file a petition to the court to force the trustee to abandon the property

[HHM]

Go back, amend your petition, put the homestead exemption in there.

I think in this case, I would file a Motion to Abandon. At least get it before the judge and make the trustee explain what he is attempting to do.

[Mensa1]

I just received a Voicemail at home from the real estate agent saying that he needs me to give him a key.

You need legal counsel here. I understand that your Atty is not responding to your calls or emails, and that should tell you that he is done with the case. Unfortunately your only other remedy is to retain other counsel to file the amended petition, as was suggested.

As to the key, if you have personal property in the home, there is NO WAY I would be giving him a key. I do not think that you are under any obligation to do so, but only my opinion. What I would propose are hours for showings, with 24 hr notice. This would be standard procedure if you were a tenant in the property, and even though you are in Bk you do still command some privacy and right to security of your pers property. Of course all this would be much better coming from your newly retained Atty; so get one.

[tdawg]

Go back, amend your petition, put the homestead exemption in there.

I think in this case, I would file a Motion to Abandon. At least get it before the judge and make the trustee explain what he is attempting to do.

I don't understand why amending the petition would be necessary. I am already discharged btw. There is negative equity in the house.

If I file a Motion to Abandon, is that something I can do myself? I emailed a lawyer today and explained my situation and he blew me off saying, "this sounds like a real estate law issue". I'm thinking it's going to be hard for me to find a lawyer willing to work on this.

[tdawg]

You need legal counsel here. I understand that your Atty is not responding to your calls or emails, and that should tell you that he is done with the case. Unfortunately your only other remedy is to retain other counsel to file the amended petition, as was suggested.

As to the key, if you have personal property in the home, there is NO WAY I would be giving him a key. I do not think that you are under any obligation to do so, but only my opinion. What I would propose are hours for showings, with 24 hr notice. This would be standard procedure if you were a tenant in the property, and even though you are in Bk you do still command some privacy and right to security of your pers property. Of course all this would be much better coming from your newly retained Atty; so get one.

I live in my house, and I have 2 small children. How do you think I should find a lawyer that could help with this? I emailed an attorney today, but he kind of blew me off. By the way, do you think I could get the money I paid my attorney back?

[nc73]

i wouldn't worry. in this market there is no way it will sell for that price especially since in 08 it was bought for the same amount. you are stressing over nothing.

[tdawg]

i wouldn't worry. in this market there is no way it will sell for that price especially since in 08 it was bought for the same amount. you are stressing over nothing.

I really am not worried about it selling for that amount. What I am worried about is someone offering $50,000 less and the trustee talking the bank into taking it...

Maybe I should just not worry about that until/unless it happens?

[SleepWellNow]

I've got a thought...why don't you call your lender and tell them it is your intention to stay in the house and continue making your payments. Tell them you do not want to sell. Explain to them the Trustee has, against your wishes, put the house on the market. I would be prepared to tell the lender how much you think the house is currently worth. Have a real estate agent do a Comparative Market Analysis for you.

If you are correct that you owe more than the house is worth and you are current on the mortgage, there would be no reason for the lender to approve a short sale. Remember, the lender has the final say if the house gets sold or not in a short sale, not the Trustee. The Trustee can't make them accept a short payoff. The lender is going to do what nets them the most money and, if you are continuing to make the payments as agreed, I don't see any reason why the lender would want to accept a short sale.

In the meantime, continue to try and get a hold of your attorney to know what your rights are regarding showing the house to potential buyers. Camp out in his office if you must! If it turns out you legally have to show the house to potential buyers, the agent does not need to have a key. You can tell the agent you do not want a lockbox on the house and all showings will be by appointment only with you being there. That is not being unreasonable. You can even set showing days and hours.

