2012 - Page 2 of 4 - Better Call Dave

September 13, 2012September 14, 2012

Fisette is a Fizzle – Minnesota Chapter 13 Lien Strip Decision Inconclusive

Can the lien of the second mortgage be removed from my house? - Bankruptcy

What I am about to say here applies only to Minnesota and the other states in the swath of territory here in the middle of the US which is served by the 8th Circuit Court of Appeals. It is only my opinion. You may find other attorneys who would disagree.

We have been waiting for the 8th Circuit Court of Appeals to make a final decision on lien stripping. I’ve been telling people for months that I would really like to see what the appeal court has to say before I get seriously into lien strip work.

In a bankruptcy context, when you see talk about “lien stripping,” it is about a process in Chapter 13 cases where a second mortgage can be treated as if it was unsecured. This can be done, if it is permissible at all, in Chapter 13 cases where the value of the house is lower than the balance on the first mortgage, so that there literally is no security to support the second mortgage. The second mortgage becomes no longer a mortgage on the house, no longer a lien that must be paid if you want to keep the house. It is to be treated like any other unsecured debt. Usually in Chapter 13 the unsecured creditors get paid very little, only a fraction of the full amount of the debt.

A lower court – the Bankruptcy Appellate Panel (or BAP) – ruled about two years ago in the Fisette case that the procedure is permissible. The decision was promptly appealed to the 8th Circuit Court of Appeals, and we have been waiting for a decision ever since. Finally the big decision was released yesterday. I practially held my breath as I tried to figure out what the decision said. I printed a hard copy for myself to I could go over it more carefully. It started out reading in a fairly positive way. As I flipped through the pages, at first I thought I was seeing a decision in favor of lien stripping. A footnote on page 3 of the decision listed a string of cases from other courts which say that lien stripping is an acceptable procedure. The opinion, however, comes to an abrupt end with the words, “The appeal is dismissed for lack of jurisdiction.”

Only “final” orders can be appealed. The court said they didn’t think the order being appealed was final. They sent it back to the lower court for “further judicial activity,” whatever that means. They don’t seem to have decided a thing, and it’s very disappointing.

It is true that they did not overturn the BAP decision. That means that the BAP decision, which said that lien stripping is OK, is the current law of the 8th Circuit. However, the lower court judge this is apparently being sent back to is reputed to be very much against the lien stipping idea. There is likely to be another lower court decision which again will be appealed. It’s hard to tell, but the process could take years before we have the clarity I was hoping for.

It will take a while before the legal community in these parts has this decision fully digested. It is very early to say what the meaning of it really is. I’ll try to keep you posted.

This post is for general information purposes only, is not legal advice, and does not create an attorney-client relationship. 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 bankr

September 6, 2012

Will Filing Bankruptcy Reduce my Monthly Payments?

Very often, the impetus for filing bankruptcy is mounting debt and unmanageable monthly payments. Refinancing can help to some degree but if the monthly payments are more than you can handle on your present income, something else has to be done. You may wonder if filing bankruptcy will reduce the amount you have to pay out each month to your creditors.

Under a Chapter 7 bankruptcy, your unsecured debt is usually completely removed by the bankruptcy discharge. There are certain exceptions such as some taxes, child support and student loans. If you want to keep your car as part of your Chapter 7, you will have to keep paying your car loan even though the debt is discharged. Similarly, if you want to keep your house in Chapter 7, paying the mortgage or mortgages is still required. Many of our Chapter 7 clients wind up not owing any of their creditors anything. Many others don’t actually owe anything because the debts are discharged, but still voluntarily pay a car loan or a house payment so they can keep their house or car. Some get rid of all their debt except for their student loans. Others get rid of all their debt except for their taxes. In cases where the taxes are old enough, usually over three years since the return was filed, some even do manage to get rid of their tax debt. This allows you to get a fresh start in life. You can rebuild your credit and get a better handle on your financial life.

