Advice Needed: In Discharge Limbo & Collecting Rents

[bllyshrs]

All,

maybe a wise and experienced soul here can give me some advice. I filed a Chapter 7 at the end of December, had my 341 in late January, but the 341 was continued as I had an EEOC complaint (potential lawsuit) against my former employer. After a couple months, the trustee finally decided that the lawsuit was not an asset, and not worth pursuing, so they issued a report of no distribution at the beginning of March. Since then, nothing has happened and when I look at Pacer it shows my original meeting of creditors in January, but then shows the latest status as “341 not held.” I presume this is the continued 341 meeting in march, where the trustee was trying to buy some time to review the merits of the potential asset, but decided later that it was not necessary.

Question 1: Now that the "no distribution" is out, what next? I thought that the case is usually discharged at this point, but it has been several weeks since the report was issued and no discharge.

Question 2: Slightly more complicated, I have a property which I was collecting rents on. The property is in the process of foreclosure, but it is in Florida, and like many florida properties the banks haven’t been taking any active steps to do anything. I checked with the county recorder’s office and title is still in my name. I owed back dues on HOA, so I worked out a deal with the HOA so that they could rent out the property, take 80% of rent and give me 20% until we got caught up. This was prior to the BK and this was fully disclosed to the trustee. The trustee knew that we were getting about $300-400/mo on this property, but decided not to pursue it since my take was relatively small and I was making a good faith attempt to pay down a creditor.

The problem is: since filing Ch7, the HOA/property manager has been holding all rents and not sending owner’s disbursements once they got the Ch 7 notice in the mail. I talked to my lawyer, and she said that since the trustee is abandoning all of my assets, so I can collect rents until the property is officially foreclosed. I called the property manager and they want to hear that from the trustee directly. My lawyer said that the “no distribution” report is enough, and that we can fight them if we want but I have re-up and pay her a new retainer. I understand why, since this is a whole new matter, but I’d like to remedy this without spending more in legal fees. Any thoughts advice? Does the property manager have the right to withhold these funds from me?

My biggest concern is now that I am uncertain of my discharge status - I feel like I am in limbo. I don’t want to rock the boat and cause the trustee to re-look at everything. To be clear: I’m not worried about fraud, since both my lawyer and I clearly disclosed this rental income on all pertinent schedules, as well as when directly questioned in the 341 meeting. However, it has taken so long to get here, I don’t want to delay my case any further or do anything that would cause this case to drag on any further. Besides, I don’t think the trustee will want to reach out to my property manager and calm their nerves on the matter, the trustee is damn busy. thoughts?

[angles]

You have a contract with the property manager that is valid and are entitled to the money. The problem now is collecting it. Depending on the value (and it does not sound like much) you could start out with a lawyer letter and include the supporting BK documents. From there you might have to go to court, which increases the cost and may incorporate some friction with regards to your BK. It’s really up to you on how much it’s worth pursuing.

I have been in a similar situation and it really sucks, but eventually I decided it’s not worth it and let the property manager keep the money. I thought she was a good person and would do the right thing just as I was trying to do the right thing. Its funny, but when it comes to money people take on a completely different personality. A real shame, for sure.

[HighUnder]

Can you file a small claim for the amount they owe you? For some strange reason, once some people find out a BK has been filed, they take it upon themselves to dictate what should be done with YOUR money. This happened to me with a tenant, and I very promptly filed an eviction case against them. I hope you'll do whatever you can to void the contract you have with this HOA, as they are clearly not to be trusted. Good luck!

[nohoneymoney]

I would send the property manager a firm but professional letter stating that the BK is a matter of public record and it has been discharged. Attach a copy of your discharge papers. The letter should refer to the contract between you. Demand that payments resume immediately, including all back payments. State that not to resume the payments is a breach of contract and you will seek all remedies allowed by that contract. Send it by registered return receipt and second letter by mail. A letter from you is very inexpensive compared to attorney fees and in a lot of cases they work. If the property manager still refuses to send the money according to the contract, start actions according the remedies specified in the contract. If allowed small claims court is relatively cheap and neither party can bring an attorney. Another possible action may to be fire the property manager and hire another one that is more honest. If they are in breach of contract usually one allowed remedy is to terminate the agreement without penalties. The tenant may get confused at first but the title is in your name and that will settle that discussion quickly. BTW: HOA fees owed prior to BK filing were discharged but not the ones since discharge. Hope this helps

[angles]

Can you file a small claim for the amount they owe you? For some strange reason, once some people find out a BK has been filed, they take it upon themselves to dictate what should be done with YOUR money. This happened to me with a tenant, and I very promptly filed an eviction case against them. I hope you'll do whatever you can to void the contract you have with this HOA, as they are clearly not to be trusted. Good luck!

I noticed this also. It seems that people take advantage of a filers’ misfortune for their benefit. It should be about doing the right thing, something I am seeing less and less of these days. Perhaps we are playing the game wrong??