Blogs

5 years 6 months ago

            Sorry about not posting in a while – the start of the fall semester and the submission of job applications has taken considerable time.
            I would like to discuss a topic that is, admittedly, not as common an issue for most debtors as those I have previously discussed, but still interesting in my view.  Broadly speaking, this is the ability to discharge a debt under section 523(a)(6), which is for “willful and malicious injury by the debtor to another entity or to the property of another entity.”  Narrowly speaking, I will be discussing this in the context of medical malpractice debts. 
            Speaking very generally, a debtor can discharge the equivalent of a negligent tort, but not something that would amount to an intentional tort.  A tort is, broadly speaking, a wrongdoing for which the law provides a remedy in a civil case.  To illustrate in a simple example, if I am driving my car, drop my cell phone on the floor, and I accidentally run over a person who later sues me, I can probably discharge this debt in bankruptcy.  I use this example rather than drunk driving, as that presents somewhat different rules under 523(a)(9) – I’ll write more on that in a later post.  If I am driving my car, see a person whom I dislike, put the pedal to the metal and purposely hit that person who later sues me, bankruptcy will not relieve me of this duty (as it shouldn’t).
            A special situation, then, arises for physicians and other medical professionals.  The leading case on this subject was issued by the Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57 (1998).  In a unanimous opinion issued by Justice Ginsburg, the Court held that a debt arising from a medical malpractice judgment for negligent or reckless conduct was dischargeable in bankruptcy.  Despite its unanimity among the Court members, I recall feeling great skepticism the first time I read the case, and still find its reasoning somewhat questionable.  I have chosen to write about this case, in part, because when I was a staffer on an academic journal last year, I realized that I wanted to write about this subject at a point when it was too late to make such a decision.  But I digress. 
            In Geiger, the patient had a foot injury.  She sought treatment from Dr. Geiger, who prescribed her oral penicillin in order to reduce the risk of infection, despite his knowledge that intravenous penicillin would have been more effective.  Dr. Geiger then left for a trip, and upon his return, overruled the decision of other physicians to transfer the patient to an infectious disease specialist, as he believed the infection was less severe.  Dr. Geiger was wrong, and the patient eventually had to have her right leg amputated below the knee. 
            The patient then sued Dr. Geiger, and obtained a judgment for about $355,000.  Dr. Geiger, having had his wages garnished as a result of his lack of malpractice insurance, then filed for bankruptcy.  The Bankruptcy Court for the Eastern District of Missouri did not allow this debt to be discharged, holding that it Dr. Geiger’s actions were below prevailing medical standards, and so amounted to “willful and malicious” injury in 523(a)(6).  The District Court agreed. The U.S. Court of Appeals for the Eighth Circuit reversed, holding that the exemption from discharge is confined to actions amounting to an intentional tort, and allowed the discharge.
            The Supreme Court agreed to hear the case, and affirmed the Eighth Circuit’s decision to allow the discharge.  The Court interpreted 523(a)(6) to mean that the exception from discharge is limited to acts done with the intent to cause injury.  Applying the statute to mean that all acts done intentionally which cause injury was too broad of a standard for the Court.  It went on to say that intentional torts “generally require that the actor intend ‘the consequences of an act,’ not simply ‘the act itself.’”
            I don’t take issue with the reasoning in general.  The result in the case of medical malpractice debts in particular seems inequitable to me, though.  Why not hold professionals, such as physicians, to a higher standard?  Dr. Geiger, without malpractice insurance (which he probably should have had), decided to practice medicine in a manner that he knew was less effective.  The patient alleged that this was simply a cost-cutting measure.  The result for the patient was that she had a good portion of her leg amputated, and yet did not receive any compensation from her physician who was, by all accounts, negligent.  To me, a physician such as Dr. Geiger should have known better than to practice medicine in this manner, whether it was for cost-cutting or not.  Generally in tort law, physicians and other professionals are held to a higher standard of care than the average person.  To me, it only makes sense for this special standard of care to translate to a special exception for discharge in bankruptcy as well.  Otherwise, the higher standard of care may be reduced to a lack of meaning should the physician file for bankruptcy.
            The Court’s decision was well-reasoned.  The Bankruptcy Code, then as today, does not provide an exception of discharge for medical malpractice debts.  Near the end of the Court’s opinion, Justice Ginsburg writes that although the Court declines to make a policy exception for discharge for medical malpractice debts, “Congress, of course, may so decide.  But unless and until Congress makes such a decision, we must follow the current direction § 523(a)(6).”  It’s in Congress’s hands to fix what I perceive as an inequitable loophole.  I’m not getting my hopes up.
            I expect to write again next week on a topic which applies to (nearly) all individual debtors: state exemptions from the bankruptcy estate.  I’ll focus on my state of Virginia, as it has some interesting provisions.  Thanks for reading.
-JP


