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David Michael Serafin

David Serafin’s Answers

52 total


  • In Oregon, what happens to the Chapter 13 plan payments I have made if my case is dismissed?

    In Oregon, if my case is voluntarily or involuntarily dismissed, what happens to all of the Chapter 13 payments that I have made? Does the Trustee have the authority once it has been dismissed to pay such things like child support arrears? Or, wha...

    David’s Answer

    I think it depends if your chapter 13 plan has been confirmed. If not confirmed, the Trustee (at least here in Colorado and most states) will either pay the child support arrears and/or allow your bankruptcy lawyer (if you have one) to file an Application for Administrative Expenses if the lawyer is owed fees which were supposed to be paid through the plan payments (all of which depends on who is owed what). If the plan has been confirmed, chances are that the trustee has already remitted the funds to the child support creditor. If you converted to chapter 7, then a similar analysis: the funds may either go to the bankruptcy lawyer or the recipient of the child support.

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  • When does the automatic stay end in a Chapter 13 bankruptcy?

    My husband and I were divorced in 2010. He filed Chapter 13 bankruptcy in 2011. A plan was just confirmed. He has to pay a few hundred dollars a month to the trustee for 4 years. One of the debts in his plan is lawyer fees from the divorce he ...

    David’s Answer

    The automatic stay will remain for the duration of the chapter 13 case so long as plan payments are made until discharge enters. The creditor could potentially file a motion for relief from automatic stay (as happens in many chapter 13 matters) but I don't see any grounds for this to happen here. So long as the automatic stay is in place, the creditor cannot pursue any type of collection activity - including a lawsuit - and, if there is collection activity, you may have a cause of action for contempt of court.

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  • Can i be garnished by the apartment place i live in if i am leaving 2 months early..I filed bakrupsy which was discharged in2011

    the apartment complex was listed in the bankrupsy but i couldn't move at the time..the living conditions hare are very poor and i must move out

    David’s Answer

    I think it depends upon how this residential lease was treated in your Statement of Intent (which is required to be filed in chapter 7 cases). It may be a violation of the bankruptcy discharge injunction for the landlord to garnish you if the original Statement of Intent clearly evidenced an intent to surrender the premises. Also, did you (or your bankruptcy lawyer) address this lease in Schedule G? Same analysis - there could be a violation of the discharge injunction if Schedule G indicates that rejected the lease.

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  • Should I file a Chapter 13. See details.

    I live in Middletown, Rhode Island. This is three apartment house. I live in one unit and try to rent out the other two units. I have been trying to get my mortgage company (ASC/Wells Fargo) and investor (GMAC) to do a loan modification for thr...

    David’s Answer

    Need more facts to make an accurate assessment. I have serious questions as to whether a bankruptcy judge would approve a chapter 13 plan if you have reduced income yet are $100,000 in arrears to the mortgage company. In other words, there are concerns with plan feasibility. Your plan payment, which also typically includes attorneys fees and the chapter 13 trustee's fee, could be close to $2,000/month, plus you're still on the hook for making the regular monthly mortgage payment. If you're still far behind on the mortgage, do not count on the lender approving a loan modification. Depending on your income, you may want to surrender the house and the accompanying deficiency in chapter 7 or 13. Especially if you anticipate high medical bills due to your fiance's medical condition.

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  • Chapter 13 payments

    I found out that I do not qualify for a chapter 7. What if I could not afford a chapter 13 payment plan the trustee wants me to pay. Is there a way to negotiate with the trustee. I already live tight without paying back the home I had foreclos...

    David’s Answer

    It looks as if you do not pass the chapter 7 Means Test and are required to pay back your monthly disposable income in chapter 13 for 60 months. Chapter 13 (as far as disposable income cases go) are not meant to be easy as the chapter 13 trustee's job is to make sure all disposable income (as defined by a formula disadvantageous to debtors in bankrutpcy) is paid to unsecured creditors. At least here in Colorado, it is possible to negotiate with the trustee particularly if there's doubt as to how a bankrutpcy judge would rule on a given legal issue. If you truly live on a very tight budget, and if your income only slightly exceeds your expenses, the plan payment may not be too high. The bright side is that - even in chapter 13 - you may still eliminate a massive mortgage deficiency in exchange for paying pennies on the dollar (interest free) to the unsecured creditors.

