It’s Always Something

I hate this.  I have a lease for my office that covers the next two years, but the landlord just announced to me and the rest of the tenants that the place will be torn down in the next few months to make way for some sort of new development.

I love this place.  Maybe I’ll have to chain myself to my desk or something.

It’s like Rosanne Rosannadanna used to say, it’s always something.  https://www.youtube.com/watch?v=Z7gLJr03vNQ

Sales Tax on Legal Services?

Now my bankruptcy is going to be taxed?

Now my bankruptcy is going to be taxed?

Minnesota Governor Mark Dayton just announced that he wants to levy a sales tax on legal services.  I think I heard the proposed rate is 5.5%.  Funny, I always thought that the filing fees that we already have to pay were a sort of tax.  Not long ago , under the previous governor, all the filing fees in Minnesota were increased dramatically because of state budget problems.

I wonder if besides the attorney fee he also wants to tax the filing fees.  Since all I do is bankruptcy work, which is always filed in federal court, the filing fees I collect from my clients are all for the federal court.  Query:  Is it constitutional for a state to put a sales tax on a federal fee?

If you are from a state where attorney fees are already subject to a sales tax, I would be interested to hear the details of how it is done in your state and what the clients think about it.  My clients are already about as broke as they can get.   To tell you the truth, this feels very uncaring to me.  I understand that one state legislator is already talking about how this tax is going to help people.

Here’s a link to an article in today’s Star Tribune on the subject.

What NOT to do while going Over the Fiscal Cliff

 

Cliff near Pike's Peak

Watch out for the temptation to under withhold .

Most people I talk to have not heard of the “fiscal cliff.”  Those who have believe it will not affect them.  This includes a husband and wife I met with yesterday.  But when I ran the numbers for them, based on a November 1st article in Forbes, I found that between the two of them their paycheck withholding should go up by about $438 per month.  That is, the net take home pay for the two of them together will be $438 less per month starting January 2, 2012.  That is just a few days from now.  When I tried to warn them and suggested that they should be thinking about how they would deal with this, they blew me off.  They are absolutely in denial about the prospect that this could ever happen.  If we go over the fiscal cliff as scheduled,  this should come as a heck of a shock.

My calculations assume, of course, that no steps will be taken to reduce the impact of the fiscal cliff.

From where I sit it looks like a majority of people are living right on the edge.  For them a drop in take home pay like this will mean they no longer have the funds to pay their credit card debt.  Often when people are in such a situation, they go to their employer and increase the number of exemptions they are claiming for withholding purposes on their paychecks.  They claim more withholding exemptions than they should.  Some increase the number of exemptions to the point that no taxes are being withheld at all, and for them all that is withheld is social security and medicare.  This increases their take home pay, but it is at the cost of not having enough taken out to cover state and federal tax liability.  The income which should have been withheld for taxes is then used to make payments on credit card debt.  Often this is still not enough to get that credit card debt under control.

When it comes time to file their tax return, they find that they owe a tax debt which is too large for them to pay.   Now on top of the credit card debt there is a substantial tax debt.  Eventually they wind up in my office.  I can help get rid of the credit card debt.  But as long as the tax debt is less than three years old, there’s nothing I can do to help with the tax debt.

The worst creditors you can have are the IRS and the Minnesota Department of Revenue.  In almost all circumstances, it is better to stop paying other debts before you stop or reduce the withholding of taxes from your pay check.  Don’t fall for the temptation to unreasonably increase the exemptions you claim for withholding from your paycheck.  That will work for a short time, and then you’ll really wish you hadn’t done that.

This post is for general information purposes only and should not be considered legal advice.  You should consult the attorney of your choice concerning the details of our case.  Reading or responding to this post does not create an attorney-client relationship.  I am a debt relief agency helping people to file for relief under the federal bankruptcy code.

 

A Heart Warming Holiday Thank You

The day before Thanksgiving I received an email from a client whose Chapter 13 we wrapped up in 2011.  He had thanked me profusely at the time back in 2011, but he was still remembering me this year and he wanted me to know it.  He thanked me again, saying he just couldn’t forget how helpful

Jellybean the Basset Hound

Jellybean today, happy and Healthy

I had been.  The reason he is still thanking me is that he credits me with having saved the life of one of his best friends, a Basset Hound named Jellybean.

