Blogs

6 years 1 month ago

Protecting personal injury settlement or award in California bankruptcyNo one ever wants to be involved in an accident, but unfortunately, they happen all the time. As the medical bills and other expenses start to pile up because of an injury and/or inability to work, many seek relief by filing for bankruptcy to manage all of the debts that they have accumulated during this period. In fact, medical bills and debts arising from medical treatments not fully covered by insurance are among the chief reasons our San Jose bankruptcy attorneys see people needing to file Chapter 7 or 13.
What happens to the money one might receive from a personal injury award or settlement if he files a bankruptcy case? As I’ve written before, upon filing bankruptcy, every interest in any kind of asset that the debtor might have becomes part of the “bankruptcy estate” under 11 U.S.C. §541(a). This includes claims or causes of action arising from a personal injury and the right to receive awards or settlements from such an injury. To be clear, even if one has not yet filed a personal injury lawsuit before filing a bankruptcy case, he must still disclose to the bankruptcy trustee that he may have a claim. In other words, even if one hasn’t yet received a penny for his injury, he cannot hide the fact that he may in the future receive such an award. It is not good enough to simply delay the filing of his personal injury lawsuit so that the bankruptcy trustee and creditors cannot get to any settlement proceeds. Concealing the fact that one had an injury and a reason to sue for it can still constitute fraud in bankruptcy.
Personal Injury Claims and Chapter 7 Bankruptcy
In a Chapter 7 bankruptcy case, any lawsuit one may have filed with a personal injury attorney, or any claim that one might have to file a such a lawsuit against another is considered to be an asset of the bankruptcy estate. If one files for bankruptcy in California, she is allowed to claim “exemptions” to protect certain assets or property she might own in order to keep at least a portion, and in many cases all of her assets. As a simple example, let’s say Sarah was rear-ended by another motorist, and she sues him in Santa Clara County Superior Court and receives a settlement of $25,000. Sarah needs to file for bankruptcy, however, because her debts far exceed this settlement, and she is out of work. So, Sarah files Chapter 7 bankruptcy in San Jose. Under California’s 703 or “wildcard” exemptions, she may exempt “a payment, not to exceed twenty-four thousand sixty dollars ($24,060), on account of personal bodily injury of the debtor or an individual of whom the debtor is a dependent.” Hence, this exemption will protect nearly all of your personal injury settlement. The remaining amount of $940 could then be exempted using any unused portion of the “wildcard” exemption ($25,340 as of January 1, 2013). In this example, Sarah will be able to keep all of her personal injury settlement. Also, in some cases, even if the debtor does not have sufficient exemptions to protect a possible future personal injury settlement or award, the Chapter 7 bankruptcy trustee may abandon the debtor’s claim if he or she thinks that the settlement will be greatly reduced after the debtor’s personal injury attorney’s fees and medical liens are paid out.
Personal Injury Claims and Chapter 13 Bankruptcy
In a Chapter 13 Bankruptcy case, the debtor does not have to worry about giving up any assets. Chapter 13 is primarily a debt repayment plan where the debtor pays a portion of his debts over a 3 or 5 year period. A personal injury settlement received can—if it exceeds the amount that would have been exempt in a Chapter 7 case—cause the overall amount that the debtor must pay through his Chapter 13 plan to increase under the “liquidation test” applicable in Chapter 13 bankruptcy and depending on whether he is likely to need the settlement to pay for his support and any future medical treatment.
In any case, it is critical for anyone considering filing bankruptcy who may have a personal injury claim that he inform his bankruptcy attorney about this claim so that the bankruptcy and personal injury attorneys can work closely together in order to preserve and protect as much of any settlement as possible.
Our San Jose bankruptcy attorneys always offer free initial consultations to Bay Area residents considering filing for bankruptcy protection. Just pick up the phone and give us a call.


