Blogs

From another attorney in a national consumer listserv:

Yesterday at a 341 meeting, a client was asking about the Saturday call from “my office” two Saturdays before. It from a male assistant that said a fax came into my office on the Friday night before the phone call that my client would be arrested on Monday if $600 was not paid immediately. Because the call was from my number they believed the person when they said that this particular debt (from 2011) was not dischargeable and could not be listed in the bankruptcy and had to be paid before Monday or a warrant would be issued. The number that showed up on their cell phone was my telephone number. (I do not have a male assistant) The call was deliberately on Saturday to prevent my clients from calling my office and following up. They panicked and borrowed the money and sent it by Western Union. (The alleged creditor was an internet creditor listed on the petition.) We don’t know if it was really that creditor or someone that got access to the bankruptcy petition and used the information there to pull off this scheme. When I informed the other attorneys at this 341 meeting. I was told that these scum bags can emulate any telephone number and have it show up on the cell phone. There is currently a problem with calls from state court phone numbers alleging arrest unless a bill is immediately paid by Western Union.

My warning – we can no longer assume that the caller id on our phones is correctly identifying the caller’s identification.  Make sure to talk to your attorney whenever you are contacted by someone who alleges you can be arrested for not paying your bills.  Many debt buyers will stoop to any form of fraud or criminal acts.  Do not let anyone bully you into paying any money without checking out the validity of their claims.

The post Phone Calls Pretending to be From Attorney’s Office appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.

The Bankruptcy Code provides in section 522(b)(3)(B) in general for the exemption of property held as a tenant by the entirety or joint tenant to the extent that it is exempt from process under state law.Tenancy by the entireties is certain property held between a husband and a wife.
The Havoco case reviewed that property held in a tenancy by the entireties is generally exempt from the claim of individual creditors under Florida common law but is not exempt to the extent of joint debts of both spouses or to the extent of a fraudulent conveyance into the property.

Tenants by the Entireties

Under Florida law, property held by a husband and wife as tenants by the entireties belongs to neither individual spouse, but to a separate entity referred to as the "unity" or "the marriage." Florida law recognizes that entireties estates can exist in both real and personal property. Property held as tenancy by the entireties generally possesses six characteristics:

1. unity of possession - unity of joint ownership and control  
2. unity of interest, 
3. unity of title - the interests must have originated in the same  
4. unity of time - the interests must have commenced simultaneously  
5. survivorship
6. unity of marriage - the parties must be married at the time they took joint title (unity of marriage).

Tenants by the Entireties and Real Estate 

Florida law provides that real property held by a husband and wife in joint names is held in a tenancy by the entireties absent some express indication to the contrary. Beal Bank, SSB v. Almand and Associates, 780 So. 2d 45 (Fla. 2001). Florida law also provides a presumption that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the unities of possession, interest, title, and time are met. Various court decisions extend the presumption in favor of a tenancy by the entireties to personal property in various manners. Some courts extend the presumption to all personal property.

Tenants by the Entireties and Personal Property

Household furnishing acquired during a marriage may also be found to be held in tenancy by the entireties. In the In re Kossow case, the Court allowed the tenancy by the entireties exemption of certain household furnishings acquired during the marriage as there was no evidence to rebut the presumption. The Court also allowed the tenancy by the entireties exemption of other household furnished acquired prior to the marriage as it found that it was subsequently assigned to the marriage. The Court further found the joint federal income tax refund as exempt tenancy by the entireties property.

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

There’s a new clock out there to obsess over – the student debt clock. It shows that we’re racking up more and more debt by the second – in fact, America’s student-loan debt is growing by a whopping $3,055 every second.
If that doesn’t make you start asking questions about where this is all headed, nothing will.
| StartClass!function(d,s,id){var js,fjs=d.getElementsByTagName(s)[0],p=/^https:/.test(d.location)?'https':'http';if(!d.getElementById(id)){js=d.createElement(s);js.id=id;js.src=p+"://cdn1.findthebest.com/rx/widgets.js";fjs.parentNode.insertBefore(js,fjs);}}(document,"script","ftb-widgetjs");
As the kids say, I can’t even.

