Blogs
Life in the Sweatbox
(reprinted from Credit Slips)
Pamela Foohey, Indiana University Maurer School of Law
Robert M. Lawless, University of Illinois College of Law
Katherine M. Porter, University of California – Irvine School of Law
Deborah Thorne, University of Idaho
Date Written: February 20, 2018 94 Notre Dame Law Review __ (forthcoming 2018)
Abstract
The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging.
During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and other property, and yet remain ashamed of needing to file.
Strugglers: those who need help, but afraid to ask
For these people in particular, though time in the sweatbox undermines their ability to realize bankruptcy’s “fresh start,” they do not file until long after the benefits outweigh the costs. This Article’s findings challenge longstanding narratives about who files bankruptcy and why. These narratives underlie our laws, influence how judges rule in individual cases, and affect how attorneys interact with their clients.
Read article….
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About the Author:
Diane L. Drain is a well known and respected Arizona bankruptcy attorney. She is an expert in both consumer bankruptcy and Arizona foreclosure. Since 1985 she has been a dedicated advocate for her clients and spokesperson for Arizona citizens. As a teacher and retired law professor, Diane believes in offering everyone, not just her clients, advice about the Arizona bankruptcy and foreclosure laws. She is also a mentor to hundreds of Arizona attorneys. 
I would be flattered if you connected with me on GOOGLE+
*Important Note from Diane: Everything on this web site is available for educational purposes only, is not intended to provide legal advice nor create an attorney client relationship between you, me, or the author of any article. Any information in this web site should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state.*
The post “Life in the Sweatbox” for Strugglers: appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
Life in the Sweatbox
(reprinted from Credit Slips)
Pamela Foohey, Indiana University Maurer School of Law
Robert M. Lawless, University of Illinois College of Law
Katherine M. Porter, University of California – Irvine School of Law
Deborah Thorne, University of Idaho
Date Written: February 20, 2018 94 Notre Dame Law Review __ (forthcoming 2018)
Abstract
The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging.
During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and other property, and yet remain ashamed of needing to file.
Strugglers: those who need help, but afraid to ask
For these people in particular, though time in the sweatbox undermines their ability to realize bankruptcy’s “fresh start,” they do not file until long after the benefits outweigh the costs. This Article’s findings challenge longstanding narratives about who files bankruptcy and why. These narratives underlie our laws, influence how judges rule in individual cases, and affect how attorneys interact with their clients.
Read article….
Share this entry
About the Author:
Diane L. Drain is a well known and respected Arizona bankruptcy attorney. She is an expert in both consumer bankruptcy and Arizona foreclosure. Since 1985 she has been a dedicated advocate for her clients and spokesperson for Arizona citizens. As a teacher and retired law professor, Diane believes in offering everyone, not just her clients, advice about the Arizona bankruptcy and foreclosure laws. She is also a mentor to hundreds of Arizona attorneys.
I would be flattered if you connected with me on GOOGLE+
*Important Note from Diane: Everything on this web site is available for educational purposes only, is not intended to provide legal advice nor create an attorney client relationship between you, me, or the author of any article. Any information in this web site should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state.*
The post “Life in the Sweatbox” for Students: appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
By Andrew Kreighbaum The Department of Education signaled Monday that it is interested in tweaking the standards used for determining whether student loan debt can be discharged in bankruptcy.
That could point to an opening for potential bipartisan cooperation between the department and Democrats like Senator Elizabeth Warren, who have long sought to loosen bankruptcy law so student borrowers can discharge their debt.
However, what steps the department might take in that regard, including issuing new guidance or working with Congress to change the law, are unclear.
In a Federal Register notice, it requested public comments on the process for evaluating claims of “undue hardship” -- the standard student borrowers must clear to be able to discharge their loans through bankruptcy.
An Education Department spokeswoman said the notice should speak for itself. The document doesn’t indicate the steps the department may take, but consumer groups that work on student loans and bankruptcy issues said it would be hard to narrow the current standards.