With a Chapter 13 debt reorganization plan, your income is first evaluated. All sorts of income can be used including your earned wages, child support, commissions, social security, spousal support, disability benefits, unemployment benefits, workman’s compensation and retirement incomes – as long as the income is received on a regular basis. Gifts might also be included if they are recieved with regularity.

The next step in Chapter 13 is to determine your normal living expenses. This amount is set aside. Whatever is left after your living expenses is available for debt repayment. If you are unable to repay all of your debts within three to five years, a plan that allows you partially pay down your debt over that time frame is established, sometimes called a “best efforts” plan. The purpose of the partial repayment plan is to pay back as much of what you owe as possible. When you reach the end of the specified time, any amount remaining is discharged. In the majority of Chapter 13 cases, the amount of the monthly payments is set at a relatively low amount that the Debtor can afford. Also, in most Chapter 13 cases, only a small percentage of the overall debt is repaid.

With Chapter 7 you can end up with no monthly payments on unsecured credit related debt. With Chapter 13 you will more than likely have reduced monthly payments. It is best to discuss this with your bankruptcy lawyer to determine the best course of action for your situation.

This post is for general information purposes only, is not legal advice and does not create an attorney-client relationship.

August 31, 2012August 28, 2012

How Is My Credit Affected By Bankruptcy?

Credit rating is very important in our society. It determines how much money you can borrow to buy a car, a home or how much you can charge on credit cards. A strong credit rating gets you the best credit with the lowest interest rates because creditors see you as a good risk. Many people avoid filing bankruptcy because they fear the effects it will have on their credit rating.

Kelly Law Office does not do credit repair work. From our perspective, those who claim to be able to repair credit appear to be making very questionable claims. In the course of doing bankruptcy work, however, we get a lot of feedback from clients as to how the bankruptcy has affected their credit and their lives in general. The overwhelming majority of the feedback is positive.

Just how a bankruptcy will impact your credit rating if you file a Chapter 7 bankruptcy or a Chapter 13 debt reorganization plan depends primarily on what your credit rating looks like when you make the filing. If your credit is very good, a bankruptcy of any kind will have a serious negative impact on your credit rating. As a practical matter you will not have credit for several years. What we hear is that the credit bureaus keep the bankruptcy filing on the credit report for ten years. However, usually after three or four years, based on what we have been hearing from our clients, credit will start to improve. Typically in any given year, Dave Kelly will regularly get phone calls from clients who filed three or four years earlier asking for copies of documents from their bankruptcy files. Why are they asking for the info? Because they want to use it as part of a credit application. They have a banker or a lender who is about to give them a car loan or extend some other sort of credit. Caution is recommended once credit is available again. We would rather not see folks again for another bankruptcy years later.

If, however, your financial difficulties have been mounting for some time and your credit rating is already significantly damaged or will be in the near future, filing for bankruptcy might be the best move you can make. It may, in fact, help you improve your credit.

Once you have completed the bankruptcy process, you are essentially debt free. While you have a bad credit score, you now have the ability to repay any new creditors. This makes you a better risk than when you were carrying all the debt. You may be penalized for bankruptcy and poor credit with higher interest rates but it is an opportunity to start rebuilding your credit. Under Chapter 7 protection, you can only file once every eight years. This gives you plenty of time to rebuild your credit once you are debt free.

If it has been less than eight years since you filed a Chapter 7 bankruptcy, you can still file a Chapter 13 bankruptcy, providing you are meeting the pre-established percentages for the debt you must repay. There are time limits on getting at a discharge under Chapter 13 as well, but usually by the time the payment plan is completed in the Chapter 13, the time limit would have expired and the debtor would be eligible for the discharge.

August 28, 2012

Will Bankruptcy Stop the Creditor Harassment?

Facing financial difficulty is stressful enough. Dealing with credit collections can be miserable. Many collections agents are reasonable and will work with you. It always pays to be honest. Explain your situation and some may offer to renegotiate your terms, reduce your payments or offer some other type of assistance. You won’t know unless you talk to them.

