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Be honest Be honest with yourself, your attorney, the trustee, the court and anyone else involved in your bankruptcy case. The first question to ask is do you really need the help? Are you someone who has a small amount of debt that is manageable over the course of six months to a year or+ Read More
The post 3 Tips For A Successful Bankruptcy Experience appeared first on David M. Siegel.
Here at Shenwick & Associates, the debtors that we represent (we represent creditors, too) are primarily looking to get their debts discharged in bankruptcy. However, what most debtors don't know is that besides getting rid of unsecured and secured debt, some liens or judgments secured by property can be eliminated by making a motion under § 522(f) of the Bankruptcy Code, which permits a debtor to wipe out the interest that a creditor has in property if the debtor's interest in the property would be exempt but for the existence of the creditor's lien or interest.
The most common types of liens that can be avoided under § 522(f) are judicial liens (a lien created when someone obtains a judgment against you and attaches the judgment against your property), but not including liens that secure a domestic support obligation); and nonpossessory, nonpurchase-money security interests. To qualify as a nonpossessory, nonpurchase-money security interest: (1) you (not the creditor) still possess the collateral; and (2) you used property you already owned as collateral for the loan, not money that you borrowed.
A lien is considered to impair an exemption to the extent that the sum of: (i) the lien; (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property, exceeds the value that the debtor's interest in the property would have in the absence of any liens.
By way of example, let's assume that a house owned by a husband and wife has an appraised value of $500,000. The house is subject to a $200,000 mortgage. The husband and wife file for chapter 7 bankruptcy and have a combined $300,000 homestead exemption under New York State law. Prior to their bankruptcy filing, a judgment creditor records a $75,000 judgment against the house. The debtors may commence a motion under § 522(f) of the Bankruptcy Code to avoid or eliminate the $75,000 judgment docketed against the house.
To discuss whether lien avoidance as part of a bankruptcy filing would be a beneficial strategy for your debt issues, please contact Jim Shenwick.
Bankruptcy is a means through which honest, hardworking Californians who have incurred significant amounts of debt can get a fresh financial start. However, many potential clients at The Bankruptcy Group are often concerned about whether the way they got into debt can be corrected by a Chapter 7 or Chapter 13 bankruptcy filing.
At The Bankruptcy Group, a Sacramento bankruptcy attorney is always ready to listen to your story. We believe that understanding your goals, hopes, and fears prior to taking any action is the best way for us to provide responsive and strategic legal guidance. Over the years, we have seen numerous situations create substantial financial hardships for taxpayers. Many, if not most, of these financial problems occurred through little to no fault of the individual or family. We are proud to help Californians seek recovery from financial difficulties and get a fresh start.
An Injury, Illness, or other Medical Event Frequently Result in Financial Trouble
A medical event that requires hospitalization, rehabilitative therapy, and other disruptions to an individual’s life is likely to create financial turmoil. Plenty has been said about the costs of obtaining medical care in California and throughout the United States; the simple fact of the matter is that most people are a single injury or medical event away from tens or hundreds of thousands of dollars in medical bills.
Further exacerbating the financial stress that is caused by huge medical bills is the fact that most people who experience a serious medical event will need time to recover and heal. This frequently means time off of work. Even if the worker and his or her family are able to draw payments from disability insurance or other sources, these payments are typically only a percentage of the worker’s regular pay.
Divorce of Other Family Issues also Frequently Precede Financial Turmoil
According to a 2004 Harvard study detailed in the book, The Two Income Trap, the American middle-class family is stretched financially thin. Since the book’s publication, many of the problems it identified have actually gotten worse. Costs for child care, health care, education, and all the other goods and services needed to raise a middle-class child continue to increase. Thus, many and probably most families now have both parents in the workforce. Today’s families earn about 75% more than the single parent earner families of a generation or two ago. And yet, today’s two-income family actually has less discretionary income than a family with a single earner from the previous generation.
Thus, disruptions to the family through a divorce or other means are frequently catastrophic to the family finances. Even in an amicable divorce, the family will still attempt to fund two households on income that used to only pay for one home. However, the problem goes even deeper than this. With both parents in the workforce, additional costs arise ranging from transportation and car insurance to child care expenses.
