Bankruptcy And The Family Home

Bob and Sue are filing for bankruptcy and have come to the heart-breaking decision to leave their Cairns property as they have no equity in it. They are going to hand it back to the bank but the question is will they still be liable to pay the rates and insurance after they hand the house back.

On the day they declare bankruptcy Bob and Sue will no longer continue to be the owners of their house. The bankruptcy trustee will usually remove Bob and Sue’s names from the title and put the trustee’s name in their place, then the house is just handed back to the bank. Even if Bob and Sue had outstanding rates of $8,000 owing at the time of bankruptcy they will now not have to pay them and any unpaid household debts will not impact them handing the house back to the bank.

Should Bob and Sue choose to keep the property after going bankrupt that is a totally different matter. If they remain on in their house they will still be responsible for anybody corporate costs, rates, insurances, and any other expenses related to home ownership.

If you are not too sure exactly where you stand with your rates or other household expenses when declaring bankruptcy, feel free to call us here at Bankruptcy Cairns on 1300 795 575 for well-informed and relevant guidance.

Bob and Sue have been residing in their family home for several years. About five years ago Bob had a major accident at work, he got a large compensation payout from his employer which he put into the house mortgage. The question is, if Bob makes a decision to declare bankruptcy is that compensation money safe or will he lose it?

Before we explore this any further, when it comes to bankruptcy any compensation payments in either a lump sum or as weekly payments are really complicated. Our advice in this circumstance is to make sure you get some proper advice before you declare bankruptcy. Do not just take what we say here as gospel because there are a lot of variables in this quite tricky situation.

After his accident at work Bob received $200,000 in compensation, he put the total $200,000 towards his home which is worth $700,000, he and Sue now only owe the bank $500,000 Bob and Sue have decided to apply for bankruptcy and there is effectively $200,000 equity in the property.

In Queensland compensation money acquired as a result of an accident is usually considered safe and protected when you file for bankruptcy. In this circumstance Bob’s compensation money that he put towards the house is safe even though he has declared bankruptcy. Bob and Sue can continue to keep the $200,000 which has become equity in their home, whether they choose to sell the house or remain living in it. The money Bob has as a result of his compensation payments is safe. This does not always apply with compensation money, sometimes if you receive compensation due, for example, to a health problem it can be quite complicated.

If you are considering going bankrupt in Qld, before you do anything give us a call here at Bankruptcy Cairns on 1300 795 575 for professional help and guidance.

Bob and Sue have been residing in their Cairns family home for five years and about two years ago Sue inherited a large sum of money from her Aunty June. Bob and Sue made a decision to put the inheritance money into their mortgage to help them pay off their home.

The question is, if Sue puts her inheritance money toward their property, is that money safe if Bob and Sue decide they need to file for bankruptcy? In Qld the answer to that question is no, it is not safe at all. Inheritances and inheritance money received prior to bankruptcy are still considered as assets and as such are still exposed to the bankruptcy trustee. The trustee has the right to take any asset of yours as a part of your bankruptcy estate, so do not presume that any inheritance or inheritance funds are safe when you declare bankruptcy, they are not.

To learn more about inheritance moneys and how they, and other assets, are affected by bankruptcy, call Bankruptcy Cairns on 1300 795 575.

Bob and Sue have finally faced the reality of going bankrupt and they, like a lot of people facing bankruptcy, are thinking surely we will not lose our family home, we need to live somewhere.

Sadly in lots of bankruptcy situations, as we have seen in these case studies, keeping your home is not an easy process. Sometimes it is simply not possible. Keeping your home in bankruptcy is all about the money, it is not about the nostalgic value, emotional value or your own specific circumstances it is a very cut and dry procedure. When you are bankrupt if there is equity in your property the equity needs to be realised so creditors get paid some or all of what you owe them. That is how bankruptcy works in Queensland, no matter what your circumstances, if you have a home that you have equity in then it is under threat when you declare bankruptcy.

If you need some guidance about your family home or anything to do with bankruptcy feel free to call us here at Bankruptcy Cairns on 1300 795 575. We will walk you through all your bankruptcy options and what you can do with your house.

