Trustee wants house

[funkley2]

I had posted this earlier but my timeline was messed up so I am reposting. I really need some help with this. TIA.

I was discharged in April, I kept my house but did not reafirm. Before discharge, trustee questioned my homestead legality and wants to sell the house. He has scheduled a 2004 hearing that is coming up soon.

If he is successful at getting a judge to agree -my question is: can I stop making my house payments and move out? There's at best 20k in equity so he's going to get it all. Houses sell SLOW in my area and could take a year or more to sell. I dont see why I should have to keep making payments/insurance/heat etc..

[HHM]

I would think you can stop payments and move. There is no legal basis I can think of where the BK court can require you to keep the mortgage current while the trustee sells the home.

Also, so long as the case is open, the mortgage lender cannot foreclose (more accurately, the trustee can keep the mortgage lender from foreclosing), moreover, the mortgage lender will be paid from the proceeds of the sale.

[keepsmiling]

The less you pay, the less equity to motivate tt to take.
I'd stop. You can always try to work out something with the bank later.

[filed]

I would think you can stop payments and move. There is no legal basis I can think of where the BK court can require you to keep the mortgage current while the trustee sells the home.

Also, so long as the case is open, the mortgage lender cannot foreclose (more accurately, the trustee can keep the mortgage lender from foreclosing), moreover, the mortgage lender will be paid from the proceeds of the sale.

HHM, I filed a no asset 7 Nov 2011 and received discharge Feb 2012. My case is still open, and I do not know why. My home was included in the 7, and now I am receiving letters from attorneys offering to represent me in my foreclosure, which means the bank has filed to foreclose. Can the mortgage lender foreclose while my case is still open?

[HHM]

Do you remember if the mortgage company filed a Motion for Relief from Stay. That would have been standard operating procedure for the bank.

[filed]

Do you remember if the mortgage company filed a Motion for Relief from Stay. That would have been standard operating procedure for the bank.

I do not think that they did, but, only about 60% confidence level in that.

[HHM]

Incidentally, do you know why your case hasn't closed? If it really was no asset, it should have closed.

[filed]

Incidentally, do you know why your case hasn't closed? If it really was no asset, it should have closed.

HHM,
No, I do not. This is what I have been saying for months, I have been so confused because I have no information, no idea what is happening (or not happening), no idea why my case stays open month after month after month.

Nothing has been filed in my case by anyone since early February when I rec'd the discharge. Pacer still lists my case as a no asset, status is awaiting closing, its been in that status for 230 days or so. No objections were filed to any of my exemptions, yet, the trustee has never filed a "no asset/do distribution" determination, nor a "preliminary asset report" indicating they would be changing me from no asset to asset.

My attorney contacts the trustee, and the trustee's assistant either states the trustee just has to make a final review before closing the case (and then, never does) or the Trustee just does not even respond to my Attorney.

I do not want to make the trustee mad, but, I DO want to be able to move on and have my case closed.

[HHM]

Call the bankruptcy court clerk. If there is no reason for the case to be open, they will generally sort it out and close the case. The trustee has no duty to respond to your attorney, but the trustee will respond to the court.

[filed]

Call the bankruptcy court clerk. If there is no reason for the case to be open, they will generally sort it out and close the case. The trustee has no duty to respond to your attorney, but the trustee will respond to the court.

HHM, THank you for the suggestion. I did call the bankruptcy court clerk about 3 months ago, and they told me that I needed to go through my attorney. Does that sound like an appropriate answer? How should I phrase my inquiry when I call the bankruptcy court clerk this time?

[tobee43]

i would call your atty and not the court to find out what in fact the case was not closed.


there are two separate orders issued during a chapter 7, usually first it is the order of discharge, and then a separate, and IMO, the most important, the signed order of the "close" or the closing of the case itself. now, if the trustee felt there was in fact equity in your home, they it is likely your no asset case was then turned into an asset case. your atty should have been aware of all this and informed you along the way. additionally, you should have rec'd something from the courts indicating your case was indeed turned into an asset situation.

you paid your atty to do a job, and that job included telling you about anything or any chances during your bk process. it is highly unlikely the firm you used was not informed of your status change...so that is where i would begin, not the courthouse.

[HHM]

tobee, I beg to differ, and it appears the OP contacted the attorney, the attorney contacted the trustee. So, the issue is, what is the next step from here? Also, most Bk representation ends at discharge. Also, I disagree that closing is more important than discharge, in the grand scheme of things, it isn't. Discharge is far more important.

