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WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 17213
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 a defendant in a foreclosure case for which summary judgment

This answer was rated:

I am a defendant in a foreclosure case for which summary judgment was just granted. If I file for Chapter 13 now, how would that affect the foreclosure case, if at all? I hope it would not.

WALLSTREETESQ :

this is a common issues,

WALLSTREETESQ :

if you file a chapter 13 bankruptcy, it would stop the Civil Court action,

WALLSTREETESQ :

and the lawsuit cannot go forward,

WALLSTREETESQ :

the case will not be able to proceed until your chapter 13 case is dismissed, which can take several months to years,

WALLSTREETESQ :

A chapter 13 filing will stop a foreclosure suit at anytime, except if filed after a sale,

Customer:

Ok, so I should wait until the foreclosure case is completely finished. I own the house in foreclosure with an ex-boyfriend who is an attorney who has a serious gambling problem. I need to be off the title.

WALLSTREETESQ :

you can wait to file,

WALLSTREETESQ :

as long as you file before a sale date,

WALLSTREETESQ :

you can stop the foreclosure and live in the home longer,

Customer:

I don't live there. He does.

Customer:

Psychologically & emotionally, I need the foreclosure case to end. Until it does, we're collecting rent. I had to file a TRO to cause him to want to split the rent with me. Messy situation.

Customer:

It's a 3-family.

WALLSTREETESQ :

if you wait to file the foreclosure suit will end in an eventual sale date, and then a sale,

WALLSTREETESQ :

If you wish you can file a chapter 13 now, and surrender your rights to the house

WALLSTREETESQ :

and the foreclosure lawsuit can continue,

WALLSTREETESQ :

you would discharge any debt you owe from the mortgage

Customer:

Yes, that's all that can happen now. We had a private sale pending, and the IRS finally caught up with him. They filed a federal tax lien on him for $116,454.

Customer:

Ah, that's interesting.

WALLSTREETESQ :

if you need to discharge your personal debts, a chapter 13 now should be considered, just surrender the property,

WALLSTREETESQ :

you have that option in bankruptcy

Customer:

I don't need to eliminate any personal debts or settle them for less than owed. Just need a payment plan. I owe the IRS also. Want to take care of it properly. $35,000 in unsecured debt. Other secured debt.

Customer:

Is it possible for you to call me? I will pay you.

WALLSTREETESQ :

a chapter 13 would help you with that,

WALLSTREETESQ :

no, we cannot take calls,

Customer:

Exactly

WALLSTREETESQ :

If you do not want the house, file the chapter 13 now and start the process,

Customer:

After the foreclosure completes, I will have my home and one other real estate parcel I want to keep.

Customer:

That other real estate parcel has rental units.

Customer:

Hope I still qualify for Ch. 13.

WALLSTREETESQ :

you would have to list those assets in your bankruptcy,

Customer:

Ok

WALLSTREETESQ :

and if they have significant equity they can be taken

Customer:

No real equity there. If I were to sell it, I would owe more in deferred capital gains than there is equity.

WALLSTREETESQ :

if you have limited or no equity, they would not be taken in a chapter 13

Customer:

Ok, thank you. Sounds like filing Ch. 13 now would "muddy the waters" of the foreclosure. Maybe working out a payment plan with the IRS is the best thing to do. My unsecured debt is in debt mgmt.

WALLSTREETESQ :

Try working out a payment plan, however a chapter 13 would help you as you can get a 60 month payment plan for the debts, and pay a small portion of the unsecured debts,

Customer:

I make $107,000 a year.

WALLSTREETESQ :

you can still do a 5 year payment plan,

Customer:

Not sure what my withholding to the IRS should be. Hope it's right now, going forward. Had to short-sell a house in CA. That's what most of the IRS debt is from.

WALLSTREETESQ :

in bankruptcy

Customer:

Yes, that's what an Indiana attorney mentioned. It could still be the best option. I'm waiting to hear from him on a few other questions. The foreclosure is in Ohio.

