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David Michael Benson
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David Benson’s Answers

262 total


  • What is the best way to evict a hoarder tenant?

    I understand that hoarding is a mental disorder and that you cannot evict a person because of that. My question is, how would they be able to get all his junk out when the eviction process is final? Would I have to pay to have it removed and store...

    David’s Answer

    If this is a Section 8 tenant, you might want to contact CMHA for guidance. If you provide market rate housing, take a look at, among other things:

    1. Your rental agreement, if any, to see if the tenant has breached any provision;
    2. Cleveland's Health, Housing, Building, Fire, or Safety Codes to see if the property is in violation and you or the tenant are exposed to misdemeanor criminal sanctions; and
    3. A local attorney with extensive experience in all kinds of evictions and criminal actions in the Cleveland Housing Court, as well as knowledge in housing discrimination law.

    Good luck!

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  • I am a teacher that owes 25,000 on my student loan. I have paid over 20,000 but it went to

    the interest only. I can't afford to pay more monthly. I am 63 years old and need help gettinh rid of this.

    David’s Answer

    You may want to consider a hardship discharge in bankruptcy if you are nearing the end of your work-life and your income is about to decline permanently. While these are not easy cases to win, I have seen instances where debtors have been given at least partial discharges. The problem for you is that most bankruptcy attorneys don't want to bring these cases since their success rate generally isn't high. But I think it's worth at least a conversation with a local attorney to explore your options.

    - BensonBankruptcy.com

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  • There has to be something that can be done

    the story is i called 911 when i found my mother they said a ambulance and police officer are in route together the police man showed up like 8 mins and the ambulance never even showed like thats not right at all to not even show to check up ca...

    David’s Answer

    Did the police contact the dispatcher and cancel the ambulance call? I'm assuming from the tone of your question that your mother was all right in the end. If there was no damage done, there is no civil claim. If you think that, as Public Enemy claimed, "911 is a joke," you've got a political question that would be best addressed to your council person and the mayor.

    Good luck in your efforts to improve service in your neighborhood.

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  • Filed a Chptr 7 pro se and the trustee is requesting that I provide proof of value of my home. What is acceptable to prove value

    I filed a Chapter 7 in Philly and the trustee is requesting documentation to show how I arrived at the home value. What is generally accepted in Philly as proof - tax assessment, Zillow, brokers opinion?? Please let me know what is acceptable as ...

    David’s Answer

    Obviously, the Trustee doesn't buy your stated home value. You can ask the Trustee if a county auditor's value is sufficient or whether he or she has another preferred method of valuation. But you would be letting the Trustee control this process. If you had a lawyer, he or she would know how properly to present a value acceptable to your judge and whether a battle with the Trustee over this issue is necessary.

    There's an old adage: "He who represents himself has a fool for a client."

    - BensonBankruptcy.com

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  • Can the trustee avoid a payment if I made it before within the 90 days of filing bankruptcy?

    I went to my 341 meeting and my trustee said he was going to try to take money I paid my landlord in the sum of $2200 and my default car loan amount of $3000 but both payments were made before the 90 day period. One payment was made on the 98 day ...

    David’s Answer

    If neither of these creditors are insiders, it appears that the Trustee is suggesting there was actual fraud when the payments were made. If this is the case, the Trustee will have to show not only that the transfer took place within one year of filing, but that the payment was made with the intent to hinder or defraud your creditors. In other words, the Trustee must prove you made the transfers in anticipation of bankruptcy and with the specific intent to keep those funds away from other creditors. If this is the thinking of the Trustee, I'm guessing there was something said at the meeting of creditors that is the basis for this decision to claw back the payments.

    This might be a good time to talk to your attorney.

    - BensonBankruptcy.com

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  • Hello, what happens to the Title of a home, where the mortgage has been forgiven?

    I was sent a letter from mortgage co/servicer Oc, It said: This letter is to advise you that as of 5/29/2015, Oc loan servicing has decided to release the lien on property located at XZY rd., forgive the mortgage dept, cease collection activity on...

    David’s Answer

    It appears that Ocwen has uncoupled the mortgage debt from the property and written off the debt in order to take a loss and move the note off its books. Soon, you may receive a Form 1099-C tax document regarding the forgiveness of this debt so you'll want to investigate whether you'll owe tax on this "income."

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  • Trying to prevent eminent foreclosure via Chapter 13 (after a 7 - less than 2 yrs)

    Concern: If I surrender my ONLY creditor (which happens to be a secured debt/mort) on a chapter 13, would it be accepted. I take it that once I file it's stamped PERIOD. HOWEVER, What can I put on the Plan which would follow 15-30 days...

    David’s Answer

    You need to make sure you have a law firm well versed in (1) bankruptcy and FDCPA violations, (2) foreclosure defense or wrongful foreclosure suits, (3) HAMP and other program modifications with knowledge of Treasury regulations and Reg Z claims, and (4) FCRA suits. Then, lay out your facts to those knowledgeable in these areas and listen to their recommendations. This is not an issue to be fleshed out on this site with such limited information. Good luck!

    - BensonBankruptcy.com

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  • I WAS TOLD MY CHAPTER 13 WAS DISMISSED BUT IT IS STILL SHOWING ACTIVE ON NATL BANKRUPTCY DATA SITE

    I was informed my case was dismissed for non payment on 6/11/15...I am planning to refile.. When I go onto the national bankruptcy data site it says my case is still ACTIVE... I am confused.. I live in NJ

    David’s Answer

    If this Chapter 13 case was done without a lawyer, your first step should be to find qualified counsel. More than 99% of cases filed without a lawyer fail. As a result, debtors representing themselves just end up wasting a lot of money before finally realizing they must find counsel in order to do it right. Stop the bleeding and get some help!

    As to your question, the docket is what matters and not a reporting site. If a court entry dismissed your case, it's dismissed and you can move on to either reopening your existing case or filing a new one. But again, which you choose to do should be done with proper counsel as to the cost and consequences.

    - BensonBankruptcy.com

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  • If I traded in a motorcycle to a dealership to buy a truck over a year ago, will this prevent me from filing Chapter 7?

    Is this considered transferring title within two years? I did not receive any money for it. It was traded in and is on my paperwork from the dealership. Thanks for your time.

    David’s Answer

    Transferring property prior to filing bankruptcy doesn't, in and of itself, prevent one from filing bankruptcy. However, preferential transfers and fraudulent transfers may be a problem that requires the assistance of good counsel.

    A fraudulent transfer is a transfer made in exchange for less than “reasonably equivalent value” or made to hinder, delay or defraud creditors. The consequence of this type of transfer can be dire. If the transfer involved actual fraud and occurred within a year prior to filing, then the court may deny the debtor a discharge. If there is only constructive fraud and the transfer took place within two years of filing, the Trustee may "avoid" the transfer and demand the asset be returned to the bankruptcy estate.

    A preferential transfer, on the other hand, is a transfer made within 90 days of filing if the creditor was not an "insider." An insider would be a close friend or family member and any transfer to them within one year of filing would be preferential. If the transfer is preferential, the Trustee may again move to unwind the improper transaction.

    - BensonBankruptcy.com

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  • Is there any way to purchase a family member's house while it still has an open foreclosure case in process?

    Court records show there is non-oral motion scheduled for August but we would like to know if there is anything we can do before then? It's a family home that we don't want to see lost to a foreclosure.

    David’s Answer

    If the house is under water, you can attempt a short sale to a relative. However, I would first suggest a loan modification application to stop the process if the current owner has an income and a desire to stay in the home. Lenders are prohibited from dual tracking and should not continue pressing the foreclosure once the application is filed.

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