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Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
In the case of In re Parada, 2008 WL 126626 (Bkrtcy.S.D.Fla. January 10, 2008)(Isicoff, J.) the court was presented with the U.S. Trustee's motion to dismiss the chapter 7 debtors' case as an abuse pursuant to section 707(b)(1) by the application of the section 707(b)(2) means test presumption and pursuant to the 707(b)(3)(B) totality of the circumstances of the financial situation test. The court found that while the debtors passed the means test, they did not pass the totality of the circumstances of the debtors' financial situation test. The major factor in this determination was the court's ruling that the deduction of the secured debt on the debtors' residence and vehicle that they intended to and did indeed surrender were deductible for purposes of the 707(b)(2) means test, but were not deductible for the 707(b)(3)(B) totality of the circumstances of the debtors' financial situation test.
The debtors' Form B22A did not indicate that the presumption of abuse under section 707(b)(2) arose. However, the U.S. Trustee filed a motion to dismiss arguing that the section 707(b)(2) presumption of abuse did indeed arise based on their assertion that the debtors' deduction of their payments on the former residence and vehicle which they intended to surrender was improper. The court noted that the debtors' statement of intentions indicated an intention to surrender their former residence which was encumbered by a mortgage of almost $500,000.00 and to surrender their BMW for which they owed almost $20,000.00. The court noted that the debtors were no longer living at their former residence and had surrendered the vehicle post-petition. Furthermore, the debtors reported monthly gross income of almost $9,000.00 and deductions for voluntary 401(k) contributions of about $400.00.
The court noted that there are two opposite interpretation of section 707(b)(2)(A)(iii) as to the allowability of secured debt payments on account of assets surrendered post-petition. One line of cases adopts a "snapshot" (or "mechanical") approach as of the petition date and allows the payments to be deducted whether or not the debtor intends to make the payments. See In re Benedetti, 372 B.R. 90 (Bankr. S.D.Fla. 2007). The other line of cases holds that only those payments the debtor reasonably expects to be made during the next sixty months may be deducted. The court adopted the "snapshot" approach and allowed the deduction for purposes of the means test calculation of amounts that would be due but which the debtor may not pay to secured creditors on account of property they intend to and in fact do surrender post-petition. The court therefore found that the section 707(b)(2) presumption of abuse did not arise.
The U.S. Trustee also sought a finding of abuse based on the totality of the circumstances of the debtors' financial situation. 11 U.S.C. section 707(b)(3)(B). The debtors argued that the totality of the circumstances, including their financial situation, did not merit dismissal. The court noted that section 707(b)(3) provides for two separate grounds for the dismissal of a debtor's case - (A) bad faith and (B) the totality of the circumstances of the debtor's financial situation. The court held that "the lack of indicia of bad faith and other factors unrelated to a debtor's financial situation are not relevant to consideration under the totality of the circumstances test of 11 U.S.C. section 707(b)(3)(B), rather, they are relevant to determining abuse under the bad faith standard of 11 U.S.C. section 707(b)(3)(A)."
The court agreed with the decision in In re Henebury, 361 B.R. 595 (Bankr.S.D.Fla.2007)(Hyman, C.J.), and held that the court should consider post-petition events in making its determination under section 707(b)(3)(B). The court further held that the cut-off date for the relevancy of post-petition circumstances is the date of the hearing on the motion to dismiss.
In determining whether the debtors' financial situation demonstrated abuse, the court applied a test of whether they had sufficient projected disposable income to fund a hypothetical chapter 13 case. In re Henebury, 361 B.R. at 611. The court noted that there were two methods used by the courts to determine a debtor's projected disposable income under the totality of the circumstances analysis - one based on the debtor's CMI and the other based on the debtor's net income based on actual anticipated income and expenses over the chapter 13 plan period which in this case would be sixty months as the debtors' CMI was above-median income. The court agreed with the U.S. Trustee and held that in calculating the debtors' ability to pay their unsecured debt under section 707(b)(3), that they may not take into account the payments with respect to the surrendered house and car. The court held that "[a]lthough these payments were properly deducted for purposes of the means test, when determining the Debtors' projected disposable income, it is appropriate to exclude these deductions as the payments clearly will not be made going forward, and therefore will not negatively impact the Debtors' disposable income." The court also agreed with the U.S. Trustee that, absent special circumstances, voluntary contributions to a 401(k) should not be considered reasonably necessary expenses under the totality of the circumstances analysis. The court did not find special circumstances in this case.
The court found that, with the exclusion of the nonallowed deductions, both methods of determining the debtors' projected disposable income (the CMI method or the net income method) indicated that the debtors' had the sufficient income to repay 100% of their unsecured debt in less than five year. The court refused to take into consideration in determining the totality of the circumstances financial situation factors that were not verifiable and too remote at the time of the hearing on the motion, such as the debtors' submission that their reconciliation had failed and that they intended to move into separate apartments.
