While an individual may qualify for several different chapters in the Bankruptcy Code, most consumer debtor attorneys only concern themselves with two: Chapter 7 and Chapter 13. Occasionally, a high income debtor needs bankruptcy relief, but is disqualified from Chapter 7 because he makes too much money and has too much debt to qualify for Chapter 13. What can be done?
It’s Chapter 11 to the rescue! Chapter 11 is typically a “business bankruptcy,” however individuals may also file under this Chapter, even when there is no “business” debt. In fact, some debtors choose to file Chapter 11 instead of Chapter 13 when reorganizing personal finances using the Bankruptcy Code. However, as a general rule, individuals choose Chapter 13 over Chapter 11. Here are a few reasons why:
- Chapter 11 has a more expensive filing fee.
- Unlike Chapter 13, Chapter 11 does not have an automatic stay for co-debtors.
- Unlike Chapter 13, Chapter 11 does not contain a statutory authorization for separate classification of debts for which the debtor is co-liable.
- Chapter 11 debtor must get court approval to retain counsel, who must be disinterested. Chapter 13 debtors do not.
- Unlike Chapter 13 debtors, Chapter 11 debtors do not have the right to dismiss the case.
- Plan confirmation is much harder under Chapter 11, because impaired creditors have the right to either accept or reject the plan; under Chapter 13, a creditor’s acceptance of the plan is usually irrelevant.
That being said, there are good reasons to consider Chapter 11 over Chapter 13, including:
- The Means Test does not apply to Chapter 11 bankruptcy cases
- Disposable income under Chapter 11 need only be part of the “property to be distributed under the plan,” which, unlike Chapter 13, need not be distributed solely for the benefit of unsecured creditors, and therefore, can be distributed to administrative and secured creditors.
- The anti-cram down provision of section 1325(a) does not apply in Chapter 11.
- The plan length under Chapter 13 cannot be more than five years, but Chapter 11 has no such limit.
- Chapter 11 plan payments usually don’t start until after confirmation, which can be much later than the filing date; Chapter 13 debtors must begin payments under the plan within 30 days after the filing date, and before plan confirmation.
- As a prerequisite to discharge, a Chapter 13 debtor must complete a financial management course, but there is no such requirement for Chapter 11 debtors.
- Chapter 11 does not require that the debtor have a regular income
- There are no debt limits in Chapter 11
As suggested above, Chapter 11 does not have the same five year time limitation as Chapter 13. To illustrate how this can be useful, consider a debtor who has not paid his mortgage in three years and is now $50,000 behind in payments. If the debtor files Chapter 13, he must cure those payments over five years which could be over $800 each month for the arrears alone. On the other hand, consider the savings if the debtor proposed to repay the arrears in a Chapter 11 plan over eight or ten years!
If you are struggling with debt, speak with an experienced bankruptcy attorney and discuss your options under the federal Bankruptcy Code. The bankruptcy laws are very flexible and offer many ways back to financial health.
If you are considering filing for bankruptcy please contact the experienced attorneys at Fears | Nachawati for a free consultation. Call us at 1-866-705-7584 or send an email to email@example.com .
A primary goal in nearly every Chapter 7 case is the bankruptcy court’s discharge order which forever and completely eliminates many of the debtor’s financial burdens. The discharge order is a powerful injunction that stops collection and harassment over the discharged debt. But not every Chapter 7 debtor receives a discharge; a bankruptcy discharge is reserved for the honest debtor. See Grogan v. Garner, 498 U.S. 279 (1991).
Sometimes the dishonest debtor “sneaks through” the system and receives an undeserved discharge. The Bankruptcy Code allows the court to revoke a debtor’s discharge under certain circumstances.
Revoking a Chapter 7 Discharge
Section §727(d) permits a bankruptcy court to revoke a debtor’s discharge after a motion and a hearing. The motion to revoke may be made by either a creditor, the trustee, or the United States Trustee, and must be filed within one year of the discharge being granted (727(d)(1))—or before the case is closed—whichever is later (727(d)(2) and (3)). See 11 USC 727(e). There is no time limit identified in statute or rule for revoking a discharge under Section 727(d)(4). A discharge can be revoked if:
- Section 727(d)(1): the discharge was obtained through fraud, and the requesting party was unaware of the fraud prior to the granting of the discharge;
- Section 727(d)(2): after the discharge the debtor acquires property of the estate that is not reported or turned over to the trustee;
- Section 727(d)(3): if the debtor refuses to obey any lawful order of the court or refuses to testify other than on self-incrimination grounds unless given immunity; or
- Section 727(d)(4): the debtor failed to comply with an audit authorized under §586(f), or failed to satisfactorily explain a material misstatement during an audit.
The Ninth Circuit Court of Appeals recently discussed revoking a Chapter 7 debtor’s discharge under Section 727. The debtor, Jerry Jones, failed to list assets in his bankruptcy schedules, then omitted or undervalued assets during his 341 meeting. After Jones’s discharge, the United States Trustee discovered his lies and brought an adversary action to revoke the discharge order. The bankruptcy court found that the omissions were fraudulent, and that the fraud was “sufficient to cause the discharge to be refused if it were known at the time of discharge” under Section 727(a)(4). The bankruptcy court revoked the discharge and the Ninth Circuit Court of Appeals affirmed the decision. See Jones v. U.S. Trustee, NO. 12-35665 (9th Cir., Dec. 2, 2013).
Revoking a Chapter 13 Discharge
The grounds for revocation of a Chapter 13 discharge under Section 1328(e) are narrower than under Section 727(d). A Chapter 13 discharge may be revoked upon request of a party in interest within one year after the discharge is granted if, after a notice and hearing, it is shown that the discharge was obtained by the debtor through fraud, and the requesting party was unaware of the fraud prior to granting the discharge. See 11 U.S.C. 1328(e). Note: any party of interest can request revocation of a Chapter 13 discharge, while only a creditor, trustee or the United States Trustee can request revocation of a Chapter 7 discharge.
The benefits of a bankruptcy discharge are great, but the risks to the dishonest debtor are perilous. A debtor who lies to the bankruptcy court may lose the benefits of bankruptcy and possibly face federal criminal charges. Your bankruptcy attorney can keep you out of trouble and offer you many options and opportunities found in the Bankruptcy Code.
Many debtors are surprised to learn that when they file bankruptcy they typically do not have to go in front of a judge. The one time that debtors typically have to attend “court-like” proceedings is the Section 341 Meeting of Creditors, often also referred to as the “Trustee Meeting”.
Many people get nervous when they hear talk of a “creditor’s meeting” and they picture a bunch of people in suits yelling at them. That is not typically what happens at the 341 meeting. At the Trustee meeting creditors do not typically show up. It is typically just a debtor, their attorney, and the Trustee. The Trustee is appointed by the Department of Justice to oversee bankruptcy cases. The Trustee’s role is to represent the creditors. It is an important distinction to note that while the Trustee represents the creditors, he/she does not work for the creditors.
The Trustee’s job is essentially to review a debtor’s bankruptcy petition and see if there are any assets to distribute to creditors. Once the Trustee reviews a debtor’s petition, he will typically ask the debtor questions about the petition. For instance, the Trustee will commonly ask debtors how they have valued their property, where they are currently working, etc. This meeting can last from 10 – 15 minutes.
The only things clients are typically responsible for bringing to this meeting are a social security card and drivers license to prove their identity. Sixty days after the Trustee meeting, a debtor will typically receive their discharge which legally erases most unsecured debts. If you, a family member, or a friend are considering bankruptcy and have questions, contact the attorneys at Fears | Nachawati today and they will be happy to help! Call us at 1.866.705.7584, or send an email to firstname.lastname@example.org.
Even though the bankruptcy rules are very flexible, sometimes it makes sense to dismiss a bankruptcy case and refile later. This is especially true when circumstances change, such as a temporary loss of income.
In order to combat the appearance of “bankruptcy abuse,” Congress enacted new restrictions for repeat filers in 2005. One of those restrictions is found in section 362(c)(3)(A) of the Bankruptcy Code, which limits the automatic stay to thirty days after filing for a debtor who files a second bankruptcy case within one year of a prior dismissal. Specifically, the law states:
(3) if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)--
(A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case[.]
The Bankruptcy Code also provides that a debtor may ask the court to extend the automatic stay, but only if a motion is filed and the matter is heard before the expiration of the thirty day period. Most courts agree that the automatic stay cannot be extended once the thirty day period has expired. After filing the second bankruptcy case, the debtor must quickly file a motion to extend the automatic stay and request a hearing. Otherwise, the period may run and the debtor may lose automatic stay protection.
But some clever attorneys have asked, “what exactly is at risk?”
