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bankruptcy: California Anti-Deficiency Legislation - 07/29/11 04:32 AM
California has passed amendments to its anti-deficiency statute. The closing of a short sale and acceptance of terms of short sale will not give rise to deficiency claims for liability that lenders may pursue. Does this mean that California borrowers are out of the woods? Hardly! A bankruptcy analysis by a Certified Bankruptcy Specialist should still be part of the agent's due diligence in counseling the seller. Other liabilities may exist for which a Chapter 7 may be necessary. But, if property is short sold Chapter 7 relief may be out of seller's reach as they will fail the Means Test. … (0 comments)
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bankruptcy: Bankruptcy Primer - 09/14/10 02:07 AM
1. The Automatic Stay of a Foreclosure: The filing of a bankruptcy case, whether Chapter 7, 11 or 13, gives rise to an automatic stay that will put a stop to a pending foreclosure or any other collection efforts, with some exceptions.
2. Lien Stripping: This is a commonly used term to describe when a bankruptcy court values real property for the purpose of determining if the first is partially undersecured and the second or third wholly undersecured. If the value of the residential property is less than the amount owing on the first, any other liens recorded against the … (0 comments)
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bankruptcy: Thomas Jefferson - Revisited - 07/09/10 12:35 PM
Back in February 2009, Congress had the opportunity to pass sweeping bankruptcy reform that would have allowed judges to modify the terms of mortgages on home residences. The House passed the legislation, but the Senate never took up the debate and the amendments died! At the same time, the financial industry was bailed out, along with the insurance and auto industries; all in the name of too big to fail. But, millions of Americans have seen their lives and families destroyed in the interim. All in the name of preserving the financial industry.Jefferson's words are as true today as they were … (34 comments)
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bankruptcy: Bankuptcy Update - Lien Stripping - 07/09/10 12:16 PM
A recent published decision by the Bankruptcy Appellate Panel for the Ninth Circuit affirmed a lower court decision that sends Chapter 13 Debtors out into the cold. In this decision (in which I represented the debtor trying to save their home) the BAP held that on the date of filing the Debtor knows with certainty that as a result of a "lien strip" they will have more than the amount allowed to file for relief under Chapter 13.Now, when the wholly unsecured second mortgage is added to the other unsecured debt (credit cards, student loans, taxes, other claims, etc.), if the … (3 comments)
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bankruptcy: Short Sales - Warning! You May Cause Your Client to Fail the Means Test - 12/18/09 12:15 PM
A recent email to a client follows, and should be a fair warning to have clients consult with bankruptcy counsel before execution of short sale purchase and sale documents:
As a result of the short sale of your home before you file bankruptcy you will no longer have the contractually due amount owing to your first and second. As a result, when we calculate your eligibility for Chapter 7 relief (rather than Chapter 13 relief) we will not be able to deduct from your Annualized Monthly Income those monthly payments. As a further result, if your Annualized Monthly Income (calculated from … (32 comments)
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bankruptcy: House of Representatives Fails to Pass Loan Modification Bankruptcy Legislation - 12/12/09 02:23 AM
Although the House of Representatives passed legislation earlier in 2009 to allow Bankruptcy Judges to modify loans secured only by a debtor's principal residence, 50 Democrats reversed themselves and rejected similar legislation recently introduced into the House. When questioned, some stated with passage of sweeping banking reform earlier in the day they could not vote against the banking industry twice in one day.
This vote was taken notwithstanding Congressional reports that evidence the banking industry is not modifying loans to preserve home ownership. And, when there is closer scrutiny of loans modified, research points to the inevitable default on such … (2 comments)
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bankruptcy: Chapter 13 Primer - 11/15/09 01:23 AM
Commencing a Chapter 13 Case
–A Chapter 13 bankruptcy case begins with the filing of the bankruptcy petition.
–Upon the filing of the petition an automatic stay arises that prohibits creditors from taking any further action to collect a debt or enforce a judgment.
–A Notice of Commencement of Case is electronically served on all creditors who have subscribed to the national database or by mail to all others.
–This Notice provides each recipient with the date, time and place of the meeting of creditors and confirmation hearing, as well as the last date to file for a determination of whether … (31 comments)
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bankruptcy: Beware of Bank Set Offs and Credit Union Seizures - 10/15/09 12:52 AM
Here are Three Facts Every Client Must Know:
1. If you bank where they borrow, the bank will seize funds as a set off, even if you file bankruptcy.
2. When a Bankruptcy Case is filed, certain banks, such as Wells Fargo and Union, will freeze accounts as a custodian of the account. They will not release funds, even though checks may bounce, until further ordered by the court or they receive a No Asset Report from a Trustee.
