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Ask Terry L. Your Own Question

Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2506
Experience:  Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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I am in the process of filing a bankruptcy - Chapter 7 and

Resolved Question:

I am in the process of filing a bankruptcy - Chapter 7 and trying to get a dismissal of this filing so that I can file again. Is this possible?
Submitted: 11 months ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 11 months ago.

Terry L. :

Hi, thanks for your question. You should hire a lawyer for specific legal advice. No attorney client relationship is created here.

Terry L. :

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?

Terry L. :

Hi

Terry L. :

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.

Terry L. :

If there are unexempt assets that the trustee may be looking to liquidate, they could object to a motion to voluntarily dismiss the case.

Terry L. :

You can bring a motion to try, it doesn't cost anything, and it could be granted absent any objections.

Terry L. :

The downside is that you'll have 2 bankruptcy cases on your credit for the next 10 years though.

Terry L. :

Let me know why you are looking to dismiss, and that can give me more insight to clarify my answer.

Terry L. :

If you are satisfied, click accept to close the question. if you have any further questions, please ask and I'll respond.

Terry L. :

THanks

Terry L. :

Good luck.Terry

Customer:

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.


 


 

Terry L. :

Chapter 7 doesn't give you much authority to request that. You have 3 choices with secured debt and chapter 7

Terry L. :

a) reaffirm the debt -keeping the payments as is, staying current etc. lets the debt survive the bankruptcy

Terry L. :

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

Terry L. :

c) redeem - pay the fair market value for the home, eliminating the rest - in lump sum though. rare for real estate.

Terry L. :

These allegations and defenses you have are for the foreclosure case, not the bankruptcy court

Terry L. :

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.

Terry L. :

You'd be best off to attack the foreclosure in foreclosure court with these are your defenses

Terry L. :

LEt me know if you have any questions. thanks

Terry L. :

Terry

Customer:

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?

Customer:

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!! :-(

Terry L. :

proof of claim challenges are in chapter 13, correct (unless there are assets to be paid out in chapter 7)

Terry L. :

The trustee is assigned automatically

Terry L. :

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.

Terry L. :

I understand the frustration

Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2506
Experience: Better Business Bur 15yrs bankruptcy experience. Chicago Bar
Terry L. and 2 other Bankruptcy Law Specialists are ready to help you

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