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While serving in the military, individuals have the same rights as regular civilians to file bankruptcy protection in order to save their valuable assets. However, individuals should keep in mind that certain high-ranking positions require security clearances that may not be available to people who have filed for bankruptcy. Nevertheless, there are no legal restrictions […]
The post Can You File Bankruptcy While in the Military? appeared first on Allmand Law Firm PLLC.
There are several ways to stop a wage garnishment. One of the ways that I deal with on a daily basis is by filing chapter 7 or chapter 13 bankruptcy for individuals and families struggling with debt. Chapter 7 bankruptcy filing involves the creation of an automatic stay. The automatic stay prohibits collection activities after+ Read More
The post How To Stop A Wage Garnishment? appeared first on David M. Siegel.
Judge Brian Lynch has now been appointed as Chief Bankruptcy Judge for the Western District of Washington effective October 1, 2014. Before joining the court, Lynch was a partner at the Seattle law firm of Bishop White & Lynch and then for years served as a Chapter 13 Trustee for the District of Oregon.
Read More
The original post is titled Judge Brian Lynch Now the Chief Bankruptcy Judge for Western District of Washington , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
When
someone files for bankruptcy, an estate is created that consists of, among
other things, any and all assets owned by, or to which the debtor filing the
bankruptcy case has a right to or interest in. This includes tangible
things such as real estate, vehicles, money, clothing, and jewelry, as well as
rights to property such as litigation claims.
In a
Chapter 7 case, all assets belong to the trustee on the date a case is filed
unless an exemption is claimed, and the trustee gets to keep, sell or otherwise
administer assets for the benefit of creditors.
When
it comes to determining "property of the estate," timing is
important. Generally speaking, a debtor gets to retain property acquired after
the bankruptcy filing occurs. Read More ›
Tags: 6th Circuit Court of Appeals, Chapter 7
A few days ago, the 11th Circuit Court of Appeals issued its decision in the case of Airtran Airways, Inc., v. Brenda Elem, et al., case 13-11738 (11th Cir. Sept. 23, 2014). This case involved a situation in which a Georgia attorney misrepresented to Airtran that the recovery on a vehicle accident for its employee was only $25,000. The actual recovery was $500,000 (one check for $25,000 and another for $475,000). Airtran was due a reimbursement of the medical costs it had paid under its employee welfare benefit plan.
Bad KarmaBut the Court stated that the attorney's "sin then found him out" (Bible, Numbers 32:23) when he accidentally sent Airtan a copy of the the $475,000 check instead of the $25,000 settlement check. The District Court entered summary judgment against the employee and the Georgia lawyer. On appeal, the 11th Circuit affirmed.
Legal or Equitable Relief?One of the grounds of the appeal it was the argument that Airtran was seeking a legal remedy, ie. a money judgment and not equitable relief that was permitted under the civil enforcement provisions of ERISA. Airtran argued that it was seeking equitable relief as its suit sought to recover "specifically identifiable funds" in the "possession and control" of the employee and attorney, and that the employee welfare benefit plan created an equitable lien on the funds.
The Court held that the relief sought Airtran "sounds in equity" and sought to enforce the equitable lien created by the plain terms of the employee welfare benefit plan agreement. The Court explained the distinction that the remedy of money damages "is quintessentially a remedy at law" and that for this reason, the employee welfare benefit plan could not "file suit against a beneficiary and seek recovery from 'assets generally' of that beneficiary." But the Court found that the relief sought was equitable in nature as it sought "specifically identifiable funds" in the "possession and control" of the beneficiary.
Equitable Lien Not DestroyedThe Court rejected the argument that Airtran was not pursuing equitable relief as the settlement funds had already been divided between the employee and her attorney. The Court held that "as soon as the settlement fund was identified, the plan imposed an equitable lien over that fund even though it was in the hands of the beneficiaries." The Court agreed with other circuit courts that held that [p]roperty to which the lien attached may be converted into other property without affecting the efficacy of that lien." In short, the Court explained the employee as a "constructive trustee could not destroy the lien that attached before . . . [the employee] divided the funds with her attorney" and that the specifically identifiable funds "did not disappear when they divided the money."
The Court rejected the remaining arguments of the employee and her attorney and upheld the District Court's summary judgment.
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
A few days ago, the 11th Circuit Court of Appeals issued its decision in the case of Airtran Airways, Inc., v. Brenda Elem, et al., case 13-11738 (11th Cir. Sept. 23, 2014). This case involved a situation in which a Georgia attorney misrepresented to Airtran that the recovery on a vehicle accident for its employee was only $25,000. The actual recovery was $500,000 (one check for $25,000 and another for $475,000). Airtran was due a reimbursement of the medical costs it had paid under its employee welfare benefit plan.
Widespread Use of ProverbsBut the Court stated that the attorney's "sin then found him out", alluding to the proverb (Numbers 32:23), when he accidentally sent Airtan a copy of the the $475,000 check instead of the $25,000 settlement check. Proverbs, including biblical proverbs, have been been long used in federal and state court decisions in the United States and around the world. One author wrote that proverbs are used in judicial decisions to "enable the avoidance of lengthy accounts which helps to both save time and to give an apt account of events" and to "question the logic of one's engagement in certain acts."
Bankruptcy Court ProverbsThe Supreme Court noted a proverb in the bankruptcy fraudulent conveyance context - "the proverbial "Elizabethan deadbeat who sells his sheep to his brother for a pittance.'" BFP v. Resolution Trust Corp., 511 US 531 (1994). The late Judge Pasky of the Middle District of Florida, in a situation of a failed chapter 11 case used the old Latin proverb "parturient montes nascitur ridiculus mus" ("that mightily labored the mountains just to give birth to a ridiculous mouse." In re Mandalay Shores, 62 B.R.758 (Bankr.M.D. Fla. 1986). Another bankruptcy court, As to the overzealousness of a bankruptcy trustee, wrote "never step oer one duty to perform another" (old English proverb).
Legal or Equitable Relief?Airtran filed suit to recover the funds from the employee and the attorney. The District Court entered summary judgment against the employee and the Georgia lawyer. On appeal, the 11th Circuit affirmed.
One of the grounds of the appeal was the argument that Airtran was seeking a legal remedy, ie. a money judgment and not an equitable relief that was permitted under the civil enforcement provisions of ERISA ("to enjoin any act or practice which violate any provision of this subchapter.") Airtran argued that it was indeed seeking equitable relief as its suit sought to recover "specifically identifiable funds" in the "possession and control" of the employee and attorney and that the provisions of employee welfare benefit plan agreement created an equitable lien on the funds.
The Court held that the relief sought by Airtran "sounds in equity" and sought to enforce the equitable lien created by the plain terms of the employee welfare benefit plan agreement. The Court explained the distinction that the remedy of money damages "is quintessentially a remedy at law" and that for this reason, the employee welfare benefit plan could not "file suit against a beneficiary and seek recovery from 'assets generally' of that beneficiary." But the Court found that the relief sought was equitable in nature as it sought "specifically identifiable funds" in the "possession and control" of the beneficiary.
Equitable Lien Not DestroyedThe Court rejected the argument that Airtran was not pursuing equitable relief as the settlement funds had already been divided between the employee and her attorney. The Court held that "as soon as the settlement fund was identified, the plan imposed an equitable lien over that fund even though it was in the hands of the beneficiaries." The Court agreed with other circuit courts that held that [p]roperty to which the lien attached may be converted into other property without affecting the efficacy of that lien." In short, the Court explained the employee as a "constructive trustee could not destroy the lien that attached before . . . [the employee] divided the funds with her attorney" and that the specifically identifiable funds "did not disappear when they divided the money."
The Court rejected the remaining arguments of the employee and her attorney and upheld the District Court's summary judgment.
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
A few days ago, the 11th Circuit Court of Appeals issued its decision in the case of Airtran Airways, Inc., v. Brenda Elem, et al., case 13-11738 (11th Cir. Sept. 23, 2014). This case involved a situation in which a Georgia attorney misrepresented to Airtran that the recovery on a vehicle accident for its employee was only $25,000. The actual recovery was $500,000 (one check for $25,000 and another for $475,000). Airtran was due a reimbursement of the medical costs it had paid under its employee welfare benefit plan.
Widespread Use of ProverbsBut the Court stated that the attorney's "sin then found him out," alluding to the proverb from Numbers 32:23, when he accidentally sent Airtan a copy of the the $475,000 check instead of the $25,000 settlement check. Proverbs, including biblical proverbs, have been been long used in federal and state court decisions in the United States and around the world. One author wrote that proverbs are used in judicial decisions to "enable the avoidance of lengthy accounts which helps to both save time and to give an apt account of events" and to "question the logic of one's engagement in certain acts."
Bankruptcy Court ProverbsThe Supreme Court used a proverb in the landmark bankruptcy fraudulent conveyance context - "the proverbial 'Elizabethan deadbeat who sells his sheep to his brother for a pittance.'" BFP v. Resolution Trust Corp., 511 US 531 (1994). The late Judge Alexander L. Pasky of the Bankruptcy Court of the Middle District of Florida, in a situation of a failed chapter 11 case used the old Latin proverb "parturient montes nascitur ridiculus mus" ("that mightily labored the mountains just to give birth to a ridiculous mouse." (Aesop's Fables, Horace) In re Mandalay Shores, 62 B.R.758 (Bankr.M.D. Fla. 1986). Another bankruptcy court, as to the overzealousness of a bankruptcy trustee, wrote "never step oer one duty to perform another" (old English proverb), In re Tremont Corp., 143 B.R. 989 (Bankr.W.D. N.Y. 1992). Also, "as innocent as a dove and wise as a serpent", In re Chuck's Const. Co., Inc., 424 B.R. 202 (Bankr. D. S.C. 2010) (as to a fiduciary's duty). Judge A. Jay Cristol of the Bankruptcy Court of the Southern District, citing the "proverbial baby cannot be divided in half." In re Harrington, 70 B.R. 301 (Bankr. S.D. Fla. 1987)(the losing party was bound to suffer by entry of the judgment). In re Brook, 132 B.R. (Bank. W.D. Missouri 1991) uses "she looketh as butter would not melt in her mouth" (John Heywood)(purported innocence of a bank).
Legal or Equitable Relief?In this case before the 11th Circuit Court of Appeals, Airtran filed suit to recover funds received by the employee and the attorney in the settlement of the injury claim . The District Court entered summary judgment against the employee and the Georgia lawyer. On appeal, the 11th Circuit affirmed.
One of the grounds of the appeal was the argument that Airtran was seeking a legal remedy, ie. a money judgment and not an equitable relief that was permitted under the civil enforcement provisions of ERISA ("to enjoin any act or practice which violate any provision of this subchapter.") Airtran argued that it was indeed seeking equitable relief as its suit sought to recover "specifically identifiable funds" in the "possession and control" of the employee and attorney and that the provisions of employee welfare benefit plan agreement created an equitable lien on the funds.
The Court held that the relief sought by Airtran "sounds in equity" and sought to enforce the equitable lien created by the plain terms of the employee welfare benefit plan agreement. The Court explained the distinction that the remedy of money damages "is quintessentially a remedy at law" and that for this reason, the employee welfare benefit plan could not "file suit against a beneficiary and seek recovery from 'assets generally' of that beneficiary." But the Court found that the relief sought was equitable in nature as it sought "specifically identifiable funds" in the "possession and control" of the beneficiary.
Equitable Lien Not DestroyedThe Court rejected the argument that Airtran was not pursuing equitable relief as the settlement funds had already been divided between the employee and her attorney. The Court held that "as soon as the settlement fund was identified, the plan imposed an equitable lien over that fund even though it was in the hands of the beneficiaries." The Court agreed with other circuit courts that held that "[p]roperty to which the lien attached may be converted into other property without affecting the efficacy of that lien." In short, the Court explained that the employee as a "constructive trustee could not destroy the lien that attached before . . . [the employee] divided the funds with her attorney" and that the specifically identifiable funds "did not disappear when they divided the money."
The Court rejected the remaining arguments of the employee and her attorney and upheld the District Court's summary judgment.Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
A U.S. bankruptcy judge has dismissed the case of a Colorado marijuana business owner, stating that while he is in compliance with state law, he is breeching the federal Controlled Substances Act.
Frank Arenas, wholesale distributor and producer of marijuana, was seeking Chapter 7 bankruptcy protection. According to his petition, he owes $556,000 to unsecured creditors.
He testified he owns roughly 25 marijuana plants, each valued at $250, which Arenas would have liquidated into payments in his Chapter 7 case. However, the trustee could not take control of the plants without breaking federal law.
Additionally, Arenas’ case could not be converted to a Chapter 13, which would permit him to pay off his debts gradually, because, as Judge Howard Tallman writes, the agreement would be financed “from profits of an ongoing criminal activity under federal law.”
"Violations of federal law create significant impediments to the debtors' ability to seek relief from their debts under federal bankruptcy laws in a federal bankruptcy court," Judge Tallman added.
Arenas’ case the second marijuana business bankruptcy dismissed in Colorado including a marijuana business; a least two other cases have been discharged in California.
The inability to file for bankruptcy is one of many issues marijuana business owners currently face.
Forbes reported last week how many banks are leery to deal with marijuana businesses because of potential legal problems they could face. Bank personnel could be prosecuted for a number of crimes, such as money laundering or marijuana conspiracy, and face up to 10 year mandatory minimum sentences, depending on the amount of pot in question.
At this time, marijuana business owners will be caught between state and federal law, according to Sam Kamin, a law professor at University of Denver.
"As long as it is illegal under federal law, we are going to have weird anomalies like that," Kamin said.
Arenas is appealing Judge Tallman’s decision.
The post Colorado Marijuana Business Bankruptcy Case Dismissed appeared first on The Bankruptcy Blog.
I just got a recent call from a woman who has been a client for approximately 9 months. She was set up on a payment plan, however has not made a payment in over five months. It turns out that one of the creditors has obtained a judgment and has now served her employer with+ Read More
The post I Provide Solutions, But I Can’t Make You Follow Through appeared first on David M. Siegel.
If you’ve got a debt from years ago, don’t make the mistake of prolonging the negative impact is has on your credit history.
Old debts can plague your credit for years, dragging down your score long after the date you went into default.
In fact, according to credit reporting agency Equifax, a collection account will usually remain on your credit report for seven years from the date the account first became past due.
That means a debt six years past due will stay on your credit report for one more year, at which time it falls off your credit report.
Once a debt falls off your credit report, it will no longer drag down your credit score.
But let’s say you’re impatient and decide to settle a debt that’s five years old. Smart move, right?
Not necessarily.
Credit accounts generally remain on your credit file for up to ten years from the date of last activity on the account. That means the debt will be reported for ten years following the date of payment – so if you pay a debt in full after five years, it will be reported for a total of 15 years (5 years of past due status PLUS 10 years of reporting after payment in full).
If you’ve paid the debt in full on a timely basis, that’s not terrible. The history of payment shows you were on top of things, and there’s no negative notation on your credit file.
But if the debt was past due or charged off, paying it after five years means there is an additional decade during which the notation that it was paid after being past due will show up on your credit report.
That may not drag your score down for more than a few years, but it still means you may have some explaining to do in the event that a new lender pulls your credit report.
The better way might be to simply … do nothing. Let the unpaid debt fall off your credit report and move on with your life once it’s gone.
That tactic may not work for everyone in every situation. For example, if you need to resolve some old debt in order to get a new job then you don’t have the luxury of time.
In addition, there’s always the chance that the creditor sues you during the applicable statute of limitations. In that case, you may have larger legal obligations to worry about.
But if you’ve got the ability to wait it out – and are prepared for the consequences of your actions, both good and bad – it may not be a bad idea.
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