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Category: Bankruptcy

Who Can File Chapter 13?

Posted by Carrie Zuniga on April 18th, 2014 in Bankruptcy, Chapter 13

Typically, individuals who file bankruptcy have a choice between filing a chapter 7 “liquidation” and a chapter 13 “reorganization”. Individuals who are determined to have disposable income under the Means Test only have the option of filing chapter 13 and repaying their creditors. However, individuals still have to meet certain eligibility requirements to file chapter 13.

First, only individuals may file chapter 13. Small businesses and corporations can only reorganize under chapter 11. Chapter 13 was designed to be a simpler, more efficient way to reorganize and therefore is only available to individuals. Furthermore, stockbrokers and commodity brokers are excluded from filing chapter 13.

Second, individuals filing chapter 13 must have “regular income”, i.e. wages, business or rental income, alimony or child support, or retirement income. In other words, a chapter 13 repayment is not possible if there is no consistent source of income to repay creditors.

Finally, when filing chapter 13, an individual cannot have more than $383,175 in unsecured debt and cannot have secured debts totaling more than $1,149,525. The debt limit includes non-dischargeable debt like student loans. Again, this reinforces the idea that chapter 13 is meant to be a simpler version of chapter 11 and the more debt a person has, the more complicated their bankruptcy will likely be.

Only secured and unsecured debts that are “noncontingent and liquidated” count toward the debt limit. For example, Client A was being sued for $700,000 at the time he filed chapter 13 so he did not exceed the unsecured debt limit because the lawsuit was still pending. In Client A’s case, the money owed was contingent on entry of a judgment. If Client A had wanted to file bankruptcy after a judgment for $700,000 was already entered against him, he would no longer be eligible to file chapter 13.

In a real estate market with many people’s homes underwater, it is important to note that when your house is worth less than your mortgage(s), the amount of negative equity counts toward the unsecured debt limit. For example, Client B owns a house worth $100,000 and has a mortgage with a balance of $150,000 on it. The undersecured portion of the mortgage, $50,000, counts toward Client B’s unsecured debt. So, if Client B has $350,000 in unsecured debt, by adding $50,000 to the unsecured debt, Client B is now over the unsecured debt limit by almost $17,000.

If you are interested in reorganizing in bankruptcy, it is important to consult with an attorney. If your debts exceed the limits in chapter 13 and you make too much money to file a chapter 7, then your only bankruptcy option is chapter 11.


Free Lance-Star and Fisker Automotive: Development of the ‘For Cause’ Exception to Credit Bidding

Posted by Jonathan Brand on April 17th, 2014 in Bankruptcy Sales, Business Bankruptcy, Chapter 11, Chapter 7 Trustee, , , , , , , , ,

On April 14, 2014, the Bankruptcy Court for the Eastern District of Virginia issued an opinion limiting the credit bid of a party asserting that it held senior secured position in all assets of the debtors. In re The Free Lance-Star Publishing Co. of Fredericksburg, VA, et al., Case No. 14-30315-KRH (Bankr. E.D.Va. April 14, 2014).  The Free Lance-Star opinion coupled with the Bankruptcy Court for the District of Delaware’s opinion in In re Fisker Automotive, Inc. et al., Case No. 13-13087-KG (Bankr. D.Del. January 17, 2014) should be viewed as instructive for chapter 11 debtors, creditor committees, and aggressive lenders seeking to employ a loan-to-own strategy through a quick section 363 sale process.

In 2012, the Supreme Court in Radlax Gateway Hotel, LLC v. Amalgamated Bank, 132 S.Ct. 2065 (2012) clarified that the holder of a senior secured debt may credit bid in a chapter 11 plan auction. However, Free Lance-Star and Fisker demonstrate footnote 14 from In re Philadelphia Newspapers survives. Footnote 14 of Philadelphia Newspapers provides, in relevant part, “A court may deny a lender the right to credit bid in the interest of any policy advanced by the Code, such as to ensure the success of the reorganization or to foster a competitive bidding environment. See, e.g., 3 Collier on Bankruptcy 363.09[1] (“the Court might [deny credit bidding] if permitting the lienholder to bid would chill the bidding process.”).” In re Philadelphia Newspapers, 599 F.3d 298, 316 fn. 14 (3d Cir. 2010)(emphasis added).