While it is commonly said that bankruptcy is a lifesaver, it is rare to be able to point to a specific situation and say here’s where I saved a life.  The story in this case goes like this.  When a Chapter 13 debtor has bonuses on a regular basis, the trustee usually requires a provision in the Plan providing that all or part of each bonus be paid into the plan as an additional payment.  When I have a case  where there are such bonuses, the provision I usually put into the Chapter 13 Plan says that when a bonus is received, that has to be reported to the  trustee.  Then the trustee is to determine what portion of the bonus is to be paid into the plan.  This leaves a bit of wiggle room to argue about letting the debtor keep part of the  bonus should a special need arise.

So when this particular client reported to me that he had received an unusually large bonus, my first question was whether anything was going on for which he really needed to use part of the money.  He  said yes but he didn’t suppose there  was much that could be done about it.  It turned out that his Basset Hound, known as Jellybean, was very ill.   Jellybean had a form of cancer that resulted in tumors all over the inside of his mouth.  They could be removed surgically and the chances of recovery were very good, but the surgery was expensive – a couple thousand dollars.  Without the surgery Jellybean didn’t have long to live, and  my client was already resigned to seeing his good friend die.  With all available funds being paid into the Chapter 13 Plan, he definitely could not afford the surgery.  It was very sad because Jellybean was nowhere near the end of what would have been his normal life span.

Well, I said I couldn’t promise anything but let me see what I could do.  This bonus was huge, more than anything we had been expecting, and the funds needed for the surgery would be a relatively small portion.  I contacted a staff attorney at the trustee’s office and made my pitch.  I’ll never forget that conversation.  I went into it without a lot of confidence.  I was just thinking “well it never hurts to ask.”  Somewhat to my surprise the staff attorney remarked that he had a warm spot in his heart for dogs.  He noted that payments into this Plan were becoming much more than we had expected at the beginning.  If I recall correctly, the trustee’s office may also have grabbed a tax refund from my client.  There was now a good chance that 100% of the claims in the case would be paid.  I was instructed to never expect that anything like this would ever be granted again, but this time and THIS TIME ONLY they would let my client keep enough for the surgery. When the surgery was done, we were to provide the trustee’s office with a receipt from the veterinarian proving that was where the money had gone.

I love it when I have some good news for my client, because so very often I’m the guy with the bad news.  When I told my client about this he was delighted and very thankful.  He  scheduled the surgery right away, and Jellybean come through with flying colors.  Now this holiday season my former client is debt free and still has the company of Jellybean, the Basset Hound and his good friend.

I hope this story warms your heart as it does for me.  Merry Christmas, Happy Hanukkah, Happy New Year, and may all your holidays this year be joyous.

Good “Business Insider” Article on How Much Student Loan Debt a Person can Manage

When I sit down and go over debts with a client, I find that at least a third of my clients have massive student loan debts – way more than they could ever get paid based on their current income.  It is my job to explain that student loan debt cannot be discharged in bankruptcy, at least not unless one is seriously ill or disabled.  I used to do adversary petitions asking the court to declare student loans dischargeable, but I have given up on that.  Over the years the standards have tightened to the point that I view winning one of those as nearly impossible.

So it was with great interest that I read an article this morning in Business Insider about a future law student who just figured out that the kind of student loan debt required to complete law school would be “like walking into my own grave.”  The article includes a video which apparently comes from Yahoo.  The video makes reference to thousands of law school graduates unemployed and living in their mother’s basement.  I haven’t seen it so much with law school graduates, but I have done bankruptcy work for all sorts of other graduates who were unable to find work in their field.

If I am hearing and reading this correctly, the article says to not run up more student loan debt than a sum equal to one third or one half of the income you anticipate from your first job after graduation.  For many I would take that to mean that if massive student loan debt is required for a particular program, then that educational program is probably not worth it.

