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Francis N. Soave

Francis Soave’s Answers

85 total


  • Will i b responsible for the difference between the amount of the mortgage and the sale price

    the ban k stated they would sell my commercial building for less then the amount of the mortgage just to get rid of it. will i have to pay that difference? i am only on social security but do have another property with a mortgage on it but continu...

    Francis’s Answer

    I would strongly advise you to seek legal and real estate broker advise, in that order. You should be negotiating a short sale and actively communicating with the lender to avoid a foreclosure.

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  • Do intangible assets, described in the details section below, held jointly/with beneficiaries require distribution per will?

    These assets include checking accounts, savings accounts, certificates of deposit, annuities. and life insurance policies. which are not specifically mentioned in the will. Property distribution under the will is 5 equal shares per stirpes. One ...

    Francis’s Answer

    Generally joint accounts go to the survivor outside probate. The will applies to assets in probate, generally speaking. See exceptions as noted by other attorneys. A full reading of the will by an attorney is advised.

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  • I am behind in my mortgage payments. Can I list on line 42 of means test? Had to quit paying when unemployment ended.

    Income still includes unemployment because you have to go back six months so it shows income we really do not have any longer.

    Francis’s Answer

    Yes. If you are having trouble passing the means test for chapter 7, professional advise would be in order.

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  • Is there a statue of limitations for a second mortgage to foreclose after it was discharged in chpt 7 in mi

    we reafirmed 1st mortgage and our current but would like to refinance and concerned if 2nd mortgage still has legal lein on property

    Francis’s Answer

    There is no statute of limitations on foreclosure by advertisement of a second mortgage. If they have a valid lien, and you are in default on payments, they can foreclose. Chapter 7 does not strip the lien.

    As far as walking away from the first, it depends on how much the first lender will bid in the foreclosure sale. If they bid your full balance, they cannot sue you. Consider short sale.

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  • Can I file for Chapter 7 again

    I filed chapter 13 in 06/17/05 converted into a 7 then discharged in 01/25/08. My question is can I file for another chapter 7 today?

    Francis’s Answer

    There may be alternatives to bankruptcy that will tide you over until you can file. Or they may substitute for filing. We practice in the Eastern District of Michigan, where a Pontiac case would be filed.

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  • We filed Chapter 7, later in the day, landlords filed eviction what about the "automatic stay" rule?

    Adding more info to my previous question: We live in Michigan. We received our "7 day notice" on May 3rd. Our bankruptcy was filed in the am of May 11. Later that day, our landlords filed for eviction for non-payment of rent. Does the "automatic ...

    Francis’s Answer

    The automatic stay does apply. The landlord must file a motion in the bankruptcy court for relief from stay before proceeding in district court.

    Any notice of the filing which was ignored by the landlord could lead to costs or sanctions.

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  • Trust information!

    Once the decease person dies (grantor) and leaves a surviving spouse. His trust becomes irrevocable and his shares are distributed to the beneficiaries listed by the requirements of the trust. The surviving spouse trust is revocable until her d...

    Francis’s Answer

    Trust terms are tailored and drafted individually in every case. It is up to the grator/settlor and his/her attorney to determine the terms. The trust terms you describe in your question are examples of terms which could be contained in an estate plan containing the trusts of spouses. There are other options as well. The trusts must be read by an estates attorney to provide an opinion.

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  • Chapter 7 with 1st and HELOC

    I am currently in the process of chapter 7 bankruptcy. I have a first mortgage with Wells for $235,000 and a HELOC with Chase for $42,000. My home is worth about $225,000 and my total payments on both liens is around $1,556 a month (54% of my mont...

    Francis’s Answer

    Attorney Ashman is correct that the lien could be stripped in a Chapter 13. Coversion to a 13 involves additional costs in attorney fees, and payments to creditors through the Chapter 13 standing trustee over the course of 3 to 5 years. This is in contrast with Chapter 7 which results in discharge in approximately 90 days and no creditor payments, in most cases.

    It would require a consultation with qualified and ethical counsel to advise you in that regard.

    With the facts you describe, I can't imagine how you would financially justify spending 5 years and thousands of additional dollars to strip off a lien on a home whose mortgage exceeds the value by $10,000.

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  • How does a family trust work? If he owned a business, does the business goto the trust if his wIll has a pour-over clause .

    My father has a family trust, in his trust, he has the beneficiaries listed with the percentages of assets to goto each beneficiaries. List also in the trust agreement, he has ages and percentages of assets to be distributed at certain ages. Hi...

    Francis’s Answer

    Your father's pour over will would only be effective with regard to assets which were part of his decedent's probate estate. If there were no assets to be administered through probate, then the pour over will was never invoked.

    In the situation you describe, the conventional advise to the client (your father) would have been to title assets in his trust while he was alive, to avoid the assets becoming part of a probate estate. So it would be typical for the stock in the business to have been titled in the name of his trust, or perhaps in the names of both trusts. Your question doesn't present enough information to be able to make that determination.

    You would need to have the trusts themselves reviewed, along with other information and documents which would be more revealing of how the assets were transferred.

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  • Chapter 7 with 1st and HELOC

    I am currently in the process of chapter 7 bankruptcy. I have a first mortgage with Wells for $235,000 and a HELOC with Chase for $42,000. My home is worth about $225,000 and my total payments on both liens is around $1,556 a month (54% of my mont...

    Francis’s Answer

    Bankruptcy law doesn't allow you to "cram down" or "strip off" the unsecured lien of the HELOC. So even though you will no longer be obligated personally for the balance of the HELOC, their lien continues on the home. So reaffirming on the first, but not the second doesn't provide you with any advantage. In my opinion it is very risky to reaffirm real estate loans in this market. In Michigan, it has been the standard practice for lenders to continue to accept payments and not exercise any default remedies against borrowers who refuse to reaffirm, as long as they continue to make payments after the Chapter 7 Discharge.

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