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Our Walworth Bankruptcy Attorney has heard time and again from clients that they are afraid to file bankruptcy for fear of losing their retirement funds, such as their IRA. Firstly, we would like you to know that in most cases, your IRA and other retirement funds will be protected. The current Wisconsin bankruptcy code allows you to protect your IRA. Other retirement plans garner the same protection.
Can a Walworth Bankruptcy Attorney Interpret Bankruptcy Exemptions for Me?
Of course we can! The Wisconsin Bankruptcy Code states the following in regards to IRAs and other retirement savings:
“Wis. Stat. Ann. 815.18 (1)(j)
(j) Retirement benefits.
1. Assets held or amounts payable under any retirement, pension, disability, death benefit, stock bonus, profit sharing plan, annuity, individual retirement account, individual retirement annuity, Keogh, 401-K or similar plan or contract providing benefits by reason of age, illness, disability, death or length of service and payments made to the debtor therefrom.
2. The plan or contract must meet one of the following requirements:
     a. The plan or contract complies with the provisions of the internal revenue code.
     b. The employer created the plan or contract for the exclusive benefit of the employer, if self-employed, or of some or all of the employees, or their dependents or beneficiaries and that plan or contract requires the employer or employees or both to make contributions for the purpose of distributing to the employer, if self-employed, the employees, or their dependents or beneficiaries, the earnings or the principal or both of a trust, annuity, insurance or other benefit created under the plan or contract and makes it impossible, at any time prior to the satisfaction of all liabilities with respect to beneficiaries under a trust created by the plan or contract, for any part of the principal or income of the trust to be used for or diverted to purposes other than for the exclusive benefit of those beneficiaries.”

The Wisconsin Bankruptcy Code recognizes that your IRA and other retirement funds have a designated purpose. Therefore, they are exempt from being seized in a Walworth bankruptcy. As stated above, although rare, there are some exemptions. If you have concerns about your IRA or other retirement savings when filing bankruptcy, contact our Walworth Bankruptcy Attorney to discuss your situation.
Experienced Walworth Bankruptcy Attorney
Our Walworth Bankruptcy Attorney is experienced in Wisconsin Bankruptcy Code. Our bankruptcy experience in situations like yours is valuable. If you are considering a Walworth bankruptcy and you have money invested in retirement funds, you can almost always rest assured that you will not lose those savings. However, make sure you hire an experienced Walworth Bankruptcy Attorney who knows the law and how to handle your particular situation. Please contact us regarding your Walworth Bankruptcy at 262-725-0175 or send us an email via our bankruptcy contact page.

 
 
 
*The content and material on this web page is for informational purposes only and does not constitute legal advice.

What happens when a bank cannot produce a copy of their credit card agreement during a lawsuit for an unpaid account balance?  Well, that was exactly the situation when CitiBank sued Teresa Cooper in the Superior Court of Vermont, and that case typifies the current status of credit card lawsuits nationwide.  Banks cannot seem to produce a copy of their contracts when litigating unpaid accounts.
What CitiBank was able to provide the court was a copy of the monthly billing statements mailed to its customer and the bank sought to recover a summary judgment on the legal theory of Account Stated.  In short, the account was stated month to month via the billing statements, no objections were made by the borrower, so the balance must be true.
Amazingly, credit card companies have tremendous difficulties producing a copy of the written contract. This is because the contract is not contained in one document but is a result of several documents, perhaps dozens or hundreds of documents, generated during the time the account exists that must be read together to come up with the terms of the agreement. 
Oh, what a tangled web we weave. When first we practice to deceive!
In an effort to generate higher profits, banks created flexible contract documents that could be amended or supplemented at any time by simply mailing a notice of changes to interest rates, late fees, over-limit fees, cash advance fees, credit score fees, etc.  So, to figure out what the bank should have charged in any one month, dozens or perhaps hundreds of documents must be reviewed to determine what terms applied from one month to the next.  Of course, the problem is that the banks have failed to create a single depository of all these documents unique to each customer, and the banks themselves struggle to produce the full set of contract documents, let alone to explain how the contacts actually operate in a court of law. 
Well, not really a big deal, right?  I mean, you were mailed a statement of the then current contract terms and you didn’t object, so what’s all the fuss?
At least in the State of Vermont, this is a big fuss.  The court stated that in none of their prior cases had they applied the doctrine of Account Stated to a distantly located bank or other financial institution where no personal relationship existed.   The classic example of a running account is between a farmer and the local supply store, but that hardly resembles the modern relationship between a distant bank and its borrowers.  The court found that the borrower did not, unlike the farmer and his supplier, agree to the amount of the debt. 

