Chapter 7 Non-Exempt Assets Question

[SallyX]

What is the name of your state? Florida
I filed Chapter 7 in July, (in Florida). Had my 341 in August. Trustee had what she referred to as "concerns" with my file. I was represented by counsel through the 341. She asked for a one month extension, which was granted. She then hired an attorney and requested a 2004 Examination. When I was notified about the deposition my attorney needed additional funds which I did not have. He withdrew from my case, so I am now handling this myself.
The 2004 Examination went well, and after about thirty minutes he advised me he would grant me a discharge. That was about two weeks ago.
Yesterday, I received in the mail from the Trustee a Joint Stipulation for Settlement for the non-exempt equity in my vehicle. She wants $5,500 payable in increments of $925 per month for the next six months, beginning next week, or she will file a Motion to Compel the turnover of the vehicle and a Notice of Sale. In addition, in bold type the notice says, "The Discharge of Debtor shall be withheld pending complete payments of all sums herein." (Is this delaying the discharge standard, by the way?).
First, the vehicle is owned free and clear. The title reads John OR Mary Jones. I, and my then attorney, took this to be joint ownership. The Trustee is taking the position that the title must read John AND Mary Jones to be considered joint ownership. This seems to be a legal grey area. Can anyone answer this question definitively?
Second question: earlier in this process my attorney made an offer for repayment of $3,000. This was based on our assertion that the bankruptcy estate became co-owner of the vehicle with my non-filing spouse. As such, my offer of $3,000 would be to repurchase the bankruptcy estate's one half interest in the vehicle. That was two months ago and the offer was never replied to.
Do I now have any options? Can I counter offer? (Although I don't see any indication on the Trustee's part of wanting to negotiate.)
Is there a legal alternative for me? A third party, perhaps, who resolves such issues?
Thank you.

 

[Ladynred]

Sounds to me like you need to get some clarification from the State of FL as to what constitutes JOINT ownership. If the state says an "OR" title = joint, then you may be able to argue that and negotiate with the Trustee.

Yes.. the Trustee can delay discharge in this manner

The $3,000 "offer" you and your attorney made, was it made as a formal Motion to Redeem ? If so, then there is something about 'non response' to a motion that you might be able to use.

 

[Ladynred]

Found something interesting regarding vehicle titles and joint ownership in FL !!


"If the vehicle is purchased by joint ownership, why do both parties have to be present? Can I sign for my spouse?

If a vehicle is purchased by joint ownership with "or" between the two names, both signatures are required on the application for Florida title, per section 319.22, Florida Statutes. (See DMV Procedure TL-01). "

You may be able to use this but I'd make a phone call ASAP for clarification !!


This is where I found that :

http://www.hsmv.state.fl.us/dmv/faqtitle.html#13


And here's what the Statute 319.22 states:

"1. When a motor vehicle or mobile home is registered in the names of two or more persons as coowners in the alternative by the use of the word "or," such vehicle shall be held in joint tenancy. Each coowner shall be deemed to have granted to the other coowner the absolute right to dispose of the title and interest in the vehicle or mobile home, and the signature of any coowner shall constitute proper endorsement. Upon the death of a coowner, the interest of the decedent shall pass to the survivor as though title or interest in the vehicle or mobile home was held in joint tenancy. This provision shall apply even if the coowners are husband and wife. "

Note the sentence: "USE OF THE WORD "OR" SUCH VEHICLE SHALL BE HELD IN JOINT TENANCY"

I think this is what you need. Try your state AG's office.

 

[SallyX]

Thank you, Ladynred, for your replies. Unfortunately, as I read those statues I see where the confusion comes in. They seem to be open to interpretation by the reader.
The Florida AG's office will not answer this question or give legal opinions to any individual concerning private matters. So, there is no help to be found there.
I need to reply to the Trustee within a few days. Can this matter go before the BK judge, if we are unable to agree? Or, is the Trustee's decision final?

 

[Ladynred]

The BK judge has the final say, even over a Trustee. That's why you file motions with the court and the JUDGE decides - doesn't matter who's sitting on the other side of the aisle from you, Trustee or not !

 

[SallyX]

So, then, if I disagree with her view regarding joint ownership and the resulting amount owed, I can file a motion to have the BK judge hear it and decide?
I assume it must be a cumbersome process for a layman who is not an attorney. How is a motion filed?

 

[Ladynred]

A motion is a 'pleading' to be heard by the court and it must be made in a specific format. I can direct you to sample motions, but none of them address you specific problem. Yours has to do with Redemption, Sec 722 I believe. The samples will, however, give you the proper format needed for a motion.

The Trustee sent you a 'Joint Stipulation for Settlement' - settlements, by their very nature, are usually negotiable, so you may have some leverage to object to her stiplulation for settlement.

Are there instructions for you for responding to her ?

The sample Motions can be found here:

http://www.lawyerassistant.com/freeforms/#debtor

I'll keep digging, maybe I can find something that will help.

 

[SallyX]

The instructions for replying only state "If it meets with your approval, please sign and return same, along with the first payment. If I do not receive a response by Monday, November 28th, 2003, I will be filing a Motion to Compel the turnover of the vehicle and a Notice of Sale."
There are no additional instructions.
Thanks, again, dear.

 

[Ladynred]

Then I think I'd respond to her that you do not agree and state why. I still think that FL statute stating Joint Tenancy may be what you need. I've asked a friend of mine (who has a law degree, btw) what might work to get you a hearing. He's not a BK lawyer himself, but is well connected to many who are.

 

[SallyX]

Ladynred, many thanks for your help here. I appreciate it, to say the least. If you hear anything from your friend, please do tell.
By the way, did you notice that the Trustee's letter to me reads "Monday, November 28, 2003." Isn't the 28th on a Friday??

 

[Ladynred]

The 28th is NEXT FRIDAY !! Interesting goof.....

I'll let you know when I hear from my friend.