The Significance of Closing an Asset Case

[justbroke]

We have a vehicle that we were intending to reaffirm. We will also very likely be an asset case. If we decided not to reaffirm the vehicle, does that mean that they could not repo it until our asset case closed? Or would they be granted a relief of the stay to get it back?

They can't repossess it to the earlier of, your case closing, your case being dismissed, the Trustee Abandoning the asset and you have and intention to surrender, your case is discharged and the Trustee abandoned the assets (via the No Distribution Report), or the lender requests and is granted Relief from the Stay.

In your case, because you marked your intention as "reaffirm" the lender would send a reaffirmation agreement. If you don't sign it, then the lender would file a motion for relief from stay unless your case already closed. That actually puts the lender in a bad position, but people do it all the time.

[lulabelle]

Thank you. We really would like to reaffirm but I have recently found out that I may be out of a job soon. That would make the payment unaffordable. I'm just hoping I get a final answer before the deadline of the reaffirmation agreement.

[Chapter007]

My parents are in a asset case, they have a last minute offer on the table that came in right before Trustee was to abandon. They received the discharge a few months ago, but as you all know the case is still open. I was wondering what the possibility of having the Bankruptcy Petition Dismissed and the discharge retracted? Since this is still an open case I would imagine a motion can still be filed. I dont want them to lose everything. I have a contingency plan to short sale to a buyer if the dismissal is granted and I would be able to legally collect a commission (I am a Realtor). At least I could rent them something for a period of time until we pick up the pieces. By the way the house is about to enter signed contracts for $1,425,000. Original debt on house is $2.7M. Condition of property is deteriorating and I am confident a Home Inspector will rip property a new one under closer inspection opening the door to concessions on the offer amount (water damage). Can someone let me know if its even worth pursuing the possibility of dismissing a discharged bankruptcy petition on an open asset case? Thanks in advance for a great learning resource mods, long time reader 1st time poster.

Chapter007

[dspii]

My parents are in a asset case, they have a last minute offer on the table that came in right before Trustee was to abandon. They received the discharge a few months ago, but as you all know the case is still open. I was wondering what the possibility of having the Bankruptcy Petition Dismissed and the discharge retracted?
Chapter007

No you cannot have the case dismissed, you may be able to convert to a C13, but why would you want to? If the house can be a short sale, either wait until the court abandons the property or file a motion to request it. It doesn't make sense why you want to do this unless the trustee is selling the house.

[Chapter007]

It doesn't make sense why you want to do this unless the trustee is selling the house.

Because that is the case. Letter received from the court today from judge approving the Trustees request to move forward with offer and consummate the sale.

[dspii]

Because that is the case. Letter received from the court today from judge approving the Trustees request to move forward with offer and consummate the sale.

Wow that does stink...unfortunately I don't think there is anything you can do now, except maybe contact the trustee saying you have a buyer and still get a commission. Not sure of the legal process, maybe others can chime in that can offer better advice.

[tdawg]

Wow that does stink...unfortunately I don't think there is anything you can do now, except maybe contact the trustee saying you have a buyer and still get a commission. Not sure of the legal process, maybe others can chime in that can offer better advice.

I'm sure the most important thing the trustee cares about is HIS commission off this deal. Can you please post what he gets once all is said and done. I'd guess it's going to be at least $50,000

[Chapter007]

I'm sure the most important thing the trustee cares about is HIS commission off this deal. Can you please post what he gets once all is said and done. I'd guess it's going to be at least $50,000

Of course. I will keep all apprised. If anyone knows some outside the box solutions let me know. Thanks all.

[justbroke]

I'm sure the most important thing the trustee cares about is HIS commission off this deal. Can you please post what he gets once all is said and done. I'd guess it's going to be at least $50,000

They get 25% of the first $5,000. Then 10% of the next $45,000. Then 5% of the next $950,000, and 3% everything else.

So, at $1.4MM, they'd get about $66,000.

Now as for this sale, that Chapter007 is proposing. I see you want to benefit from the sale Chapter007. If the Trustee allows this, they'll probably negotiate your fee down (maybe to 5% if you're the listing agent as well). They might just not want to use you because you are too close to the transaction (not arms length). I just don't know.

Also, Chapter007, why even bother with a short sale? Who is it helping, besides you (with commission)? The parents are going to dumb a $1MM+ liability on the foreclosure anyhow and will do so in Bankruptcy.

Two things, Chapter007. First, there is no way the Trustee is going to let you dismiss the Chapter 7. Chapter 7s take on a life of their own once you file If the Trustee sees a juicy asset like that home, they are going after it.

I just don't understand the need??? Make me believe.

[Chapter007]

They might just not want to use you because you are too close to the transaction (not arms length). I just don't know.

Also, Chapter007, why even bother with a short sale? Who is it helping, besides you (with commission)? The parents are going to dump a $1MM+ liability on the foreclosure anyhow and will do so in Bankruptcy.

