Need advice please read and share your thoughts...

[missemo12345]

My husband and I can no longer pay our mortgage his pay has just fallen so low that we can not continue the struggle.
We live in Florida so Here is my question I did a chapter 7... 2 years ago so I am off the hook for the mortgage. My husband has 40k in Credit Card debt which he stopped paying 2 years ago. The mortgage has been current up until now. Our lawyer wants to stick him into a chapter 13 here is why...My husband has Motor Cycle that has a value of $8000 that is free and clear he uses it to get to work along with a $700 car with gas prices the way they are it is cheaper. We can take a exempt of $4000 so we would need to pay $4000 if it appraises for the full $8000 at 341 hearing. We are fine with that. But the attorney said 2 years ago I purchased my husbands car from him that he was selling for market value and paid full sales tax to register it. He says they may say it was a fraudulent sale how is this fraudulent if I paid market value. Is this Worth committing to a chapter 13 for 5 years because my attorney says the trustee MAY not like it? Thank you to all for listening

[daylate]

Check with other attorneys. I personally don't think your purchase would be viewed as fraudulent. But I am not an attorney or a trustee so that is what that opinion is worth. The motorcycle alone doesn't sound to me that it is worth going to a 13.

[missemo12345]

My feelings exactly...To have a trustee breathing down your neck for 5 years because of a issue that may a rise... I feel this attorney who has $1200 of our money because we did sign with him last year who at that time advised us of a 13 because my husband job was fine and we were current on the home. He makes more for a 13 and that is fine every one needs to get paid but I do not think we warrant a 13.

[free2breathe]

If I were you, I'd set up a couple free consultations with other attorneys. You don't have to hire them, but it would be a second opinion as to which chapter to file. If you get a couple of opinions that say they believe he would be eligible, and better off, filing chapter 7, you can then tell your current attorney that you don't want to file a 13 and would rather take your chances on the bike buy-back.

[frogger]

Find another attorney......

[newbie2]

Here are the replies to the other thread you created about this: http://www.bkforum.com/showthread.ph...-your-thoughts... Good luck to you and your family.

[Pandora]

newbie2 beat me to it However I would like to ask you - the $4K you're referring to as exemption... are you planning on giving up your homestead to get it since FL only allows $1K for auto exemption. Make sure you know what the plan is before you agree to it. As to you purchasing your husbands car - well that does seem odd and could be viewed as a fraudulent transfer. Why would a wife buy her husbands car if they're married and living together? Seems odd...

[AngelinaCat]

I have merged the two threads and deleted the duplicate post. OP, please do not create multiple threads on the same subject as it becomes a problem following the posts and keep straight which thread has been responded to.

Thank you.

[missemo12345]

newbie2 beat me to it However I would like to ask you - the $4K you're referring to as exemption... are you planning on giving up your homestead to get it since FL only allows $1K for auto exemption. Make sure you know what the plan is before you agree to it. As to you purchasing your husbands car - well that does seem odd and could be viewed as a fraudulent transfer. Why would a wife buy her husbands car if they're married and living together? Seems odd...

Yes we will be giving up homestead since we will let the house go. My husband decided to sell his car which he could no longer maintain my parents gave me $ to purchase it this way it did not look like a gift transfer I then went to my tag office registered it and paid $600 in tax. I figured this purchase was on the up and up no difference if he sold the car to Joe smith.. I paid market value to show no favoritism please explain why this sale is odd only because it was to me. This sale was done on 11/02/2009 we have had no creditors bothering us I am thinking why not wait another year or so and this way the look back will be that much further away. I am really hesitant to have him be commited to a trustee for 5 years because of this. Please let me know what you thunk thank you so much for offering me advice.

[newbie2]

Yes we will be giving up homestead since we will let the house go. My husband decided to sell his car which he could no longer maintain my parents gave me $ to purchase it this way it did not look like a gift transfer I then went to my tag office registered it and paid $600 in tax. I figured this purchase was on the up and up no difference if he sold the car to Joe smith.. I paid market value to show no favoritism please explain why this sale is odd only because it was to me. This sale was done on 11/02/2009 we have had no creditors bothering us I am thinking why not wait another year or so and this way the look back will be that much further away. I am really hesitant to have him be commited to a trustee for 5 years because of this. Please let me know what you thunk thank you so much for offering me advice.

