Two roads converged in a yellow wood,

And sorry most could not travel both.

 

When Debt Relief Intersects with Real Estate

 

 

 April
2013 Edition

 

Real Estate   Business   Litigation   Bankruptcy

    (MSBA Certifed Specialist) 

  

Greetings! 

 

Apologies to Robert Frost.  (I've been looking for an opportunity to toy with his work.)

 

Sources say consumer bankruptcies nationwide are down by 14% in 2012, and are expected to decline 7% in 2013. That's good.  I don't know that I'm seeing the same decline in prospective bankruptcy client calls though. My observation is that real estate economy issues are still taking their toll.      

 

Most of my bankruptcy clients are also dealing with real estate issues - foreclosure, short-sale, second mortgages, HOA conflicts, rents, mechanic liens and so on. Two legal roads converging to add a bit of agony to a bankruptcy file. - Steve

 

peerless fan 

 

 A big fan of - speaking the language!

 

Meet me at the intersection of real estate and bankruptcy!   
 
There are a lot of bankruptcy lawyers out there these days.  They speak "bankruptcy" pretty well.  (Some of them, anyway.  Others seem to know just enough to order the most popular thing on the menu.)  There are a fair number of real estate lawyers, although not as many specialists as you might think.   Judging from the number of clients I meet with bankruptcy-related real estate problems, there doesn't seem to be a lot of bankruptcy lawyers who also speak "real estate".  Here are some tips.
  
1.  When the bankruptcy petition is filed everything changes.        The trustee takes control of the estate, including everything related to the real estate.  In most cases the trustee doens't want that control - there's nothing in it for him/her or the bankruptcy estate.  But until the asset is "abaondoned" or consent is given, the debtor isn't allowed to sell the property, nor to rent it out, nor to spend money on it, nor to take value out of it.  
  
2.      
Foreclosure may be stopped when the petition files.  If the sheriff's sale hasn't occurred then filing the petition will invoke the "stay", and the sheriff's sale will be cancelled.  It won't start again until the mortgagee either gets a court order lifting the stay, a discharge issues, or the bankruptcy is dismissed.  If the sheriff's sale HAS occurred, then filing the petition will not stop the foreclosure - but it WILL prevent the redemption period from ending for 60 more days.  That means the redemption period will be extended ONLY if the petition was filed within 60 days prior to the end of the redemption period, and then ONLY until that 60 day period has passed.
 
 3.       The right to collect rents is turned over to the trustee.  But the trustee generally can't just collect the rents - s/he also has to take over managing the property.  A chapter 7 bankruptcy generally only lasts 60 - 75 days, so usually the rents to be collected aren't worth the hassle and possible expense and liability that accompany property rental. Look for the trustee to abandon the asset AND the rents.  If so, the owner/debtor may keep the rents collected. 
 
 4.       Security deposits may be at riskThe trustee can claim any non-exempt property owned by the debtor.  The debtor owns the security deposit - subject to various rights enjoyed by the landlord, like keeping some or all of it under certain circumstances.  For most bankruptcy filers the security deposit is a non-issue because it's unlikely the lease will terminate during the bankruptcy.  But if the lease does terminate, then the security deposit must be refunded to the tenant (less permissible deductions), and then it's fair game for the trustee.
 
 5.       Contracts for Deed are a puzzlementSeems like most bankruptcy trustees don't speak a lot of "real estate" either.  It's an interest in real estate, but it's also an executory contract.  It has value, but how do you quantify it?  Treat it like a mortgage?  Treat it like rent?  Pretend it doesn't exist?  Well, certainly not that last option.
 
6.     Second mortgage status?  Funny thing about mortgagees.  They're all convinced they're "secured".  But in bankruptcy if there is no value in an asset to "secure" the debt then the lender isn't secured.  Most of the time it's not an issue, since the first mortgagee will foreclose and the juniors will have redemption rights if they want them.  If they don't, the second mortgage debt will discharge along with all the other general unsecured debt.  But interestingly, in Chapter 13 if a junior mortgage is wholly unsecured (i.e., there is absolutely no equity securing it) there's a process by which that second mortgage can be stripped from the property, leaving the creditor without even a worthless mortgage to protect it.  At the end of the Plan period the junior mortgage(s) are discharged even if the debtor kept and continued to pay the first.  That's a simplification of the process, and Minnesota doesn't make it any easier.  But it's something to consider.
 
7.       Real estate taxes are peculiar too.  Real estate taxes are "in rem" - they attach to the property moreso than to the property owner.  It's a tax debt that doesn't discharge, but it doesn't follow the property owner either, except as part of a mortgage debt IF the mortgagee has paid the taxes and added it to the default, and IF the mortgagee manages to escape being discharged. 
 
8.       Divorce property.  Divorces often result in one spouse quit-claiming property to the other as part of a property division, and the the receiving spouse taking responsibility for the mortgage payment.  BUT divorce courts generally have no jurisdiction to force a mortgage company to release one spouse from the mortgage debt.  When one ex-spouse files bankruptcy and the other doesn't, only the filing spouse's debt is discharged.  Anyone else on the note or mortgage is left with all the debt, and maybe a nice claim under the divorce decree for reimbursement of financial damages.  Which doesn't do much for the credit score damage done.
 
9.      Deeding outNo, you can't just quit-claim (or even short-sell) your interest away and forget about it.  There's a look-back period for disclosures and the trustee may, under some circumstances, be able to void it and recover the property for resale. 
 
10.   Listing agreements aren't immune A listing agreement is an executory contract.  The trustee can take that over too, or void it.    If a buyer has already been identified and the commission earned, then arguably the broker is another unsecured creditor, and the obligation to pay a commission may be discharged, the agreement voided, and the trustee could arguably contact the buyer directly.  I've never seen that happen though. 

 


Let me know if you have questions or comments about these topics or others. 

Visit my website, www.lodgelawoffice.com, to read more about me, my practice and areas of law that are relevant to you and your business.
Sincerely,



Steve Lodge, Esq.
Steven J. Lodge, PLLC

2006 First Avenue N, Ste. 201

Anoka, MN 55303

(763) 427-9066 (main line)

(763) 205-3058 (direct line)

(763) 447-3627 (fax)

steve@lodgelawoffice.com

 

 

Nothing in the email is intended to constitute legal advice.  The contents of this message are only a cursory description of general terms and their usage in a typical real estate transaction setting.  Your transaction and the documents you have signed or may sign may not be consistent with these descriptions.  You should consult with an attorney who focuses his/her practice on real estate matters before signing any real estate or loan instruments.