Archive for May, 2008
Thursday, May 29th, 2008
I had previously posted a question a while back and got wonderful advice.
I am hoping that you could the same in this case. Pleas all I am asking for is just an opinion since as you might say you are not familiar with the specifics of the case.
I filled for bankrptcy more than 3 years ago and got discharged. However, the lawyer for one of the creditor`s whom I owed about $20,000 kept insisting on getting the money saying that there is equity on the house I own. The equity on the house at the time of my bankruptcy was about $10,000 as per an appraisal done by the turstee. The turstee transferred the title of the house to their name. I have been asking the trustee since the begining to come to an agreement with the creditor so I can pay the equity and have the title transferred to me. They have been going back and forth for the past 3 years. My mortgage is up for renewal so the trustee really wants to settle this and transfer the tilte back to me. Now the creditor is insisting to go with the value of the house as of today. Obviously the value has gone up and since I have been making mortgage payments the mortgage amount has gone down.
Please, let me know is it legal to consider the value of the house as of today or do they have to go with the value at the time of the bankruptcy. I need to mention that I have small child.
Posted from: Ontario
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Thursday, May 29th, 2008
In a nutshell, you are the best to decide which way you have to go. But think twice and try to avoid bankruptcy up to the maximum extent or else hire the services of an expert bankruptcy adviser and get rid of your derailing debt load.
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Thursday, May 29th, 2008
Prior to analyzing what your rights may be in your property, and what duties you may owe to your creditors, it is important to distinguish between the types of debt you may have incurred. Many debtors incur large unsecured debt, which stems from any obligation to pay back a debt, but where no physical asset can be seized for failure to pay. The other type of debt, which is more important when considering if a creditor can take something away from you comes in the form of secured debt.What is Secured Debt? Secured debt is a debt that is backed by collateral. If you fail to pay your debt, then the creditor who issued the loan can take back the property or collateral and sell it.
The next obvious question would be, how does a lender secure a debt and protect its investment? Section 550(b) of the Bankruptcy Code protects a secured lender from a claim of fraudulent transfer. A secured lender who is a subsequent good faith transferee of the buyer that takes for value and without knowledge of the void ability of the sale is protected.
If you have obtained a mortgage on a home in Massachusetts, then most likely you have entered into an obligation to payback a secured debt. That is, if you fail to pay your mortgage, you could loose your home.
MORTGAGE RIGHTS:
The following is a short discussion on the various types of mortgages in Massachusetts that are protected as secured debt:
- Purchase Money Mortgage- A purchase money mortgage is given by a buyer of a property to the seller or a third party in order to finance all or part of the purchase. M.G.L. c. 93 § 70. It takes priority over previous judgment liens and certain other liens attaching to the land through the buyer, which protects the lender from having to search for such liens and therefore encourages purchase money financing.
- Leashold Mortgage- A “leasehold mortgage” is a mortgage given by a tenant on its leasehold estate, which assigns the lessee’s rights under a lease as security to the lender. See M.G.L. c. 184, § 9 (“A conveyance by a tenant for life or years . . . shall pass to the grantee all the estate which such tenant can lawfully convey.”). Massachusetts banks and credit unions are authorized to lend on the security of certain leasehold estates. See M.G.L. c. 167E, § 1A; M.G.L. c. 171, § 65. A leasehold mortgage may also be made by an assignment of the lease for security.
- Non recourse Mortgage- A non recourse clause states that there is no personal liability for the debt secured. This is typically used in large commercial real estate transactions. This is often used when the real estate is owned by a limited partnership, in order to receive tax benefits.
- Gratuitous Mortgage- There is support in Massachusetts case law for the proposition that a mortgage given without any consideration, i.e., a gratuitous mortgage, is invalid and can be canceled by a court. Broderick v. Broderick, 325 Mass. 579, 582–83 (1950); Dow v. Poore, 272 Mass. 223, 226 (1930);
- Mortgage for Future Advances- The problem with mortgages for future advances is the lack of notice to creditors, who then may find their leins subordinate to future advances. Subsequent Advances to Protect the Mortgagee’s Interest- when the mortgagee is advanced funds for payment of taxes, liens, necessary repairs, or improvements to the property in order to protect its interest.
- Dragnet Clause- Provides that the mortgage will secure all other obligations of the mortgagor to the mortgagee whether they exist or subsequently arise.
- Open End Mortgage- The home equity loan
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Thursday, May 29th, 2008
In the mid 80`s I received cash from my father and gave him a Promissory Note back in exchange. In 1994 I went into personal bankruptcy. My Father was aware of this and it was mentioned by the Receiver to the Judge. A notice to all creditors was published in the Globe & Mail and my father knew of this. I was discharged in 1996. My father passed away in 2007.
The estate Executor, acting on advice from the estate lawyer, says the note is still valid and is deducting it`s value from my share of the estate. The monetary value of the Promissory Note has been added to the total value of the Estate.
My position is that it has a zero, or nil balance, and should not be considered in the estate distribution. Your comments will be much appreciated!
Posted from: Ontario
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Thursday, May 29th, 2008
Bankruptcy credit card consolidation is the only reprieve left for individuals, who have reached a point of no return as far as their debts are concerned. The American society is plagued with a very essential evil. Moreover, the name of the evil is credit card or plastic money.
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Thursday, May 29th, 2008
My local applicance store was vacated from the premises (non payment of rent), disconnected their phone, and essentially disappeared. There were no calls to me to advise about delivery of my appliances that I already paid for. I`m now out a significant amount of money.
How do I find out if this company has claimed bankruptcy (the Limited company # was pointed on the eviction notice)?
Posted from: Ontario
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Thursday, May 29th, 2008
Bankruptcy is the last and official way of declaring of a person’s inability to payoff the debts by his existing position. It divides the assets of the debtor among the creditors.
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Wednesday, May 28th, 2008
My husband went bankrupt and had a meeting with the trustees. They explained that his `surplus income` was high and we need to pay $1150. That `surplus` income does not take in account any of MY debt that I still have and therefore we really don`t have enough money to pay that. Do we have any options? or should they be looking at all debts (students loans, car payments, visas?)
Posted from: Nova Scotia
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Wednesday, May 28th, 2008
How we talk about credit goes a long way in revealing our attitudes toward using it responsibly. From Urban Word of the Day comes a new term to describe the junk mail flood of credit card applications.
Application for Debt:
An of offer of credit from a financial institution.
Wife: What did we get in the mail today?
Husband: Just an Application for Debt.
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Wednesday, May 28th, 2008
If you have a don`t pay for 1 year type of credit card (e.g. a Brick card) and file for bankruptcy before the payments have started, can the company come in and repo the items you `bought` are what if anything can the do?
Posted from: British Columbia
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