Homestead Not Abandoned By Surrender To Lender In Bankruptcy

 Your homestead property is exempt as long as you intend to maintain the property as your permanent residence. When a homestead owner files bankruptcy he must declare his future intention regarding his homestead property and mortgage. The debtor must declare if he intends to reaffirm the mortgage and stay in the house or surrender the property to the mortgage lender and discharge personal liability on th mortgage note. If a debtor states on his bankruptcy petition that he intends to surrender his homestead, does that signify that he intends to abandon the property and preclude him from the homestead exemption? 

 
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Article Indicates Mortgage Lenders Decided To Encourage Short Sales

 Are mortgage lenders finally “getting it?” Since the beginning of the housing crash so many homeowners have expressed to me their frustration trying to work with their mortgage company to arrange a reasonable short sale of their real estate. These homeowners could not comprehend why the mortgage lender believed it was in their interest to foreclose on a property and then own the real estate instead of working through a short sale to dispose of the property to a ready and willing buyer. 

 
Bloomberg online published an article indicating many  banks have concluded  that moving property off their books through cooperative short sales is a better solution than foreclosure. The article states: 
 
Lenders have routinely delayed or blocked such transactions, known as short sales, in which they accept less from a buyer than the seller’s outstanding loan. Now banks have decided the deals are faster and less costly than foreclosures, which have slowed in response to regulatory probes of abusive practices
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Bloomberg’s article says that banks are even offering troubled homeowners cash bonuses up to $35,000 to find a short sale purchaser for their upside down property. 
 
If true, this is welcomed news for many troubled homeowners. If your mortgage lender previously discouraged a  short sale you may want to contact the mortgage service company to see if their policy has changed. My question is, what took them so long? 
 

Pay-On-Death Account Money Protected From Creditors After Your Death

 If other attorneys call me with questions I conclude that many laymen have the same question. A California attorney called today to inquire about his mother’s situation in Florida. His mother owns an upside down condo in Florida. She is elderly and ill. The mother’s biggest asset is a bank account which she titled in her name with a pay-on-death designation naming the attorney-son as death beneficiary. The son asked me if in the event the mother’s children do not continue paying the condo mortgage after her death could the mortgage lender take the money currently held in the mother’s bank account.  

 
 
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Bankruptcy Court Says No Claims Permitted For Conspiracy or Aiding And Abetting Fraudulent Transfers

 A recent bankruptcy court decision addressed the issue of whether people who assist a debtor’s pre-bankruptcy fraudulent transfers can be held liable for damages in the bankruptcy proceeding. In this case, a trustee hired to liquidate debtor property filed a complaint pursuant to Section 544(b) of the Bankruptcy Code against a group of people for conspiring with the debtor to make fraudulent transfers.  

The Court said that the bankruptcy Code provides for avoidance of fraudulent transfers, but it does not permit the trustee to pursue non-avoidance actions such as claims based upon civil conspiracy or aiding and abetting under applicable state law.
 
 
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Homestead Exemption For Mobile Home/RV Park

 One of my clients is concerned about a judgment from default on a second mortgage on his current residence. The client’s primary investment asset is a mobile home and RV park. The part comprises a large number of lots which are rented to different mobile home and RV owners. The RV park is located in the county and is smaller than 160 acres.  

The client asked if he could exempt the entire RV park as homestead if he moves his residence to his own mobile home located within his park. The issue is whether a large property used primarily for commercial purposes can be exempted entirely when the debtor resides upon the property. 
 
 
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IRA Assets Not-Exempt When IRA Is The Judgment Debtor

 A client maintains a self-directed IRA which has purchased rental real estate. The real estate is titled in the name of the IRA. The IRA owns several properties as well as financial assets. A tenant filed a lawsuit. The client asked me to reaffirm his understanding that if he lost the lawsuit the tenant/plaintiff could not satisfy the judgment against the other real estate and financial assets because IRAs are exempt from creditors under Florida law. 

All IRA holdings are at risk from a tenant suit. There is an important difference between IRA assets- assets owned by the IRS- and a debtor’s beneficial interest in his IRA and the proceeds the debtor receives from his IRA. A Florida debtor’s IRA interest as his IRA beneficiary is exempt from judgment creditors. That protection does not extend to the IRA itself. If the IRA is sued a creditor should be able to levy upon whatever the IRA owns. 
 
This question illustrates one of the risk associated with self-directed IRAs which invest in non-traditional assets other than marketable securities.