Getting student loans discharged through bankruptcy is notoriously difficult. A 2005 federal law barred most student loan borrowers from that option unless they could demonstrate that they would suffer undue hardship from being forced to pay the loans.
Congress, however, has never defined what undue hardship means and didn’t delegate to the department the ability to do so. That’s left it to the courts to establish their own standards.
But debt holders and Department of Education contractors have often sought to aggressively block those undue hardship claims via litigation.
“It’s a very difficult hurdle for most consumers,” said John Rao, an attorney with the National Consumer Law Center and an expert on bankruptcy issues.
In 2014, the obstacles created by contractors prompted congressional Democrats, including Warren, to write to then education secretary Arne Duncan urging new federal guidance that would make clear specific minimum criteria for an undue hardship claim.
Among those criteria, the Democrats wrote that receiving disability benefits under the Social Security Act or being determined to be unemployable because of a service-connected disability should qualify a borrower as having an undue hardship. Contractors should accept proof of those or other criteria from a borrower without a formal litigation discovery process, the Democrats said.
The guidance released by the department the following year disappointed many Democrats and consumer advocates.
Clare McCann, deputy director of higher education policy at New America and a former Obama Education Department official, said the department’s call for comments appears to signal that it wants to broaden the definition of undue hardship. She said whatever change the department or Congress makes will have to strike the proper balance.
“You want to make sure it captures people who aren’t able to pay and won’t be able to pay over the long run, so you’re not wasting energy collecting debts you’ll never be able to collect on,” she said of the standards.
Opening up bankruptcy standards too wide, McCann said, could mean the federal student loan program becomes much more costly.
A report this month from the Department of Education’s inspector general found that the popularity of income-driven repayment plans and loan forgiveness programs could mean the federal government soon starts losing money on the student loan program.
But Rao said only a small percentage of consumer borrowers file for bankruptcy now.
“These are individuals who have some kind of hardship that is lasting, or they’re in a position where maybe they went to college and never got a degree,” he said. “In the case of some borrowers, they’re just not going to be able to repay the loan.”
Jason Delisle, a resident fellow at the American Enterprise Institute, said after the addition of multiple income-driven repayment programs for student loans since 2005, there is less of a case to be made for widening bankruptcy standards for federal student loans than for private loans.
“There are costs that go well beyond discharging loans for people who can’t pay,” he said. “There are also costs to discharge loans for people who can pay.”
Copyright 2018 Inside Higher Ed. All rights reserved.
As reported by the New York Times and the New York Post, on February 5th, a taxi driver drove up to the steps of City Hall and took his own life. Douglas Schifter posted on Facebook that morning that he had worked 100-120 consecutive hours almost every week for more than 14 years. Despite his grueling work schedule, he was no longer able to afford health insurance or vehicle maintenance and repairs and had maxed out his credit cards. He blamed Governor Cuomo, Mayor de Blasio and former Mayor Bloomberg for increasing the number of livery cars and taxis on the streets of NYC.
We feel for Mr. Schifter and other taxi drivers and medallion owners; his story and other stories we have heard are modern-day tragedies. By way of background, for those who aren’t familiar with the taxi industry in New York City, taxi drivers either own their own medallion or lease the use of a medallion to drive in the city.
Our taxi driver clients indicate that on average they are working 30% longer each week and regrettably earning 30 to 40% less money each week. Their competition from Uber, Via, Lyft and black cars has increased tremendously, along with the costs associated with driving a cab.
For those drivers that purchased their medallion in the last three years, the situation is equally bleak. Three years ago, taxi medallions were selling for approximately $1,300,000 per medallion. Last month’s sales based on data from the TLC indicate that the average medallion is now selling for approximately $186,000 – a drop in value of approximately 86%. Moreover, many of our clients have refinanced their medallions through banks or credit unions, and with the drop in the value of taxi medallions, those taxi medallions are also “underwater” (the value of the medallion is exceeded by the debt secured by it). Additionally, our clients tell us that the costs associated with owning a taxi medallion, such as the TLC mandated costs and expenses, have increased as well.
