There was a recent question posted on an attorney referral website. The person posting it said that he/she had a home where the mortgage and the exempt equity was more than the value of their home. They wanted advice on timing of a special motion to try to get the home out of the bankruptcy estate.
It is a prime example of what happens when one does not know what they are doing. While this is about a home, the same applies to other assets as well. This shows why you do not want to be your own bankruptcy attorney.
Representing Yourself in Bankruptcy
I take it that if you are talking about filing a motion to compel abandonment as the case is filed that you HAVE NOT FILED yet.
My advice to you is DO NOT FILE WITHOUT an appraisal from someone who the Trustees and judges know is completely honest and highly skilled. Then hire an extremely well qualified experienced Bankruptcy Attorney. You can LOSE YOUR HOME when you do not know what you are doing.
Would you do brain surgery on yourself? No you would not, no matter the cost. Can you afford to do the legal equivalent by doing “Bankruptcy” on yourself? Not if you understand the real risks in doing so.
You state that: “my equity and the mortgage is higher than the value of my home.” That does not tell anyone whether you would be using just a little of your exemption or ALMOST ALL of your EXEMPTION with little or no room for error.
Outcomes of Representing Yourself in Bankruptcy
Over the last 41+ years I have seen many homes lost because the Trustee decided that the home could be sold for more than the unrepresented Debtor thought it could. You cannot afford to be wrong on this.
Another thing to realize. If the Trustee does sell the home the exempt amount is held by the TRUSTEE, not by you. If you buy a home the Trustee will put the funds into the escrow and they will NOT be released to you personally, ever. Further, if you do not close escrow on a replacement home within 180 days, the exemption DISAPPEARS as if it were not protected on the day that you filed the case. Put simply, YOU LOSE THE HOME AND THE MONEY!!!
Do you know anyone who will sell you a home or finance your purchase of a home right after a bankruptcy? If so, please let me know. I would love to know who.
Have you considered the issue of whether you are going to be able to protect the equity in your vehicles? How about next year’s tax refund? Other assets?
Trustees love to wait for you to file your tax return NEXT YEAR as it gives them an excuse to keep the Bankruptcy Estate open and not abandon anything. Then they wait to have the equity in your house go up to where they can sell it to generate the estate some money and the opportunity to glom onto the “exempt” money.
This is the tip of the iceberg. What sank the Titanic was what was below the water line that the crew could not see.
This is NOT about filling out papers like many people (and a sad number of attorneys) seem to think. This should be left to the experts.
If you are going to do this, hire a real attorney. I would suggest that you find a California State Bar Board of Legal Specialization Certified Specialist in Bankruptcy Law. There are less than 200 in the whole state. Many represent Creditors, Corporations and Trustees. A much smaller percentage represent consumers like yourself.
Another place to find quality attorneys that represent only consumer and small business debtors is the website for the National Association of Consumer Bankruptcy Attorneys (NACBA.)
If you can find an attorney that is on both of these lists, so much the better. BTW, I am on both lists and have a 10.0 rating by the AVVO attorney rating service.
Can you afford the risk? If not, buy a lotto ticket. Just don’t bet your home on representing yourself in bankruptcy. It is a fool’s bet.
