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cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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Can my homestead exemption be checked as exceeding $146,450

Customer Question

Can my homestead exemption be checked as exceeding $146,450 on schedule c since I'm on social security disability and the exemption is $150k? And how do I apply leftover exemptions to property? I have a few ch 7 bk questions cuz I have to get amended schedules in soon. My 341 meeting was postponed so I could Amman schedules, so do I have to do motion and notice forms to 2 lien holders that have judgements before the creditors meeting? I also never mailed my intention to the secured lender, do I need to?

I'm still waiting for answer to whether I list a debt collector/servicers as an unsecured debt because they recorded an assignment but I plan on sending a letter of rescission to the previous lender and a complaint with damages for fraud, conspiricy and presentment
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.

Hi JACustomer,

How much equity does your home have? (Equity = current market value minus the balance on the mortgage.)

Customer: replied 5 years ago.
current market value of the house they are trying to foreclose on is $180k-200,000 and the amount they are saying is owed is $347,000.00. I have written Qualified Written Requests but they don't respond and now I found it is because they weren't notarized. I am going to waste more money and get the letters notarized and sent off. but they have said they are not obligated to tell me who owns my mortgage and who they are servicing it and who the noteholder is. It used to be Fannie Mae and then my mortgage switched hands really quick twice but isnt fannie mae anymore. I've read with a Qualified Written Request they do have to tell you. Anyway, this house I'm in is underwater.
My other house my daughter lives in and the first mortgage is $248,000.00 and the HELOC is $100,000.00 and it would maybe sell for $280-$300,000.00. It isn't in foreclosure but I've missed the past 3 payments on the 1st and 6 payments on the HELOC. If this house is going to foreclose then I would want to exempt the one I'm not living in. But in my Chapter 7 BK, i plan on suing the current and past lender for many violations in an adversarial hearing. Is there anyway I can get the debts discharged? I have to go through with the BK though and just start over, but i dont want to lose both houses, i have all my inheritence of over $350,000.00 cash in to these homes. I put over 38% as a down payment and never refinanced these mrortgages and I only took out the HELOC when I couldnt work due to a disease and now I'm on permanent Social Security Disability. thanks for your help
Expert:  cfortunato replied 5 years ago.

1) Since your home has no equity, you would not check the box that says you are exempting more than $146,450.

2) Since you do not have to use the homestead exemption (because your home has no equity), you can instead use up to $22,075 to exempt any other property or assets you have - if you use the System 2 exemptions.


I think this is what you wanted to know. If not, please let me know.
Thank you.

cfortunato and other Bankruptcy Law Specialists are ready to help you
Customer: replied 5 years ago.
But if I list my house that is being foreclosed as a value of $140,000.00 because I honestly think that is what it would sell for and is worth (no backyard and the a/c is broken and will cost around 3-7k), hence a value of $140k after paying a realtor and fees to sell it.
So if that is the case, can I Homestead it? thanks so much, im just wakin up, your great and i'm gonna have to sign up after i have coffee and breakfast (brunch).

Also for my IRA and 403b i have the law for them as exemptions either CCP 704.115(a)1) $ (2) (b) or CCP 703.140(b)(10)(E) and i know it is all exempt.

If I can use the $150,000.00 exemption and then the $22k system 2 exemptions for CA, then that is $177k and then can't I exempt this home and once the bk court and judge see that this pretender lender has no standing, they will discharge their debt (which i dont really owe them anyway and they are foreclosing using the original lender as the beneficiary and that lender has been out of biz since 2008). I'll be back to check answer in an hour. thanks so so so so much!
Expert:  cfortunato replied 5 years ago.

If you owe $347K for your house, your house has no equity. Homesteading a house is only possible when the house has equity. (Equity = what the house can be sold for minus the balance on the mortgage.)

The Bankruptcy court will not determine that the mortgage company has no standing or does not have a legitimate mortgage. This is something you have to do in state court.

However, if you can determine in state court that your mortgage is not legitimate, and therefore should be voided, then you can apply the $150,000 exemption. But this is something that has to be done in state court first - it cannot be done in Bankruptcy court.


Customer: replied 5 years ago.
ok, i get it. sorry. but since I already filed for bk feb 8, 2011 (foreclosure sale was going to be feb 9, 2011 and i needed to finally file anyway...i was hoping i'd get back to work and get everything paid).
well can I bring the complaint (TRO/injunction/etc) to state court while I have an open BK chapter 7 case? and wouldnt i have them prove standing as an adversarial hearing? I also plan on suing them for fraud, concealment and presentment, FDCPA violations, RESPA, TILA and I want to even get the loan modificatioin rescinded, and the 3 year statute of limitations runs out August 2012 (unless the statute of limitations doesnt start until it was discovered).
So I was planning on presenting my actions and complaint through BK court, being that Fraud is Federal and it is Federal Fraud big time here.
wow, i love your answers and i'm so mad i didnt get an answer when i first stumbled upon this website on March 25, 2012. i'll have to call them.
I filed Feb 8, 2012
Creditors meeting was set for March 19, 2012
It was postponed until April 9th
When i went in April 9th, the schedules were all wrong because i was paying an attorney for help and he just asked me names of creditors and didnt take what I had already done because he said I was going to ammend them anyway. He had submitted the Schedules Feb 22nd because i did a skeleton petition.
April 9th theTrustee gave me time to ammend my schedules because when he asked me if i had reviewed them and if everything was true and correct, well honestly, the day of the creditors meeting was my first time reviewing them and i was shocked how everything was all wrong. I told him it was all wrong.
So now, my creditors meeting is May 22, 2012 and I have been so sick and so has my daughter (i think the stress of all this and then some), and I am reading and reading and finally on it! I can do it. But I still have to get my taxes, credit report and ammended schedules and Master Creditor list done and filed before the meeting so he can see them and not dismiss this case.
But when oh when do I do my fraudsuit and rescission?
Writing another letter of rescission was also on my list and I had been researching that, but now I have to do all this.
Thanks so much, YOU ARE AWESOME!!!

Anything else you think will help based on the information I gave above but didnt ask about is so much appreciated, if I tip you when they say tip, do you get it or does justanswer? i'm going to call them now and see what happened to march 25th when i thought i signed up too and see if they charged my cc
Customer: replied 5 years ago.
am I supposed to send a reply? or wait for answer to above question? thanks i'm calling now
Expert:  cfortunato replied 5 years ago.
Yes - you can file a case against your mortgage company in state court while your Bankruptcy case is in progress.