The post Student Debt Clock Shows Scary Growth In What We Owe appeared first on Bankruptcy and Student Loan Lawyers - 866.787.8078.

By:  Steven P. Taylor
Law Office of Steven P. Taylor, PC
Bankruptcy Rule 3002(c) requires creditors to file proofs of claim within 90 days of the date set for the meeting of creditors.  However, getting a timely filed proof of claim by a mortgage creditor has long been an exercise in frustration. This has been due to significant changes in the proof of claim form that creditors must file to support their claims in bankruptcy.  Some of these changes are the explicit requirement that all writings supporting a claim or showing perfection of a security interest must be attached.   In addition, the signer of the proof of claim must include a statement under the penalty of perjury that all of the information is “true and correct to the best of the signer’s knowledge, information, and reasonable belief.”  The practical effect of these requirements is that creditors personally review all information and supporting documentation with greater scrutiny to avoid issues and liability.
Bankruptcy courts have come to conflicting conclusions on whether Rule 3002(c)’s deadline applies to all creditors or merely unsecured ones.  However, a recent Seventh Circuit decision has not only impact for creditor practice for proof of claim filings but debtor’s counsel. In re Pajian,  No. 14-2052 (7th Cir. May 11, 2015).   In re Pajian involved the debtor’s objection to a proof of claim filed by his secured creditor more than 90 days after the meeting of creditors. The bankruptcy court overruled the debtor’s objection as to the secured portion of the claim, concluding that a secured creditor seeking a distribution under a debtor’s plan need only file a proof of claim before the plan’s confirmation.
The Seventh Circuit reversed that decision and concluded that all creditors are bound by the Rule 3002(c) deadline.  It is blackletter law that a secured creditor’s failure to file a claim does not void its lien.  This is codified in 11 U.S.C. §506(d)(2).  The secured creditor’s failure to file a claim means that the creditor does not participate in the distribution from the bankruptcy estate.  Only  the Chapter 13 Trustee or the Debtor may file a timely proof of claim (for thirty days) after the secured creditor has failed to do so timely.
Unfortunately that also means that the carefully crafted Chapter 13 plan that provided for Trustee conduit mortgage payments and cure payments for the mortgage arrears is now worthless unless the debtor (through counsel) or the Chapter 13 Trustee does file a proof claim on the mortgage company’s behalf.  If that is not done, you could be contributing disposable income that will not go to the intended secured creditor, but ultimately unsecured creditors.  This could expose your client to a deficiency at the end of the bankruptcy.  It would seem unlikely that negligently failing to file a proof of claim (based on your plan numbers) to protect your plan and your client would not raise issues of legal malpractice.  To establish legal malpractice under negligence, it is necessary to demonstrate the following:

• The lawyer owed a duty to provide competent and skillful representation;
• The lawyer breached the duty by acting carelessly or by making a mistake;
• The lawyer’s breach caused an injury or harm;
• The harm caused a financial loss.

On the other side, very rarely does Debtor’s counsel have all of the supporting documents of the debt, evidence of the perfection or sometimes even the proper party to receive payments.  Conceivably, debtor’s counsel may need order a title search and obtain missing documents to ensure that he can file a proof of claim with a “reasonable belief”.  In addition, most attorneys are not well versed in the minutiae of escrow analysis or amortization tables.  It is not likely that a Debtor’s proof of claim (in a mortgage context) is going to be somewhat accurate as to the ongoing payment if there is any kind of arrearage at all.  Potentially, the failure to provide accurate information could lead to sanctions from the court.  The penalty for filing a fraudulent claim is a fine of up to $500,000 or imprisonment for up to 5 years, or both.
Filed under: Chapter 13 Bankruptcy Tagged: bankruptcy, Bankruptcy Rule 3002(c), legal malpractice, proof of claim