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The Nebraska Bankruptcy Court has ruled that a $40,913 federal student loan owed by a 67 year old debtor whose sole source of income was from Social Security retirement in the amount of $830 per month should be discharged. In re Grimes, Case #06-81303 (2013). In coming to its decision, the court applied the “Totality of the Circumstances Test” focusing on three factors:
- The debtor’s past, present and reasonably reliable future financial resources;
- A calculation of the debtor’s reasonable and necessary living expense; and
- All other relevant facts and circumstances.
The court noted that the debtor’s efforts to lower the student loan payment by applying for available Income Based Repayment (IBR) plans is a relevant factor in assessing whether the student loans place an undue burden on the debtor, but in this case the Court found that such payment options are merely one factor to consider and is not decisive. In this case, the debtor’s income was below the Federal Poverty Guidelines and thus no payment would be required under an IBR plan.
The most difficult defense raised by federal student loan creditors when seeking a discharge of student loans is the availability of the income-based payment plans. Debtors seeking to discharge student loans in bankruptcy face an uphill battle unless they avail themselves of these programs prior to seeking a student loan hardship discharge in bankruptcy. However, senior debtors living on a fixed retirement income may not have the same opportunities of younger debtors to secure supplemental employment and it appears that the Court is willing to look beyond the IBR defense when those programs appear futile.
Modifications in Family LawQ: What is a motion to modify?
A: A request made to the court to change an existing court order because of a change in circumstances.Q: What types of orders can be modified?
A: Divisions of property and debt from divorce usually cannot be modified. Spousal support also known as alimony or sometimes can sometimes be modified depending in the original order. Child support and child custody can be modified if there is a change in circumstances.Q: What is a “change in circumstances” for the purpose of a modification of child support?
A: In order to request a modification for child support there must be a change in circumstances that is substantial and continuous. For example, if the paying party loses their job which they were working fulltime and immediately requests a modification the court will look at whether the change is substantial. Yes, going from fulltime employment to no employment is substantial. However, is it continuous? Will the paying party be able to quickly find work? Will they be making the same amount of money? Your attorney may advise the paying party to wait on filing a motion to modify until either they have found new employment at a lower pay rate or until a long enough period of time has passed that the court will be satisfied that the change is continuous.Q: What is a change for the purposes of a modification of child custody?
A: Child custody can and should be modified whenever there is a change such that the current court order is no longer what is in the best interests of the children. An extreme example would be that Parent A is awarded primary physical custody where Parent A has the children Monday through Friday and every other weekend. Parent B has the children every other weekend. However, Parent A is suddenly incarcerated and therefore unable to care for the children. Instead of Parent A’s friends/family taking care of the children during Parent A’s time with the children, it may be in the children’s best interest to spend more time with Parent B. In this circumstance, the best interests of the children have changed therefore justifying a modification by the court.Q: Are there any risks in modifying a court order?
A: Yes. If you want to modify support only, that opens the door for other modifications. You may only want to modify the child support amount however the other parent may also bring up custody and modify the parenting plan as part of the modification.
Both prospective and current clients often times ask similar questions. In an attempt to answer some of the most frequent asked questions that are asked of our firm, we are creating this article to help answer so of those so frequently asked questions. Some of the most commonly asked questions specific to a case require legal advice and therefore will not be listed here. For legal advice on your specific situation you should contact our office for a consultation. Below are general answers and therefore may not apply directly to your scenario. Q: How much is this going to cost me? Can I make payments on fees?A: Not shockingly, the answer is it depends. It depends on what type of case it is and more importantly and whether the matters are contested or simply being run through the court as a matter of procedure and finality. Q: What information is needed in order to file a dissolution or modification?A: Personal information such as name, address, contact information, social security number, financial information, personal information for any parties to be involved in the matter. For modifications we will also need the original judgment as well as any other modifications. For modifications, change is circumstance or substantial and continuous change may be required to be shown to the court so documentation to support such change will likely be necessary. Q: Can’t my attorney get me everything that I want in my divorce or modification case? If I get a good lawyer I will get everything right?A: Not necessarily. Likely in your initial meeting with the attorney, they will go over what your expectations and goals are in the case and what ultimate outcome you are seeking. They will likely also go over which of these expectations are reasonable and which may need some further consideration. For example, you are getting divorced and your husband has had no allegations of abuse and no other reason that the court would find him to be unfit. You want sole physical and legal custody with only supervised visits with father. This is likely an unreasonable expectation. Your attorney will hopefully help guide your expectations into more reasonable and likely outcomes. Remember that the court looks at the best interests of the children. It is unlikely that the best interest of the children is to have only limited and supervised visits with a father whom has shown no signs of abuse or other harmful behavior.