While Fisker is an opinion limited to the facts of the case, the arguments raised by the Committee may be instructive – in the right situations – to frustrate, limit or deny a secured creditor’s attempt to credit bid. In Fisker, the debtor sought to sell the debtor’s assets through a private sale in connection with the secured party providing a $75 million credit bid. The debtor and committee presented a set of stipulations related to, among other issues, the committee’s motion to limit the secured creditor’s right to credit bid. The stipulations served as the factual basis for the court’s decision to limit the secured creditor’s credit bid. Therein, the competing bidder provided that it would not participate in an auction if the secured creditor was allowed to bid more than $25 million, or the purchase price of the DOE loan. As a result of the unresolved issues as to the validity of the debt buyer’s lien, and no bidding would take place unless the credit bid was capped, the court found ‘cause’ under section 363(k). The debt buyer’s bid was capped at $25 million. The debt buyer’s attempt to appeal the court’s decision were futile. As a result, a public auction went forward and the competing bidder purchased the debtor’s assets for $149.2 million. The unsecured creditors went from receiving approximately $500,000 under the debt buyer’s original credit bid, to potentially receiving approximately $35 million under a proposed settlement post-auction sale.

Fisker’s result and reasoning may be clear, however, the manner in which the court determined the amount to limit the credit bid is open to discussion. It must be assumed that the stipulations drove the court’s decision. This gives rise to a different issue: If the facts justify limiting a secured party’s right to credit bid, how should a court determine the appropriate amount of the credit bid?

The Free Lance-Star case may provide an answer. In Free Lance-Star, the debtor was a family-owned publishing, newspaper, radio and communications company. After securing a $50 million loan from Branch Banking and Trust (BB&T), the company fell on hard times. The loan was secured by certain assets of the Debtor. However, it was not secured by the debtor’s “tower assets” associated with the debtor’s radio broadcasting operations.

Eventually, BB&T sold its loan to Sandton Capital Partners (“Sandton”) in late June 2013. Sandton wanted to push the debtor through a chapter 11 case and sell substantially all the assets to a related entity of Sandton, DSP Acquisition LLC (“DSP”). DSP took certain actions pre-petition which put the scope of DSP’s security interest at issue, and lead to the debtor seeking to limit DSP’s credit bid under §363(k). The debtor, similar to Fisker, sought to limit DSP’s credit bid on the grounds that the validity and scope of DSP’s lien was at issue, DSP engaged in inequitable conduct, and limiting the credit bid would foster a robust bidding process.

At the combined evidentiary hearing on the debtors’ motion to limit credit bidding and cross-motions for summary judgment filed in an adversary proceeding seeking a determination as to the extent, and validity of DSP’s lien, the court determined DSP acted improperly and ‘cause’ existed to limit DSP’s credit bid. The court asked for testimony from DSP as to how much Sandton paid for the BB&T loan. No such testimony was provided. Typically, a debt buyer considers this information confidential. It was only known in Fisker because the debt buyer purchased a Department of Energy loan at a public auction a month prior to the filing of the Fisker case. The court, having determined that DSP acted improperly and did not have a valid perfected security interest in all of the debtors’ assets, found ‘cause’ pursuant to section 363(k) to limit the debt buyer’s credit bid.

Without any evidence being offered by DSP, the court requested that the debtors’ expert witness provide testimony on the best procedure for fashioning a competitive auction sale and credit bid price. Here, the debtor’s expert eliminated the unencumbered assets (as determined by the court) and applied a market analysis to develop an appropriate cap for the credit bid. The court accepted this approach and limited DSP’s credit bid of approximately $38 million to $13.9 million. DSP has filed an appeal.