5 years 6 months ago

If you are considering filing for bankruptcy you have, no doubt, considered a number of the positive effects of filing for bankruptcy. To name a few: filing for bankruptcy can reduce or eliminate unsecured debt obligations, can provide peace of mind, and can get a debtor back on track financially. However, bankruptcy is not a [...]


5 years 6 months ago

This has been a long time coming. The first post on a blog meant to educate the public on bankruptcy matters and keep bankruptcy professionals up to date on hot issues within the wonderful (and not so wonderful) world of bankruptcy.
For starters, I simply want to say welcome. And nothing says “welcome” like a listing of public sources that may help you find your path towards financial recovery.
Before I post some really helpful links, I must disclaim a few things.  I am in no way a lawyer (yet!) nor am I providing legal advice in violation of any professional code of ethics (California or American Bar Association). Think of me as a legal secretary guiding you to other sources that MAY be able to give you direct legal advice about your specific situation. Comments I make regarding any articles posted, are only that–General comments and opinions.  And with that, hopefully the links below may be helpful. Please check back to this first post for updated links as I will add more links over time.
Links For Consumers, Lawyers and Judges
American Bankruptcy Institute:  This is the Mecca of all things bankruptcy. Consumers, lawyers and bankruptcy judges use ABI as the go-to place for publications, events, news, statistics, Pro-bono Locators, and live webinars.
ABI Charts and Graphs:  ABI also provide charts ranging from frequency of bankruptcy filings, mortgage delinquency trends, housing and real estate trends.
Links For Consumers Re: Pro-Bono and Affordable Solutions For Financial Recovery (Emphasis on Southern California)
Orange County(Ca) Legal Aid Society Hotline:  Low income Orange County residents facing the prospect of filing bankruptcy may call this hotline to determine eligibility to be provided with pro-bono legal representation or guidance for your Chapter 7 bankruptcy. This hotline may schedule an in person appointment with an attorney for free if you are eligible. The personnel here are incredibly friendly and very experienced.
OC Legal Aid Society: Legal Genie Bankruptcy Forms and Legal Advice:  If OC residents do not qualify for free legal representation yet are still low income individuals who cannot afford an attorney, Legal Aid provides a do it yourself website with forms and access to attorneys for advice during a do-it-yourself process for a nominal fee.
Orange County Public Law Center Bankruptcy Clinic:  Another resource for low income OC residents to seek pro-bono legal representation through the potential Chapter 7 bankruptcy. The Public Law Center also represents (although rarely) low income consumer creditors.
Links For Attorneys and Judges
ABI Volo Project:  This is a service for practicing attorneys and judges lead by a community of fellow attorneys providing 24 hour updates on game changing bankruptcy Circuit Courts of Appeal decisions directly to your email or phone.
Other Areas of Law Such as Immigration and Taxes as it Relates to Bankruptcy: 
FicaroLaw News and Resource Center:  This is the hub website for news and resources involving Immigration, Real Estate and Foreclosure, Tax and Bankruptcy.