Excessive Use of Credit Cards Is a Common Reasons for Serious Debt Problems
Excessive use of credit cards that typically carry high balances up to credit limits across multiple cards is also a frequent cause of significant financial difficulties. It is quite common for people to use credit cards after the loss of a job or from other difficult financial circumstances to bridge the gap and make ends meet. Unfortunately, and all too often, the difficult financial situation does not turn around as quickly as the individual expected, and it becomes more and more difficult to service the debt. Eventually, the individual may miss one or more payments and penalty provisions kick in. Few people have the ability to make payments sufficient to cover double-digit interest on tens of thousands of dollars in debt. Even fewer people will be able to both service the interest and pay down the principle in a timely manner. Therefore, when it feels as if no amount of hard work allow you to catch up, bankruptcy often provides a pathway to a fresh financial start.
Work with Our Sacramento Bankruptcy Attorneys
The lawyers of The Bankruptcy Group are proud to provide bankruptcy guidance and advice from their Folsom and Roseville law offices. If you have questions regarding whether Chapter 13 bankruptcy or Chapter 7 bankruptcy can fix your financial problems and provide a fresh start, call our law offices at 1-800-920-5351 for a free and confidential consultation, or contact us online.
The post How Do Californians Considering Bankruptcy End up Facing Large Amounts of Debt? appeared first on BK Law.
No one enjoys receiving calls from debt collectors. While some collectors are professional, many can be rude, aggressive, and difficult to work with. Thus, many people are immediately suspicious of anything a debt collector might tell them or any action they may attempt to convince a person to take. In some instances, this suspicion is well-founded. At least some debt collectors violate the rules and regulations set forth by the Federal Debt Collection Practices Act (FDCPA) and other relevant laws.
In many cases, debt collectors will attempt to get a family member to pay the debts of another member of the family. The debt collector may call someone and state that (s)he is legally obligated to pay the debt. While there are certain situations in which a family member can be liable for the debt of another person, in at least some cases, this type of statement is false and misleading. This type of statement is likely grounds for a lawsuit, but individuals who fail to realize that they are not liable for most familial debts may mistakenly assume liability. Contact a Sacramento bankruptcy attorney of The Bankruptcy Group for more information if you’re concerned about debt or debt solutions.
California’s Community Property Regime Means a Surviving Spouse Can Be Held Accountable for Marital Debts
As a general rule, you are not responsible for the debts of your family members. However, one of the chief exceptions to this rule is introduced by California’s community property regime. Under the community property regime, the debts and assets a spouse accumulated prior to the marriage is typically “separate property,” and solely the responsibility of that spouse. By contrast, debts and assets accumulated during the course of the marriage are considered “community property” and are equally the responsibility of both spouses.
Thus, under California Probate Code sections 13550 and 13551:
…Upon the death of a married person, the surviving spouse is personally liable for the debts of the deceased spouse chargeable against the [following] property”:
(a) one-half of the community property belonging to the surviving spouse, except the property that is exempt from collection under California law;
(b) one-half of the community property belonging to the deceased spouse; and
(c) the decedent’s separate property that does not pass through probate.
Essentially, this means that the spouse can be held liable only for community property debts. He or she cannot be held liable for the separate property debts of the deceased spouse. Furthermore, the surviving spouse can only be held liable to the extent of community property shared by both spouses and the separate property of the deceased spouse. The creditor may not seize or otherwise claim the separate property of the surviving spouse. This is probably the most common scenario where an individual may be liable for a family member’s debts. However, there are limits to this potential liability and a prenuptial agreement can allow the spouses to avoid this type of liability altogether.
Family Members Who Sign a Guarantee or Assume Payments for Debts Often Mistakenly Create Personal Liability
In another scenario, an individual may not have any liability to pay the debts of a brother, sister, mother, or father. Still, the individual could believe a debt collector’s statements that they are liable for the debt and decide they will make payments on it. In many cases where creditors seek a family member to take responsibility for the debt, the statutory collections period has already elapsed and the debt is not collectable. However, making a payment on a debt that is past its statutory collections period can be viewed as a reaffirmation of the debt and personal liability can attach.
