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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33559
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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Customer- Will you be available for question re Bankruptcy

Resolved Question:

Customer- Will you be available for question re Bankruptcy over the weekend. I had to stop for awhile due to an accident and not able to be on the computer again.

I need clarification on my question but I cannot communitcate right now.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 2 years ago.
I'll be here off and on. Post the questions, and eventually I will get to you.

Thanks for your continued confidence.
Customer: replied 2 years ago.
Customer-

1. Is there a time limit for a trustee to either pursue or abandon a pending case? I had open pending cases when I was converted from Chapter 11 to Chapter 7.. The opposition recruited by own ex attorneys )together) opposed my loan to pay them. they have been receiving interest on their fees for three years!. If interest accures from "the date of the filing of the petition" does this mean AFTER the Judge OK's the attorney fees?

2. What is the case law for a debtor over 65 years of age being able to use the Homestead exemption. The trustee's attorney wants to surcharge my estate & also filed a bogu adversary case against me to hold me hostage in Chpater 7. I had several properties & owed approximately 350K of debt. They have taken it all and now want to take my only residence. There would be approx. 22,500.00 left from a sale. This does not count all of the fees the trustee's attorney has charged trying to sell my home and owm homestead exemption. One of the emails you sent me - I can't find - but it gave the authority for the 175K exemption. I was not 65 when I filed Chapter 11 but was converted to Chapter 7 in 2008 and was 65 at that time.

I will not rush back to get your answers right away. Tonight would be OK.

Expert:  socrateaser replied 2 years ago.

1. Is there a time limit for a trustee to either pursue or abandon a pending case?


A: The Chapter 7 trustee must prepare and file a final report and account of administration of the estate; and must close the estate as expeditiously as compatible with the best interests of parties in interest. 11 USCA § 704(a)(1),(9); FRBP 5009; and see In re Riverside-Linden Investment Co. (9th Cir. 1991) 925 F.2d 320, 322. There is no precise timeline, however, if the debtor believes that the trustee is being dilitory, then the debtor can bring a motion for an order to remove and replace the trustee. Bankr. Code 324(a).

 

I had open pending cases when I was converted from Chapter 11 to Chapter 7.. The opposition recruited by own ex attorneys )together) opposed my loan to pay them. they have been receiving interest on their fees for three years!. If interest accures from "the date of the filing of the petition" does this mean AFTER the Judge OK's the attorney fees?

 

A: Interest does not accrue on professionals' fees and costs until such fees and costs are awarded by the court. In re Riverside-Linden Investment Co. (9th Cir. 1991) 945 F.2d 320, 324.

 

2. What is the case law for a debtor over 65 years of age being able to use the Homestead exemption. The trustee's attorney wants to surcharge my estate & also filed a bogu adversary case against me to hold me hostage in Chpater 7. I had several properties & owed approximately 350K of debt. They have taken it all and now want to take my only residence. There would be approx. 22,500.00 left from a sale. This does not count all of the fees the trustee's attorney has charged trying to sell my home and owm homestead exemption. One of the emails you sent me - I can't find - but it gave the authority for the 175K exemption. I was not 65 when I filed Chapter 11 but was converted to Chapter 7 in 2008 and was 65 at that time.

 

A: I will repeat what I wrote in the answer to which you refer:

 

If I understand the issue, the trustee wants to sell your property. The only reason why this would occur would be if the property has equity value in excess of the California homestead exemption applicable to your circumstances (Code Civ. Pro. 704.030). The fact that you may be renting a portion of the property is irrelevant. See e.g., In re Hsia (ND CA 1995) 183 B.R. 201, 204; In re Donaldson (BC ND CA 1993) 156 B.R. 51, 52; In re Moffat (BC CD CA 1989) 107 B.R. 255, 259-260.

 

The only thing that matters is whether or not there is equity value in the property which exceeds the homestead exemption. See, e.g., In re Graziadei (9th Cir. 1994) 32 F.3d 1408, 1410, fn. 2.

 

Note: If you do not have access to the above case law decisions (can't find an internet link), let me know and I'll post the text of each (it will be lengthy).

 

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


 

Customer: replied 2 years ago.

