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Posted by emsc on August 11th, 2014 in Chapter 7
We had a client come in worried last week about her home. She was already thinking of filing for Chapter 7 bankruptcy, but was concerned what would happen if she tried for a short sale.
Melissa, as we’ll call her, had debt like credit cards, loans, and medical bills that would be eliminated in the bankruptcy. What she didn’t know is that she could also get rid of her mortgage debt if she was willing to give up her home.
If she agreed to a short sale, she would have to find a willing buyer, get the lender to agree to it, and leave the property sooner. Yes, she might be given cash to leave early, but that would be swallowed up by the costs of moving. Plus, the cost of renting would be about the same as her mortgage, so she wouldn’t be saving any money from all her hard work.
If she filed for bankruptcy and stopped payment on her mortgage, the mortgage company would either have to wait until the bankruptcy was over or get permission from the bankruptcy court to start or resume a foreclosure filing. This is true in Illinois and in Wisconsin, which use courts to handle foreclosure cases. That means that the mortgage company would have to get a court judgment, then wait a few months to sell the house, then get that sale approved. During that time, Melissa could discharge her debt in bankruptcy, stay in the house and save money. That sounds like a win-win for her.
If bankruptcy is in your future and have an underwater house you no longer want, talk to your bankruptcy lawyers at Lakelaw to discuss how to take care of everything in bankruptcy. Please call us at Lakelaw (847-249-9100 in Illinois, 262-694-7300 in Wisconsin) or visit our website at www.lakelaw.com to arrange a free consultation.
The answer, as always, is “It depends”. Take two recent examples we’ve seen.
The first person is a woman in her mid-40s. She’s placed about $30,000 into her company’s 401K plan over the last 10 years. Because she’s recently divorced, she’s struggled with bills and is short a few hundred dollars every month. She’s relied on credit cards to keep her afloat and creditors are now demanding payment. She owes about $15,000 in medical and credit card bills, a $1000 payday loan, and has a $400 per month car loan.
The second is a married couple who together earn $65,000. They have two kids and one is about to enter college. They have nearly $100,000 in credit card debts because of a nasty accident and a failed small business. The husband has $20,000 in his company’s 403(b) plan and his wife has $40,000 in her 401k and $2,000 in a small IRA.
Every case is different, but when we first meet with these folks, we mention a few things:
1. ERISA qualified retirement accounts (401K plans, 403(b) plans, similar accounts) are exempt from creditors. That means judgment creditors can’t touch it and your bankruptcy trustee can’t make you liquidate your retirement to get a discharge in bankruptcy.
2. Figure how much you take home now, then deduct the cost of a loan repayment (or two, or three) to determine what you’d live off of.
3. IRAs may be entirely exempt depending on when they were opened and how much was recently funded.
4. Calculate how long it took to build up the retirement plan and how long it would take to start over or pay off a loan – remember, you won’t be working forever.
In both cases, the debtors described may be eligible for a Chapter 7 bankruptcy filing, in which they’d eliminate the debt as well as keep the retirement accounts. Bankruptcy is never something anyone’s thrilled to do, but it protects your future and allows you a chance for a fresh start, instead of borrowing from one place to pay another.
Before pulling money from a retirement account, call us at Lakelaw to set up a free consultation and discuss what the best way to handle your debt is for you and your family.
Posted by emsc on June 11th, 2014 in Bankruptcy
Your creditors can’t simply take money out of your paycheck just because they feel like it. They need a reason, and there are only a few reasons these companies can do that. One of those reasons is a judgment from a court that rules the debt is valid and that a wage garnishment is allowed. The second reason is that you agree to it. A voluntary wage assignment is one of those agreements where you sign a contract that allows the creditor to take funds from your paycheck by sending a request to your job’s payroll.
We don’t recommend you ever agree to this, because this takes your money and allows them to be paid even if you can’t afford it and you fall behind in other debt. But if you fall behind in your payments on a loan and a company sends a notice to your employer and to you to trigger the wage assignment, here’s a few things you need to know:
1. A bankruptcy will eliminate the debt and prevent the lender from using a wage assignment to take your money.
2. You can revoke a wage assignment because it’s voluntary. There’s no such thing as slavery or voluntary servitude allowed anymore. But to stop a company from taking your hard earned money, you should always send a letter by certified or registered mail to the company and keep a copy for yourself to get to payroll.
3. If you do stop the wage assignment, prepare for a lawsuit to collect the money from you and force a wage garnishment.
If you’re in trouble and have a voluntary wage assignment threatening your pay, please call us at Lakelaw to discuss how to help you out.
