Coulda Shoulda

[CoBelle]

I realize now that I was stupid stupid stupid in filing a Chapter 7 after my Chapter 13 being dismissed for supposedly going over the unsecured debt limit.

I realize now that what I should have done was to take that 'unsecured' debt and had it 'forgiven' by the lender. Since it was a loan on property I was buying, and the Chapter 13 trustee said I had to 'give back' the property anyway, I should have just done a deed in lieu of foreclosure and then: refiled the Chapter 13.

I believe that since the bk court orders did not address any prohibition against refiling my 13, that I could have done so immediately.

Instead, in a panic, and with my decidedly not competent-or-playing-for-the-other-side (in this case my ex) attonrey 'not responding', I filed a Chapter 7 which has been discharged.

So I have two questions:
(1) Am I right, in retrospect, that I could have refiled my 13 once the debt that 'put me over' the debt limits was forgiven?

(2) Is there anything that can be done at this late date citing my incompetence and lack of direction from my attorney? (The Chapter 7 is discharged but not yet closed)

PS I haven't posted in a while. Since my home was illegally taken by a REceiver in league with my X, and since the Receiver did NOT pay even my homestead exemption after sale as ordered by the bankruptcy court, I have been trying to find housing and a contingency based attorney to fight what I believe was a fraudulent transfer of my home to an insider, not arms length transaction, for well less than appraised or assessed value to the lowest bidder. Meanwhile, X filed an AP to charge that any debt to him is nondischargeable bk debt and has now filed for summary judgment.

[HHM]

(1) its a big assumption that the lender would have forgiven the debt or accepted a deed in lieu (so factually, it is big "what if" whether that would have happened, playing out that scenario as if it would have happened is speculation at this point). But yes, if you can unload a debt in some way prior to filing, and that puts you under chapter 13 limits, then you don't have a debt limit issue. This strategy is common when the debtor has too many investments properties, assuming time allows, and wants to keep some and not others (or keep primary residence and unload others), you wait and allow the properties to foreclose...but even then, you have to cognizant of the unsecured debt limit on the deficiencies.

(2). You got your discharge. The BK side of you case is over. As for the attorney, again, I would direct you to the above, it is probably speculation at this point whether the bank would have agreed. A lawyer is not incompetent for outcomes that are not in their control.

[CoBelle]

THanks HHN,

I should probably have added two disclaimers:
(1) The investment property, at the time the 13 was dismissed, had already been deeded back to the lender who was a long time developer friend of mine whom I had invested with many times over the years...She was more than willing to take back the property, and we were under the impression that it had to be done as I couldn't afford to make any more payments and it appeared that the Chapter 13 trustee had insisted on it as a condition of my 13 plan.

(2) The lawyer was incompetent or crooked or both but not because of this, because of other things that I won't go into here (and many well respected bk attorneys in our state so advised). It crosses my mind that if the lawyer weren't either or both , that she wouldn't have said that my ONLY option was to file an 11 'and that she didn't do 11s' once she had my money for the 13.

It is very consequential as to what happened AFTER I filed for a 7, ultimately being evicted from a house without benefit of unlawful detainer/notice/hearing and having it sold in a fraudulent transfer. But I have to accept blame for not being smart enough and for confusing 'dismissed' with 'discharged' insofar as not thinking I could refile right away if not prohibited. DRats.

[btbeme]

Y'know, I say any time you can get a 7 discharged instead of being stretched on the CH 13 rack for 3-5 years, you are ahead of the game. Since it is over, done with, and gone, I'd just move on and start anew. The pain is gone. Well, maybe not entirely, but remember two things - you have a fresh start, and karma exists. Incompetent, or bitter, or hateful, or... all those folks... they will get theirs sooner or later. As someone once said, the best revenge is living well.

The elephant in the room on ANY bankruptcy filing is the one most often overlooked - that the filer will not like every answer they get or everything that happens to them. You made it through the worst parts. And, for every a-hole in your life, realize you have 10 friends here in the forums.

[CoBelle]

btbeme....you're so sweet! It IS comforting to know that people here support each other through the worst!

I guess my problem, weird as it sounds, is that altho I rec'd a discharge..I didn't have any debts that were dischargeable, so alas, I'm not better off than I was.( I'd filed the 13 to buy out my ex's share of the house thereby enforcing the state court's own divorce orders, and not to escape any debt, which was future debt, owed to X, to be taken from home sale proceeds)

In a 13, I would have had a home plus rental income from a MIL in the home that over doubled my income. I built the home and was a REaltor for many years, so the plan was to keep the home for two years, then sell and pay off X and anyone else (I 'd already paid off my mortgage in full in 2003) and have enough left to buy a smaller home and live comfortably . My plan payments were affordable, and by paying off debt at 100%, I 'd be discharged in about 2 years once the house sold (It was not distressed and since there was no mortgage, I could wait forever to get my price)

Instead, now I have no home,no money (not even my homestead exemption which was supposedly guaranteed by state law and the bk court) , not enough income to rent or even pay health insurance (not quite Medicare age) , no income producing real estate, and no way to pay X debts he says he didn't get because he forced the sale of the home to his old gf for much less than any other bids, including mine, which was the highest. Plus, no money to hire an attorney. Sorry for the WHINE.

Unfortunately, in my particular bizarre case, a 7 didn't do anything but create debt, lawsuits, and homelessness.

But I do hear ya re karma, and just hope I'm around long enough to see it in action!