6 years 1 month ago

conviction for bankruptcy fraudEarlier this week, the 11th Circuit Court of Appeals issued a ruling in the bankruptcy fraud case of United States v. Turner. Here are the relevant facts:Mr. Turner owned a parcel of rental property that was destroyed by fire. His insurance carrier issued a check to him for $40,000. Two days after receiving this check, Mr. Turner filed Chapter 13. Three days after filing, Turner deposited the check, used $11,500 to pay off the mortgage on the destroyed property and kept the rest of the money.Several weeks after these financial transactions, Mr. Turner filed his bankruptcy schedules. He did not list receipt of the $40,000 check. He also claimed that the balance on the rental property mortgage was $50,000, rather than $11,500.The bankruptcy trustee discovered these inaccuracies and moved to convert Mr. Turner’s case to Chapter 7, which the court approved. Three years later the United States attorney filed an action against Turner for bankruptcy fraud for making false statements and he was convicted. The 11th Circuit agreed to consider Turner’s appeal.The appellate court denied Mr. Turner’s appeal and he is now serving a 27 month sentence in federal prison.This case is interesting on several levels:

  • the United States attorney will pursue bankruptcy fraud cases arising out of Chapter 13
  • the amount of the fraud here was, relatively speaking, quite small at only $40,000, yet it resulted in a sentence of over two years
  • Turner was indicted for fraud more than two years after he originally filed

It would be interesting to know what Mr. Turner was thinking when he engaged in this fraud. He scheduled the mortgage lender for the destroyed property, which means that he should have realized that they would receive notice of his filing and that they would file a proof of claim. Further, Mr. Turner paid off the mortgage lender for the destroyed property – he did not try to keep all of the cash he received.Perhaps Mr. Turner thought that the amount at issue – $40,000 – was so small given the millions of dollars passing through the bankruptcy system that no one would even notice or care, and that if he was caught he could simply offer to turn over the money. If this is what he was thinking, his conclusions were mistaken.Here is the message I am getting from the Turner case:

  • when the Bankruptcy Code requires various disclosures, you must disclose. These are not optional. This is why, by the way, I insist that every bankruptcy client in my office must complete a written intake questionnaire and that any significant updates or corrections to the information disclosed must be in writing.
  • the United States trustee takes bankruptcy fraud seriously – even when relatively small dollars are involved in a consumer Chapter 13 case
  • penalties are harsh in bankruptcy fraud cases. Not only did Mr. Turner lose his freedom for more than two years, I suspect that he spent many thousands of dollars trying to defend himself as well

Thanks to my colleague Scott Riddle, publisher of the excellent Georgia Bankruptcy blog, for highlighting the Turner case on his Twitter feed.The post Chapter 13 Bankruptcy Fraud Case Reaches 11th Circuit Court of Appeals: Why You Should Care appeared first on theBKBlog.


6 years 1 month ago

Creditors Should Not Call Creditors should not be calling you after your bankruptcy case is filed.  In some cases, creditors just have not received the required notice under the Bankruptcy Code.  In some cases, notice has gone to the proper address, however, there is a collection firm involved now who did not have knowledge of+ Read MoreThe post Chicago Bankruptcy Attorney David Siegel Advises That During A Bankruptcy Case, Creditors Should Not Be Calling appeared first on David M. Siegel.


6 years 1 month ago

Here at Shenwick & Associates, our practice is limited to bankruptcy and real estate. So the intersection of the two, distressed real estate, is our specialty. Many homeowners are suffering from the triple threat of stagnant wages (or unemployment), depreciating home prices and burdensome monthly mortgage payments. Some homeowners have been fortunate enough to have their lenders restructure their mortgages. And others (who are not so fortunate) have had their homes foreclosed on, and have had some or all of their mortgage debt forgiven.

But, as with most good things in life, there's a catch. Under § 108 of the Internal Revenue Code, debt relief is considered "relief of indebtedness income" and subject to taxation.

In 2007, The Mortgage Forgiveness Debt Relief Act of 2007 (the "Act") was enacted, which generally allows taxpayers to exclude up to $2 million (jointly) or $1 million (if single or married and filing separately) of income from the discharge of debt on their principal residence. Both debt reduced through mortgage restructuring and mortgage debt forgiven in connection with a foreclosure qualify for the relief.

The Act applied to debt forgiven in calendar years 2007 through 2012, and was due to expire on Dec. 31, 2012. As part of the negotiations to avoid the "fiscal cliff," Congress extended its provisions to debt forgiven in 2013.

The Act doesn't apply if the discharge is due to services performed for the lender or any other reason not directly related to a decline in the home's value or the taxpayer's financial condition. The Act also doesn't apply to credit card debt or non–residential property. A Chapter 7 bankruptcy filing can discharge debt owed to taxing authorities due to relief of indebtedness income.

For strategies on dealing with distressed real estate or avoiding the potential pitfalls associated with relief of indebtedness income, please contact Jim Shenwick.


