Discharged but far from over

[Miknan]

Discharged 11-22-11 but my no asset case may or may not be one now. I own 1/4 of 40 acres mostly worthless vacant land I inherited. Originally, the trustee wasn't going to do anything with it but now migh have changed her mind. Wouldn't I be notified? I have no idea what the heck is going on with that or how long I'll be here. I was going to try and modify and stay but apparently the trustee found something wrong with the mortgage and I can't do that now. My lawyer is little help. Seems he doesn't know what the trustee is doing and I'm sick of paying him to ask questions I don't get an answer to. And, just now, Bass Assoc just actually called and caught me by surprise. I stalled when they asked me to pay or surrender my property. They want to send me pre-paid boxes to send back my blu ray player (they can have), my 1st gen iPad (I want), and my computer (I want). Crap, maybe I should make them an offer? They want $900. I've read a lot about them but I don't want them calling me all the time. Should I just flat out tell them to come to my house and get it? If they do, I want my hard drive erased first with all my personal info. I'm just as stressed now as before discharge.

[tobee43]

Miknan, i'm so sorry you are going through this!

first, while i understand it's hard, it really is going to be alright. i would tell Bass Assoc to Kiss their Bass and if they want come get their stuff after you have your cat use the stuff as a cat box. did Bass file an adversary proceeding against you? if not...tell them to go catch a plane to no where and that they are in violation of the stay while you are awaiting discharge blah an more blah. if they are calling you after the discharge then they are in trouble and you need to contact your atty as these people are NO longer allowed to attempt to collect a debt after the discharge.

now, why your bk didn't close could in fact be that piece of property, however, it doesn't mean or give anyone else the right to attempt to collect anything other than what the trustee is looking into.

as far as making them an offer...the ONLY offer Bass should get from you is the offer you are going to settle with them for violating the law in attempting to collect a debt after your bk was discharge.

YOUR DISCHARGED....Bass had their opportunity to fight your bk and apparently, unless you left someone out and they won an ap against you, really you need to understand you are clear of them.

it will be ok really, i know it doesn't seem that way now, but it will.

[TomTea31]

I'd tell them they can have the items but they need to come and get them themselves, that you won't take time from your day to pack everything up. Are these items relatively new items or old?

[Miknan]

Thanks tobee, I'm just feeling very stressed right now between this BK, my wife is still very sick and not getting better, my dad is sick and actually going to have his legs amputated, etc, etc, etc. It just never ends. I thought the stuff from Best Buy is secured so they could still ask for it back. They didn't actually ask for money this time and they never filed an AP. If i find out they cant do this now that im discharged I'm going to let them have it.

As for my land and/or my house, I just have no idea. The trustee hired a realtor and got a lawyer. I wouldn't think she'd need a lawyer for my land but she would to fight the bank for my house. Maybe she got a realtor for my land and the lawyer for the house? If she's going to sell my land after sending out a no asset no distribution letter, wouldn't she have to let me know? I could care less about the land, in fact I'm sick of paying taxes on it and she can have it minus the $3500 i put exemption money on it. But my siblings care and don't want to lose their share. I think I'll swipe one of my wife's Valium tonight. 

[Miknan]

I'd tell them they can have the items but they need to come and get them themselves, that you won't take time from your day to pack everything up. Are these items relatively new items or old?

About 2 years old...

[tobee43]

Thanks tobee, I'm just feeling very stressed right now between this BK, my wife is still very sick and not getting better, my dad is sick and actually going to have his legs amputated, etc, etc, etc. It just never ends. I thought the stuff from Best Buy is secured so they could still ask for it back. They didn't actually ask for money this time and they never filed an AP. If i find out they cant do this now that im discharged I'm going to let them have it.

As for my land and/or my house, I just have no idea. The trustee hired a realtor and got a lawyer. I wouldn't think she'd need a lawyer for my land but she would to fight the bank for my house. Maybe she got a realtor for my land and the lawyer for the house? If she's going to sell my land after sending out a no asset no distribution letter, wouldn't she have to let me know? I could care less about the land, in fact I'm sick of paying taxes on it and she can have it minus the $3500 i put exemption money on it. But my siblings care and don't want to lose their share. I think I'll swipe one of my wife's Valium tonight. 

oh Miknan, my heart really goes out to you.

now, here's what your atty SHOULD have done. your siblings have the right to buy out your share....or IF the trustee does sell the land, they have to get their share first.

secondingly, if you were discharged and there was NO ap from best buy they are in fact in violation of the law. as after your discharge they can no longer attempt to collect a thing from you...trust me on this. they can't ask you for anything. as a matter of fact you can sue them for even trying to get anything from you after the discharge.

the lawyer will most likely work with the other owners to see if they can buy out your share. shoot....land has dropped so much it is surprising that she would go after it. also, i would get on your atty really, because he or she should know what is going on by now. tell you siblings they won't lose their share, the trustee has to pay them first.

take the valium and try and relax, i know it's hard with everything on your plate and my prayers to your dad and your wife i hope them both the best.