Unfortunately, for taxi drivers, there are no easy solutions, other than to stop driving and consider another occupation or job. Fortunately for owners of taxi medallions, relief may be found in filing for personal bankruptcy or doing asset protection planning and a workout with the bank or credit union that holds their taxi medallion loan.
If you’re an overburdened taxi medallion owner struggling with an underwater medallion or other debt, please don’t despair–we can help you. Please contact Jim Shenwick.
The United States Bankruptcy Court for the Western District of Michigan recently issued an opinion in a case that involved mutual claims between the debtor and a creditor, and lifted the automatic stay to allow a creditor to exercise “setoff” rights provided by state law to recover its debt.1 Read More ›
Tags: Chapter 13
By WINNIE HU
In Chicago, a 15-cent fee on Uber, Lyft and other ride-hailing services is helping to pay for track, signal and electrical upgrades to make the city’s trains run faster and smoother.
Ride-hailing trips in Philadelphia are expected to raise $2.6 million this year for the city’s public schools through a 1.4 percent tax that will also generate more than a million dollars for enforcement and regulation of the ride-hailing industry itself. In South Carolina, a 1 percent ride-hailing fee has yielded more than a million dollars for municipalities and counties to spend as they choose.
And Massachusetts began collecting 20 cents for every ride-hailing trip this month, earmarking the revenue to improve roads and bridges, fill a state transportation fund and even help a rival — the struggling taxi industry — adapt with new technologies and job training.
As ride-hailing services become a dominant force across the country, they have increased congestion, threatened taxi industries and posed political and legal challenges for cities and states struggling to regulate the high-tech newcomers. But they are also proving to be an unexpected boon for municipalities that are increasingly latching onto their success — and being rewarded with millions in revenue to pay not only for transportation and infrastructure needs, but also a host of programs and services that have nothing to do with the ride-hailing apps.
Now New York is seeking to join this growing wave with a new surcharge on ride-hailing and taxi trips that could become a central piece of an ambitious congestion pricing plan for Manhattan. A state task force has proposed fees of $2 to $5 per ride that would be among the highest in the nation — and could generate up to $605 million a year for the city’s failing subway system.
“We used to have yellow cabs, we now have yellow cabs and black cars and green cars and every color in the rainbow and they cruise downtown Manhattan to pick up fares,” Gov. Andrew M. Cuomo has said. “That is one of the first places I would look to reduce congestion and to raise money.”
Even as President Trump promotes a plan to rebuild the country’s tattered infrastructure, many local governments are not waiting to see what, if any, help Washington provides and are finding novel ways to pay for transportation and other public works projects.
Across the nation, more than a dozen states and municipalities have imposed fees or taxes on ride-hailing companies or their passengers, or sometimes both, and many more are considering such measures, according to transportation and tax experts. Advocates for the charges contend that the ride-hailing cars should pay for using public streets and resources, contributing to gridlock and pollution, and siphoning passengers and fares from public transit.
“If they want to share the pie, then they have to pay the price,” said Fayez Khozindar, the executive director of the United Taxidrivers Community Council, an advocacy group for taxi drivers in Chicago. “It’s fair because we know the city is short on funds and they want to fill the hole.”
But some drivers and passengers for the ride-hailing companies say they have been unfairly singled out — in many places the new fees do not apply to taxis.
“Uber and Lyft have always been an easy target for cities looking for new streams of revenue,” said Harry Campbell, a driver for Uber and Lyft in California who writes a popular blog, The Rideshare Guy.
In New York and Chicago, Uber and Lyft have said they see their services as complementing the public transit systems and providing another option for riders, especially in transit deserts with few bus routes and train lines. Uber supports a congestion plan for Manhattan — even running an ad campaign backing the idea —as long as it does not single out for-hire vehicles.
“A comprehensive congestion pricing plan that is applied to all vehicles in the central business district is the best way to fully fund mass transit, reduce congestion and improve transportation for outer borough New Yorkers,” an Uber spokeswoman, Alix Anfang, said. “A surcharge alone will not accomplish these goals.”
