if I file the emergency petition on my own today. I do indeed realize that it could get messy, but then it's already messy!

[justbroke]

by the way..I just now had an attorney tell me on the phone that it's not true that an attorney would not touch the case if I file the emergency petition on my own today. I do indeed realize that it could get messy, but then it's already messy!

I wrote that most attorneys would not touch your case... not that there isn't one or two out there that would. The problem is with fees, and you probably wouldn't get a standard "no look" fee if they are taking over the case. They'd probably want to do hourly with a substantial retainer.

Most attorneys won't touch your case once you file it.

I want you to be realistic and I'm trying to show you all the available exits, but you keep staring at the sky.

I'm really concerned, now, that you don't have really good legal and financial guidance on this matter.

• Garnishments: there are ways to prevent that or reduce it. Things like being head of household can, in most States, prevent garnishment of wages.
• Judgment Liens: even though they may put a lien on your home, you state that it's underwater anyhow. Why would this matter? Do you intend to keep an underwater home? What financial review have you done to make sure that's the best decision? Are you current on your home loan?
• Personal Property: depending on your State and your available exemptions, I'm worried about personal property that you have, such as your interest in a non-BK Estate that you are also an administer of.
• Real Property: again, with the home... are you intending to "reaffirm" the loan in a Chapter 7, or are you expecting to "retain and pay"?

So many questions still.