homestead questions and converting from 7 to 13

[reesemay]

I read this in one of the stickies, can someone elaborate on this??

This is the trustees job:

pursue causes of action (lawsuits belonging to the debtor;
set aside preferential transfers made to creditors within 90 days before the petition;
undo security interests and other pre-petition transfers of property that were not properly perfected.

Also I filed ch 7 and it came back "no asset" I own a home and want to keep it, can I redeem my property from the trustee? Or how would I go about being able to keep my home? I am upside down 200k can I convert to a ch 13 and pay the value of the home? My property was not properly perfected, they do not have title.
I am in florida, I claimed my home as homesteaded.
My work outlook has changed from unemployed to employed
thanks for any help in advance
I am pro se

[justbroke]

This is the trustees job:

pursue causes of action (lawsuits belonging to the debtor;
set aside preferential transfers made to creditors within 90 days before the petition;
undo security interests and other pre-petition transfers of property that were not properly perfected.

The Trustee basically steps into the shoes of the Debtor. The Trustee then attempts to liquidate the debtor's estate. The debtor's estate consists of all property that is not exempted. Usually you can exempt everything (unless you're in Florida and are claiming a homestead -- more on that later).

The problem arises where the debtor has paid some "unsecured" creditor too much in the last 90 days prior to filing, the debtor bought secured property (like a car, house, RV, etc) but the "perfection" of the lien on the property is questionable or non-existent, or the debtor is involved in a lawsuit where they are a plaintiff and have the possibility of being awarded money. All of those things become property of the estate and subject to liquidation by the Trustee.

Also I filed ch 7 and it came back "no asset" I own a home and want to keep it, can I redeem my property from the trustee? Or how would I go about being able to keep my home? I am upside down 200k can I convert to a ch 13 and pay the value of the home? My property was not properly perfected, they do not have title.

You don't redeem a home from a Trustee... you redeem it from a lender. Since you're $200K underwater, you shouldn't be keeping that home UNLESS you have more than one mortgage on it, and the amount due on the first mortgage is no more than 10% less than the value of the property! You can lien strip the "junior" mortgages in a Chapter 13, but it still should be financially sound!

If you are pro se, you shouldn't even be thinking about a Chapter 13 since you definitely would need to do a lien strip or surrender that home. I highly recommend you get some consultations with attorneys to assess your situation.

I don't know all your numbers ($$$) but you are probably better off letting your Chapter 7 case discharge and just start your new life over. Be prepared to lose that home, especially being $200K underwater. Stay in it as long as you can! (You can probably stay for 7-12 more months FOR FREE in Florida... before being foreclosed.) Save your money.

[reesemay]

The debtor's estate consists of all property that is not exempted. Usually you can exempt everything (unless you're in Florida and are claiming a homestead -- more on that later).

Can you explain tis more to me...I cliamed the homestead exemption and it was ignored, bank proceeded to have stay lifted and it was granted. my home has already been sold at auction. the note and mortgage were lost, affidavid reinstated mortgage and note, sale wiped out mortgage and note (bought by lender) That means this is an unsecured debt, which should be able to be wiped out in 7. I am still the owner of record. I have the deed. I claimed homestead....how do I get the stay re-instated, what is the motion that I file??? where do I get the forms?
thanks..

[reesemay]

This is the line I was referring to:
"set aside preferential transfers made to creditors within 90 days before the petition;"

I understand that to mean: House sold at auction (back to bank) so the sale is reversed? Does a new sale have to happen? Or can the opposing atty have a hearing and get the original sale re-instated?

[newbie2]

This is the line I was referring to:
"set aside preferential transfers made to creditors within 90 days before the petition;"

I understand that to mean: House sold at auction (back to bank) so the sale is reversed? Does a new sale have to happen? Or can the opposing atty have a hearing and get the original sale re-instated?

Preferential payments refers to unsecured creditors. A home loan is a secured loan. The sale wouldn't be reversed.

[reesemay]

The actual complaint states difinitavely that there is no mortgage

[newbie2]

I'm completely confused. How could you have lost your home through the process of foreclosure without a mortgage and note? It sounds to me like you filed bk, the note is forgiven, the home was foreclosed upon and now you want to void the foreclosure process. Am I misunderstanding your posts?

[reesemay]

I went thru foreclosure, no atty. House sold at auction back to the bank. I filed ch 7, 5 days after sale. Meaning title is not issued. A lift of the stay was requested, and in the complaint it states that there is no mortgage to reinstate. Right now I own my house free and clear, I have the deed. In my ch 7 schedules I filed for homestead protection, I have owned for 9 years. How do I get the stay re-inforced? The debt is unsecured. Where can I get either motions or forms to fill out??

