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WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 16113
Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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I am in a critical situation that I will try to briefly explain.

Customer Question

I am in a critical situation that I will try to briefly explain. I filed for Chapter 13 bankruptcy protection Dec. 2011 and that ceased the pending auction of my home at the time. Well it looks like my Case is now formally approved (8/1/2012). In December I resumed making mortgage payments and also started paying the monthly estimated amount for the debt accrued previously. Because of my income I was told that I could not file Chapter 7 and that Chapter 13 was my only option. Well, I got behind in my mortgage payments again currently 60 days and I noticed that my property is listed in "Pre-foreclosure" on foreclosure.com with a reference to a "Notice of Trustee Sale" on my house which I believe is schedule for August 15th. I haven't received anything in the mail and my current BK attorney hasn't received anything about this Sale and I am concerned as I have been trying everything to keep the house. On top of that I have received an IRS tax audit that it looks like I owe ($15k). I need help from someone that understands all of this and can help guide me through all of this.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 2 years ago.

WALLSTREETESQ :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarificati ON

WALLSTREETESQ :

I will try to help you the best I can.

WALLSTREETESQ :

If you filed a chapter 13, the automatic stay would prevent any foreclosure from happening,

WALLSTREETESQ :

however, if you missed 2 months of mortgage payments, then the lender may have filed a motion to lift the automatic stay in bankruptcy court, and if given permission they can foreclose on you.

WALLSTREETESQ :

What you have to find out is if they were given permission to do this, and if the trustee filed a motion to dismiss your case as well, that would be done if you missed plan payments.

WALLSTREETESQ :

What you may have to do is contact the lender directly and see if their is a sale going on, and why if you filed a bankruptcy, your attorney should do this, and find out for you.

WALLSTREETESQ :

A good option for you may be to withdraw your current chapter 13, and file a new one before the sale date and start over, this way you can stop the sale and add the 60 days arrears into the payment plan.

WALLSTREETESQ :

Also, you can add the tax debt or try to have it discharged.

WALLSTREETESQ :

If the income tax debt meets all five of these rules, then the tax debt is dischargeable in Chapter 7 and Chapter 13 bankruptcy petitions.

  1. The due date for filing a tax return is at least three years ago.
  2. The tax return was filed at least two years ago.
  3. The tax assessment is at least 240 days old.
  4. The tax return was not fraudulent.
  5. The taxpayer is not guilty of tax evasion.

Return Due At Least Three Years Ago

The tax debt must be related to a tax return that was due at least three years before the taxpayer files for bankruptcy. The due date includes any extensions.

Return Filed At Least Two Years Ago

The tax debt must be related to a tax return that was filed at least two years before the taxpayer files for bankruptcy. The time is measured from the date the taxpayer actually filed the return.

Tax Assessment At Least 240 Days Old

The IRS must assess the tax at least 240 days before the taxpayer files for bankruptcy. The IRS assessment may arise from a self-reported balance due, an IRS final determination in an audit, or an IRS proposed assessment which has become final.

Tax Return was Not Fraudulent

The tax return cannot be fraudulent or frivolous.

Taxpayer Not Guilty of Tax Evasion

The taxpayer cannot be guilty of any intentional act of evading the tax laws.

Some Tax Debts Not Dischargeable

Tax debts that arise from unfiled tax returns are not dischargeable. The IRS routinely assesses tax on unfiled returns. These tax liabilities cannot be discharged unless the taxpayer files a tax return for the year in question.

Expert:  WALLSTREETESQ replied 2 years ago.
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Expert:  WALLSTREETESQ replied 2 years ago.
will try to help you the best I can.
11:04 PM
If you filed a chapter 13, the automatic stay would prevent any foreclosure from happening,
11:05 PM
Customer has entered this chat!
WALLSTREETESQ says:
11:05 PM
however, if you missed 2 months of mortgage payments, then the lender may have filed a motion to lift the automatic stay in bankruptcy court, and if given permission they can foreclose on you.
11:06 PM
What you have to find out is if they were given permission to do this, and if the trustee filed a motion to dismiss your case as well, that would be done if you missed plan payments.
11:07 PM
What you may have to do is contact the lender directly and see if their is a sale going on, and why if you filed a bankruptcy, your attorney should do this, and find out for you.
11:07 PM
A good option for you may be to withdraw your current chapter 13, and file a new one before the sale date and start over, this way you can stop the sale and add the 60 days arrears into the payment plan.
11:09 PM
Also, you can add the tax debt or try to have it discharged.
11:09 PM
If the income tax debt meets all five of these rules, then the tax debt is dischargeable in Chapter 7 and Chapter 13 bankruptcy petitions.
The due date for filing a tax return is at least three years ago.
The tax return was filed at least two years ago.
The tax assessment is at least 240 days old.
The tax return was not fraudulent.
The taxpayer is not guilty of tax evasion.

Return Due At Least Three Years Ago

The tax debt must be related to a tax return that was due at least three years before the taxpayer files for bankruptcy. The due date includes any extensions.

Return Filed At Least Two Years Ago

The tax debt must be related to a tax return that was filed at least two years before the taxpayer files for bankruptcy. The time is measured from the date the taxpayer actually filed the return.

Tax Assessment At Least 240 Days Old

The IRS must assess the tax at least 240 days before the taxpayer files for bankruptcy. The IRS assessment may arise from a self-reported balance due, an IRS final determination in an audit, or an IRS proposed assessment which has become final.

Tax Return was Not Fraudulent

The tax return cannot be fraudulent or frivolous.

Taxpayer Not Guilty of Tax Evasion

The taxpayer cannot be guilty of any intentional act of evading the tax laws.

Some Tax Debts Not Dischargeable

Tax debts that arise from unfiled tax returns are not dischargeable. The IRS routinely assesses tax on unfiled returns. These tax liabilities cannot be discharged unless the taxpayer files a tax return for the year in question.

11:09 PM
http://taxes.about.com/od/bankruptcy/qt/bankruptcy_tax.htm

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