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Monthly Archives: March 2009
When you file a bankruptcy case, you need to make some decisions about your secured loans. These are loans secured by your house, your car or other personal property.
When you file your bankruptcy case, you must make a Statement of Intention for each of your secured loans. The law offers three options. These are:
Reaffirmation means that you intend to continue paying the secured debt just as before. More importantly, it means that you agree continued personal liability for the debt. Normally, bankruptcy eliminates all personal liability on debts, including secured debt.
Redemption means that you will pay the secured debt by paying the creditor cash equal to the value of the property securing the debt. For example, if your car is worth $10,000, you could pay $10,000 to satisfy that debt in full even though you owe much more. Even if you don’t have the cash, you can redeem a late model car through a specialized lender. We can help you with this.
Surrender means that you don’t intend to pay the debt and are willing to give up the collateral. This might be a good idea for a car worth $10,000 when you owe $25,000 on it. It is also the typical choice when facing foreclosure on a house you can’t afford to keep.
Reaffirmation isn’t always a good idea. You could continue to pay a mortgage debt on a house without reaffirming. The lender has to accept payments as long as you aren’t in default. If you default later, you won’t have personal liability. Reaffirmation isn’t a good idea if you might not able to pay the loan in the future.
However if you don’t reaffirm, redeem or surrender in the case of a car loan, you’ll probably find that the car will be repossessed.
You’d be surprised to find that items like jewelry, computers and electronic equipment often are security for payment of a debt. When this happens, please tell us about it. We have to deal with these situations on a case by case basis with the lenders.
We charge you a little extra for reaffirmation agreements. That’s because we have to certify to the court that you are able to pay without it being a substantial hardship. We also try to negotiate better terms for you whenever possible. Lakelaw wants to give you good value in all aspects of your bankruptcy case.
This is a technical area of bankruptcy law. This blog is not the place to describe all of the details. But Lakelaw wants you to be informed and ask questions about how to proceed in your particular case.
More and more seniors are facing bankruptcy. In 2007, Americans 55 and older accounted for 23 percent of the more than one million Americans who filed for bankruptcy. This is up 300% since 1991. Bankruptcy is increasing among seniors more than any other age group. Bankruptcy has increased by 400% for for seniors ages 75 to 84. Lakelaw has seen even more senior citizens facing bankruptcy in the past few years.
Why are seniors facing bankruptcy?
- Social security and retirement benefits are inadequate
- Seniors have exhausted their savings
- Equity in seniors’ homes has been eroded
- Seniors have used credit cards to live and now are being sued by credit card companies
- Seniors have major medical and pharmaceutical expenses beyond that which is covered by Medicare
- You’ve worked hard all your life and tried your best. Bankruptcy is not shameful.
- If you have equity in your home, you may be able to keep your home for the rest of your life with a reverse mortgage
- If you have life insurance, you may be able to get some money through a life settlement contract
- You should not be ashamed to seek assistance from public and private agencies including religious organizations
- You should not be ashamed to seek assistance from your family
- Credit cards are not an asset – you can’t live on your credit cards – cut them up and throw them out if you can’t pay monthly.
Lakelaw shows particular consideration to the needs of senior citizens with limited needs and will often provide bankruptcy services for them at reduced fees.
Many small businesses face bankruptcy today. Banks have cut off credit. Sales have declined dramatically. So many small businesses are closing. People frequently ask me: “Do I have to file a personal bankruptcy if my business is bankrupt?” All too frequently, the answer is yes.
In most cases, business debt to a bank is supported by the owner’s personal guaranty to the bank. This means that the owner will personally be responsible to the bank for any shortfall on liquidation of the bankrupt corporation or bankrupt limited liability company. In addition, business credit cards are almost always the personal liability of the individual shareholder of a corporation or member of a limited liability company. Frequently, credit card debt of a corporation is significant.
In addition, key suppliers may have required personal guarantees of the owner as a condition to extending credit to a new business. So if the business fails, the owner may be left holding the bag as well. The Small Business Administration often requires corporate borrowers to give a junior mortgage to their homes in order to secure a new loan.
Finally, creditors may sue the owner of a corporation even if there is no legal basis. They hope there will be no defense and that you will just consent to entry of a judgment against you. So when your corporation or limited liability company fails and faces bankruptcy, be sure to get independent advice as to your own financial situation. One saving grace – if your business fails and you are facing bankruptcy as a result, you may not have to worry about the “means test” and chapter 13 if your debt is “predominantly” business debt. In such cases, the means test does not apply and you are eligible for relief under chapter 7.
