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Roman Vincent Hammes
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Roman Hammes’s Answers

35 total

  • Is it possible to be both plaintiff and defendant in the same case?

    Is it possible for a bank to sue itself in a foreclosure case? The case is filed in Florida, it is a foreclosure case. I just noticed that Wells Fargo is listed both as a plaintiff and as a defendant. I'm a little confused, and would like to know ...

    Roman’s Answer

    • Selected as best answer

    It is not unusual in a mortgage foreclosure case to see the same bank listed as the plaintiff and a co-defendant. In these cases, the plaintiff bank typically holds a first mortgage on the property as well as a second or junior mortgage/ lien on the property.

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  • What if you had 7 investment homes that ended in foreclosure & recently received motions for deficiency judgment totaling $500 K

    My business went from thriving in 2007 to struggling in 2012 to keep our doors open. I'm up to our ears in debt in both business & personal and barely working. I hired any attorney to represent both me & my business corporation in the foreclosur...

    Roman’s Answer

    From an individual perspective, a chapter 7 bankruptcy is probably the best course of action to address your personal liability on the deficiency judgments. I assume you will either qualify for chapter 7 because (a) your income is low enough to qualify under the means test or (b) your business/investment debts exceed your consumer debts. On the business side, the situation can be more tricky if you are planning to keep the business operating. I recommend that you to an experienced bankruptcy lawyer asap.

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  • I included my condo in a chapter 7 in August 2011. I have moved out and the bank still has not taken the condo.

    I'm concerned about the HOA coming after me for homeowners fees that I have not paid, and having an abandoned property when I no longer live in the state. Is there anything I need to do to get the bank to take over the condo. I'm not trying to k...

    Roman’s Answer

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    Here is what I wrote as a legal guide on the dischargeability of HOA dues in chapter 7. The same applies in your situation:

    The dischargeability of HOA dues in a chapter 7 case requires a somewhat convulated explanation. First a pair of important distinctions. There is a distinction between (a) HOA dues that accrue before the chapter 7 case is filed and (b) HOA dues that accrue after the chapter 7 petition is filed (including any assessments that first become due while a chapter 7 case is pending). There is a further distinction between (a) in personam liability (personal liability) and (b) in rem liability which relates to the HOA's lien rights against the property.

    A chapter 7 discharge eliminates a debtors personal liability for HOA dues that accrued before the filing of the bankruptcy case. However, a debtor remains liable for HOA dues that are first assessed after the filing of the bankruptcy case (see 11 U.S.C. section 523(a)(16)). In Florida, so long as the property is titled in the debtor's name, the debtor is personally liable for post petition HOA dues.

    As a general rule of thumb, a chapter 7 discharge does not invalidate an HOA lien filed against the property before the filing of the bankruptcy case. Post- discharge, an HOA can sue the debtor in rem to foreclose on the property on account of the pre-petition lien. However, any judgment entered in that case, does not create personal liability on part of the debtor. In some cases, the HOA will file suit to foreclose the pre-petition lien and seek an in personam judgment against the debtor. In these cases, the amount of the personal judgment should be limited to post- petition assessments only.

    Practically speaking, if a debtor wants to avoid the foreclosure of the pre-petition HOA lien, he will have to pay off the pre-petition debt (either in full or through a settlement with the HOA) even though that debt has been discharged.

    In your case, you have a handful of possible solutions: (a) try and sell the condo through a short sale, (b) try and deed the condo to the condominium association in exchange for a release of the post petition assessments, and/or (c) try and deed the property to the bank in lieu of foreclosure. You may also consider renting the condo and using the rent to pay the assessments as they become due.

    I recommend that you speak with a lawyer experienced in these types of matters to see what potential solution best fits your particular situation.

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  • I received a final summery judgement on forecloser is there anything that i can do to stop public sale

    case started 2010 boa mortgage just got final summery judgement

    Roman’s Answer

    If you file a bankruptcy case prior to the sale, the automatic stay will prevent the bank from moving forward with the sale. This, however, may only be a temporary fix depending on the particulars of your situation. What are your goals relative to the property? Do you want to retain the property long term? Are you in a position to afford a loan modification? I recommend that you consult with an experienced debt/ bankruptcy lawyer as soon as possible.

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  • Bankruptcy filing on Statement of Affair,when asking about transfer of property does it mean "cars" or just property like land

    Does it mean like transfer of ownership of vehicles lieks trucks and trailers or are they only meaning land building, houses, etc.?

    Roman’s Answer

    Yes, you are required to disclose the transfer of vehicles.

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  • Is the decision for Chapter 7 lien strips being appealed? And if so, when is the appeal going to heard? Thank you.

    Just wondering if I have time to save up to file a Chapter 7 bankruptcy?

    Roman’s Answer

    The 11th circuit reconvenes in October and may take the issue up then.

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  • If i send money to my creditor

    they report any money i send to my credit collector

    Roman’s Answer

    And the question is?

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  • I paid $8,000.cash for a car April 2011. The individual filed bankruptcy in July 2011 and claimed the car. What can I do?

    The car is a 2004 Crossfire, it had 98,00- mi. I was dealing with this father & son. I received a bill of sale stating purchase price $5,000. and that I would receive the title in 30 days, which would have been May 18 2011. The car was in the fath...

    Roman’s Answer

    Is the trustee coming after the non-exempt equity in the vehicle? If the father filed in July 2011, I assume the answers to this question is no. Were you listed as a creditor on the bankruptcy schedules? If not, you may have grounds for a legal action against the father for specific performance and damages.

    This sounds like a complicated situation and I recommend that you speak to a lawyer as soon as possible to discuss your options.

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  • If I file for emergency bankruptcy to stop a sale ,how much time do I get until the bank lifts the stay and gets a new date?

    What are the consequences of filing an skeletal bankruptcy to stop a sale only?

    Roman’s Answer

    It is difficult to predict how a bank will act without more information. In some cases, the bank files a motion for relief from stay within the first 30 days of the bankruptcy case. This is more common if the property is commercial. In other cases, however, the bank waits until the bankruptcy case is closed (the automatic stay terminates upon the earliest of dismissal, discharge or the closing of the case) to resume the foreclosure action. Depending on how much of a priority the foreclosure is to the bank, the fastest I'd estimate that a bank can obtain relief from the stay and have a foreclosure sale reset is approx. 60 days.

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  • Our foreclosure will be finalized 10/2 and we do not know what the best course of action to take-short sale, bankruptcy, etc?

    All efforts to modify the loan were denied, basically because husband is self-employed. Everytime we reapplied, int. + fees was compounded so we needed to show more income or less exp. on the bal. sheet. We really don't want to move. We received a...

    Roman’s Answer

    I agree with Ms. Golant. By sitting on your rights, you loss leverage in working a favorable solution to the debt problem.

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