Archive for June, 2015

Escaping IRS Debt in Bankruptcy

Tuesday, June 30th, 2015

It is possible to escape IRS debt in bankruptcy. There are a few important criteria to consider.

IRS

The IRS Debt must be a certain age.

According to the IRS website, Taxes on returns where the due date of the return, counting extensions, must be greater than  3 years of the bankruptcy filing date, and greater than days of the filing date

You must go a with a Chapter 7 bankruptcy.

Chapter 7 is a liquidation plan. Chapter 13 is a repayment plan. There are a number of more stringent qualifications that you must meet to file a chapter 7 bankruptcy. The bar is not quite so high for a Chapter 13 filing.

In a chapter 13 bankruptcy, taxes and interest incurred before the filing date must be repaid. In a Chapter 7 bankruptcy, that is not necessarily the case.

If your tax and business debt are larger than credit card debt and house mortgage debt, that allows debtor to avoid Bankruptcy Code test that kicks debtors out of Chapter 7. There are also some income considerations. If you seek the advice of a good bankruptcy attorney, perhaps your debts and income can be reclassified to fit within the required criteria. Perhaps you should call Caroline Secor.

Carolyn Secor P.A. focuses its practice in the areas of Bankruptcy and Foreclosure Defense in Clearwater, Florida.  For more information, go to our web site www.BankruptcyforTampa.com
or call (727) 254-1704.

What is Foreclosure?

Sunday, June 28th, 2015

In Florida, the definition of foreclosure is the legal process by which a lender uses the courts in obtaining forced sale of real property which was

foreclosure notice

foreclosure

pledged as a security for a mortgage or debt because the borrower defaulted. This default is due to the failure in meeting the repayment terms that are contained in the loan agreement and promissory note.

When borrowers misses 3-5 payments in a row, that’s when the lender typically files for foreclosure actions. The main purposes why lenders file foreclosure are;

➢ To force the owner of the home to resume making payments for their mortgages

➢ To obtain judicial possession or sale of the property so as to sell the real estate and the proceeds be used in reducing the loan   balance.

The banks are generally not in the selling and buying business of residential real estate and hence, the bank does not want your house. What the bank needs is somebody’s or your money to use it in reducing the outstanding loan balance that is non-performing and maybe upside down.

One important thing that a homeowner needs to understand is that a foreclosure action is a civil lawsuit. This means that in a civil court the party which brings the lawsuit becomes the plaintiff and the person being sued becomes the defendant. In the case of foreclosure, the plaintiff is the banker or the lender and the primary defendant is the homeowner. The plaintiff has the burden of proof which means that when defending a foreclosure case, the lender must prove every element of the case by preponderance of the evidence. When proving each element of the case, the bank comes with the admissible evidence which proves that the homeowner executed the original mortgage and note and also proves that every time the mortgage ownership was transferred, there was legal compliance and also the note was properly recorded and assigned. The lender will also have to prove that the disclosures were made to the borrower/homeowner before the closure of the real estate where the documents of the loan were signed.

Carolyn Secor P.A. focuses its practice in the areas of Bankruptcy and Foreclosure Defense in Clearwater, Florida.  For more information, go to our web site www.BankruptcyforTampa.com
or call (727) 254-1704.

What to Do When You Leave Your Home

Wednesday, June 3rd, 2015

As soon as you agree to leave your home, you should begin the moving process. Refer Bankruptcy Network.

  1. Divide your possessions into three categories.
    • Stuff you definitely want to keep.
    • Stuff you definitely want to donate or throw away.
    • Stuff you are not so sure.
  2. Every week go through each pile.
    • Stuff you are definitely keeping but not using currently go ahead and pack.
    • Remove the stuff you are not keeping from the home on a weekly basis.
    • Continue sorting through stuff you are unsure of and place in one or the other two piles.
  3. Take the mortgage payment you were paying or anticipated rent payment and place it into a separate bank account.
    • Check with your attorney because this process is dependent upon local standards.
    • Save this money for moving as well as deposits for utilities and rent.
    • DO NOT SPEND THIS MONEY BECAUSE THE COURT WILL NOT BE SYMPATHETIC IN MOST CASES IF YOU HAVE HAD THE OPPORTUNITY TO SAVE SEVERAL MONTHS OF RENT AND YOU FAILED TO DO SO.
  4. Begin to look for a new place to live so you have an idea ahead of time.
  5. Have a back up plan if you need to stay somewhere for a couple of weeks or months before moving into a new place.

Check with your attorney for the local process. I advise my clients to NOT MOVE until the foreclosure has taken place.

  1. Until a foreclosure has taken place you own the property.
  2. This means you are responsible to keep the property in compliance with code regulations.
    • If you have peeling paint or you fail to cut the grass you may be charged with a code violation.
    • If you have moved from the property, you may not receive the code violation.
    • If you do not receive the code violation notification and fail to remedy the violation a court hearing will be issued.
    • If a court hearing is issued and you fail to appear a warrant for your arrest will be issued.
    • Now you have surrendered the home but wind up in jail because the mortgage company refused or delayed in foreclosing on the property thereby leaving you with the maintenance responsibility.
  3. If you must move from the property, don’t forget to maintain the surrendered property until you have verified the foreclosure.
  4. You can verify by calling the law firm holding the foreclosure sale and request a copy of the trustee’s deed.

So the property has sold and you still have not moved.  What is next?

  1. There is a process called Unlawful Detainer.  Again the process may vary state to state.
    • Generally the lender or the new owner will file an action to evict or remove you from the home.
    • This process takes anywhere from 30-60 days.
    • You want to keep in close contact with the law firm handling this action.  If the law firm receives an order to evict, the sheriff may throw your “stuff” out on the front lawn.
  2. The best course of action is to either contact your attorney or the law firm handling the action and coordinate a date certain to leave the property.
  3. Also contact the lender and inquire about a Cash for Keys option.
    • This is where the lender may pay you to move.

KEEP IN MIND  there is no guarantee as to a timeline for the lender to foreclose when you  surrender a home.  Once you make the decision to surrender home, begin taking steps to prepare for the move.  It is possible for that move to be a smooth process, but, it is going to take work, preparation and diligence to ensure success.

Carolyn Secor P.A. focuses its practice in the areas of Bankruptcy and Foreclosure Defense in Clearwater, Florida.  For more information, go to our web site www.BankruptcyforTampa.com
or call (727) 254-1704.