Another scenario where a family member may be liable for another family member’s debt involves personal guarantees or co-signer status. If you have signed a legal agreement stating that you are also responsible for a debt, it is highly likely that you are legally obligated to pay the debt if the original party is unable to do so.
Sacramento Bankruptcy Attorneys Can Assess Your Debt and Determine Whether You Are Liable
If you are concerned about excessive debts, frequent calls by bill collectors claiming that you are liable for a family member’s debt, or any other debt concerns, the attorneys of The Bankruptcy Group may be able to help. For those facing excessive debts, we can explain the various bankruptcy and non-bankruptcy solutions. To schedule a free and confidential consultation and find out more about debt relief solutions in California, call 1-800-920-5351 or contact us online.
The post Does California’s Community Property Regime Make a Husband or Wife Responsible for the Debts of a Deceased Spouse? appeared first on BK Law.
Why do debt collectors keep calling me at work after I tell them to stop? The Fair Debt Collection Practices Act protects you from debt collectors calling your workplace. But, if you tell them you want them to stop, the debt collectors keep calling. How’s that? To get them to stop calling, you need to […]The post Debt Collectors Keep Calling Me At Work by Robert Weed appeared first on Robert Weed.
Wells Fargo Bank has admitted to opening millions of customer accounts and credit card accounts without customer authorization since 2005. Stories have emerged of a bank gone wild where employees working in an intense sales culture felt pressured to open new accounts to meet sales quotas.
Wells Fargo has agreed to pay $185 million in fines to the Consumer Financial Protection Bureau.
So what happens when customers file bankruptcy on credit card accounts fraudulently opened without any authorization? Naturally, Wells Fargo filed bankruptcy Proof of Claims with the court itemizing the amounts not legally owed. And that reality leads to the next logical question: Has Wells Fargo committed bankruptcy fraud for filing false proof of claims?
False Claims—18 U.S.C. § 152(4):
A person who…knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, in a personal capacity or as or through an agent, proxy, or attorney;…shall be fined…, imprisoned…, or both.
It would be hard for Wells Fargo to argue that it has not “knowingly and fraudulently” presented false claims in bankruptcy proceedings since they authored the false debt.
HOW DOES A BANKRUPTCY ATTORNEY IDENTIFY FRAUDULENT WELLS FARGO CLAIMS?
A tougher question for bankruptcy attorneys is how they will be able to distinguish valid claims filed by Wells Fargo from the fraudulent claim. All the claims look the same, so how do you tell the difference?
Most claims filed in bankruptcy cases do not attach copies of signed credit agreements, so it is unlikely that clients will be able to spot fraudulent claims either. Signed credit agreements are becoming a thing of the past and it is extremely rare for a proof of claim to include a copy of a signed revolving credit card agreement.
The Wells Fargo scandal highlights a major problem with this new age of “inferred consent” in the credit card industry. As the the industry has moved away from traditional signed credit agreements to modern methods of assent over the phone or internet, it becomes increasingly difficult for consumers to deny liability for revolving credit accounts. Increasingly, credit card bill collectors sue not under traditional breach of contract legal theories but under Account Stated doctrines where liability is claimed because the liability is stated in monthly account statements.
So, if a Wells Fargo Proof of claim does not attach copies of signed credit agreements, how can we be sure the debt is real? How should debtor attorneys react to all Wells Fargo claims? Should objections be automatically filed to every Wells Fargo claim until they can be verified? If no written agreement can be produced, should it be assumed that the debt is invalid? Should the bank be entitled to recoup the money loaned without interest under some type of Quantum Meruit or Unjust Enrichment theory?
This latest Wells Fargo scandal poses a major dilemma for Wells Fargo, bankruptcy attorneys and the court. Generally speaking, the filing of a proof of claim is prima facia evidence of the validity of a debt. Does that legal presumption belong to Wells Fargo claims going forward?
Are you facing wage garnishment? Can you afford to have your wages garnished? Many people, just like you, are struggling from paycheck to paycheck just to pay their mortgage or rent, utilities, and groceries. When wages are garnished against a person in this type of financial strain, it may mean that person or family cannot afford groceries or afford to pay their electric bill in full anymore. They end up having to make a sacrifice, choosing what bill or necessity not to pay now, because of the wage garnishment. Are you in this type of situation right now? If so, our East Troy bankruptcy lawyer, Shannon Wynn can help.