Posted by David Leibowitz on March 28th, 2009 in Alternatives to Bankruptcy, Business Bankruptcy, Alternatives to Bankruptcy, Assignment for the Benefit of Creditors, Chapter 128, Dissolution, Uniform Commercial Code Sale
Chapter 11 is used to help businesses reorganize. It continues to be an important tool. There are many important options which a small business and even a medium sized business should consider when facing financial difficulties.
Is the business fundamentally sound?
If the business continues to be viable, think about what went wrong. Think about how it could be fixed. Think what the business would look like if you fixed it. Then think about whether your creditors are better off if your business is fixed and continues to be viable. If you can think positively about all of these questions, and if you have some cash to fund the reorganization of your business, Chapter 11 can still be a good idea. There are some down-sides to chapter 11:
- It costs a lot
- There is court supervision
- You have to pay for the expenses of administering the case – even the costs of people who may oppose your efforts.
Alternatives to Chapter 11
There are several alternatives to chapter 11. Lakelaw handles all of these for small and medium sized corporations, limited liability companies and other business forms:
- Assignment for the benefit of creditors – followed by restructuring under a different management
- Informal composition with creditors
- Chapter 128 Receivership in Wisconsin
Liquidation of the Business
In the event that you feel that your business can’t be saved, there are many possibilities. Bankruptcy under chapter 7 is only one possibility. Here are some others:
- Liquidation under chapter 7
- Dissolution and liquidation under state corporate law
- Informal liquidation without dissolution under state corporate law
- Sale of all assets by secured creditor under the Uniform Commercial Code
Each of these vehicles has upside and downside. So when in doubt, call us and we’ll evaluate your particular situation and then help you make the right choice for you and your business.
Posted by David Leibowitz on March 28th, 2009 in Bankruptcy
Here’s how to say bankruptcy in many languages. Many more to come.
At Lakelaw, we strive to understand you no matter what language you speak – even English.
Arabic: إفتقار كامل
Croatian: bankrotstvo, stečaj
Estonian: pankrot, maksujõuetus
Farsi: توقف بازرگان
Finnish: konkurssitila, vararikko
Japanese: 破産 or はさん
Serbian: банкротство, стечај
Spanish: bancarotta, quiebra
Swahili: mipambanisho, taflisi
Tamil: வங்கிப் பணமுடை
Urdu: دیوالیہ ۔ ٹٹ پونجیا
Vietnamese: phá sản
You must take a credit counseling course before you file a bankruptcy case. This is sometimes called the “ticket in” to bankruptcy. Bankruptcy attorneys are supposed to check to be sure that you’ve done this before you file your case. So this is not much of a problem any more.
However, you must also take a “personal financial management instructional course” – I call it a financial management course myself – before your case closes in order to get a discharge. This is sometimes called the “ticket out” of bankruptcy. We spend a lot of time telling our clients to do this. We remind clients to take the financial management course when we file their case. We write emails and letters to them asking them to take financial management training. We tell our clients to take the financial management instructional course in our engagement letters. Surprisingly, some clients still don’t do this.
Bad idea. Their case is then closed without a discharge. The client contacts us. We have to move to reopen the case. That costs $250 just for the filing fee. We have to charge our client an attorneys’ fee for this additional work. We don’t like having to do that and we know that the client doesn’t like that either.
So, take the course. Personal Financial Management Instructional Courses are actually a bargain. You spend just a few dollars on this course and you may get some ideas which will really help you in your financial affairs in the future. This may actually be the one aspect of the “Bankruptcy Abuse Prevention Consumer Protection Act” which actually was a good idea.
Clients ask me “I have big student loans – can bankruptcy help?” Frequently, student loans are only a part of the client’s problem. People also have a great deal of credit card debt to go along with the student loan.
Sometimes, the client’s education has paid off. The client has a high-paying job. Such clients need to consider filing chapter 13 if they can’t keep up with their debts. In chapter 13, they can establish a monthly payment to the chapter 13 trustee. Over a period of five years, the unsecured debt will be satisfied. And progress will be made on the student loan. With other unsecured debt satisfied, the debtor can concentrate on paying the student loan.
Sometimes, the client’s education has not paid off. The client has a low paying job or no job at all. Chapter 7 can eliminate the non-student loan debt. However, unless the debtor is facing a “substantial hardship” the debtor is still obligated to pay the student loan – possibly for a very long time.
Unfortunately, it is very hard to establish a “substantial hardship” – essentially the debtor has to be in such bad straits that he or she will never be able to satisfy the loan – usually because of a serious disability.
