[SPAM] RE: [WSBAPT] HELP!! Real estate/Bankuptcy/Family Law? question
Dave Culbertson
dculbertson at culbertsonlawoffice.com
Fri May 23 16:45:23 PDT 2014
Thanks for the cites.
I was wondering about the use of the property in the 13 myself. I think
the court would have to approve expenditure of an asset that is in the BK
estate (even if the debtor has possession/control). You can only log it
once, after all. IF the logging isn't mentioned in the plan, maybe one
avenue of stopping the logging is to put an objection into the CH 13 case.
Best Regards,
Dave Culbertson
The Law Office of Davisson Culbertson, PLLC
19909 Ballinger Way NE
Shoreline, WA 98155
Phone: (425) 999-4998
FAX: (866) 867-7796
<mailto:dculbertson at culbertsonlawoffice.com>
dculbertson at culbertsonlawoffice.com
_____
From: wsbapt-owner at lists.wsbarppt.com on behalf of Eric Nelsen
Sent: Friday, May 23, 2014 3:31:54 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] HELP!! Real estate/Bankuptcy/Family Law? question
Good point, though if the property itself is upside down on a mortgage,
maybe that cuts both ways on a timber sale? Maybe the trustees can strip
some value from the property by logging it, then surrender the dirt back
to the debtors. Though the mortgage may have a clause attaching the
security interest to timber as well...I think there are just too many
unknowns. Maybe the general answer is that one needs to assess the
trustees' potential ability to pay unsecured creditors, and the possible
amount realized (and would the proceeds in fact still be encumbered by a
mortgage?), and determine if the logging can be halted by enlisting one of
the trustees to block it.
If there isn't any money to be realized for unsecured creditors, case law
is pretty clear that a trustee shouldn't pursue sale of property. Excerpt
from briefing I did a couple years ago: "It is improper (and pointless)
for a Chapter 7 Trustee to sell fully encumbered property that will
produce little or no money for the bankruptcy estate and the unsecured
creditors. See In re Lan Assocs. XI, L.P., 192 F.3d 109, 119-120 (3d Cir.
1999); In re Williamson, 94 B.R. 958 962-963 (Bankr. S.D. Ohio 1988)."
And if the trustee's aren't pushing for the sale, but haven't abandoned
the property yet, then is the ex- even allowed to log the property when
it's still under the trustees' control? Even if one trustee has abandoned
the property, the other would still have rights of control. Is a debtor
allowed to sell property without permission from the trustee?
Sincerely,
Eric
Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Dave Culbertson
Sent: Friday, May 23, 2014 2:39 PM
To: wsbapt at lists.wsbarppt.com
Subject: [SPAM] RE: [WSBAPT] HELP!! Real estate/Bankuptcy/Family Law?
question
This is tentative, but perhaps the BK’s don’t change the legal positions
of the parties as much as may seem at first. If she’s doing a 7, and the
Trustee has no interest in the property (perhaps it’s underwater from the
years of not paying the mortgage), then whatever property right she has is
still hers until such time as the bank forecloses on its loan and title
transfers. The same is true for him—in a 13 he retains his property.
Meanwhile, the bank can foreclose on both because the mortgage has been
unpaid for years, but apparently doesn’t find it economic to do so up to
this point. So it appears to me that whatever rights they mutually had
against each other prior to the BK’s they still have. That in turn depends
on whether its joint tenancy, etc. The property mavens may provide better
answers as to that. (Or even as to this, actually—I’m just taking a stab
at it).
Best Regards,
Dave Culbertson
The Law Office of Davisson Culbertson, PLLC
19909 Ballinger Way NE
Shoreline, WA 98155
Phone: (425) 999-4998
FAX: (866) 867-7796
<mailto:dculbertson at culbertsonlawoffice.com>
dculbertson at culbertsonlawoffice.com
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Kirsten Samwel
Sent: Friday, May 23, 2014 12:58 PM
To: wsbapt at lists.wsbarppt.com
Cc: Creditor Debtor Section
Subject: [WSBAPT] HELP!! Real estate/Bankuptcy/Family Law? question
Hi listmates,
I have a client who owns a piece of property with an ex-significant other.
This land has timber on it. Without tons of detail, my client was trying
to re-fi and her ex refused to cooperate. My client has filed a Ch 7 and
in that has indicated she intends to surrender the property. Her ex has
filed a Ch 13, and supposedly intends to reaffirm or redeem. The mortgage
on it has not been paid by either party in years. Now, the ex has
informed client that he is going to log the property. My client still
lives on it. They have both had 341 meetings, but no discharge for her
yet and his plan is still waiting confirmation. Is there anything she can
do to stop him? Does she even have a right to due to her intent to
surrender it? I am putting this onto the other list serves as well since
I not sure how to deal with this. Any sort of pointers, comments, etc.
would be truly welcomed.
Kirsten A. Samwel
Attorney at Law
Samwel, Cousineau & Shea, PC
700 W. Evergreen Blvd.
Vancouver, WA 98660
Ph: (360)750-3789
Fax:(360)750-3788
kirstensamwel at gmail.com
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