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The Ninth Circuit has now held that a debtor who sues for damages with respect to a violation of the automatic stay may recover the reasonable fees it incurs prosecuting the action, even after the stay violation is cured.
The Section 362 of the Bankruptcy Code’s includes a fee recovery clause: “An individual injured by any willful violation of a stay provided by this section shall recmover actual damages, including costs and attorneys’ fees.” Up until now, the 9th Circuit, in contrast to every other court held that section 362(k) allowed a debtor to recover only those fees incurred to end the stay violation itself, not the fees incurred to prosecute an action for damages. Of course this rule was of little help in combatting stay violations because most attorney fees for stay violations are incurred after the stay violation has ended. Debtors who wished to hold creditors accountable were forced to foot the bill. Now, at long last, debtors who previously lacked any real financial incentive to pursue damages for stay violations may now be more willing to bring those actions.
Please contact our office immediately, if you feel that your protections under the automatic stay provision has been violated.
The original post is titled Practical Improvement to Automatic Stay for Oregon and Washington Debtors , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
So what is a Zombie home? Have you seen homes sitting empty and abandoned for months or years? You have probably seen a Zombie home. The owner made a very difficult decision to abandon the home. The mortgages on the property far exceed its fair market value; meaning there is no equity in the home. In many situations the owner cannot afford to keep the mortgages current or maintain the property to keep it in good condition. The owner may abandon the home and move to another property or to live in the property until the lender forecloses. Even if the lender will agree to take less than the debt it is still impossible to sell the property because of the condition. End result – Zombie home.
Even though the owner abandons the home this does not relieve them of personal liability. The owner may have personal liability to someone who is injured on their property. The owner can be cited by the local municipality for failure to maintain the property. If there is a homeowner’s association the owner is most likely personally liable for homeowner’s dues and assessments.
Lenders may not start a timely foreclosure for many reasons. They may have too many properties in foreclosure in that area and are reluctant to put another property into foreclosure. The lender may be concerned about taking on the ownership responsibility of an abandoned home in poor condition. Detroit and other cities are faced with entire neighborhoods that are abandoned. These properties become areas of increased crime which add to the burden of the city’s public resources.
Recently there has been a move to use the bankruptcy process to take a run at this problem. A few creative bankruptcy attorneys are using the chapter 13 process to transfer ownership of the property to the secured lender with the confirmation of the chapter 13 plan. See In Re Stewart, 2015 Bankr. LEXIS 2948; 536 B.R. 273. Minnesota); In Re Zair, 235 B.R. 15 (E.D. N.Y. 2015), In re Rosa, 495 B.R. 522.)
This is a creative idea, but as of this writing has not been dealt with at the 9th Circuit. These cases profile courts’ frustration with lender’s failure to take reasonable and timely action to either foreclose on the property or forgive the secured debts.
Excerpts from Nebraska Debt and Bankruptcy Blog, By Sam Turco on October 6, 2015 Posted in Chapter 13 Foreclosure
The post Zombie Homes – Abandoned, Pre-Foreclosure Properties appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
You’ve heard about certain jobs that allow you to qualify for student loan forgiveness after a period of repayment. But how about just having the federal government pay your federal student loans for you?
No joke. Under a little known program called the Federal Student Loan Repayment Program, some agencies will actually pay your loans for you as a way to get you to take a job or remain in a particular position.
In fact, in 2014 there were 33 Federal agencies that provided 8,469 employees with a total of more than $58.7 million in student loan repayment benefits. That’s an average of $6,931 paid per employee.
Eligibility for the Program
Under federal law, agencies are allowed to set up their own student loan repayment programs to attract or retain highly qualified employees.
Any employee is eligible to participate in the Federal Student Loan Repayment Program, except those occupying a position excepted from the competitive civil service because of their confidential, policy-determining, policy-making, or policy-advocating nature.
Though the law says that the program is for, “highly qualified employees,” each agency gets to decide what that means. There’s no specific type of academic degree necessary, and every agency tailor their plans accordingly.
Therefore, an agency may specify the types of degrees and levels necessary to attain this goal.