This is for general information purposes only and does not create an attorney-client relationship.  I am a debt relief agency helping people to file for relief under the federal bankruptcy code.

Preparation and Planning for Filing Bankruptcy

Preparation and Planning for Filing BankruptcyWhen preparing a case for filing, I typically advise my clients that they should continue doing what they usually do financially speaking. Any change from the status quo tends to look suspcicious. It’s not a good time to make radical financial changes when you know that every move you make might be scrutinized. Sometimes, however, there is a circumstance or situaiton which we can see is going to create a problem if a bankruptcy is filed. When one has a situation like that, the question is whether something should be done to change things; or would it be best just to leave it alone. The ways and means of changing such things in such a way that the situation actually is made better instead of worse is known in my world as “bankruptcy planning.”

Recent court decisions indicate that some modest planning prior to filing a bankruptcy is permitted. But if you go too far with it, you risk all sorts of problems. So where’s the line? Well, it’s much more of an art than a science. I like to think I know it when I see it, but laying down hard and fast rules that will apply in every case would be hard to do. Before making any planning moves at all, if you have bankruptcy in mind, please get yourself face to face with a competent lawyer. I really hate it when my first meeting with a potential client comes a week after that person made a big mistake. I can’t count the times that I have said “I wish you would have come to see me before you did that.” In this blog post the best I can do is make a few general suggestions, things that would usually be correct, but not necessarily always correct.

FIRST, WHATEVER ELSE YOU DO, QUIT USING CREDIT CARDS

The newer the debt is, the more likely it is that there could be a problem getting it discharged in bankruptcy. If you are contemplating bankruptcy, using a credit card can be considered – I hate to use this word – fraud. The creditor may make a claim, usually as part of an adversary proceeding in the bankruptcy court, that you knew or should have known that you were never going to be able to repay the debt. Worse yet, the creditor might claim that you flat out intended to never repay. Any use of one account that totals over $500 or so within the 90 days before filing can bring on an objection from a creditor; under the 2005 law this is a circumstance that is presumed to be objectionable. Large purchases or charges or balance transfers within six months or so prior to filing also tend to draw an objection. Purchases or charges that took place more than six months prior to filing are not quite so likely to be objected to, but each circumstance is different.

When I am getting a case ready to file, I try to screen for transactions that might result in this kind of objection. If it looks to me that an objection is likely, a delay in filing is usually the solution. If the case is filed and an objection is actually filed, I may have to refer my client to an attorney who specializes in defending that kind of case. The retainer agreement I use specifically states that defending adversary proceedings is not included in what I am hired to do. Sometimes I can settle such a claim without referring my client to somebody else. There are also situations where my advice might be that there is no use defending because the case is a sure loser. An example of a sure loser would be a claim for overpayment of unemployment benefits. If a person accepted such benefits while they had a job, there is probably no way to defend. If it’s the kind of claim that just isn’t going to go away, often I can help my client negotiate a payment plan.

Sometimes the best solution is to file a Chapter 13 instead of a Chapter 7. In a Chapter 13 the creditors are discouraged from bringing nondischargeability claims because even if they win, they can’t collect on their win until after the end of the five year payment plan. During the five years they can’t collect any more than their share of what is being paid under the Chapter 13 plan. Some Chapter 13 plans provide for very low payments. Chapter 13 might not be as hard to live with as one might imagine.

DON’T TRANSFER, GIVE AWAY OR TRY TO HIDE ANYTHING

The bankruptcy statute has what is called a fraudulent transfer provision in it which goes back two years. Besides that, the State of Minnesota has a fraudulent transfer statute that goes back six years. These statutes allow the bankruptcy trustee to reverse certain transfers. The transfer reversal is often called a “claw back.” The problem is that there is a temptation prior to bankruptcy to get rid of assets so that the bankruptcy trustee can’t take them. Whatever form the transfer takes, if it was transferred as a gift or sold for less than full value, this property can be taken from it’s new owner. The two year bankruptcy statute covers just about any transfer that was for less than full value. This can include a transfer, or it can also include taking your name off a jointly owned asset. After all, when you take your name off a joint asset, you transfer half to the other owner. The six year Minnesota state statue has a requirement that the transfer have been for the purpose of hindering or delaying creditors, which means that after the first two years it is harder to show that a transfer was fraudulent. The bankruptcy forms you will have to submit ask a lot of questions about what you have sold, transferred or given away in the past two years. Selling something for fair market value is OK, but be ready to document that it was in fact fair value. The forms will ask what the item was, who it was transferred to and what you got in exchange.

