Top Ten Things Your Bankruptcy Attorney Hates To Hear

10.  “I know I told you that I only expected a small tax refund, but my accountant says I’m getting back a large refund! Isn’t that great?” No, its not. Your attorney can protect your property, but unexpected large cash sums are difficult to protect during a bankruptcy. Generally it is advisable to receive (and spend) your income tax refund prior to filing your bankruptcy case. 

9.  “Before I came to see you I paid a debt counselor a lot of money.”  Individuals can lose thousands in fraudulent debt counseling. While there are legitimate programs that can obtain positive results, many are just plain scams and end up making matters much worse for you and your family.

8.  “I cashed out my retirement account and paid off my credit cards.” Retirement accounts are generally protectable assets in a bankruptcy and beyond the reach of most creditors, while credit card debt is typically the easiest type to discharge.

7.  “I paid off my car with my tax refund.” Having too much equity in a vehicle will result in payments to the bankruptcy trustee. In other words you first paid for your car, and then you must pay the trustee for the non-exempt equity in the car. That means you pay TWICE for the same car! 

6.  “I repaid a loan to a family member before coming to see you.” Payments to a family member prior to filing bankruptcy is a big mistake. He or she may be forced to turn over the payment to pay your creditors. Of course you want to pay your family member, and you can certainly do so, but let a qualified professional help you do it the right way. 

5.  “I transferred my house/car/etc. to my mother to protect it.” Another regrettable mistake. By trying to protect an asset without your attorney’s help you could actually lose any protection it might otherwise be entitled to.

4. “I took out a payday loan after our consultation to pay for the bankruptcy.” Incurring a debt with no intention to repay is not only a non-dischargeable debt in bankruptcy, it could land you in criminal trouble! 

3.    “I went on a shopping spree with my credit cards before I came to see you.” This seldom happens because most people have better common sense. As a general rule the shopper will be paying that money back to the credit card company.

2.  “I just got my chapter 7 discharge and I found out my grandmother left me a large inheritance.” This news is sad in many ways: not only is the loss of a loved one a tragic event, but the bankruptcy court may order you to turn over the inheritance.

1.  “I didn’t tell my attorney this, but. . .” The worst news of all! Always answer your attorney’s questions honestly and completely. Hidden assets or transfers can prevent you from receiving a bankruptcy discharge and may result in federal criminal charges.

One of the most common and important questions asked by a client during the initial bankruptcy consultation is, “Can I keep my house?” 

The happy answer is, “Yes.” However, every client’s case is different and requires a skilled and experience attorney to evaluate your situation and help you choose the appropriate debt relief process.

The first question is whether there is equity in your home. Every state allows the debtor to exempt home equity from creditors during bankruptcy. Home equity is simply the difference between the amount that is owed and what the property is worth. If you have more equity in your home than can be exempted, you may need to consider either a Chapter 13 repayment plan or a non-bankruptcy option for debt repayment. In a Chapter 13 the debtor pays the amount equal to the non-exempt home equity to unsecured creditors (like credit cards and medical bills) over a three to five year period. If Chapter 13 is not a feasible option, the debtor may want to consider borrowing against the home equity to pay unsecured creditors.

The second issue is whether you can afford to keep the home by making the monthly payments. A home mortgage is a secured debt which must be paid or you must surrender the property back to the mortgage holder. When circumstances have changed and you can no loner afford to keep your home, the bankruptcy laws can help you to leave on your terms without any lingering debt.

In some cases a third issue is present: the debt is more than the value of the house. In those cases bankruptcy may help either through lien stripping an entirely unsecured second mortgage, or by encouraging the mortgage holder to negotiate for a modification and reduction in principle. Typically the mortgage holder does not want your property, and is usually willing to discuss payment options once a bankruptcy case is filed.

Finally, some debtors are facing foreclosure from an uncooperative mortgage holder. A Chapter 13 bankruptcy can be used to force the mortgage holder to accept payments that cure mortgage arrears over three to five years.

There are many options available for saving your home. The attorneys at Haines and krieger can discuss the pros and cons of each and help you decide which option is best for your family. Use the federal law to your advantage and discover how the bankruptcy laws can help you keep your home.  Contact us for a free consultation today.

Around the country courts are questioning the standing of MERS to assert legal rights in foreclosure or bankruptcy proceedings. Many courts are finding that Mortgage Electronic Registration System, or “MERS,” is not a legal mortgage holder for lenders, investors and their loan servicers, and are invalidating bankruptcy claims or foreclosure processes.

On its website MERS describes itself:

MERS is an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans.