Depending on the outcome of the appeal, employing a market analysis in connection with determining what amount a credit bid should be limited in order to generate a competitive environment for an auction is a novel, creative approach. This approach may lay the ground work for other courts to employ such a valuation method to reduce a credit bid where the facts justify limiting a secured party’s right to credit bid. No matter the outcome of DSP’s appeal, Fisker and Free Lance-Star demonstrate that debtors and committees have grounds to challenge a credit bid, especially where the validity of a secured party’s lien is questioned.  Holders of secured debt, whether debt buyers or the loan originators, should evaluate their lien rights and develop options in advance of a chapter 11 filing when using a credit bid in a loan-to-own strategy in a section 363 sale process.


If My Chapter 13 is Dismissed, Who Gets the Money?

Posted by emsc on April 17th, 2014 in Chapter 13

Recently, the district court for the Northern District of Illinois ruled on one of the important unresolved issues in chapter 13 bankruptcy: If a chapter 13 bankruptcy is dismissed, what happens to money that the chapter 13 trustee is holding when the case is dismissed? The district court decided that the funds held by the trustee belong to the debtor, and the trustee needs to return the money to the debtor.

I had the privilege of representing the debtors before the bankruptcy court. They had fallen behind in their payment obligations to the chapter 13 trustee, and then came current. They decided, thereafter, not to pursue their bankruptcy case any further. But the trustee had the money they’d paid to catch up. At the time of dismissal, the trustee was holding over $16,000. As their counsel, I wanted my clients to get their money back. The trustee, diligently endeavoring to maximize the creditors’ return, wanted to disburse the funds to their unsecured creditors.

My firm and I undertook this endeavor on their behalf for free. Seeking to advance the law – and help our clients retain a ton of dough – we chose to pursue this litigation against the trustee entirely pro bono.

This is a close legal question, but at the end of the day, the bankruptcy court – and now the district court – reached the right result, and ordered that the trustee should return the funds held at the time the case was dismissed.

Technically speaking, under section 349(b)(3) of the bankruptcy code, a dismissal order revests property of the bankruptcy estate in the entity in which such property was vested before the commencement or filing of the case. Here, since the Trustee hadn’t yet paid to creditors the funds that my clients had paid to her, the funds belonged, post-dismissal, to my clients.

This is an important unresolved issue in chapter 13 debtor practice. The bankruptcy court opinion has already been cited in several other cases and jurisdictions – in the Middle District of Tennessee and the Eastern District of Pennsylvania, for example.

The crux of chapter 13 is a repayment plan that can last up to five years. It’s messy enough merely in theory, before one ever gets to the practice. (Imagine all the things that can happen to someone’s life and finances over the course of five years!) Once one gets to the practice, one quickly learns how often very smart people can disagree. So it’s always nice when, in some small way, I might be helping my colleagues and my clients get a little more clarity, not to mention helping my clients keep a lot more of their money.


Do I Need to File My Tax Returns Before Filing for Bankruptcy?

Posted by Ryan Blay on April 17th, 2014 in Bankruptcy, Bankruptcy and Taxation, Bankruptcy procedures, Chapter 13, Chapter 7

April 15th is the deadline to file 2013 tax returns with the IRS and your state taxing authority unless you’ve received an extension to file.  But you may notice we ask for several years of tax returns (if you were required to file) before we can file your bankruptcy. Why?

Well, let’s say you have regular income and want to do a Chapter 13 filing to make a payment plan for your debts over 3 years.  One of the requirements in the bankruptcy code says you have to file all tax returns for all taxable periods ending during the 4-year period ending on the date of the filing of the petition?  Huh?

Basically you have to have filed your last 4 years of tax returns before filing the bankruptcy.  What happens if you don’t?  Well, your Chapter 13 trustee can hold open the meeting of creditors to file those returns.  If they aren’t filed, the case can be dismissed and your bankruptcy will tank.  That would be bad.

The code also says all debtors have to provide certain tax returns to the trustee before the meeting of creditors.  If you don’t do that, the trustee can’t do their job and conduct the meeting.  Your case could be dismissed and you won’t get the benefit of the hard work, fees, and other documents you’ve already invested in the case.

Not only that, but if you never file your tax returns, the debt you might owe from those past returns can’t be discharged.  Think about that – you might owe tax debt from 2007 or 2008 that could be discharged this year if the taxes were filed in a certain time frame.  By not filing, you’re denying yourself a chance to eliminate that debt!