To establish this condition, you literally would have to sue your lender. You’d have to contend that you can’t live, even minimally, while paying the loan, and that your situation is unlikely to change for the foreseeable future. It’s a catch-22. You can’t afford to pay the student loan. And you can’t afford to pay an attorney to file a suit to establish that you can’t pay the student loan.
If student loans are part of your problem, don’t be afraid to call us – we can be part of the solution.
Dear Readers – Our Bankruptcy Glossary is interactive project here at Lakeblawg. I will be adding bankruptcy terms every day. The terms I add will be based on questions my clients ask me about that day. You tell me what term you would like me to explain and I’ll do so the very next day. Let’s talk with each other! My definitions will not necessarily be word for word from the bankruptcy code but rather I want to take difficult bankruptcy concepts and make them easy for you to understand. These definitions may not be strictly speaking complete or precise transcriptions of the bankruptcy code. Rather, they are intended to give you, the reader, a general idea of what important bankruptcy terms mean to you.
Should you have a particular legal question, don’t rely on this glossary or any paraphrase. Look to the Bankruptcy Code itself, available here. You also should consult with a competent bankruptcy attorney to apply the law to your particular situation.
I will be adding more terms every day – so tell me what you would like to know and what is interesting to you. I’ll also be linking from this page to other pages on lakelaw.com and bankrutpcy.lakelaw.com
Adversary Proceeding: A lawsuit involving a plaintiff and a defendant filed in the Bankruptcy Court in connection with a bankruptcy case.
Allowance: The treatment of a claim entitled to payment from a bankruptcy estate.
Applicable commitment period: The period of time during which the debtor must pay his projected monthly income to the chapter 13 trustee pursuant to the chapter 13 plan. This period is 3 years for those whose current monthly income is below the median for families with households the size of debtors’. Otherwise, the applicable commitment period is 5 years.
Automatic Stay: Prohibition against continuing to collect most debts or claims against a person or entity who files a bankruptcy case. This automatic stay may be modified or terminated by the bankruptcy court under many circumstances.
Bankruptcy: Submission of a person’s or company’s assets to the jurisdiction of the court for administration, usually when the debtor is not able to pay debts when due.
Bankruptcy case: A proceeding for the administration of a bankruptcy estate in a Bankruptcy Court.
Bankruptcy Court: A specialized part of the federal district court designated to hear bankruptcy cases. The Bankruptcy Court also considers controversies arising in connection with a bankruptcy case or related to a bankruptcy case. Such matters may be adversary proceedings or contested matters.
Bankruptcy Estate: Those assets of the debtor which pass to the bankruptcy trustee upon filing of a bankruptcy case
Bankruptcy Judge: A judge appointed to the Bankruptcy Court by the Circuit Court of Appeals overseeing the district court. This judge serves for a period of 14 years.
Chapter 7: A bankruptcy case where the debtor’s non-exempt assets are sold and distributed to creditors according to their priorities. The debtor receives a discharge from most, if not all, of his or her debts. The debtor keeps all exempt assets.
Chapter 7 trustee: An individual selected by the United States Trustee to serve as a fiduciary in the administration of chapter 7 cases. The chapter 7 trustee examines debtors, investigates into their affairs, locates and liquidates assets, examines claims and makes distributions to creditors. The chapter 7 trustee also can bring complaints against others to pursue the rights of a debtor who filed a bankruptcy case against others. The trustee also can bring complaints against others to pursue and protect the rights of the bankruptcy estate.
Chapter 13: A bankruptcy case where the debtor pays all of his or her disposable income for a period of time (typically 5 years for higher income debtors or 3 years for lower income debtors) to the chapter 13 trustee. That chapter 13 trustee then pays the debtor’s creditors in accordance with their priorities.
Chapter 13 trustee: An individual selected by the United States Trustee of a region to serve as a standing trustee for some or all of the chapter 13 cases in a particular area. The Chapter 13 Trustee’s office and operations are scheduled to operated on a not-for-profit basis, and paid by a percentage charge or fee on all payments made by all debtors to the chapter 13 trustee. The chapter 13 trustee provices oversight on all chapter 13 cases and recommends that the court take action of confirming a chapter 13 plan or not based on the debtor’s performance. The court is free to accept or reject the trustee’s representations.
Claim: The right of a person to payment of money or performance of an obligation against a debtor in bankruptcy. This could be in a specific amount or an indefinite amount to be determined.
Claims bar date: The last day within which a creditor must file a proof of claim to be entitled to payment in a bankruptcy case. Claims filed after the claims bar date are considered to have been “tardily filed” and may be disallowed.