Other collections agents are not so agreeable. While there are laws that govern the allowable behavior a collector can reasonably use, many will still attempt to coerce payment from you with threats and intimidation tactics. If you have tried to explain your situation to them and work something out but the harassment continues, your life can become increasingly stressful and depressing, affecting both your personal and professional life.

In this situation, you may need to talk to a bankruptcy attorney. Filing a Chapter 7 bankruptcy forces strict collection and contact laws to go into effect. It effectively prevents the creditors from contacting you. Their dealings must all be with your attorney or the court. If they continue to contact you or in any way attempt to collect on the debt you owe once the Chapter 7 bankruptcy has been filed, they can be sanctioned. If their violations are serious enough, usually involving multiple debtors, they can even lose their business license.

When a bankruptcy case is filed, a court order called the automatic stay goes into effect. This order requires all the creditors to leave the debtor alone. This stay remains in effect until the debts are discharged, at which point the creditors are required to not try to collect because the debtor no longer owes the debt. After the automatic stay expires, however, a creditor with security can foreclose or repossess the security if the payments on the debt are not up to date. So debtors who wish to keep a home, for example, would ordinarily have to keep making the payments on the mortgage.

Harassment is against the law and your bankruptcy attorney can help you put an end to the misery that accompanies financial hardship and collections actions. If you are being hounded at home and at work and are unable to find a reasonable solution on your own, a bankruptcy attorney may be the answer you are looking for. Don’t let the creditors to rob you of the chance to live in peace when help may be just a phone call away.

August 26, 2012August 28, 2012

Are Your Co-Signers Protected Under Bankruptcy?

Plan ahead before you sign the marriage license.

In some situations, you may have needed a cosigner to secure a loan or credit card. This is because there wasn’t enough data to support giving you the loan or credit on your own or because you were rebuilding credit after having had past issues. The purpose of the cosigner is to assure the lender that the debt will be made good. Often the cosigner is a close friend or family member which can make the topic of bankruptcy an especially sticky one. Whether or not your cosigner is protected under bankruptcy varies with the circumstances and type of bankruptcy you are filing for.

If you are filing under Chapter 7, the terms of the debt agreement you and your cosigner signed come into play and the creditor may be able to proceed against the cosigner. However, the cosigner is protected if you file under Chapter 13 Debt Adjustment providing the following criteria are met:

It must be consumer debt
The debt may not be the result of doing ordinary business
No benefit from the debt can pass to the cosigner

As long as you make the scheduled payments under the repayment plan, the creditor cannot attempt collection from the cosigner. Chapter 13 allows you to still pay off your own debts and protects your cosigner. However, if you miss your payments, the creditor may be able to attempt collection from your cosigner

The reason why the cosingers are protected in Chapter 13 is that the automatic stay – the court order issued when the case is filed telling creditors to leave you alone – extends to codebtors in Chapter 13. The automatic stay remains in effect during the payment plan, which usually would be five years. Few Chapter 13 plans involve paying off all the debt. Most of them pay only a small portion, after which the Debtor receives a discharge for whatever is unpaid. The cosigner, however, does not receive a discharge unless he or she filed his or her own bankruptcy. So after the payment plan is over, the creditor may once again pursue the cosigner.

If you are unable to maintain your payments under your Chapter 13 schedule, you can still apply for bankruptcy protection under Chapter 7. This will, however, make your cosigner immediately susceptible to collection attempts from your creditor.

Naturally, it is important to choose the right option when you consider bankruptcy, particularly if a cosigner is involved. Consult with a qualified bankruptcy attorney before you file for bankruptcy and possibly put your cosigner at risk too.

August 18, 2012August 20, 2012

Preparation and Planning for Filing Bankruptcy

When 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.

August 9, 2012August 7, 2012

Chapter 7 and Credit Card Debt

One of the main reasons consumers seek bankruptcy relief is overwhelming credit card debt. If you qualify for a Chapter 7 bankruptcy, you could discharge most if not all of your unsecured credit card debt but there are circumstances where your credit card debt may not be dischargeable.