Like many of the new provisions of the Bankruptcy Code added in 2005, this new law is full of holes and ambiguities. The most glaring in this case is what stay protection terminates “respect to the debtor.” A minority of courts, including the Ninth Circuit Bankruptcy Appellate Panel, interpret what Congress means. These courts say that Congress meant to say that all automatic stay protections are lost at the end of the thirty days. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011)
The majority of bankruptcy courts, including a recent decision out of the Northern District of Texas (In re Williford, Bankr. Court, ND Texas, 2013), interpret what Congress actually says. What the statute says is that the stay terminates with respect to the debtor, meaning the debtor and the debtor’s exempt property. Under this interpretation, the automatic stay is not terminated as to the debtor’s property that is part of the bankruptcy estate.
Bankruptcy law can be very convoluted. You need the assistance of an experienced bankruptcy attorney to guide you through the law, rules, caselaw, and political leanings of the judge. For more information or a free consultation please contact us at Fears | Nachawati Law Firm by calling 1.866.705.7584
The Miller case out of the Northern District of California is a good example of how important it is to receive sound legal advice during a bankruptcy case. Debtor Carla Miller filed her Chapter 7 petition on August 8, 2013. Her schedules, made under oath and written in her own hand, disclosed that she was self-employed in the jewelry business, had no inventory, and between $6,000 and $7,000 in personal jewelry. Miller valued her home at $1,550,000, which meant there was no equity in the home.
Miller’s case was a classic “no asset case,” but at the 341 meeting the Chapter 7 trustee discovered that the bankruptcy schedules were not accurate. Miller failed to disclose business inventory in her jewelry business that amounted to $50,000 at wholesale values. Additionally, her home was estimated to be worth $2,300,000, which meant that there was equity available to pay her creditors.
Miller asked the bankruptcy court to dismiss her case and claimed that she received bankruptcy advice from a business that was practicing law without a license. In the alternative, she asked to convert her case to a Chapter 11, should the court deny her request to dismiss.
The bankruptcy court pointed out that there is no statutory right to dismiss a Chapter 7 case, therefore the debtor has a heavy burden to persuade a court to dismiss her case on account of “fairness.” In addition, even when there is a statutory right to dismiss, that right may be forfeited if the debtor has engaged in bad faith conduct.
In this case the court found that Miller had filed false schedules in bad faith. The court stated:
"Nothing in Miller’s pleadings or her declaration or her address to the court convinces the court that there are equitable considerations militating in favor if dismissal. To the contrary, the court found her intelligent, calculating and undeserving of sympathy. She underestimated the seriousness of a bankruptcy filing and the diligence of a bankruptcy Trustee. There is no equity in allowing her to escape the consequences of her actions."
The court pointed out that the Trustee, creditors and the real estate agent stood ready for payment from the proceeds of selling Miller’s non-exempt jewelry and real estate. Dismissing the case would not be fair to these individuals.
Finally, the bankruptcy court denied Miller’s request to convert her case to Chapter 11 (and thereby have a better opportunity to protect her assets). The court said that bad faith conduct is a bar to conversion as well as dismissal.
The Miller case is a prime example of how quickly a bankruptcy case can turn bad without the leadership of a seasoned bankruptcy attorney. Reliance on bad advice is generally not a valid excuse, so it is important to get your advice from someone who knows bankruptcy law and who can protect your legal rights. If you are considering bankruptcy the experienced bankruptcy attorneys at the Fears | Nachawati Law Firm can provide you with thorough, sound legal advice that is necessary to complete the bankruptcy process both legally and efficiently. For a free consultation, contact us by dialing our office at 1.866705.7584.
The bankruptcy process always begins with the filing of a petition in Federal Bankruptcy Court. Before that, it is always wise to retain an attorney to help you prepare the petition. All of the schedules and the statement of financial affairs contained within the bankruptcy petition are filed under penalty of perjury, so it is important to get the information correct.
In order to effectively prepare a petition, the attorney will need documentation from the client so that the petition is accurate and will withstand scrutiny from creditors, the Trustee, and the Bankruptcy Court. Gathering documents is an integral part of the client’s role in filing either a Chapter 7 or Chapter 13. The better a client’s documentation, the easier it is for an attorney to assist that client.
The documents necessary to file a bankruptcy will vary based upon an individual client’s situation. However, the following list constitutes many of the documents that will be needed in just about any type of bankruptcy:
· A list of your assets and liabilities- Typically, an attorney will provide you a packet of questions to fill out concerning your assets, their market values, and what is owed on any of those assets. This paperwork is critical for advising a client about what to expect in either a Chapter 7 or Chapter 13 case. Typically, it is helpful to know how much is owed on a house or car so the attorney can determine how much equity you have in the property; which in turn determines what set of property exemptions you want to use and what you can protect. Additionally, while most attorneys will run a credit report for clients, it is helpful if the client prepares a list of debts that they owe. Credit reports are not always accurate. We often find that medical bills and payday loans are not typically reported to the credit bureaus, but need to be included in a bankruptcy because they are dischargeable debts. A list of the debts you think you owe will be immensely helpful in a bankruptcy case.
· Copies of your last two income tax returns- This is necessary for several reasons. First, it helps to show the Trustee your income level over a period of 2-3 years, which helps the Trustee understand your situation a little better. Second, the last two years of tax returns are required to be presented to the Trustee at least a week ahead of your Meeting of Creditors. Third, in a Chapter 13, a debtor is required to have filed their last four tax returns. Lastly, tax returns are very helpful for filling out the Statement of Financial Affairs.
· Copies of your pay statements for the last six months- Paystubs are critical, especially for consumers in either a Chapter 7 or Chapter 13. In 2005, Congress changed the Bankruptcy Code to include a new thing called “The Means Test”. The Means Test is a mathematical formula for determining whether someone qualifies to file a Chapter 7/how much the payment will be in a Chapter 13. Obviously, this is a critical part of bankruptcy. Part of the Means Test is to determine what a household’s gross income over the last six months was. Accordingly, that’s why an attorney typically needs to look at your paystubs for the last six months. If you are self-employed, an attorney will typically have you fill out a profit and loss form.
· Copies of your bank statements for the last six months- Bank statements can be very useful tools for the Trustee in verifying your assets at the time of filing; they also help paint a picture of what is going on in your monthly finances. Accordingly, Trustees often request copies of your bank statements.
· Credit Counseling Certificate- In order to file a Chapter 7 or Chapter 13, a debtor is required to take a credit counseling course and provide a certificate of completion to the Court. The course can be done online, over the phone, or in person. The class typically takes anywhere from 25 minutes to an hour. It is an absolute requirement that this course be completed by the debtor prior to filing.
After the client assembles this information, a bankruptcy attorney is able to get to work and prepare a Debtor’s bankruptcy petition. After the petition is prepared, the attorney will sit down with the client and review the petition extensively. After the petition is signed and approved by the client, the attorney will file the petition in Federal Bankruptcy Court, which will start the bankruptcy process and protections. If you are considering a bankruptcy, make sure you meet with an attorney. The experienced bankruptcy attorneys at Fears | Nachawati offer free consultations and would be more than happy to walk you through the process. For more information, contact us here or call out office at 1.866.705.7584.
The general rule in bankruptcy is that a debtor is not able to discharge student loans absent a showing of undue hardship (a very difficult standard to meet in most courts). However, not every debt to a college or university is accepted from discharge. Some debts, like unpaid tuition, may qualify for discharge during bankruptcy.
The bankruptcy discharge is very broad; ts interpretation favors discharging debts and providing the debtor with a fresh start. Consequently, and exception to discharge is treated very narrowly. Congress has carved out the student loan exception and identified the following debts as non-dischargeable (except for undue hardship) under bankruptcy chapters 7, 11, 12, or 13:
(A)(i) an educational benefit over payment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or
(ii) an obligation to repay funds received as an educational benefit, scholarship, or stipend; or
(B) any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual.
Consequently, non-dischargeable education debts are qualifying loans (generally requiring evidence of a promissory note), or educational payments made by the school to the student, as in an advance of cash or exchange of money. Owed college tuition does not fit into the non-dischargeable category. For instance, if you attend classes without paying or signing a promissory note (an agreement signed on or about the same time providing for a definitive amount to be repaid, in specified installments, by a certain time, and at a certain interest rate), you likely can discharge this debt in bankruptcy. The same principle applies to debts at the student union, gym, bookstore, and room and board debts.
The determination whether a debt is dischargeable in bankruptcy is usually a complicated matter. Your bankruptcy attorney can explain how the local bankruptcy court will analyze the debt and the likely conclusion. For a free consultation with one of our experienced bankruptcy attorneys, contact us here or call the office at 1.866.705.7584.