The reason it looks "fishy" is that there was no need to sell the car to you. Even if he couldn't afford to make the payments you could have made them without going through the process of selling the vehicle to you. (That's what happens in most marriages ) Since he sold it to you for true market value you really shouldn't have anything to worry about. Get those other attorney consults done and you'll feel better about it all.

[Pandora]

I agree with newbie's post above, but would also like to add that while you purchased it for market value - I still believe the trustee is going to have issue with it because it was between you and your husband. Do you have separate accounts? Do you pay bills separately? Can you provide a paper trail on the $ you gave to him for the sale didnt go to joint debt, etc? Some things to ask your attorney...

I think the key thing that caught my eye was your use of wording " my parents gave me $ to purchase it this way it did not look like a gift transfer " IMO if you try to justify you purchasing your husbands car using this defense, then the trustee may ask why you felt the need to try to make it NOT look like a gift transfer... See why it looks odd ? As newbie2 stated above, in most marriages one spouse doesnt pay the other to purchase a vehicle already owned/paying on unless they live separately financially in the marriage and have since the beginning.

ONly thing you can do is try - worse that will happen is trustee will take it or request you buy it back from estate.

[SunshineGal]

I think the problem may run deeper. You say you filed for BK two years ago, and then *almost* two years ago your parents gave you money to *buy* your husband's car. How much money are we talking about? What did DH do with the money? Was your BK already closed at the time?

[missemo12345]

Yes we have separate accounts..

Yes he pays certain bills & I pay certain bills..I pay my Credit cards etc

The only joint accout we have has been open for 12 years just for our life insurance to withdraw not a single penny is put into that account above the premium that is due.

The funds from the sale were put into his own account then he paid for his mothers funeral and air expences to travel to NY. He has funeral receipt from funeral home will need to get old staments to show air & hotel.

I did not try to make it look like a gift transfer it was a purchase I needed are vechilce my parents had concern as mine was not reliable he needed funds to bury his mom. I think the worst thing he could of done was just gift it to me I felt this was improper.

The car was $7100.... My discharge was 7/2009 the car was purchased in 11/2009 So yes my BK was closed!!!
Hope all this info helps. Spoke with another attorney yesterday he did not see a problem at all and since my husband will not be filing any time soon time is on our side.
Thank you

[missemo12345]

I agree with newbie's post above, but would also like to add that while you purchased it for market value - I still believe the trustee is going to have issue with it because it was between you and your husband. Do you have separate accounts? Do you pay bills separately? Can you provide a paper trail on the $ you gave to him for the sale didnt go to joint debt, etc? Some things to ask your attorney...

I think the key thing that caught my eye was your use of wording " my parents gave me $ to purchase it this way it did not look like a gift transfer " IMO if you try to justify you purchasing your husbands car using this defense, then the trustee may ask why you felt the need to try to make it NOT look like a gift transfer... See why it looks odd ? As newbie2 stated above, in most marriages one spouse doesnt pay the other to purchase a vehicle already owned/paying on unless they live separately financially in the marriage and have since the beginning.

ONly thing you can do is try - worse that will happen is trustee will take it or request you buy it back from estate.

I do see your conerns the way I worded it was not correct please read my post below..Thanks again for your help

[SunshineGal]

Hi Messimo,

Glad to hear you found a different attorney and your case doesn't sound quite as strange now that you've provided more information. Although the Trustee may question the purchase of your car, it can be easily explained and verified.

It is way too late for any titled property, but do some research on tenancy by the entireties as to how it relates to personal property such as the furniture, electronics, etc...also, make sure the attorney you chose is well aware of it, two out of three told me it doesn't exist, but they were wrong. Finally, don't use KBB for the motorcycle...at the very least, take it to a dealer and get a written appraisal of what it is worth, it may be worth less than you think.

SG