It is getting towards the time of the year when people start thinking about how much money they might receive for their tax refunds early next year. If a potential debtor is thinking about this, then a Chapter 7 or Chapter 13 Trustee will also likely be thinking about it. […]
It is getting towards the time of the year when people start thinking about how much money they might receive for their tax refunds early next year. If a potential debtor is thinking about this, then a Chapter 7 or Chapter 13 Trustee will also likely be thinking about it. […]
If you have spoken to anyone before about bankruptcy, they probably told you that they received a “discharge” of their debts. I have noticed when I am meeting with clients for the first time and I let them know they are eligible for a discharge, often I get a look […]
If you have spoken to anyone before about bankruptcy, they probably told you that they received a “discharge” of their debts. I have noticed when I am meeting with clients for the first time and I let them know they are eligible for a discharge, often I get a look […]
Miami Bankruptcy Lawyer - Chapter 13 and 7 Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. Office: 1221 Brickell Ave., 9th Fl., Miami, Florida. Tel.: (305) 891-4055. www.bublicklaw.com
Florida Statutes provide for certain limited exemptions of life insurance.
Cash Surrender Value
Florida Statutes section 222.14 provides that the "cash surrender value" of life insurance "issued" upon the lives of citizens or resident of Florida is exempt from the claims of
- creditors of the person whose life is so insured (some courts hold insured must also be the owner of policy)
- creditors of the beneficiary
unless the policy was effected for the creditor's benefit.
Florida courts broadly construe the required nature of the "form" of the "cash surrender value" to include any cash value that may be obtained either by means of negotiation or pursuant to an agreement for surrendering the policy. One court held that this exemption applied to a certificate of deposit purchased with the cash surrender proceeds of the life insurance policy.
This statutory exemption is subject to disallowance if created by the conversion of non-exempt funds into exempt assets in contravention of Florida Statute sections 222.29 and 222.30.
Proceeds of Life Insurance - Exempt from Claims of Insured but Not Claims of Beneficiary
Florida Statutes section 222.13 provides for the exemption of the proceeds of life insurance from the creditors of the "insured" upon the death of a person residing in Florida. Courts hold that this statute provides for the exemption from the claims of creditors of the insured but not from the claims of the creditors of the beneficiary. This means that the proceeds are available to the claims of the beneficiary's creditors. Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
With $1 trillion in outstanding student loans, the landscape is looking just like the mortgage mess that brought down the economy.
Take a report to Congress from the Consumer Financial Protection Bureau and add research from the Federal Reserve Bank of St. Louis showing a stunning growth in student loans.
Combine together and add a dose of securitization and a stagnant job market for college graduates.
Now you’ve got a powder keg just waiting to explode, wrecking the economy.
Student loans threaten the financial future of younger Americans. At the same time, a college degree in unattainable for most without student loans.
Is there a better way?
What’s working with student loans, and what’s not?
What can be done?
The St. Louis Fed is holding a half-day symposium to explore the reality and future of student loans on Monday, November 18, 2013.
The keynote speaker will be Rohit Chopra, who oversees student loans on behalf of the Consumer Financial Protection Bureau in his role as assistant director and student loan ombudsman.
A nominal cost of $50 per participant ($15 for students) is required for attendance. Early registration is encouraged as space is limited, and advance registration is required by Wednesday, Nov. 13, 2013. Registration includes lunch and a reception.
Presented by the Center for Household Financial Stability at the Federal Reserve Bank of St. Louis, in partnership with the Center for Social Development at Washington University in St. Louis.
If you’re in the St. Louis area, consider going down and letting your voice be heard. Click here for details.
Earl Simmons, aka hip hop rapper DMX, filed for Chapter 11 bankruptcy protection back in July of this year. But it seems that actions related to his filing are now being questioned by federal authorities. Along with a new lawsuit against the rapper, his legal team has their hands full in trying to get the [...]
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