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cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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I need some creative thinking. I have been fighting B of A

Resolved Question:

I need some creative thinking. I have been fighting B of A to renegotiate my motor home loan that is worth 50% of the current loan debt. Can't sell it, can't refinance it, can't get them to do anything. Found out they wrote off the loan in February. Repo teams have been around but MH is not in state. Have Replevin hearing this Friday and need some options. Would like to keep MH for retirement but will turn it in if ordered to do so by judge. Afraid they will come after the remainder of $60k plus.
Submitted: 7 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 7 years ago.
Hi JACustomer,
Is it a collection agency that commenced the replevin hearing?
What state are you in?
Do you have any substantial assets (equity in a home, car, etc.)?

Edited by Christina Fortunato, Esq. on 6/8/2010 at 12:34 AM EST
Customer: replied 7 years ago.
It was an attorney. He said he was acting for B of A, but I think he may just be a debt collection agency with their permission. I am in Arizona. Unfortunately, I have 3 lots in Oregon worth about $200k but couldn't sell them in this market. No equity in house to speak of now, two old cars, not much else. I just retired with small ss and small monthly VA pension. Wife can retire on SS next January. Thinking about heading south of the border for retirement. Should I just wait and see what they do about the remainder?
Expert:  cfortunato replied 7 years ago.
That does not sound right, because if BoA wrote off the loan, that means they have given up on collecting it, and usually means they sold it to a collection agency, or are going to sell it to a collection agency.
The attorney would not be the plaintiff. Can you tell from the court papers who the plaintiff is? (This should be at the top of the paper, or at the top left of the paper.)
Customer: replied 7 years ago.
It says plaintiff, Bank of America, NA
Expert:  cfortunato replied 7 years ago.
The fact that BoA is the plaintiff is inconsistent with the fact that they wrote off the debt. You should bring proof of that fact (that the debt was written off) to the replevin hearing to show the judge.
In any event, a replevin hearing is not the place for a plaintiff to get a deficiency judgment, which can only be obtained after the property is re-possessed and subsequently sold. Although you can file a bankruptcy at any time, you can wait until the plaintiff does get a judgment, as long as you are not building up too much equity in the meantime.
Customer: replied 7 years ago.
What about this scenario? The MH loan is only in my wife's name. Since the goal is only to get B of A to except payments, could I do a Chapter 13 on her only then get B of A to except payments on a cram down. Since the Oregon properties were mine before we were married and if I don't file, they may not make a deal about this being a community property state since they are getting payments from her. What do you think?
Expert:  cfortunato replied 7 years ago.
What a great question! The answer depends on: 1) whether the MH is attached to the ground, or is mobile; 2) how long ago the loan was taken out.
Is it attached or mobile?
How long ago was the loan taken out?

Edited by Christina Fortunato, Esq. on 6/8/2010 at 1:33 AM EST
Customer: replied 7 years ago.
Although we do live in a Mobile home, now called a manufactured home in a gated community, it is current and thanks to this lovely economy is worth about what we owe. No, this is a 2002 diesel motorhome that we purchased used in 2004. I have used it in my work until 2007 when I was layed off do to a downsizing of the staff of a national franchise. I haven't worked much since and now I am retired.
Expert:  cfortunato replied 7 years ago.
So the MH that is the object of the replevin hearing is not attached to the ground - it is movable?

Edited by Christina Fortunato, Esq. on 6/8/2010 at 1:45 AM EST
Customer: replied 7 years ago.
Yes, it is a diesel Motor Home that is registered like a truck and rolls down the road on $3.00 a gallon diesel. The balance is $118k and it is worth in todays market, $60k. Payments were $970.00 and I want them down to $500.00.
Expert:  cfortunato replied 7 years ago.
According to the information you provided, you should be able to effectuate a cramdown with a Chapter 13 bankruptcy, which requires 1) that the MH actually is a motor vehicle, and 2) that the loan is at least 910 days (2 1/2 years) old.
Customer: replied 7 years ago.
Great. What about the other problem? Are the odds with me that with the payment plan layed out, there will not be further hassle, or should I just turn in the RV, wait for the remainder judgement and start a 7, just for my wife, leaving the properties out as my sole property and hope they don't dig up the community property issue?
Expert:  cfortunato replied 7 years ago.
Is the Oregon property community property?
Do you owe any money on those?
Customer: replied 7 years ago.
Oregon is not a community property state. I have a private note from a personal friend in Hawaii that I send $200 a month on one of them. The others are free and clear and were an inheritance from 1989. My wife and I married in 2000.
Expert:  cfortunato replied 7 years ago.
Whether or not property is "community" depends on where the couple lives, not where the property is located.
Were the properties your inheritance, or hers?
Customer: replied 7 years ago.

Thought so, Arizona is one. The properties were my inheritance that is why, since the RV loan doesn't have my name on it, I thought it might work in a 13 just to be her BK and not joint. What do you think, 7 or 13 with what you know?

Expert:  cfortunato replied 7 years ago.
What about the property still being paid off?
1) Was it acquired during the marriage?
2) What is the equity in it? (What can it be sold for, and what is the balance that you owe?)
Customer: replied 7 years ago.
All three were mine in an inheritance before the marriage. The private loan was taken with one of the properties as collaterol. The note is for $30k and the property in a fire sale would be about $60k.
Expert:  cfortunato replied 7 years ago.
Since all 3 properties were acquired by you before the marriage, all 3 are separate property, and would be not be touched if she files a bankruptcy.
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