I tried to remove the trustee a few years ago for trying to give a realtor additional commission for which (I believe) would have been a kick back to the trustee. I opposed the trustee's application to give a new higher commission to the realtor. I won. the Judge said they figured out in chambers that the extra 2% would have given the realtor between 200 to 450K depending on what the property sold for. I made a motion to remove trustee but I had no case law or authority or an attorney. the attorneys had used up my equity over a period of years in Chapter 11 until they could force me into Chapter 7.

Homestead exemption - first I have no idea how to find the cases you have listed. I cannot find the email where you gave me the information. You later stated the exemption was 150K. According to my calculations - there would be $22,500.00 left after a sale and the deduction of my 175K exemption. I need the authority for this specific situation. Also - Can I offer to buy out the $22,500.00 by getting a partner on my property?

Is the homestead exemption of 175K for over 65 years of age or 150? Do I have to be 65 years of age at the time of filing Chapter 11 or when I was forced into Chapter 7 to be able to have the 175K.. I will not be checking in tonight but will do so tomorrow AM.

 

 

Expert:  socrateaser replied 2 years ago.

Homestead exemption - first I have no idea how to find the cases you have listed. I cannot find the email where you gave me the information.


A: You don't need the previous email, because I just gave you the case citations again. Consider getting a premium subscription to www.versuslaw.com for a month. Then you can read/download the cases at your leisure.


You later stated the exemption was 150K. According to my calculations - there would be $22,500.00 left after a sale and the deduction of my 175K exemption. I need the authority for this specific situation.


A: Crap. I just realized there was a typo in my code citation. It's supposed to be: Code Civ. Proc. § 704.730(a)(3)(A). Despite the new code section showing the exemption as $175,000, the code provision at the of your bankruptcy filing stated $150,000 (amended by Stats 2003 ch 64 § 1 (SB 804)).


Also - Can I offer to buy out the $22,500.00 by getting a partner on my property?

 

A: Yes. Everything is negotiable as long as the trustee believes it to be in the creditors' best interests.


Is the homestead exemption of 175K for over 65 years of age or 150?


A: Answered above.


Do I have to be 65 years of age at the time of filing Chapter 11 or when I was forced into Chapter 7 to be able to have the 175K.

 

A: You would have had to have been 65 as of the date of filing of the original bankruptcy petition (Chapter 11).

 

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


 

Customer: replied 2 years ago.

I am totally confused. This is all over my head. I had attorneys I paid before I was forced into Chapter 7. I have little time on these issues since I have a deadline of Tuesday this week. If I subscribe to a source - I would not know how to find what you are telling me. I have never done this. I need direction since I have never known any authority or case law to back up my filings.

I have the same questions and don't understand your answers. I need your old email that explained the homestead exemption and how it applies. Your email gave more than just numbers that I do not understand - it explained how the case law applied.

I don't know how to intersperce my question in between your answers. The computer won't let me do this.

Which was the mistake you mentioned re exemption? I have already copied some citation for my 175K exemption. I think I need to start again so I can be clear on what you are stating.

As for the trustee's decision on a sale - the good of the creditors --there are no creditors except the trustee's attorney and my deceased ex husband's estate. All creditors were paid years ago. the trustee's attorney is running the show & the trustee also wants to have an excuse to earn another commission on another sale.

Net Proceeds from a sale: I have deducted the 1st and 2nd loan on my home, the real estate commission, capitol gains and the homestead exemption leaving $22,500.00.

 

The trustee gets a percentage of a commission. I think this would wipe out any need for a sale except to give the trustee & his attorney more money.

 

Does the trustee get a percentage from the asking price or from the net proceeds from a sale?

I need any case law for the Judge that the trustee is only creating work and debt by selling my home. Or case law re the trustee going beyound his duties to create funds for himself.

Expert:  socrateaser replied 2 years ago.
This link will take you to a list of every Q&A you have had on justanswer.com. Review them, by clicking on each, and then once you have refreshed your recollection, feel free to ask me related questions. I don't want you to be confused.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 2 years ago.
Customer- I REQUESTEDCustomer/p>

I have clicked "I agree" several times to review old questions & answers.

Would you spell out what the statue states re a trustee selling property of hte BK estate if there is no profit from a sale? I don't know how to get to those codes you have sent to me. I need the words that apply to me.

