Married only one filing property in NY & FL

[gosolar]

Lived in NY for years, home here is in only one name, Foreclosure about 3 years they just got summary judgment, so have about year to go.

Renting this house for two years.

NY is the place where most of my assets are located (about $500K house value). So I would file here.

About 18 months ago my spouse bought a home in Fl the loan is only under one name, but we were required to put both of us on the deed.

How does the BK look at that asset?, it's in our mind only one of ours.

Do they figure I have a 50% asset in that Fl home, (no equity yet)

Last year one of us had $50K income (the filing spouse) this year $11K
the other non filing about $80K income, this year about $60K

This year the income dropped a bit.

Only debt is home in NY in foreclosure and old biz loan personal guarantees, $100,000

Questions - thoughts.

Meeting a respected BK lawyer next Wednesday to get info, trying to get upto speed before hand.

Thanks

[LadyInTheRed]

NY is the place where most of my assets are located (about $500K house value). So I would file here.

Not necessarily. Most individuals file in the state where they live. 28 U.S. Code § 1408 does seem too allow you to file where your principal assets are, but I don't know why anyone would want to file BK in a state other than where they live. If you live in FL, I wouldn't think you would want to have to go to NY for your 341.

28 U.S. Code § 1408 - Venue of cases under title 11
Except as provided in section 1410 of this title, a case under title 11 may be commenced in the district court for the district—

(1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principal place of business, in the United States, or principal assets in the United States, of such person were located in any other district;

It sounds like you may have moved within the last 2 years. So, regardless of where you file, your attorney will need to determine what state's exemptions you will have to use.

About 18 months ago my spouse bought a home in Fl the loan is only under one name, but we were required to put both of us on the deed.

How does the BK look at that asset?, it's in our mind only one of ours.

Do they figure I have a 50% asset in that Fl home, (no equity yet).

If your name is on the deed, the court will assume you own an interest unless you can prove otherwise. If there is no equity in the home, there isn't anything the trustee can take. So, it shouldn't be an issue. Also, FL has an unlimited homestead exemption. So, if you live in the home, your interest should be exempt. I don't know if the exemption is automatic or if you have to file a homestead exemption with the County. Ask your attorney about that.

Last year one of us had $50K income (the filing spouse) this year $11K
the other non filing about $80K income, this year about $60K

This year the income dropped a bit.

Whether you pass the means test is based on your and your spouse's income in the 6 months preceding the month in which you file your petition.

[gosolar]

28 U.S. Code § 1408 says "or principal assets in the United States" are located.

There are other reasons to file in NY......

Last 100 days we have been traveling out west, so it's easier perhaps to just use the Fed exemptions, it will likely be 100% plan so doesn't really matter I think

[keepmine]

What do you mean by 100% plan? Are you filing a Chapter 13?

[gosolar]

I think so, know better after meet with lawyer

[LadyInTheRed]

28 U.S. Code § 1408 says "or principal assets in the United States" are located.

There are other reasons to file in NY......

Last 100 days we have been traveling out west, so it's easier perhaps to just use the Fed exemptions, it will likely be 100% plan so doesn't really matter I think

You may not have a choice of using Federal Exemptions. Regardless of what state you file in, what state's exemption laws you use depends on your place of domicile in the 730 days before you file BK. Which state's exemptions laws you use is determined by

...the place in which the debtor’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor’s domicile has not been located in a single State for such 730-day period, the place in which the debtor’s domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place;

11 US Code Section 522

Florida doesn't allow the use of Federal Exemptions. New York does. If you don't qualify to use any state's exemption laws, you use Federal.

[LadyInTheRed]

What do you mean by 100% plan? Are you filing a Chapter 13?

I think so, know better after meet with lawyer

Even if your income is over median, you may qualify for a Chap 7. Don't let any attorney tell you that you can't qualify for a Chap 7 based solely on your income. Make sure they run the means test before concluding that for certain.

[gosolar]

I have the '12 & '13 returns, how do we determine income YTD with just pay stubs etc., because the return s will not be done till next Feb=Mar

The means test is not simple with one filer, I 'll have them do it next week I suppose they have software they can plug the #'s into

Other than the rental in FC there is little debt, don't think the 2 banks with PG's from a 7 year old debt will file a proof of claim they likely wrote it off.

Am I correct if no claim is filed there's no payment made to that creditor?

[LadyInTheRed]

I have the '12 & '13 returns, how do we determine income YTD with just pay stubs etc., because the return s will not be done till next Feb=Mar?

For the means test, you use the 6 months prior to the month in which you file. Use your pay stubs, not your tax returns.

The means test is not simple with one filer, I 'll have them do it next week I suppose they have software they can plug the #'s into

Keep in mind that not all attorneys will be willing to run a means test at a free consultation. But, if they simply say "you make too much income for a Chap 7," make sure they are analyzing income and expenses, not just basing their conclusion on the fact that your income is above median.

For the means test, you include all of your spouse's income and then later deduct whatever she does not contribute to the household. The trick is determining what you can consider not contributed to the household. Obvious things are any spousal or child support she may pay or payments on her student loans and separate debt, if any. Other things may get more tricky.

Am I correct if no claim is filed there's no payment made to that creditor?

Yes.

[gosolar]

No spousal or child support no student loans no direct expenses she pays.

What about stating expenses, I found a UST standard guide thing, we are over on most of those items like food we spend about $900, they state $580

Household expenses they state $1050, were about $1600

Is it just a matter of showing what things cost or what?