“I don’t know” is not an acceptable answer to questions about where your money or assets went. The bankruptcy statute requires that before you file you must keep records sufficient to determine your financial circumstances. One of the things I often tell people who are contemplating bankruptcy is that they should start keeping receipts for everything. Receipts are especially important if you are using cash. We need to be able to explain where all your money went over the past several months before you file your case; and in some instances we have to disclose things that happened years earlier. My personal preference is that my clients run all their finances through a checking account, so there is a good record of everything that happened. There’s no rule agains using cash for everything, but I am always afraid that it looks suspicious.

If you have an account for your child into which you have been depositing funds on a regular basis, stop doing that. If you were thinking of giving your boat or your Harley Davidson to your brother or selling it to him for one dollar, don’t do it. If you have been repaying a debt to a relative, stop making those payments. Repayments of debt to a relative within one year of filing can be clawed back. Repayments to a regular unsecured creditor within 90 days of filing can also be clawed back if the total repayment duing that time is $600 or more. You might love your doctor, dentist, orthodontiist, therapist or chiropractor, but trying to get them paid off before filing the bankruptcy can be a wasted effort.

If someone recently gave you something which you are thinking of giving back, don’t do it. There’s nothing I hate more than having a bankruptcy trustee be able to seize an asset from a relative or friend of my client, when it happens that it was an asset that my client could have claimed as exempt and kept without a problem.

BE CAREFUL WHEN SELLING ASSETS AND SPENDING THE MONEY

As I suggested above, please don’t read this and then assume you know what to do. Consult a competent lawyer before you take action.

It’s not unusual for someone to come in to my office who has an extra car that can’t be exempted in a bankruptcy case, or some other non-exempt asset such as a boat or motorcycle. It there is a loan against the item, the easy answer might be to surrender it back to the lender. If there is equity in the item, selling it might not be a bad idea. As I mentioned above, with any sale the buyer’s name and address, the item itself, the date and the price must all be listed on the bankruptcy petition. In the event that it was something you listed on Craigslist and sold to a person who came by and did not identify himself or herself, I have gotten by with listing the buyer as “Unidentified purchaser from Craigslist.” When selling an item, you must be able to swear that the price was the fair market value. Usually such values are fairly easy to document with a visit to Craigslist or Ebay. It helps if the buyer was somebody you didn’t know rather than a friend or relative.

Of course when you sell something, what you have then is cash. Cash on hand – that is money that is not in the bank – still has to be listed as an asset in the bankruptcy petition. In my experience having too much cash tends to just not be as big a problem as a having hard asset item like a motorcycle that can’t be claimed as exempt. If there is too much cash, there may be acceptable ways in which it can be spent.  One of my favorite bumper stickers says “MONEY TALKS, BUT MINE ONLY KNOWS HOW TO SAY GOODBYE.” Most of my clients are in such dire financial circumstances that their cash can be compared to spit in a hot frying pan. It just doesn’t last long. Typically they need dental work, or their children need dental work, but they have been putting it off. I’ve also had clients who were delaying needed surgery, because they were using what funds they had to try and keep up with credit card payments. Another needed expense that gets put off is car repairs. This can include needed new tires or needed brake work. I’ve had clients living without hot water because they couldn’t afford a new water heater. Others are in serious need of a new refrigerator or dishwasher. Please consult your lawyer first, but often times purchases of such things are considered entirely appropriate because they are necessities of life. Buying needed clothing, groceries and filling up the cars with gas is usually also considered to be entirely acceptable. Paying your lawyer of course is always a good idea.