How the Program Works
Each agency establishes its own plan authorizes a department or person to review and approve offers of student loan repayment benefits.
Though you may be eligible to participate, you aren’t automatically entitled to a student loan repayment just because they’re in a particular job. Each agency has discretionary authority to repay certain types of federally insured student loans as a recruitment or retention incentive.
If your agency allows you to participate then you’ll be required to sign a service agreement that spells out the terms of repayment as well as the length of time you’ll need to remain in the job. If you leave the job before completing the period of service required then you’ll have to reimburse the paying agency for the full amount of the loan repayment benefits provided.
The amount paid by the agency on your behalf is considered additional taxable income.
As a practical matter, this would be something you’d discuss with your employer before you take a particular job. As with any fringe benefit it’s something you can negotiate.
Which Loans Are Eligible?
The program allows for the payment of federally made, insured or guaranteed student loans only. You won’t be able to get your private loans repaid by virtue of the program, but getting those federal loans paid will leave you with more money available to use towards the private loans.
Loans eligible for payment are those made, insured, or guaranteed under parts B, D, or E of title IV of the Higher Education Act of 1965 or a health education assistance loan made or insured under part A of title VII or part E of title VIII of the Public Health Service Act.
Loans made or insured under the Higher Education Act of 1965 include the following:
Federal Family Education Loans (FFEL)
- Subsidized Federal Stafford Loans
- Unsubsidized Federal Stafford Loans
- Federal PLUS Loans
- Federal Consolidation Loans
William D. Ford Direct Loan Program (Direct Loans)
- Direct Subsidized Stafford Loans
- Direct Unsubsidized Stafford Loans
- Direct PLUS Loans
- Direct Subsidized Consolidation Loans
- Direct Unsubsidized Consolidation Loans
Federal Perkins Loan Program
- National Defense Student Loans (made before July 1, 1972)
- National Direct Student Loans (made between July 1, 1972, and July 1, 1987)
- Perkins Loans (made after July 1, 1987)
Loans made or insured under the Public Health Service Act include the following:
- Loans for Disadvantaged Students (LDS)
- Primary Care Loans (PCL)
- Nursing Student Loans (NSL)
- Health Professions Student Loans (HPSL)
- Health Education Assistance Loans (HEAL)
How Much of Your Loans Will the Agency Pay?
Remember, we’re not talking about Public Service Loan Forgiveness. This is an actual payment of your federal student loan made by a Federal agency that employs you. Therefore, there’s a limit of how much the agency will pay.
Each agency sets its own rules for repayment of loans through theFederal Student Loan Repayment Program, so it will differ from agency to agency. By law, each agency may made payments of up to a maximum of $10,000 for an employee in a calendar year and a total of not more than $60,000 for any one employee.
An agency may agree to make payments on those student loans taken out prior to the student loan repayment agreement, so any loans you take out once the agreement is signed aren’t going to be paid.
Given the fact that the federal student loan limit is currently set at $57,500 for undergraduates and $138,500 for those who have graduate or professional studies, those repayment limits can come in handy.
How Long You Need to Work
You need to work at the agency for as long as the agreement says – once again, each agency has its own program requirements.
Periods of leave without pay, or other periods during which the employee is not in a pay status, do not count toward completion of the required service period. The service completion date must be extended by the total amount of time spent in non-pay status.
However, federal regulations allows absence because of uniformed service or compensable injury to be considered creditable toward the required service period upon reemployment.
Agencies Offering Student Loan Repayment
According to government reports, here are some of the 33 federal agencies that offer student loan repayment programs:
- Department of Defense (DOD)
- Department of Justice (DOJ)
- Department of State (DOS)
- Securities and Exchange Commission (SEC)
- Department of Veterans Affairs (VA)
- Department of Health and Human Services (HHS)
- Government Accountability Office (GAO)
- Department of the Interior (DOI)
- Department of Housing and Urban Development (HUD)
- Department of Commerce
- Department of Energy
- Department of Transportation
- Department of Treasury
- Federal Energy Regulatory Commission
A Good Argument for Government Employment
Federal government benefits are the best there are, and retirement plans are terrific.