Most of us mean well and want to pay off all of our debt as soon as we are able. However, sometimes a creditor cannot wait and wage garnishment happens. There are even more implications when it happens this time of year, right before the holidays and right before the winter utility bills go up. Read below to find out how our East Troy bankruptcy lawyer, Shannon Wynn, can help stop wage garnishment before the holidays.
What Does A Wage Garnishment Mean?
A wage garnishment is when a creditor is given permission from the court to be forwarded money due and owing from a portion of the debtor’s paycheck. If your wages are being threatened by wage garnishment by a creditor, you may want to consider how bankruptcy can help. You can contact our East Troy bankruptcy lawyer, Shannon Wynn, at 262-725-0175 for a free, initial bankruptcy consultation.
How Can An East Troy Bankruptcy Lawyer Stop Wage Garnishment?
There are two ways our East Troy bankruptcy lawyer, Shannon Wynn, can stop wage garnishment before the holidays. One way, is through the filing of a Chapter 7 bankruptcy. If you qualify for a Chapter 7 bankruptcy, determined through a means test, wage garnishment will be avoided or cease the moment you file. All creditors will be notified that you have filed for a Chapter 7 bankruptcy and that all debt collection attempts should immediately stop. The other way, is through a Chapter 128 Debt Amortization Plan. If you do not qualify for a Chapter 7 bankruptcy, you can file a Chapter 128 Debt Amortization Plan. Chapter 128 can stop wage garnishments, stop accruing interest, and requires no court appearance for the majority of cases.
Contact East Troy Bankruptcy Lawyer, Shannon Wynn
To learn more about Chapter 7 bankruptcy and Chapter 128, schedule a free, initial consultation with our East Troy bankruptcy lawyer, Shannon Wynn, by calling 262-725-0175. Attorney Shannon Wynn will listen closely to your situation and discuss all options available to you. Call or stop by one of our bankruptcy offices today. Wynn at Law, LLC has bankruptcy offices located in Lake Geneva, Delavan, Muskego, and Salem, Wisconsin.
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*The content and material on this web page is for informational purposes only and does not constitute legal advice.
Code Provision There are times when you may need to convert a chapter 13 bankruptcy case to a chapter 7 bankruptcy case. Section 1307 of title 11 USC provides for conversion or dismissal. In essence, under section (a), a debtor may convert a case under Chapter 13 to a case under Chapter 7 at any+ Read More
The post Converting A Bankruptcy Case From Chapter 13 To Chapter 7 appeared first on David M. Siegel.
Junk debt buyers are the modern version of a post Civil War carpetbagger as they suck money out of every county in the State of Nebraska without contributing anything in return. I cannot think of a single positive thing these debt collectors contribute to our state.
Junk debt buyers typically purchase defaulted credit card accounts for about 3 to 7 cents on the dollar. Common debt buyers include Midland Funding, Portfolio Recovery Associates, Calvary Portfolio Recovery, Cach LLC, Asset Acceptance LLC, and many others.
Debt buyers clog our courts with collection lawsuits. In a sense, the debt buyer is in a race to recover its investment before the debtor is garnished by another creditor or files bankruptcy, so they are quick to file lawsuits after acquiring the debt.
Most junk debt buyers are located outside the State of Nebraska. Consider the damage they do to our state:
- Nebraska courts are clogged with tens of thousand of junk debt buyer lawsuits annually. Our taxpayers are burdened with providing enough judges and court personnel to handle these lawsuits.
- Debtors lose up to 25% of their paychecks and all of their bank account balances due to garnishments. Where does all that money go? To the debt buyers residing in other states.
- Every dollar garnished by junk debt buyers is a dollar not spent in the Nebraska economy.
- Junk debt buyers pay no taxes to Nebraska.
So why is Nebraska allowing junk debt buyers to suck money out of our state, to burden our courts with tens of thousand of lawsuits, and to economically damage working families in our state without paying anything back in return? What is Nebraska getting out of this arrangement? I honestly cannot see why Nebraska is being so generous to these carpet-bagging outsiders.
Perhaps or legislators should consider a few modest reforms:
- Debt buyers that file more than 100 lawsuits per year should be required to register with the Nebraska Secretary of State and pay an annual licensing fee.