[Miknan]

My siblings know they will get some money but they don't want to sell it. Nor do they want to spend thousands for my share. I feel sick that my problems has effected them too. One of my sisters is so mad at me that after she yelled at me I told her to eff off. I'm quite sure we will never talk again. I just think it's bs they can sell this land at an auction for what is for sure going to be a ridiculously low amount. Since I have $3500 in exemption money on it is there a minimum they can auction it for? Say it only goes for like $10k. They wouldn't even have enough to pay me.

[despritfreya]

TB,

The creditor has the right to regain possession of its collateral since the PM lien was not extinguished. Now, should OP ignore Bass & Assoc? My experience, and in light of the many posts relating to this issue, is “yes”. For the lender to officially exercise its rights it would have to get a Writ of Replevin. It is highly unlikely that the lender will fork over the legal fees and the bond that is typically required for such a maneuver. If OP wants “peace of mind”, OP can offer some small token, say $200, to “redeem” the merchandise post discharge. Maybe the creditor will accept the small token and go away. Regardless, the attempt to regain possession of the personal property is neither a violation of the Stay or the Discharge Injunction.

OP,

Advice easily given but sometimes hard to receive. You need to relax as it relates to the bk. Your family is more important than what the Trustee is or is not administering.

The Trustee has the right to sell the land but your siblings will receive their fair share if such a sale materializes. Normally the Trustee will approach the co-owners before marketing the property. But, if the co-owners (or you) simply can’t or don’t want to purchase the 1/4 interest, the Trustee can do what is called a Section 363 sale. Nothing you can do to stop this. If I recall correctly, the Trustee is avoiding the mortgage on your residence due to some defect in its perfection. Again, the Trustee has the right to do this and may eventually sell the property. All of this takes time and you will be kept informed as any attempts to sell are noticed to all creditors and interested parties, including you.

Des.

[tobee43]

TB,

The creditor has the right to regain possession of its collateral since the PM lien was not extinguished. Now, should OP ignore Bass & Assoc? My experience, and in light of the many posts relating to this issue, is “yes”. For the lender to officially exercise its rights it would have to get a Writ of Replevin. It is highly unlikely that the lender will fork over the legal fees and the bond that is typically required for such a maneuver. If OP wants “peace of mind”, OP can offer some small token, say $200, to “redeem” the merchandise post discharge. Maybe the creditor will accept the small token and go away. Regardless, the attempt to regain possession of the personal property is neither a violation of the Stay or the Discharge Injunction.


Des.

but des????? how so when the bk was discharged. now, understanding the fact the bk is not closed, and if this situation with best buy was not an issue during the bk, how is possible that thpursue prusue after the discharge. was the pm lien not listed on the petition, or did that lien's removal have to go via an added motion to the process??? such as the example tofile a motion to vacate a judgment after the discharge. would the OP need to take the same type of legal actions???

i understand there are still certain obligations after a discharge, but BEST BUY??? how can that contact withstand a bk?? i mean if the OP reaffirmed a car, or his house, i get it.

here's a better question des: how could this istuation have been avoided??

[despritfreya]

but des????? how so when the bk was discharged. now, understanding the fact the bk is not closed, and if this situation with best buy was not an issue during the bk, how is possible. . .

Look at it this way. . . Best Buy is no different from GMAC Mortgage or Ford Motor Credit. GMAC Mortage has a lien on a house. Ford has a lien on a vehicle. The lien survives. If the borrower fails to pay, GMAC forecloses. If the debtor fails to pay Ford, the vehicle is repoed.

Best Buy has a PMSI in the personal property. Debtor either had to reaffirm, redeem or surrender. If the debtor does nothing, Best Buy has the right to recover its collateral, just like GMAC and Ford. Since it is personal property (no recorded lien or UCC1 but a lien between lender and borrower), the normal state law remedy, if the borrower fails to cooperate, is to obtain a Writ of Replevin and then have local law enforcement execute on the Writ. Bass & Assoc is just trying, without spending $$, to recover the property. I see no problem in that.