Bob and Sue have struck a couple of financial obstacles and have made a decision to go bankrupt. They cannot afford to keep up the mortgage payments and so have decided to walk away from their family house. The question is, once bankrupt how long have Bob and Sue got before they will be required to vacate the property?

The good news is, it is not as quick as you may think. Every situation is different depending upon the banks, the bankruptcy trustee and the individuals but basically Bob and Sue do not need to panic, they will not have to be out the next week or anything ridiculous like that. Leaving your house is normally quite a reasonable process and sometimes the bank may even ask you to stay in the property to help them sell it.

In this type of situation, if Bob and Sue are up to date on their mortgage they will on average have about two or three months to vacate. If Bob and Sue were really way behind on their mortgage repayments then the bank will probably want them out sooner rather than later. In either case, once they declare bankruptcy Bob and Sue will have time to find and move into a new place to live.

If you are worried that you are going to lose your house because of bankruptcy call us at Bankruptcy Cairns on 1300 795 575 and we can guide you through your options.

Bob and Sue went bankrupt eighteen months ago with no equity in their family home. They had decided they would try to keep the property so that at the end of the 3 years they had somewhere to live. However, after a year Bob lost his job due to illness and Sue then got retrenched from her work. This meant that they no longer had any capacity to continue to pay the mortgage. In this case it is fairly simple, Bob and Sue contact the trustee and the bank and let them know that they can no longer afford to make the payments on the mortgage and that they will be moving out.

It truly is that easy, remember in bankruptcy Bob and Sue are both already bankrupt so simply handing the house back even if the bank makes a loss when they sell is not Bob or Sue’s problem. This is the one get out of jail free card you get in life if you can’t afford to pay your mortgage.

There is much more involved in this situation of course so if would like more information on what you may have to do in this bankruptcy situation, give Bankruptcy Cairns a call on1300 795 575.

Let us examine under what circumstance your house could be tied up for more than the three year minimum bankruptcy period. Let us say that when Bob and Sue went bankrupt they decided that they wanted to try and keep their Cairns house after bankruptcy. At the time they declared bankruptcy the house was worth $700,000 and they still owed the bank the full $700,000. As there was no equity in the house at this time the trustee decided not to take any additional action regarding the property. Bob and Sue could remain living in the property as long as they keep making the mortgage payments. Their life will go on with the house to be re-evaluated at the end of the three year bankruptcy period.

If you retain a property, it is standard to have it revalued when you reach completion of your bankruptcy. In Bob and Sue’s case their home was revalued and it had increased in value from $700,000 to $780,000. In order to have the property released back to them they would be required to pay the trustee $80,000 which is the equity that the house has actually increased by over the 3 years of bankruptcy. The trustee will now continue to keep ownership of the property until Bob and Sue have done one of two things. One, they can choose to sell the property as it is now worth more than when they initially went bankrupt. Two, Bob and Sue have the option to locate $80,000, pay it to the trustee and once it is paid have the house back. However, finding $80,000 is difficult, especially when you have been bankrupt, it could take Bob and Sue two or three years to come up with $80,000. In this scenario the trustee would continue to keep the house in the trustee’s name past the 3 year period of bankruptcy, this enables Bob and Sue to pay off the $80,000 gain in equity and so keep their home.

In Queensland there are a number of other reasons why a trustee may continue to keep the house locked into the bankruptcy process beyond the 3 years but essentially it all boils down to money like the majority of things in bankruptcy you just need to follow the money.

Believe it or not it is very easy to have your home tied up in the bankruptcy process for a number of years well after your release from bankruptcy. If you have a home in Qld and would like guidance on how you might be able to keep your property in bankruptcy, call us at Bankruptcy Cairns on 1300 795 575. We can help you work through what your alternatives are and how you can best prevent any difficulties.

Bob needs to declare bankruptcy however his partner Sue does not. They own a Cairns house together worth $700,000 and they have $100,000 equity in the house. Bob has realised that he can no longer afford to contribute to paying the mortgage on the property and is needing to declare bankruptcy. Sue on the other hand does not want to lose the family home that they have worked so hard to keep.