Even if the attorney was a good, conscientious attorney, this issue would be a VERY LOW priority on the attorneys radar. First, because closing is not an important issue, second, almost no bankruptcy attorney fee covers representation between discharge and closing. Being attorney of record on the case for the BK court and having a continuing obligation to the client are different things. I can practically guarantee that under this attorney's fee agreement and the states rule of professional conduct, representation ended long ago.

So, I think the OP needs to gather some info on his/her own first...because if there really is a problem, the OP is going to have to PAY the attorney to fix it because if it really is a problem, it is not an issue the attorney can solve with a phone call or letter.
The OP needs to get an PACER account an look up the case. Look at the Docket entries, is there something in the Docket that indicates why the case may be open...e.g. Notice of Potential Dividend and Request for Proof of Claim, etc. If not, call the court clerk, tell them you don't have an attorney and seems to be no reason why the case is still open, can you help me?

[tobee43]

while i love to "differ" with you hhm. i surely believe the close is more important from this side...that's on a personal note. it's fine that everything is discharged, but i want my case CLOSED. (shut that door once and for all!)

i also believe that at some time during the case there should have been an indication to the atty by the trustee that his/her client may have existing assets that the court may be interested in. this is why exactly, people should be so careful about who they hire as many times nowadays everyone and their mother who is an atty who's office is slow are doing bk's. IF the OP's atty had a decent relationship with the trustees in their district i'm certain communication would have taken place. i saw it happen with our case and the trustees office.

again, on a personal note here. IF there is a problem i would still use my atty to handle it. it may be worth the extra legal fees. while it's ok to get the "general" information ones self, i do believe if this is serious the OP should use an atty, and one, with a good relationship with their districts trustees.

[filed]

i would call your atty and not the court to find out what in fact the case was not closed.


it is highly unlikely the firm you used was not informed of your status change...so that is where i would begin, not the courthouse.

Tobee, thanks for the reply, however, you should understand that I have called my attorney, and my attorney has attempted (numerous times) to contact the trustee and inquire as to why the case is not closing.

Also, there has been no status change on PACER

[filed]

tobee, I beg to differ, and it appears the OP contacted the attorney, the attorney contacted the trustee. So, the issue is, what is the next step from here? Also, most Bk representation ends at discharge. Also, I disagree that closing is more important than discharge, in the grand scheme of things, it isn't. Discharge is far more important.

Even if the attorney was a good, conscientious attorney, this issue would be a VERY LOW priority on the attorneys radar. First, because closing is not an important issue, second, almost no bankruptcy attorney fee covers representation between discharge and closing. Being attorney of record on the case for the BK court and having a continuing obligation to the client are different things. I can practically guarantee that under this attorney's fee agreement and the states rule of professional conduct, representation ended long ago.

So, I think the OP needs to gather some info on his/her own first...because if there really is a problem, the OP is going to have to PAY the attorney to fix it because if it really is a problem, it is not an issue the attorney can solve with a phone call or letter.
The OP needs to get an PACER account an look up the case. Look at the Docket entries, is there something in the Docket that indicates why the case may be open...e.g. Notice of Potential Dividend and Request for Proof of Claim, etc. If not, call the court clerk, tell them you don't have an attorney and seems to be no reason why the case is still open, can you help me?

HHM, Thanks for the reply. I have a PACER account, and I looked at the Docket entries...There is nothing there that would indicate why the case may be open, no Notice of Potential Dividend, no Request for Proof of Claim, etc...

Your advice is to now call the clerk and (I presume, ask for the caseworker assigned to my case) and tell them I have no attorney and that there seems to be no reason why case is still open and can they help me out.

I really appreciate that advice, it is probably exactly what I needed to hear. My (hopefully) last question is that I have called the court and spoke to my caseworker a couple months ago to try to do just what you described, and the first thing the caseworker asked was "are you represented by an attorney", to which I replied "yes" and was promptly told to direct inquiries through my attorney. Are you saying that if I get the same question from my caseworker this time when I call, that I should reply "No", with the reason being that representation has ended after I received my discharge? For the record, my attorney is quite conscientious, however, it does seem pretty obvious to me that this matter is low on the radar. I try to be a good "client" , have referred another case to the attorney's office to show my gratitude, and always offer to pay additional for any time that is devoted towards wrapping this up for me.