My friend just went through an ordeal with a Trustee regarding a short sale on her rental house. The Trustee would not abandon the property so the short sale could go through. He said he had a fiduciary duty to see if there was any money to be had for the bankruptcy estate. Hopefully, your Trustee is "testing the waters" to see if the house will sell for over what you owe. If no offers come in or they are too low, he can take this as proof there was no money to be had for the estate from the sale of the house. Then he can let it go.

[tdawg]

I've got a thought...why don't you call your lender and tell them it is your intention to stay in the house and continue making your payments. Tell them you do not want to sell. Explain to them the Trustee has, against your wishes, put the house on the market. I would be prepared to tell the lender how much you think the house is currently worth. Have a real estate agent do a Comparative Market Analysis for you.

If you are correct that you owe more than the house is worth and you are current on the mortgage, there would be no reason for the lender to approve a short sale. Remember, the lender has the final say if the house gets sold or not in a short sale, not the Trustee. The Trustee can't make them accept a short payoff. The lender is going to do what nets them the most money and, if you are continuing to make the payments as agreed, I don't see any reason why the lender would want to accept a short sale.

In the meantime, continue to try and get a hold of your attorney to know what your rights are regarding showing the house to potential buyers. Camp out in his office if you must! If it turns out you legally have to show the house to potential buyers, the agent does not need to have a key. You can tell the agent you do not want a lockbox on the house and all showings will be by appointment only with you being there. That is not being unreasonable. You can even set showing days and hours.

My friend just went through an ordeal with a Trustee regarding a short sale on her rental house. The Trustee would not abandon the property so the short sale could go through. He said he had a fiduciary duty to see if there was any money to be had for the bankruptcy estate. Hopefully, your Trustee is "testing the waters" to see if the house will sell for over what you owe. If no offers come in or they are too low, he can take this as proof there was no money to be had for the estate from the sale of the house. Then he can let it go.

Thanks for your response! That's a great idea! I'm going to contact the lender on Monday and say exactly what you've said here. The only reason I think the lender might accept a short sale is because it's a VA loan, and so it's insured, so maybe they'd get the full amount regardless? I'm not sure, I'm just trying to figure out what's going on.

I cannot camp out in my lawyer's office, but I will call him several times tomorrow. I just emailed 3 different lawyers who specialize in bankruptcy and real estate. I would really like to talk with a lawyer before I contact the real estate agent. But I'll get back to him by Tuesday for sure, I don't want him to think I'm ignoring him. And the more responses I see, the more I agree that I do NOT need to "give him a key". I think telling him I need to be home, need at least 24 hours notice, and it needs to be during certain hours is totally reasonable.

[SleepWellNow]

There is nothing wrong with telling the agent you need to talk to your attorney before showing the property.

I know you are worried about the Trustee talking the lender into a short sale but, remember, the Trustee is trying to obtain money for the bankruptcy estate to pay out to creditors. If the lender WOULD take the short sale payoff, there STILL would be no money for the Trustee unless the lender would pay him some sort of fee on top of the broker commissions and closing costs. This would cost the lender tens of thousands of dollars on top of the amount they are loosing from accepting a short payoff. It would make no sense for the lender to do this with you being current on the loan. I think the Trustee is trying to see if he can get MORE than the $395K you owe plus commissions and closing costs. From what you say, that won't be happening.

Let us know how things progress. If the Trustee starts playing games with this, you might need to kick it up a notch. How would it look for a Trustee to force an American Veteran and his young family out of a home that he is current on? I don't think that would sit well with your Congressman, the Veteran's Administration, or the general public.

If you don't mind, can you tell me what state you are in?

[HHM]

Here is the problem with NOT claiming the exemption, that means that ANY Equity, no matter how derived by the trustee is vulnerable. Thus, it doesn't matter that the house has no equity, you STILL NEED TO claim the exemption.

In this scheme by the trustee (which I think is illegal), to take a fee for short selling the house; the trustee would be in an even weaker position, because any money received from the sale beyond what is required to pay off the secured creditor would then go to you because of the exemption.

(I missed the part about you already being discharged).

