Minnesota Bankruptcy Lawyer David Kelly discusses Filing Bankruptcy in Minnesota
I've been practicing law in the western suburbs of Minneapolis for over 37 years. Sometimes that seems like a long time, and other days I feel as if I just started. These days my practice is devoted entirely to counseling folks concerning their financial problems and representing them in Chapter 7 and Chapter 13 bankruptcy.
One thing I don't do is credit repair. When asked about matters concerning credit scores, I like to say "I'm a very good source of unreliable information about that." What I mean is that I hear a lot about it from my clients who often report back to me how they are doing after their bankruptcy is completed, sometimes even years later; but having heard some stories from a few people doesn't qualify me to give any advice.
I spend a lot of time with my clients. I want to be sure we get it right. There are civil and criminal penalties for concealing or providing incorrect information in a bankruptcy care, and my goal is to keep myself and my clients as far away from problems like that as possible.
You can find me in MInnetonka near I-394 and Hopkins crossroad. It's ten or fifteen minutes from downtown Minneapolis. You can see parts of Plymouth, Minnesota, Golden Valley, Minnesota and St. Louis Park, Minnesota from the high ground in front of my building. If you take a look at the map, you can see that most of St. Louis Park is closer to my office than many parts of Minnetonka.
This is off topic for a blog that focuses on bankruptcy, but it’s something I would like to share anyway. A spinnaker is an extra sail that is hung off the front of a sailing vessel to give it an extra boost, extra speed. It’s easy to understand why the Minnetonka School District has used that as the name for their award for outstanding volunteers.
I was surprised a couple of months ago when I received a notice by email that I was about to receive an award – complete with an actual trophy – for doing volunteer work for the Minnetonka School District. I almost deleted the email, thinking that it was just another scam. I get lots of spam email telling me that I have won an award or some kind of certification, but they almost always want me to pay a few hundred dollars for the honor.
Once it dawned on me that the email was real, I couldn’t think of what volunteer work they were talking about. Up until then, I wasn’t thinking of anything I do as being volunteer work for a school district. My daughter is a music teacher at one of the elementary schools in Minnetonka. About 15 years ago she asked if I would bring my video camera and record one of her school programs. After that I started, at her request, showing up and recording all of them for her. After she became director of one of the school district choirs, I started recording the choir programs too. The kids love to watch a video of themselves. It’s also a teaching tool.
Here’s a short clip of the virtual award ceremony:
I have always had a fairly nice video camera. Fiddling with video has been a hobby of mine. For one thing I needed a decent video camera to make clips for my Youtube channel. I never thought of videoing the school programs and concerts as volunteer work. It was just something I enjoyed doing and something that helped my daughter. She had started off by trying to obtain video which had been taken by some of the parents, but those turned out always to be overly focused on their own child. My daughter knew that I was capable of taking a fairly good video, because when she was a kid I was always there with a camera for her gymnastics events. Taking videos of the school events now that she was a teacher just seemed like a continuation of what I had always done.
My advice for anybody who wants to take a good video of a children’s event: get lots of close up shots of the faces. The kids always love to see themselves. Find a camera that has a good zoom lens and make plenty use of it.
Bankruptcy attorneys are considered to be an essential service. While I have been taking plenty of precautions, such as asking everyone to wear a mask, I am still here and ready to serve. It usually takes several meetings between myself and my clients to properly prepare a case for filing – but many of those meetings can be done by Zoom or telephone or one of the other remote communication platforms. You don’t have to wait. I would be glad to start working with you now. To begin, call me for a free telephone consultation. 952-544-6356.
By David J. Kelly, Minnesota Bankruptcy Lawyer since 1976
Just received the following summary from the National Association of Consumer Bankruptcy Attorneys concerning bankruptcy provisions of the Coronavirus Aid, Relief and Economic Security Act” (CARES Act). Here’s what it did:
1. Amended the Small Business Reorganization Act of 2019 (SBRA) to increase the eligibility threshold for businesses filing under new subchapter V of chapter 11 of the U.S. Bankruptcy Code from $2,725,625 of debt to $7,500,000. The eligibility threshold will return to $2,725,625 after one year. Check out our SBRA Resource Page for more information.
2. Amended the definition of “income” in the Bankruptcy Code for chapters 7 and 13 to exclude coronavirus-related payments from the federal government from being treated as “income” for purposes of filing bankruptcy.
3. Clarified that the calculation of disposable income for purposes of confirming a chapter 13 plan shall not include coronavirus-related payments.
