Interspousal transfer of deed

[BKinMaine]

Hello,

I am in year 2 of my CH 13 5 year plan. I filed myself (without my wife.. She shared none of my debt). We own a home but during the BK filingprocess,we realized that she was not put on the deed when we bought it 8 years ago. I ended up getting the mortgage in my name only but I was under the impression the deed was put in both our names but it was not.

I was told I can use an interspousal transfer to add her to the deed which would make it so there were no tax consequences. I have a BK attorney but I always get vague answers from him. Still waiting for more info but that may be a while.

I just thought I would ask here if anyone knows about this. My attorney did say he "thought" it would require court approval and to file a motion but Idont know for sure..

Thanks

[justbroke]

You should seek court approval since you're not allowed to transfer real property during the pendancy of a Chapter 13. It should be a simple Motion that doesn't require a hearing... Motion to Transfer Property Between Spouses or somesuch. The attorney will also verify that it doesn't cause any other issues with the Chapter 13. It's not the type of request that you see every day.

[BKinMaine]

You should seek court approval since you're not allowed to transfer real property during the pendancy of a Chapter 13. It should be a simple Motion that doesn't require a hearing... Motion to Transfer Property Between Spouses or somesuch. The attorney will also verify that it doesn't cause any other issues with the Chapter 13. It's not the type of request that you see every day.

Thanks!

So.. I asked my attorney and after waiting a week and asking him again, all I got was this reply:

"I think we need court approval. You cannot transfer an asset without Court approval. It requires a motion, notice to all creditors and about 45-60 days."

My response:
"Sorry, I really dont know what a motion is or what it involves."

You said you “think” we need court approval. Is there any way to find out for sure?

If we do need it, can we do it?"

His Reply:
"Okay. We need court approval. You cannot transfer an asset without Court approval."

So, I'd really like to find out more about what is involved with filing a motion and how to do it properly but I'm not finding much online. My attorney is obviously little help but I'm stuck with him so I'll have to educate myself.

Anyone have any suggestions on leaning more about filing a motion for something like this? When I search the interwebs for transfer of property to spouse in BK, all I get are results for doing it before filing.. Not my situation. How can I learn more on my own?

[justbroke]

If you are represented, then you cannot file the motion on your own.

A motion is just a pleading asking the court to do something. It has a particular format and "captioning" to that pleadings are consistent and allows room for clerk stamps, and clearly identifies the case and issue. You will not find example of a motion to transfer property to spouse, or a motion to allow debtor to amend deed, because these are exceptions.

Also, most motions require service upon the creditors, the Trustee, and the United States Trustee. If you're an attorney, much of the service requirements can be met through using CM/ECF (the attorney/clerk version of PACER which allows them to upload documents and do other things on the docket). If you did this yourself, you'd need to not only send a copy of the Motion, correctly "captioned," to all of the creditors, and Trustees, but you also have to file a certificate of service that you did so under penalty of law. This is why we hire attorneys.

If you had as many creditors as I had in 2008, that could be 60 mailings or more. (I learned later that as a Pro Se, I could get the Clerk's office to send it via CM/ECF for me.)

The bottom line is that you can't do this on your own when you are represented. Your attorney will likely charge you a fee ($250 if there is no hearing is typical) for doing this because it's extra work. It would likely not necessitate a hearing.

[womanonfire]

Also, most motions require service upon the creditors, the Trustee, and the United States Trustee. If you're an attorney, much of the service requirements can be met through using CM/ECF (the attorney/clerk version of PACER which allows them to upload documents and do other things on the docket). If you did this yourself, you'd need to not only send a copy of the Motion, correctly "captioned," to all of the creditors, and Trustees, but you also have to file a certificate of service that you did so under penalty of law. This is why we hire attorneys.

If you had as many creditors as I had in 2008, that could be 60 mailings or more. (I learned later that as a Pro Se, I could get the Clerk's office to send it via CM/ECF for me.)

You know, this makes me wonder, can a pro se debtor deduct his expenses as administrative fees? Because these mailings can get expensive.

[justbroke]

You know, this makes me wonder, can a pro se debtor deduct his expenses as administrative fees? Because these mailings can get expensive.

I found a way, except for FRBP 7004/9014 motions and adversary proceedings, to have the clerk send "some" of the major notices. Here's what I learned:

• If you are doing a motion which requires service on only one creditor, serve that creditor. My Trustee asked me not to serve them as thy are noticed on everything (exception being if the Trustee is actually the one upon which the motion should be served).
• If you are doing something which would go to the entire creditor's list, have the Clerk's office do it! My clerk's office was fantastic. I had 60 creditors and that's a pain mailing USPS "flats" as they're a minimum of $1 in postage and the envelopes cost money too. This came in handy for a Chapter 13 where I had 4 revisions to my Chapter 13 plan before confirmation. Typically the debtor would serve these on EVERY creditor. I only had to serve it on the Trustee and the Clerk's office used the BNC (Bankruptcy Noticing Center) to send out the other notices. Most of the creditors received the service via email (as they were registered in CM/ECF)
• Printing double sided and using lighter stock paper! I learned this from the BNC. They send the lightest paper I've ever seen, and print on both sides.
• Some districts are starting to allow debtors to actually file papers using CM/ECF Nextgen. The nice thing about CM/ECF is that if a creditor has electronic noticing enabled you also save a bunch of paper when service is upon "all" creditors.

Now, having wrote that, the only time I expensed mailings and CM/ECF (PACER) charges was when I was actually in a contested matter and was the movant. I included that expense in my demand for judgement and use those amounts in my settlements as well.

[womanonfire]

Awesome post! Thank you!