Bob and Sue need to know if there is any way once Bob declares bankruptcy that Sue can potentially buy out Bob’s interest in the property and retain their home. The answer is yes, maybe. When Bob goes bankrupt Sue can approach the bankruptcy trustee and offer to make a payment of $50,000 for Bob’s half of the equity in the property. The $50,000 may potentially be a little less or a little more depending on the trustee and what the market value of the house is. But approximately $50,000 is what Sue will need to pay to settle the house and keep it in her name.

However, a few things will need to be taken into consideration before this is possible. First of all Sue will need to satisfy the bank that without Bob she can afford to make payments on the property by herself. It is not just merely a matter of Sue taking over the payments though, in many cases the bank will require Sue to totally refinance the property in just her name and buy out Bob’s interest.

Another consideration is the trustee’s perspective on the present value of the property, how much the trustee would require Sue to pay, and when she would need to pay it. Sometimes the trustee will need the whole equitable share (Bob’s half) to be paid in full. In other cases the trustee will be happy to take a series of payments and once the complete $50,000 has been paid the house can then be put into Sue’s name keeping their home safe. In this scenario, when Bob goes bankrupt his name is removed from the title of the property and the bankruptcy trustee will share the property title with Sue. This makes Sue a co-owner with the trustee meaning the trustee is fully involved in any actions taken with the property, including if it has to be sold.

If you find yourself in a scenario where you are needing to go bankrupt and your partner would like to try and retain the property there are a lot of options, this is not the only scenario. Bankruptcy Cairns are available on 1300 795 575 with advice and the experience to guide you through the many bankruptcy possibilities in Qld and how they might apply to you.

Five years earlier when Bob and Sue were aiming to buy a home in Qld all they could manage to pull together was a deposit of 5%. When they bought their house they went to the bank and the bank was fine with the 5% deposit but they had to also pay for mortgage insurance coverage. Bob and Sue were happy to pay the mortgage insurance due to the fact that they didn’t have the required 20% deposit to eliminate paying mortgage insurance premiums and it meant that they could buy a home sooner.

Fast forward a few years and Bob and Sue are in financial difficulty and need to apply for bankruptcy, what is even worse is that the Cairns home is now worth $150,000 less than what their mortgage is. Bob and Sue are not really concerned about the mortgage due to the fact that they had paid for mortgage insurance coverage. The sad fact is the mortgage insurance is not there to help safeguard Bob and Sue from any shortfall if the house sells for less than the mortgage, it is in fact there to safeguard the bank’s interests. In this situation, the bank will hand any financial shortfall to the mortgage insurance providers if the house sells for less than the value of the mortgage. The mortgage insurance provider will then pursue Bob and Sue for the shortfall.

The reason Bob and Sue were required to pay mortgage insurance way-back when they got the mortgage was because they could only come up with a 5% deposit which exposes the bank to greater risk, meaning the mortgage insurance provider will require a greater premium. The banks pass on this additional premium cost to the purchaser, which is what Bob and Sue were paying for. In a nutshell, mortgage insurance is not there for you it is there for the bank.

At Bankruptcy Cairns we can help you navigate through the minefield of bankruptcy, call us on 1300 795 575 to take the initial step.

Bob and Sue have owned their Cairns house for years and have actually worked really hard to build up some equity in the property. Their house is presently valued at $700,000 and they owe the bank $600,000 giving them $100,000 equity. In this case study Bob and Sue have a combined debt of $180,000, far greater than the $100,000 equity they have in their house.

Despite the fact that they have a reasonable amount of equity in their home Bob and Sue feel they will need to declare bankruptcy as they cannot draw on any of that equity to pay their other debts. Bob up until recently had been the main income earner in their relationship but, unfortunately, he has lost his job. Because Bob is now unemployed and Sue does not have a very high income their capability to make repayments has been severely impacted. In this scenario the bank will not be willing to let them borrow against the equity they have in their home.