Customer:

I have an Ohio attorney also.

Customer:

Where are you? :-)

WALLSTREETESQ :

I am in NYC,

WALLSTREETESQ :

I handle corporate bankruptcy and individual bankruptcy matters

WALLSTREETESQ :

bankruptcy is Federal law, so it is basically the same in all States

Customer:

Ok, great. How much equity can I have in the other real estate, such that they won't take it? There hasn't been an appraisal done for awhile. I'm guessing there's about $50,000 when you just look at fair market value vs. what's owed. But again, deferred capital gains would have to be paid if it were sold, so, conceptually, there's no real equity.

WALLSTREETESQ :

Ohio Revised Code.


Homestead


$132,900 of value in one parcel of real or personal property (home, manufactured, or mobile home) that you or your dependent uses as a residence - 2329.66(A)(1)(a)


To learn more, see The Ohio Homestead Exemption.


Personal Property


$450 of cash on hand or deposit - 2329.66(A)(3)


$3,675 of value in one motor vehicle – 2329.66(A)(2) (To learn more, see The Ohio Motor Vehicle Exemption in Bankruptcy.)


$12,250 of value in household goods, such as furnishings and appliances, up to a value of $575 per individual item – 2329.66(A)(4)(a)


$1,550 of value in jewelry – 2329.66(A)(4)(b)


Interest in one burial lot – 2329.66(A)(8)


Wages


75% of wages - 2329.66(A)(13)(b)


In re Jones, 318 B.R. 841 (Bankr. S.D. Ohio 2005)


Pensions


Private pensions - 2329.66(A)(10)(b)


Tax exempt retirement accounts, including 401(k), 403(b), and profit-sharing plans - 11 U.S.C. § 522


IRAS and Roth IRAs to $1,171,150 – 2329.66(A)(10)(c)


Public Benefits


Unemployment compensation benefits – 2329.66(A)(9)(c)


Workers’ compensation benefits – 2329.66(A)(9)(b)


Wildcard


$1,225 of value in any property – 2329.66(A)(18)


Support


Spousal or child support, to the extent reasonably necessary for support – 2329.66(A)(10)(b)


Tools of the Trade


$2,325 of value in implements, books, and tools of your trade, occupation, or business

WALLSTREETESQ :

You would be able to protect your primary residence equity,

WALLSTREETESQ :

investment property equity is limited,

Customer:

Foreclosure is in Ohio. Bankruptcy would be in Indiana.

Customer:

I live in Indiana.

WALLSTREETESQ :

Under Indiana law, a homeowner may exempt up to $17,600 of the value of a house or other property covered by the homestead exemption.

WALLSTREETESQ :

If married it is double,

WALLSTREETESQ :

Ohio, is better,

Customer:

Yes, so I can exempt my home. I don't have $17,600 in equity in my home. But the other real estate would have to be listed. Hope they won't try to take it. Would be messy.

WALLSTREETESQ :

It doubles if you are married and filing jointly

Customer:

Not married.

WALLSTREETESQ :

they can take the other property if their is equity,

WALLSTREETESQ :

if their is some equity you can pay it to your creditors in your 60 month plan and keep the property.,

Customer:

I have sufficient income to pay my creditors. Just would like to stop the interest accruing & pay off as soon as possible.

WALLSTREETESQ :

I would consider the chapter 13, go to an experienced chapter 13 bankruptcy attorney to file it for you, you should be able to keep your properties, and settle all matters.

Customer:

Ok, thanks very much. Would be nice just to make one payment to the trustee each month. Would make life a lot easier. Son has medical problem. I'm too busy as it is.

WALLSTREETESQ :

It is possible, good luck, and if you have any further questions please do not hesitate to ask.

Customer:

Thank you very much. Enjoy the fall weather up there. :-)

WALLSTREETESQ :

I will, thank you If satisfied with our service please provide us with positive feedback,

Customer:

Will do.

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