To Our Clients & Prospective Clients -- As of March 18, 2020, Starr & Starr, PLLC remains open for business during the current Corona virus (COVID-19) crisis. We remain in communications with our clients by phone, email and our secure file share site. We are scheduling telephone consultations by phone and video chat. The U.S. Bankruptcy Courts remain open and we are able to continue to file new cases. The U.S. District Court remains open and we continue to file new cases. The New York State Court system has temporarily suspended “non-essential functions” which includes most civil matters.

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Articles Posted in Foreclosure

In response to questions we received from clients and prospective clients in New York City, Bronx, Queens, Manhattan and Westchester, in a series of 4 posts we are exploring the most common alternatives to personal bankruptcy for New Yorkers faced with money problems.

A prior post on our blog I Live in New York and Am Considering Bankruptcy — Should I Try Negotiating with My Creditors First? covered negotiating directly with creditors and/or collectors.

A second post I Live in New York and Am Considering Bankruptcy — Should I Try Debt Settlement First? addressed so called debt settlement or debt negotiation.

A third post I Live in New York and Am Considering Bankruptcy — Should I Try Credit Counseling First?
addressed credit counseling as an option.

In today’s post we will explore whether doing nothing is a viable option and what it means to be judgment proof.

Instead of Bankruptcy Should I Do Nothing — Am I Judgment Proof?

Unfortunately many people with financial problems by default seem to select the “Do Nothing” approach. This is the “ostrich approach” (the large bird that can’t fly that sticks its head in the sand when there is trouble). Unlike fine wine, personal financial problems don’t age well (they age more like fish left out in the hot sun).

If you have financial problems and ignore them they are likely to follow a very predictable path – COLLECTIONS followed by COLLECTIONS LAWSUIT followed by JUDGMENT followed by JUDGMENT ENFORCEMENT including wage garnishment and bank account seizures. If you deal with the problem at any early stage you may be able to nip it in the bud before it becomes a collections lawsuit or a judgment. By the time you are faced with collections lawsuits and judgments, doing nothing will usually not help you. Your creditors will not sit back and do nothing – they will most likely move forward in the collections process to try to get judgments against you and to enforce those judgments.
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There is an ongoing problem with a record number of foreclosures taking place this year throughout the New York metropolitan area. Many people in New York, Queens, Bronx, Brooklyn, and Westchester County are facing the prospect of losing their homes in foreclosure and are exploring their options. For many of them bankruptcy may be their best option. In a prior post New York Foreclosure & Chapter 7 Bankruptcy I discussed when and how chapter 7 can be used to deal with foreclosure in New York. Today we focus on chapter 13.

NY Foreclosure & Chapter 13 Bankruptcy

In chapter 13 the debtor keeps his/her property. The trustee does not sell it to pay creditors. Instead, creditors’ claims are dealt with over time. A debtor filing chapter 13 to deal with real estate problems, such as a pending foreclosure, needs to be able to make current mortgage payments as they become due and can seek to cure the arrears (i.e., past due part of the mortgage) over time through the chapter 13 plan. If a debtor is unable to make current mortgage payments as they become due chapter 13 bankruptcy may still be used as a means to try to prevent a foreclosure and obtain a voluntary sale of the debtor’s property (subject to Bankruptcy Court approval). This may be desirable when a debtor has equity in the property that would get wiped out in chapter 7 bankruptcy and wants to maintain control of the sale process.

Many people in New York, Bronx, Queens, Brooklyn, Staten Island and Nassau and Suffolk Counties are in danger of losing their homes through foreclosure these days. Bankruptcy may be a good option for many of these people to try to save their homes. There are three different bankruptcy options available to individuals, chapter 7, chapter 13 and chapter 11. Today we will look at when chapter 7 can be used to stop a foreclosure.

NY Foreclosure & Chapter 7 Bankruptcy

Once a debtor files bankruptcy the automatic stay goes into effect and prohibits the lender from continuing with the foreclosure. In chapter 7 bankruptcy a critical issue is whether the homeowner has equity in the home. Equity is the difference between the current fair market value of the home and all the mortgage liens on the property. In chapter 7 bankruptcy in New York the debtor is entitled to an exemption (i.e., gets to keep) up to $50,000 of equity in his/her home, or $100,000 if married and the home is jointly owned by debtor and his/her spouse. This is commonly known as a homestead exemption. If the equity is less than this there is no value for the bankruptcy estate to turn to cash to satisfy creditors’ claims. However, if a debtor has significant equity greater than the value of allowed exemptions then the chapter 7 trustee can seek to sell the home. In a sale by the chapter 7 trustee the mortgage(s) would get paid, the debtor(s) would get a check for the amount of their exemption, and the remaining money would go into the bankruptcy estate to be distributed to creditors by the trustee.

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