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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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I declared bankruptcy 5/08. I bought a new house about five

Customer Question

I declared bankruptcy 5/08. I bought a new house about five years ago under my wife's name. My attorney never told me the consequences of a "fraudulent conveyance". Unbelievably, my attorney, for whatever reason ditched me. Me and my wife were served a few weeks ago. We need to respond by 10/16. I paid $2500 for representation and have none. My wife has spoke to several attorneys who are asking for a $10,000 retainer yet are completely vague what that includes, the likely scenarios and are telling her that litigation could mean $60,000 ( when the original debt was not that much more). 1) Can I get the lawsuit thrown out for legal malpractice then settle with each creditor individually? 2)If we were forced to sell would we see the difference in what the market would bare or would my house be confiscated with my family put out on the street? Almost immediately( I have a child in the school district that has special needs)? Is it an appropriate move to get a Homestead Exemption? Thanks,SW
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.
Hi swinoq,
1) Legal malpractice is not a valid basis for having a lawsuit dismissed. The malpractice is between you and your attorney, and there is no connection with the creditors. However, you can certainly approach the creditors with a settlement. If they agree to the settlement, they can discontinue the lawsuit.
2) If you were forced to sell the house, you would receive the difference between what the house is sold for and what the creditors get. But first, you would keep the value of your state homestead exemption, which the house is subject to.
This also means if the equity in your home is less than the state homestead exemption, the house could not be sold.
If the house does end up being sold, the new owner will have to commence eviction proceedings before you have to leave. This can take months or longer.

Customer: replied 5 years ago.
1) I have to answer the law suit brought by the trustee by NEXT WEEK 10/16! What do I do? What do I do first?

2) How do I get a Homestead Exemption?

Thanks,Customer
Expert:  cfortunato replied 5 years ago.
I didn't realize this action is in the Bankrupcy Court. Your question was in the general "Legal" section, and I gave you an answer based on a civil court proceeding. I am going to transfer this quesiton to the "Bankruptcy Law" section where it can get the attention of a "Bankruptcy Law" expert.

Edited by Christina Fortunato, Esq. on 10/5/2009 at 8:30 PM EST
Customer: replied 5 years ago.
I declared bankruptcy 5/08. I bought a new house about five years ago under my wife's name. My attorney never told me the consequences of a "fraudulent conveyance". Unbelievably, my attorney, for whatever reason ditched me! Me and my wife were served a few weeks ago. We need to respond by 10/16! I paid $2500 for representation and have none. My wife has spoke to several attorneys who are asking for a $10,000 retainer yet are completely vague what that includes, the likely scenarios and are telling her that litigation could mean $60,000 ( when the original debt was not that much more). 1) Can I get the lawsuit thrown out for legal malpractice then settle with each creditor individually? 2)If we were forced to sell would we see the difference in what the market would bare or would my house be confiscated with my family put out on the street? Almost immediately( I have a child in the school district that has special needs)? How do I get a Homestead Exemption? Thanks,SW

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