Tax returns are important pieces of information that lets your attorneys do their job of asking questions and let the trustees do their job in administering cases.  Unless you have a good excuse for not filing (such as only having social security income or not having any job in the year that the returns would have been filed), you should always file those returns.  If you owe the money, we can talk about how you might be able to pay it back or eliminate it.  But until that’s done, you’re only hurting yourself by refusing to file.

If you have questions about discharging or repaying taxes in bankruptcy, reach out to us.  Lakelaw will help go over your paperwork with you to make the most of your bankruptcy debt elimination or repayment plan.   Call 847-249-9100 or 262-694-7300 in Wisconsin, or e-mail us , but most of all, get those taxes filed and copies to us!


Can Non-Citizens and International Corporations File Bankruptcy in the United States?

Posted by Carrie Zuniga on April 8th, 2014 in Bankruptcy, Business Bankruptcy, , ,

America is still a magnet to people from all over the world. People come to America both legally and illegally. Chicagoland has one of the broadest immigrant and first-generation populations in America. Chicago is also a magnet for many corporations with international headquarters. Many corporations and individuals find their way to Chicago from Mexico, China, Puerto Rico, Ukraine, and Poland, just to mention a few. Unfortunately, some fall on hard financial times. The individual or company then confronts a few difficult questions. Does a bankruptcy case need to be filed? Where can the case be filed? What assets, if any, are protected from creditors? These questions lead to another important question, can a non-U.S. Citizen file bankruptcy in the United States? Bankruptcy, and the rights and protections provided for in the Bankruptcy Code, are a part of a citizen’s Constitutional rights. Article I, Section 8, Clause 4 of the Constitution of the United States provides “The Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”

Fortunately, unauthorized immigrants and legal non-U.S. Citizen residents can access this important Constitutional right. According to section 109 of the Bankruptcy Code, “only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under this title.” A debtor is not defined by their immigration or citizenship status. Despite the clarity of this section of the Bankruptcy Code, this area of Bankruptcy law is difficult to fully comprehend. You will need to consult a bankruptcy attorney to fully understand the impact a bankruptcy filing will have on your assets and liabilities. If you live in Chicago, but do not have a green card or worker’s visa, you can still be eligible for bankruptcy protection in Chicago.

Many non-U.S. Citizens can take advantage of Chapter 15 to the Bankruptcy Code. Chapter 15 assists debtors with assets and liabilities in multiple countries to file a main bankruptcy case in one country (e.g., the country of their residence) and then initiate ancillary proceedings in other countries where the debtor has assets. Chapter 15 of the Bankruptcy Code and the European Union’s Regulation on Insolvency are based in large part on the Model Law on Cross-Border Insolvency issued by United Nations Commission on International Trade Law (UNICTRAL). Many countries around the world have endorsed or entered laws or regulations identical to, or substantially similar to the Model Law. If you are a citizen of one of the countries that has adopted or endorsed the UNICTRAL’s Model Law, you will have an easier time identifying and forcing your creditors to recognize and accept your international bankruptcy filing.


Why Is My Bankruptcy Lawyer Asking For All Of These Documents?

Posted by Ryan Blay on April 8th, 2014 in Bankruptcy, Bankruptcy procedures

Lawyers don’t like paperwork.  If we had a choice, we’d have a paper-free office.  But in our jobs, we need to be ready to show the right papers to the right people to be effective.

The Bankruptcy code says we have to give the trustee – the person overseeing a bankruptcy case – documents.  We ask for these papers because we can’t give a proper financial story without proof.  Paystubs to show a pay cut.  Tax returns to show a change in income from year to year.  Bank statements to prove that there were no unusual transfers or purchases before bankruptcy.  They let us do our job to tell your story.

We successfully represented our clients Jack and Janet in a Chapter 7 bankruptcy.  As part of the process, we had to ask for bank statements, mortgage documents, car titles, pay stubs, and tax returns.  The US Trustee, the government body that oversees bankruptcies, had a question about our client’s income situation.  They asked for more bank statements, pay stubs, and the most recent tax returns.  We gave them to the office and they determined we were right – our clients deserved a Chapter 7 discharge.  They got it.