Federal student loans come with Public Service Loan Forgiveness after 10 years of timely payments made while employed full time with the government (among other employers). But if you’ve got $60,000 or less in federal student loans outstanding and can get into this program, your payments effectively go away immediately.
You’ve got to work anyway, so why not consider Uncle Sam as your employer of choice?
The post How to Get the Federal Government to Pay Your Student Loans appeared first on Shaev & Fleischman LLP.
According to a post by Kevin Carey, New York Times, reports that the Education Department released new data suggesting that the student loan system is failing and that, the loan crisis hits hardest at colleges enrolling large numbers of students from low-income backgrounds. Students are not able to find well-paying jobs that allow them to repay the loans, assuming they even graduate.
Recent research finding that student loan defaults are heavily concentrated among the most economically marginalized students, the new data suggests that debt is a major financial obstacle for people who already face barriers to opportunity.
Some of the numbers are startling. American National University — a for-profit chain offering degrees in business, health care and information technology, both online and at 30 campuses in six Midwestern states — has an official default rate of 8.5 percent, well below the national average of 11.8 percent. But its five-year nonrepayment rate is 71 percent. Even after seven years, most of the university’s students, the large majority of whom borrow, have failed to pay back a penny of their loans.
Continue reading the main story
Note from Diane: How is this nightmare possible? Colleges learned how to beat the default reporting system which is supposed to hold them accountable. They offer deferments and other short term programs that will allow the default rate to appear lower than it really is. Meanwhile these colleges continue to pull more and more students in with the promise of “free money” for their education. Originally this greed was relegated to for-profit schools, but the reports now show the non-profit (tax payer supported) schools are on the same gravy train.
What are the consequences to the borrowers? Many are faced with a financial burden they can never hope to pay off. Others are taught that you can borrow money and don’t need to pay it back. Still others are just looking for a free ride. Have we become a society that promotes free loaders? I hope not, but wonder where this will stop. I also wonder why a problem has to become so widespread before anyone does something about it (e.g. the mortgage loan crisis). Sometimes the solution is more disastrous than the problem it was designed to solve.
The post Student Loan Defaults Worse Than We Thought appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
There are many ways to treat a vehicle when filing chapter 13 bankruptcy. Not one answer fits every case. In fact, the answer is going to vary depending upon whether or not the debtor is current on the vehicle, whether the vehicle was purchased within the last two and half years, and whether or not+ Read More
The post Should I Pay My Car Inside Or Outside Of My Chapter 13 Bankruptcy Case? appeared first on David M. Siegel.
People have no idea how much they owe on their student loans, and that’s a major reason why default rates as so high.
A December 2014 study released by the Brown Center on Education Policy at Brookings indicates that about half of all students in the U.S. underestimate how much debt they have. 28% of students with federal loans said they had no federal debt, and 14% said they didn’t have any student debt at all.
With just a little organization you’ be in a better position to repay your student loans. But it’s so overwhelming that you don’t know where to start.
Today on The Student Loan Show I go through a 10-step process that will help you get organized and keep things on track.
Resources
- Student Loan Help Facebook Group
- Credit Card Repayment Calculator
- Student Loan Repayment Calculator
- AnnualCreditReport.com
- Experian
Subscribe to The Student Loan Show
If you like what you hear, please subscribe to the podcast on iTunes. You’ll get automatic updates every time a new episode goes live.
http://media.blubrry.com/studentloanshow/p/www.studentloanshow.com/wp-content/uploads/2015/10/032.mp3
The post Get Organized To Keep on Top of Student Loan Payments appeared first on Shaev & Fleischman LLP.
A sophisticated phone scam has been used to target bankruptcy filers in several states. The scammers are using personal information from filings and posing as attorneys to get intended victims to wire funds to satisfy their debts.
If someone calls you, as your bankruptcy attorneys, asking you for an immediate wire transfer to satisfy one of your debts, it is not your bankruptcy attorney, it is a scam artist. Apparently bankruptcy filers in Virginia and Vermont have been receiving spoofed calls where the scammer uses software that enables him to appear to be calling from the debtors’ attorneys offices. Typically, these the calls come late in the evening or during non-business hours to make it difficult for debtors to verify the call by calling their lawyer back.