Another hurdle Bob and Sue have encountered has been though they have been struggling to pay back debts to a variety of different creditors, there have been some defaults and judgements on their credit report. Once their credit rating dropped it became more challenging to borrow money to cover their different debts. This unfortunate circumstance can become a vicious circle which can be hard to get out of without contemplating bankruptcy.

If Bob and Sue only had $18,000 worth of debt and $100,000 equity in the house it is highly likely that their application for bankruptcy would be declined simply because they have a lot of equity in their house.

If you own a home in Qld and are thinking about bankruptcy you can access some totally free advice by calling us here at Bankruptcy Cairns on 1300 795 575 and we can walk you through your options.

In the following case studies we explore the ramifications when one partner who owns the property applies for bankruptcy. Does the other partner who is not on the title have any claim to keep some of the equity in the property?

Bob owns a Cairns house worth $700,000 he owes the bank $600,000 and as a result has $100,000 equity in the property. Bob now needs to go bankrupt and he’s really worried about losing his home when he files for bankruptcy, especially considering his partner Sue has actually been contributing financially towards mortgage payments for the last 5 years. In Queensland the technical term for this scenario is called the doctrine of exoneration. What does it mean? Simply put, it means that a person who has financially contributed to a property even though they are not on the title or mortgage has some claim against the equity in the property should the person who owns the house apply for bankruptcy.

In this first case, Sue had actually sold a property before she got together with Bob and she contributed $30,000 towards the deposit of a home for them to live in. At the time Sue was not working so the property title and mortgage was only put in Bob’s name. Sadly things didn’t go well for Bob and he had to apply for bankruptcy. Despite the fact that it is only Bob’s name on the title and the mortgage of their home, Sue has a genuine claim to get her $30,000 back. Sue can make a claim to the trustee for her $30,000 to be returned if the property needs to be sold. If Bob and Sue want to hang onto the property Sue’s claim to the $30,000 of equity means Bob now only has $70,000 of equity and not $100,000, possibly making keeping their house a lot more feasible.

In this next scenario Sue can again have a claim against some of the equity in Bob’s home should he declare bankruptcy. If Sue has actually paid 50% of the mortgage over the past five years she will be entitled to a percentage of any equity in the property. Even if the title and mortgage for the house is only in Bob’s name.

Should Bob apply for bankruptcy, potentially Sue has the ability to claim some of the equity in Bob’s house if they have combined their financial lives. If over the five years they have lived together they have shared equally all the household expenses and costs then Sue is entitled to some of the equity in Bob’s home, regardless of not being on the title. This can even apply if Sue has not specifically made payments towards the mortgage.

Another manner in which Sue could claim some equitable interest in the property is because her name is on the mortgage. When Bob and Sue purchased the house they put the title in Bob’s name only as Sue had a very risky occupation at the time and was worried about legal claims against her. However, in order to secure the mortgage for the house both Bob and Sue were listed on the mortgage as they required both their incomes to contribute to buying the property. Although she is not on the title as an owner of the house because she is on the mortgage she is entitled to a proportion of the equity should Bob file as bankrupt.

Another manner in which Sue could claim some equitable interest in the property is because her name is on the mortgage. When Bob and Sue purchased the house they put the title in Bob’s name only as Sue had a very risky occupation at the time and was worried about legal claims against her. However, in order to secure the mortgage for the house both Bob and Sue were listed on the mortgage as they required both their incomes to contribute to buying the property. Although she is not on the title as an owner of the house because she is on the mortgage she is entitled to a proportion of the equity should Bob file as bankrupt.

As you can see from these case studies, in Queensland, there are a number of ways in which a partner can have a claim to equity in a bankrupt partner’s property. Should you be dealing with bankruptcy and not know where you or your partner stand Bankruptcy Cairns can provide you the answers and guide you through the procedure. Call us on 1300 795 575 to discover how we can assist you.

Bob is seriously thinking about bankruptcy and believes that he has no choice. He has serious concerns because his wife Sue owns the Cairns house that they live in and he is really worried about what will happen to that property should he file for Bankruptcy. In this case study we explore what happens to the property when the house is purely in Sue’s name and Bob’s name is neither on the title nor on the home mortgage.

