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This is the bankruptcy case study for Ms. Jones who resides in Joliet, Illinois. Ms. Jones was in the office today to determine whether or not Chapter 7 or Chapter 13 bankruptcy will provide some needed relief. Let’s go through the facts and details of her case. Ms. Jones is not a homeowner. She is+ Read More
The post Bankruptcy Case Study For Ms. Jones appeared first on David M. Siegel.

A bankruptcy judge for the Eastern District of California sanctioned attorney Pauldeep Bains for filing a bankruptcy petition signed with digital signatures.  (See In re Mayfield, Case #16-22134).
The attorney sent completed bankruptcy documents to the debtor to sign via a digital signature service called  DocuSign.  Bankruptcy judge Robert Bardwil imposed sanctions for violations of bankruptcy rule 9004-1(c)(1)C) & (D).  Those rules state the following:
(C) The Use of “/s/ Name” or a Software Generated-Electronic Signature.  The use of “/s/ Name” or a software-generated electronic signature on documents constitutes the registered user’s representation that an originally signed copy of the document exists and is in the registered user’s possession at the time of filing.
(D) Retention Requirements When “/s/ Name” or a Software-Generated Electronic Signature Is Used.  When “/s/ Name” or a software-generated electronic signature is used in an electronically filed document to indicate the required signature(s) of persons other than that of the registered user, the registered user shall retain the originally signed document in paper form for no less than three (3) years following the closing of the case.  On request of the Court, U.S. Trustee, U.S. Attorney, or other party, the registered user shall produce the originally signed document(s) for review.  The failure to do so may result in the imposition of sanctions on the Court’s own motion, or upon motion of the case trustee, U.S. Trustee, U.S. Attorney, or other party.
Judge Bardwil ruled that digital signatures do not constitute “original signatures” and thus imposed sanctions.
The problem with this ruling is that the above rules do not specifically state that digital signatures are not valid “original signatures.”  The court assumes this is obvious, but it is not, especially to a generation of lawyers who live in a digital universe.  What we have here is a generational divide, or as one writer has said, a bifocal divide.

Counsel, as the registered user filing the documents, did not accurately represent that originally signed copies of the documents existed and were in his possession at the time of filing, as required by Rule 9004-1(c)(1)(C), and could not have produced and did not produce the originally signed documents for review when requested by the UST, as required by Rule 9004-1(c)(1)(D), because originally signed documents never existed.”

To the contrary, originally signed documents are created by use of digital signatures.  The E-sign act specifically validates digital signatures. The State of California (as well as Nebraska) also have laws supporting digital signatures.
What becomes confusing for courts is that the E-sign act does not require courts to use digital signatures.  The federal preemption that requires states to recognize and give legal effect to electronic signatures is not imposed on court pleadings. In other words, courts are free to establish rules to allow or banish the use of electronic signatures.  What the E-sign act does not say, however, is that electronic signatures are invalid in all court proceedings.  It is merely the mandatory federal preemption that does not apply to court pleadings.  The courts have freedom to make their own policy on their use due to the sensitive nature of legal documents.
Judge Bardwil expresses grave concern that allowing digital signatures would open up a Pandora’s Box of document fraud because of “the ease with which a DocuSign affixation can be manipulated or forged.”  He repeats the United States Trustee’s question:  “What happens when a debtor denies signing a document and claims his spouse, child, or roommate had access to his computer and could have clicked on the “Sign Here” button?”
And therein lies the grave worry of the Judge.  Somebody my click the “Sign Here” button by accident or with fraudulent intent.  Why, anybody could click a button.  That’s too easy!  It’s not formal enough.  It’s the end of civilization as we know it!
Hang on there, Judge.  Doesn’t this problem already exist?  If I mail a paper copy of a bankruptcy pleading to a client, isn’t there a risk that a spouse, child or evil roommate would have access to the mailbox and then–faster than you can power up a computer–forge a signature and drop it in the return envelope?  Gosh, should we outlaw the mailing of bankruptcy documents for fear of the evil roommate?  Should we require every page of a bankruptcy document to be signed and notarized at the courthouse?  I’m just saying, the whole thing is wide open for fraud Judge, and we need to stop these Millennial lawyers from mucking up the integrity of the institution!
Of course, we could consider some of the key advantages of digital signatures and the very long process of getting to the point of even signing a bankruptcy document in any format.
Bankruptcy petitions are not filed 2 minutes after having an online chat with prospective client.  This is an involved process with many steps.