6 years 1 month ago

This is the case of Michael Greer who comes from Park Ridge, Illinois seeking advice concerning debt.  Mr. Greer has never filed for bankruptcy before.  He is not a homeowner and he is currently renting from an individual on a month-to-month basis.  He has a 2004 Lincoln Navigator that’s worth approximately $12,000 and he owes+ Read MoreThe post Bankruptcy Attorney Recommends Chapter 7 For Illinois Man appeared first on David M. Siegel.


6 years 1 month ago

An Overview of Chapter 7 Bankruptcy in Florida This article is part of a series on the various state exemption laws that can change the outcome of a bankruptcy case, especially as it pertains to keeping your property. There are many misunderstandings about bankruptcy, one of which is the idea that because the Bankruptcy Code [...]The post Chapter 7 Bankruptcy in Florida: What You Need to Know appeared first on National Bankruptcy Forum.


6 years 1 month ago

Your credit report says loads about you. Are you a dependable bill payer? Does the amount you have outstanding in bills mean you might not be a good credit risk?  Have you been sued?  Useful information for creditors seeking to potentially extend credit to you.  So, don’t you want the information on your credit report to be accurate?  It may not be accurate, according to a recent government study.
The Federal Trade Commission’s report found one in four consumers had errors on their credit reports that might affect their credit scores.  These errors could either prevent them from getting credit or raise the rates the consumers paid for credit.

These are eye-opening numbers for American consumers,” said Howard Shelanski, Director of the FTC’s Bureau of Economics.  “The results of this first-of-its-kind study make it clear that consumers should check their credit reports regularly.  If they don’t, they are potentially putting their pocketbooks at risk.

It is very important that you check your credit report at least once a year to identify and correct inaccuracies.  The Federal Trade Commission gives consumers the ability to get a free credit report once a year from all three credit reporting agencies.  Don’t be misled by those “free credit report” sites. The FTC is the only place to get a true free credit report.  The web address is annualcreditreport.com.  Once you get a copy of your credit report, then you can start correcting errors.  According to the FTC report, the credit score for one in 20 consumers increased 25 points following disputing incorrect credit entries.  This can be the difference it takes to qualify for a home or car loan.
In FTC Study, Five Percent of Consumers Had Errors on Their Credit Reports That Could Result in Less Favorable Terms for Loans.
 


6 years 1 month ago

Your credit report says loads about you. Are you a dependable bill payer? Does the amount you have outstanding in bills mean you might not be a good credit risk?  Have you been sued?  Useful information for creditors seeking to potentially extend credit to you.  So, don’t you want the information on your credit report to be accurate?  It may not be accurate, according to a recent government study.
The Federal Trade Commission’s report found one in four consumers had errors on their credit reports that might affect their credit scores.  These errors could either prevent them from getting credit or raise the rates the consumers paid for credit.

These are eye-opening numbers for American consumers,” said Howard Shelanski, Director of the FTC’s Bureau of Economics.  “The results of this first-of-its-kind study make it clear that consumers should check their credit reports regularly.  If they don’t, they are potentially putting their pocketbooks at risk.

It is very important that you check your credit report at least once a year to identify and correct inaccuracies.  The Federal Trade Commission gives consumers the ability to get a free credit report once a year from all three credit reporting agencies.  Don’t be misled by those “free credit report” sites. The FTC is the only place to get a true free credit report.  The web address is annualcreditreport.com.  Once you get a copy of your credit report, then you can start correcting errors.  According to the FTC report, the credit score for one in 20 consumers increased 25 points following disputing incorrect credit entries.  This can be the difference it takes to qualify for a home or car loan.
In FTC Study, Five Percent of Consumers Had Errors on Their Credit Reports That Could Result in Less Favorable Terms for Loans.
 


6 years 1 month ago

A Creditor’s Right to Wage Garnishment in Florida Hinges on Whether the Debtor Supports a Family and How Much They Earn Yes, Florida law does allow creditors to garnish your wages. However, a creditors right to garnishment, and the amount they’re entitled to garnish, hinges on whether you qualify as a “head of family” under [...]The post Can Creditors Garnish My Wages in Florida? appeared first on National Bankruptcy Forum.


6 years 1 month ago

When you are struggling with your bills and in need of a bankruptcy attorney, where do you turn first?  For most people, they will search the internet to gather information.  There is a wealth of information available regarding the different Chapters under the bankruptcy code as well as a plethora of attorneys ready, willing and+ Read MoreThe post Choosing The Right Bankruptcy Attorney In Illinois appeared first on David M. Siegel.


Pages