Consumers receiving this kind of call are advised to hang up and contact their bankruptcy attorney as soon as possible. Do not give any personal or financial account information to the caller. Thankfully there have been no reports of these scammers attempting to take money from Oregon or Washington filers, but you never know.
The original post is titled Bankruptcy Phone Scammers! , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
Chapter 7 Bankruptcy The Straight Story In my last article I went over for you the basics of bankruptcy and briefly described the two most common types of bankruptcy used by individuals. Now I am going to spend some time focusing on the number one most common type of bankruptcy; the Chapter 7, which is […]
The post Chapter 7 Bankruptcy The Straight Story appeared first on Tucson Bankruptcy Attorney.
If you are facing foreclosure on your home, you may wonder what your best options are. Would it be best to list the home for sale and try to do a short sale? Should you file a deed-in-lieu of foreclosure? Should you do nothing and let the foreclosure process happen? Should you consider filing a Walworth County bankruptcy? Find out below how each of these processes may affect your credit score.
How a Walworth County Bankruptcy, Foreclosure, and Short Sale Affect Credit Score
If you go through with a short sale, deed-in-lieu of foreclosure, or a foreclosure, your credit score will drop 85 to 160 points (per FICO). If you file a Walworth County bankruptcy, your credit score will drop 130 to 240 points. However, don’t judge a book by its cover. A Walworth County bankruptcy is not necessarily the worst thing to do in these situations. Many other factors must be taken into consideration before making a final decision on what action is best for you.
Critical Criteria Important When Considering a Walworth County Bankruptcy, Foreclosure, or Short Sale
If you decide to go through with a foreclosure, you run the risk of the lender coming after you for more money. You may owe the lender the difference between the price your home sold for at public sale and what you still owe on your mortgage. Let’s say your home has a fair market value of $200,000 and it sold at public auction, after foreclosure, for $75,000. The financial lender can seek a judgment against you for the difference, which would be $125,000. That’s a lot of money, and another judgment on your credit report. However, if you decide to file a Walworth County bankruptcy instead, the $125,000 you would have owed the bank could be discharged in the bankruptcy proceeding and you would owe nothing. You do not even have to pay taxes on the forgiven debt. In this situation, a Walworth County bankruptcy looks like a much better option.
How a Walworth County Bankruptcy, Foreclosure, and a Short Sale Effect a Future Home Purchase
Do you plan on buying another home in the future? If so, then allowing a foreclosure to go through is not your best option. If you decide upon a bankruptcy, short sale, or deed-in-lieu of foreclosure, you will qualify for a home mortgage much sooner. Most banks follow Fannie Mae and Freddy Mac guidelines. Under these guidelines, if you place 20% down on your next home, you should qualify for a mortgage two years after performing a short sale or deed-in-lieu of foreclosure. If you have 10% to put down on a new home, you should be able to qualify for a new mortgage in four years. If you file bankruptcy, you will qualify for a mortgage two to four years from the date of your bankruptcy discharge, assuming you have been making all of your payments on time. If you let the foreclosure takes its course, you would not qualify for a new mortgage until seven years from the date of the foreclosure judgment. In addition, if the lender pursued a deficiency judgment against you for the difference between the price the home sold for at auction and how much you owed on the mortgage that deficiency judgment would have to be paid in full before you could close on a new home. In summary, if you are planning to purchase another home in the future, foreclosure may not be your best option.
Which Provides the Best Fresh Start Option: A Walworth County Bankruptcy, Foreclosure, or a Short Sale?
Although a Walworth County bankruptcy filing may initially drop your credit score, bankruptcy is the best option for a fresh start. During the time you are waiting to purchase another home, you can be rebuilding your credit and improving your credit score. Each person’s situation is different. If you are facing foreclosure, please seek advice from our real estate and bankruptcy attorneys. Please contact Wynn at Law, LLC for a free, initial bankruptcy consultation. Our experienced Walworth County bankruptcy attorneys can answer your questions and help you decide what the best option is for your specific situation. You can contact our Walworth County bankruptcy attorneys by phone at 262.725.0175 or by email via our website’s contact page. Wynn at Law, LLC has bankruptcy and real estate law office locations in Salem, Muskego, Delavan, and Lake Geneva.