Last year, New York State approved a 4 percent assessment on ride-hailing trips that begin outside New York City (rides in the city are already subject to state and local taxes). It is expected to raise $24 million a year for the state’s general fund though one state legislator, Senator John E. Brooks, a Democrat from Long Island, has proposed legislation to direct that revenue to local bus and commuter rail services. “We need to think creatively and outside of the box in order to improve
funding for local transit,” he said.
The new fees and taxes are often part of broader regulatory measures as states and localities scramble to update tax codes and laws that have not kept up with the proliferation of app-based ride services. For instance, a Georgia state tax applies to rides in taxis but not ride-hailing cars even though they essentially do the same thing, said Carl Davis, research director for the Institute on Taxation and Economic Policy in Washington.
“A lot of tax codes weren’t set up to take them into account,” Mr. Davis said.
“They’re so new they didn’t even exist a decade ago. It’s an emerging tax issue, and states and localities are playing catch up.”
South Carolina added a 1 percent fee to ride-hailing trips in 2015, in part to establish a single regulatory framework and block local efforts to charge prohibitively high fees to keep them out, state officials said. Now that fee has become a source of extra cash. The city of North Charleston, for instance, receives more than $30,000 annually and uses it for municipal operations.
In Oregon, Portland officials initially barred Uber but eventually agreed to allow it and Lyft to operate through pilot programs. In 2016, the city sought to create a single standard for taxis and ride-hailing cars and assessed a 50-cent ride fee on both of them, which is paid by passengers.
The 50-cent fee has added up to more than $8 million to help pay for city enforcement efforts, including spot inspections of cars and incentives to companies and drivers to choose wheelchair accessible cars. The fee “hasn’t been a barrier to the riders at all as the ride-hailing services have continued to expand,’’ said Dave Benson, a senior manager for the Portland Bureau of Transportation. “We haven’t seen the top yet.’’
Still, many Portland taxi owners and drivers say the fee has hurt them more than their rivals. Noah Ernst, a superintendent for Radio Cab, said many taxi drivers feel the 50-cent fee means a smaller tip because passengers lump everything together when they pay. Taxi companies also face the headache of trying to collect the fee from drivers.
He added that taxis continued to face more stringent safety, equipment and insurance requirements, and were targeted more often for inspections because their cars were easily identified by company colors and logos.
“It’s not an equal playing field at all and we were trying to tell them this the entire time they were rewriting the code,” he said.
As a result, he said, taxi companies are struggling and at least two have gone out of business. His company, Radio Cab, has lost more than a third of its business since 2015.
Chicago officials have calculated that ride-hailing companies have cost the city about $40 million a year in lost revenue from transit fares, parking fees, licenses and permits. In 2014, the city imposed a 20-cent fee on ride-hailing trips in response to concerns that taxis were being undercut. Two years later, that fee went up to 50 cents, with an additional two-cent fee paid by the ride-hailing companies themselves. And now, the new 15-cent fee for the transit system brings the total to 65 cents for passengers.
The city also assessed a separate $5 fee on passengers who were picked up or dropped off by ride-hailing cars at the major airports, the convention center and the Navy Pier, a popular tourist destination.
The ride-hailing fees produced nearly $39 million for the city’s general fund in 2016, up from about $100,000 in 2014, according to city estimates. Last year’s revenue, which is still being collected, is expected to reach $72 million.
“It’s a fairly new industry and once they actually got settled in the city we saw a lot of growth,” the Chicago budget director, Samantha Fields, said.
Mayor Rahm Emanuel of Chicago, who has made modernizing the L a priority, said the new 15-cent fee was the first of its kind to raise money solely for public transit from those who might not even use it because they could afford the ridehailing cars. “I think it’s a progressive transportation tax,” Mr. Emanuel said. “It will make public transportation competitive with the rideshare industry.”