What does the code say exactly that would apply to selling property when there is little or no net porfit after the homestead exemption of 175K. I cannot just state numbers and not know what the code says that pertains to my situation.

The trustee's attorney has told the Judge not to insert himself into the trustee's job! Surely the Judge has a say on what the trustee does - some authority or case law where the Judge can step in and say there is wrong doing by the trustee - is their a code I can refer to? What are the words that go with the code.

I am trying to add to my objection to a sale the fact that the trustee & his attorney have spent several thousand of dollars filing false information with the court in their attempt to sell my home giving false numbers of a net profit with nothing left for creditor. The trustee's attorney has already charged thousands in fees for some months on his false court filings while ignoring the homestead exemption.

I realize there are multiple questions. I will provide.

Expert:  socrateaser replied 2 years ago.

Would you spell out what the statue states re a trustee selling property of the BK estate if there is no profit from a sale?


A: If the debtor's homestead is exempt in a specified sum, only the right to receive that precise amount ultimately passes out of the estate. The asset itself and any other proceeds from its disposition remain part of the estate. In re Reed (9th Cir. 1991) 940 F.2d 1317, 1321; In re Alsberg (9th Cir. 1995) 68 F.3d 312, 314-315.

 

In theory, the above status of a homestead property would permit the trustee to sell the property for purely vindictive purposes -- even though the bankruptcy estate would receive nothing for the effort. However, to do so would be such a frivolous action on the trustee's part that it would be subject to a Fed. R. Bankr.. Proc. 9011(b) motion for sanctions.

In short, it could cost the trustee his/her trustee appointment.


What does the code say exactly that would apply to selling property when there is little or no net profit after the homestead exemption of 175K. I cannot just state numbers and not know what the code says that pertains to my situation.

 

A: You would have to allege that the trustee is acting out of vindictiveness, not in the interest of the bankruptcy estate. Ultimately, to prevail, you would want to provide an appraiser expert witness who could testify that the likely net proceeds would be effectively nil. Otherwise, if there is credible evidence to suggest that the trustee can obtain proceeds for creditors from the sale, then the court may order the sale.

 

Note that the trustee may have additional costs. Many times, the trustee hires outside counsel to bring various motions, rather than the trustee doing so him/herself. That counsel's fees to the bankruptcy estate are substantial. I would imagine every motion pleading runs around $2,500 -- which the lawyer receives if the property sells and returns sufficient proceeds to the estate. Also, there are sales commissions, auctioneer fees, etc., so it's not just a black and white number. You can make all of those arguments in an objection to the sale.

 

The trustee's attorney has told the Judge not to insert himself into the trustee's job! Surely the Judge has a say on what the trustee does - some authority or case law where the Judge can step in and say there is wrong doing by the trustee - is their a code I can refer to?

 

A: That's weird. Either the judge is a wimp, or the trustee is mentally ill. If I were the judge, I would hold the trustee in contempt for the temerity to suggest that the judge does not control the proceedings.


I am trying to add to my objection to a sale the fact that the trustee & his attorney have spent several thousand of dollars filing false information with the court in their attempt to sell my home giving false numbers of a net profit with nothing left for creditor. The trustee's attorney has already charged thousands in fees for some months on his false court filings while ignoring the homestead exemption.

 

A: You don't need code sections to suggest that the trustee's motives seem to be more about punishing the debtor than about paying the creditor claims. You just add up the costs and subtract them from the fair market value of the asset. The numbers should speak for themselves, especially if you add something like, "Since the likely outcome of the trustee's forced sale is likely to be a negative outcome for the bankruptcy estate, the only reasonable inference that can be drawn is that the trustee has a wrongful motive -- something other than the interest of the creditors."

 

That's how I would characterize the circumstances. Frankly, when I see some schmuck trying to show his/her ass in court, I immediately call BS. Most of the time, bullies back down as soon as they are suitably embarrassed.

 

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


 

socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33559
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.
Did you get an accept with a bonus or not? I had to go back after clicking tip so not sure it went through
Expert:  socrateaser replied 2 years ago.
I see an Accept -- no bonus, though.
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33559
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.

I confirmed and bonus of 12.00.

Thanks.

I sent more questions.

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