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  • We are foreclosing aug 30th. My mother in law suggested filing ch 13, if we did that would our mortgage payments be reduced

    Can't afford payments on house, two credit cards, medical bills,?

    David’s Answer

    Although nothing in the bankruptcy laws allow a bankruptcy judge to modify the provisions of the mortgage and promissory note to lower your monthly payment, bankruptcy will stop the foreclosure and allow you to cure any past due payments over a 36 to 60 month period (you would need to also keep making the mortgage payments going forward). But, if you can't afford the monthly house payment by itself, it may be worth surrendering the house in either chapter 7 or 13. If your income is below the median family income or if your expenses are high enough to allow you to pass the Means Test (see Bankruptcy Form 22A), it's best to surrender the house (and any resulting deficiency) in chapter 7. Even if ineligible for chapter 7, you may be able to eliminate most or all of the deficiency in chapter 13.

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  • Is there some rule that says after bankruptcy if a debt doesn't get reaffirmed it no longer exists?

    I claimed bankruptcy (7) and I didn't claim the house, will they try and get me to sign a new agreement or admitting to the debt itself?

    David’s Answer

    As you're required to list all assets and all debts in the bankruptcy schedules, a mortgage debt (as with unsecured debts such as credit cards and medical bills) will only generally be discharged if listed in the schedules (unless the Colorado chapter 7 trustee designates your case as a "no asset" case). But, there is a no requirement that a mortgage loan be reaffirmed and, even if an attempt at reaffirmation is made, a bankrutpcy judge will likely find that reaffirmation would create economic hardship for the debtor.

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  • I claimed Chapter 7 bankrupctcy. That stopped foreclosure. Does the debt have to be re affirmed (mortgage) when its cleared?

    Is there something to the effect that all debt has to be re-affirmed after the discharge is complete?

    David’s Answer

    Generally, you cannot reaffirm a mortgage after a bankruptcy discharge enters. Even if you could reaffirm a mortgage, I never recommend this as such would remove the mortgage debt from the protections of the bankruptcy "fresh start" and re-obligate the homeowner in Colorado to continued personal liability on the note - a distaster waiting to happen in the event of a subsequent mortgage default. A chapter 7 bankruptcy will only temporarily stop a foreclosure as the mortgage lender would either seek relief from the automatic stay or wait until discharge before re-commencing the foreclosure process in Colorado. Chapter 13 is much preferable to stopping foreclosure and making up past due mortgage payments (and lender fees which are reasonable and necessary) over 3 to 5 years.

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  • Keeping Your House in NJ

    Can you keep your house in New Jersey if you file a chapter 13? Does it depend on how much you owe? There also is approximately $100K in non-dischargable debt in addition to the mortgages, medical and unsecured debt.

    David’s Answer

    Chapter 13 bankruptcy is generally more favorable than chapter 7 if you're attempting to keep a house, especially if you're behind on mortgage payments and intend to keep the house. Chapter 13 allows you to stop a foreclosure sale and make up past due mortgage payments (plus reasonable lender's fees) stretched out over five years. So long as you make plan payments and the normal mortgage payment going forward, you'll make up the mortgage arrears completely and keep the house. Regardless of whether you're current on the mortgage and/or if your income qualifies you for chapter 7, chapter 13 bankruptcy is the best option if you have equity in your home above and beyond that allowed by the local (or Federal, if applicable) homestead exemption. Essentially, you would pay back the non-protected or excess equity in the house in chapter 13 and not risk a chapter 7 trustee attempting to sell a house which has value exceeding the homestead exemption. Also, unless the house is well over six figures upside down in equity, you should be below the Section 109(e) unsecured debt limits.

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  • If i am in chapter 13 do i have to give them money i received from the dept of energy from injuries from my father?

    My father was diagnosed with cancer that was determined to come from the Savannah River Site from too much exposure to radiation.

    David’s Answer

    It depends if these funds are held for the benefit of your father or, instead, are payable for your benefit. If for your father, this is not income for purposes of the Form 22C (and will not be factored into determining your monthly payment plan) but would need to be listed on the Statement of Financial Affairs as property held for another. But, if payable for your benefit, you are required to list such as income on the Form 22C and Schedule I.

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