A common myth in Queensland is that if the title of the home you live in is in your partner’s name then the house will be safe if you go bankrupt, however, it is not that straightforward. This is a situation where it is really about following the money or establishing what money has contributed to the property and whose money that is.

Let us say for instance that before Bob and Sue purchased their property they now live in, Bob owned a little apartment in Cairns. Bob made a tidy sum of $50,000 when he sold his apartment and he added that towards a deposit for the house he lives in now with Sue. Despite the fact that the new property is clearly Sue’s with only her name on the title and the mortgage he has actually still contributed $50,000. What this will mean is that if Bob goes bankrupt the trustee will ask if he has actually contributed any money towards the property at any point and as he has in this case the trustee might require that to be paid back toward his debts.

Another scenario could be that for the last five years Bob and Sue have resided in this property Bob has been paying half of the home loan each month. Although the property is only in Sue’s name, contributing to the mortgage means that Bob has helped in the ownership of the house. By making regular or lump sum payments to a home loan Bob can be seen to be contributing toward the asset and unintentionally the house also ends up being partly Bob’s asset, despite the fact that he is not on the title.

It can get even more complex than that, let us say that our couple Bob and Sue have been living in Sue’s house for the last five years and have contributed equally to the household bills. They both share equally in paying the mortgage, rates, buying food and sharing the cost of household items that need to be bought. In this case the trustee will most likely say that because they have shared their financial lives together for the last five years a part of the equity in Sue’s property is in fact Bob’s.

A couple of years ago the entire back patio of the house that is in Sue’s name was rotted out and needed to be replaced. Bob had some money from a redundancy payout from his job so he decided to not only pay for the patio area renovations but to also do some of the work himself. By doing this the bankruptcy trustee can once again consider Bob to now have some amount of equity in Sue’s home.

Another case where Bob might be in difficulty is if his name is on the mortgage because the bank would not lend Sue the money unless they both signed due to her capability to make repayments. Despite Bob not putting any money towards the deposit, his name is on the mortgage because he earns money that will help contribute to making the repayments. In this situation it is quite easy for the bankruptcy trustee to see that the house is in both Bob and Sue’s names and both have contributed towards the property and therefore towards any equity in the property. It could be that up to 50% of the equity in the house is classed as Bob’s.

If you are in a circumstance where you reside in a property owned by your partner and have approaching bankruptcy worries give us a call for helpful advice. These case studies are by no means the whole story, there are a lot of other situations that need to be considered and getting the appropriate information is essential. By giving Bankruptcy Cairns a call here on 1300 795 575 we can walk you through the potential pitfalls of what may happen if you apply for bankruptcy.

In Qld the name or names on the title of a property are really important in bankruptcy, however, it is not the be all and end all. For instance, some of our clients call and ask if they can change who is on the title of their property to attempt to protect that property before they declare bankruptcy. In this case of Bob and Sue, Sue owns the house and needs to declare bankruptcy and she has some equity in the house. They don’t want to lose the house so to protect it Bob and Sue decide that Sue should transfer the title to Bob’s name and take her name off of the property.

The question is, will this action safeguard their property in any way when Sue files for bankruptcy? In short, the answer is no; they cannot merely just transfer the name of the title and then magically have a new owner appear. The main reason why this is not possible is that Sue needs to divulge any gifts or transfers of property when she goes bankrupt. When the trustee sees this transfer they will just say that Sue has done this purely to defeat creditors or to not pay her bills when she declared bankruptcy. This strategy will not work in Queensland and it really is just a waste of time.

The question is, will this action safeguard their property in any way when Sue files for bankruptcy? In short, the answer is no; they cannot merely just transfer the name of the title and then magically have a new owner appear. The main reason why this is not possible is that Sue needs to divulge any gifts or transfers of property when she goes bankrupt. When the trustee sees this transfer they will just say that Sue has done this purely to defeat creditors or to not pay her bills when she declared bankruptcy. This strategy will not work in Queensland and it really is just a waste of time.