Courts in all states have procedures set to allow creditors to get judgments against the debtors who owe them money. Then there are steps to allow those creditors to find out what the debtors owe and let the creditors take anything that is not exempted (or protected).
In Wisconsin, creditors mail an Order for Financial Disclosure form to the debtors and insist on getting the form filled out and returned in about two weeks. If they don’t receive it, they can order the debtor to appear at a hearing in front of a court commissioner. If the debtor skips the meeting, they can be held in contempt and even jailed for not showing and answering!
In Illinois, the process is called a Citation to Discover Assets. It involves the same steps – paperwork and sometimes a hearing where a debtor has to testify about what they owe and what they believe is protected.
This process allows creditors to take what they can and it’s hard to stop or delay. But filing for bankruptcy can put an end to the process. We’ve helped multiple couples and individuals recently in Illinois and Wisconsin by filing bankruptcies to propose eliminating or repaying the debt that caused the citation or financial disclosures. By not going to these hearings, our clients can focus on their businesses or jobs and proceeding through bankruptcy to get a discharge instead of taking time off to show up and submit paperwork they’d have to give to us to prepare their bankruptcies.
Bankruptcy allows creditors to be paid or eliminated in an orderly fashion. Citation hearings and post-judgment paperwork are meant to help judgment creditors cut to the front of the line and take money and property faster than what most people can comfortably pay. Let us talk about using bankruptcy as a way to stop these creditors and put yourself back in control of your debts. Call Lakelaw at 847-249-9100 or 262-694-7300 in Wisconsin to set up a free consultation for a better financial future.
Posted by emsc on May 15th, 2014 in Chapter 13
The first thing someone researching chapter 13 learns is that, fundamentally, it’s a payment plan. Someone seeking chapter 13 is required to pay in their “projected disposable income” for the “applicable commitment period,” at the end of which, the remaining unpaid balance of debt is discharged. Put succinctly, you pay the right amount for the right amount of time, and then you’re free.
There are a few different ways to pay. In Chicago, for all the obvious reasons, the Trustees never accept personal checks, walk-in payments, or cash. You, in chapter 13, may make your payments the bad way or the good way.
The bad way is to go to a bank or a currency exchange and buy a certified instrument, like a cashier’s check or a money order. Then you need to mail the funds to lockbox at the Trustee’s bank, in Memphis. And you need to do that, over and over, until the plan completes. Hundreds of dollars in costs – to say nothing of your time.
The good way is via payroll deduction. Just like how you may have taxes and insurance coming out of your paycheck, you have the right to request that your employer withhold the plan payments on your behalf. Your employer is tasked with the responsibility of sending them. You, in that event, have absolutely nothing to worry about. In the event that your employer fails to make the payments, it’s your attorney’s responsibility to coordinate with the employer to ensure the success of your plan.
Sometimes people get nervous. They’re afraid that their employer will resent the administrative hassle, they’re afraid that their bankruptcy filing will be considered a “negative” in their personnel file. But it just doesn’t work like that – it’s a matter of minutes for a payroll professional to send a check to your Trustee – they’re already cutting checks to the government, insurance providers, domestic support recipients, retirement plan administrators, and so forth. You, odds are, wouldn’t even be the first at your job to have a chapter 13 plan payment made through payroll deduction; you’re just the first one you know of.
And someone’s current employer is absolutely forbidden from discriminating against someone because that person filed a bankruptcy (even if that person discharges debt that they owe to their employer!).
The statistics bear out that payroll deduction works. At the outset, it shows the Court that you’re trying to make your plan work – it just looks good. For two, it’s easier for you: You can set it and forget it, and sleep easy knowing that your payments are going to get made. And finally, it just gets you into good habits. Once your plan succeeds, that’s bonus money for you. You’ll have years of budgeting under your belt, and so every paycheck will be a bonus paycheck. You’ll be able to save the money, at long last, to make your dreams come true.
Next week, we’ll tell a quick little story about a payroll control mishap – what happened when the debtors’ (former) attorney miscalculated how much to deduct, leading to their case’s being dismissed – and how Lakelaw stepped in and saved the day.
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.
Posted by Jonathan Brand on April 17th, 2014 in Bankruptcy Sales, Business Bankruptcy, Chapter 11, Chapter 7 Trustee, 363 Sales, bankruptcy litigation, Chapter 11, Credit Bidding, Fisker, Free Lance-Star, litigation, Philadelphia Newspapers, Radlax
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 (“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.
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.
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!
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.
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