As a resident of Texas (residing in the state for more than two years), certain property you own will automatically be protected from seizure by your creditors. This protected property is commonly known as “exempt property”. Most notably, any equity in your homestead and/or vehicles (as much as $30,000 for vehicles per household member) will be protected from your creditors. The only exception to this is if your creditor has been granted a security interest in the property like a mortgage or car note. Under Texas law, creditors typically have to get a judgment before they can try and collect any “non-exempt” or unprotected property from you to satisfy a debt. The most common types of property that are non-exempt under Texas law are bank accounts and ownership interests in businesses.
Upon filing bankruptcy, a Texan has two sets of property exemptions they get to choose from: 1)the property exemptions provided by the Federal Government, or 2) the Texas property exemptions. The set of property exemptions that will be best for you will largely depend on the type of property you need to protect and the amount of equity in that property. If you have a large amount of equity in your house and vehicles, the Texas exemptions might be best for you. In addition to protecting your house and vehicles, you can also protect home furnishings, tools of the trade, jewelry, firearms, and livestock. The major things that are not going to be protected under the Texas exemptions are business interests (like ownership interests in companies or LLCs) or money in bank accounts.
The Federal property exemptions are only available to those who file bankruptcy. Like the Texas exemptions, the Federal exemptions allow you to protect equity in your homestead and vehicles, but not as much dollar-wise as the Texas exemptions. However, the Federal exemptions are more flexible than the Texas exemptions and allow you to protect things like bank accounts, business interests, and other miscellaneous property with the “wild card exemption.” The wild card exemption can be used to protect any sort of property you want; if you don’t have equity in any real estate, you can protect up to almost $12,000 in property! Certain property like social security proceeds, life insurance values, and retirement accounts (401K, IRA, etc.), are typically protected under both Federal and State exemptions.
Choosing the right set of property exemptions and applying them properly to your assets is extremely important in bankruptcy. If you claim the wrong exemptions, you can lose property that would otherwise be protected. The attorneys at Fears Nachawati will be able to walk you through this important process and make sure that you are able to keep all of the property you are entitled to keep by law. To get started with a free consultation, call us today.
For many people Chapter 11 bankruptcy conjures up thoughts of General Motors or Washington Mutual. Fortunately, Chapter 11 bankruptcy is not just reserved for billion dollar corporations, but is a useful tool for many small companies suffering from financial distress that need to reorganize.
Chapter 11 of the Bankruptcy Code contains special provisions designed for small businesses. Generally, to qualify for these special bankruptcy procedures the small business must be engaged in commerce with debts less than $2.19 million. The small business must file a bankruptcy petition and include (1) the most recent balance sheet; (2) a statement of operations; (3) a cash flow statement; and (4) the most recent tax return.
The federal law imposes an automatic stay after the Chapter 11 case is filed that prohibits all collection actions against the small business. This stay halts lawsuits, assets seizures, and other legal actions. Normal business operations continue under the court’s supervision during the pendency of the bankruptcy.
The goal of the Chapter 11 is to obtain a court-ordered plan to repay some or all of the company's debts over time. The business debtor’s plan may propose to pay a percentage of the debt, or change the terms of leases and contracts. In general, the court will confirm a plan that is feasible, proposed in good faith, and complies with the legal requirements under the Bankruptcy Code. Creditors must also receive as much as it would if the business’s assets were liquidated.
Chapter 11 bankruptcy offers financially distressed small businesses an opportunity to continue operations while restructuring debts. If your company could benefit from Chapter 11 of the Bankruptcy Code, contact an experienced bankruptcy attorney and discuss your options.
Some unscrupulous non-attorneys take advantage of the poorest and most vulnerable by offering bankruptcy petition preparation services at a discount rate. Maybe you have seen their ads in free community newspapers. These services offer to prepare your bankruptcy petition and avoid the “high cost” of an attorney.
Sounds great, right?
Petition preparers are restricted by federal law to the level of a typing service. Preparers cannot represent you in bankruptcy court and are expressly forbidden from providing any legal advice regarding your bankruptcy case. That means a petition preparer cannot: discuss the benefits of the different bankruptcy chapters and how they apply to your case; explain certain legal exemption rights you may be entitled to in order to protect your property; or tell you what debts or assets must be included or may be omitted from your bankruptcy petition.
When you hire a petition preparer you must file your bankruptcy case yourself. Some petition preparers may try to entice you with promises of waiving the bankruptcy filing fee. The truth is that if you were able to pay a petition preparer, the court is unlikely to waive the filing fee.
While there are no special educational requirements for petition preparers, the federal law requires that they:
• Make a written disclosure of services and fees
• Charge a reasonable fee for services, usually limited by local bankruptcy law
• Not collect or process court filing fees
• File a written disclosure with the bankruptcy court regarding fees and services, including name and tax identification number
While the federal law allows preparers to type petitions, bankruptcy professionals, including judges and attorneys, despise this activity. A main objective of the bankruptcy process is to provide a deserving debtor with relief from crushing debt. In many cases, petition preparers only make matters worse. Debtors need legal counsel to receive the protections and benefits of the bankruptcy laws. Petition preparers are not attorneys and any legal advice they provide, while illegal, may also be devastatingly wrong. Many debtors relying on the assistance of petition preparers have had their cases dismissed, have lost property to creditors, or have experienced other unnecessary complication in their cases.
If you are hurting financially, discuss your situation with a bankruptcy attorney at a free consultation. Your attorney can advise you on your legal options and discuss how you can afford the different fees in bankruptcy.
When a bankruptcy case is filed the individual debtor announces his or her intent to proceed under Chapter 7, 11, or 13 of the federal Bankruptcy Code. Each bankruptcy chapter has its own advantages and challenges. During some cases, the debtor’s circumstances may change and another bankruptcy chapter becomes more beneficial. In these cases the debtor may be able to convert the bankruptcy case to a different chapter.
Converting a bankruptcy case to another chapter is a very simple process. There is a filing fee and a notice that must be filed with the bankruptcy court. The debtor is required to update the bankruptcy schedules to include any changes or new information. Conversion can be beneficial to the debtor in that any debt incurred after the original bankruptcy filing date can be included in the converted case.
A converted case retains its original case number (so there are not two bankruptcy cases on your record). A different trustee is assigned to your bankruptcy case, and you are required to attend a (second) meeting of creditors. If you are converting from a Chapter 11 or 13 case to a Chapter 7, you may be entitled to a refund of plan payments, if the Chapter 13 trustee is holding money.
A case may be involuntarily converted when a Chapter 7 debtor is found to be ineligible. When the debtor has sufficient disposable income to make payments on debt through a Chapter 13 case, the trustee may ask the court to order the case dismissed or converted to a Chapter 13.
If you believe that you need to convert your case to a different bankruptcy chapter, consult with your experience attorney regarding the benefits of conversion. In many cases there are options to continue your case under its current chapter. In other cases conversion may be the best option.
Every time you use your debit card to pay for purchases, the merchant must pay a "swipe fee" to the card issuing bank. The old formula averaged about 1.14 percent of the purchase price, and netted U.S. banks billions in fees. As of October 1, 2011, these fees have been dramatically cut by a new law contained in the Dodd-Frank Act. Now swipe fees are capped five percent of the transaction and a maximum of 21 cents. Some analysts predict that this will cost the biggest U.S. banks annual revenue of $8 billion.
So when was the last time big banks lost money without a fight?
Bloomberg and other news agencies are reporting that Bank of America is planning a $5 monthly fee for debit card use. Instead of getting their money from merchants, Bank of America will get it from its customers. The fee will apply any month in which the debit card is used for a purchase, and will not apply to withdrawals from a cash machine. The fee will be assessed whether the customer makes one purchase or ten. In other words, that $10 purchase could now cost you $15.
The $5 monthly usage charge would take effect early next year, and customers would be notified at least 30 days in advance of the change, said Betty Reiss, a spokeswoman for Bank of America. "If they don't use the debit card during the month to make a purchase, they won't incur the fee," Reiss said.
Bloomberg reports that Wells Fargo is also testing a $3 monthly debit card fee in some markets. "We will continue to see more debit card fees in the months ahead," said Greg McBride, senior financial analyst at Bankrate.com.
Predictably, the Bank of America debit card fee will not apply to wealthy accountholders with premium accounts. There are many bank fees that are directed at lower income families, including monthly or annual checking account fees, overdraft fees, overdrawn account penalties, and checking account advance fees. These fees account for billions each year in revenue and take money from the pockets of lower income people.
If you are struggling with debt and have too much month left at the end of your money, speak with an experienced bankruptcy attorney and discuss your options. Don’t continue to have your income drained by bank fees! Take control over your finances and build a better financial future today.
In “the old days” (before 2005) a bankruptcy debtor with a mortgage problem could file a Chapter 7 bankruptcy and discharge all of his unsecured debts, then immediately turn around and file a Chapter 13 to deal with real estate debt. Bankruptcy attorneys referred to this as a “Chapter 20” (Chapter 7 plus Chapter 13). The 2005 amendments to the Bankruptcy Code sought to kill this practice; however one recent case may bring Chapter 20 back to life.