Since the mortgage bubble burst, MERS has come under increasing attack in state and federal courts. Some courts (most notably in Kansas, Florida, and New York) have found that MERS does not have standing to assert mortgage rights because it is a mere nominee, and not a mortgage assignee (an assignment of a mortgage without the debt transfers nothing. 55 Am. Jur. 2d, Mortgages § 1002). Additionally, MERS routinely skips legally required processes when a mortgage is transferred.

MERS is not the beneficiary of a Deed of Trust, and has no ownership or possession of a promissory note. Therefore, many courts are finding noncompliance with state laws. Recently one bankruptcy court in the State of New York invalidated a bankruptcy claim by MERS when the company could not show how it had standing in the case.

Many bankruptcy attorneys are demanding proof of assignment and documents establishing a paper trail for their client’s mortgage. In many cases MERS is unable to provide this information; much like collection companies often cannot prove a debt. Original documents, recorded deeds, payment history, and executed assignments seem to be inconsequential matters to the MERS powerhouse. Fortunately, MERS is now under attack and accused of not following legal processes. It will be very interesting to see how the state and federal appellate courts address the MERS debacle.

If you are dealing with an uncooperative mortgage company and need assistance saving your home, speak with an experienced bankruptcy attorney and discuss your options. There are many legal options available. Let Haines and Krieger help you determine the best choice for your family.  Contact us today for a free consultation.

In some cases a debtor has no money, no job, and no assets. Lawyers commonly refer to this situation as being “judgment proof.” Any attempts to collect on a debt will be futile. As the saying goes, “You can’t get blood out of a turnip.”

While an entirely insolvent and judgment proof individual may avoid creditor collection, many people without money, jobs, or assets receive periodic federal benefits like Social Security. The federal law prohibits most creditors from garnishing federal benefits making the individual “legally” judgment proof.

Debt collectors will occasionally circumvent the federal prohibition by seizing the debtor’s bank account through a state court order. After a judge orders the seizure of a bank account to satisfy a judgment it is the debtor’s obligation to prove that the funds are federally protected. This generally requires hiring an attorney and holding a hearing in the state court. For more information, visit the Federal Trade Commission website for a free publication about bank seizure of federal benefits.

To close this legal loophole, the Obama administration has recently proposed rules to protect federal benefits from creditor garnishment. These proposed rules require banks to determine whether federal benefits have been directly deposited into a customer’s account within the past 60 days, and to determine the amount, before collecting funds pursuant to a court order. More than 80 percent of Social Security recipients receive their monthly benefits via direct deposit. 

Many federal benefits are protected during bankruptcy.  For a legally judgment proof debtor, a bankruptcy will end creditor harassment, prevent a bank account seizure, and discharge the debt for good. A bankruptcy can provide peace of mind.

If you receive federal benefits and have outstanding debts, consult with an experienced bankruptcy attorney. Haines and Krieger can advise you on the best course of action to resolve the debt and protect your federal benefits.  Contact us today for a free consultation.

A bank account debt can offer many challenges to an individual in bankruptcy. Usually a bank account debt originates from fees associated with an overdrawn account. These fees can quickly accumulate and result in a debt of hundreds of dollars. A bankruptcy will generally discharge this debt, assuming the debt was not incurred by fraud or criminal activity. However, the issue is often should you discharge your bank account debt rather than can it be discharged.

In deciding whether to discharge a bank account debt, you must determine if repayment is feasible. In cases where the debt is small, the account is still open, and you have the resources to pay the debt, repaying the debt is generally the best option. Remember to consult with your attorney before repaying any debt prior to filing bankruptcy. In many cases it is advantageous to wait until after the case is filed before repaying a debt.

If paying the bank account debt is not feasible, you may face several negative consequences. First, the bank will close your bank account. Second, over eighty percent of all banks use Chexsystems, a consumer reporting agency that provides information regarding accounts at banking institutions. Negative information may remain on your Chexsystems file for five years. To view your Chexsystems report for free, visit: https://www.consumerdebit.com/consumerinfo/us/en/chexsystems/report/index.htm

While a bankruptcy will discharge a bank account debt, factual information concerning the debt will remain on your Chexsystems report after the bankruptcy. This information is available to financial institutions and may prevent you from opening another bank account. 

Fortunately, there are programs available to an individual with a derogatory Chexsystems report offered by banks, universities, and not for profit groups. One of the most popular is the “Get Checking” program offered by several groups around the country. The University of Missouri Extension offers a typical “Get Checking” program, which requires a debtor to pay all outstanding bank fees on the prior bank account and take a six-hour checking education class. The debtor then receives a certificate of completion which can be used to open a new account at a participating financial institution. If ChexSystems reports suspicion of fraud on a prior account, a certificate will not be issued and institutions are not required to open an account.

