Blogs

9 years 1 month ago

Written by: Robert DeMarco
Bankrupt Laws of England – The Middle Ages
Laws concerning the debtor and creditor relationship, however, began anew in the late Middle Ages. This societal shift, in the context of England, is explained below by the United States Supreme Court.

The nature of the population of England in feudal times [Middle Ages], develops the cause. The different counties of England were held by great lords; the greater part of the population were their villains; commerce hardly existed; contracts were infrequent. The principal contracts that existed were with the lords and their bailiffs, the leviers of their fines and amercements, receivers of their rents and money, and disbursers of their revenues.

Sturges v. Crowninshield, 17 U.S. 122, 140 (Wheat. 1819). The Court then continues, listing the first statutes enacted concerning imprisonment for debt.

In the year 1267, imprisonment for debt was first given against the bailiffs, by the statute of Marlbridge, 52 Hen. III., c. 23; Burgess 18, 19; F. N. B. Accompt, 117. The statute of Acton Burnel, 11 Edw. I., gave the first remedy to foreign merchants, by imprisonment, in 1283. The statute 13 Edw. I., c. 2, gave the same remedy against servants, bailiffs, chamberlains, and all manner of receivers. Burgess 24, 27. These instances show how imprisonment for debt first commenced, how few were at first included, and accounts for the non-existence of legal insolvency.

Sturges, 17 U.S. 122 at 140 -141.
As the Middle Ages waned and commerce increased it became clear that debt became necessary for the growth of society. “Trade cannot be carried on without mutual credit on both sides: the contracting of debt is therefore here not only justifiable, but necessary.” Blackstone, Commentaries, Bk. II, ch. xxxi, p. 474.
As the use of debt increased, England instituted a variety of laws concerning debt relief. Such laws evolved along two different fronts. One set of laws, commonly referred to as bankrupt laws, were directed to debtors engaged in business, whereas the other set of laws, referred to as insolvency laws, covered the remainder of debtors. Justice Blackstone explained:

[England allows] the benefit of the laws of bankruptcy to none but actual traders; since that set of men are, generally speaking, the only persons liable to accidental losses, and to an inability of paying their debts, without any fault of their own. If persons in other situations of life run in debt without the power of payment, they must take the consequences of their own indiscretion, even though they meet with sudden accidents that nay reduce their fortunes: for the law holds it to be an unjustifiable practice, for any person but a trader to encumber himself with debts of any considerable value. If a gentleman, or one in a liberal profession, at the time of contracting his debts, has a sufficient fund to pay them, the delay of payment is a species of dishonesty, and a temporary injustice to his creditor: and if, at such time, he has no sufficient fund, the dishonesty and injustice is the greater.

Blackstone, Commentaries, Bk. II, ch. xxxi, p. 473-4. Insolvency laws were nothing like the bankrupt laws. See infra.  For the most part the English laws on insolvency related to the nature, extent and duration of imprisonment. Insolvency laws were initiated in response to 19 Hen. VII, c. 9 (1503), “which gave like process in actions of the case and debt, as in trespass, [and] is the true basis of the right, or wrong, of general imprisonment.” Sturges, 17 U.S. 122 at 141; 19 Hen. VII., c. 9 (1503). The beginnings of insolvency laws began with the statute 8 Eliz., c. 2 (1566), which “restricted the right of imprisonment, and guard[ed] against its abuses.” Sturges, 17 U.S. 122 at 141; 8 Eliz., c. 2 (1566) (proof by declaration was required and costs were awarded the defendant for delay, discontinuance and nonsuit). Various proclamations issued over the years to follow, which proclamations were subsumed into 22 & 23 Car. II, c. 20 (1670).  Sturges, 17 U.S. 122 at 142. The 1670 Act was the first great regular insolvent act and “the model of all that follow; its provisions and language having been copied by the subsequent parliaments in England, and by our colonial legislatures, with almost unvarying exactness.” Id.
DATED:  July 5, 2013
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10 years 9 months ago

Disclose AssetsEveryone agrees that bankruptcy is a powerful financial tool that can help you obtain a  fresh start. Yet there continues to be myths, misconceptions, and misunderstandings about the purpose of bankruptcy and its related processes. A number of bankruptcy professionals who are familiar with such misconceptions can probably write a few books about reasons why [...]