Claw-back: Popular term for the right of a bankruptcy trustee to recover certain types of transfers, such as a preferential transfer to a creditor before bankruptcy, a fraudulent transfer to anyone before bankruptcy, certain types of set-offs before bankruptcy. Also a term used to describe the right of a lender to recover gain from a borrower as a result of a chapter 13 mortgage modification if new legislation is enacted into law.
Co-debtor: A person who is obligated to pay the same debt as a debtor. Co-debtors who are not joint debtors in the bankruptcy case must be shown in bankruptcy schedules.
Contested matter: A motion in connection with a bankruptcy case where a party in interest objects or otherwise disputes the entitlement of the person making the motion to the relief requested.
Credit Counseling: An interactive interview with a credit counselor approved by the Office of the United States Trustee which every individual debtor must do prior to filing a bankruptcy case. There are very few excuses for not taking credit counseling. An individual who files a bankruptcy case without having taken credit counseling before filing the case (but not more than 180 days before) almost always will have their case dismissed. This is sometimes called the “ticket in” to bankruptcy.
Current Monthly Income: The average of the monthly income you received from all sources during the six months immediately prior to the month in which you file your bankruptcy case. This is used to determine whether you are eligible to file a chapter 7 case. A person who makes current monthly income in an amount more than the half of the people with household the size of debtor’s is presumed to be abusing bankruptcy by filing a chapter 7 unless he or she “overcomes the presumption” by passing the means test.
Debt: Something owed in a bankruptcy case on account of a claim.
Debtor: A person or entity who either has filed a bankruptcy case voluntarily or against whom a bankruptcy case has been filed involuntarily.
Disallowed: The status of a claim which has been determined by the Bankruptcy Court to not be entitled to payment from a bankruptcy estate.
Discharge: An order of the Bankruptcy Court declaring that the Debtor is no longer obligated to pay most, if not all, of the debts which the Debtor had as of the date of the filing of his or her bankruptcy case.
Discharge injunction: A part of the Discharge order which prohibits anyone who held a discharged claim or debt against the debtor to take any action against the Debtor in order to collect or enforce that claim or debt.
Domestic Support Obligation: Debt owed by a debtor for support or maintenance arising from a divorce. May be under a court order or settlement. Could be also owed to a state agency collecting for the debtor. Could be owed to a former spouse or child of the debtor.
Executory Contract: A contract which has started but not yet finished, particularly where performance under the contract is due from both parties to the contract. Examples of an executory contract include a lease, an employment contract, a license agreement, a franchise agreement where the agreements are on-going and in effect.
Exemption: Certain property of a debtor may not be taken by the trustee to satisfy the claims of creditors. Exemptions are determined by the law of the state where the debtor lives or has most recently lived. Sometimes, exemptions are determined by federal law. Sometimes, the debtor has a choice. Debtors should always consult with their attorney about the proper use and claims of exemptions.
Fraudulent Transfer: A transfer by a debtor to any person within 2 years or such longer time as provided by state law, intended to hinder, delay or defraud creditors, or leaving the person who makes the transfer insolvent or unable to pay debts as they become due, even absent any intent to hinder, delay or defraud creditors.
Insolvent: A person’s or company’s assets are worth less than that person’s liabilities. Another definition is where a person or entity can’t pay debts when due.
Means test: A test applied to people whose current monthly income is above the median for households the size of debtors’ to determine if they are abusing the bankruptcy system by filing a case under chapter 7. This test is based on a bankruptcy form called form B22A.
Motion: A request by a party in interest for the bankruptcy court to take an action or to order another party to take an action or refrain from taking some action in connection with a bankruptcy case.
Party in interest: A person with some actual economic interest in the outcome in a bankruptcy case. The United States Trustee is always considered to be a party in interest. A party in interest has the right to be heard by the bankruptcy court on any issue coming before the bankruptcy court.
Personal Financial Management Instructional Course: A short, typically on-line or telephonic training session which must be taken by every individual who is a debtor in a bankruptcy case. If the debtor fails to take the personal financial management instruction course prior to the closure of the bankruptcy case, the case is closed and the debtor does not receive a discharge. This means that the creditors are free to continue to pursue collection efforts against the debtor even though the debtor filed a bankruptcy case and otherwise was eligible for discharge. This is sometimes called the “ticket out” of bankruptcy.
Preference: A transfer or payment made by a debtor to any creditor within 90 days before a bankruptcy case or to an insider, like a family member or an affiliate, within a year before a bankruptcy case, while insolvent, allowing the person to whom the transfer is made to recover more than other creditors do in the bankruptcy case.