3 years 9 months ago

This has been a long time coming. The first post on a blog meant to educate the public on bankruptcy matters and keep bankruptcy professionals up to date on hot issues within the wonderful (and not so wonderful) world of bankruptcy.
For starters, I simply want to say welcome. And nothing says “welcome” like a listing of public sources that may help you find your path towards financial recovery.
Before I post some really helpful links, I must disclaim a few things.  I am in no way a lawyer (yet!) nor am I providing legal advice in violation of any professional code of ethics (California or American Bar Association). Think of me as a legal secretary guiding you to other sources that MAY be able to give you direct legal advice about your specific situation. Comments I make regarding any articles posted, are only that–General comments and opinions.  And with that, hopefully the links below may be helpful. Please check back to this first post for updated links as I will add more links over time.
Links For Consumers, Lawyers and Judges
American Bankruptcy Institute:  This is the Mecca of all things bankruptcy. Consumers, lawyers and bankruptcy judges use ABI as the go-to place for publications, events, news, statistics, Pro-bono Locators, and live webinars.
ABI Charts and Graphs:  ABI also provide charts ranging from frequency of bankruptcy filings, mortgage delinquency trends, housing and real estate trends.
Links For Consumers Re: Pro-Bono and Affordable Solutions For Financial Recovery (Emphasis on Southern California)
Orange County(Ca) Legal Aid Society Hotline:  Low income Orange County residents facing the prospect of filing bankruptcy may call this hotline to determine eligibility to be provided with pro-bono legal representation or guidance for your Chapter 7 bankruptcy. This hotline may schedule an in person appointment with an attorney for free if you are eligible. The personnel here are incredibly friendly and very experienced.
OC Legal Aid Society: Legal Genie Bankruptcy Forms and Legal Advice:  If OC residents do not qualify for free legal representation yet are still low income individuals who cannot afford an attorney, Legal Aid provides a do it yourself website with forms and access to attorneys for advice during a do-it-yourself process for a nominal fee.
Orange County Public Law Center Bankruptcy Clinic:  Another resource for low income OC residents to seek pro-bono legal representation through the potential Chapter 7 bankruptcy. The Public Law Center also represents (although rarely) low income consumer creditors.
Links For Attorneys and Judges
ABI Volo Project:  This is a service for practicing attorneys and judges lead by a community of fellow attorneys providing 24 hour updates on game changing bankruptcy Circuit Courts of Appeal decisions directly to your email or phone.
Other Areas of Law Such as Immigration and Taxes as it Relates to Bankruptcy: 
FicaroLaw News and Resource Center:  This is the hub website for news and resources involving Immigration, Real Estate and Foreclosure, Tax and Bankruptcy.


5 years 6 months ago

Pretty Girl in CarThe Nebraska Bankruptcy Court has issued a new opinion extending greater protection to vehicles owned by unemployed debtors.  In the case of Angelita Quintero decided on August 22, 2012, the Court expanded the “Tool of the Trade” exemption provided under Neb. Rev. Stat 25-1556(4) which allows up to $2,400 of protection for a vehicle used in a business or used by a debtor to commute to and from work. The Court extended the protection to debtors who are temporarily unemployed and who intend on returning to the workforce.

"In liberally construing the exemption statutes, this court has been receptive to the statutory interpretation that a debtor need not be currently employed in order to claim a tool of the trade exemption in a vehicle, as long as there is evidence the debtor is only temporarily unemployed as of the petition date and intends to resume working."

In addition to the Tool of the Trade exemption, Nebraska debtors are also able to protect the equity of their vehicle under the “Wildcard” exemption Neb.  Rev. Stat. 25-1552 which protects up to $2,500 of any personal property.  Thus, debtors are able to combine the Wildcard and Tool of the Trade Exemption and protect up to $4,900 of equity in their vehicle. 
The Quintero decision will help many unemployed debtors who were facing the grim prospect of losing their vehicle while searching for a new job.


5 years 6 months ago

Filing for bankruptcy for many is the most difficult decision they will ever have to make.  It is something completely foreign and new to them.  Due to the fact that bankruptcy has such a stigma many people don't discuss it and don’t really understand what bankruptcy is all about.  If you take the step in the direction of bankruptcy remembersave your car from repossession, Chapter 13 & repossession that if you are in a Chapter 13 you will need Court approval for certain things. This does not mean that you are not allowed to make purchases nor are you  being controlled by the Chapter 13 Trustee. It is necessary, however, for the Court and your creditors to know when you are making a major purchase such a vehicle or a home.  This also applies if you are opting to sell your home or vehicle.  Although it is not thesave home from foreclosure, chapter 13 save home from foreclosure most ideal situation and it can be a bit of a hassle saving your home and/or getting your financial situation under control; it is completely worth the extra work that being in a Chapter 13 may require of you.   When looking into bankruptcy,  knowing you are going to be committed to a  Chapter 13 plan for 3 to 5 years may be a bit overwhelming, however, you will be able to continue living your life.  Depending on your circumstances it may just take a little extra work and communication with your attorney. 