3. Now, credit unions seem to be getting very aggressive about "popping" cars when members fall into default on credit cards and … (2 comments)
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bankruptcy: Participate in Poll - Should Bankruptcy Judges Be Allowed to Modify Home Loans? - 10/06/09 06:59 AM
I have created a Poll on LinkedIn <http://polls.linkedin.com/poll-results/59349/wexls>
… (1 comments)
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bankruptcy: Seven Questions to Consider Before Taking a Short Sale Listing - 09/09/09 11:20 PM
Before taking a short sale listing, every Realtor (and Broker) should consider the following 7 questions:
Have you as the Realtor asked the Client if the Client has consulted with their accountant or tax advisor on the issues of capital gains (and losses if nonresidential property) and debt forgiveness? Have you as the Realtor asked the Client if the Client has discussed with their accountant or tax advisor the tax consequences to the Client of the short sale? Have you as the Realtor considered (or consulted with their Broker) whether the failure of the Realtor to ask the foregoing questions … (5 comments)
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bankruptcy: Is the Recession Over or Is That Just What Orwell Would Have Us Believe? - 08/29/09 06:15 PM
Check out the article that I wrote and just posted to my website www.louisesbin.com. I attempt to discuss what led us to the current economic situation and why bankruptcy reform defeated in the Senate would have been good for all of us. Please let me know your thoughts once you have read the article, even if you do not agree with me. The First Amendment is alive and well, and site such as this prove it's so daily. … (3 comments)
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bankruptcy: Invitation to Real Estate Professionals - 08/14/09 09:07 AM
Valencia, Santa Clarita, Los Angeles Region and Active Rain Real Estate Professionals do you have clients that are facing mortgage defaults, short sales, foreclosures, or mounting credit card debt, and you need someone to speak with before speaking with them? Are your client being bombarded by mailings for quick fix scams and they are looking to you for advice? The Law Offices of Louis J. Esbin offers to Real Estate Professionals an "Open Phone" or "Open Email" policy that allows you to ask questions and not receive a bill. When your client schedules a consultation, you are invited and encouraged to … (0 comments)
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bankruptcy: What Makes Sense - A Simple Solution - 08/13/09 09:03 AM
The solution to the current and prospective ongoing foreclosure crisis and failure of the banks to effectively modify loans lies, quite simply, in an ability of the Bankruptcy Courts to do the following with respect to home mortgages when an individual or couple files for relief under Chapter 13 or Chapter 11 of the Bankruptcy Code for the purpose of saving their home residence: (1) Value the real property that is claimed as the principle residence of the debtor to an amount based upon not only a customary appraised valuation, but valuation based upon affordability – the amount after regular household … (0 comments)
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bankruptcy: STUDIES SHOW BANKS ARE NOT MODIFYING MORTGAGES - 08/05/09 12:21 AM
MSNBC is reporting that Banks are not modifying mortgages and therefore not assisting homeowners who need assistance. Allowing Bankruptcy Court judges to modify loans secured by a debtor's principle residence s the only fair and equitable way to instill stability into the marketplace. Studies are finally beginning to shed light on what you have read from me that "the fox cannot be left to mind the hen house," or "the inmates cannot be left in control of the insane asylum." … (0 comments)
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bankruptcy: Is California's Economic Condition Being Ignored? - 07/23/09 02:10 AM
Listening to the broadcasters on some of the Business Networks, from Squawk Box (U.S. and Europe) to Fox Business, it is clear that the economic crisis facing California and its residents is either completely misunderstood or being ignored. Statistically, if California were a separate country (which many throughout the US believe is so) it would be one of the largest economies in the world. It cannot be lost on the national economy that more than 10% of the nation's population live in California and therefore, so it has not less than 10% of the housing market. The largest number and percentage … (2 comments)
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bankruptcy: Where Have We Been ... And Where Are We Going??? - 12/29/08 02:18 AM
Since about 1978 we have been running an economy on the back of the consumer. During the last 30 years, real income has declined, as adjusted for inflation. The difference between real income adjusted for inflation and spending has been filled by credit. Credit was moved from a subjective decision by the local banker to a quantifiable objective standard measured by a credit score. Net worth, living within one's means, being fiscally responsible, and saving for a rainy day, were all replaced by merely affording a monthly payment. Price no longer mattered, as long as the monthly payment was tolerable.
First … (5 comments)
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bankruptcy: Bankruptcy Practice - Relief for Homeowners - 12/27/08 01:16 PM
Loan Modification companies are springing up faster than weeds in a summer meadow! Many are merely out to capitalize on the despair of others; similar to the lenders who dealt out mortgages to home owners looking to bridge the gap between wanting and affording. The loan modification companies' promises are often empty, but their pockets are full with credit card advances taken from unknowing home owners in despair. In the even to bankruptcy, those advances, ironically or sadly, may not be dischargeable!
California has a Foreclosure Consultants Statutes that strictly regulates such marketeers. But only through the guidance of experienced counsel … (8 comments)
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