HHM, justbroke--opinions please

[poorold]

Good evening all, my wife and I had our 341 today. Went pretty much as expected except the Trustee started drooling when he estimated $9,000 equity in our one and only car.

He asked how was it titled and we answered in my wife's name.

Now, it is our only car, it is paid for out of joint funds, it is insured in both our names and we share it equally.

I believe he is going to challenge the use of any of my exemptions towards the equity in the car and go for $4k-$5k equity.

Do I have a leg to stand on? Don't I have an equitable interest or something that enables me to use my exemptions towards OUR one and only car.

We are chapter 7 and below the means and reside in Florida.

[poorold]

assuming the Trustee is correct (and I think he is), how amenable are Trustees to negotiating a cash settlement in lieu of taking the car. It makes sense for us to borrow the money he will likely want and just pay it.

it also highlights everyone's need to fully understand how exemptions are applied and do legal shuffling of non-exempt assets into exempt assets before one files. We could have sold the car and bought 2 and kept in line with exemptions, or we could have titled the car in both our names, etc.

The equity in the car was my greatest concern and it does not come as a surprise. I just did not realize my exemptions could not be applied to a vehicle that was not titled in my name, despite it being our only car, shared funds making the car payments, etc.

One additional point in this issue...in an initial consultation, I SPECIFICALLY asked the bankruptcy attorney if the car equity would be a problem. His response..."No, they are not looking to take your car and you have enough exemptions anyway."

That's one reason I decided to file pro se. I had already identified the potential problem and this guy was not even giving me information I didn't already know, and, in fact, was giving me incorrect information and I knew it.

Yesterday, in the Middle District of Florida (Orlando), they had 180 "341 Meetings" scheduled. YES, 180!!!

It was also clear the Trustee not only had not really looked at anybody's paperwork before the meeting, but did not look at any documents submitted with regard to the cases (at least in my case.)

I sent the guy 3 year's tax returns, bank statements for 90 days, a MARRIAGE CERTIFICATE (because my wife kept her name) and some other miscellaneous items.

The Trustee asked us if we were married, if we were married on the day we filed etc. all because we had different last names. He found it "amusing." Clearly I anticipated this and just as clearly he doesn't read his mail.

[justbroke]

How exactly is the car titled... are your named connected by "or" or by "and"? I'm wondering, because in Florida, the "or" means each person owns it 100% and they may be looking at all that juicy equity, as you put it. If it's connected by "and", then you own 50% interest, and the Trustee would still be interested in the portion you didn't exempt.

So, let's back up a second first. Did you claim a homestead? I'm assuming that you filed jointly. That means you have $2K exemption in the vehicle. If you didn't file a homestead, you two then have the $2K (joint) wildcard as well as the $8K (joint) unused homestead exemption. What did you use your, basically, $10K wildcard on? (That is, if you didn't claim a homestead.)

That's one reason I decided to file pro se. I had already identified the potential problem and this guy was not even giving me information I didn't already know, and, in fact, was giving me incorrect information and I knew it.

Ah, pro se... you may have messed up with your exemptions! You may need to go look back at them and submit an amendment to your Schedule C (Exemptions).

So, now I'm thinking you didn't file jointly because you are talking about the car not being titled in your name? So I'm confused now too.

Are you filing jointly with your wife? Is the car titled only in her name? What exemptions did you apply to the car (Statute)? Do you have a homestead? Are you surrendering said homestead, if you do have one? What did you do with the unused homestead exemption (if you are not claiming a homestead)?

[poorold]

justbroke,

my wife and I filed jointly. the car is titled in her name. i applied her $1,000 and some of her wildcard (no homestead claimed).

just to confuse you further, I qualify for GA exemptions due to residency issues, so I applied my vehicle exemption of over $3K and some of my wildcard stuff.

all in all, we do not have enough stuff to apply our combined exemptions. We have about $3K left over (in various categories).

now, here's another curveball for you...

Are a married couple filing jointly allowed to apply exemptions from 2 different states in their filing. We did because of the 730 day rule in which exemptions you are required to use. my wife must use FL and I must use GA under that rule.

However, the final question in applying exemptions is that if the rules stated result in you not being able to use a state's exemptions, than you can use federal exemptions.

So, if there is a federal requirement that joint filers MUST use the same state's exemptions, than I believe we would then be "forced" to use federal exemptions because I am prohibited from using FL exemptions and my wife is prohibited from using GA exemptions--and that would solve our car equity problem in a heartbeat because my wife's federal exemptions would cover everything and then some.

[justbroke]

my wife and I filed jointly. the car is titled in her name. i applied her $1,000 and some of her wildcard (no homestead claimed).

Ahhh, okay, one of you just moved to Florida.

Are a married couple filing jointly allowed to apply exemptions from 2 different states in their filing. We did because of the 730 day rule in which exemptions you are required to use. my wife must use FL and I must use GA under that rule.

Yes. See 11 USC 522(m).

However, the final question in applying exemptions is that if the rules stated result in you not being able to use a state's exemptions, than you can use federal exemptions.

That is interesting, however 11 USC 522(m) reads as follows:

(m) Subject to the limitation in subsection (b), this section shall apply separately with respect to each debtor in a joint case. 11 USC 522(m)

Unfortunately, that means that each of you, as "individual" debtors, must use the exemptions for which you are required to use.

However, I'll caveat this 11 USC 522(m) thing with... you need to look to your State's exemptions as well.