10 years 9 months ago

cfpbThe Consumer Financial Protection Bureau is spending millions to get your credit records – without your permission.
You may have heard that the NSA is spying on everyone, collecting pretty much every scrap of data it can get. Cell phone records, emails, social media posts – the works. The guy who spilled the beans on that is in hiding, and the US is pretty keen on getting him back for a big-time trial.
Some say it’s illegal, others say it’s necessary to keep us safe from bad people who want to do bad things to us. I’m simply creeped out by it, but it would be terrific if the NSA would offer a backup and recovery service for my data as well.
The NSA exists for matters of national security, so it’s not out of the realm of possibility that this program – called PRISM, according to reports – exists.
But there’s also news about the federal consumer protection watchdog spying on us. Too bad not many people are talking about it.
Consumer Financial Protection Bureau Spy Program?
According to records received by Judicial Watch as a result of a Freedom of Information Act request, the Consumer Financial Protection Bureau has spent about $8 million of dollars collecting and analyzing Americans’ financial transactions.
Some of that data was collected without your knowledge.
There are contracts with credit reporting agencies and accounting firms to gather, store, and share credit card data.
There’s a contract for $2.9 million paid to Deloitte Consulting LLP for software instruction.
Indefinite Delivery, Indefinite Quantity
According to the documents obtained by Judicial Watch, there’s an “indefinite delivery, indefinite quantity” contract with Experian to track daily consumer habits.
The bureau’s stated objective is to acquire and maintain  a random, nationally-representative sample of credit information on consumers for use in a variety of policy research projects. According to Bank Credit News:

Additionally, the documents showed a contractual provision stipulating that a contractor would be able to obtain confidential, proprietary or personally identifiable information that the contractor “may be required to share…with additional government entities as directed by the Contracting Officer’s Representative.”

This sounds pretty bad to me, folks.
No Warrant, No Permissible Purpose
Usually, the government needs a warrant for any search and seizure – including information about you.
We’ve talked about how nosy neighbors can’t get your credit reports or related credit information. You need to have a permissible purpose.
Granted, the CFPB may be obtaining this information for a valid purpose. But without permission or a permissible purpose as defined by the Fair Credit Reporting Act, it’s not legal.
More to the point, your data may be shared with those additional government entities. I’m not sure what that means, but theoretically that means the US Department of Justice can get your credit card statements in connection with your bankruptcy filing. Or the IRS could do an impromptu audit of your tax returns without telling you.
Cash Is King?
I know cards are convenient, but the privacy-minded among us may do well to use cash for their purchases.
It doesn’t matter whether you’ve got anything to hide. Your data and information should be yours to control as you see fit.
Consumer Protection Watchdog Spies On You, Too was originally published on Consumer Help Central. If you're seeing this message on another site, it has been stolen and is being used without permission. That's illegal, a violation of copyright, and just plain awful.


