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cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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I asked you a question yesterday and have another. My brother,

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I asked you a question yesterday and have another. My brother, the executor of my mother's will is considering filing for bankruptcy related to his own debt issues. My mother had a reverse mortgage (RM) on her paid-for home. Both the home and the RM are only in her name. She did not give up the deed to the house. We still have it. She passed May 30, 2012. The reverse mortgage has yet to be paid back because my brother had not filed with the county probate to be recognized as personal rep of the estate until last month and therefore, nothing was done toward the sale of the house (he lives there as I indicated in earlier email). Consequently, the creditor filed in February to foreclose and put the house up for auction in late June, 2013. One response given by a foreclosure attorney in an introductory meeting with my brother was to file for bankruptcy. My mother had debts totaling $12K other than the reverse mortgage. The RM debt is being clarified by petition but its probably $100k including attorney fees for filing for foreclosure. The house's appraisal value is about $145K. By the time we pay all debts and fees related to selling of the house, there will be very little left to distribute to three siblings as indicated in the will. If my brother files for bankruptcy, how does that impact the estate since he is the executor? Will the debt against the house be included or will it remain separate, outside the confines of a bankruptcy process? Is filing bankruptcy related to the estate even a possibility which my brother is wondering about?
Thank you for requesting me to assist you with your question. I am going to opt out answering this question and recommend your question be answered by a bankruptcy attorney. A lawyer that is familiar with bankruptcy law should be online shortly to assist you.
Category: Bankruptcy Law
Satisfied Customers: 2192
jbwarren1969 and 2 other Bankruptcy Law Specialists are ready to help you
Hi - my name is XXXXX XXXXX I'm a Bankruptcy attorney here to assist you.

Are you asking about a Bankruptcy filing for your brother personally (he cannot file as an executor) or for your mother's estate?

Is the intention to postpone the foreclosure sale? Or to discharge your mother's debts? Or something else?
Customer: replied 3 years ago.

The intention is to postpone the foreclosure sale. We are aware it is possible to file for an extention but aren't sure just what that would entail. My brother is considering filing for the extension now instead of waiting til near the 15 day prior-to-auction date for filing intent to cure. My brother was considering filing for bankruptcy personally prior to the development of his role as executor because of his own debt issues. Since he is an executor the question arose as to the impact on the estate, if any, should he file while he is the executor of an estate.
But I see from your response that he cannot file as an executor which implies an answer to the impact on the estate should he file personally. Just yesterday my brother revealed that my mother had debts beyond the reverse mortgage (credit card and hospital even though she was on medicaid). So we are wondering if there is a way to discharge any of her debts or if they must be paid through the estate until all are paid or the funds available through the estate run out before all debt is paid.

Thank you for your response.

If your brother files a Bankruptcy for himself, the foreclosure process will be affected by the automatic stay that goes into effect as soon as a Bankruptcy is filed. To continue with the foreclosure, the lender would have to file a costly motion requesting the Bankruptcy court for relief from the automatic stay, or they would have to wait until your brother's Bankruptcy case is discharged or closed (usually 4-6 months after the case is filed).
The reason the foreclosure would be affected is not because your brother is the executor, but because your brother has a personal interest in the property - which might have to be surrendered to the Bankruptcy court (his interest only).

However, your brother's duties as a executor would not be affected by his Bankruptcy filing.
Yes, your mother's debts would have to be paid from the home's equity (the difference between the home's current value, and the balance on the reverse mortgage).
It is also not possible for an estate to file a Bankruptcy. In other words, unfortunately, it would not be possible to discharge your mother's debts in a Bankruptcy.

Customer: replied 3 years ago.

Thank you for your response. It was very helpful and gave us the answers we need. I notice above this reply box it says "don't forget to press the green accept button." I don't specifically see a green accept button but I would rate your responses as timely and complete and would consider your service as excellent. I will go ahead and click on the rating button that seems to be connected to a response by J.Warren to my initial question of which he passed along because it was not about estate law. It will be "excellent" and applies to you as well as him. Thank you again. You will likely hear from me again. I am trying to help my brother who does not have a computer so he cannot use this service directly.



Customer: replied 3 years ago.

Reading again your answer, I do have another question. We understand that filing for foreclosure by the lender will result in the addition of the legal fees for doing so to the amount owed to the lender for the reverse mortgage. Would the costly fees to file a motion for relief also be passed along to the estate thus not discouraging the lender from filing the motion?

Thank you for the excellent rating.

The cost to file a Motion for Relief from the Automatic Stay would normally not be allowed to be passed to the estate, unless the lender had a good reason for filing the motion instead of waiting the 4-6 months until the Bankruptcy case is discharged. (A good reason would be the property will be worth significantly less if the lender has to wait.)

cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience: Bankruptcy professor.
cfortunato and 2 other Bankruptcy Law Specialists are ready to help you