The Bankruptcy Appellate Panel for the federal Eighth Circuit Court of Appeals has ruled in favor of a debtor who filed a Chapter 13 bankruptcy to strip away a wholly unsecured second mortgage, even though he was not eligible for a discharge in the Chapter 13 case. In this case, In re Fisette, No. 11-6012 (8th Cir. BAP Aug. 29, 2011), the debtor filed his Chapter 13 case soon after receiving a discharge in a previous Chapter 7 case. The Bankruptcy Code requires that a debtor wait six years after a Chapter 7 case to be eligible for a Chapter 13 discharge, so the debtor was not eligible for a Chapter 13 discharge. After filing Chapter 7, Fisette continued to make payments on his home without formally reaffirming his personal obligation on any of his three mortgages. By 2010 he was behind on his mortgage payments. Since the total amount owed on his first mortgage was more that his house was worth, Fisette decided to ask the bankruptcy court to strip away the second and third mortgages.
The Eighth Circuit BAP allowed Fisette to strip away the junior mortgages. Since Fisette had previously been discharged of his personal obligation on the junior mortgages during his Chapter 7 case, the bank had no recourse against Fisette or his property. This is the first time a federal appellate court has allowed lien stripping in a “Chapter 20” case since 2005.
Bankruptcy law can be extremely complex and is constantly changing. If you need the help and protection of the federal bankruptcy courts, get assistance from an experienced bankruptcy attorney. Your attorney can explain your rights and your options, and help you decide on the right course for you and your family.
Equity is a very important term when discussing your personal assets. Generally, equity is the difference between the market value of an item and the amount of the claims against it. For instance, if your car is worth $5,000, and your auto loan balance is $3,000, then you have $2,000 in vehicle equity. If you own the vehicle jointly with your mother, you have $1,000 in vehicle equity.
Equity is a common issue during bankruptcy, since the debtor is allowed to keep certain modest possessions. Once the amount of equity in an item of property is determined, the debtor can apply legal exemptions against the equity to protect the asset from the bankruptcy trustee and creditors.
When calculating equity, it is vital to not over-value the asset. For some items there are resources, such as the NADA Price Guide for automobiles. For other items you may need to do some investigation. Ebay is a good resource for collectibles. For real estate it may be necessary to speak to a realtor or conduct an appraisal to discover the market value.
Many bankruptcy debtors over-value furniture and jewelry. Most furniture and jewelry immediately depreciates a great deal after purchase. A used sofa may have cost you $700 at the furniture store, but the market value is only what you would get from a yard sale or through Craigslist. Probably not anywhere near what you originally paid.
After determining the market value, the second step in figuring equity is to subtract any claims against the property. The most common type of claim is called a purchase money security interest (PMSI), a fancy term that means you used a lender’s money to buy the item and used the item as security for the loan. This is usually the case with a car loan or a home mortgage, but many other credit purchases could be considered PMSI. A non purchase money security interest (NPMSI) is a loan secured by property you already own. Some finance companies use furniture or other property owned by the borrower to secure personal loans. Finally, a tax lien against real estate or even personal property may affect your equity, as can some legal judgments.
Once your equity is calculated, the next step is to apply legal exemptions to the equity. Most debtors are able to protect all of their equity using legal exemptions. If there is unprotected equity, the trustee must make a decision whether the amount of equity available is worth his time and will actually benefit creditors. Statistically bankruptcy trustees only take property or assets from debtors in about one out of every twenty five Chapter 7 cases.
It is very important to accurately calculate the amount of equity in your property. Discuss all of your property, its market value, and your legal claims with your attorney. Your attorney can then advise you on the best way to protect the property from creditors.
Wor*ry*wart - noun: a person who is inclined to worry unduly.
Some clients are content to turn over their financial problems to a bankruptcy attorney and experience immediate peace of mind. Others cannot stop worrying until the case is discharged and closed. Everyone is different. Fortunately, most bankruptcy cases are very predictable. Before the case is filed your bankruptcy attorney should explain the process and prepare you for certain events that will occur.
Your attorney is in constant contact with the bankruptcy court and receives electronic notices concerning your case. In most cases, a bankruptcy debtor represented by an attorney will not receive correspondence through the mail from creditors, the bankruptcy trustee, or from the bankruptcy court. Instead, your attorney is required to keep you informed concerning the status of your bankruptcy case, and you will be contacted concerning important changes to your bankruptcy case. Notices such as the date of your Meeting of Creditors, or your discharge, will be sent to you along with other important information.
For the worrywart, the federal bankruptcy courts provide access to case information via the Public Access to Court Electronic Records, or PACER system. Through PACER, anyone can obtain information about a bankruptcy proceeding, including access to all documents and docket entries associated with the case. However, this information comes at a price. PACER charges $.08 per page. Some people have unknowingly racked up a substantial bill by constantly checking PACER for changes to a bankruptcy case.
If you choose to sign up for a PACER account to monitor your case, the general rule of thumb is to check your case only about once a week because bankruptcy cases generally move in a slow and orderly pace. Additionally, avoid clicking on every link, especially choosing to view large documents such as your petition and schedules (which could be 30-40 pages!). Instead, by choosing the docket report option you will see a synopsis of your case and it should cost less than a dollar per view.
Client access to PACER is not necessary for the typical bankruptcy case. You will receive important notices and information directly from your attorney and the streamlined nature of the bankruptcy process will quickly move your case to completion. Other the other hand, if you are a chronic worrier, an occasional check of your case on PACER may be just what the doctor ordered to provide you with peace of mind.
Clients are often pleased to learn about one of the bankruptcy law's most powerful protections: the automatic stay. When a bankruptcy case is filed, the debtor receives immediate protection from creditor collection actions. This relief is known as the “automatic stay” because it immediately stops lawsuits, telephone harassment, and other attempts to collect on a debt. The automatic stay continues throughout the bankruptcy case until either the stay is modified by the court or the case ends.
But what about co-signors?
Most co-signors are considered "jointly and severally liable" for the debt. That means that each party is liable up to the full amount of the debt. If you file bankruptcy, your co-signor is typically on the hook for 100% of the outstanding debt. Contrary to a popular misunderstanding, the bankruptcy discharge does not "erase" a financial obligation. The discharge is a legal injunction that prohibits your creditors from enforcing your debts against you individually. The debt still exists, and can be collected from others who are not protected by the bankruptcy laws.
Filing a Chapter 7 bankruptcy case will not stop a creditor from collecting against a co-signor or co-debtor. However, a Chapter 13 bankruptcy case contains a protection known as the “Co-Debtor Stay.” This protection is meant to protect a debtor by insulating him from indirect pressures from his creditors exerted through friends or relatives. The Co-Debtor Stay stops all collection actions against any individual who is obligated on a consumer debt owed by the debtor. This protection continues until the Chapter 13 case has concluded, or the Co-debtor Stay is modified or lifted by the bankruptcy court. Typically, the Co-Debtor Stay will last the duration of the debtor's Chapter 13 bankruptcy case, or three to five years.
There are limits to the Co-Debtor Stay. The Co-Debtor Stay only prohibits collection on personal debts, not business obligations. Additionally, if your co-signor actually received the benefit of the debt, and your Chapter 13 plan proposes not to pay the debt, the creditor can seek to lift the stay. This is often the case when the bankruptcy debtor co-signed a loan so that a friend or family member could purchase a car. Of course, if the creditor is receiving timely payments on the loan, there is usually no issue or impact to the co-signor.
If you need bankruptcy relief, but are worried that your co-signors will be harmed, discuss the issue with an experienced bankruptcy attorney. Your attorney can recommend several options to consider when dealing with co-signors.
Years ago, few attorneys specialized in any particular area of the law. These "general practitioners" handled criminal cases, family law matters, real estate disputes, and a host of other complex legal matters. Today law schools teach aspiring attorneys the general principles in many different legal disciplines, and the bar exam tests the basic knowledge of these subjects. However, the idea of the "general practitioner" is outdated. In today's world, a complex legal matter such as a bankruptcy case is best handled by an attorney that has specialized knowledge and experience.
Bankruptcy law is an area of the law that many attorneys avoid - and for good reason! Bankruptcy law is a complex amalgamation of federal and state laws, court rules, case precedent, and customs. While the federal Bankruptcy Code is intended to be applied uniformly across the country, bankruptcy judges in different districts have interpreted and applied the provisions of the Bankruptcy Code differently. For this reason it is often important to know how the views and opinions of the bankruptcy court judge assigned to your case. Additionally, your bankruptcy attorney is familiar with the negotiation practices of your creditors and can anticipate an outcome before your case is filed.