5 years 3 months ago

It is clear that a tax debt is not dischargeable in bankruptcy if a return for the year in question is not filed. See 11 USC § 523 (a)(1)(B)(i). However, The 2 Year Rule provides that taxes due based upon a late filed return (filed after its due date and any extensions) are dischargeable if... Read More »


5 years 6 months ago

Court case not the way Whataburger likes it – Houston Chronicle.
As H. Anthony Hervol, a San Antonio lawyer who defends individuals in debt-collection disputes says, Whataburger’s action is “very unusual.”
It is not usual for an employer to sue a collection agency on behalf of an employee who is receiving harassing debt communications at work.  Usually, the employee is left to deal with the harassment on their own and hope that they don’t lose their job as a result of the repeated phone calls.  However, Whataburger has sued NCO for what it calls harrassing phone calls which interfered with their employees’ execution of duties.
Seeking unspecified damages, the lawsuit claims NCO placed over 50 calls to the restaurant’s toll free number in an attempt to collect a debt from an unnamed employee.  Twenty seven of those calls were made after NCO was sent a cease and desist letter.
Consumers who are behind on their debts are consistently pelted with phone calls to their home, employers, neighbors and family members.  The Fair Debt Collections Act (FDCPA) was designed to protect consumers from creditor harassment, however, many creditors blatantly ignore or gleefully push the boundaries of the FDCPA.  If you can prove that a creditor violated the provisions of the Act you may sue the creditor for damages.  Keep in mind, however, that the FDCPA only applies to debt collectors who work for collection agencies and not debt collectors that are employed by the original creditor.  Once you have made the determination that the calls are coming from a collector and not the original creditor, here are 3 steps to take.
1.  Determine Whether the Communication is Abusive.  Calling a third-party and asking them to pass along a message (neighbor’s, family members, etc.), calling you at work after being told you cannot take creditor’s calls there and failing to cease and desist after a written request are all impermissible communications under FDCPA.  Threatening you with arrest, war dialing (repeated and continuous calls), abusive messages and profanity are impermissible as well.
2.  Send a Cease and Desist Letter.  Notify the creditor in writing to stop the abusive contact.  Send certified mail with return receipt requested so that the creditor has to sign for it and you have documentation their received it.  Always keep a copy of any letters you send to them in case you need to use them in court.  The letter should state that you want the creditor to cease all communications with you.  Under the law, the creditor must stop calling you to collect the debt, however, they can contact you to let you know what steps the creditor will take if the debt is not paid.  This is where the next step comes in handy.
3.  Keep A Communications Log.  Make notes of dates and times of the calls and who the calls were made to.  If legal in your state, record the calls.  Save all voice mails and cell phone bills which prove the communication.  This can be used as evidence if the creditor does not comply with your cease and desist letter.  If you seek to sue the collector, an attorney will want to see this as well as a copy of the cease and desist letter.
 


5 years 6 months ago

The Sixth Circuit Court of Appeals recently held that Michigan's bankruptcy-specific exemption statute is constitutional under the Bankruptcy Clause and Supremacy Clause of the United States Constitution.
Historically, Michigan has allowed bankruptcy debtors to use the federal exemptions under 11 U.S.C. § 522(d), the general state exemptions under M.C.L. § 600.6023, or the state exemptions pursuant to M.C.L. § 600.5451 that are specific to debtors in bankruptcy (prior to it being declared unconstitutional).
Michigan is one of a few states that has a bankruptcy-specific exemption statute available to bankruptcy debtors only.  In the Western District of Michigan, the constitutionality of the bankruptcy-specific scheme was called into doubt by the Hon. James D. Gregg in In re Pontius, 421 B.R. 814 (Bankr. W.D. Mich. 2009) and the Hon. Jeffrey R. Hughes in In re Wallace, 347 B.R. 626 (Bankr. W.D. Mich. 2006).  Contrarily, the Hon. Scott W. Dales, held that the bankruptcy-scheme was constitutional in In re Schafer, 428 B.R. 720 (Bankr. W.D. Mich. 2010), pursuant to Sixth Circuit precedent and Congress' delegation of power to the states pursuant to 11 U.S.C. § 522(b) to create bankruptcy exemptions. Read More ›
Tags: 6th Circuit Court of Appeals


5 years 6 months ago

The Sixth Circuit Court of Appeals recently affirmed a decision of the United States District Court for the Southern District of Ohio based upon the District Court's holding that the automatic stay does not prevent the issuance of injunctive relief. Read More ›
Tags: 6th Circuit Court of Appeals


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