• Initial consultations with a client in person or over the phone or through emails occur.
• Alternative courses of action are generally outlined.
• Debtors must take a Credit Counseling class and obtain a certificate before any bankruptcy may be filed.
• Written retainer agreements between the attorney and client must be signed and fees must be paid in full before any work is prepared.
• Investigations of assets, income and debts are prepared.
• Income averages for the past 6 months are prepared.  Debtors must send their attorneys bank statements, paycheck stubs, credit reports, tax returns, collection letters, lawsuits and other documents before a bankruptcy petition can even be drafted.
• Multiple phone calls and emails are exchanged during this process to create property lists and creditor lists and statements of income and expenses.
• A written court notice is mailed to debtors immediately after a case is filed to inform them of the case number and court date.
• Following the filing of a case the debtor actually attends a court hearing and testifies that they actually signed the bankruptcy documents.

What happens when a debtor denies signing a document and claims his spouse, child, or roommate had access to his computer and could have clicked on the “Sign Here” button?  Filing bankruptcy is not as simple clicking on a “Sign Here” button.  IT’S A PROCESS.  A long process that takes days, weeks, months and sometimes years to complete.  The fear of debtors clicking “Sign Here” buttons recklessly is irrational.  This is a long, difficult and considered process.  Whether a document, after all this process is completed, is signed on sheep skin in blood or on 50% cotton fiber paper in blue ink or digitally is trivial.  This fear of older jurists is unjustified.
Here is why truly concerned jurists should support digital signatures in bankruptcy cases.

1. Debtors receive a written notice mailed to them days after the case is filed.  If a signature is forged, this is their first clue to the debtor.
2. Debtors attend court hearings within 30 days of filing the case and testify that they actually signed the documents.
3. Digitally signed documents cannot be altered after they are signed, unlike paper documents with one or two signature pages buried within an 80-page document.  The truth is, bankruptcy attorneys routinely make material changes to signed documents without getting updated signatures from their clients. They just print out new pages and stick them underneath the signed declaration page.  That, my dear Judge, is the true fraud issue in bankruptcy documents.  Digitally signed documents, however, are encrypted and they display alerts if the contents are altered.  Can your paper pleadings do that?
4. Audit Trails.  Digitally signed documents provide “audit trails” showing where the documents were emailed and the IP address of the sender and receiver.
5. Immediate Copies to Debtors.  Many bankruptcy attorneys fail to provide their clients with copies of what they sign, especially attorneys who know in advance that they will alter the signed documents.  Digitally signed documents, however, are immediately distributed to all signing parties and the debtors have evidence of exactly what they signed.
6. Third Party Verification.  Digitally signed documents have a third party (DocuSign, for example) that can verify what was signed and who signed the document.
7. Updated pleadings can be signed fast.  Yes, the key advantage of digital signatures is that they make it easy to get updated signatures in a matter of minutes.  That is actually a good thing.   Bankruptcy attorneys often discover errors in the originally signed pleadings, and making it easier to get corrections signed actually improves the integrity of bankruptcy documents.

Protecting the integrity of court documents.  Reducing fraud and forgery.  Improving the accuracy of court documents. Ensuring debtors know what they are signing and that they receive copies of the signed documents.  These are worth goals we can all agree on, whether we sign off with fountain pens or “Sign Here” buttons.

With all the different bankruptcy types, it can get a bit confusing to someone who is new to bankruptcy. What do all these numbers mean? In this post, our Elkhorn, WI Chapter 7 Bankruptcy attorney explains what the difference is between an Elkhorn, WI Chapter 7 Bankruptcy and an Elkhorn, WI Chapter 128 Debt Amortization Plan.
 

What is an Elkhorn, WI Chapter 7 Bankruptcy?
An Elkhorn, WI Chapter 7 Bankruptcy eliminates (or “discharges”) all unsecured debt. Unsecured debt is debt that does not have any collateral attached to it, such as utility bills, medical bills, credit card bills, past due rent, civil judgments, repossession balances, etc. To qualify for an Elkhorn, Wisconsin Chapter 7 Bankruptcy, you must pass a means test. A means test determines if your income qualifies you for a Chapter 7 Bankruptcy. With an Elkhorn, WI Chapter 7 Bankruptcy, there is no repayment plan. Most filers can keep their assets, such as their home or vehicle. It is important to note that an Elkhorn, WI Chapter 7 Bankruptcy may also stop a foreclosure, credit lawsuits, and wage garnishments.
 