Finding and keeping track of paperwork can be annoying.  But it may mean the difference between a bankruptcy being successful and being a nightmare.  Lakelaw will help go over your paperwork with you and work to make your bankruptcy successful.   Call 847-249-9100 or 262-694-7300 in Wisconsin, or e-mail us to see what we can do to make sure you have all the financial documents you need for a successful bankruptcy filing.


Say No to Debt Consolidation – Consider Chapter 13 Bankruptcy

Posted by emsc on April 3rd, 2014 in Bankruptcy, Chapter 13

Most people want to pay their debts. Many people think that filing bankruptcy is wrong. Some think that filing a bankruptcy case is dishonorable. And quite a few people think that bankruptcy is immoral. For these people, the hope of debt consolidation sounds like a good alternative. Read here why we think that chapter 13 is the best debt consolidation deal ever.
 

We agree with Dave Ramsey says:

Debt consolidation is nothing more than a “con” because you think you’ve done something about the debt problem. The debt is still there, as are the habits that caused it – you just moved it! You can’t borrow your way out of debt. You can’t get out of a hole by digging out the bottom. True debt help is not quick or easy.

Read what Dave Ramsey says about Debt Consolidation here

 

We agree with Illinois Attorney General Lisa Madigan who says this about Debt Settlement Firms:

These companies are unfairly luring financially strapped consumers with misleading claims that they can effectively eliminate consumers’ debt,” Madigan said. “The reality is that, after enrolling in a debt settlement program, consumers too often find themselves in even worse financial straits. It’s time to clean up this industry so that people struggling to pay off their debts aren’t being sold a false bill of goods.

Read what Illinois Attorney General Lisa Madigan says about Debt Consolidation here

Read what Wisconsin Attorney General J.B. Van Hollen is doing about Debt Settlement Firms in Chicago here

 

Here is what Lakelaw believes about Debt Consolidation:

  • Most debt consolidation plans or debt consolidation schemes are frauds
  • Most debt consolidation agencies and debt settlement companies will rip you off
  • Credit card companies will accept lump sum cash settlements from you if they are convinced that you can’t collect your debt. If you have some cash or can get some from a friend or relative, the experienced Kenosha bankruptcy lawyers at Lakelaw will help you with this on an hourly basis
  • If you are saving money to pay debts to credit card companies after you are in default under a “debt consolidation program”, interest will grow on your credit card debt at the default rate. In chapter 13 bankruptcy, you can pay your debts over a period up to 5 years without interest in almost every ccase.
  • When credit card companies get judgments against you, they will freeze your bank accounts and take 15% of your wages in Illinois and 25% of your wages in Wisconsin. In chapter 13 bankruptcy, wage garnishment stops. Bank accounts are unfrozen. You make one affordable payment each month to your chapter 13 trustee and have no further worries.
  • If you have some ready cash available, and just a few debts, our experienced Lake County bankruptcy attorneys can help you negotiate a settlement with your credit card companies. We’ve done this successfully in many cases. We do this on an hourly basis, not on a commission like debt settlement firms.

 

Frequently Asked Questions About Debt Consolidation

Isn’t it better to consolidate my debts than to file bankruptcy?
If you can afford to pay your debts off over time without filing bankruptcy, yes, it’s better. But if you think you can pay your debts off through a debt consolidation service, think again. You’ll be paying them a hefty fee. Creditors won’t necessarily stop calling you. You’ll actually be in default with creditors you are not paying. Your interest rates will go up a lot. Your credit limits will go down a lot. You’ll have a hard time paying your debts down.

Isn’t it true that I can pay my credit card debts off for pennies on a dollar?
You are liable for 100% of your credit card debt plus interest unless the credit card company forgives the debt or you get a bankruptcy discharge. If the credit card company forgives some of your debt, it can issue you a tax form called a Form 1099C. The debt which was cancelled is like found money to you – income – and you might have to pay income tax on it. You won’t have to do that in bankruptcy.