A bankruptcy places your creditors in order of priority. If your bankrupt estate has assets that are not exempt, the trustee could seize those assets and sell them off to repay your creditors in order of priority. Creditors who are unsecured or lack collateral for their loans are lowest in priority.

In most Chapter 7 bankruptcies, however, there are few if any unprotected assets available for distribution. In a no-assets case, unsecured creditors like credit card issuers are unable to collect anything for the unpaid balances on their cards and the debt is discharged.

Challenging the Discharge

There are situations, however, where the card issuer or company may successfully challenge the discharge. These include the following:

You obtained the credit card by falsifying information on the application
You never intended to repay the credit card company
The creditor has a purchase money security interest in the item

If you bought an expensive item with credit, you may have signed a purchase money security agreement even though you may have paid for the item with your credit card like a Sears card. In a bankruptcy, the creditor can claim that you either must return the item, pay its market value, or continue making installment payments for this item.

The more common issue that arises in a bankruptcy is your lack of intent to repay the creditor. Your payment history is vital in this instance as is your conduct in using the card. A sudden change in the card’s use before filing is suspect. Here are some common mistakes that debtors make with their credit cards before filing for bankruptcy:

You made a number of large or expensive purchases with your card in the months leading to the bankruptcy filing.
You took out one or more cash advances.
You took an expensive vacation or traveled shortly before filing.
You maxed out the card.
You recently were issued the card and made a number of expensive purchases.
You made no payments on the new card.
You made no payments or only a few minimum payments after making large purchases or using it extensively just before filing.
You were unemployed while making these purchases.

Avoiding or Resolving Challenges to Discharge

If you are likely to have a challenge or objection to your bankruptcy discharge, you might want to consider one of the following strategies for either avoiding or resolving the potential challenge:

Wait at least 4-6 months before filing and make more than the minimum payments for each month. The longer you wait and make payments, the less likely the creditor can show that you lacked the intent to repay it.
Be prepared to settle with the creditor if or when the creditor makes an objection to dischargeability.
Consult with your bankruptcy attorney to see if a trial on this issue is advisable. If you win, you might be able collect attorney’s fees if the court finds that the claim was not “substantially justified.”
Consult with an attorney to see if a debt management program is more amenable.

Being prepared and having the advice of a knowledgeable bankruptcy attorney before you file will help you to avoid embarrassing, costly and potentially criminal acts.

The type of objection involved in most of the above situations is made when the creditor files what is called an adversarial proceeding in the bankruptcy court. This proceeding is considered to be an action separate from the bankruptcy itself and has it’s own court file and it’s own set of documents. Typically when you hire a lawyer to do a bankruptcy, the attorney fee will not include representation in adversarial proceedings. The retainer agreement with your lawyer will probably actually EXCLUDE adversarial proceedings. Defending those is a practice area all by itself that many ordinary bankruptcy lawyers stay away from.

A good bankruptcy lawyer will screen your case in an effort to be sure that adversarial proceedings are unlikely. If there is such a proceeding on the horizon, the creditor will tend to threaten an objection before actually filing one with the court. Your regular bankruptcy lawyer may either try to talk the creditor out of it or try to settle the claim before the creditor files; but if the creditor actually gets to the point of filing the objection, you can expect an additional attorney fee and perhaps a referral to another attorney.

This article is for general information purposes only and is not intended to be legal advice. Kelly Law Office is a Debt Relief Agency helping people file for relief under the federal bankruptcy code.

August 7, 2012

The Downside to Debt Consolidation

Debt consolidation is typically tried in an effort to avoid filing bankruptcy. Often it’s a big mistake. In this process, a consolidator will attempt to compile a person’s debt into one loan that offers a low interest rate and monthly payment. The goal is to allow the person to pay off his or her debt gradually without having to rely on bankruptcy to do the work. This is certainly an option to look into, but it is not as perfect as society makes it out to be. In fact, it may actually be worse than filing for bankruptcy in a lot of cases.