What is an Elkhorn, WI Chapter 128 Debt Amortization Plan?
An Elkhorn, WI Chapter 128 Debt Amortization Plan is an alternative to bankruptcy. Chapter 128 can stop wage garnishments, stop accruing interest, and requires no court appearance for the majority of cases. Elkhorn, WI Chapter 128 filers will pay off their debt in three years or less. In order to file a Chapter 128 Debt Amortization Plan, the filer must be a Wisconsin resident and must have a steady source of income. The type of debt that can be included in an Elkhorn, WI Chapter 128 Plan are: credit cards, civil judgments, payday loans, medical bills, collection accounts, and most personal loans.
 
What Are the Main Differences between an Elkhorn, WI Chapter 7 Bankruptcy and Chapter 128?
1. You must qualify through a means test to file a Chapter 7 Bankruptcy. Chapter 128 does not require a means test.
2. When you file a Chapter 7 Bankruptcy, all unsecured debt must be included in the petition and may be wiped out (discharged). All debts do not have to be included in an Elkhorn, WI Chapter 128 plan.
3. Chapter 7 Bankruptcy eliminates all debt immediately. Chapter 128 is a repayment plan.
4. A Chapter 128 Debt Amortization Plan can be less expensive than an Elkhorn, WI Chapter 7 Bankruptcy.
5. You can only receive a discharge from a Chapter 7 Bankruptcy once every 8 years. With a Chapter 128, you can file after bankruptcy and you can file more than once.
6. No assets or property are ever sold or liquidated during an Elkhorn, WI Chapter 128.
7. A Chapter 128 may be better for your credit score than a Chapter 7 Bankruptcy
8. An Elkhorn, WI Chapter 128 Debt Amortization Plan is a faster process than an Elkhorn, WI Chapter 7 Bankruptcy.
 
Contact Our Elkhorn, WI Chapter 7 Bankruptcy and Chapter 128 Attorney
There are special circumstances that may apply for each type of bankruptcy and line item listed above. To learn more about which debts can be discharged and what assets you can keep during either an Elkhorn, WI Chapter 7 Bankruptcy or an Elkhorn, WI Chapter 128 Debt Amortization Plan, contact our bankruptcy attorney. Wynn at Law, LLC has bankruptcy offices located in Lake Geneva, Delavan, Muskego, and Salem, Wisconsin. You can reach our Elkhorn, WI Chapter 7 Bankruptcy and Chapter 128 attorney by calling 262-725-0175 or by visiting the contact page on our bankruptcy website.
 
Find out if you qualify for bankruptcy.
Click Here to Get a Free Bankruptcy Assessment
from Wynn at Law, LLC
.
It’s Free. It’s Easy.
 
 
 
 
 
*The content and material on this web page is for informational purposes only and does not constitute legal advice.
 

http://nwdrlf.com/wp-content/uploads/2016/08/Attorney_McAvity_July_22_Bankruptcy.mp3

Katherine:

Hello, everyone. Tom McAvity, I’m messing it up. Last time I did so fine.

Tom:

That’s it. No, you nailed it. You nailed it.

Katherine:

Say it again. You say it and then I’m going to say it right after you.

Tom:

McAvity.

Katherine:

McAvity. Oh, I did.

Tom:

Yeah, you did.

Katherine:

I was like, I messed it up. Attorney McAvity is joining us back, and he is so gracious with me and his name. We’re going to have this nailed down. He is a friend, so this needs to be said, and he’s coming back to talk with us about some of the things that will help us relieve our debt as well as answer some bankruptcy questions.
Last time he was on with us, he answered some really great questions, listener questions for us. This time he’s going to share a little bit more about himself, and he’s going to tell us about his book that he’s written about bankruptcy. Before we do get into about his book, I want him to say hello to this audience and tell us a little bit about himself, to reintroduce himself to the audience. I’ve got to get my tongue together today, right?

Tom:

I’m sorry

Katherine:

I said I need to get my tongue together today, right?

Tom:

We did.

Katherine:

Okay, I want you to tell the audience just a little bit about yourself.

Tom:

Oh, sure, well, my name’s Tom McAvity, as you know. I’m a bankruptcy attorney in the Pacific northwest area. I concentrated my practice in Oregon and Washington. We have offices in Seattle, Portland, Salem, and Vancouver, all out in the Pacific northwest. I’ve been doing this for about 16 years. For whatever reason, I just love it. There’s nothing I’d rather do than practice bankruptcy, which I know some of us are, but it’s true. I love it.

Katherine:

I think that helps a lot of people who come to you to feel good about this process, because bankruptcy could be a bad word, or feel like it’s a bad word until we know better. Someone like you can definitely help. Let’s talk about your book. Tell us about that book you’ve written on bankruptcy.

