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JP, Attorney
Category: Bankruptcy Law
Satisfied Customers: 109
Experience:  Represented creditors and individuals in bankruptcy and consumer matters.
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my husband and i are on a retired and on a fixed income. we

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my husband and i are on a retired and on a fixed income. we have loans and credit card debit totaling $90,000. We went to a lawyer to file for bankrupty and he told us that we could file for chapter 7 but there was a chance that we could lose our house. we own a three family house and have a mortgage of $434,000. Is there a way that we can put the house in a trust to protect it from being taken and if so what is the time frame that we would have to wait before we could file for bankruptcy again. Very confused.
Submitted: 8 years ago.
Category: Bankruptcy Law
Expert:  JP replied 8 years ago.

Yes, you can put your home into a trust to protect the asset, but it is a very sensitive matter and you should consult both a bankruptcy attorney and a trust attorney to ensure that you are properly protected.


Some people attempt to protect their assets from creditors by transferring some of their property into a trust because creditors would then have a harder time collecting on these assets. However, your trustee can stop you from collecting the interest on properties protected by trusts made within 10 years of your bankruptcy filing if you assigned a portion of them to a self-settled trust. Your trustee can also stop you from collecting interest on assets protected by a trust if you are deliberately trying to interfere with or defraud any creditors and with the bankruptcy law reform in effect (as of Oct./2005), creditors may more easily be able to gain access to these assets transferred in close proximity to the bankruptcy case filing.


Real estate trusts and bankruptcy are often a toxic mix. If you intend to maintain the right to terminate the trust and transfer the trust asset (the house) to anyone you want- including herself, then it could create a problem in the bankruptcy. Such a power would make the trust property subject to claims of your creditors because you would still be considered the true owner.


I would suggest consulting with a bankruptcy AND trust attorney in your area (it would be great if you found an attorney who practices in both areas) to ensure that the type of trust created would not leave you vulnerable to your creditors during the course of the bankruptcy case. However, I would not suggest creating a trust in close proximity to a bankruptcy case filing in an effort to protect assets without first consulting with a trust attorney as well as your bankruptcy attorney.


Again, I hope you found this information helpful.


Best Regards.

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