“Even if there are situation in which this position (failing to contest the accuracy of a bill) may have merit, it is without merit in credit card transactions because it is based on the assumption that the recipient, upon review of an invoice, can readily determine whether this is an amount he or she owes . . .This assumption does not hold true with credit card agreements and transactions.  Credit card statements often contain multiple interest rates, interest rates which fluctuate from billing period to billing period, and a myriad of other kinds of fees and penalties.”

The court further stated that “[w]hile the credit cardholder, looking at the statement, can see the amount of the charges that were imposed, he or she is unlikely to know whether the charges are consistent with the writings governing the cardholders obligations . . . [T]he Court does not agree that Ms. Cooper’s silence was tantamount to assent to the accuracy of the monthly statements.”

The Court does not agree that Ms. Cooper's silence was tantamount to assent"

In the absence of providing the court with a complete copy of the credit card contract, the court denied all interest and finance charges and limited recovery to the principal borrowed minus the payments made on the account.
The Vermont court nailed the issue:  Silence is not assent.  Failure to protest the accuracy of a credit card statement is not the same thing as agreement to the charges.  Consumers are simply not able to measure the accuracy of the monthly finance charges.  Without producing the credit card agreement  banks should never recover more that the principal amount borrowed.
 
 
 
 

Bringing you the most up-to-date news, tips and blogs throughout the web. Here’s your Bankruptcy Update for January 23, 2014 Former Texas quarterback Vince Young files for bankruptcy Free Lance-Star publisher files for bankruptcy Martifer Solar USA files for Chapter 11 bankruptcy

Minnesota Attorney General Lori Swanson has filed a lawsuit against a junk-debt buyer, Bradstreet & Associates, accusing that firm of charging an inflated interest of 22% on debts for overdrawn bank accounts that may only charge 6% interest under Minnesota law. 

Companies have the right to collect legitimate debt.  But they shouldn't be charging peoeple for interest they don't owe."  Minnesota Attorney General Lori Swanson

Bradstreet & Associates spent $646,000 to purchase $9 million of overdrawn bank accounts from U.S. Bank and Wells Fargo.  The accounts were purchased from a Florida debt buyer for 3 to 7 cents on the dollar.
Bradstreet filed lawsuits in Minnesota misrepresenting the maximum interest rate that could be charged for these debts and in most cases obtained default judgments when consummers failed to respond to the lawsuit.
How did Bradstreet & Associates decide to charge 22% interest instead of the legal maximum of 6%?  The company has refused to comment on the lawsuit so we can only speculate.
There is an attitude prevalent in the civil court system that the accounts of banks and debt buyers are generally correct that that if a person is sued for the debt they probably owe the debt.  A frequent statement made by debt collection lawyers is that the only issue at hand is whether the debt is owed or not. 
Increasingly debt collectors are turning to the legal theory of Account Stated and file lawsuits without any real proof of the debt owed but rather under the theory that the account was stated in a monthly billing statement and no objection was made by the debtor, so the debt must be owed.  Debt collectors argue that the court does not need to examine the underlying contract with the bank and that the court should issue a judgment based solely on the fact that the debtor has not objected to the billing statements.
Courts should never allow debt collectors to obtain judgments under Account Stated theories when an express written contract exists but is not presented to the court.  The billing statements of banks are frequently incorrect, and statements of debt buyers are especially questionable as the Minnesota Attorney General has revealed.
What can we take away from this?

• Billing Statements of Debt Collectors are not reliable and should not be used as a substitute for the underlying contract between a bank and its customers.
• When sued by a debt collector a person should always file a written answer to avoid a default judgment.
• Debtors can win against debt collectors if they demand proof of the debt.