An experienced bankruptcy attorney is able to review your case and identify any potential problems. For instance, it may be advantageous to wait a month or longer to file your case. Perhaps you have a preferential transfer, or your income is too high because of a bonus you received five months ago. Your bankruptcy attorney knows which questions to ask and how to avoid problems in your case. As the saying goes, "there is no substitute for experience."
An attorney who practices primarily bankruptcy is also able to move quickly and efficiently through the stages of your case. Bankruptcy courts are streamlined to provide quick relief to deserving debtors, and your bankruptcy attorney has customized the processes in the legal office to maximize efficiency. This not only saves you time, but also money.
Using your family attorney or cousin who just passed the bar may sound appealing, or may even save a few dollars up front, but the costs may quickly mount up when you experience problems in your case. When you think about it, hiring a bankruptcy attorney for a bankruptcy case is a no brainer. The bankruptcy attorney works every day in the bankruptcy law and can handle your case quickly, efficiently, and without surprises.
In theory debt settlement is simple: the debtor negotiates with the creditor to reduce a debt to an amount that is regarded as payment in full. It sounds honest enough: the debtor cannot afford to repay a debt, so the creditor agrees to accept a reduction. The creditor is paid something and the debtor avoids bankruptcy.
In practice debt settlement is a nasty game of chicken. The debt settlement company advises the debtor to stop making monthly payments to the creditor. In response, the creditor pressures the debtor to pay through harassing telephone calls, damage to the debtor’s credit report, mounting interest and fees, and perhaps legal action. The resolution comes when one side blinks: either the creditor is convinced that it better take a settlement or risk discharge in bankruptcy; or the debtor realizes that his or her credit is ruined and actually files bankruptcy.
Debt settlement is big business, but many debt settlement companies have caused big trouble for their clients. Take for example Debt Relief USA. This company, like many debt settlement companies, advised its customers to stop paying its creditors and instead deposit money into a Debt Relief USA settlement account. This money, held by Debt Relief USA, was to be used as settle funds for the individual’s debts. Customers were assessed fees for services including burdensome “administration fees” and monthly “maintenance fees” that further damaged its customers’ financial situations. When a debt was settled, the Debt Relief USA charged a 13 percent “negotiation fee.”
In 2009 Debt Relief USA filed a Chapter 11 bankruptcy and claimed that it owed its clients $5 million from these settlement accounts. In December 2010, the bankruptcy court approved a $3.7 million disbursement to Debt Relief USA’s clients. The case was also converted to Chapter 7 and Debt Relief USA is no longer conducting business.
Bankruptcy attorneys regularly see the damage caused by debt settlement companies. In some cases money is not returned to debt settlement customers, or the company itself files bankruptcy, or the individual’s credit is destroyed. Before agreeing to any debt relief program, discuss your financial situation an experienced bankruptcy attorney. There are powerful federal laws that can protect you from overwhelming debt, and a bankruptcy attorney can review your legal options without risking your cash.
Most credit unions and some banks use “Loanliner” documents. These agreements are standard loan documents developed by CUNA Mutual Group and sold to financial institutions. Over 70% of all credit unions use Loanliner documents for their lending transactions. Included in standard Loanliner lending agreements is a provision in which the borrower agrees that all other loans with the lender are cross-collateralized.
Cross-collateralization is basically the use of collateral from one loan to secure other loans. The cross-collateralization clause from a recent Loanliner agreement reads: “the security interest also secures any other loans, including any credit card loan, you have now or receive in the future from us and any other amounts you owe us for any reason now or in the future.” Credit unions are fond of using this clause in vehicle loan agreements to secure all other credit union debts with the vehicle. This often causes surprises (and anger) when an unsuspecting credit union member tries to trade-in his car and discovers that the debt on the vehicle includes a personal loan, a line of credit, and credit card balances.
There are a few options if you are faced with a cross-collateralized auto loan. First, you can file a Chapter 13 and cram-down the loan to match your vehicle's value. Any remaining debt is discharged at the end of the Chapter 13 case. During a Chapter 13 case, you can pay a cram-down over three to five years.
During a Chapter 7 case, your attorney can simply ask the credit union to draft a reaffirmation agreement for the vehicle without regard to other debts. You are basically asking the credit union to voluntarily strip off the cross-collateralized loans. If the credit union refuses your request, you have two options: (1) surrender the vehicle and discharge all debts to the credit union; or (2) redeem the vehicle. Redemption is a process exclusive to a Chapter 7 bankruptcy case where the debtor keeps a vehicle by paying the value of the vehicle, not the total debt that is owed. While similar to a Chapter 13 cram-down, redemption differs in that the payment to the secured creditor must be a lump sum. Payments are not permitted.
If you have an auto loan through your local credit union, review the loan paperwork with your attorney for a cross-collateralization clause. Your bankruptcy attorney can discuss your options with you and help arrive at the best financial decision for your family.
After a court enters a money judgment against you, the judgment creditor can proceed to collect. Many experienced creditors like to start the post-judgment collection process by attacking your bank account. In this way the creditor can attempt to seize a lump sum payment before settling in to collect from your wages.
A bank account garnishment begins with the court directing the bank to freeze your bank account and turn over funds to the sheriff. Once your account is frozen, any outstanding check will be refused payment (unless the amount of the judgment is less than the amount on deposit at your bank, then the bank can only partially freeze your account). A garnished bank account can cause many problems for the debtor, especially when executed just after payday.
Bank account garnishments are almost always a surprise. The judgment creditor or collecting agent (often the sheriff of your county) must notify you and the bank, but typically the bank is first notified to freeze your account, then you are notified by regular mail. This prevents any possibility that you can withdraw funds before the garnishment takes your money.
There are defenses to a bank garnishment. You may claim that all or a part of the deposited funds are exempt under state or federal law. The notice of garnishment is often accompanied by a list of possible exemptions and notice procedures. For instance, Social Security payments are generally exempt from garnishment. However, once a Social Security payment is deposited into your account and co-mingled with other funds, the question becomes “what part of the account balance is Social Security (and exempt) and what part is not?” A hearing is required to determine this answer and the burden is on you to prove that the funds in the account are exempt from creditor collection.
Filing bankruptcy stops the commencement or continuation of a bank garnishment. Bankruptcy stops collection actions and will discharge most judgments. If there is a judgment against you and you fear a future bank account garnishment, speak with an experienced attorney and discuss how the federal bankruptcy laws can stop a judgment creditor cold.
The federal bankruptcy system is built on trust. The Supreme Court of the United States has consistently held that bankruptcy provides a fresh start for the honest, but unfortunate debtor. However, a dishonest debtor can face significant obstacles and make his financial and legal situation worse.
The bankruptcy laws are meant to give an honest debtor a fresh start, but not a head start. The debtor is expected to make a reasonable and good faith effort to repay his creditors. The debtor must provide honest and accurate information regarding his income, expenses, assets, and debts to the bankruptcy court. The information is reviewed by creditors and the bankruptcy trustee and is a snapshot of the debtor’s financial status on the day the bankruptcy was filed.
The law does not expect bankruptcy debtors to go without food, or clothing, or to stop paying the family car payment in order to pay a credit card bill. On the other hand, the debtor is expected to pay if the money can be reasonably had from extra monthly income or by selling an unnecessary item of property.
Even with the large benefit that bankruptcy can provide, some debtors still try to “game” the system. Failing to honestly and accurately disclose income or assets can result in a denial of bankruptcy discharge. In some cases the bankruptcy court may dismiss the debtor’s case for dishonest acts like lying on the bankruptcy schedules, hiding assets, failing to maintain financial records, refusing to turn over records, and refusing to cooperate with the trustee. If the debtor’s case is dismissed or a discharge is denied, the debtor will remain liable for all debts.
If a discharge is denied, any assets turned over during the case will still be administered by the bankruptcy trustee and the debtor may lose non-exempt property to creditors.
Perhaps the most serious consequence to the dishonest debtor is a federal criminal charge for bankruptcy fraud. Dishonest acts during bankruptcy may be referred to the Federal Bureau of Investigation for investigation. Other federal agencies may become involved like the Internal Revenue Service Criminal Investigation’s Bankruptcy Fraud Program. The Department of Justice Trustee Program maintains a website and toll-free number for the general public to report suspected bankruptcy fraud.
The old saying goes, “pigs get fat, hogs get slaughtered.” Don’t be hoggish during bankruptcy and report your financial information honestly and accurately. An experienced bankruptcy attorney can evaluate your financial situation and advise you in the most beneficial and legal way to protect your family’s income and assets during bankruptcy. Call today and discover how the powerful federal bankruptcy laws can help you.
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Many corporations that file Chapter 11 bankruptcy will present a “prepackaged” bankruptcy case to the bankruptcy court. A prepackaged bankruptcy is a cooperative effort between the company, its shareholders and its creditors to develop a plan to restructure the company that will take effect once the bankruptcy case is filed. The idea is to shorten and simplify the bankruptcy process and save everyone concerned money and time.