- Debt buyers should not be awarded Default Judgments on credit card accounts unless they can provide the courts with a copy of the signed credit agreement.
- Debt buyers should not be allowed to garnish more than 10% of a debtor’s wage income or bank account balances.
- Telephone collection calls should be limited to one call per week.
- Junk debt buyers should pay state income taxes on the revenue they generate from our state.
Debt buyers are certainly entitled to enforcement of the contracts they purchase, but such rights should not cause an undue burden for the taxpayers of our state. If they want the benefits of our efficient court system, they should pay their fair share of the cost of that system.
For all people, excessive amounts of debt and financial stress can turn into a nightmare. But unlike a nightmare, one cannot simply wait to wake up to address the situation. In fact, the longer an individual waits to address growing debts, persistent creditors, and other financial problems, the worse the situation gets. And yet, many homeowners who have experienced a job loss, a serious illness, or another difficult life event will put off seeking relief and justify their inaction as a product of, “the time not being right.”
The simple fact of the matter is that no person wants to admit that they are facing a serious situation that could end with the loss of the family home or other property. People who have successfully used bankruptcy or other legal means to stop a foreclosure in Sacramento would probably state that they wished they would have reached out for help earlier in the process. Seeking professional guidance before things reach a crisis point can reduce unnecessary anxiety while also increasing the likelihood that potential options are not foreclosed due to the passage of time.
How Do I Know I’m Facing a Foreclosure in California?
While California adheres to a non-judicial approach for most foreclosures, that doesn’t mean that foreclosure proceedings will spring out of the blue without any notice to the homeowner. Rather, even in a foreclosure process that occurs outside of the courts, the mortgage holder is required to proceed through certain steps and provide certain notices before a foreclosure sale can proceed.
In many instances, a homeowner’s first indication that trouble may be approaching may come in the form of a formal or informal notice that (s)he has missed one or more mortgage payments. While missing one or even several payments will not instantly place you into the foreclosure process, it is often a good indication that the individual is experiencing financial stress. If the underlying issue is not addressed, the problem is likely to grow and may result in the commencement of foreclosure proceedings.
The first indication a homeowner will receive that he or she is facing foreclosure is the receipt of a Notice of Default. Receipt of a Notice of Default starts the clock on a three-month waiting period where the bank or mortgage holder must wait before taking action. After this period has elapsed, the lender may schedule and advertise for a sale of the property. At least 21 days must pass from the date of publication to the date of the sale.
When Should I Contact an Sacramento Foreclosure Attorney?
Frequently, people do not know when they should seek legal advice regarding a home foreclosure because they have questions about the process and what to expect. A home foreclosure requires the lender to go through several steps before they can sell your home. This means there really is no one-size-fits-all answer for all individuals who are concerned about a foreclosure in Roseville, Folsom, Sacramento, or elsewhere in California. Rather, at least early in the process, individuals should try to assess their own needs and disposition when deciding when to seek legal advice.
That said, consumers who are proactive early in the process may have additional options. For instance, some mortgage companies may be willing to negotiate mortgage modifications that can eliminate the need to a bankruptcy filing or other measures. In other scenarios, negotiations with other creditors can free up the money you need to catch-up on missed mortgage payments and remain current.
Once taxpayers receive a Notice of Default, personal preferences should be disregarded in favor of a direct, expedient approach to seeking legal advice and guidance. While the sale cannot be scheduled for several months from the time of the notice, a significant amount of research and legwork goes into each and every foreclosure situation we face. Seeking guidance immediately once a Notice of Default is received should permit ample time for research, negotiation, and potentially an emergency bankruptcy filing to stop foreclosure.
Work with an Experienced California Foreclosure Lawyer
If you are worried about losing your house to foreclosure in Folsom, Sacramento, or Roseville the foreclosure defense attorneys of The Bankruptcy Group may be able to help. To schedule a free and confidential initial consultation, please call our law firm at 1-800-920-5351 today.
The post Is Now the Right Time to Contact a Home Foreclosure Defense Attorney in California? appeared first on BK Law.
Updated daily, this blog will keep you informed on the latest bankruptcy news! 
Learn more about how Bankruptcy works and what you need to know.