[tdawg]

Here is the problem with NOT claiming the exemption, that means that ANY Equity, no matter how derived by the trustee is vulnerable. Thus, it doesn't matter that the house has no equity, you STILL NEED TO claim the exemption.

In this scheme by the trustee (which I think is illegal), to take a fee for short selling the house; the trustee would be in an even weaker position, because any money received from the sale beyond what is required to pay off the secured creditor would then go to you because of the exemption.

(I missed the part about you already being discharged).

OK. So, it sounds like I don't have much to worry about. It will be a little weird explaining to neighbors and friends why there is a "for sale" sign in the yard though when it gets to that point. But it sounds like I should just wait it out. The contract the trustee has with the real estate agent is until 5/31. So, hopefully the trustee will abandon the property after that. If he just tries to go (ex parte) to the judge and get another 3, 6, or 12 months, then I think I should file a motion to compel abandonment.

I needed to use my homestead exemption on other things and since I had negative equity, my attorney said there was NO reason to exempt my house. Looking back on it, maybe it would have been good to exempt $1 of my house? As far as I know, I am the only person that has ever run into this situation. Has anyone heard of it happening to someone else on their primary residence?

[Mensa1]

Your situation is peculiar to say the least. One could theorize all sorts of reasons why the TT is doing what they are doing, but hard to pinpoint here. Maybe just making an example out of something in your case (no exemption claimed), or maybe some scheme to eventually re-open the case... again, all theory's which aren't helpful.

Hopefully nothing comes of the TT's effort to sell the property; but again, why would they go through this exercise if they didn't feel a reasonable chance of success? It would be of concern to me, especially if you wanted to keep the house, and you do apparently, so I would look for ways to nip it in the bud if it isn't already too late to do so. Legal representation is key here, IMO. Without it you may be looking back wondering what hit you from behind.

[HHM]

You can file the Motion to Abandon on your own. Basically, your grounds would be that the asset has no value to the estate and to unsecured creditors and force this trustee to explain what he is doing to the judge. The situation does seem peculiar, a few others on this forum have mentioned a trustee taking over a short sale that was already in progress, but I have not really heard too much about trustees trying to take an upside down primary residence and selling it at short sale for a fee.

[tdawg]

You can file the Motion to Abandon on your own. Basically, your grounds would be that the asset has no value to the estate and to unsecured creditors and force this trustee to explain what he is doing to the judge. The situation does seem peculiar, a few others on this forum have mentioned a trustee taking over a short sale that was already in progress, but I have not really heard too much about trustees trying to take an upside down primary residence and selling it at short sale for a fee.

It's a motion to compel abandonment, right? Isn't a motion to abandon when you don't want to have an interest in a property anymore? By the way, where should I look to figure out how to do this? I've filed legal paperwork before several times (I'm divorced).

Does anyone see any downside to me filing a motion to compel abandonment on my own? I've heard various opinions throughout this thread. I would like to just get this over with, but I also don't want to piss the trustee off.

[HHM]

It doesn't really matter what the motion is called, it is the substance of the motion that matters. If you want to call it Motion to Compel Abandonment, that is fine.

As for how to do it, about all I can say is visit a law library. There are very few "standard form motions". Keep in mind, all a Motion does is request the court to take a particular action. Think of it like writing a paper.
Part I (Introduction: don't actually call it "introduction" this is me helping give you context for what to do). This is a brief statement of what you want the court to do.
Part II Facts: Simply describe the background of what is going on. ONLY THE FACTS. e.g. Debtor filed BK on "x" date and was discharged on "X" Debtors primary residence has a current market value of X and the mortgages owed are "X". The trustee is attempting....etc etc
Part III (Discussion, the legal basis for your request): This is the difficult part, you need to identify the legal basis for your request. (This is where attorneys really come into play). This is the section that trips up most Pro Se Filers.
Part IV Conclusion: Simply restate what you want the court to do

That description above is a very simplified outline for a Motion.