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JoeLawyer
JoeLawyer, Attorney
Category: Bankruptcy Law
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Experience:  Attorney in the practice of Bankruptcy Law since 1996
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Live in Ky. My husband and I have excellent credit however

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Live in Ky. My husband and I have excellent credit however I am being pretty much pushed in to bankruptcy by B.O.A. and Chase I was told by boa the only way my unsecured loan rate/payment would not go up is if I attach it to my mortgage. I am a homeowner (title only) husband has mortgage in his name only but we do own a piece of land worth 50 thousand jointly.Can I file by myself or would I have to file with husband? We have no problem making monthly payments chap 13 only if we can keep items listed above.Last attorney I talked to here in Georgetown said the trustees are taking mostly everything and they may not allow us to keep our house and Most likely sell our land. income 19,000 yr 18,000 support 70,000 unsecured debt
Submitted: 7 years ago.
Category: Bankruptcy Law
Expert:  JoeLawyer replied 7 years ago.
The court will not take any property as long as one files Chapter 13 and pays the creditors (through the Chapter 13 Plan) as much money as the creditors would have received had the unexempt assets been sold in Chapter 7. This is called the Best Interest of Creditors Test (BIT for short), pursuant to 11 U.S.C. 1325(a)(4), HERE.

So, if you have $150,000 in real estate (for example), and $75,000.00 is covered by a mortgage, and $10,000 is protected by your State's exemption law (again these are fictitious examples), then there would be $65,000 left over if the property were sold in Chapter 7 (after paying the mortgage and your exemption). So, if you filed Chapter 13 and paid the court $65,000 in the Chapter 13 Plan over 5 years (plus attorney fees, court fees, taxes, and/or any other secured items you wanted to pay) then the court would not sell the property because it would be getting its money instead from your payments. It's kind of like buying back your un-exempt equity (if that makes sense).

I would see the OTHER bankruptcy in town =)

Also, some states have an exemption called the Tenancy by the Entireties exemption, which protects real estate owned jointly by a married couple in an unlimited amount as long as only one spouse files bankruptcy. I don't know if that is the case in Kentucky, but I would ask your lawyer about it.

Good luck!

Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.
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Customer: replied 7 years ago.
Well say I took my name off the title of the land and there is no Tenancy by the Entreties exemption in Ky. I was planning to do it anyway when I paid off the land a few months ago would that be legal?
Expert:  JoeLawyer replied 7 years ago.
It is not technically illegal, but it doesn't normally gain anything and often makes it worse. The Bankruptcy Code requires you to list all transfers of assets for the past 2 years, and the Trustee can go back and "avoid" (i.e. cancel and reverse) any transfers for which you did not receive fair market value or if they think the transfer was an attempt to fraudulently protect assets.

Also, State law usually lets the trustee/creditors go back even further than 2 years.

So, transferring the property doesn't protect it and in fact might make it worse since if the property is not in your name when you file the bankruptcy case, you may not even be able to use your exemption to protect part of it.

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.

Edited by Joseph Ross on 11/4/2009 at 2:02 AM EST

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