In effect, Mr. Emanuel said, it will serve as a “backdoor approach” to fighting congestion created by the ride-hailing cars by helping shift more people — by their own choice — to the transit system. “There’s a congestion fee and I would just say the rideshare fee is kind of parallel parking into the same position,” he said.
The 15-cent fee is projected to bring in $16 million this year, which will be turned over to the Chicago Transit Authority. The money will be used to secure additional funding through bond sales to pay for a total of $179 million in capital improvements, according to city officials.
Kyle Whitehead, the government relations director for Active Transportation Alliance, a Chicago advocacy group for biking, walking and transit, said that the transit system contributes to the health of the city by getting more people out of cars, increasing exercise levels and reducing pollution — and it is now in dire need of money.
“The public transit system benefits everyone who lives and works in the city, he said, “regardless of whether they’re using it.”
Copyright 2018 The New York Times Company. All rights reserved.
California tax and bankruptcy expert Morgan King writes in his latest newsletter:
“The IRS has begun certifying federal tax debts of more than $50,000 to the State Department, which poses problems for travelers. Why? Because the State Department generally won’t issue passports to taxpayers who have been flagged for delinquencies.
Internal Revenue Code 7345 allows this. Once the State Department is notified, it can either deny a passport application and/or revoke a current passport. If it happens while a taxpayer is out of the country, the State Department may issue what’s called a limited validity passport that only allows a taxpayer’s direct return to the U.S.
California tax and bankruptcy expert Morgan King writes in his latest newsletter:
“The IRS has begun certifying federal tax debts of more than $50,000 to the State Department, which poses problems for travelers. Why? Because the State Department generally won’t issue passports to taxpayers who have been flagged for delinquencies.
Internal Revenue Code 7345 allows this. Once the State Department is notified, it can either deny a passport application and/or revoke a current passport. If it happens while a taxpayer is out of the country, the State Department may issue what’s called a limited validity passport that only allows a taxpayer’s direct return to the U.S.
Buying at a foreclosure sale “don’t let a bargain become a burden”
Reprint from:
Vandeventer Black LLP USA February 14 2018
Looming maturity dates (for which borrowers are not prepared to pay the remaining balance) or other monetary defaults of numerous commercial mortgages may present many opportunities for purchasing property on a discounted basis. With proper precautions and investigation, what appears to be a “deal” really can be a “deal.” However, purchasing a property at a foreclosure sale or other distressed sale has many traps for the unwary. What appears to be a bargain can quickly turn into a nightmare, if the buyer rushes into the purchase without enough information.
Bidders often forget that, at a foreclosure, they are agreeing to purchase the property “as-is,”
Buying at a foreclosure sale can become a nightmare
Bidders often forget that, at a foreclosure, they are agreeing to purchase the property “as-is,” subject to (i) no closing contingencies and (ii) all of the property’s defects and deficiencies. If a bidder is successful, the bidder is committed to completing the acquisition of the property, regardless of the condition of the property. There are countless examples of expensive post-acquisition issues that could have been easily detected with minimal due diligence. Some of these latent issues include environmental conditions, liens and deed restrictions, and major repair items. Accordingly, purchasers of real estate at a foreclosure sale should undertake the same due diligence as if they were purchasing the real estate in an arm’s length non-foreclosure transaction from a third party (even though time may be limited).
The purchase that may seem like a bargain can become a financial disaster if purchasers do not enter the purchase with their eyes wide open.
Prior to bidding, every bidder should obtain a title report, which will identify the liens and encumbrances that will continue to burden the property following the foreclosure purchase. In addition, although access to the property is often limited prior to foreclosures, the prospective purchaser should also try to obtain a basic property condition report prior to bidding. If purchasers are not careful, they could end up purchasing a property that is (i) subject to debt far higher than the amount of the purchase price or (ii) in very poor physical condition.
Although this may sound unfair to the buyer, the buyer is typically paying a substantially discounted price. The money saved is often spent on performing repairs and improvements that have been neglected by the financially distressed owner. Also, lenders price their loans with the anticipation that they will be able to sell the subject properties at foreclosure with minimal costs and liability exposure. If lenders were subjected to the same costs and liability as a seller in a “regular” sale, the borrowing costs and interest rates for all borrowers could increase.