If you have an overdrawn bank account and are considering bankruptcy, discuss your financial situation with an experienced bankruptcy attorney. There are many options to deal with bank account debt, but the situation can only grow worse from procrastination. Contact the attorneys at Haines and Krieger today for a free consultation.

Most of the debt collection industry is based on bully tactics. Each stage of the collection process is designed to intimidate and harass until the individual simply surrenders and pays the debt. Collectors send embarrassing letters in pink envelopes marked “URGENT!” or “IMMEDIATE ATTENTION REQUIRED!” They make scores of phone calls at home and work, until you are afraid to pick up your own phone.

Even when there is a valid defense, a credit card company will sometimes seek to bury the defendant with the enormity of its size. Take for example the recent Palm Beach County, Florida, case of Capital One Bank USA, NA v Pincus. Capital One sued Steven Pincus for a credit card debt of $803.95. Pincus offered to settle the debt for a few hundred dollars, and Capital One refused. Pincus then hired an attorney to defend. Capital One responded with a barrage of court filings that ran up Pincus’s legal expense tab to over $100,000.

Pincus moved for summary judgment and dismissal claiming the lawsuit was barred by the statute of limitations. Pincus asserted that the Capital One cardholder agreement states that Virginia law shall control, and, since the contract was not signed by either party, whatever agreement existed between Pincus and Capital One must be an oral contract. Pincus further argued that since the statute of limitations for oral contracts in Virginia is three years and since Capital One’s lawsuit was filed three and a half years after the date of the last transaction, Capital One’s case is time barred. Capital One defended by arguing that Florida law and its five year statute of limitations should control because Florida was the state where the contract was made.

The Palm Beach County Court found that Virginia law controlled and the credit card agreement was an oral contract based on Virginia law. The opinion cited several similar Florida cases finding the choice of law provision in a cardholder agreement applies to a statute of limitations defense. In granting Pincus’s summary judgment motion and dismissing the case, the Florida court opinion said the credit card company is “‘master of its complaint’ and cannot disavow the choice of law provision contained in the document it attaches to its Complaint so it can take advantage of the longer statute of limitations.”

The Pincus case did not end there. Pincus and his attorney filed a Fair Debt Collection Practices Act lawsuit in federal court against Capital One’s attorneys to recover his attorney fees (Capital One, as an original creditor, is exempt from the FDCPA, but collection attorneys are not). The case was settled after contentious litigation for $120,000.

The moral of the story is “Don’t be bullied!” If you are sued for a credit card debt, seek legal advice from an experienced debt defense attorney. Many bankruptcy attorneys are experts in debt defense and can explain your legal options. Let Haines and Krieger help you with your debt problem by contacting us for a free consultation.

A bankruptcy discharge is a permanent court injunction prohibiting creditors from enforcing certain obligations against the debtor. While the bankruptcy discharge does not actually “erase” a debt, it prohibits any collection against the debtor personally. In plain terms, the debt is no longer legally enforceable against the debtor and the creditor can no longer engage in any type of collection activity such as; letters, phone calls, threats of criminal proceedings or other adverse actions brought about with the purpose of debt repayment.

The purpose of the discharge injunction is to provide the debtor with a fresh financial start, free of the pressures of former debt. Violation of the bankruptcy discharge is a serious matter. A willful violation of the discharge injunction constitutes contempt of court. The violator (often called the “contemnor”) may be penalized for this conduct, including a hefty fine and payment of attorney fees. 

Recently United States Bankruptcy Court Judge Enrique S. Lamoutte discussed the liability of a creditor that sold a discharged debt and the subsequent purchaser attempted collection action. This is practice is often referred to as “zombie” debt collection. The debt is legally “dead,” and the collector attempts to “bring it back to life” through direct collection efforts.

In the case of Laboy v. FirstBank Puerto Rico, Judge Lomoutte reminds creditors that they "are obligated to maintain procedures to ensure that they do not violate [the discharge injunction], and may be held liable for damages and attorney’s fees if they do not.” He concluded that FirstBank had knowledge of the bankruptcy filing and discharge and that its actions in selling the debt to a debt collector some 15 years after the bankruptcy discharge violated the discharge injunction. 

If you receive contact from a debt collector concerning a discharged debt, notify your bankruptcy attorney immediately. This may be an innocent error, or it may be a zombie debt collector on the prowl. Contact Haines and Krieger today and chase those zombies debts back to the grave!