The way to avoid the situation is to act on the Statement of Intentions - or - as many have suggested, ignore Bass & Assoc and see if it "goes away".

Des.

[tobee43]

Look at it this way. . . Best Buy is no different from GMAC Mortgage or Ford Motor Credit. GMAC Mortage has a lien on a house. Ford has a lien on a vehicle. The lien survives. If the borrower fails to pay, GMAC forecloses. If the debtor fails to pay Ford, the vehicle is repoed.

Best Buy has a PMSI in the personal property. Debtor either had to reaffirm, redeem or surrender. If the debtor does nothing, Best Buy has the right to recover its collateral, just like GMAC and Ford. Since it is personal property (no recorded lien or UCC1 but a lien between lender and borrower), the normal state law remedy, if the borrower fails to cooperate, is to obtain a Writ of Replevin and then have local law enforcement execute on the Writ. Bass & Assoc is just trying, without spending $$, to recover the property. I see no problem in that.

The way to avoid the situation is to act on the Statement of Intentions - or - as many have suggested, ignore Bass & Assoc and see if it "goes away".

Des.

thanks again des for clarifing this information. i think the key here is the statement of intention and of course just ignoring them, they most likely will go away.

[webworks227]

Received Discharged Paper dated 11/18 but I am over exceptions by $3500

Hi I live in florida and due to being under employed I was forced to file chapter 7. My car was paid for. So the trustee decided he wanted my car or I have to pay $3500 to keep it of which I don't have that money. I have to go into debt again to get out of debt.

My lawyer is of little help. I asked for an written agreement from the trustee's office. I told them I would keep my car..I have no choice need to get to work. My lawyer says the trustee's don't give anything in writting. They did agree to a 6 month plan with possible interest. I don't feel comfortable making any payments without something in writing, payments, interest etc.

Does anyone know if this is true the trustee does not issue anything in writing? I received discharged notice this week. I thought maybe my little asset got lost in the paper work. Now my lawyers paralegal called today and said just make a payment. Heck I get a receipt, statement or some kind of accounting for my electric bill. cable etc. Am I wrong to ask for something in writing?

Did you know trustee's get a commission? Isn't that a conflict of interest? I was just reading that a discharge notice doesn't mean the case is closed. Can anyone give me more info about that.

Thanks

[despritfreya]

Procedure for a debtor to "buy back" the non-exempt equity in an asset will differ from trustee to trustee. In my jurisdiction (not Fl.) there seems to be several approaches, assuming the Trustee does not use the debtor's offer as an "opening bid". Either 1) the Trustee has the debtor sign a promissory note for the agreed sum and the note contains the payment terms OR 2) the Trustee files a Motion to Approve Settlement with the Court and the Motion contains the payment terms OR 3) it is as simple as e mails between the Trustee and the attorney confirming the agreement and payment terms. But. . . for my clients. . . it is always in writing. Maybe you can contact your Trustee to find out how it works.

Des.

[tobee43]

we were in florida when we filed and our atty warned us that the trustee may ask us to buy back some of the value of our car.

it did not turn out that way, since we were able to cover the value under the "wildcard" exemption in florida, since at the time we did not own a home. usually, from what our florida atty says, the courts will work with you on a buy back payment plan. actually, your atty should have been aware of this situation and i would press their office a bit more to assist you with this, as they would be more familiar with how your districts or that particular trustee deals with this type of situation.

as des points out each trustee can differ from the way they handle this.

[webworks227]

Hi thank you all for your response. My attorney is of no help I asked for something in writing and I was told point blank that they don't do that. this Trustee is a real hard man to deal with to put it lightly. They did agree to a 6 month payment plan $600 a month of which I cannot do. I am 62 and under employed and living on a shoe string. When I question my attorney to try and negotiate for me I was told that "We don argue with Trustee's" I didn't ask for an argument to just work on my behalf. they have taken the trustee's decision and will do no more to help me.

the trustee apparently wants what he wants. I can make smaller payments but he wants more than I can give currently. The paralegal from my lawyers office told me yesterday they have emailed the trustee's office several times in the last few weeks and have not received a response. So if the trustee's off is not responding to my lawyers office is it appropriate for me to write them????? I am more than willing to pay this but just can't meet the large amount they are insisting on. I don't wont to igonore this as alot of time has gone by already I am afraid they will dismiss or revoke my case and I will be right back where I started. I don't have more money for another attorney and that could be a gamble and I could end up after more attorney fees in the same situation.

Thank you for your help and replies. I am just so frustrated I am ready to say take the damn car. However, living in florida you really need a car to get to work and around. Thank you