Confused with my attorney. What's your opinion?

[lvmcse]

During our first meeting, he says that since my rental home (used to be primary) was in the process of being forclosed that he couldn't use that payment in the means test. He did say that I need to get the house out of my name because of the HOA. Second meeting: He says that I should break the pending short sales so he can included in the means test. WTF???

[btbeme]

What you are allowed to claim as a housing payment is either the federal guideline for your area or (if higher than that amount) a verifiable mortgage payment against a secured asset (your home). Amounts that are higher than the guideline can be challenged, especially if the higher amount makes a difference between qualifying for a Ch 7 or being tossed to a Ch 13 on the means test.

Challenges can arise from the amount of the exemption being claimed (too high for the area or too high for your income) or because the asset isn't yours (or soon will not be yours). Since the house is in foreclosure, it would be a pretty thin claim to say that payment is valid. The Trustee is likely to challenge it if it makes a difference, but I am guessing your atty thinks (or hopes) otherwise.

Just a guess.

[lvmcse]

What you are allowed to claim as a housing payment is either the federal guideline for your area or (if higher than that amount) a verifiable mortgage payment against a secured asset (your home). Amounts that are higher than the guideline can be challenged, especially if the higher amount makes a difference between qualifying for a Ch 7 or being tossed to a Ch 13 on the means test.

Challenges can arise from the amount of the exemption being claimed (too high for the area or too high for your income) or because the asset isn't yours (or soon will not be yours). Since the house is in foreclosure, it would be a pretty thin claim to say that payment is valid. The Trustee is likely to challenge it if it makes a difference, but I am guessing your atty thinks (or hopes) otherwise.

Just a guess.

Thank you. Whats funny is that I went to 5 different lawyers. All of them have different opinions. Making me crazy.

[SMinGA2]

Are you losing money or making money by renting it out? What's your intent long term? The means test is only one part of the process. Actual projected income/expenses going forward are also important.

[lvmcse]

Are you losing money or making money by renting it out? What's your intent long term? The means test is only one part of the process. Actual projected income/expenses going forward are also important.

Use to be our primay in another state. It's a rental house now. Currently the house is in foreclosure.

[SMinGA2]

Some random thoughts...

If you're still collecting rent on it, that extra income could be a problem. It would factor into the look back - but obviously you won't continue to receive that income. Not an outright problem - but you'd need a competent attorney. One who understands the importance of schedules I/J (actual look forward income/expenses) and doesn't just look at the means test.

Getting the house out of your name is important, because HOA dues are only discharged as what you owe when you file. They'll continue to bill, and you'll be responsible for, any between filing date & when the house actually comes out of your name. Depending on where in the foreclosure it is, you might want to file after its done? Filing before its done could delay the FC and mean more HOA fees later.

The means test itself can't mean you have to do ch. 13 rather than ch. 7.

[lvmcse]

Some random thoughts...

If you're still collecting rent on it, that extra income could be a problem. It would factor into the look back - but obviously you won't continue to receive that income. Not an outright problem - but you'd need a competent attorney. One who understands the importance of schedules I/J (actual look forward income/expenses) and doesn't just look at the means test.

Getting the house out of your name is important, because HOA dues are only discharged as what you owe when you file. They'll continue to bill, and you'll be responsible for, any between filing date & when the house actually comes out of your name. Depending on where in the foreclosure it is, you might want to file after its done? Filing before its done could delay the FC and mean more HOA fees later.

The means test itself can't mean you have to do ch. 13 rather than ch. 7.

We are not collecting any rent on the home. Renters moved out. Unfortuantely they caused about 10,000 in damages. Don't have the money to fix it. So yes the house is sitting empty. I have to agree with you. Need to get the house out of my name cause that HOA will haunt me with fees.