[reesemay]

Preferential payments refers to unsecured creditors. A home loan is a secured loan. The sale wouldn't be reversed.

according to the civil court no title was issued

[tcreegan]

You need a lawyer

Hi reesemay, ....you really need a lawyer, your situation is a real mess and a lot could be at stake. Start calling and arrange for some free consultations. Shop around and get one who has experience in real estate law and you feel comfortable with.

Good luck with this,

Tom in Colo

[justbroke]

I have to agree with tcreegan. You need an attorney. There are way too many issues and the subtleties between what your posting and reality may be causing us to wonder just what all this means. If you had a mortgage, then that's done by both a promissory note and a security instrument (known as a mortgage or deed of trust).

From what I'm piecing together this is true

• you were sued for foreclosure through a judicial foreclosure process (lis pendens).
• the "Note" was re-established under the laws of Florida, even though the "original" Note was lost (done through a lost note affidavit)
• the foreclosure occurred and sale possibly not finalized (new title issued)
• five days later you filed bankruptcy
• the lender filed for a motion for a relief from stay (RFS) and it was granted
• the debt (mortgage) is STILL secured by your home until the title changes
• you believe that there is no "mortgage" because it was foreclose and "note" was lost.

The last thing means nothing. If you want to litigate that the foreclosure wasn't really "finalized" because the title wasn't recorded within the 10 days it normally takes and before you filed, then I say you have a HUGE battle. The RFS is only because they want to "complete" the process. All they need to prove is that you owed the money (which they did in civil court) and that they were granted a judgment of foreclosure in the underlying State court proceedings.

If you're going to fight this, you need an attorney. In no way do I think you "own" the home free and clear. But that's for a qualified attorney to argue.

[reesemay]

Problem is..the atty's I have spoken w/ do not understand my situation and just try to "rush" everyone thru BK and not discuss the case any...Not to mention I already hired an atty for the foreclosure whom did not do their jobs and said dont call us we'll call you. Sorry for your loss, we advise you NOT to file bankruptcy..waay wrong answer.
I have read articles where civil atty's try to school bk atty's and teach them the right thing to do and the bk atty's are not interested in doing the right thing, because they have to work w/ the lenders in the "future" and are not willing to "make waves" to get the case resolved correctly.....the countless ones I have spoken to are all the same, give me hugh amounts of money up front then I will help you.....the reason we file bk is because we are broke in the first place.. Local legal aid is a joke..
Thanks for the help...does anyone know where I can get a form to file to reverse the stay?
I can tell you the complaint says the mortgage was extinguished for sure. So if there is no title issued to the lender and the morgage is nill. That means I am on record of title and I own the deed. I am the rightful owner. Stop and think about it...why do you think all these scumbag mortgage co's are doing everything wrong and rushing to get foreclosures thru so fast....first off they have already been paid from all the insurance they took out on the loan when it originated....now they want the "gravy" too...even if they cant prove it. Hoping you wont contest it...which many many go uncontested wait a few years think it is a mess now? Look up matt weidner, you will be surprised of all the crazyness and dirty tricks. This is just the beginning.

[reesemay]

The question remains about the homestead...

The mortgage is extinguished upon sale...they admitted that. That leaves the debt unsecured. They do not have title they do not have mortgae simple as that.. ch 7 wipes unsecured debt. So the question of homestead ??
I know it is a lot to follow, but thanks for the help

[justbroke]

The mortgage is extinguished upon sale...they admitted that.

The mortgage is not extinguished until the sale is complete. The sale isn't complete until a new title is issued. You're parsing the distinction and is why the attorneys you consulted with, are probably telling you to just finish your bankruptcy and be done with it.

That leaves the debt unsecured. They do not have title they do not have mortgae simple as that.. ch 7 wipes unsecured debt. So the question of homestead ??

The sale isn't complete. The "mortgage" isn't extinguished until the title work is done. I think you're grasping at straws, trying to construct a scenario in which you get a home free and clear, just because you filed bankruptcy during the "redemption" period. If this were the case, EVERYONE would do this and have free and clear homes.

[reesemay]

Well I guess the atty who wrote up the complaint does not understand what he is doing then. They specificly stated the mortgae was equstinguished/non existant. From their website it looks like they have been doing bk for about 15 years so I have an idea they know what they are talking about.