Tom:

It’s funny, I never had any desire to be an author or write a book, so it didn’t come from that, but I realize that there are a lot of us, if we want information, we’ll just get on the line and just start talking to someone. I understand that. It’s the camp that I’ve often been in. I know that there’s certain subjects that I just don’t feel calling someone about. I’d prefer to maybe read about it online or buy a book, to read about it a little bit, to put my toe in the water, I guess, before diving in. I guess the frustration that I’ve always felt was some subjects are relatively easy to research online. You read an article or two and you’re ready to go and decide if it’s something you want to do or not.
What I find is with bankruptcy, there’s just so much conflicting information online and so many articles that maybe address a couple of issues but don’t really delve deep enough, or there’s conflicting articles, or it’s kind of on point but not really. I just wanted to provide something for people who maybe weren’t even calling a bankruptcy firm yet. That’s not where they are, but they still need the information. I figured we would just provide the information and just leave it there. If they want to follow up they can, and if not, they still have the information they need.

Schedule an appointment

Katherine:

They feel empowered because it’s something about, we go through school learning to be the smartest kid in the classroom, and then we call and we don’t know any answers and we feel foolish because they are empowered. Tell us, what is the name of the book and where can people get a copy of it?

Tom:

It’s The Benefits of Bankruptcy in Oregon and Washington, and it’s written specifically for people in Oregon and Washington, and most of it would be on point for people in other states but I wrote it for the Oregon and Washington reader in mind. I guess there’s a couple different ways you can get it. You can download it off our website, which is probably the way that I would grab it. We’re also free to send a free copy to anyone who asks. There’s no obligation or charge. We’ll just put one out in the mail right to you and leave it with you.

Katherine:

Okay, give that website real quick, and then we’re going to go to our next question.

Tom:

I’m sorry, I didn’t hear that part.

Katherine:

Sure, give your website and then we’ll go to the next question.

Tom:

Oh, yeah, that would be helpful, wouldn’t it? It’s www dot nw, like northwwest, d-r like doctor, l-f like Larry and Frank dot -com. http://nwdrlf.com. There’s information on the book right on the website.

Katherine:

Okay, now you stated out the interview off today talking about you love your work as a bankruptcy attorney and you wouldn’t do anything else. What is it you enjoy so much about practicing bankruptcy?

Tom:

I think what drew me to it originally is, it’s just nice to be in an area of law where every time, almost, well, I would say no matter what, every time a client comes in to see us, at the end of the day they’re better off having done so, where some areas of the law you can’t always guarantee that kind of result. You can do a great job in a divorce, but your client’s life is still wrecked. Certainly that’s true in criminal, but in bankruptcy law, almost every single time the client’s immeasurably better off from having hired us. That’s a good feeling. Also I believe that everybody entitled to second chances. I just believe that strongly I’ve been given a second or third chance in life, on more than one occasion, and I just thing that everyone deserves one. That’s what drew me in.

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Katherine:

You really get to help people. I’ve heard some attorneys, not bankruptcy attorneys, but they got into law because they wanted to help people and the area that they went in wasn’t what they thought it was going to be. You sound like you were able to help people. Do what you love, practicing bankruptcy law, as well as helping people get that second chance in their life. It really worked out for you. Maybe they just need to become bankruptcy attorneys too.

Tom:

I think some attorneys maybe just wanted to be attorneys. I don’t think they necessarily like people all that much.

Katherine:

The truth is out.

Tom:

You can even see through it. I think that is the truth for a lot of attorneys. They just like to talk to other attorneys.

Katherine:

Uh-oh, the secret is out. Let’s talk about your firm. There’s a couple of things I noticed. It’s not just bankruptcy. You also mentioned debt relief. Let’s talk about that your firm offers.

Tom:

We have a lot of clients that come to us just because they only have one creditor and they’re getting sued and we’ll defend clients that are in that position where bankruptcy is just not a realistic option, but at the same time, they need help with that one creditor. Also we help people who are in a mess with their student loans, and boy, that’s an ever increasing portion of this country. People are just having student loan problems. I’m more happy to step in to help people in that area. The final thing we do with debt relief is we help in foreclosure defense where a creditor has started the foreclosure process and our clients either need more time to work out leaving the property or maybe the need some more time to work out staying in the property but for whatever reasons, they need to deal with it on their terms. We’re happy to help out on that front as well.