Can a prepackaged bankruptcy work for you?
Most often unsecured creditors are discharged at the end of a Chapter 7 or 13 bankruptcy cases, so there is usually no benefit to working with an unsecured creditor prior to bankruptcy. However, there may be an incentive to coordinate with a secured creditor before the bankruptcy is filed. This may be especially true when dealing with smaller companies, local banks, or individual lien holders who may be apt to misinterpret your intention. In other cases, there may be a large benefit to be gained by coordinating with the creditor prior to bankruptcy. For instance, some homeowners have been able to modify a first mortgage to bring payments current, and then file bankruptcy to strip off a second mortgage. The result is a lower plan payment and/or a shorter plan term.
As a general rule you should not volunteer information to your creditors as it may cause otherwise avoidable problems. Some lenders may accelerate the collection processes if they believe a bankruptcy is imminent, especially in the case of delinquent auto payments. Once you have filed bankruptcy, the creditor must obtain permission from the bankruptcy court to repossess, foreclose or collect.
If you are struggling with bills you cannot pay, discuss your situation with an experienced bankruptcy attorney. Your attorney can guide you through the pre-bankruptcy process and advise you on the best course of action to achieve the most benefit. Every situation is different, so consult your attorney.
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"If I had that kind of money, I wouldn't have to file bankruptcy!"
All bankruptcy attorneys hear that frustrated statement from time to time. Some individuals wait until they are dead broke before contacting a bankruptcy attorney for help. By that time there is little or no money to pay bills, let alone court fees, credit counseling fees, and attorney fees. The article today is about helpful advice on how to get the money for your attorney without creating more difficulty for yourself.
One popular choice for many debtors is a loan from a family member. If you borrow money from a relative to pay the bankruptcy fees, you must identify that relative as a creditor on your bankruptcy schedules. In most cases this debt will be discharged along with other unsecured creditors. Despite the bankruptcy discharge, you are not prohibited from repaying the debt if you feel a moral obligation to do so.
On the other hand, if your relative gives you the money as a gift, it does not need to be disclosed. However, the money must be included as income on the Means Test. In only a small number of cases would this situation cause problem with the Means Test.
Selling property is another option to pay the bankruptcy fees. There is nothing wrong with selling property for fair market value prior to a bankruptcy. Selling a non-exempt asset (one that you may lose to the trustee) makes good financial sense. You must disclose the sale in your bankruptcy schedules and account for the proceeds.
Some debtors cash out investments or take money from a retirement account. These choices may carry tax consequences and are also normally counted as income on the Means Test. Other debtors use income tax refund money. It makes sense to use non exempt cash money to pay bankruptcy fees rather than see it lost to the bankruptcy trustee.
Some clients are able to save money from their paychecks after they decide to file bankruptcy. Generally, once you decide to file bankruptcy, you should stop paying credit cards and other unsecured, dischargeable debts. Secured debts that will survive the bankruptcy should be paid along with utility bills and non-dischargeable debts.
Using a credit card to pay your attorney can create difficulties in your bankruptcy case. Credit card charges within 90 days of the bankruptcy filing are presumptively nondischargeable. Likewise payday loans taken immediately before the bankruptcy will have to be repaid.
As you can see, an experienced bankruptcy attorney can offer many suggestions on how to raise the money to pay the bankruptcy fees. Discuss your financial situation before you sell, borrow, or charge anything. Good advice from a knowledgeable source can save you from headaches down the road.
Recently the United States Supreme Court resolved an ambiguity in the bankruptcy law that had the federal circuits split. The case, Ransom v. FIA Card Services, decided whether an above-median Chapter 13 debtor can take a $496 vehicle ownership deduction on the Bankruptcy Means Test when the debtor owns the vehicle free and clear. The Means Test calculates projected disposable income and presumptively determines the amount a Chapter 13 debtor must repay to unsecured creditors.
Some federal courts previously allowed the debtor to deduct this ownership expense even when there is no lien or payment on the vehicle. The Supreme Court's ruling reverses this practice and resolves a split in the federal circuits.
This decision places some debtors in a difficult dilemma: whether to encumber their vehicle with a lien and loan payment prior to bankruptcy, or pay unsecured creditors over the course of the bankruptcy. For instance, a debtor who fails to qualify for the $496/mo vehicle ownership deduction may result in a payment of an extra $29,760 over a five year repayment plan. In other cases losing the vehicle ownership deduction may mean the difference between being eligible to file Chapter 7 and being forced to file Chapter 13.
If you own a vehicle outright and are experiencing financial trouble, speak with an experienced bankruptcy attorney and discuss your options. Do not get a title loan prior to filing bankruptcy without consulting your attorney as doing so may result in a bad faith objection from the bankruptcy trustee. Your attorney can explain your options and advise you as to your best course of action.
Calendar year 2010 saw personal bankruptcy filing rates rise to the highest level in five years, according to information collected by the American Bankruptcy Institute, an association of attorneys and other bankruptcy professionals. There were 1,530,078 personal bankruptcy cases filed during 2010, a 9% increase from 2009. While the total numbers of bankruptcy filings continue to climb, the 9% increase from 2009 is actually the lowest rate increase in the last four years.
Nationwide, 1 out of 150 people filed bankruptcy in 2010. Nevada, with its unemployment rate at 14%, has the highest per capital filing rate averaging 1 bankruptcy filer out of every 67 residents. After Nevada, Georgia and Tennessee have the highest filing rates per capita, about 50% more than the national average. Alaska, South Carolina, Texas, North Dakota, South Dakota, and Vermont have the lowest filing rates.
A few states saw sharp increases in the number of personal bankruptcy filings. Hawaii experienced 29% more filings in 2010 over the previous year. California, Utah, and Arizona each had increases of 24%. The net increase in those states (about 62,000) was greater than the net increase in all other 46 states and the District of Columbia combined (around 60,000). The data indicates that while the southeastern states are filing bankruptcy cases at a slower pace, the southwest is experiencing further economic distress evidenced by its increased bankruptcy filing rates.
The raw bankruptcy data also shows a strong preference for Chapter 7 bankruptcy cases. Consumers filed Chapter 13 cases only 28% of the time during 2010. Information provided by the National Bankruptcy Research Center suggests that a higher percentage of Chapter 13 filings appears closely tied to high rates of auto loan delinquencies. Southeastern states have the highest percentage of auto loan delinquencies and corresponding high percentages of Chapter 13 filings.
If you are in financial trouble and need bankruptcy relief, you are not alone! The federal bankruptcy laws can help protect your income, assets, and retirement accounts, while stopping lawsuits, garnishments and repossessions. Speak with an experienced bankruptcy attorney and begin your path to a Fresh Start today!
A bankruptcy proof of claim is an allegation against the debtor of a debt that arose on or before the date of the bankruptcy filing. It is an allegation because the bankruptcy debtor may contest this allegation. The bankruptcy court accepts the creditor’s proof of claim as true until the debtor files an objection and disputes it.
In cases where there is no distribution of money to creditors (called a “no asset case”), filing a proof of claim is not necessary. Consequently, claims are not filed in most Chapter 7 cases. In Chapter 13 cases, when creditors expect to be paid, the proof of claim is a prerequisite to payment from the trustee.
A proof of claim can be filed by a creditor, the debtor, or the bankruptcy trustee. If an unsecured creditor fails to file a proof of claim, the claim is not allowed and the trustee will not pay the creditor. This can be problematic to the debtor in certain cases and may necessitate the debtor filing a proof of claim so that the creditor can be paid. Failure to file a proof of claim does not impact a secured creditor’s lien against collateral.
The bankruptcy court uses a standard proof of claim form. In most cases this form is mailed to creditors during Chapter 13 cases or Chapter 7 asset cases. A proof of claim should include a copy of any supporting documentation (a promissory note or other loan paperwork), as well as evidence of perfection of a secured claim. A creditor must file the proof of claim prior to the claims deadline (bar date). This date is set by the bankruptcy court, but cannot exceed ninety days after the first date set for the Meeting of Creditors.
A debtor may object to a proof of claim. Common objections include:
* Not timely filed;
* Incorrect claim amount;
* Improper claim;
* Debt paid in full;
* Failure to attach adequate supporting documentation.
If you are considering filing a Chapter 13 bankruptcy, expect to have your creditors file claims. Each proof of claim should be reviewed by you and your attorney to ensure that the claim is accurate. Failure to timely object to the proof of claim may substantially impact your case.
