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On December 8, 2015, Bankruptcy Judge Daniel Collins entered an order enjoining Carla Lief, Carla’s Paralegal Services LLC, an Arizona document preparer, finding that she violated the terms of a 2009 agreement with Bankruptcy Judge Baum. On November 2, 2015 Judge Collins enjoined Ms. Lief from further document preparation work in this district for at least one year.  She ignored that injunction. At the December 8th hearing the Judge determined that Lief’s conduct and actions were “in blatant violation of the terms of the Court’s injunction announced at the November 2, 2015 hearing, and that Lief’s actions constituted the unlawful practice of law in this Court and in this State, as well as violations of 11 U.S.C. § 110(e)(2)(A).”
On June 11, 2009, in Case No. 2:09-bk-01205-RTB (In re Robert Tovmasyan), the Court (Hon. Redfield T. Baum) signed an ORDER REQUIRING BANKRUPTCY PETITION PREPARER CARLA LIEF TO COMPLY WITH 11 U.S.C. ”110, 526, 527, and 528 AND NOT TO ENGAGE IN THE UNAUTHORIZED PRACTICE OF LAW (“Consent Order”) (Docket #68). The Consent Order was signed by Lief. Citing In re Gabrielson, 217 B.R. 819 (Bankr.D.Ariz. 1998), the Order specifically barred Lief from “preparing motions, responses to motions, objections to claims, responding to the Trustee’s Recommendation (including but not limited to Amended or Modified Plans), or preparing any type of pleading.
At the hearing on December 8th Judge Collins ordered that “by December 31, 2015, Lief will place a statement on her website under the “Bankruptcy” tab which references this Order and explains that she has been enjoined by this Court from preparing any documents for use under any chapter of the Bankruptcy Code, pending further order by this Court.”
Side Bar: the Arizona Bankruptcy Clerk’s office will no longer allow document preparers to use electronic document filing.  The Local Rules committee has recommended that document preparers will not be permitted to file pleadings or documents in chapter 13 cases.  These actions are not being taken to punish document preparers, but to protect the public and the efficiency of the court.

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The bankruptcy code's "means test" looks to the size of the debtor's "household." The bankruptcy code does not define what constitutes a "household."

Census Bureau Definition

Some bankruptcy courts hold that the Census Bureau's definition of "household" provides the most appropriate definition of household for use in the means test. The Census Bureau defines "household" as "all of the people, related and unrelated, who occupy a housing unit"such as a house, apartment, group of rooms or single room that is intended for occupancy as a separate living quarters." These Courts hold that the word "household" and not "family" and did not intend to limit household size to only household members related by blood, marriage or adoption.

Internal Revenue Manual Definition

In some cases, parties argue that the Internal Revenue Manuel's ("IRM") definition of "household"should be used. The IRM does not define "household" but indicates that the number of persons allowed under the national standard expenses should generally be the same as the number of dependents on the taxpayer's latest tax return.

Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com

Last week the bankruptcy court for the Western District of Missouri discharged $37,243 of federal student loans for Michael Abney despite the fact that he was not required to make any payment on his account under an Income Based Repayment plan (IBR). (See In re Abney)
The facts of the case are as follows:

• The debtor was approximately 40 years old.
• He attended college from 1994 to 1998 but did not graduate with a degree.
• The debtor was in good physical condition, but suffered bouts of depression stemming from child custody issues and financial problems.
• He was employed as a truck driver earning $3,063 per month.
• He paid child support of $750 per month for two children, ages 7 and 11.
• He had previously paid $11,000 of student loan payments through an IBR.
• The debtor was contributing to a voluntary retirement plan, but had only $500 saved.
• His income was not expected to increase and his living expenses were modest. He had lived out of his work truck and a homeless shelters in recent years.  At the time his case was filed he rented a studio apartment for $640 per month.
• The debtor was not represented by an attorney.

In the Eight Circuit (which includes Nebraska), courts apply a “Totality of the Circumstances Test” in determining whether student loans may be discharged.  As a general rule, student loans may not be discharged unless paying such debts would impose an “undue hardship” on the debtor.
The court will look at these factors when reviewing an application to discharge student loan debts:

1. Total present and future incapacity to pay debts for reasons not within the control of the debtor;
2. Whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment;
3. Whether the hardship will be long-term;
4. Whether the debtor has made payments on the student loan;
5. Whether there is permanent or long-term disability of the debtor;
6. The ability of the debtor to obtain gainful employment in the area of the study;
7. Whether the debtor has made a good faith effort to maximize income and minimize expenses;
8. Whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and
9. The ratio of student loan debt to total indebtedness.

A few items jump out as being remarkable in the court’s opinion.  First, based on his current income the debtor was not required to make any payment under the IBR and the court believed that no significant payment would be made in the future.  In addition, the debtor would eventually suffer possible income tax consequences at the end of the 25-year payment plan when the unpaid balance is treated as taxable income.  In short, the court felt the IBR was futile and would only drag out the process.  The court also noted that there was a substantial likelihood that the IBR would be unsuccessful since the program would be canceled if the debtor defaulted on future payments.

Holding that eligibility for a program such as IBRP ipso facto leads to denial of an undue hardship discharge would deprive the Court of the discretion granted by § 523(a)(8).

Second, the court did not object to the debtor claiming an expense for a modest retirement account. The debtor was about 40 years old and had only saved $500 for retirement.  The court believed the retirement savings was necessary and should not disqualify the debtor from discharging the loans.
Third, the debtor’s child support obligations would begin to end in about 7 years.  Despite the fact that this would free up income to pay student loans, the court emphasized that the debtor could not afford a car payment on his current income and that he was way behind in saving for retirement.
It appears that bankruptcy courts are becoming more willing to review student loan discharge applications these days and they are taking a more skeptical eye to the income-based repayment defenses.
Other bankruptcy commentators , such as Cathy Moran, have also written articles praising the Abney decision and call for a new approach to reviewing student loan discharge matters.
Income based repayment plans have done much to alleviate student loan stress, but it is clear that the availability of these payment plans is not always the controlling factor in student loan cases.
For help with student loans and bankruptcy, contact Sam Turco Law Offices.
Image courtesy of Flickr and Mary McGuire
 

Ever wonder how some of our laws are passed?  Here is another example of an important change in the law buried in an innocuous bill.   Would you believe a highway funding bill could include a law allowing the IRS to hire private debt collectors?  Sounds ridiculous, right?  Surprise – take a look at the new “Fixing America’s Surface Transportation (FAST) Act” – a five-year highway funding bill.  The FAST Act became law on December 4, 2015.
Currently, the IRS is unable to collect $380 billion in tax debt – a 23 percent increase since 2009–according to a July report from the U.S. Government Accountability Office.  The bill may open the doors for debt collection agencies to pursue taxpayers who are currently working with the IRS (pending or active Offer in Compromise, taxpayers claiming innocent spouse relief) and taxpayers who are the victim of identity theft.
What could possibly happen when the IRS shares confidential information (social security numbers, bank account numbers and other sensitive info) with others??  How about increased likelihood of identity theft?  Certainly there will be a substantial increase in collection fees; applying payments to their fees ahead of the tax liability.  Most likely the IRS will refuse to talk to the tax payer once the debt is assigned to a debt collector.
So, what could possible go wrong with the little known, but huge change, in the current IRS rules and regulations?  Only time will tell.

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