The court found that based on the totality of the circumstances of the debtors' financial situation, that the debtors were abusing the bankruptcy code. 11 U.S.C. section 707(b)(3)(B). But the court did not find that the case was filed in bad faith under section 707(b)(3)(A) and therefore allowed the debtors ten days to convert their case to a case under chapter 13 or 11 before the court would dismiss their case. See, Marrama v. Citizens Bank of Mass., 127 S.Ct. 1105 (2007).Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
In the case of In re Hionas, ___ B.R. ___, 2006 WL 3913760 (Bkrtcy.S.D.Fla.)(Isicoff J.) the Bankruptcy Court denied a casino's motion for summary judgment in its adversary proceeding to determine an alleged gambling debt nondischargeable. The decision also provides a review of the rules of choice of law in the 11th Circuit in the context of the allowance of a claim in a bankruptcy case.
The Court noted that normally a federal court hearing a matter pursuant to diversity jurisdiction must apply the law of the state in which the court sits pursuant to the ruling in the case of Erie Railroad v. Tompkins, 304 U.S. 64 (1938), including the conflict of law rules of the state in which the federal court sits. However, a federal court with jurisdiction over a matter by virtue of its bankruptcy jurisdiction, when considering the allowance of claims, is not sitting as a court of diversity and the court does not apply the law of the state where it sits. Bankruptcy courts must determine how and what claims should be allowed under equitable principles.
The Court stated that there is apparently a split among the courts as to whether a bankruptcy court should apply the conflicts of law provisions of the state in which it sits or whether it should apply federal law to determine which law should apply. But the Court stated that there does not appear to be a conflict when a bankruptcy court is considering allowance of claims, which is a matter subject to the bankruptcy court's core jurisdiction. The Court reviewed the Supreme Court's decision of Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156 (1946) and stated that it held that the determination by a bankruptcy court of which state law should apply in adjudicating the allowability of a claim should not be dictated by the happenstance of where the bankruptcy case is filed, but rather which law more logically relates to the claim and is most consistent with the dictates of the court's equitable jurisdiction. Furthermore this determination requires the exercise of an informed judgment in the balancing of all the interests of the states with the most significant contacts in order best to accomodate the equities among the parties to the policies of those states.
The Court further found that each of the cases that have followed Vanston in the context of the allowance of a claim have been consistent in recognizing the inapplicability of Erie and Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941) and apply a federal analysis to the choice of law issue in the claims allownace context. The Court noted that in the 11th Circuit, in order to determine which law should apply in making a decision regarding choice of law, the court must apply the "significant relationship" test although, depending on the nature of the dispute, more specific factors may have a bearing on the court's determination. See Dresdner Bank A.G v. M/V Olympia Voyager, 446 F.3d 1377 (11th Cir.2006).
The Court concluded by pointing out that whether Nevada law applies to the involved decision would be based on the significant relationships test and not solely on the language in the involved contracts.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
Chapter 13 Bankruptcy
A chapter 13 bankruptcy is also called a wage earner's plan. It enables individuals with a regular income to develop a plan to repay all or part of their debts.
Length of Chapter 13 Plan. Under chapter13, debtors propose a repayment plan to make installments to creditors over three to five years. If the debtor's current monthly income is less than the applicable state median, the plan will be for three years unless the court approves a longer period "for cause." If the debtor's current monthly income is greater than the applicable state median, the plan generally must be for five years. In no case may a plan provide for payments over a period longer than five years. 11 U.S.C. §1322(d). During this time the law forbids creditors from starting or continuing collection efforts
Advantages of Chapter 13 over Chapter 7. Chapter 13 offers individuals a number of advantages over a chapter 7 case. Perhaps most significantly, chapter 13 offers individuals an opportunity to save their homes from foreclosure. By filing under this chapter, individuals can stop foreclosure proceedings and may cure delinquent mortgage payments over time. Nevertheless, they must still make all mortgage payments that come due during the chapter 13 plan on time.
Another advantage of chapter 13 is that it allows individuals to reschedule secured debts (other than a mortgage for their primary residence) and extend them over the life of the chapter 13 plan. Doing this may lower the payments.
Chapter 13 also has a special provision that protects third parties who are liable with the debtor on "consumer debts." This provision may protect co-signers.
Finally, chapter 13 acts like a consolidation loan under which the individual makes the plan payments to a chapter 13 trustee who then distributes payments to creditors. Individuals will have no direct contact with creditors while under chapter 13 protectionJordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
In most cases, bankruptcy has no effect on current or future employment. Many consumers new to the bankruptcy filing process may worry about suffering potential consequences if they decide to file. This is a common question asked about at the beginning of the filing process. For the most part, the bankruptcy code includes a special [...]
Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
The following are some of the options open to the South Florida distressed homeowner:
1. Mortgage Modification - HAMP or otherwise. As the mortgage companies have ramped up their staffing, the ability to achieve a HAMP or other modification has been increasing. The government regulations have also been improved over time to increase the achievement of modifications.
2. Short Sale - often favored by real estate brokers, but may soon have more actual benefit for homeowners if FNMA guidelines are changed to allow for better future credit for short sales rather than foreclosure.