4. Explicitly permitted individuals and families currently in chapter 13 to seek payment plan modifications if they are experiencing a material financial hardship due to the coronavirus pandemic, including extending their payments for up to seven years after their initial plan payment was due.
I am still here during the Covid-19 Crisis. Lawyers are considered officers of the court. As long as the bankruptcy court is open, and it is, I have to be open too. Still, I am taking every precaution. Don’t be offended if I wipe off the pen you used or anything else you touched, or if I pull my chair back and keep my distance. Also, I am learning how to use Zoom. Already have been using Hangouts and Skype. I prefer Hangouts for virtual face to face; but one can still get a lot done by just meeting remotely by old fashioned telephone. I am limiting actual visits to my office as much as possible.
I have not been keeping track but it seems to me that somewhere around 20% of the people who call me are behind in filing their tax returns. I’m not talking about filing for an extension first and then filing the return by the extended deadline. I’m talking about not filing anything at all. The usual reason for not filing a required return is that the tax return showed that they owed taxes and they lacked the money to pay the taxes. I do not claim to be a tax expert, but I can tell you that it is almost always better to file your tax returns on time even if you don’t have the money to pay the tax. If you don’t file the return, you still owe the tax. Not filing doesn’t make the tax debt go away. It just delays the inevitable and possibly gets you in trouble. There can be late filing penalties as well as late payment penalties. Filing on time at least avoids the late filing penalties.
I have learned that it is a really bad idea to file any kind of a bankruptcy if my client’s tax filings are not up to date first. In a bankruptcy petition we are required to provide a summary of income for three calendar years. I usually just take that information off my client’s tax returns. We are required to list all your debts and all your assets. If you have a refund coming, that’s an asset. If you owe taxes, that’s a debt. It is nearly impossible to properly list your debts and assets without having all required tax returns completed and filed first. Without the tax returns the basic information required about assets and debts is incomplete.
It is usually fairly easy to set up payment plans for back taxes owed with the IRS and the Minnesota Department of Revenue. Just pick up the phone and call them. You will probably find them very easy to work with. And if we are having trouble showing that you are broke enough to qualify for a Chapter 7 bankruptcy, the payment plans with the IRS and the Department of Revenue make very handy items to add to your monthly budget. To qualify for Chapter 7 it is best if your money is all gone by the end of the month. If you have a little left over at the end of the month, you probably won’t after you set up your payment plans.
Often my clients have a therapist, doctor, chiropractor or dentist whose bill they don’t want to list in their bankruptcy. This could be a person that they really like and with whom they have a relationship that goes back several years. I hate to have to explain that one cannot pick and choose which debts to list. You are required to list them all. For some this can be a source of embarrassment an sadness. The primary concern is that maybe they won’t be able to return to that particular provider for further care or treatment. I am glad to be able to report to you that at least here in my area, this has not seemed to be a problem.
Thee is nothing in the law which requires health care providers to continue to provide services or treatment for a Debtor after a debt owing to them has been listed in a bankruptcy, but my experience has been that almost all of them will. For one thing, any health insurance coverage the Debtor has remains in effect. The bankruptcy only affects the part of the bill not covered by insurance. With some rare exceptions – such as one dentist in Elk River and a Veterinarian in Wayzata – the policy of most health care providers around here is that they will roll your bill back to zero as of the day the bankruptcy was filed, and the start over from there.
The health care providers are usually very nice about it. If you have been a regular patient, they know you will keep going back and be a continuing source of business for them. Often the bill you are listing is a small portion of what the original charges were, because a large portion was covered by your health insurance. Typically from their point of view your bankruptcy hardly hurts them at all. Often they will say something like “sorry to hear of your troubles – we hope that all works out for you.”
I have grown weary of getting messages from Google that my site is not mobile friendly. I will admit that up until now I have had to squint a bit to read my blog posts. I was fearful that changing the theme of the blog would be a long and painful process, time consuming and confusing. I have found so far that it is just the opposite. The whole thing took less than an hour.
There are bound to be bugs, however, and if you notice anything that looks strange please let me know.
The Minnesota bankruptcy filing statistics are out for the month of March. Year over year, March of 2019 shows 70 fewer bankruptcy filings than there were in March of 2018. In March of 2018 there were 998 bankruptcy cases filed in Minnesota, but this year in March 2019 it was only 928. March has always been the month in which the greatest number of case are filed – in my opinion that’s because people have tax refund money they can use to pay their lawyers. Why is it down this year? My best guess is it”s those lower tax refunds everyone has been talking about. I see my clients having bigger pay checks because their withholding is less, but they are also having lower tax refunds. Since tax refunds are considered to be an asset, a lower refund can be a good thing once the bankruptcy case is filed.