Proper due diligence and consulting with your attorney on the front end can save tremendous heartache on the back end. If a deal looks too good to be true, it probably is, and the purchaser should not be afraid to walk away from the sale if they feel they do not have sufficient information.
Vandeventer Black LLP – Richard J. Crouch
Other articles:
Buying Tax Liens – not entirely Gold Investment
Trustee sale “foreclosure” process in Arizona
About the Author:
Diane L. Drain is a well known and respected Arizona bankruptcy attorney. She is an expert in both consumer bankruptcy and Arizona foreclosure. Since 1985 she has been a dedicated advocate for her clients and spokesperson for Arizona citizens. As a teacher and retired law professor, Diane believes in offering everyone, not just her clients, advice about the Arizona bankruptcy and foreclosure laws. She is also a mentor to hundreds of Arizona attorneys.
I would be flattered if you connected with me on GOOGLE+
*Important Note from Diane: Everything on this web site is available for educational purposes only, is not intended to provide legal advice nor create an attorney client relationship between you, me, or the author of any article. Any information in this web site should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state.*
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The post Buying at a Foreclosure May Become a Disaster appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
UPRIGHT LAW and KEVIN CHERN, partner, sanctioned for ‘unconscionable harm to clients’
Report from the Department of Justice, 2/13/18 – Law Solutions Chicago, doing business as “UpRight Law”, UpRight’s managing partner Kevin Chern, and affiliated partner attorneys Darren Delafield and John C. Morgan Jr. were sanctioned hundreds thousands of dollars “for causing ‘unconscionable’ harm to their clients”.
The court found that the law firm and its attorneys, “systematically engaged in the unauthorized practice of law, provided inadequate representation to consumer debtor clients, and promoted and participated in a scheme to convert auto lenders’ collateral and then misrepresented the nature of that scheme..” said Director Cliff White of the Executive Office for U.S. Trustees.
The court also revoked UpRight’s bankruptcy filing privileges in the Western District of Virginia for not less than five years, and its local partners for 12 and 18 months, respectively. The bankruptcy court also sanctioned Sperro LLC (Sperro), an Indiana towing, ordering turnover of funds.
“Lawyers who inadequately represent consumer debtors harm not only their clients, but also creditors and the integrity of the bankruptcy system,” said Director White. “The damage caused increases exponentially when they operate nationally, like UpRight. This case is demonstrative of the vigorous enforcement actions that the U.S. Trustee Program can and will take to protect all stakeholders in the bankruptcy process.”
for more…
See also an article from Credit Slips :
“To oversimplify (and leave out certain other issues of bad behavior), the law firm steered debtors who owned cars in which they had zero equity into an arrangement in which the debtor’s car would be towed for an (unpaid) fee by an affiliated firm and then stored in Indiana. The existing auto lender would never be notified of any of this. The affiliate would then assert a warehouseman’s lien for the unpaid fee and foreclose on the car, and use the sale proceeds to pay back the fee and pay the debtor’s bankruptcy filing fee to the law firm, with the auto lender getting nothing.”
For more…..
About the Author:
Diane L. Drain is a well known and respected Arizona bankruptcy attorney. She is an expert in both consumer bankruptcy and Arizona foreclosure. Since 1985 she has been a dedicated advocate for her clients and spokesperson for Arizona citizens. As a teacher and retired law professor, Diane believes in offering everyone, not just her clients, advice about the Arizona bankruptcy and foreclosure laws. She is also a mentor to hundreds of Arizona attorneys.
I would be flattered if you connected with me on GOOGLE+
*Important Note from Diane: Everything on this web site is available for educational purposes only, is not intended to provide legal advice nor create an attorney client relationship between you, me, or the author of any article. Any information in this web site should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state.*
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The post UpRight Law, Kevin Chern Sanctioned for Unconscionable Harm to Clients appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
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