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Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2540
Experience:  Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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A law firm is filing a lawsuit with the intention of selling

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A law firm is filing a lawsuit with the intention of selling my mother's house due to the debt of my brother who has filed for bankruptcy. My brother neither lives in my mother's property nor does he pay mortgage in the property but is on the deed of my mother's property. The law firm is representing the trustee of the bankruptcy estate of my brother and his wife. The firm states its primary function is to collect the property of my brother's estate and then to distribute the property to the creditors. What recourse does my mother have and what field of law does she need to be represented by? Thank You
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 3 years ago.

Terry L. :

Hi and thank you for your question. In the future, you can request me to answer any further questions.

Terry L. :

Since your brother is on the deed, he has an interest in the home. Since he doesn't live there, he does not have a homestead exemption to protect the equity therein.

Terry L. :

If your mom is on the deed, she should have the option to refinance the home, and pay 1/2 of the equity to the trustee (or just pay a cash settlement too)

Terry L. :

it sounds as if there is equity. Your mom would receive her share of the equity if she does not refinance it, she'll always be entitled to her equitable interest.

Terry L. :

This is a bankruptcy matter. She can hire an attorney to negotiate with the trustee.

Terry L. :

They can review the equity at issue, and see what kind of deal they can strike with the trustee.

Terry L. :

If mom can refinance, it would save the trustee time, effort and money to hire brokers to sell the home.

Terry L. :

So, the trustee may consider an offer

Terry L. :

While an attorney is not needed, it sometimes is easier to let them handle the specifics of the matter.

Terry L. :

If you have any other questions, let me know, thanks for your question, good luck

Customer:

Terry L., Thanks for your assistance. On the deed of the property there are four people on it - my father, who is deceased, my mother, my younger brother and an older brother who filed for bankruptcy. My mother has no intention of selling her property and may not even consider refinancing. Why is it that my mom's interests are being sued and not force the sale of any of my brother's property/assets to satisfy his creditors?

Terry L. :

As to why the trustee only is pursuing mom? I don't know. The trustee can pursue the debtors share - which is probably 1/4th. Since dad passed, I assume his share was transferred to Mom. Therefore mom has 1/2 interest, your 1 brother who did not file has 1/4 and your brother's bankruptcy estate now owns the other 1/4. Unfortunately, saying NO is not the solution, and won't be effective in this situation. Refinancing or coming up with 1/4 of the value from other (after deducting costs of sale and mortgage payoffs) is the best option to keep the home. The other owners are basically buying out his interest to prevent the property from being sold.

Terry L. :

That is the most likely outcome in situations like this.

Terry L. :

So, I suggest meeting with a local attorney who can help broker a deal to prevent the home from being sold.

Terry L. :

If sold, the owners will share in the proceeds, based on their ownership interest.

Terry L. :

I know, it's not the solution you wanted to hear, but this is what will happen otherwise. Sorry.

Customer:

Terry, I obviously gave an authorization to chage my debit card for your legal advice but I need to know if I were only charged a one-time fee that I initially agreed upon or am I being charged minute by minute or per hour as I'm consulting with you. As hiring a lawyer for my mother would most likely be, you then suggest a bankruptcy lawyer for her? Since you're a lawyer outside of California, your legal advice regarding my mother's situation pertains for all states, including California?

Customer:

When we can prove that my brother has never paid mortgage on my mother's property, showing he really had no interest but his named placed on the deed just to protect my parents property, would this rid the firm's intent to sell my mom's property?

Terry L. :

it is a 1 time fee. if you have any questions about the charges, please contact customer service, as the experts have nothing to do with billing matters on this site. Thanks.

Terry L. :

As for the information I provided, bankruptcy is federal law, and the rules apply in all states. The fact that his name is XXXXX XXXXX title is the issue, you can argue it was only for protection, but that doesn't matter on a bankruptcy liquidation.

Terry L. :

It's a good question to ask about whether he paid on the mortgage, but in reality, with jointly owned property, it will not matter who makes the payment, or even who lives there. it's the ownership interest that is the concern.

Terry L. :

it is his equity that the court is pursuing for the benefits of his creditors.

Terry L. :

Bring a copy of the deed to the lawyer you hire to defend the matter with the trustee. You can try to argue your points above in working out a settlement, but it is not a sound legal argument to use as a defense unfortunately.

Terry L. :

Thanks and good luck.

Customer:

Thanks for your assistance

Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2540
Experience: Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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