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Can A Trustee Sell A House That is Underwater?

By Scott Riddle on July 10, 2015
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underwaterhouseIn a previous post we discussed in detail the math that applies when a Chapter 7 Trustee is deciding whether or not to sell a house.  In short, unless there is significant equity over and above exemptions, rarely will a Trustee be interested in taking a second look at the house.  There is simply no value to the Bankruptcy estate or creditors. Why would a Trustee waste time and resources for their $60 fee in a no-asset case?  A recent case in Georgia shows that there are exceptions to the general rule that a Trustee will not sell a property that is underwater (i.e., the house is worth less than the secured debt).

In the case, the house had a first priority loan of $227,000 and second and third liens (from the same lender) in the combined amount of $129,000.  Presumably, the payments were not being made and the first lender was going to foreclose and wipe out the junior liens.  The Trustee marketed the house and received an offer of $280,000 — well below the total amount of the three liens.  That is not enough for the Trustee to bother with, right?  No – the Trustee actually negotiated with the creditor holding the second and third liens and reached an agreement to sell the house and pay that creditor $9,000 from the sale proceeds — basically, a short sale.  After the first lien was paid in full, closing costs were paid and the junior creditor was paid $9,000 it left about $25,000 for the Chapter 7 Estate.  The Court stated this was a win/win as the first lien holder was paid in full without a foreclosure, the second lien holder received $9,000 it would not have received if there was a foreclosure, unsecured creditors shared about $6100 (after estate expenses) and the debtors received a discharge of their debts without a foreclosure on their record.

As an aside, the actual issue in the case was not an objection to the sale of the house, but the Debtors’ claim that they should be paid their exemptions from the sale proceeds.  The Judge denied the request, holding that the sale proceeds were based on the work and efforts of the Trustee and would not have otherwise existed but for the Trustee.  It was noted that courts in other states have held differently so, again, we see the importance of having good counsel in the case.

For those interested, the case is In re Diener, Case No. 11-83085-mhm (July 6, 2015).

 

 

Photo of Scott Riddle Scott Riddle

Scott Riddle has over thirty years’ experience in Bankruptcy and business and real estate litigation and has represented individuals and businesses throughout Georgia and several other states. Scott graduated from The University of North Carolina at Chapel Hill with a BSBA in 1987…

Scott Riddle has over thirty years’ experience in Bankruptcy and business and real estate litigation and has represented individuals and businesses throughout Georgia and several other states. Scott graduated from The University of North Carolina at Chapel Hill with a BSBA in 1987 and received his JD, with honors, in 1991 from the UNC School of Law. After graduation from law school, Scott served as a judicial law clerk for Judge W. Homer Drake, Jr., United States Bankruptcy Judge for the Northern District of Georgia. He then spent several years in the Bankruptcy and litigation sections of a large international law firm based in Atlanta prior to starting his own firm.

Scott is admitted to practice before the Supreme Court of Georgia, Georgia Court of Appeals, Eleventh Circuit Court of Appeals, and U.S. District and Bankruptcy Courts for the Northern, Middle and Southern Districts of Georgia. He has also been admitted to practice pro hac vice in the courts of several other states.

Scott has spoken at several continuing education seminars, and in the community, has been a member of the Kiwanis Club, Buckhead Business Association, Rotary Club and North Point Community Church. He has been cited in several publications, including the Wall Street Journal Online, Atlanta Journal-Constitution, Atlanta Business Chronicle, Fulton County Daily Report, and CNN.com. Scott is a member of the State Bar of Georgia (Bankruptcy and Litigation Sections), served several terms on the Board of Directors of the Bankruptcy Section of the Atlanta Bar Association, and is a member of the Georgia Chapter of the Turnaround Management Association and the American Bankruptcy Institute.

Away from the office, Scott is very active in his community. In addition to volunteering with local charities, Scott has participated and led mission and relief trips to orphanages in Russia and Romania, conducted English camps in Romania and Poland, participated in earthquake relief projects in Haiti, and participated in, and helped organize, an earthquake relief trip to Chile. He also supports Lighthouse Family Retreats, and participates in weekend retreats for children suffering from cancer and their families.

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  • Posted in:
    Bankruptcy
  • Blog:
    Georgia Bankruptcy Law Network
  • Organization:
    The Law Office of Scott B. Riddle
  • Article: View Original Source

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