When a Chapter 7 or 13 bankruptcy petition is filed, the bankruptcy court issues an injunction forbidding any collection action against the debtor. This protection is called the “automatic stay” because once the case is filed the injunction happens immediately and automatically. The automatic stay prohibits telephone harassment, lawsuits, garnishments, and even letters attempting to collect on a debt. The stay typically continues until the case is dismissed, the debtor receives a discharged, or the bankruptcy court otherwise amends the order.
In some cases a creditor may want to amend the automatic stay and proceed with collection against the debtor. To accomplish this, the creditor must file a “Motion to Lift Stay” with the bankruptcy court. This motion is filed routinely when the debtor is not making the monthly payment on secured property (e.g. a house or car). The creditor will seek leave from the court to lift the stay and either foreclose or repossess the collateral.
To succeed in a Motion to Lift Stay, the creditor must show that it has good cause for the request. Generally lack of payments since the bankruptcy filing will constitute good cause. Additionally, good cause may exist if the debtor has failed to keep insurance on the collateral.
Defending a Motion to Lift Stay usually boils down to making payments. Once the debtor is current on the monthly payments the creditor’s motion is generally denied. The debtor may also challenge the creditor’s standing. This may occur when a mortgage is at issue that changed hands several times. If the creditor cannot prove to the court that it is the current holder of the promissory note, the bankruptcy court will not consider the creditor’s motion. Finally, the debtor may negotiate a resolution of the issue with the creditor. The debtor pays something and makes additional promises for future payments, and the creditor withdraws the motion.
If you intend to retain secured property after your bankruptcy filing, consult with your attorney and discuss your payment obligations. The general rule is that “secured property must be paid for or returned.” Making payments after bankruptcy can avoid a Motion to Lift Stay on your property.
Occasionally an individual or couple cannot qualify for a Chapter 13 repayment bankruptcy and must file under Chapter 13. The procedure for proposing a Chapter 11 plan of reorganization is dictated by the Bankruptcy Code and is in many ways similar to a Chapter 13 bankruptcy. The Chapter 11 bankruptcy debtor may file a plan of reorganization during the first 120-day period after the case is filed, and the debtor has 180 days after the entry of the order for relief to obtain creditor acceptance of its plan. After that period a creditor may file a proposed plan with the court. A bankruptcy trustee, if one is appointed, will also file its own plan, or a recommendation for conversion or dismissal of the case.
The Bankruptcy Code lists mandatory and discretionary provisions of a Chapter 11 plan, including the designation of classes of claims and interests. Generally, a plan will classify claim holders as secured creditors, unsecured creditors entitled to priority, general unsecured creditors, and equity security holders. These classes will vote on the acceptance or rejection of the proposed plan(s).
Before confirmation of a plan of reorganization can be granted, the court must be satisfied that the plan is in compliance with all the requirements for confirmation stated in the Bankruptcy Code. In order to confirm the plan, the court must find, among other things, that: (1) the plan is feasible; (2) it is proposed in good faith; and (3) the plan is in compliance with the Bankruptcy Code. In order to satisfy the feasibility requirement, the court must find that confirmation of the plan is not likely to be followed by liquidation or the need for further financial reorganization.
A Chapter 11 bankruptcy case is a complex legal proceeding requiring the leadership of a skilled and experienced bankruptcy attorney. An experienced bankruptcy attorney can guide you through the Chapter 11 process, and help you reach the best possible financial outcome.
There are some strange myths concerning bankruptcy. Many of these myths are told by well-meaning, but uninformed financial “experts.” Today’s post will look at six common myths.
Taxes cannot be discharged in bankruptcy
This myth is based in some truth. Tax debt is especially hard to discharge, and in some cases the debtor may not discharge tax debt. The truth is that discharging tax debt often depends on how long you have had the tax debt and what has happened in the meantime. It is important to speak with an experienced bankruptcy attorney about your circumstances and get competent legal advice.
You lose everything in a Chapter 7 bankruptcy
Everything? Really? The truth is that only four percent of all Chapter 7 cases are asset cases. In the remaining 96% the debtor loses nothing. Additionally, secured property like a car or home may be reaffirmed and the debtor retains the property and continues to pay the debt.
You can lose your job if you file bankruptcy
The federal law prohibits a government or private employer from terminating or discriminating against an employee who files bankruptcy. It is illegal for your employer to fire you because you filed bankruptcy.
You can’t get credit after a bankruptcy
A bankruptcy discharges unsecured debt and reorganizes your finances. Bankruptcy can make it easier for you to pay your bills. Many debtors are able to purchase cars and obtain credit within months after the bankruptcy discharge. Many others are able to buy a home two years after the discharge.
You can only file bankruptcy once
While the Bankruptcy Code attempts to prevent multiple and abusive filings, bankruptcy is always available to those who need it. There are time restrictions that may prevent a second discharge, for instance, an individual debtor who received a chapter 7 bankruptcy discharge to file another Chapter 7 after eight years. However, that debtor is eligible for a Chapter 13 after four years.
If you have a job you can’t file bankruptcy
The truth is that Chapter 13 bankruptcy is called a “wage earner’s” bankruptcy and the debtor must have an income stream to qualify. Many families with multiple incomes are eligible to file bankruptcy.
Don’t be misled by bankruptcy myths. Get the facts from an experienced bankruptcy attorney and ensure the law is working for you.
When a small business encounters tough times, it is not uncommon for the business owner to do what is necessary to keep the business alive. The obligation to keep the business going for family and employees is strong, and can often result in the business owner making decisions that create personal financial hardship.
Small business owners are required to withhold taxes from their employees' paychecks and pay the Internal Revenue Service (IRS). Employment taxes consist of two parts: (1) the employer's portion, and (2) the employee's portion. The employee's portion is withheld from the employee's wages by the employer, and consists of a 6.2% Social Security tax and a 1.45% Medicare tax. The employee's portion is held in trust by the employer until it is remitted to the IRS. The employer portion of the tax is paid directly to the IRS. This obligation is comprised of a matching contribution of 6.2% as Social Security tax and 1.45% as Medicare tax.
When an employer cannot pay the IRS, things can go south very quickly. The IRS can close a business for failure to pay employee taxes, and can attempt to collect personally from each owner or manager responsible for withholding and paying the tax (known as a “responsible person”). The IRS can collect 100% of the debt from each of the responsible persons until the debt is paid. Usually this results in owners and officers pointing out each other’s personal assets in a “get him not me” effort to avoid payment. This can be very nasty business.
The federal bankruptcy laws can help manage this impossible situation. While in some cases an individual can file bankruptcy and discharge the employer's portion of the tax debt, the employee's portion is not dischargeable. However, bankruptcy allows the debtor to propose a plan to repay non-dischargeable payroll taxes, often without stopping business operations.
If you are a small business owner with an employer payroll tax problem, consult with an experienced bankruptcy attorney and discuss your options. The federal bankruptcy laws may be able to provide the time and opportunity to repay your tax debt and continue your business.
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The Bankruptcy Code authorizes six different types of bankruptcies, but only four can be used by individuals. Each type of individual bankruptcy case is known by the chapter that defines it in the Bankruptcy Code: Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
A Chapter 7 case is the most common type of individual bankruptcy case. Chapter 7 is available to individuals, to married couples, and to a spouse who files separately. Chapter 7 is an erase-your-debts-start-fresh bankruptcy case. It is formally known as a "liquidation" proceeding, because (in theory) everything the debtor owns is taken and sold to pay creditors. However, it is not very practical to take everything a person owns, and many state and federal laws protect the debtor's property to the extent that only about one case in twenty pays anything to creditors in a Chapter 7. An average Chapter 7 case will take four to six months to complete.
A Chapter 11 case is called a "reorganization" proceeding, and is commonly used by corporations. Individuals file Chapter 11 because their debts exceed the limits for Chapter 13 bankruptcy. The bankruptcy trustee cannot take property from a Chapter 11 debtor. The debtor proposes a plan to repay debts, creditors vote whether to accept the plan, and ultimately the bankruptcy court orders a reorganization plan which binds all parties to the terms of the plan.
A Chapter 12 bankruptcy case is only available to family farmers who wish to reorganize their finances. Many provisions in Chapter 12 are similar to a Chapter 13.
In a Chapter 13 case the debtor pays what he can afford each month under a court-ordered repayment plan. Creditors are grouped together in debt priorities and paid according to the availability of monthly income. Creditors are paid between zero and 100% over three to five years. Chapter 13 is only available for individuals who have a regular income (Chapter 13 is also called a "Wage Earner's Plan"), unsecured debt of less than $336,900, and secured debt of less than $1,010,650. The bankruptcy trustee cannot take property from the Chapter 13 debtor. Chapter 13 provides many advantages to Chapter 7, including the opportunity to reduce monthly vehicle payments and catch-up a delinquent mortgage.
The Bankruptcy Code offers four powerful types of bankruptcy cases to individuals. If you are struggling with debt, speak to an experienced bankruptcy attorney and discover how the Bankruptcy Code can help you reorganize or eliminate your debt headache.