Yesterday I received an email from the Minnesota Bankruptcy Court stating in part as follows:
If there is a lapse in appropriations after January 25, the U.S. Bankruptcy Court for the District of Minnesota will likely be operating with reduced staff focused on processing filings that directly affect the protection of human life and property, as required by the Anti-Deficiency Act. The court is still in the process of determining which activities can and cannot be performed during a shutdown, and will provide ongoing guidance as these determinations are made.
We anticipate that, during any shutdown:
CM/ECF will remain operational;
The BNC will continue to process and send notices in the ordinary course; and
PACER will remain operational and the PACER Service Center will provide ongoing support services.
In the coming days, we plan to set up an email box to which you can direct questions, concerns or comments about the shutdown. We will send out the email address with any additional updates as these become available.
I take this as meaning that for now I can continue with business as usual but that I better keep a close eye on things.
If you’ve been reading any of my musings, you know that when you file a Chapter 7 bankruptcy, ownership of all your stuff is temporarily and theoretically transferred to a trustee appointed by the court. I say “theoretically” because normally the trustee doesn’t get to keep any of it, or at least gets to keep very little. The reason why the trustee can’t keep your assets is that – with the help of somebody like me – you are going to claim all or most of your stuff as exempt. There are two sets of exemptions in Minnesota to choose from: the federal exemptions and the Minnesota state exemptions. The federal exemptions tend to be much better than the Minnesota state exemptions, except in one area: equity in a homestead. If you own your home and you have more than just a little equity in your home, the Minnesota state exemptions are for you.
Several of the Minnesota exemptions are indexed for inflation. The resulting increases are only applied every few years. 2018 was one of those years. The new indexed numbers went into effect on July 1st. For example: the household goods exemption increased from $10,300 to $10,800; for wedding rings the exemption increased from $2,817.50 to $2,940 in value; for life insurance proceeds it increased from $46,000 to $48,000; and the tools of the trade exemption went from $11,500 to $12,000. The most significant increase in my opinion was the homestead exemption which went from $390,000 of equity to $420,000 of equity.
I want to say a few words about whether a debt owing to the Social Security Administration for overpayment of benefits can be discharged in a bankruptcy. Often it can be.
If you have received Social Security you know that several factors, many of them beyond your control, can affect whether you are eligible and for how much. This is especially true of disability benefits. A change in status can end your eligibility or reduce the amount. It’s all very complicated and hard to understand – especially if you are ill.
The Social Security Administration is a big and cumbersome organization that makes lots of mistakes. Lots of times they pay benefits when they are not supposed to. Often this happens because they can be very slow in processing information they receive from beneficiaries. The impression I have is that most beneficiaries are very careful about complying with requirements that they report any change in their circumstances. If you report the change and the benefits keep coming, most people would assume that the change didn’t make a difference. Later, however, you may be shocked to receive a nasty letter from the Social Security Administration. The letter claims that you have been overpaid and demands repayment.
Suddenly you have a very large debt to a federal government agency. Nobody is more powerful. They might start withholding from the benefits you are still eligible for; they might seize your tax refunds; or they might even start garnishing your wages. Most people assume that like the usual student loans and taxes, there is no way to make this go away. This is what I assumed too the first time someone came to my office with one of these letters.
I was surprised to learn when I did a little research that many if not most of these Social Security overpayment claims can be discharged in bankruptcy. When a debt like this is listed in a bankruptcy, it is going to be discharged unless the Social Security Administration successfully objects. In order to figure out whether to expect an objection, it is helpful to check Social Security policies as published in their on line Program Operations Manual. The guidelines as to when such an objection should be filed are in GN 02215.196 of the manual. They will object if they believe they can prove that the overpayment was a result of fraud or misrepresentation.
They use a three part test to define what they mean by misrepresentation. There must have been 1) an overpayment caused by false representation, 2) made with the intent to deceive and 3) upon which the Social Security Administration relied to it’s detriment.
The typical person I see in my office who with one of these overpayment letters isn’t anywhere close to satisfying the above test. This person hasn’t told any lies and certainly wan’t trying to deceive anybody. There was no intent to cheat the government out of anything. It was more a matter of just stumbling into the situation. If this is where you find yourself, you might want to give me a call. The chances that a bankruptcy can make the whole problem just go away are very good.