Can I settle my credit card debts without bankruptcy?
Credit card companies insist on knowing that they can’t do any better from you. When your back is to the wall, credit card companies may ask for a lump sum payment from you. However, the amount they will ask for is frequently more than you can pay.

Should I pay my credit card debts with money from my IRA or 401k plan?
We think this is a terrible idea. Not only are you losing money which you need for retirement, you may have to pay penalties on this for early withdrawal. Even worse, you will have to pay income tax on the money you take out. The banks could never touch your IRA or 401k – it’s exempt from creditors. Keep it that way!

What if I get my mom or dad to help me pay the debts?
That is very nice of mom or dad. And if there’s not that much involved, credit card companies might be willing to take less than 100% in order to settle. The banks won’t take less than 100% unless they know that there’s no way they will get paid more.

What happens to my credit record if I settle my debts for less than I owe?
There will be a notation on your credit report that the debts were legally satisfied for less than the full amount. This is considered somewhat derogatory and might make it harder for you to get credit in the future. However, this report is not as derogatory as bankruptcy or charge off?

What is Charge Off?
Charge off means that the credit card company has given up on collecting from you. It will probably sell your debt to another creditor who may try to collect the debt in the future. Just because the debt is charged off doesn’t mean you’re not still liable for it.

The credit card debt is now 6 years old – am I still liable?
You are still liable for a 6 year old credit card debt. It can still appear on your credit report. However, nobody can legally collect on it if you raise the defense that it is barred by the Statute of Limitations. After 7 years, the debt can no longer appear on your credit report.


What Happens If My Bankruptcy is Dismissed and I Have to Re-File?

Posted by Ryan Blay on March 28th, 2014 in Bankruptcy, Bankruptcy procedures, Chapter 13, Chapter 7

In baseball, a batter gets three strikes, then he’s out.  It doesn’t quite work that way with bankruptcy.  Take our clients Aaron and Wendy.  They filed a Chapter 13 bankruptcy and their bankruptcy was dismissed.  They weren’t able for different reasons to make their plan payments for the complete plan, and wanted to start over.

Aaron and Wendy could have filed a Chapter 13 bankruptcy again (and they did).  However, the bankruptcy code puts in rules when someone has two bankruptcies open in the same year.  These rules affect the “automatic stay”, the protection you get when filing for bankruptcy.  This is the protection that tells creditors to stop foreclosures, wage garnishments, car repossessions, and lawsuits.

The automatic stay is good for the full bankruptcy unless the court gives permission to a creditor to get around it.  So if you stop paying on your mortgage for four months, the mortgage company can ask the court to let them out of the protection so they can foreclose.

But when one case was dismissed (or discharged and finalized), then another case is filed, the automatic stay protection only lasts for 30 days.  To make it stay for the whole bankruptcy again, you have to ask the judge to continue or extend it and explain why.

To get what we wanted in court, we had to do what the courts ask when we need to ask for something – we filed a motion.  We filed the motion for Wendy and Aaron to continue their bankruptcy protection throughout their new bankruptcy.  In our explanation, we included their statements about why their last case didn’t work but this case would be more successful.  Sometimes that is enough for the court to agree and for creditors to stay quiet and not object or fight it.

Sometimes the judge wants to hear an explanation in person.  That’s what happened here.  The judge listened and agreed that this case was filed in good faith and not simply another way to stall and avoid creditors.  So she agreed and now our clients are protected again.

If you’ve had one case (or more) dismissed and want to re-file, you’ll want a lawyer to explain how to keep that automatic stay and protect yourself from creditors.  Call 847-249-9100 or 262-694-7300 in Wisconsin, or e-mail us to see what we can do to make sure you keep the automatic stay in a new bankruptcy filing.


Credit Unions and Cross-Collateralization in Bankruptcy

Posted by Carrie Zuniga on March 27th, 2014 in Bankruptcy, Chapter 13, Chapter 7, ,

Clients want to file a chapter 7 bankruptcy to clear up credit card debt and get a fresh start. Credit union customers are shocked to learn that their credit cards with a local credit union are tied together with their car loans at the same credit union.