3. Deed in Lieu of Foreclosure - the homeowner gives a deed to the mortgage company to avoid a full judicial foreclosure. Often not requested by mortgage companies due to possible title issues.
4. "Walk Away" from Home
5. Chapter 13 Bankruptcy - often combining the filing of chapter 13 bankruptcy and the use of the Bankruptcy Court's new mediation program for Mortgage Modification program.
Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
The United States Bankruptcy court does not require that you have legal representation during a bankruptcy process, but it is strongly encouraged. This is especially true for filing a Chapter 13 bankruptcy which is a longer and more complicated process. In either case, there is specific paperwork and documentation that must be accurately prepared. That [...]The post Do You Need to Hire an Attorney to File for Bankruptcy? appeared first on Acclaim Legal Services, PLLC.
Miami Personal Bankruptcy Attorney Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
A mortgage foreclosure may also have federal income tax consequences. One issue is "discharge of indebtedness income." This can be understood as the IRS's attempt to tax you on money you were loaned but are not going to repay. The mortgage lender may be required to report the amount of the cancelled debt to you and the IRS on a Form 1099-C, Cancellation of Debt. Fortunately though there are various exceptions to this rule and even a recently added exception.
One of the exceptions to discharge of indebtedness income is if the mortgage debt is discharged in bankruptcy, including under chapter 7 or under chapter 13. In order to take advantage of this exception, it may be important to file for bankruptcy before the foreclosure sale.
Another exception to discharge of indebtedness income is the insolvency exception. That means if you are insolvent when the debt is cancelled, some or all of the cancelled debt may not be taxable to you. Insolvency generally means that your total debts are more than the fair market value of your total assets.
The new exception if the Mortgage Forgiveness Debt Relief Act of 2007 which generally allows people to exclude certain discharge of indebtedness from the foreclosure or mortgage restructuring on their principal residence. This new provision applies to debt forgiven in 2007, 2008 or 2009. Up to $2 million of forgiven debt is eligible for this exclusion ($1 million if married filing separately).
An applicable form is Form 982, "Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment).Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
I am happy to report that the Oregon and Washington Bankruptcy Courts are for the time being staying open despite the government shut down. The bankruptcy courts will stay open for business for at least ten business days. On or around October 15, 2013, the federal Judiciary will reassess its situation and provide further guidance regarding potential closings.
All court proceedings and deadlines remain in effect as scheduled, and all 341 meetings will go forward unless otherwise advised.
The original post is titled Bankruptcy Courts Staying Open Through ShutDown , and it came from Oregon Bankruptcy Lawyer | Portland, Salem, and Vancouver, Wa .
Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
In an opinion filed on March 14, 2007, Florida's Third District Court of Appeals held that MERS does have standing to sue in foreclosure. MERS v. Oscar Revoredo, et al., ___ FLW ____ (3rd DCA. Case No. 3D05-2572 2007). The Court adopted the reasoning of MERS, Inc. v. Azize, 32 FLW D546 (2nd DCA 2007) which involved a very similar procedural situation and the identical question of law.
The trial court struck MERS's pleadings and ruled that it did not have standing to proceed as it acted essentially as a collection and litigation agent for the actual owner of the notes and mortgages.
The Court of Appeals noted that the involved problem "arises from the difficulty of attempting to shoehorn a modern innovative instrument of commerce into nomenclature and legal categories which stem essentially from medieval English land law." The Court held that MERS did not lack the standing to foreclose and it clarified that that in accordance with its usual practice, MERS was the holder of the note. The Court stated that it did not make a difference that MERS was not the owner of the mortgage as Fla. R. Civ. P. 1.210(a) allows an action to be prosecuted in the name of authorized persons without joining the party for whose benefit the action is brought.
The Court further held that as "no substantive rights, obligations or defenses are affected by the use of the MERS device, there is no reason why mere form should overcome the salutatory substance of permitting the use of this commercially effective means of business."Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Ouch! You were just notified from your boss that they are going to garnish your wages. You find a A wage garnishment order was served from court. In California, creditors are allowed to garnish up to 25% of your disposable earnings.
25% of your income is a big chunk of money that you need to run your household. One effective way to stop a garnishment order is to file bankruptcy right away. A bankruptcy order will shut down the garnishment order instantly. You will be able to keep your money.
Filing an emergency bankruptcy case requires a little work. First, you need to pay your bankruptcy attorney and pay the filing fee with court. Right now, a chapter 7 bankruptcy fee is $306. Typically, I charge $1000 per case. If you run a business, and you want to keep it, I typically charge $1600. Thus, you will need approximately $1200 to file bankruptcy.
Second, you need to take the credit counseling class. The class can be taken on the internet. They charge as low as $10 for the class. Afterwards, a certificate is issued that needs to be filed.
Finally, you will need to verify and sign a bankruptcy petition that your attorney prepares. If the case needs to be filed right away, an abbreviated petition can submitted to the court with the promise that the full petition is filed within 14 days.
Ken Jorgensen, California Attorneywww.fresnobankruptcylawgroup.com
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