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I am 1/3 owner of my parents house (both deceased) with my

2 sisters. One of...
I am 1/3 owner of my parents house (both deceased) with my 2 sisters. One of my sisters has filed bankruptcy. The Trustees have determined that she can not claim the house, even though she will be living there when her house is foreclosed (she did not protect the house they are foreclosing on and where she currently lives). They are saying her 1/3 is worth $15,000.
1) How can she now protect our parents house?
2) How can the trustee tell her that they will sell her 1/3 of the property (which is all she owns)?
3) Can my other sister and I "buy" the 1/3 interest from her by assuming her 1/3 of the mortgage ($10,000 for her 1/3 of a $30,000 home equity mortgage) and a $4,800 personal loan she has to my sister, who has been paying my sister's 1/3 of the bills for the last 2 years? She did list both the he loan and the personal loan to sister on her bankruptcy petition.
Thanks.
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Answered in 1 minute by:
1/2/2013
WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 17,253
Experience: 14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
Verified

WALLSTREETESQ :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarificati on.

WALLSTREETESQ :

1. She should have known that only primary residences are protected through a homestead exemption, so her 1/3 interest can be taken

WALLSTREETESQ :

2. The trustee has the right to sell any non exempt assets to pay off her creditors.

WALLSTREETESQ :

3. The family can give her the $15,000 to pay the trustee,

WALLSTREETESQ :

4. Or she can convert the case to a chapter 13,

WALLSTREETESQ :

and in a chapter 13 create a 60 month payment plan and pay the 15,000 over the 60 months.

Customer:

She will be living there so that will be her primary residence at the end of January

WALLSTREETESQ :

then she may have to try to withdraw the bankruptcy and refile later that may protect her if possible.

Customer:

Why can't the family assume her $15,000 to pay off those crediters (second mortgage and sister)?

WALLSTREETESQ :

The primary residence has to be prior to the bankruptcy filing

WALLSTREETESQ :

The family can do that,

WALLSTREETESQ :

she has an option to pay the $15,000 to the trustee to avoid the issue,

Customer:

we/she does not have the $15000, we would just assume the $15000 and take that off of what she owes

Customer:

can we do that?

WALLSTREETESQ :

no, you cannot assume it, she has to pay the money to the trustee,

Customer:

how can you sell 1/3 home ownership and who would buy that?

WALLSTREETESQ :

or the trustee will try to sell it, where the family can try to work out a deal with the trustee to buy it,

WALLSTREETESQ :

She may need to convert the case to a chapter 13 bankruptcy, which is a payment plan bankruptcy,

Customer:

how can the trustee sell 1/3 if a house and who would buy that?

WALLSTREETESQ :

in that case, the $15,000 can be paid monthly to creditors, over a 60 month payment plan

WALLSTREETESQ :

It is hard for the trustee to sell it, but it is his right, what you can do is offer $7500 or even a payment plan for the $15,000 and see if he will work it out.

Customer:

how can the trustee sell 1/3 if a house and who would buy t hat?

Customer:

Aren't we offering a payment plan by assuming her opetition?$15000 obligation that she had claimed on her

WALLSTREETESQ :

By assuming the amount, the trustee and creditors do not receive any money,

WALLSTREETESQ :

you have to make a settlement where her creditors are paid the $15,000

Customer:

But we are assuming those debts and taking them off of her petition

WALLSTREETESQ :

that should have been done prior to her bankruptcy,

Customer:

can we withdraw the bankruptcy petition, transfer her 1/3 to us, and then refile without those 2 debts?

Customer:

and without the house as an asset?

WALLSTREETESQ :

That is possible but unlikely it may be too late to do it, she can convert to a chapter 13 and that would be best

WALLSTREETESQ :

a chapter 13 plan would allow you to pay $250 per month over 5 years,

Customer:

so if she converts to a chapter 13, can those assets be removed and those debts transferred to us?

WALLSTREETESQ :

and the property can be given to the family

WALLSTREETESQ :

yes, she can at that point transfer the asset to you

Customer:

Is he $250 a standard amount no matter what she owes?

WALLSTREETESQ :

no, that is $15,000 divided by 60 months

Customer:

so what about her other debts? Say if she owes another $20,000 on top of the $15000, what would be her monthly payments? And is that only on what she wants to keep? Say her old home, which she is giving up and is in foreclosure, what happens to those debts and her credit cards debts?

WALLSTREETESQ :

Her credit cards and other debts would be wiped out if she has not monthly income to pay it, but since she has an asset worth $15,000 the payment plan would only go to that debt, the rest would be paid a small amount if anything, so if she can afford a $300 payment plan for all her debts including her credit cards and loans, that may be allowed.

Customer:

Can she just cancel the bankruptcy petition? and what does it take to convert to a chapter 13? Who does she pay the money to and how does it get sent to the sister and the HE mortgage company?

WALLSTREETESQ :

she can file a motion to dismiss, however, in a chapter 7 case it is hard for her to get the case dismissed

WALLSTREETESQ :

a conversion to a chapter 13 is easier and for the first time is guaranteed

Customer:

She can't afford any payments other than her utilities, hence the personal loan to my sister to pay the home bills and the forclosure on her other home.