Before you commit to debt consolidation, consider the following disadvantages:

You are turning old debt into new debt. Old debt washes in bankruptcy much better than new debt. When debt is new you are more open to the claim that you intended to never pay but had planned all along to file bankruptcy. This is grounds to object to your bankruptcy discharge. When you rob Peter to pay Paul, Peter might get really mad and file an objection in your bankruptcy case. Paul doesn’t mind, but watch out for Peter.
Debt consolidation can still damage your credit. If it takes you five years to pay off your outstanding loans, you are going to have at least five years of bad credit. With a bankruptcy, you can at least start rebuilding your credit shortly after you complete the process.
Debt consolidation requires a long-term commitment. You have to be able to pay off a loan for a long time, probably longer than any other loan you have had in the past. It is up to you to determine if you can do that with your income.
Debt consolidation will not work for all forms of debt. You may still have some loans to pay off independently, thereby defeating the purpose of the “one-stop debt.”
Debt consolidation may not save you any money in the long run. Even if you secure a low interest rate, you will probably have to pay off your loan for an extensive period of time. That is going to add up to a lot of extra money that you may not have to spare.

Bankruptcy may not be the solution for every debtor, but neither is debt consolidation. You have to weigh out the consolidation and bankruptcy facts to determine which process is best suited for your debt. Then you can start looking for a debt relief attorney to help you get your finances back on the proper financial track.

August 1, 2012

Recent Purchases Before Filing for Bankruptcy

When filing for a Chapter 7 bankruptcy, many debtors are concerned about the status of large or luxury purchases they may have made in the weeks or months before filing.

These purchases may have been for expensive jewelry, cars, boats, or other items. Whether these items can be retained by the debtor after filing for bankruptcy depends on the nature of the item and how and when it was purchased.

Credit Card Purchases

The trustee in a Chapter 7 bankruptcy will look to any major purchases you made in the past 90 days or even beyond in some cases. Also, a creditor may challenge your use of their credit card if it can show that your actions indicated an intent to not repay them.

For example, if you bought a $2,500 bicycle on your MasterCard three months ago and made no payments before filing, the creditor is very likely to file an objection to the discharge of that particular debt. You will be accused of intending to run the debt through bankruptcy at the time it was incurred. “Fraud” is the term the bankruptcy code uses to describe this behavior. The creditor’s objection will be likely to prevail.

For some large items bought on a particular credit card, you may have unwittingly signed a purchase money security agreement. In this situation, the creditor could claim title to the item and demand you either return it, pay the current market value of it, or make monthly payments.

Reaffirmation and Redemption

For other expensive purchases made with cash, you may or may not be able to retain the item. Your assets and debts make up your estate. According to law, you have certain assets that are exempt from seizure by the trustee and assets that are nonexempt. Your exempt property is usually protected only up to a certain amount. For example, most states allow a limited homestead exemption regarding your equity. You can also exempt one automobile valued up to a certain amount.

Automobiles and boats

If you just purchased an expensive car for cash, it is unlikely you can keep the vehicle since its market value will likely exceed the exempt amount. Under the Minnesota exemptions, you can claim one car of a value up to $4,600; or if you choose to use the federal exemptions, which are also available in Minnesota, you can claim up to $3,450.00 of equity in a vehicle as exempt. So with the exemption being lower, why would you choose the federal exemptions? Because the federal exemptions also include a wild card exemption which you can use for anything up to $11,975. Excess equity in a car, or anything else that doesn’t fit in one of the specific categories, can be claimed as exempt under the wild card. If you have assets that you are unable to exempt, however, you can expect the trustee to seize them unless you have the ability to buy the assets back from the trustee.

