Better Call Dave – Bankrupt MN Blog
Minnesota Bankruptcy Lawyer David Kelly discusses Filing Bankruptcy in Minnesota
Anyone who has spoken with me over the past few months knows that I have been moaning and complaining about how my landlord was selling out to a developer and the building containing my office is scheduled to be torn down. My beautiful office being destroyed. It saddens me.
As of this morning, however, the moving truck is on its way and I hope to be unpacking at my new location as of late this afternoon. The telephone and internet man is not coming until tomorrow morning, however, so that means that communications via my land line may be disrupted for a while. If you need me the best bet will be to call my cell – 612-735-3797.
The new location will be 11900 Wayzata Blvd. #116E, Minnetonka, MN 55305. This is on the frontage road on the north side of 394 between Hopkins Crossroad and Ridgedale Drive. It’s about a block east of the Staples store. The office complex is called Marsh Run.
As many of you know, my old office had a patio and a back yard – something that an office would not ordinarily have. For an office it was wonderful, and I loved it. I didn’t think I would ever find any kind of an office space even close when it came to an amenity like that. But I have managed to find something that has some similarity in that regard. The new office actually has a deck that overlooks a little pond. As far as the view goes, it is actually better than the old office.
I’m going to be pretty distracted with moving and getting unpacked for the next few days; but taking care of my clients and taking care of business has priority. Everything that needs immediate attention will be taken care of. As I said, if you need me just call my cell: 612-735-3797.
Marital status can make a big difference in a bankruptcy case.
There’s a certain amount of rejoicing in these parts over the events at the Minnesota legislature yesterday which appear to make legalization of gay marriage a certainty in this state probably by next week. I assume that we will have a lot of people who are now legally single soon becoming legally married.
I find myself thinking about all the times a married person has come in to see me about a bankruptcy and wanted to file individually and not jointly. I had to explain that for a married person it is usually best to do it jointly. When a married person insists on filing individually, I will often just refuse to take the case. I’ve actually done quite a few individual filings for married people, but I usually don’t want that case unless there is a really compelling reason to not file jointly. The probability of something going wrong in such a case is multiplied by a factor of I’m not sure what – but by a substantial factor. I don’t consider “but my wife has such a good credit score” to be a compelling reason.
For anybody thinking about both marriage and bankruptcy, you might want to consult with a competent lawyer concerning whether it would be best to file the bankruptcy before or after the wedding.
In bankruptcy, either Chapter 7 or 13, there is a counseling requirement – one course that must be taken before the case is filed and another that must be taken before the case can be discharged.
One of the things that keeps me awake at night is the possibility that one of my clients might miss the deadline for the second course and have their discharge refused as a result. I ask my clients to please have the second course done by the time of the meeting of creditors, which is about a month after filing.
If the second course is not done by then, I keep track of that fact by moving the file to my “drawer of shame.” It has a big label on it in red letters. My goal then is to bug those clients until the second course is done. It would be a terrible shame to have a case that is otherwise going well fail because of that. One time it was actually down to the last 24 hours before my client got it done. That one had me actually calling my client’s mother.
I’ve never had a case where a client has actually missed the deadline. The lawyers I know who have clients that have missed it tell me that every one of them blames the lawyer, even though the lawyer sent all kinds of reminders.
It turns out that this sign belongs to an outfit called “Affordable Law Center” which is operated by a gentleman named Edward Jonak.
I am sitting here now reviewing a court order from Judge Kishel issued March 29th concerning Mr. Jonak. Looks as if the order completely shuts down the “Affordable Law Center” and charges a number of large fines. This sign is actually mentioned in the opinion. It’s 55 pages long – very long because of how elaborate the entire scam was. Take a look for yourself – here’s a link to the opinion: https://www.mnb.uscourts.gov/sites/mnb/files/opinions/shadley.gfk_.pdf
I wish I could find the phone number of the person who called me and who was going to have these guys do her bankruptcy case. I am afraid I have already shredded it.
I see on my Google Plus page that an outfit called “Get Payday Loans” has added me to their circles – or something. Usually I would add them back, but I just can’t do it. From where I sit payday loans are about the most evil thing on the planet. They are very addictive. Once a person gets started, they are drawn into debt and will have the devil of a time getting out.