9 years 1 month ago

Written by: Robert DeMarco
In the Beginning – The Roman Era
In the early days of the Roman Empire individual creditors were left to pursue their remedies by such means as the law or practice of the community might permit. Such laws were often quite severe in their application. For example, under the Roman law of the Twelve Tables, Table III, Execution of Judgment (c. 450 B.C.), creditors might, as a last resort, cut the debtors body into pieces, each of them taking his proportionate share (de debitore in partes secando). Johnson, Allan Chester, et al., Ancient Roman Statutes, 10 (Clyde Pharr ed., 1961). While Sir William Blackstone, in commenting upon this law, appears to cast some doubt upon its implementation, there can be no doubt that early Roman law offered little solace for the debtor. Blackstone, Commentaries, Bk. II, ch. xxxi, p. 472; see also, Ancient Roman Statutes, 14 n.25. In fact, prior to 326 B.C. the early Romans continued to enslave or kill debtors who defaulted upon their obligations. Brunstad, G. Eric, Jr., Bankruptcy and the Problems of Economic Futility: A theory on the Unique Role of Bankruptcy Law, 55 Bus. Law. 499, 514 n. 49 (2000).
During second century B.C., creditors obtained the right of venditio bonorum. Venditio bonorum permitted the creditor to petition the praetor (elected local magistrate) for an order authorizing the creditor to take possession of the debtor’s property in order to secure it from dissipation (rei servandae causa). Bankruptcy and the Problems of Economic Futility, 55 Bus. Law. 499, 514 n. 52. A public proclamation would then issue advising all of the debtor’s other creditors of the seizure. After adequate notice, a second praetorian order would issue to those creditors responding to the proclamation summoning them to a meeting the purpose of which was to elect a magister bonorum to supervise the estate’s liquidation. Id. The venditio bonorum brought about the infamia (shame or disgrace) of the debtor, did not discharge the debtor from any deficiency still owing after the sale of the estate, and did not prohibit personal execution (personal arrest). Id.
The harshness of the venditio bonorum was addressed by Augustus (ruler of Rome 31 B.C. – 14 A.D.) in the lex Iulia de bonis cedendis of 17 A.D.. The lex Iulia de bonis cedendis established the more forgiving procedure of cessio bonorum (the surrender of goods). Bankruptcy and the Problems of Economic Futility, 55 Bus. Law. 499, 514. Cessio bonorum permitted the insolvent debtor to voluntarily surrender his property to his creditors in satisfaction (in whole or in part) of his debts. Story, Commentaries, section 1108. The creditors sold the goods in satisfaction, pro tanto, of their claims. Bankruptcy and the Problems of Economic Futility, 55 Bus. Law. 499, 514 n. 50. The surrender of the goods did not procure the debtor a discharge, leaving the debtor liable for any deficiency. Id. The debtor was, however, permitted to retain certain necessities and was not subject to personal execution or infamia. Id.
Unfortunately, all good things must come to an end. Rome could not and would not last forever. The fall of the Roman Empire occurred over a period of several hundred years and marks the beginning of the medieval period (approximately 5th through 15th centuries A.D.). As the Roman Empire gradually weakened, the Germanic tribes from the Scandinavian regions began to conquer. These Germanic tribes were uneducated, subject to tribal rule and barbarous in nature. They lived mainly by hunting and some crude farming and their laws were based upon tribal custom and superstition.
The Germanic invasions destroyed most commerce. Money almost went completely out of use. By the ninth century, most of western Europe was carved into large manor estates ruled by landlords and worked by poor peasants. Each manor was autonomous and supported almost entirely by the production of its inhabitants.
DATED: July 4, 2013
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4 years 5 months ago

