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After filing bankruptcy, you will be required to go to bankruptcy court after filing a chapter 7 or chapter bankruptcy. All debtors must appear at the meeting of creditors. Some will need to appear to reaffirm car debt.
1. Bankruptcy Court's Meeting of Creditors
When filing a personal bankruptcy under a chapter 7 or chapter 13, you will be obligated to attend the "meeting of creditors." A "meeting of creditors" is not in front of a judge. --That's good news!-- Instead, you are examined by a trustee. For meetings held at the Fresno Federal Courthouse, there are 5 different trustees that run the meetings. These trustees have legal or accounting backgrounds.
Do you want to know where Fresno's bankruptcy court is located and details of what happens at a meeting of creditors? Here is a link to one of my more popular articles:
What to Expect At Meeting of Creditors at Fresno's Bankruptcy Court
Usually the creditors meeting takes place between 20 and 40 days after filing chapter 7. Chapter 13 meeting of creditors occurs a few weeks later.
The main goal of the meeting of creditors is for the trustee to ask questions of the debtor related to their financial condition. They want to see whether the debtor has any non-exempt assets that can be sold and paid to creditors. They also want to ensure the debtor is being honest about their financial situation. The meeting is set with other debtors. On average, the meeting lasts about 5 minutes. Some meetings, however, can last longer if there are complicated issues involved. Meetings can last longer because the debtor is represented by an unprepared attorney, or if the debtor is not represented by an attorney at all.
The meeting permits the trustee to review the debtor's petition and schedules with the debtor face-to-face. The debtor is required to answer questions under penalty of perjury.
2. Reaffirmation Hearing
Do you own a car with a loan? If so, your car loan is secured to the car, which means the creditor can repossess the car if you breach your contract. Most car creditors have the right to repossess the car, even though the debt owed to the car is discharged.
If you wish to keep your car, you will need to decide whether to "reaffirm" the debt. A reaffirmation agreement is an agreement by which a bankruptcy debtor becomes legally obligated to pay all or a portion of an otherwise dischargeable debt. The agreement must generally be filed within sixty (60) days after the first date set for the meeting of creditors, but before the discharge is entered. You do not have to reaffirm a debt. This is a voluntary agreement.
If you decide to reaffirm your secured property, like your car, the protections of the automatic stay are terminated. Since a reaffirmation agreement takes away some of the effectiveness of your discharge, legal counsel is advisable before agreeing to a reaffirmation.
If you are not represented by an attorney, you and the creditor will file an application for approval of the agreement, along with a request for hearing. An order approving the agreement should be brought to the hearing. You must appear in person at the hearing. The judge will ask you questions to determine whether the reaffirmation agreement imposes an undue burden on you or your family and whether it is in your best interests. The judge will only reaffirm those secured debts that you can afford and is important to you to make a living. The judges in Fresno do not reaffirm home loans.
Photo: Phil Roeder at Flickr
Searching for a bankruptcy lawyer can be a lot tougher than one might think. One of the main reasons for this is that people do not readily refer bankruptcy attorneys to other people because they don’t want to advertise to their friends, family, and co-workers that they had to file for bankruptcy. Thus, people are+ Read More
The post The Top Five Obstacles To Avoid When Searching For A Bankruptcy Lawyer appeared first on David M. Siegel.
The historic Detroit bankruptcy trial came to a close on Monday when city attorneys gave closing arguments as to why U.S. Bankruptcy Judge Steven Rhodes should approve the city’s bankruptcy plan.
Judge Rhodes is expected to announce his ruling on November 7.
Closing arguments highlighted the necessity to pass the debt-cutting plan, which would free Detroit from $7 billion in debt and open up money to improve city services.
The City of Detroit filed for bankruptcy in June 2003, claiming to owe over $18 billion in debt. The bankruptcy plan was revealed earlier this year: it aims to restructure and settle debts through several different severe measures, including reducing city employee pensions.
Funding of roughly $200 million will come from Michigan taxpayers and due to an agreement to not sell off art pieces from the Detroit Institute of Arts, the city will received nearly $500 million from private and corporate donors.
City lawyer Bruce Bennett identified the greatest risks that would stop Detroit from executing the debt-cutting strategy. He stated the plan could collapse if city leaders strayed from the plan to invest $1.7 billion.
"The worst thing that could happen is if the $1.7 billion is misused or perceived to be misused," Bennett said. "Either would be an enormous problem."
Detroit filed a Chapter 9 bankruptcy case, which is similar to the proceedings of a Chapter 11 business bankruptcy case. However, a main difference is the inability to liquidate assets if Judge Rhodes does not approve the plan.
"In Chapter 9 you have to have consensus because there's really no viable alternative," said John Pottow, professor of law at the University of Michigan. "If this plan gets shot down, you can't liquidate Detroit -- so it's literally just back to the drawing board.”
If Judge Rhodes approves Detroit’s bankruptcy, Bennett believes the city can start executing the plan before Thanksgiving.
The post Closing Arguments in Detroit Bankruptcy Trial appeared first on The Bankruptcy Blog.
Here at Shenwick & Associates, we counsel our clients to avoid violating any laws and regulations. While our colleagues of the criminal defense bar may lose work from such advice, it keeps our disciplinary record clean, our malpractice insurance premiums low and our clients out of trouble.
However, that's not always possible when dealing with marijuana, which remains a Schedule I substance under the federal Controlled Substances Act (which means that the federal government considers to have a high potential for abuse, no currently accepted medical use in treatment in the United States and there is a lack of accepted safety for use under medical supervision. In contrast, 23 states and the District of Columbia have enacted medical marijuana laws, and two states (Colorado and Washington State) have taxed and regulated marijuana for adult non–medical use. This November, Oregon, Alaska and the District of Columbia will be voting on the adult non–medical use of marijuana.
This fundamental conflict between federal law and state law has had unusual consequences for marijuana entrepreneurs. Due to an obscure provision of the Internal Revenue Code, marijuana businesses aren't able to deduct ordinary and necessary business expenses from their federal taxable income. And despite the issuance of new, highly restrictive guidelines by the Financial Crimes Enforcement Network in February on how banks can provide services to marijuana businesses without violating their obligations under the Bank Secrecy Act, marijuana businesses remain largely dependent on cash.
The latest example of the problems that the conflict between state and federal law can cause impacts one of main practices–bankruptcy and creditors' rights (we also have a residential and commercial real estate practice). In August, a United States Bankruptcy Judge in Denver dismissed the Chapter 7 case of Frank and Sarah Arenas. Mr. Arenas is in the business of wholesale marijuana production and distribution. The UST's motion to dismiss the case was based on Bankruptcy Judge Tallman's holding in a prior Chapter 11 Colorado bankruptcy case, In re Rent-Rite Super Kegs West Ltd.
In reviewing the United States Trustee's motion to dismiss and the Debtors' motion to convert the case to a case under Chapter 13 of the Bankruptcy Code, Bankruptcy Judge Tallman held that the Chapter 7 Trustee assigned to the case couldn't take control of Mr. Arenas' assets or liquidate his inventory without "directly involving [the Chapter 7 Trustee] in the commission of federal crimes." Similarly, the Debtors couldn't convert their case to one under Chapter 13 of the Bankruptcy Code (which would allow them to pay off debts over time) because the plan would be funded "from profits of an ongoing criminal activity under federal law" and involve the trustee in distribution of funds derived from violation of the law. Section 1325(a)(3) of the Bankruptcy Code requires that a bankruptcy court find that a plan is "proposed in good faith and not by any means forbidden by law" to be confirmable. Bankruptcy courts in California and Oregon have issued similar holdings.
In practice, this means that creditors of marijuana businesses should avoid involuntary bankruptcy filings against marijuana businesses, but may look to state law alternatives to bankruptcy, such as foreclosure under the Uniform Commercial Code, assignment for the benefit of creditors, composition and receivership.
Florida Exemptions
Florida is an "opt-out" state, which means that the federal exemptions are not used, except those referenced in Florid Statutes and others.HomesteadFlorida provides for a very generous homestead exemption, which though limited in the size of the parcel, the value of the real property is unlimited.Personal PropertyPersonal property in the amount of $1,000 is exempt, bu another $4,000 is allowed if a person does not have the benefit of a homestead exemption. Another $1,000 in equity in a vehicle is also exmption.Intangible Personal PropertyVarious other intangible prersonal property is also exempt, including some aspects of life insurance, disability insurance, social security, retirement benefits, workers's compensation, and unemployment benefits.Jordan E. Bublick is a Miami Bankruptcy Lawyer - www.bublicklaw.com
Florida ExemptionsFlorida is an "opt-out" state, which means that the federal exemptions are not used, except those referenced in Florid Statutes and others.HomesteadFlorida provides for a very generous homestead exemption, which though limited in the size of the parcel, the value of the real property is unlimited.Personal PropertyPersonal property in the amount of $1,000 is exempt, bu another $4,000 is allowed if a person does not have the benefit of a homestead exemption. Another $1,000 in equity in a vehicle is also exmption.Intangible Personal PropertyVarious other intangible prersonal property is also exempt, including some aspects of life insurance, disability insurance, social security, retirement benefits, workers's compensation, and unemployment benefits.Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
By Tara Siegel Bernard
Tracy S., 59, a technical writer for a large bank, divorced her husband just as the
housing market spiraled downward. They were forced to sell their home, just
outside Phoenix, for less than they owed, and the bank agreed to absorb the
difference, about $25,000.
“Our ability to pay and our credit was perfectly fine, but neither of us could
keep the house individually,” she said. Ultimately the house sold for about
$175,000, or 21 percent less than they originally paid.
Three years after the short sale, Tracy is a homeowner once again. She bought
a three-bedroom house for $190,000 in another Phoenix suburb this year, and
qualified for a traditional mortgage with a 20 percent down payment.
“I believed and was told that I was not going to get a mortgage for the first two
years after the short sale,” she said, asking that her last name not be used to
protect her privacy. “But after that, I hadn’t really planned and didn’t think I
would be able to get a mortgage.”
So far, she has been in the minority. Through the end of last year, only a tiny
sliver of borrowers tarnished by foreclosures and short sales during the economic
downturn had bought homes again, according to a study by Experian, one of the
Big Three credit reporting bureaus. These borrowers are generally locked out of
the mortgage market for two to seven years, depending on their circumstances.
But now, four years since foreclosures and short sales peaked in the Great
Recession, millions of former borrowers have spent the required amount of time
on the sidelines, which means they have cleared at least one of the major hurdles
required to qualify for another government-backed mortgage. Whether the rest of
their financial lives have sufficiently recovered — or whether they even want the
burden of a new mortgage — are still open questions. But there is early evidence
that some former borrowers are slowly returning.
“We certainly have heard from a number of lenders that boomerang buyers
are coming back,” said Michael Fratantoni, chief economist at the Mortgage
Bankers Association. He added that the situation varied across the country
because the foreclosure process takes longer in certain states.
Bank of America, one of the nation’s largest lenders, said that of all its
approved loans and loan applications from January through September, only
about 1 percent came from consumers with short sales or foreclosures. But some
mortgage brokers report that more people are calling: Deb Klein, senior mortgage
loan officer at Cobalt Mortgage in Chandler, Ariz., said 10 to 15 percent of the
loans she closes are for people with distressed home sales in their recent past. For
Rick Cason, of Integrity Mortgage near Orlando, Fla., it is two to three loans out of
every 10. Erik Johansson, a mortgage lender in Chicago, calls it a “steady drip that
has been increasing over time.”
There is a range of different requirements for obtaining new loans. In August,
for instance, Fannie Mae tweaked its rules for borrowers who went through short
sales and those who voluntarily signed a home over to a lender (through what is
known as a deed in lieu). Fannie said it would continue to permit loans as soon as
two years after those events hit borrowers’ credit reports, as long as they could
document that something like a job loss or a divorce pushed them over the
financial edge. (They also need a down payment of at least 5 percent.)
But if they cannot prove they had a financial hardship, consumers must now
wait four years after the event. (Previously, borrowers without hardships could get
a loan after two years with at least a 20 percent down payment, or after four years
with at least 10 percent.) Someone who went through a foreclosure must wait
seven years after it was completed, or as little as three years with “extenuating
circumstances” (and make a 10 percent down payment). Freddie Mac has similar
guidelines, but it requires a 10 percent down payment for seven years across the
board.
Many lenders have tighter rules, regardless of what Fannie and Freddie
permit. And Bank of America, Wells Fargo and JPMorgan Chase all said they had
decided not to participate in the Federal Housing Administration’s Back to Work
program, where borrowers who experienced some form of financial upheaval, such
as a job loss, may be able to get a loan backed by the agency just a year after the
loss of a home. (Normally, the F.H.A. requires borrowers to wait three years.)
Since the program’s inception in August 2013, a mere 337 borrowers had received
loans through September.
Still, the pool of potential so-called boomerang buyers has increased: 3.5
million borrowers lost homes to foreclosure between 2006 and 2010 and an
additional 757,500 went through short sales, according to RealtyTrac, which
means they are all at least four years from the event. At least 5.3 million are
estimated to have met the period required for loans backed by the F.H.A., which
has less onerous rules but generally more costly fees and insurance.
“The behavior of these potential boomerang buyers will be a big part of
shaping the U.S. housing market going forward,” said Daren Blomquist, vice
president at RealtyTrac. “The bigger question now becomes how many have the
stomach for homeownership again and how many will stay as long-term renters.”
Only a small fraction of people had actually qualified for new mortgages
through last year: Of the nearly 5.43 million owner-occupied homes that were
foreclosed on after 2007, only 2.1 percent of the borrowers, or 114,100, had
repurchased a primary home through the end of 2013, according to Experian,
which reviewed 10 percent of its 220 million credit files.
And of the nearly 809,000 short sales on owner-occupied homes that
occurred after 2007, 44,300 or almost 5.5 percent of the owners bought another
through the end of 2013.
Tammy and Mike Trenholm completed a bankruptcy in 2009 and a
foreclosure in 2010. But in March, they bought a five-bedroom home in the
Atlanta suburbs for $300,000. They qualified for a loan through a program backed
by the Department of Veterans Affairs, which is more forgiving than other
programs: It will generally evaluate borrowers two years after a bankruptcy or
foreclosure.
Their housing troubles started in Charleston, S.C. They bought a
five-bedroom for $570,000 in 2005, when the housing market was still skybound.
The next year, they bought an empty lot on their block to build a new house. They
planned to sell the old one, making some money in the process. “But it didn’t turn
out that way,” Ms. Trenholm said.
Their contractor made several expensive errors. And by the time the new
house was ready, the market had collapsed and they could not sell their older
home for enough money. They ultimately had to file for bankruptcy, and the new
house was foreclosed on. That took a toll on their credit scores, which are
recovering. “It was a matter of enough time passing,” Ms. Trenholm said.
Even with the passage of time, for many former borrowers, the experience is
still fresh. “I see a lot of people coming back into it with eyes wide open,” said
Angel Johnson, a real estate agent with Redfin in Phoenix. “They can get a loan,
but they are still spooked.”
Copyright 2014 The New York Times Company. All rights reserved.
The Oregon Bankruptcy Court’s recent ruling in In Re Watt requires a mortgage holder to accept title to a home surrendered in chapter 13 bankruptcy. Prior to In Re Watt, a borrower could surrender a home in Chapter 13 bankruptcy but wait for months, if not years, on end while the mortgage lender took its time foreclosing on the property. This was a particularly cruel fate for Oregon debtors with ongoing HOA obligations, but really a hardship for just about any Oregon homeowner/Chapter 13 debtor hoping to walk away from a property and really start over.
Oregon consumers who are currently in confirmed Chapter 13 bankruptcy cases should contact their attorneys to determine whether they now have the ability to force their lenders to take back the house.
The original post is titled Oregon Chapter 13 Bankruptcy for Homeowners New and Improved , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
Bankruptcy Provides Instant Relief When you file chapter 7 bankruptcy, the relief is instant. An automatic stay is created which is then sent to all of your creditors notifying them that you have filed for bankruptcy protection. Most collection efforts must cease from that point forward. You will have a meeting of creditors also referred+ Read More
The post Filing Bankruptcy Now Will Lead To A Fresh Start In 2015 appeared first on David M. Siegel.
One of the most frequent questions I get is: "How am I going to pay the attorney's fees and costs for a bankruptcy?"
Yes, we know you're seemingly strapped, but you actually have more resources than you realize.
Here are some:
1) Stop paying on the debt you are going to discharge anyway. In bankruptcy, almost all debts are dischargeable (wiped out). (There are a few, such as governmental fines, recent taxes, etc., but your bankruptcy attorney will identify them and discuss them with you.) The majority, such as credit cards, unsecured lines of credit, judgments, will be gone. Stop paying immediately and save up that money to finance your case. These are professional lenders, they understand.
And, by the way, once you hire an lawyer, you can stop the collector calls by simply telling them you have hired a bankruptcy attorney to prepare a case. Give them the name of your attorney, because they will call to confirm, and the calls will stop.
Professional lenders know they will be violating a court order by calling once you have filed, and since they don't know when you will file, as a matter of company policy, they usually stop the calls altogether. Whew.
2) Get a "loan" from your secured lenders. If you have a mortgage on a house you want to keep, you may actually be doing the mortgage lender a favor by skipping a couple payments to pay for your case. If your goal is to save your home, you will probably be filing a Chapter 13 bankruptcy to catch up on your back payments -- "cure the default" -- and make your regular payments going forward.
Believe me, the bank does NOT really want to take your home. They are not in the real estate business. They are in the lending business. They want you to pay the mortgage and pay the arrears -- that's where they make money. If you skip a couple payments to get the money to set up a payment plan to pay them in Chapter 13, as well as freeing up more money by wiping out your other "junk" debt, such as credit cards, as a business matter, they won't mind. You're going to pay back the missed payments in the plan anyway.
3) Get help from friends and family. Now is the time to reach out. Everybody has somebody who will help. Think. Oftentimes, it's somebody from your community, such as church or social group, with whom you have an affinity that will be there for you. You may be surprised.
And here's the benefit to them: Once you're debt-free, you'll have even more resources to be able to pay them back. And no. Please, don't tell me you have no friends and/or no family. If that's the case, you may need a Dale Carnegie course. (Remember him? The author of "How to Win Friends and Influence People." Google it.)
4) Take a "hardship loan" from your retirement plan. If you have a retirement plan at work, call the administrator and see if you can apply for a hardship loan from the plan. Most plans have this feature. Make sure it's a loan, do NOT take a withdrawal. If you take money out of retirement plan (as opposed to a loan you pay back), you will have to pay taxes on it as well as 10% penalty. I see too many people turn a debt problem into a tax problem (which is way more expensive and onerous) when they take out withdrawals from the retirement plan to pay debts. It's a no-no.
5) Use your tax refund. Like accountants, January through April can busy months for bankruptcy lawyers. Many people use their tax refund to pay the costs of a bankruptcy filing. It may work for you, too.
6) Go hi-tech: Crowd-fund your case. The Wall Street Journal today ran an article on the innovative use of "crowd-funding" to raise money for a variety of personal projects and causes, including:
- A 26-year-old woman trying to raise $3,000 on GoFundMe.com to go to circus school to be an acrobat.
- A group of young women using Tilt.com to raise money from participants for a bachelorette party.
- A 55-year-old woman who got laid off from her job, needed a break and got her friends to chip in $5,000 for a trip to Italy.
A quick perusal of the sites showed a variety of causes seeking funds for help for medical bills or funeral costs.
Who knows? It could be the wave of the future.
There are other ways to get the money to pay for a bankruptcy filing, depending on your particular situation. Sit down with an experienced bankruptcy lawyer and discuss it. We're creative. Give our office a call.
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