Katherine:

Is this what makes it special in the Oregon and Washington area? Or is it something else?

Tom:

That makes our firm special?

Katherine:

Yes.

Tom:

I would say what really makes our firm special is not me but my staff. I think I have some really great people working for me right now. I would say that in what we provide, we provide a couple things, I’m not aware of any firm that provides both of these things for sure. We do a payment plan with our clients that enable to get a bankruptcy filed quickly and get under the protection of the bankruptcy code and then pay the majority of their fees and installments after their case is filed. I can’t tell you how valuable that is to a lot of our clients who live paycheck to paycheck or getting garnished or whatever else. They’re often sent away by other firms but tell them, yeah, we’ll file a bankruptcy for you but you have to come up with $1,500 or $2,000 out of pocket and cash before well lift a finger for you.
For most people, that’s never going to happen. We’re happy to step up with something that’s a little more attainable for people that are in trouble.
I think the other thing that we offer, we take a more holistic approach. We’re not here to just eliminate the debts. Once upon a time, we were, but at a certain point I realized that what our clients are really after is a chance at getting back into financial mainstream. They’re not just looking to eliminate debt. That’s part of it but the real goal is being able to participate like anyone else. Being able to get that car payment when they can afford to get that car payment, or be able to rent an apartment without fear that the landlord’s going to turn them away because their credit rating is too low, or when a married couple might be trying to get that first house and needs to be able to do so.
We started offering, I started paying a company to help our clients with repairing their credit scores once the bankruptcy is over, once it’s done in the hopes that they can get their credit score back up where it needs to be as quickly as possible. They’re not miracle workers. They don’t clean up your credit score. I think that’s a bit of a urban … What they do though, is provide education and materials to help or clients build back as quickly as possible. Get the right card, get the right accounts, conduct their payment history in a certain way. All that stuff that the experts have known for years but the average person may not be aware of. They normally can get people back into the mid-700s in terms of their credit score within an 18 month time period after the bankruptcy. If we can provide that, it’s just a gift, I guess, to our clients. It makes our product an even stronger one.

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Katherine:

I agree. I got one last question for you during our time this month. When someone is shopping around for a bankruptcy attorney, what should they be looking for in a firm?

Tom:

Boy, that’s a tough question. I’d like to say us, because of what offer.

Katherine:

That’s the right answer.

Tom:

Yeah, that’s the right answer, but at the same time, I think you need to be able to work with someone. If you come into an office and you, for whatever reason, no one has done anything wrong, it’s not anything wrong with the attorney or anything wrong with the client, but you just don’t connect very well in that appointment or don’t feel like you’re a priority to that attorney it’s probably time to find another one. I’d have to say every once in a great while I will be with someone and just realize if this relationship continues, it’s going to be a rocky one. It’s not because there’s anything wrong with a client or there’s anything wrong with me, it’s just you’re supposed to work with who you are supposed to work with.

Katherine:

I want to thank you.

Tom:

I don’t know if I explained that real well, but every once in a while you’ll deal with someone that you know it’s not going to work.

Katherine:

I think we have a good start, and I can get some listener questions to move us next month if that was not clear, but I think you got us to a good start in the direction. They’ll definitely call you all in the Oregon and Washington area. I think you did get us in the right direction of the things to consider as your interviewing bankruptcy attorneys and for them to pick up a copy of your book. That’s going to help them feel a little more confident about asking questions or even approaching someone to talk about this in this area.
You feel like you failed. You feel like you messed up and you can give them the confidence, even though the book without having to talk to someone to allow them to, because in the beginning you feel empowered about having this conversation. It’s a tough conversation.

Tom:

It is a tough one.

Katherine:

You’re grown, and how could this have happened? It’s life, and it happens, and someone like you can help them feel confident in that. Thank you again for being here with us and on next month you’ll come back and join us for another conversation, answer some questions, and things like that. In the meantime, how can people get in touch with you outside of This Needs To Be Said?

Tom:

I’m sorry, I didn’t hear that last …

Katherine:

How can people get in touch with you outside of This Needs To Be Said?

Tom:

Oh, absolutely. They can reach me at my email address at [email protected] and they can get me directly at our Portland number, at 503-232-5303,or in Seattle at 206-674-4559. We have a Vancouver and Salem phone number but for the life of me I can’t remember them right now. Those two numbers will work for anyone.

Katherine:

Awesome. And thank you until next month. Thank you, Tom.

Tom:

Thanks so much for having me.

Schedule an appointment

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 The original post is titled Attorney Tom McAvity – July 2016 Interview , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .