Introduction Of Debtor This is the bankruptcy case study for Ms. R., who resides in Berwyn, Illinois. She is here to seek bankruptcy protection and to eliminate the struggle that she has been in for some time regarding debt. To determine whether or not she can file and get the relief needed, we need to+ Read More
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Wells Fargo is asking courts to dismiss lawsuits brought by customers for damages caused by fake accounts created by bank employees because of arbitration clauses signed by those customers when they opened bank accounts.
A typical arbitration clause contained in the fine print of bank account agreements looks like this:
Binding Arbitration. You and Wells Fargo Financial National Bank (the “Bank”), including the Bank’s assignees, agents, employees, officers, directors, shareholders, parent companies, subsidiaries, affiliates, predecessors and successors, agree that if a Dispute (as defined below) arises between you and the Bank, upon demand by either you or the Bank, the Dispute shall be resolved by the following arbitration process. However, the Bank shall not initiate an arbitration to collect a consumer debt, but reserves the right to arbitrate all other disputes with its consumer customers. A “Dispute” is any unresolved disagreement between you and the Bank. It includes any disagreement relating in any way to your Credit Card Account (“Account”) or related services. It includes claims based on broken promises or contracts, torts, or other wrongful actions. It also includes statutory, common law and equitable claims. A Dispute also includes any disagreements about the meaning or application of this Arbitration Agreement. This Arbitration Agreement shall survive the payment or closure of your Account. You understand and agree that you and the Bank are waiving the right to a jury trial or trial before a judge in a public court. As the sole exception to this Arbitration Agreement, you and the Bank retain the right to pursue in small claims court any Dispute that is within that court’s jurisdiction. If either you or the Bank fails to submit to binding arbitration following lawful demand, the party so failing bears all costs and expenses incurred by the other in compelling arbitration.
And the sad news is that some judges are actually going along with the bank and dismissing cases.
Okay, we get it. Arbitration clauses serve a legitimate purpose of reducing the cost of litigation between banks and its customers. We can envision that such a provision may help reduce the cost of solving routine issues such as how interest is computed or when late fees apply or other issues regarding the terms of the contract.
But to apply the arbitration clause to fraudulent or even criminal wrongdoing committed by the bank seems to go way beyond what a reasonably prudent customer would anticipate. Sure, I may expect the arbitration to cover nerdy issues of interest and fees, but do you mean to tell me that customer that is physically assaulted by a bank employee has agreed to binding arbitration when they open up a lousy $10 savings account? If a rogue group of Wells Fargo collection agents take my daughter hostage until the account is paid, have a agreed to arbitrate this wrongdoing?
My expectation of an arbitration clause is that its application is limited to accounts that I voluntarily open with the bank. The notion that I have somehow given Wells Fargo the right to arbitrate the murder my family or to open fake accounts without my knowledge is absurd. The terms of the arbitration agreement are far too vague to permit that interpretation, and even if the terms were clear such an agreement clearly violates public policy and should not be enforced.
Despite some success the bank has achieved in cases so far, I suspect that courts will be reluctant to allow such a vast application of the arbitration agreements going forward.
Wells Fargo still doesn’t get it. I’m hoping the courts do.
Creditors Collection Tool As a wage earner, nobody wants to see their wages garnished. Whenever a person is working for wages and they have an outstanding monetary judgment against them, there is always the risk and concern that a wage garnishment summons could be forthcoming. Judgment creditors and their lawyers have access to information which+ Read More
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The biggest money pit I see when I interview prospects with financial problems is the car — always. I have even seen people paying half of their disposable income in car payments (plus insurance, tolls, repairs, maintenance, tickets and all the other costs we don’t often consider). It’s insane. Here’s a post from Jay Miles in Quora.com, in answer to a young man thinking about buying a Tesla, that says it perfectly:
“No, don’t buy a car. Cars don’t make money. They’re depreciating assets. You already have a wife, so there’s no need to show off.
Mathematically, it doesn’t make sense to ever spend more than $20,000 on a vehicle. Despite being a cool Tesla, it won’t hold its residual value any more than another flashy brand.
Beginning December 1, 2016, Proposed Federal Bankruptcy Rule, Fee and Form Changes will take effect. The bulk of the changes will relate to litigation and notice provisions. There will not be significant changes to the debtor’s bar. There will be a $1.00 increase in filing fees for amending the creditor list or notice list. The+ Read More
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Here at Shenwick & Associates, many of our clients have concerns about tax debts. However, our bankruptcy practice is over 20 years old, and in our experience, tax debts are more easily resolved than student loan debts.
In order to discharge taxes in bankruptcy, the taxpayer must show that:
- There is no fraudulent or willful evasion of the tax debt.
- The tax debt is at least three years old.