Credit unions frequently use “cross-collateralization.” This means that your car or house not only secures your car note or house mortgage but also your credit card debts at the credit union. Normally, when you borrow a large sum of money from a bank, you give a lien on the item known as collateral. So if you borrow money to purchase a vehicle, the lender keeps the title top the car until you pay off the loan. If you default on the car loan, then the bank could enforce its lien by taking it back.

A loan with a credit union to purchase a vehicle works differently with a cross-collateralization clause. This provision has the effect of making your vehicle the collateral for all present and future loans with the credit union. So if you have a vehicle loan with your credit union and a credit card, the credit union can take back your car even if you just stop paying on the credit card.

In bankruptcy, the credit union has two secured loans; the vehicle loan and the credit card. That means, if you want to keep the vehicle in a Chapter 7 bankruptcy, you have to reaffirm the vehicle loan AND the credit card. If you don’t reaffirm the credit card, then the credit union could repossess the vehicle. You could still get rid of personal liability on both the credit card and vehicle loan, but would no longer have a car to drive.

One alternative to this dilemma is to redeem the vehicle. The Bankruptcy Code lets debtors in Chapter 7 pay the secured creditor the fair market value of the vehicle in one lump sum – the present value of the car. This is a good option when the vehicle is worth much less than the total amount of debt securing the vehicle. If the vehicle is newer this is likely not a good option. Most debtors in bankruptcy will not have enough cash to make a lump sum payment. Sometimes we can actually refinance the debt using a tool called “redemption financing”.

If the vehicle loan was signed more than 910 days before the bankruptcy was filed, you can file a Chapter 13 and propose to pay the fair market value of the vehicle over the term of the plan, either 3 or 5 years, at a little over the current prime interest rate. The remaining balance on the vehicle loan and credit card would be paid a small percent of the balance as an unsecured creditor in the plan.

As with most things in bankruptcy, it is helpful to have an attorney guide you through the process and determine the best course of action for dealing with the credit union. To avoid this situation in the future, I always advise my clients not to have more than one loan, whether secured or unsecured, with a credit union.


Chapter 13 Bankruptcy can save your house from an Illinois Tax Deed or an Illinois Tax Sale

Posted by David Leibowitz on March 4th, 2014 in Bankruptcy, Bankruptcy and Taxes, Chapter 13, Illinois, , , ,

So many of our bankruptcy clients fear losing their house to mortgage foreclosure.  We have done a good job of teaching our clients that chapter 13 bankruptcy can save your home from mortgage foreclosure. You can catch up with payments you haven’t made to your mortgage company.

In Illinois, you can lose your house even if you’ve made every one of your mortgage payments? How can this be? If you don’t pay every cent of the taxes you are obligated to pay on your house, a tax purchaser can literally pay those taxes for you. Then you must pay back the tax purchaser through the county clerk with very hefty interest charges. If you don’t do this, the tax purchase may pay taxes on your house for you for several years after that. You may not even know that this is happening. At the end, the tax purchaser has the right to be paid in full with very high interest for the taxes paid on your behalf for all those years. You might not have enough money to pay these taxes back all at once. So the tax buyer then has the right to get a deed to your house – literally stealing it from you even if you have a great deal of equity. This frequently happens to older people or people not fully conversant in English. They simply don’t understand the complicated legal papers they receive about tax sales.

This is where Lakelaw comes to your rescue. You can file chapter 13 bankruptcy to save your house. You can pay back all those taxes, maybe with substantially reduced interest, over a period of up to five years. All you have to do is to file the chapter 13 case before the property “goes to deed.”

Bankruptcy Judge Janet Baer wrote a very important decision about this issue in the United States Bankruptcy Court for the Northern District of Illinois here in Chicago. These cases called Romious and Watts established the very important principal that a tax sale was more like a lien until the actual deed in favor of the tax purchaser was recorded. Because the tax sale position is so secure, the tax buyer has nothing to lose as long as the owner is making payments under the chapter 13 plan. You can find the Romius-Watts decision here:

So if you are facing a tax deed, don’t despair.  Call David Leibowitz at Lakelaw, 847 249 9100 and get the help you need immediately.


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