Need Advice?
We assist clients in real estate and bankruptcy matters.
Call us.
262.725.0175
*The content and material on this web page is for informational purposes only and does not constitute legal advice.
When you’re served with a lawsuit for a credit card or other consumer debt, you’re like a deer frozen in the headlights. Maybe you don’t realize you’re being sued. Perhaps you don’t think there’s anything you can do to stop the wheels of justice from turning. Think again.
In courts all across the country, every day thousands of credit card issuers and debt buyers file lawsuits against people for unpaid debt. Stand at the clerk’s window and you’ll see people walk in with stacks of complaints that are inches high, and each one represents money in the bank for the credit card industry.
I’ve seen statistics saying that 80% of the credit card lawsuits filed in New York end up in a default judgment, and the numbers are higher elsewhere. Each one of these default judgments leaves consumers responsible for tens of thousands of dollars. The results include income executions, bank account restraints, and an ever-deepening cycle of financial difficulty.
In my firm, we see people every day with default judgments. Personally, I think that 80% figure is a low-end estimate.
If only people followed these simple steps to avoiding default.
Open Your Mail (No Matter How Scary It Is)
We’re raised to think the only way we can be served with a lawsuit is by personal service. Though that’s the preferred method, New York law allows the plaintiff (that’s the entity suing you) to serve you by mail if they can’t get it in your hand.
A copy needs to be posted on your door, but if you live in an apartment building there’s no telling how long that’s going to last before someone rips it down.
Maybe that’s the rule where you live. Maybe not.
To be safe, open the mail. If you’re being sued, you’ll get a copy in an envelope.
Read The Mail
Letters look like … well, like letters. Lawsuits have a different look to them.
Some courts say that a consumer credit lawsuit needs to have an indication at the top telling you that you’re being sued. Other places require the creditor to use certain color paper.
In any event, a lawsuit does NOT look like a letter.
If in doubt, take the complaint to a lawyer or the county clerk to have someone explain it to you.
Act Immediately
You get only a short amount of time to respond to a lawsuit before it goes to default, so don’t waste a minute.
Some states give you 30 days to answer the lawsuit, others give a different response deadline based on how your got the papers.
Most people have no idea of what the rule is in their state because it’s not something they’ve ever had to know. That’s why you should always act as if the response is due today.
Don’t wait, don’t forget, and don’t do it tomorrow.
Get down to the court to file an answer or speak with a lawyer to map out a defense. Every minute is precious.
Agree To Nothing
A lawsuit is nothing more than someone claiming something against you. In the case of a credit card collection suit, it’s just someone claiming you owe them money.
In order for them to get a judgment, they need to prove every single element of the case.
It’s your job to make them work for it.
Don’t call the creditor and give an excuse for nonpayment. Don’t agree to pay them any money. And whatever you do, don’t imagine for one minute that they’re trying to help you.
Remember That Words Mean Nothing
A phone call to the credit card collector or their lawyer will not protect your rights. Sending a letter begging for help doesn’t mean a thing.
The only way to protect yourself is to file an answer to the lawsuit. Anything less than that requires that you trust the debt collector to hold off on a default while you make a deal.
And if you trust the debt collector’s word then you’re in for a bad ending.
Get Help
For some people, defending the case is the right move. For others, bankruptcy or other settlement strategies work better.
You should spend some time with a lawyer like me who defends credit card collection lawsuits and also advises people about these other options.
If you find out that you can’t afford to hire a lawyer to defend you, find out if they offer reduced fees to help on a more limited basis.
And if that doesn’t work out, go to the court and ask the clerk if there are any pro bono (free) lawyers who can give you some pointers to handle it on your own.
At the very least, most courts will have some basic information on defending yourself.
Either way, you’re going to want to sit down with someone like me who can navigate the collection lawsuit waters.
The post 6 Steps to Preventing a Default Judgment appeared first on Shaev & Fleischman LLP.
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Learn more about how Bankruptcy works and what you need to know.