The bankruptcy means test is a calculation designed to identify debtors who can afford to pay some of their unsecured debts (for instance, credit card debt) and encourage repayment of these debts through a Chapter 13 repayment plan.  The first part of the means test determines whether your current monthly income is less than your state’s median income for a household of your size. 

If your family’s income is less than your state’s median income for a family of your size, you PASS the means test. There is no other testing and you can proceed with a Chapter 7 bankruptcy. The current state median income figures can be found at the U.S. Trustee’s website: http://www.usdoj.gov/ust/eo/bapcpa/meanstesting.htm.

If your family’s income is more than your state’s median income, you must complete the means test worksheet to calculate if you have (or should have) money to repay unsecured creditors. In the end if you are able to pay a significant portion of your unsecured debt, you will FAIL the means test and cannot file a Chapter 7 bankruptcy.

The truth is that most debtors pass the means test without any difficulty based upon their income. Others pass the means test after a skilled bankruptcy attorney has examined your income sources and made certain elections in completing the calculation. That is not to say that the test can be manipulated! On the contrary, the skilled bankruptcy attorney will work within the bankruptcy statutes, rules, case law, and local interpretations (which can vary a great deal among jurisdictions!) to obtain the best result from the means test. 

If you would like to “test-drive” the means test, Nolo Publishing has a free on-line calculator. The Nolo calculator uses the language and formatting of Official Form B 22A, the means test form required in Chapter 7 bankruptcy cases. Be warned: passing the means test can be complex and is more than simply crunching numbers!

If you have questions or concerns about passing the means test, seek out competent legal advice. The experienced bankruptcy attorneys at Haines and Krieger can guide you through the means test to reach the best possible result for your circumstances.  Contact us for a Free Consultation.

Here’s the latest cartoon from Bankruptcy Bill, titled "Dutch Date."  It’s what happens when bankruptcy lawyers try to go on dates.

(Note:  Bankruptcy Bill cartoon re-posted by Haines & Krieger with expression permission from the creators of Bankruptcy Man.)

In an episode of television’s “The Office,” the main character Michael Scott makes a misguided attempt to resolve his debt problems by publically stating, “I. . . declare. . . bankruptcy!” Video clips of this funny episode can be found on YouTube.

Back in the real world, declaring bankruptcy is not nearly as public, or as simple, as shouting out “I declare bankruptcy!” The bankruptcy process begins with an accounting of your income, expenses, assets, and debts. The debtor is required to use approved forms for this financial accounting. A copy of these forms can be found on the U.S. Courts website, and a general description of each form that must be filed in all consumer debtor Chapter 7 and 13 cases is provided below.

The Voluntary Petition is three pages long and is the formal declaration of bankruptcy. Filing the Voluntary Petition begins the bankruptcy process and imposes the automatic stay which will generally stop action by creditors to collect debts.

Schedule A is a list of real property.

Schedule B is a list of personal property.

Schedule C is a list of property the debtor claims as exempt.

Schedule D is a list of creditors holding secured claims.

Schedule E is a list of creditors holding unsecured priority claims.

Schedule F is a list of creditors holding unsecured nonpriority claims.

Schedule G is a list of the debtor’s executory contracts and unexpired leases.

Schedule H is a list of codebtors in the bankruptcy.

Schedule I lists the debtor’s monthly income.

Schedule J lists the debtor’s monthly expenses.

The debtor must sign a Declaration that the above schedules are accurate to the best of his or her knowledge, information, and belief.

The debtor must file a Statement of Financial Affairs. This form provides a summary of the debtor’s financial history, transactions, and operations over certain time periods before the case is filed. There are 18 separate items on this form:
 

1. Income from Employment or Operation of Business
2. Income Other than from Employment or Operation of Business
3. Payments to Creditors
4. Suits, Administrative Proceedings, Executions, Garnishments, and Attachments
5. Repossessions, Foreclosures, and Returns
6. Assignments and Receiverships
7. Gifts
8. Losses
9. Payments Related to Debt Counseling or Bankruptcy
10.   Other Transfers
11.   Closed Financial Accounts
12.   Safe Deposit Boxes
13.   Setoffs
14.   Property Held for Another Person
15.   Prior Address of Debtor
16.   Spouses and Former Spouses
17.   Environmental Information
18.   Nature, Location, and Name of Business

Finally, the debtor must file either a Statement of Current Monthly Income and Means Test Calculation in a Chapter 7 case, or a Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income in a Chapter 13 case.

The success of your bankruptcy largely depends on the accuracy of these forms and the skill that your bankruptcy attorney applies in crafting these financial reports. Don’t leave your financial future to chance! Let Haines and Krieger help you with your financial problems and advise you on the best course of action.  Contact us today for a free consult
ation.