Written by: Robert DeMarco
In the Beginning – The Roman Era
In the early days of the Roman Empire individual creditors were left to pursue their remedies by such means as the law or practice of the community might permit. Such laws were often quite severe in their application. For example, under the Roman law of the Twelve Tables, Table III, Execution of Judgment (c. 450 B.C.), creditors might, as a last resort, cut the debtors body into pieces, each of them taking his proportionate share (de debitore in partes secando). Johnson, Allan Chester, et al., Ancient Roman Statutes, 10 (Clyde Pharr ed., 1961). While Sir William Blackstone, in commenting upon this law, appears to cast some doubt upon its implementation, there can be no doubt that early Roman law offered little solace for the debtor. Blackstone, Commentaries, Bk. II, ch. xxxi, p. 472; see also, Ancient Roman Statutes, 14 n.25. In fact, prior to 326 B.C. the early Romans continued to enslave or kill debtors who defaulted upon their obligations. Brunstad, G. Eric, Jr., Bankruptcy and the Problems of Economic Futility: A theory on the Unique Role of Bankruptcy Law, 55 Bus. Law. 499, 514 n. 49 (2000).
During second century B.C., creditors obtained the right of venditio bonorum. Venditio bonorum permitted the creditor to petition the praetor (elected local magistrate) for an order authorizing the creditor to take possession of the debtor’s property in order to secure it from dissipation (rei servandae causa). Bankruptcy and the Problems of Economic Futility, 55 Bus. Law. 499, 514 n. 52. A public proclamation would then issue advising all of the debtor’s other creditors of the seizure. After adequate notice, a second praetorian order would issue to those creditors responding to the proclamation summoning them to a meeting the purpose of which was to elect a magister bonorum to supervise the estate’s liquidation. Id. The venditio bonorum brought about the infamia (shame or disgrace) of the debtor, did not discharge the debtor from any deficiency still owing after the sale of the estate, and did not prohibit personal execution (personal arrest). Id.
The harshness of the venditio bonorum was addressed by Augustus (ruler of Rome 31 B.C. – 14 A.D.) in the lex Iulia de bonis cedendis of 17 A.D.. The lex Iulia de bonis cedendis established the more forgiving procedure of cessio bonorum (the surrender of goods). Bankruptcy and the Problems of Economic Futility, 55 Bus. Law. 499, 514. Cessio bonorum permitted the insolvent debtor to voluntarily surrender his property to his creditors in satisfaction (in whole or in part) of his debts. Story, Commentaries, section 1108. The creditors sold the goods in satisfaction, pro tanto, of their claims. Bankruptcy and the Problems of Economic Futility, 55 Bus. Law. 499, 514 n. 50. The surrender of the goods did not procure the debtor a discharge, leaving the debtor liable for any deficiency. Id. The debtor was, however, permitted to retain certain necessities and was not subject to personal execution or infamia. Id.
Unfortunately, all good things must come to an end. Rome could not and would not last forever. The fall of the Roman Empire occurred over a period of several hundred years and marks the beginning of the medieval period (approximately 5th through 15th centuries A.D.). As the Roman Empire gradually weakened, the Germanic tribes from the Scandinavian regions began to conquer. These Germanic tribes were uneducated, subject to tribal rule and barbarous in nature. They lived mainly by hunting and some crude farming and their laws were based upon tribal custom and superstition.
The Germanic invasions destroyed most commerce. Money almost went completely out of use. By the ninth century, most of western Europe was carved into large manor estates ruled by landlords and worked by poor peasants. Each manor was autonomous and supported almost entirely by the production of its inhabitants.
DATED: July 4, 2013
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10 years 9 months ago

The California Assembly recently passed legislation creating significant new consumer protections against unfair debt collection practices. Specifically, the Fair Debt Buyers Practices Act requires debt buyers to substantiate the validity of a debt before they attempt to collect and requires that they direct their collection efforts at the proper debtor for the right amount. One hopes Read MoreThe original post is titled Fair Debt Buyers Practices Act Passes California Assembly so What About Oregon and Washington? , and it came from Oregon Bankruptcy Lawyer | Portland, Salem, and Vancouver, Wa .


10 years 9 months ago

A blog post here last month discussed the growing wave of lawsuits by lenders for the balance of mortgage loans left over from foreclosures (and in some cases short sales), known legally as lawsuits for the recovery of "deficiencies."

As discussed, in most foreclosures the lender bids only a part of his loan to win the collateral (the house) at the auction. In most jurisdictions, including Virginia, Maryland and the District of Columbia, the balance will still be owing and the lender has a right to sue the signer of the mortgage for that balance, and many are beginning to do just that.

So you had a foreclosure on your house a few years ago. How do you know if there is still a balance owing and whether you may be facing a lawsuit? The bad news is, unless the value of the house was more than the loan, you are probably owing something, since lenders will only bid a part of the loan, especially if the house is devalued, and that is the case for houses bought during the peak of the market, around 2007, before the crash.

One way to check is to look at your credit report. See if the lender (or its successor) is on the report and whether it is reporting a balance. (Note that this is not foolproof. We have seen instances where no debt was reported, but there was a balance owing.) You can get a free credit report once a year at www.AnnualCreditReport.com.

You can also get clues from the way the lender reported the foreclosure to IRS in the year following the foreclosure. If you got a Form 1099-A, box #4 labeled "fair market value of the property" is generally the amount the lender bid to win the auction. If that amount is less than the amount in box #2 "balance of principal outstanding," you probably have a deficiency.

If you got a Form 1099-C, and here is possible good news, the lender cancelled the debt, for tax reporting purposes. And some courts have held that reporting by the lender to IRS as proof the lender forgave the debt.

If you're facing this problem, or worry that you may be facing it, call us and we'll discuss your options.


