First off, I am not a CPA—or even a tax attorney. However, a large number of potential clients who visit me to inquire about the advantages of bankruptcy relative to those of a short sale (or outright foreclosure walk-away) when distressed real estate is their primary concern have not realized that there may be tax-related disadvantages to the short sale of a property or walking away via foreclosure.
Indeed, there can be.
One of the primary reasons that people are filing for bankruptcy these days is to let go of and truly walk away from real estate that is significantly underwater or in foreclosure. Bankruptcy is in nearly all cases a vastly more cost-effective and time-efficient means of walking away from a home than is a short sale in which homeowners must negotiate with and often pay off lenders to get their agreement on the sale (not to mention the tax liability that short sales can leave them with!), and it is certainly more effective than simply letting a house go to foreclosure, which, particularly here in Michigan, can result in potentially huge “deficiency debts” to the mortgage-holding bank.
However, the surrender of a home in bankruptcy, which requires no negotiation with creditors or banks, incurs no tax liability, and leaves you free from worry over collections for deficiencies owed, unlike short sales, does not instantly immunize a homeowner from all costs associated with the property. Until the home is, per the deed or title filed with the register of deeds for the county in which the home sits, no longer titled to the homeowner, there will remain some costs: insurance and maintenance, primarily.
Sen. Richard Durbin (D-Il) has introduced new legislation, S. 1110, The Fairness for Struggling Students Act of 2011. This legisltation would re-introduce the possibility of a discharge in bankruptcy for private student loans, which have become one of the largest debt burdents not just on American students but also on American taxpayers at large.
Posted in Bankruptcy, Chapter 13, Chapter 7, Michigan, Student Loans
Tagged Bankruptcy, Chapter 13, Chapter 7, Michigan, Student Loans
It may sound logical that, if you pass away after filing a bankruptcy case, your banrkutpcy proceeding will terminate along with you. This is not so, however. A bankruptcy case will continue after the death of a filing debtor in either a Chapter 7 or a Chapter 13 context, though there are steps your attorney might take to either shepherd the case through to a successful, post-mortem discharge or to terminate or dismiss the case, if necessary.
Placing assets into a trust is not always an effective means of protecting those assets from creditors, or, thereby, from the asset liquidation power of Chapter 7 Bankruptcy Trustees.
As I’ve written here before, a Chapter 7 Bankruptcy is a “liquidation” bankruptcy both in that your debt is liquidated, or discharged, and in that there is a possibility that your assets will be liquidated during the bankruptcy process. A Trustee assigned to your Chapter 7 Bankruptcy case by the Bankruptcy Court has the duty of seizing and liquidating personal assets that are valued above the limits of the protective exemptions provided by the Bankruptcy Code statute. While, in most Chapter 7 Bankrutpcies, these exemptions are sufficient to cover everything a typical household generally has, some higher earning or higher asset households may include assets that cannot be protected with the available protective exemptions. Thus, in a Chapter 7 Bankruptcy, those assets are subject to seizure and sale for the benefit of the filing person’s creditors by the Bankruptcy Trustee.
A Chapter 13 bankruptcy, as I’ve described here in prior posts, is essentially a monthly payment plan in which some and sometimes all of your debts are paid according to what, in theory, you can afford to pay after your basic household expenses are met each month. In other words, you pay in a Chapter 13 what you have left over each month of your available income after paying your household bills.
The question, from the point of view of the Chapter 13 Trustees who are assigned to your case by the Bankruptcy Court after your case is filed and whose job it is to review proposed Chapter 13 Plans and either approve or object to them, is: what is a necessary household expense?
Posted in Bankruptcy Laws, Bankruptcy Process, Chapter 13, Expenses, Michigan, Tuition
Tagged Bankruptcy, Chapter 13, expenses, Michigan, private school tuition
As of December, 2011, the amount of acreage owned is no longer a factor in determining the length of the post-foreclosure sheriff’s sale redemption period in Michigan. Prior to December, 2011, foreclosure of land more than 3 acres required a “redemption period” of 12 months as opposed to the 6 months required for non-abandoned property of less than 3 acres.
Overpayments of Social Security benefits are unsecured debts just like credit cards and medical bills, and they are therefore dischargeable in Chapter 7 and Chapter 13 bankruptcy in most cases, short of any finding of fraudulence in the acceptance of the payment by the recipient. In other words, so long as you did not accept the payments knowing that you were not entitled to it—or knowing that you were about to file for bankruptcy—the overpayment amount can be discharged in a Chapter 7 or Chapter 13 bankruptcy.
While Bankruptcy is one of the most cost-effective and efficient legal means of walking away from an underwater or foreclosed home available, it is also, under the right circumstances, a better means of saving a home in danger of foreclosure than other non-bankruptcy strategies, such as mortgage modification.
Chapter 13 bankruptcy is a “reorganization” bankruptcy rather than a complete liquidation of debt as in a Chapter 7. A Chapter 13 is, basically, a payment plan enforced by the Federal Bankruptcy Court upon all of your creditors, whether the debt is a “dischargeable” debt like a credit card or “non-dischargeable” debt like a child support arrearage or recent income taxes owed. Contrary to popular belief, you are not required to pay back 100% of what you owe to your creditors in a Chapter 13.
