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Category: Chapter 13
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 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!
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.
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.
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.
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.
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.
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.
If you are filing for bankruptcy, either under chapter 7 or chapter 13, your income matters. Why? People who make more than the median income – the income more than 1/2 of the people make – are presumed to be abusing the system if they file a bankruptcy under chapter 7. For an individual, that’s around $40,000 and for a family of 4 that’s around $80,000. It’s better for most people to file chapter 7 than chapter 13 because in chapter 7, you are done with your bankruptcy in 4 months. In chapter 13, you pay more fees and you make monthly payments to a chapter 13 trustee toward payment of your debts for 5 years. This can be a good deal if you are trying to save property or catch up with mortgage arrears. It’s not such a good deal if you have a very little non-exempt property which you might lose in a chapter 7.
When you make more than the median income, we have to figure out if you overcome the presumption of abuse. We do that by analyzing your income and expenses under the government’s Means Test as adopted by the Bankruptcy Code.
Many of our clients are married. Frequently, one person in a marriage has debt and needs to file for bankruptcy but the other does not. Then what happens?
It’s not all that simple.
We have to figure out your projected disposable income. To figure this out, we need to know not only what you make and what your expenses are, we also need to know what your spouse makes and what your spouse’s expenses are. That’s because anything your spouse makes beyond your spouse’s own separate expenses are deemed to be available to you as disposable income to allow you to pay some of your debts. This additional disposable income might make a difference in determining (a) whether you are eligible to file a case under chapter 7 or (b) how much you’ll have to pay as a monthly payment if you have to file a case under chapter 13.
It might seem unfair that your spouse’s income must be considered if you are filing a bankruptcy case and your spouse is not. But Congress has spoken and we must help you obey the rules.
The good news is that if you file a bankruptcy case and your spouse does not, your bankruptcy case has no adverse impact on your spouse’s personal credit.
It’s complicated when one spouse files for bankruptcy and the other does not. Lakelaw’s board certified bankruptcy attorneys have great experience with complex cases like yours. Count on us to help you when you have tricky bankruptcy questions. Call Lakelaw in Chicago or Waukegan at 847 249 9100 or in Milwaukee or Kenosha at 262 694 7300.
At Lakelaw, we have filed a joint bankruptcy petition for a same-sex couple. We had a couple we’ll call Daniel and Anthony. The couple married in a state that permits same-sex marriage, since their home state, Wisconsin, does not. Still, we filed the bankruptcy for them as a couple instead of filing separate bankruptcy petitions and consolidating (linking them together). Thus far, the case has been a success and has met no objection from the Chapter 13 Trustee or United States Trustee.
With news this weekend that the Attorney General of the US will recognize same-sex marriage and expand the benefits for lawful same-sex marriages nationwide (link to http://www.cnn.com/2014/02/08/politics/holder-same-sex-marriage-rights/), this process will soon be even easier for thousands of same-sex couples in marriages from around the nation. .
Illinois is one of the 16 states that already recognizes same-sex marriage. So a joint bankruptcy petition for a lawfully married couple regardless of their sexual orientation should not be a problem, as long as the couple meets the other requirements of the chapter of bankruptcy they seek. It’s a good idea to speak with an attorney before filing to discuss those requirements from the bankruptcy code.
We predict more states, even those like Wisconsin that do not recognize gay marriage, will see many more joint bankruptcy petitions from gay and lesbian married couples. The new threshold question won’t be “are you in a marriage defined as a man and a woman?” but “is your marriage ‘lawful’?” As more and more states permit same-sex marriage, the answer that question will more and more be yes.
The changes don’t just impact bankruptcy. The changes mean that spouses in same sex marriage get federal survivorship benefits and don’t have to testify against one another in a criminal trial. But one of the biggest impacts will be the ability to go hand-in-hand toward financial relief by filing bankruptcy together.
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