9 years 4 months ago

A blog post here last month discussed the growing wave of lawsuits by lenders for the balance of mortgage loans left over from foreclosures (and in some cases short sales), known legally as lawsuits for the recovery of "deficiencies."

As discussed, in most foreclosures the lender bids only a part of his loan to win the collateral (the house) at the auction. In most jurisdictions, including Virginia, Maryland and the District of Columbia, the balance will still be owing and the lender has a right to sue the signer of the mortgage for that balance, and many are beginning to do just that.

So you had a foreclosure on your house a few years ago. How do you know if there is still a balance owing and whether you may be facing a lawsuit? The bad news is, unless the value of the house was more than the loan, you are probably owing something, since lenders will only bid a part of the loan, especially if the house is devalued, and that is the case for houses bought during the peak of the market, around 2007, before the crash.

One way to check is to look at your credit report. See if the lender (or its successor) is on the report and whether it is reporting a balance. (Note that this is not foolproof. We have seen instances where no debt was reported, but there was a balance owing.) You can get a free credit report once a year at www.AnnualCreditReport.com.

You can also get clues from the way the lender reported the foreclosure to IRS in the year following the foreclosure. If you got a Form 1099-A, box #4 labeled "fair market value of the property" is generally the amount the lender bid to win the auction. If that amount is less than the amount in box #2 "balance of principal outstanding," you probably have a deficiency.

If you got a Form 1099-C, and here is possible good news, the lender cancelled the debt, for tax reporting purposes. And some courts have held that reporting by the lender to IRS as proof the lender forgave the debt.

If you're facing this problem, or worry that you may be facing it, call us and we'll discuss your options.


10 years 9 months ago

By John Clark
Jefferson County, Alabama, which became the largest municipality to file for bankruptcy in U.S. history, has filed a plan to cut $1.2 billion in debt, according to a report from Bloomberg News.
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And if the bankruptcy plan is approved by a judge, sources expect Jefferson County to exit bankruptcy and continue on its path to financial health within a matter of weeks.
Jefferson County Looks to Exit Bankruptcy
According to reports, the county’s financial troubles were primarily the result of misguided loans purchased by municipal authorities in an effort to revamp its outdated sewer system.
After the recession struck in 2007, and the county’s revenues dried up, it started defaulting on billions of dollars in loans. Sources report that the county owes roughly $4.2 billion in unpaid debt.
But under the terms of the proposed bankruptcy plan, Jefferson County will only have to pay a fraction of its debt. Sources note that this would mark the first time Americans holding municipal debt would be forced to take a loss on their investments.
Sources report that the county will not have to make full repayments on any of its $3 billion worth of sewer debt, which will allow the area of roughly 300,000 residents to exit bankruptcy with a great deal of hope for its future.
According to David Carrington, the Jefferson County commissioner, the proposed plan “solves both of the problems that prompted the commission to file the largest Chapter 9 bankruptcy case.”
Sources indicate that Carrington is referring to the sewer debt, which is the biggest financial albatross around the county’s neck, and other, more routine bonds that have been backed by taxes.
Bondholders and Banks Stand to Lose Under Bankruptcy Plan
While bondholders will likely take a significant loss under the proposed bankruptcy plan, financial institutions stand to lose a considerable amount of money, as well.
Sources say JPMorgan Chase, which owns a large amount of sewer debt, will only collect 31 percent of Jefferson County’s unpaid debt. Seven hedge funds also expect to lose a lot of money due to the county’s bankruptcy filing.
If the bankruptcy court in Birmingham, Alabama, approves the deal, it would end a year and a half of legal tussles between Jefferson County and its angry creditors.
But the deal has yet to be finalized. Sources expect U.S. Bankruptcy Judge Thomas Bennett to officially rule on the proposal in November. In the interim, Bennett wants to give junior creditors an opportunity to offer their own input, sources say.


10 years 9 months ago

Credit Card Charges in BankruptcyThe most common form of debt in the United States is credit card debt.  There are millions in circulation by a number of creditors with Chase bank alone having more than 100 million in 2008.  While most people feel it is not a big deal to have credit card debt, some who find themselves in [...]


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