I have never done a study or looked at any statistics on this subject. However, I have dealt with these in numerous bankruptcy cases, so I have some opinions based on what I myself have seen – at least what it looks like to me. For one thing, it looks to me as if the rates they charge are very high. Another thing I seem to be seeing is that some of the banks seem to like these things – I suspect because they charge a fee to set them up on a customer’s checking account so that when the pay check is deposited, the money automatically disappears to the lender.
I believe that anything which is automatic – happening painlessly behind the scenes without drawing full attention to itself – makes it easier to get deeply in debt.
So no, I’m not adding “Get Payday Loans” back.
For me the starting point for most bankruptcy cases is a call from the prospective client. If you are reading this that could be you. Before anything else I like to do a screening over the phone. This can be done in about fifteen minutes, sometimes maybe a bit longer. No need to be afraid of me. I’m easy to talk to. There’s no fee for the phone conversation. If the information from the phone conversation indicates that bankruptcy is appropriate, whether that be a Chapter 7 or a Chapter 13, the next thing I want to do is meet face to face in my office for a more serious consultation. For this I will charge a small consultation fee, which I will have quoted in the phone conversation. I will credit the consultation fee against my fee for the case if we decide to go ahead. If I suggest that you come in for a consultation, it’s because I’m already fairly certain that it is a case I would accept.
There are four batches of information that I would ask you to bring when you come:
As you might have gathered by this point, that consultation in my office is usually quite thorough. I should be able to give you an opinion concerning your situation that will be worth the trip. Figure on spending an hour and a half – more if we are planning on running a means test.
Well, tax season is upon us. I am hearing from quite a few folks who have returns ready to file but don’t have the money that they are required to pay in. What I usually say is that in most circumstances it is better to file the return without paying than it is to delay filing. If you file your return without paying, the taxes you owe might be dischargeable in a bankruptcy three years from now; but if you don’t file the return, chances are that the taxes would never be dischargeable in bankruptcy.
Another reason to file is that tax filings are required to be up to date prior to the filing of a Chapter 13 bankruptcy. And for Chapter 7 bankruptcy it is best to have them up to date. It is possible to file a Chapter 7 without having the tax filings all finished, but it is not a good idea. In any bankruptcy case you are required to list all your assets and all your liabilities. A tax refund is an asset, and if you owe taxes that certainly is a liability. Either way, without the taxes done, you don’t know what you have and you can’t provide the full information that is required in the bankruptcy petition.
Some situations may call for something different, but most of the time it’s best to file on time even if you can’t pay on time. The IRS and the Minnesota Department of Revenue are usually fairly easy to work with when it comes to setting up payment plans.
Of all the questions I get asked, “can I keep my house” could be the most frequent. I have a long article about it on my site, probably too long. For one thing, the web page covers both Chapter 7 and Chapter 13. For another thing, the article covers the topic of letting the house go as well as keeping it. Here I’d like to just say a few simple words about keeping your house – the house you are living in – when you file a Chapter 7 bankruptcy.
So here I’m assuming that you are filing a Chapter 7 and you want to keep your house. If you have any equity in the house, that equity will have to be claimed as exempt in order to keep the bankruptcy trustee from taking the house away from you. In most cases claiming the house as exempt it easy. If the equity doesn’t exceed $10,000 for a single person or $20,000 for a married couple, we can claim the house as exempt under the federal exemptions. If the equity is more than that, it would be best to use the Minnesota state exemptions which allow for up to $390,000 of equity.
Once we are satisfied that your equity is protected as exempt, the next issue is the mortgages. We have to list those in the bankruptcy petition like any other debt, and that means that your personal obligation to pay them should eventually be discharged. I say mortgages in the plural, because most of my clients seem to have two – a first and a second. Some people I talk with seem to think that if their mortgage obligations are discharged, then the house is free and clear. That is not the case. The mortgage liens remain on the house even though the debt or debts themselves are discharged. Ths means that if you want to keep the house long term after filing a Chapter 7 bankruptcy, you need to plan on continuing to pay the mortgages.
This is a bit of a simplication, and for more detail read my keep my house page. But what it usually comes down to is being able to claim the equity as exempt and being able to keep making the payments.
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