If you want to know more about titles of property and how bankruptcy will impact it, feel free to call us here at Bankruptcy Cairns on 1300 795 575 and we will walk you through it. Do not presume that you have it all covered this is a very complicated area of bankruptcy law and you can easily get it wrong.

Bob and Sue have owned a property for several years, have worked really hard and have $200,000 equity in their home. Their home is valued at $700,000 and they currently have about $500,000 on their mortgage.

Bob is a builder in Qld and has really been having a hard time since he injured his back. He owes $150,000 in overdue accounts to a particular hardware store who have been really patient with Bob and understand his situation. However, they are just not able to wait any more, so to make sure that they get their payment for the account they have placed a caveat over Bob and Sue’s property.

Bob is a builder in Qld and has really been having a hard time since he injured his back. He owes $150,000 in overdue accounts to a particular hardware store who have been really patient with Bob and understand his situation. However, they are just not able to wait any more, so to make sure that they get their payment for the account they have placed a caveat over Bob and Sue’s property.

What happens to a caveat when you declare bankruptcy? Well the truth is not too much, although Bob and Sue are not required to pay the hardware outlet as a result of declaring bankruptcy this does not automatically remove the caveat. So, what needs to take place is Bob and Sue need to go through the process of the bankruptcy and at the end of the three years the debt for the hardware store will be removed and they will no longer owe the hardware store the $150,000. They can then ask for the hardware store to get rid of the caveat as this does not automatically happen. If they will not Bob and Sue may need to get some legal advice to force them to do so.

This is, of course, a very simple explanation of how caveats operate in Queensland, there is a lot more to it than we have briefly outlined. This example is not legal advice, it is merely just an example of how caveats work. Please feel free to seek your own independent legal advice about caveats if you have one on one of your properties because it is a very important issue and there are often complications.

There are various circumstances and scenarios that can be considered when it comes to a caveat, if you want to know more about them and how they can impact bankruptcy do not hesitate to call us here at Bankruptcy Cairns at any time on 1300 795 575.

Bob and Sue have decided to file for bankruptcy and have decided that because they own their family house they do not wish to lose it. However, Bob and Sue can no longer afford to make the payments and pay the other costs that come with home ownership. Instead of just selling their home out on the open market Bob’s uncle has decided he would like to purchase the property. The question is, in Queensland can Bob and Sue legally sell their property to a member of the family before they declare bankruptcy? The answer is yes, in some cases. Where people go very wrong in this circumstance is selling their home to a family member, or somebody they know, at a greatly reduced rate. This causes all sorts of problems not just for the people applying for bankruptcy but additionally for the person who buys the property.

Let us say that Bob and Sue’s house is worth $700,000 and they owe the bank $600,000. They decide to sell the property to Bob’s uncle Joe for $600,000, believing that will clear their mortgage debt and Uncle Joe gets a good deal. The problem here is the bankruptcy trustee will ask what the value of the property was when they sold it. Bob and Sue will tell them it was worth $700,000 and the trustee will tell them that they should have sold it to Uncle Joe for the full $700,000. In this situation the bankruptcy trustee will instruct Uncle Joe to pay the bankruptcy estate the $100,000 discount that he believed he had saved purchasing Bob and Sue’s property. To protect themselves from the possibility of selling their home too cheaply before they went bankrupt, Bob and Sue should have had an independent valuation done on the property before it was sold. They should also have ensured that the purchase was done properly using a solicitor or conveyancer to help them with the sale. If you are considering selling your home to a member of the family prior to bankruptcy do not attempt anything tricky, keep it a strictly commercial transaction the same as if you were selling to a complete stranger.

These are just the basics of selling a house to a relative prior to going bankrupt. This process is generally a lot more complicated, so if you would like to know more do not hesitate to call us here at Bankruptcy Cairns on 1300 795 575.

Bob and Sue have made the really difficult decision to apply for bankruptcy, the biggest concern is their family house on which they have a mortgage for $670,000. Their home is valued at $700,000 so they have $30,000 equity in the property.