WALLSTREETESQ :

the trustee would receive the payment, and the mortgage would have to be paid by her or the family

WALLSTREETESQ :

the family would have to agree to pay the money to the trustee

Customer:

So you mean the $250 just goes to the trustee and not to pay the debts?

Customer:

or would the trustee pay the $250 to us to pay the debts?

WALLSTREETESQ :

the trustee takes the $250 to pay her creditors which you may be one

Customer:

she has been living at the parents home Monday thru Friday and at her other home on the weekends since both of them work Friday-Sunday. The lawyers just put it down that she was living at her other home and not our parents home. Their 35 year old son is living in the house they are forclosing on until the sheriff's sale. Isn't this really their fault and shouldn't they correct it so this did not happen?

WALLSTREETESQ :

her attorney should have given her the proper advice they should have known that her share of the property is an asset and can be sold,

WALLSTREETESQ :

however at this point, if her attorneys do not convert the case, ask them to offer a payment plan for the $15,000 or to convert the case to a chapter 13

Customer:

so shouldn't they be responsible to pay to convert? So can it be specifically listed that she is paying the $250 to the HE mortgage and my sister?: How hard is it to convert to chpt 13 or what is involved? can the payment plan specifically say that she is paying the $15,000 to the mortgage company and to the personal loan to my sister?

WALLSTREETESQ :

she could file a complaint against them with the bar association if they failed to advise her,

WALLSTREETESQ :

it is not hard to convert, but to have the chapter 13 approved may be an issue,

WALLSTREETESQ :

she needs to have the income and ability to pay the plan

WALLSTREETESQ :

the plan must cover the mortgage and all her other debts, it cannot just state money to the loan

Customer:

i think the problem is that she explained to them her living arrangement (parents during the week, other home during the weekend) from the very beginning. They, however, had a clerk fill out the papers and she just ignored that or did not understand. She never talked to the lawyer except for the first time.

WALLSTREETESQ :

it may be worth it for her to file a complaint against the attorneys, especially if they charge her a fee to convert the case.

Customer:

So why can't you withdraw your bankruptcy petition and at some later date, if needed, refile? isnl't that your option to say you are going to attempt to pay your debts by selling your share of the home and paying off your creditors?

WALLSTREETESQ :

In a chapter 7, the trustee will not allow such a dismissal in most cases as they think she is doing this to avoid paying her creditors the assets she owes under the law

Customer:

but your not avoiding it, you are just trying to get money to pay your assets by selling an asset that you have to pay bills

WALLSTREETESQ :

she can make that argument in Court, however in my experience as a bankruptcy attorney the trustee does not let these cases be dismissed so easily

Customer:

who would buy 1/3 of a house and have to pay 1/3 of the bills?

WALLSTREETESQ :

the trustee can force a sale of the entire house as well and take the $15,000 that way,

Customer:

This is frustrating because she waited until she moved to our parents home to file bankruptcy to avoid all of this and claim the house as her living residence. Because the attorney screwed it up, we may now lose the home.

Customer:

How can they force a sale of the entire home when only 1/3 belongs to her and the other 2/3 is ours and we are not filing bankruptcy? What if we quit-claim the house to us now?

WALLSTREETESQ :

The Federal Bankruptcy court can do this,

WALLSTREETESQ :

she cannot transfer any property now,

Customer:

if she converts to a chapter 13, will this keep the house safe? do i need to get a lawyer myself to keep the house safe? if we quit-claim the house to the remaining 2 sisters now, what would happen?

Customer:

What if the quit-claim deed is dated before she filed?

WALLSTREETESQ :

a chapter 13 would keep the house safe,

WALLSTREETESQ :

the quit claim would not help at all,

WALLSTREETESQ :

as it would be a fraud

WALLSTREETESQ :

you should consider speaking to her attorney and work out a plan to save the house a chapter 13 can work

Customer:

well crap. So you are saying that she must convert to a chapter 13 and set up a payment plan to repay. What happens if 3 months into the payment plan, she quit-claims the property to us? Is that allowed? If so, what happens to the payment plan? what happens if in 6 months she can not keep up the payment plan?

WALLSTREETESQ :

she can quit claim the property but the $15,000 must be paid regardless

WALLSTREETESQ :

the court looks at the assets she had at time of her original filing,

WALLSTREETESQ :

so the $15,000 cannot be removed, unless paid

Customer:

So, if she just quit-claims the property to us and then 6 months into the plan, she can not pay. What happens then and to the property?

Customer:

By quit-claimi ng the property to us, she would in effect take $15000 out of her creditors list.

WALLSTREETESQ :

no that is not correct,

Customer:

what is not correct?

WALLSTREETESQ :

that is fruad, you would have to pay her fair market value for the property she quit claimed to you

WALLSTREETESQ :

people cannot give away assets to avoid a bankruptcy collection

Customer:

She would not be giving it away, we would be assuming the debt in lieu of payment. She is responsible for $5000 personal loan to us and $10,000 to the mortgage company so by us assuming that, she is being compensated. What is the difference of us giving her $15000 and then she in turn gives it back to us to pay off her obligations?