- A return for the tax debt was filed at least two years ago.
- The income tax debt was assessed by the IRS at least 240 days ago.
Other options outside of bankruptcy also exist for resolving tax debts:
- Currently Not Collectible (CNC) Status. If the IRS agrees that you can't both pay your taxes and your reasonable living expenses, it may place your account in CNC (hardship) status. While your account is in CNC status, the IRS will not generally engage in collection activity (for example, it won't levy on your assets and income). However, the IRS will still charge interest and penalties to your account, and may keep your refunds and apply them to your debt.
Before the IRS will place your account in CNC status, it may ask you to file any delinquent tax returns.
If you request CNC status, the IRS may ask you to provide financial information, including your income and expenses, and whether you can sell any assets or get a loan.
If your account is placed in CNC status, during the time it can collect the debt the IRS may review your income annually to see if your situation has improved. Generally, the IRS can attempt to collect your taxes up to 10 years from the date they were assessed, though the 10-year period is suspended in certain cases. The time the suspension is in effect will extend the time the IRS has to collect the tax.
- Offer In Compromise (OIC). An OIC allows you to settle your tax debt for less than the full amount you owe. It may be an option if you can't pay your tax liability, or doing so creates a financial hardship. The IRS considers your unique set of facts and circumstances:
Ability to pay;
The IRS generally approves an OIC when the amount offered represents the most it can expect to collect within a reasonable period of time. However, to be eligible for an OIC, taxpayers must be current with all filing and payment requirements.
- Installment Agreement. If you're financially unable to pay your tax debt immediately, you can make monthly payments through an installment agreement. Before applying for any payment agreement, you must file all required tax returns.
Tax cases and their resolution are challenging, even for experienced practitioners. For advice on how to deal with your tax debts, please contact Jim Shenwick.
Do you know where you want to be in 20 years? What does that picture look like?
When facing debt problems, it is very important to envision what you want your financial life to look like in 20 years. Because when you fail to have a clear vision of what the ideal life looks like, you tend to repeat the present problem. Sure, you may get out of today’s financial mess, but then old habits return and the problem resumes.
When facing that life changing debt struggle, it is very important to write down very specific financial goals. Very specific goals.
- I want my home paid off by age 55.
- I will save up 6-months of wages in a savings account.
- I want to take my grandchildren to the beach every summer until I die.
- I want to quit my full-time job by age 60 and then work part-time and volunteer more.
- I want to travel while I’m still young and healthy.
- I want my student loans paid off before my kids start college.
Why is this important? Because knowing where you want to end up instructs you on what you need to do today.
Want to loose 10 pounds by summer? Then start walking 1 mile today, 2 miles tomorrow, and eat a healthy diet.
Want to pay off the home in 10 years? Well, you have 260 paychecks to get the job done if you are paid bi-weekly. So, how much a paycheck does it require? (Find out here.)
Want to take a 2nd honeymoon in Cancun, Mexico in 12 months? How much a paycheck does that cost?
See what just happened? Your long-term goal affects what you do now. That is why it is so important to set long-term financial goals. Without them, you lose track of how to spend that paycheck.
When deciding about whether to file bankruptcy, keeping those long-term goals in mind is important. Sure, you could opt for a debt repayment program and become debt free over 5 years, but will that undermine the long-term goal of paying off student loans or a mortgage?
Solving today’s temporary financial problem is only part of the analysis. Most people underestimate what they can accomplish over a long period of time. The difference between paying off a mortgage over 15 years instead of 30 years is usually about $100 per month. That’s really not much more, so why not do it? A lousy $20 investment per week in a 401(k) plan yields a substantial retirement. Eating 100 few calories per day results in substantial weight loss over a year.
Tell me where you want to be in 20 years and I’ll tell you what you need to do with your money today.
There is only one day in your life that you have power over money, and that day is payday. What you do or fail to do on payday determines whether you win or lose. Decide to win today.
The Bankruptcy Code grants a trustee (or a debtor in possession) certain “avoidance” powers to recover payments to creditors made shortly before a bankruptcy filing where the payment gave the creditor more than other, similarly situated, creditors would receive through the bankruptcy process.
In a recent case in the United States Bankruptcy Court for the Western District of Michigan (the “Court”), the Court considered whether a payment made by a Chapter 7 debtor to her son in advance of the debtor’s bankruptcy filing was “preferential” and thus subject to recovery by the Chapter 7 trustee. Read More ›
Tags: Chapter 7, Western District of Michigan
No Income Option I recently received an interesting call from young lady who was seeking bankruptcy protection to help with outstanding parking tickets. She had no income whatsoever, so she was not a candidate for chapter 13 bankruptcy which is the repayment plan over a 3 to 5 year period. However, she was interested in+ Read More
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