Two things, Chapter007. First, there is no way the Trustee is going to let you dismiss the Chapter 7. Chapter 7s take on a life of their own once you file If the Trustee sees a juicy asset like that home, they are going after it.

I just don't understand the need??? Make me believe.

I already submitted an offer of 950k with help from some investor friends of mine. I have been in open communication with the trustee since day 1. He is a nice guy and been very cooperative in sharing info. I was told I could purchase regardless of arm length so long as its disclosed to all parties. He said they are more worried about recovery and so long as everything is on the table and properly disclosed there is no issue of family or friends purchasing at arms length.

Theoretically can a discharged BR be dismissed? Is there precedent? I have a laundry list of errors and ball dropping up until now that have been done. I can show gross incompetence an documented unethical behavior on behalf of their listing agent.

I want to walk away from this as a short instead as I can collect a commission. That commission will go to parents living expenses as they will be completely insolvent. Mother doesn't work, she had a stroke two years ago, One year ago she had a mastectomy and cancer recovery treatments (Chemo/Radiation). My fathers business collapsed as his largest client declared bankruptcy and he lost more than $400k in accounts receivable to his business. If this happens it will be REAL BAD. Everyone else has told me to throw in the towel, but I'm the kinda guy that digs in and prepares to get bloody. I need some outside the box thinkers. If there is case precedent for what I am asking, I have a better shot as I can list that in the motion pro se. Anyone? I know I may be grasping at straws, but until I explore absolutely every possibility I will never know. Thanks again for the replies guys, appreciate your expedience.

[justbroke]

He said they are more worried about recovery and so long as everything is on the table and properly disclosed there is no issue of family or friends purchasing at arms length.

Very good and I'm glad you have a "friendly" Trustee. Some down here in Florida would say, if you want it, just come bid on it at the auction like everyone else.

Theoretically can a discharged BR be dismissed? Is there precedent?

A discharge received in a Bankruptcy can only be "vacated" based on fraud.

If there is case precedent for what I am asking, I have a better shot as I can list that in the motion pro se. Anyone? I know I may be grasping at straws, but until I explore absolutely every possibility I will never know. Thanks again for the replies guys, appreciate your expedience.

There's none because you need "cause" to vacate a discharge. I don't know of any Judge, personally, that would vacate a discharge so that the debtor can reap the benefits of the discharge. The whole purpose is to provide both the debtor and creditors with relief. Finding out that it was better not to file, after the fact, in a Chapter 7, is not a good thing. You can't "easily" dismiss a Chapter 7, and would find it probably impossible for a case that is already discharged at that.

I have read cases where the discharge was vacated by the debtor, but that's to file a reaffirmation agreement, or just to allow an already filed one be considered filed prior to discharge. To revoke a discharge, it's done by the Trustee or creditors under 11 USC 727 (the same chapter granting a discharge). I see nothing that allows a debtor to do so, if it affects creditors in a negative manner. What you are proposing, inside or outside the box, seems to injure creditors.

I still see no reason you want to revoke or otherwise vacate a discharge, when the discharge has absolutely nothing to do with the liquidation of the estate? If you have an agreement with the Trustee, the Trustee can keep the estate open for a year or two in order to liquidate the property. What's the real issue? I must be missing something.

[Chapter007]

A discharge received in a Bankruptcy can only be "vacated" based on fraud.

Thanks so much for this little gem. I'm going to research this some more. I just needed to know if I am asking the impossible or not in court. Now knowing that this can be done, I will continue researching to see if I can vacate the discharge & dismiss the Ch 7 filing dissolving the open case. The Trustee has been cutting an extraordinary amount of slack to the listing agent in some unethical behavior as they are "friends" from what has been disclosed to me by the Trustee himself. I'm hoping they gave me enough rope to hang them with for the judge to decide upon. I will continue to keep all posted. Thanks justbroke.

[justbroke]

You would want to revoke the discharge. You can't vacate the order unless it's within the statutory period to do so (which is 10 days, or 14 days based on the new timelines). I absolutely do not see the Trustee allowing the case to be dismissed since there is a juicy asset to administer.

In the end, the Trustee wants money for the creditors, and to make their commission as well.

[Chapter007]

I absolutely do not see the Trustee allowing the case to be dismissed since there is a juicy asset to administer.

In the end, the Trustee wants money for the creditors, and to make their commission as well.

Thanks for the clarification. I see your point, thats why I'm trying to figure out how to take the decision out of the Trustees hands and persuade the judge to supersede the Trustees interest.

[bktmom28]

Can anyone let me know if it is a good idea to contact the TT or her assistant to find out the status? Were discharged on 1/12/10 and the last day to file claims for creditors was March 3rd. TT received our tax refund on March 1st and I am just wondering if it is a bad idea to contact the TT and see if she can tell us when we can expect our case to close. Our attorney warned us at the beginning of our filing that this TT is kind of a testy lady and you don't want to piss her off. Any tips on contacting the TT?