WALLSTREETESQ :

I have gone over this, she filed a bankruptcy all her assets have to be given to the trustee to pay her creditors, the $15,000 has to be given to the trustee not her,

Customer:

even in chapter 13?

WALLSTREETESQ :

she can quit claim the deed but the $15,000 has to be given in some form to the trustee

WALLSTREETESQ :

even in a chapter 13, $250 per month over 60 months has to be given to the trustee

WALLSTREETESQ :

that is the $15,000

WALLSTREETESQ :

that is owed

Customer:

so if she quit claims to us she would continue to pay the $250 a month to the trustee, but the house is not hers anymore?

WALLSTREETESQ :

yes

Customer:

what then happens when the house is ours and later on, she can not pay the money due the trustee?

Customer:

can the trustee ever claim the house again?

Customer:

if she files the chapter 13, quit claims the house to us, then can't pay, can she then convert to a chapter 7?

WALLSTREETESQ :

if she fails to pay the trustee can take the house,

Customer:

even though the house is no longer in her name?

WALLSTREETESQ :

the trustee will always be able to take the house unless they are paid the $15,000

WALLSTREETESQ :

yes,

WALLSTREETESQ :

they are the Federal Courts,

WALLSTREETESQ :

a bankruptcy is a serious matter, the trustee creates an Estate for her, and all her property at the time of the filing is theirs until discharge

Customer:

how can the court take something that does not belong to her? She would have been paid for the house, it is not the home owners fault that she can not pay.

Customer:

you said that the house is not hers if she quit claims to us so how c an they take it?

WALLSTREETESQ :

if she owned it at the time of her filing the value must be paid,

WALLSTREETESQ :

if she cannot pay the chapter 13 plan, the court can cancel the quit claim deed,

WALLSTREETESQ :

and force a sale,

Customer:

And if that is her residence, how can they take it? I thought a home was a protected asset?

WALLSTREETESQ :

it is at time of filling,

WALLSTREETESQ :

but that was not her residence at time of filing, her attorney should have waited to file,

Customer:

but it is her residence and was at the time of filing, they screwed up the paperwork

Customer:

can't they amend the paperwork?

WALLSTREETESQ :

I have gone over this matter several times, her options now are to settle with the trustee over the $15,000 amount or convert to a chapter 13 and make a payment plan over 60 month for the $15,000 she owes to her creditors,

WALLSTREETESQ :

they can amend it and prove it, but it must be done now.

Customer:

their post office is there, their clothing and furniture is there, how do they prove it?

WALLSTREETESQ :

her drivers license and mail should go to that address, prior to her filing, that is one way

WALLSTREETESQ :

also he pay stubs or government checks,

Customer:

she never changed her driver's license yet, it was only in November when they filed. They still get mail as their son is in the other home. They just have not gotten around to changing everything ye to the post offifce box. t

Customer:

can she show when she received the post office box and have statments from me and my sister that she moved in there in late September?

WALLSTREETESQ :

yes, she can use your statements to prove her case

Customer:

Would this still require her to file a chapter 13 if we can show that she moved there prior to the filing of the petition or would she still need to convert?\

WALLSTREETESQ :

no, she would only need to convert if she loses her argument that this is a primary residence

Customer:

ok, so the plan is to show that our parents house was her primary residence at the time of filing and we could do this by showing when she received the post office box and statements from her sister and me and having the attorneys file an amended petition Then if they don't take that, have it converted to a chapter 13 with a payment plan.

Customer:

She can then quit-claim the property to us but continue to pay the monthly plan.

WALLSTREETESQ :

yes

Customer:

If she can't pay the payment plan, and is living in the residence, they can not then sell it?

WALLSTREETESQ :

they can, as stated prior

Customer:

ok, so what happens to the $250? Does it go to the Trustees or does the Trustee pay us ti then pay the mortgage off?

WALLSTREETESQ :

It goes to the trustee and they pay the creditors a small amount every month

Customer:

so they would pay the mortgage company directly? And her sister for the personal loan? wHAT if the personal loan continues to grow?

WALLSTREETESQ :

that is all they get

WALLSTREETESQ :

$15,000 has to be paid that is all

Customer:

what do you think the chances are in getting the original chapter 7 amended to show the house as her personal residence?

Customer:

so what you are saying is that once they get the $15000 her obligation is over?

WALLSTREETESQ :

the amended petition can work, if their is evidence

WALLSTREETESQ :

once the $15,000 is paid the case is over

Customer:

the evidence is her post office box, and the statements from her sister and I. Good enough?

WALLSTREETESQ :

that is good, but I cannot tell you for certain, as I am not the attorney handling the case

Customer:

Thanks so much for the answers, I will have to go with her to her attorneys!

WALLSTREETESQ :

good luck, and if satisfied with our service please provide us with positive feedback.

WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 17,253
Experience: 14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
Verified
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WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 17,253
17,253 Satisfied Customers
Experience: 14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS

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