CONCLUSION

As I said above, this is more of an art than a science. It is very hard to state hard and fast rules that will work every time. Something that might work fine in one case can cause a very serious problem in another. Each case different. Variables abound. The bankruptcy statute is a mine field of “gotchas.” Whatever you may be contemplating when it comes to planning a bankruptcy, don’t do it until after you thoroughly discuss it with your lawyer. And when it comes to choosing a lawyer, I suggest you find somebody who has been around for a while.

Disclaimer

This blog post is for general information purposes only and does not create an attorney-client relationship. It is not legal advice. Please consult the attorney of your choice concerning the details of your case. I am a debt relief agency helping people file for relief under the federal bankruptcy code.

Big Meeting Tonight

The state bar association bankruptcy section is meeting tonight. The topic will be lien stripping.

Judging just from the announcements concerning tonight’s meeting, a bit of controversy seems to be brewing. At first the topic was announced as how to lien strip or words to that effect. Then the topic was changed to something like “a discussion of the pros and cons of lien stripping.”

I believe that sooner or later the process of lien stripping will be commonplace in Minnesota. Right now the procedure still seems a bit unsettled. I’ll have more to say after tonight. Perhaps my opinion will change. I would probably be willing to try it if I had the right case.

Student loan horror stories

Two student loan horror stories:

Story No. 1. I’ve heard back from one of my former clients that student loans are now harder to get than they were before filing. In fact, that particular person seems to have been cut off entirely from student loans. It means for that client, who happens to have been employed as well as in school, that money will have to be set aside in advance before going back to school. So there is an unexpected delay in educational plans. It may be significant that this was a person who was relying on private student loans, not government student loans.

There’s what appears to be good article on the subject of bankruptcy and student loan eligibility at finaid.org. They say that bankruptcy should not effect eligibility for government student loans, but that it is common for there to be a problem with private student loans. This might explain why I haven’t been hearing from most of my clients or former clients about any such difficulties. I believe that most of my clients, if they do have an ongoing financial aid program at a college or school, are using government lenders not private lenders.

Story No. 2. Again, it’s a problem with a private lender. Client is no longer in school, but has a student loan and wants to keep paying. However, for several months now the client has not been able to find anybody who will accept the payment. There seems to be a musical lender shell game in progress. After the bankruptcy filing, the original lender seems to have transferred the loan to another institution. The new lender seems to have transferred it again, but the client can’t seem to find out where. I’ve made some calls about it, but it seems impossible to get a real person. When one does get a real person, they just say you’ll hear from someone soon. But so far that’s not happening. Frankly I wonder if someone has lost the file. The problem is of course that student loans don’t ever really go away, and sooner or later this thing is going to pop up with somebody demanding payment. And I’m sure whoever it is won’t be forgiving any of the interest that has been accumulating during this time that the loan seems to have disappeared.

I’ve been telling my clients that if they will be needing more student loans after we file, then they better check with the lender and their financial aid office at school to try and get a preview in advance as to what the effect of the bankruptcy might be.

Best Minnesota Bankruptcy Attorney?????

I just got off the phone with a guy who claimed that he found me by typing “best minnesota bankruptcy attorney” into google.

I just tried it. Sure enough, my web site comes up first – at least in the organic results. I’m not counting the paid advertisements, just the regular search result listing.

I have no idea how this would happen. Some sort of a fluke I would suppose. I do my own web site, but I have made no effort to promote the word “best” as any kind of a key word. I might mention somewhere on the site that I use software called “Best Case.”

So that’s my curiousity of the day. I’m sure that result won’t continue for long. More later.

To the Guy I was supposed to call back around 12:30 PM Today

Your phone is disconnected. I tried to return your call at 12:30 pm today as I said I would; but between the time you called me around 10 am today and the time I tried to return the call, you apparently were disconnected.

Please try to call me again when you can. I know they say that the recession is behind us, but the fact your phone got disconnected today would seem to indicate that it is not over for you.

While not on the same level of magnitude, this reminds me of the time – not that long ago – that a repo guy towed my client’s car away from the parking lot in front of my office.

More later.

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