Rent Stabilized Status Lost in Bankruptcy
Will filing bankruptcy cause you to lose your rent-stabilized apartment?
On April 10, 2012, the United States Bankruptcy Court, S.D. New York ruled that a chapter 7 debtor could not exempt the value of her rent stabilized lease (SeeIn re Santiago-Monteverde, 466 B.R. 621 (Bankr. S.D.N.Y. 2012). Unfortunately,0n September 10, 2012, the debtor lost her appeal to the United States District Court, S.D. New York. The District Court affirmed the bankruptcy court’s ruling which rejected the debtor’s argument that the value of her rent-stabilized lease is a qualifying local public assistance benefit under section 282(2) of New York Debtor and Creditor Law.
It appears that the debtor’s chapter 7 case was going rather smoothly until the chapter 7 Trustee received an offer from the Debtor’s landlord to purchase the Trustee’s interest in the Rent-stabilized lease. This set off a chain of events which, for the time being, have resulted in the debtor potentially being forced out of her rent-stabilized apartment.
Thus, until legislation is enacted which allows debtors to safely exempt the value of their rent stabilized lease, bankruptcy practitioners will have to tread carefully when dealing with a debtor who leases a rent-stabilized apartment.
Bankruptcy Attorney in Mineola
If you would like more information regarding the subject of this post or a free consultation with a bankruptcy attorney, call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620.
INTRODUCTION TO BANKRUPTCY EXEMPTIONS: FILING BANKRUPTCY DOES NOT MEAN YOU WILL LOSE EVERYTHING.
People are not required to forfeit all of their property when they file bankruptcy. Bankruptcy laws are intended to use individuals’ property to satisfy as many debts as is reasonably possible. The process is not intended to pauperize people. In order to avoid this result, bankruptcy law exempts certain property, up to a maximum value, from the bankruptcy estate. Property that is exempt from the estate is not forfeited in the bankruptcy. That means individuals may keep the exempt property even after they file bankruptcy, as long as the value of that property does not exceed the statutory limit. Federal law allows states to replace the federal exemption scheme with their own. New York allows individuals to choose between federal and state exemptions. Both federal and New York law essentially exempts the same types of property, but the two laws place different limits on each type. This means that people may be able to keep more of their property under one law rather than the other, depending on the types of property they own at the time they file bankruptcy.
Exempt property generally falls under five categories:
1. Basic Necessities and intimate personal items: This category includes personal items such as wedding rings, religious texts, domestic animals, a certain amount of cash, and a home (up to a maximum value).
2. Insurance policies and annuities: Payments individuals receive from insurance claims or annuities may be exempt. This means that after individuals file bankruptcy, they may still receive, for example, payments received under a life insurance plan taken out on a deceased spouse.
3. Motor Vehicles: Individuals may keep an automobile, as long as its value does not exceed a certain limit.
4. Benefits: Benefits such as social security, unemployment, veterans and disability payments may be exempt.
5. Property due under a money judgement: Individuals that receive payments following some lawsuits – such as personal injury, wrongful death, or others – may keep this income, up to a certain value limit.
Again, property exempted under these categories may not exceed certain values, though there may be exceptions and extensions in certain situations. The topic of bankruptcy exemptions is very complicated, and some issues are disputed even among experts. For more information on exemptions, see our earlier posts Changes to NY Bankruptcy Exemptions and Federal Bankruptcy Exemptions & NY .
If you have any questions about bankruptcy and would like to speak to an attorney, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 today to schedule a free consultation.
What is Exempt Property?
Exempt property is property that is protected by law from the claims of creditors. However, if exempt property has been pledged to secure a debt or is otherwise encumbered by a valid lien or mortgage, the lien or mortgage holder may claim the exempt property by foreclosing upon or otherwise enforcing the creditor’s lien or mortgage. In bankruptcy cases, property may be exempt under either state or federal law. However, NY has opted out of the federal law exemptions. Exempt property typically includes all or a portion of a person’s home equity, motor vehicle equity, household furniture and personal effects.
What Will Happen to My Non-Exempt Property If I File Bankruptcy?
Non exempt property is part of your bankruptcy estate and is subject to sale by the bankruptcy trustee (the debtor is entitled to receive any exempt portion of the sale proceeds). However, even if your property is not fully exempt, you may be able to keep it if you pay its non-exempt value to your creditors in a chapter 13 bankruptcy. Also, you could agree to pay the trustee an amount that would allow you to, in essence, buy back the non-exempt property. The money that you pay to the trustee will be distributed to your creditors. You may also be able to “trade” exempt property for non-exempt property. Essentially, you allow the trustee to take and sale exempt property to avoid losing non-exempt property. There are additional options available. A knowledgeable bankruptcy attorney will be able to assist you with “exemption planning .”
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