So, in Queensland, what will happen to their home when they file for bankruptcy? In this case study we can consider the equity as anything above $30,000 so this would be the same scenario as if their equity was $30,000, $100,000, $300,000 or $1,000,000 it doesn’t make any difference the principle is the same.

Bob and Sue have made a decision they desperately wish to keep their home despite the fact that it has some equity in it. When Bob and Sue initially filed for bankruptcy they owed $300,000 in debt to banks, credit cards, tax and a whole range of different creditors. For Bob and Sue to keep their home in bankruptcy there are two options. The first option is to simply pay the trustee at the start of bankruptcy a lump sum of $30,000 to make up for the shortfall between the house value and the house mortgage. To do this they would need to get the $30,000 from a friend, relative or somebody else because as a bankrupt they do not have any money. Paying the trustee $30,000 at the beginning of the bankruptcy will settle and satisfy the creditors that they have gotten the value of the equity out of the property and everybody is happy.

The second option if they don’t have access to $30,000, they can as bankrupts enter into a payment plan with the trustee, paying off the $30,000 over the three year duration of their bankruptcy. At the end of their bankruptcy providing of course the house has not increased in value and their equity is still not more than that $30,000 the creditors will be satisfied and they can keep their home.

This payment arrangement does not automatically happen if you have some equity in your property and you apply for bankruptcy. Bankruptcy in Qld is a complicated complex procedure that you need to be really careful entering in to, particularly if you wish to keep a family home in which you have some equity.

If you wish to keep your house in bankruptcy you can get sound professional guidance from us here at Bankruptcy Cairns. Call us on 1300 795 575and we can walk you through your options.

There is a general presumption in Queensland that if a property is owned by one partner in a relationship that is not going bankrupt then the house is safe if the other partner goes bankrupt. This is not the case and you need to be extremely careful about this assumption.

In this case study Bob and Sue have been married for 15 years but their home is entirely in Sue’s name. Bob’s name is not on the title or on the mortgage but they have both lived in the property for the whole 15 years they have been together. Bob is needing to file for bankruptcy.

In this particular situation it is most likely that the trustee will view some of the equity in the property as Bob’s despite the fact that he’s not on the title or mortgage. The reason for this is simply because they have both contributed to household expenses and have been living together financially for the last 15 years. Although not necessarily documented on paper Bob has contributed to the maintenance of the house while living together in it.

So, Bob and Sue have lived together in Sue’s home for 15 years and the property is worth $700,000. The bank is still owed $500,000 so Sue has $200,000 equity in the property. In this scenario the trustee might well say that of the $200,000 equity half of that or $100,000 is in fact Bob’s because they have both lived there for 15 years. This is the worst case scenario. If it can be clearly established that Sue has contributed solely to the mortgage and household costs and Bob has not, it demonstrates a real imbalance. In this case it can be established that the equity in the house is not half and half despite the fact that Bob has lived there for 15 years he potentially only has 10% or 20% of calculated equity. This is not locked in stone. This is something that needs to be worked out and is determined at the time of bankruptcy.

If, for instance, Bob had just moved in with Sue 6 months earlier and she had owned the house for several years prior to their relationship and him moving in, this would be treated very differently. The simple reason being that there is very little history of them both living in the same property. In this situation it is quite likely that Sue will be able to keep full equity in the house and there will be no problems at all.

Please do not automatically assume at any point that because your partner’s name is on the title and mortgage that your home is safe, that is not always the case. In Qld establishing equity in a property needs to be proven rather than through simply taking your word for it. Things like mortgage statements, bank statements, payslips and other documentation may be required.

Here at Bankruptcy Cairns we have the experience to walk you through establishing your property equity, call us on 1300 795 575 so we can help you through the process.

Bob and Sue have come to the tough decision to apply for bankruptcy and they are considering what to do with the house as they have no equity in it and they simply cannot afford the mortgage any longer.

So, Bob and Sue decide to surrender their home to the bank. The very first thing we at Bankruptcy Cairns would do for them is get them to sign a legal document which resembles a deed of release meaning they have voluntarily surrendered their house. This means the bank does not need to pursue legal action to have them removed from the house. Bob and Sue would then vacate the property, although in some cases the bank might ask the residents to remain and live in the property to help them in selling it.

