Hi, thanks for your question. You should hire a lawyer for specific legal advice. No attorney client relationship is created here.
It usually is not possible to dismiss a chapter 7 case voluntarily if there are assets found in the case. What is the reason you are looking to dismiss and refile for?
Generally, a chapter 7 can be amended to fix issues with the first case - ie: adding debt, amending to correct asset list and exemptions, correcting budget etc.
If there are unexempt assets that the trustee may be looking to liquidate, they could object to a motion to voluntarily dismiss the case.
You can bring a motion to try, it doesn't cost anything, and it could be granted absent any objections.
The downside is that you'll have 2 bankruptcy cases on your credit for the next 10 years though.
Let me know why you are looking to dismiss, and that can give me more insight to clarify my answer.
If you are satisfied, click accept to close the question. if you have any further questions, please ask and I'll respond.
Thank you for your response. This deserves a tip!. However, How do I make a creditor prove their claim in a chapter 7 bankruptcy (B10 form) the mortgage company in specific. They are holder of the note with notice of default (UCC 3-302 said they cannot be a holder in due course if they have notice of default. Maryland has case law to support this as well.)The loan is also in a trust and the trust agreement states that it can not own loans after 2/2/2004 yet the assignment to the trust was done in 5/2/2012. they can not violate the trust agreement. My efforts are to make them prove their claim and I don't know how to require a proof of claim when the trustee said it is a no asset case. It is an asset case if there is no valid lien on my home. i don't mind selling the house and paying off who i really owe.
Chapter 7 doesn't give you much authority to request that. You have 3 choices with secured debt and chapter 7
a) reaffirm the debt -keeping the payments as is, staying current etc. lets the debt survive the bankruptcy
b) surrender the home - the loan is discharged in the bankruptcy chapter 7, and the lender will move to foreclose to transfer the title back to them
c) redeem - pay the fair market value for the home, eliminating the rest - in lump sum though. rare for real estate.
These allegations and defenses you have are for the foreclosure case, not the bankruptcy court
In the event that the trustee wanted to raise these claims with the lender, the trustee, if the loan is disqualified and discharged, then the home is free and clear and the trustee can sell the home to pay your unsecured creditors.
You'd be best off to attack the foreclosure in foreclosure court with these are your defenses
LEt me know if you have any questions. thanks
I have read plenty cases in MD where the lender is not deemed holder in due course. How are these pro se litigants getting to the place where the judges are ruling they are not the holder in due course? There must be a way to do it in bankruptcy court. I'm reading the BK cases in West Law. If I provide you the case, will that help you to find out how there are doing it? I've seen several proof of claims challenges Chapter 13. Is proof of claim only for Chapter 13?
There are plenty of trustees making lenders prove their claim. How do you obtain a good trustee that's willing to fight for the homeowner? (this is my final question). :-) So many times people are willng to let the lenders get away with fraud, steal the homes, and the borrower is left asking 'Just Answer.com'. It's crazy!! :-(
proof of claim challenges are in chapter 13, correct (unless there are assets to be paid out in chapter 7)
The trustee is assigned automatically
If the trustee attacks the loan, it's so he can invalidate it so he can SELL the home to pay your creditors. You can buy the home from the trustee, but it may be difficult to get a loan to pay off the trustee.
I understand the frustration
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).