If you have a loan on the car, some of the lenders will require that you reaffirm the debt with a reaffirmation agreement as a condition of allowing you to keep the vehicle. Most of the lenders, however, will let you just keep making the payments without a reaffirmation – a procedure called retain and pay. A reaffirmation agreement is a contract which reinstates the loan as if the bankruptcy never happened. Such agreements are to be avoided if at all possible. Since 2j005 the bankruptcy code has not included retain and pay as one of the options, but most lenders will do it anyway. Another option, one which is still in the bankruptcy code, is redemption. Redemption means paying in one lump sum – the full value of the vehicle or other security. There are a few lenders out there who will finance redemptions, at a very high interest rate, but in general this is rare.

There are no specific exemptions for boats. If the boat is a very modest one, you might be able to exempt it with the wild card. Unless you can use the wild card, the trustee will likely sell any boat, and that money will go to the trustee and the creditors. The best thing to do with a boat is usually to sell it before filing the bankruptcy – for fair market value of course. You can use the proceeds to hire your lawyer.

Jewelry

Most states have a jewelry exemption. Under Minnesota statutes the only jewelry exemption is for wedding rings – up to $2,817.50. The federal exemptions exempt $1,450 of any kind of jewelry. Your attorney will ask to determine the liquidation value of the jewelry, or how much you could get if you sold it. A formal appraisal may be needed. In some cases, the liquidation value is considerably less than what you paid for it and it may fit within an exemption.

If you bought the jewelry on credit and the creditor has a perfected security interest in the item, it could demand you return it or continue making payments. Taking legal action against you and then selling the item is generally an expensive process. In many cases, the creditor may agree to work out a payment arrangement or you could pay the redemption value in one lump sum. Typically a payment plan would be written up as a reaffirmation agreement.

Reaffirmation agreements have to be filed with the court prior to the date of discharge for them to be legally enforceable. This means the window during which they can be done is quite narrow.

If you have non-exempt jewelry, as with any asset that is non exempt, you can negotiate with the trustee to buy back the jewelry, if no security interest exists on it, once you determine its resale value.

In any of these scenarios, it is best to consult with a bankruptcy attorney before you file for Chapter 7 protection and to see if a Chapter 13 is more applicable or some other financial option is available. The bankruptcy code is a mine field of “gotchas,” and it’s not a place you want to go without a lawyer.

The author of this article resides in Minnesota, and the references to exemption laws are intended only to apply to Minnesota residents. The exemption scenario is different in every state; and if you are not from Minnesota, it could be very different in the state where you live.

This article is intended for general information purposes only and it not intended to be legal advice

July 31, 2012July 31, 2012

The Most Common Reasons People File for Bankruptcy

With the recent downturn in the economy, bankruptcy has become an increasingly popular way for people to relieve their debts. There are hundreds of reasons why a person may choose to file bankruptcy, but some reasons are more prominent than others. Here are the four most common reasons people file for bankruptcy in America:

Medical Bills: With the number of uninsured citizens in the United States rising by the day, many families have high medical debt for accidents they could not pay for on their own. Medical bills can be upwards of $100,000 for one person, and that debt is typically more than one person can pay off. Bankruptcy provides patients with the opportunity to relieve their medical debts and start fresh in the future.
Unemployment: Loss of work is another common cause of bankruptcy in the modern world. As people lose the ability to work, they lose the ability to pay their bills. Thus their debt piles up, and bankruptcy becomes the only solution they have to get back on their feet.
Excessive Debt: Some people just make poor financial decisions, and they end up in debt because they over-exceeded their financial limitations. This is often the case with young adults who are not used to living on their own. Credit card debts and high car loans are some of the biggest financial problems in America, and they are among the most significant causes for bankruptcy.
Divorce: Divorcees often encounter debt that was once part of a marriage. This, combined with the cost of divorce as a whole, may cause someone to build up enough debt to qualify for bankruptcy.

There are plenty of other reasons why you may feel pressed to file bankruptcy, but those are the most common ones at this time. If you happen to fit into one of those categories, you might want to speak with a debt relief attorney to assess your options.