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C.Fortunato
C.Fortunato, Lawyer
Category: Real Estate Law
Satisfied Customers: 8023
Experience:  Expert in Landlord/Tenant Law. Licensed Real Estate Broker.
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My husband was married before and in his divorce agreement

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My husband was married before and in his divorce agreement his ex got the house, but his name is XXXXX XXXXX mortgage and he quitclamed the home to his ex wife. We went to buy a home a few months ago and found out when his credit was pulled about the foreclosure. Our mortgage broker told us that we could buy a home after 3 years of this foreclosure on his credit, so we decided we will cash in his IRA to put on down on a home this coming October. I know that since his name is XXXXX XXXXX mortgage for $173,000 plus that he will need to eventually file bankruptcy. So should we buy the house and then have him file bankruptcy and if so how long will he need to wait to file? Also, if we do not buy the home and he files bankruptcy to get rid of the $173,000 mortgage will the bankruptcy courts take his IRA of $12,000 plus?

cfortunato :

Hi - my name is XXXXX XXXXX I'm a Bankruptcy and Consumer Protection attorney here to assist you.

cfortunato :

Have you and your husband lived in Florida for at least 2 years?

cfortunato :

If not where have you lived for the past 2 1/2 years?

Customer:

yes all his life

Customer:

now our rental home is in foreclosure so it looks like we will be forced to buy or find another rental property

cfortunato :

Thank you for your response.

cfortunato :

Since Florida allows one to keep one's residence when filing a Bankruptcy, regardless of what the residence is worth, it would not matter if your husband filed a Bankruptcy before or after cashing in his IRA to buy a house.

Customer:

so he should cash in his ira to buy a house? is that what I am understanding

cfortunato :

If he files a Bankruptcy before cashing in his IRA, the Bankruptcy court would not be able to take his IRA - as IRA's are exempt (protected).

cfortunato :

If he (and you) will be living in the house.

cfortunato :

In other words, the house will be exempt (protected) if the house is your homestead.

Customer:

yes so he could buy the house in october and file for bankruptcy in nov?

Customer:

awesome!

cfortunato :

Yes - if you will be living in the house.

Customer:

thanks so much!

Customer:

yes

cfortunato :

You're welcome!

Customer:

i will let him know

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