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Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31529
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Husband and I own 1) residence with appraised value that will

Customer Question

Husband and I own: 1) residence with appraised value that will cover mortgage on it and all unsecured debt we have.     2) We own another residence we rent to our daughter's family will little equity. 3) We own agricultural land with a pole barn that we are going to live on in our old motorhome. We live in Illinois a noncommunity property state all properties are owned in joint tenancy. If my husband only files bankruptcy, they can have residence number 1. Will they also be able to take my daughter's home and our land? How can I protect our land from the courts and in what time frame?
Submitted: 8 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 8 years ago.

If you and your husband owe any money on any of the homes or property, the lenders have the right to take 100% of each property as pledged via foreclosure if payments are stopped. Even if you file bankruptcy, the lenders can file a petition to retake the property and foreclose from the bankruptcy court.


If there is no money owed on these properties, and only one files bankruptcy, the bankruptcy trustee can seize your husband's 1/2 interest in each of these properties and sell that interest to generate money to pay his creditors.




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Customer: replied 8 years ago.

I'll relinquish my half of residence 1) which has a mortgage and enough equity to cover all debts.


Residence 2) has a mortgage that will continue to be paid.


Property 3) has no debt owed on it and THIS I do not want taken at all. We're close to retirement and have nothing left but this land. This property's deed is in joint tenancy in its entirety (and Illinois law meaning one owner can't sell without the other)...can 1/2 still be seized? IF so, how do I put this property in trust for our heirs to keep it?

Expert:  Roger replied 8 years ago.

1. If you're willing to give up the property, this should be no problem.


2. You can re-affirm the debt on this residence through the bankruptcy.


3. Joint tenancy means that you own the property together, and that whomever lives the longst ends up with 100% the property - it does not go into the person's estate. This does not isolate it from creditors or the bankruptcy trustee. The property can be divided, and his 1/2 sold. At this point, and transaction done in an attempt to protect the property would be futile as the trustee can have the transaction reversed under the fraudulent transfer act.