Priority: The right to have a claim or debt paid ahead of another creditor’s claim or debt in a bankruptcy case. For example, a person who holds a “Domestic Support Obligation” has the right to be paid out of proceeds of a bankruptcy case before a “general unsecured creditor” like a credit card company.
Projected Monthly Income: An important term under the Bankruptcy Code which is at present undefined. A person in a chapter 13 is required to pay 100% of his disposable income to the chapter 13 trustee during the applicable commitment period or in the alternative to pay 100% of his unsecured debts under the plan. Projected monthly income in some courts is calculated based on the form B22C means test form. In some courts, projected monthly income is based on what debtor is making and spending at the time of filing of the case. And in some courts, projected monthly income is based on what debtor is expected to make and expected to earn in the future. This issue is very much up in the air.
Proof of Claim: A document filed in the Bankruptcy Court by a creditor setting out the amount that a debtor owes the creditor along with the basis for the claim. The proof of claim must be filed by the claims bar date.
Schedules: Bankruptcy schedules must be filed in each bankruptcy case. Bankruptcy schedules are official forms provided by the court for the disclosure of all assets of the debtors as well as all debts of the debtors. Assets are categorized either as real estate or personal property. Debts are categorized as either secured, priority or unsecured. Schedules must also indicate what exemptions debtors claim. Individual debtors must also indicate their budgeted income and expenses. Debtors must list any executory contracts and co-debtors.
Secured Creditor: A creditor of a debtor in a bankruptcy case who holds collateral or security for their claim. A creditor is a secured creditor to the extent of the value of the security or collateral. For example, an auto loan company holds a claim for $30,000 on a car worth $20,000. It has a $20,000 secured claim and a $10,000 unsecured claim.
Unsecured Credit0r: A creditor of a debtor in a bankruptcy case who does not hold collateral or security for their claim. For example, most credit card companies are unsecured creditors.
Trustee: A person designated to oversee a debtor’s bankruptcy case. The trustee in a chapter 7 case sells debtor’s non-exempt property. The trustee in a chapter 13 case collects monthly payments from the debtor. In either case, the trustee distributes money to the creditors in accordance with the priorities set up in the Bankruptcy Code.
United States Trustee: An officer appointed by the Attorney General for a particular region of the United States for the purpose of general oversight of the administration of bankruptcy cases. The United States Trustee program is a division of the United States Department of Justice.
Lakelaw Wisconsin and Legal Aid Society of Milwaukee have joined forces to help Wisconsin homeowners.
Lakelaw has joined forces with Legal Aid Society of Milwaukee to help Wisconsin homeowners fight foreclosure. Under a grant from WHEDA, the Wisconsin Housing and Economic Development Authority, Lakelaw will be providing foreclosure prevention advice and assistance to Wisconsin homeowners from every county other than Milwaukee. Lakelaw Wisconsin maintains offices in Kenosha and LaCrosse. These services will be provided pursuant to a grant from the National Foreclosure Mitigation Counseling Program’s legal assistance funds.
While services under this program will focus on non-litigation strategies, Lakelaw continues to serve its clients directly in all aspects of foreclosure defense in state, federal and bankruptcy courts, in Wisconsin as well as in Illinois.
More information can be found at WHEDA’s foreclosure resource website.
David Leibowitz of Lakelaw and Catey Doyle of the Legal Aid Society of Milwaukee will be presenting a series of training programs for attorneys throughout Wisconsin during the month of April. These sessions will be held in Milwaukee, Madison, Eau Claire and Green Bay.
Details will be posted here, on the Legal Aid Society of Milwaukee’s website and on WHEDA’s foreclosure resource website.
Do I have to list my mom's property when I'm on the title? Avoid joint titling to protect against creditors
Posted by David Leibowitz on March 22nd, 2009 in Uncategorized
My client says he is jointly titled to his mother’s condo in Florida in case she dies. Now he’s thinking about bankruptcy.
Yes, the client would have to schedule his ownership of a half interest in the property. He could claim that it is not intended by his mother to really be a present interest in the property. But the trustee has the rights of an ideal hypothetical judgment lien creditor. That’s a fancy way of saying that the trustee would be able to get a lien on my client’s half interest in the property and it wouldn’t matter whether the debtor’s interest was not intended to be effective until his mother died.
What does this mean?
It’s better to have title set up so that it does not come into effect until mom passes away. For example, one could set up a life estate followed by a remainder interest. One could set up a trust which has a beneficiary upon the death of the present owner. One could actually write a will.
And the same is true for mom or dad’s checking account. It’s better to have a power of attorney than a joint checking account if there is any concern about the possibility that the joint owner of the account may be subject to claims of creditors.
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