The reality is the bank that lent Bob and Sue the money for the house are not concerned whether they go bankrupt or not. The bank will always get their money for the property because they have the loan secured against the property or another similar asset and can potentially sell it at any point to get the money. In Bob and Sue’s case their house is sold and it ends up that it sells for $150,000 less than their mortgage, the bank will then ask Bob and Sue to pay the $150,000 shortfall. If Bob and Sue are bankrupt the $150,000 then just goes onto their bankruptcy paperwork, this doesn’t need to happen prior to declaring bankruptcy or at the start of bankruptcy in fact it can take place any time throughout the 3 years. Sometimes, properties may take a year or so to sell so this process will just take place as a part of the bankruptcy process. If the real estate market is really bad and the property does not sell then it is still not Bob and Sue’s problem, even after the three years of bankruptcy the problem is still the banks and they will deal with the asset or the house whenever they can.

In Queensland when you surrender your house to the bank there is an incorrect assumption with some mortgage holders that as they have paid for mortgage insurance this will somehow safeguard them from any shortfall if the bank sells the house. This is absolutely not the case, in fact mortgage insurance is not there for you as the mortgage holder it is there for the bank to secure its mortgage. If you fail to pay your mortgage the bank will just hand over to the mortgage insurance company and the bank will get its money for the house. When the house is sold the mortgage insurer will then come after you for any shortfall. The only time you can have your mortgage wiped out is once you are bankrupt and the house is sold making the debt unsecured.

The minute Bob and Sue surrender their property to the bank or to the bankruptcy trustee whether they are in bankruptcy or not they will no longer be responsible for the rates or the maintenance or the upkeep or even the insurances on that property. They are basically no longer the owners of the property and can simply walk away.

If you wish to file for bankruptcy in Qld and are worried about what will happen if you walk away from your house, do not hesitate to call us here at Bankruptcy Cairns on 1300 795 575 and we will take you through your options.

This is a question that, on the surface of it, sounds awfully risky, however it is not if you understand what you are doing and things are done in an appropriate commercial manner.

Let us say Bob and Sue own a property worth $700,000 and they owe $650,000 on the mortgage. They desperately wish to hold on to the Cairns property as it has some sentimental value and some practical implications as Sue’s grandmother lives in a granny flat out the back and their disabled daughter requires the wheelchair access set up at the property.

The question is can they sell the property to Granny to keep the property so that they can remain on there as tenants after bankruptcy? In Qld the short answer to this question is yes, if done correctly.

Our couple, Bob and Sue, decide to cover their mortgage commitment and at the same time take care of Granny offering her a bargain, selling her the house for $650,000. They know full well that it is actually worth $700,000 and that they are selling their home to Sue’s grandmother for less than market rate. In this situation the sale could end up being a huge problem for Bob and Sue. They have essentially avoided paying their creditors $50,000 of equity that the creditors should have been given if the property was sold at a reasonable market rate. To protect themselves against this mistake Bob and Sue should have had a registered real estate valuer assess their property to determine the true market value, before selling to Sue’s grandmother at that established amount.

So, as you can see in this scenario the issue was not that they sold the house to a member of the family, the issue was that they sold it to a family member at less than market value.

In this scenario another trap that Bob and Sue could easily fall into is attempting to transfer the title of the house prior to bankruptcy. Let us say that Bob and Sue desperately want to keep their house, however, Sue’s grandmother is on a pension, has no savings and no capability to borrow any money. As Granny is unable to buy the property from them Bob and Sue choose to transfer the ownership or the title to Sue’s grandmother before they declare bankruptcy hoping that this will protect them from losing their house. This scenario is considered the same as if Bob and Sue gifted the property to Granny, it does not work simply changing whose name is on the title in bankruptcy, it is about following the money. In bankruptcy just changing the ownership title on a house or property will not do anything to safeguard it from being sold as an asset.

If it appears like you might be heading towards bankruptcy and you have questions about your house, give Bankruptcy Cairns a call on1300 795 575for all the answers.