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When a large corporate bankruptcy hits the news chances are the company has filed for Chapter 11 bankruptcy protection. The title of Chapter 11 of the Bankruptcy Code is “Reorganization” and while companies like General Motors or Washington Mutual make headlines, individuals are also eligible to file under Chapter 11.
In some cases, Chapter 11 may be the only option for an individual to file bankruptcy. Eligibility for Chapter 7 is dictated by a “means test” that determines the debtor’s ability to repay debts. Those who are able to repay their creditors may consider Chapter 13, but debt limits may disqualify the debtor from Chapter 13. The debt limits for Chapter 13 are currently $360,475 for unsecured debt and $1,081,400 for secured debt.
An individual debtor who files for Chapter 11 bankruptcy protection will follow many of the same (or similar) procedures that apply to Chapter 13 cases. The debtor must file a petition and schedules of assets, liabilities, income and expenses; a plan to pay creditors; and attend a meeting with a bankruptcy trustee. The debtor is required to commit all disposable income to repaying debts for five years. Disposable income in Chapter 11 is determined differently than in a Chapter 13 case. The bankruptcy court compares the Chapter 11 debtor’s monthly income against the reasonable monthly expenses. The result may be different than the disposable income amount determined in a Chapter 13 case.
Creditors are classified as secured creditors, unsecured creditors entitled to priority, and general unsecured creditors. The debtor’s plan is submitted to creditors for approval and the creditors are entitled to vote to accept or reject the plan. If the creditors reject the proposed treatment by the plan, the bankruptcy judge can still approve the plan, provided that creditors receive as much during the plan as they would receive if the debtor’s assets were liquidated. Ordinarily a Chapter 11 debtor will receive a discharge after completing all plan payments.
A Chapter 11 bankruptcy case is a complex legal proceeding requiring the leadership of a skilled and experienced bankruptcy attorney. If you are considering a bankruptcy filing, consult with an experienced attorney and discover your legal options.
Pop quiz: What do Walt Disney, Mark Twain and Larry King have in common?
- They each filed a personal bankruptcy and went on to have extraordinary success in life.
Bankruptcy is not a professional or financial death sentence. Just ask Donald Trump who has filed multiple Chapter 11 reorganization bankruptcies for his casinos. Bankruptcy is a financial tool that uses the federal law to protect the honest, but unfortunate debtor. Bankruptcy allows the debtor the opportunity to restructure finances and formulate a plan to repay or discharge debt. Bankruptcy provides the debtor a fresh start to a new financial future – one free of the pressures from debt collectors. Free Consultation
Here’s another question: What honor did Kim Basinger and Burt Reynolds receive after filing personal bankruptcy?
- Each was nominated for an Academy Award in 1997. Basinger won an Oscar for best supporting actress for L.A. Confidential, and Reynolds was nominated for best supporting actor for Boogie Nights.
Bankruptcy can help you and your family build a more solid financial foundation. Henry Ford created another automobile company after his first company filed bankruptcy. It’s safe to say that Ford Motor Company would not exist today without the help of the federal bankruptcy laws. The same can be said for General Motors, which filed for Chapter 11 bankruptcy in 2009. Free Consultation
How can bankruptcy help you? The bankruptcy laws can stop a foreclosure sale, a pending lawsuit, and creditor harassment. Bankruptcy can protect your family assets and retirement accounts from creditors. Bankruptcy can eliminate debt or give you time to repay loans including delinquent car and home payments. The federal bankruptcy laws helped over a million people get relief during 2009, including celebrities Stephen Baldwin, Sinbad, and Bernie Kosar. Free Consultation
As Abraham Lincoln (filed bankruptcy in 1833) once said, “The best thing about the future is that it comes only one day at a time.” If you are experiencing overwhelming financial difficulty, take the first step to a better future by speaking with an experienced bankruptcy attorney today.
When President Barack Obama was campaigning for the presidency he promised reforms to the process of bankruptcy. For example, he called for a change in the bankruptcy code to allow modification of the terms of loans on the debtor’s primary residence. This means that hopefully one day soon the bankruptcy court will be able to adjust your home loan to a fair and reasonable payment. But while all of this is being played out, many people are still losing their homes.
One of the key factors in saving your home is being able to stay in your home as long as possible so that you can re-negotiate your mortgage with your lender. If you live in Austin, Texas, one of the best ways to get some control over your home loan (and the rest of your finances) is to file for bankruptcy. When you file for bankruptcy, your home cannot be foreclosed on or sold. This can definitely help you get your financial situation together while the government is trying to get theirs!
If you are in danger of losing your home, filing for bankruptcy can be a very powerful tool as it can give you the time and resources to renegotiate your mortgage with your lender while saving your home. For a free bankruptcy consultation contact bankruptcy law firm, Fears | Nachawati via toll free at 1- (866) 705-7584 or via e-mail at email@example.com.
NEW YORK, Feb 5 (Reuters) - U.S. regional retailer Fortunoff filed for Chapter 11 bankruptcy protection on Thursday and said it will try to sell the business, but if it cannot it will close its doors.
The company, which sells jewelry, dinnerware and furniture in New York, New Jersey, Pennsylvania and Connecticut, began suffering a "severe liquidity crisis" in January as it was trying to sell the company, according to court documents.
Dismal sales over the 2008 holiday season, weak consumer spending on high-end furniture and jewelry, the costs of expanding its jewelry line in Lord & Taylor stores and reduced borrowing capacity all hurt operations, it said.
The prolonged economic recession has taken a major toll on a broad range of U.S. retailers as consumers scale back spending.
"Most of us thought that we would see more retailers filing by now," said Jerry Mozian, national segment leader for restructuring at turnaround firm Tatum. "January is one of the typical months that retailers file and then you put on top of that the backdrop of a very terrible economy."
A possible buyer may be able to pick up Fortunoff at an attractive price, but that is unlikely because it is unclear how long the recession will last, Mozian said. "I would not be surprised if it just turns out to be a liquidation."
Fortunoff, which began as a neighborhood venture in Brooklyn in 1922, was bought out of bankruptcy by private equity firm NRDC Equity Partners for $110 million, including $30 million in debt. NRDC said at the time that the company was worth $439 million and that it planned to double its size over five years, in part through expansion in the Lord & Taylor stores the private equity firm also owns.
It began talking to possible buyers, investors and partners at the end of 2008, including private equity firms and companies called liquidators that manage the closing of operations, it said.
It also began talks with its lenders and financial adviser Zolfo Cooper on the details of an auction-type sale but then decided to file for Chapter 11 and continue that process through the court.
In the filing, the company listed both assets and liabilities within a range of $100 million to $500 million. Fortunoff said it has 20 stores open, four of which carry its full line of merchandise. It has closed its New York City jewelry store.
It said it had net operating losses of $42 million on revenue of $260 million during the nine months ending Nov. 30.
If you are feeling the crunch of unemployment and do not seem to have enough money to pay your bills bankruptcy may be an option for you. For a free bankruptcy consultation contact Fears | Nachawati Law Firm, Phone (866) 705-7584.
If you are feeling the crunch of unemployment and do not seem to have enough money to pay your bills bankruptcy may be an option for you. For a free bankruptcy consultation contact Fears | Nachawati Law Firm, Phone (866) 705-7584.
Fears | Nachawati Law Firm has offices located throughout Texas in: Dallas / Fort Worth / Houston / San Antonio / and Austin.
Today, WallStreet was devastated following reports that Lehman Brothers Holdings Inc. filed for Chapter 11 bankruptcy early Monday morning and said it will slowly wind down its operations after being in business for 158 years. At $639 billion, Lehman's is the largest bankruptcy filing in U.S. history--easily surpassing the Enron and WorldCom collapses combined. Lehman filed for Chapter 11 bankruptcy protection with the U.S. Bankruptcy Court of the Southern District of New York. The company's broker-dealer subsidiary and other parts of Lehman were not in the bankruptcy filing. Shares of Lehman were down 90% to around 40 cents a share. According to the details of the bankruptcy filing, Lehman held consolidated assets totaling $639 billion and total liabilities of $613 billion. The largest creditor to Lehman Brothers is Citigroup (C: 15.34, -2.62, -14.58%), which has $139 billion in bond debt, followed by The Bank of New York Mellon (BK: 38.35, -1.60, -4.00%), which had a combined $17 billion in bond debts with Lehman. In other liabilities, Japanese bank AOZORA loaned Lehman $463 million, while Lehman also has an outstanding bank loan with Mizuho Corporate Bank worth $289 million. For questions regarding bankruptcy, call the Fears | Nachawati Law Firm, Phone (214) 890-0711, 4925 Greenville Avenue, Suite 715, Dallas, Texas 75206.