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At Shenwick & Associates, we often get questions from clients if they may transfer a house from one spouse to another after being sued or prior to a bankruptcy filing:An upstate bankruptcy court addressed this question and held that such a transfer could be a fraudulent conveyance and set aside. The name of the case was In re Tina M. Panepinto, 12-11230. U.S. Bankruptcy Court, Western District 12-11230In In re Tina M. Panepinto, a wife who was insolvent owned a wholly-exempt homestead (house) free-and-clear, and (without consideration) transferred her half ownership to her husband. The bankruptcy court held that an existing creditor could sustain an action to set that transfer aside as a fraudulent conveyance under New York State law. Records show that in 2008, with a bill collector seeking to collect a debt, Panepinto transferred half the ownership of her home to her husband. Four years later, she filed for bankruptcy. Creditors challenged the bankruptcy petition, seeking to set aside the transfer of real property as a fraudulent conveyance under New York Debtor and Creditor Law §273. The Bankruptcy Judge sustained the creditors challenge. The lesson is that a debtor, prior to transferring ownership in a residence should seek advice from an experienced bankruptcy attorney.
Most people have a negative association with the word bankruptcy. However, often what you heard is misleading and misinformed statements from people who are not well versed in bankruptcy law. Many very successful people and businesses have filed bankruptcy and have gone on to become very prosperous. Bankruptcy Will Ruin My Credit Generally, if you’re [...]The post Common Bankruptcy Myths appeared first on National Bankruptcy Forum.
Bankruptcy is designed as a way for an insolvent debtor, one who cannot pay his or her creditors, to get a fresh start. Depending on the type of bankruptcy involved--Chapter 7, Chapter 11, or Chapter 13 for example--among the main functions of a bankruptcy court are to liquidate assets, discharge certain debts, or confirm a payment plan for non-dischargeable debts.
It can also serve as a way to dispute taxes, as illustrated in a recent Virginia bankruptcy court decision . In Harris v. Commonwealth, the debtor and his wife filed for Chapter 7 bankruptcy.
In Chapter 7, also known as a liquidation bankruptcy, a trustee takes control of the "nonexempt" assets of the debtor's and reduces them to cash from which creditors will be paid. (Note that before the case is filed you and your attorney will know if there are any nonexempt assets, and can plan accordingly.) While certain unsecured debts are discharged under Chapter 7, certain types of debt, like child support and income taxes less than three years old, are not dischargeable.
Like almost all Chapter 7 cases, this case was determined to be a "no-asset case," where there were no assets available for liquidation or to pay creditors. All of the dischargeable debts that the debtor had were discharged and the only reason for the Chapter 7 action was to contest an income tax assessment. The assessment was for nearly $613,000, and was disputed by the debtor.
Tax courts have broad discretion to determine tax liabilities assessed before or after the debtor filed for bankruptcy. However, in "no asset" cases, where there are no assets to distribute, courts have usually abstained from deciding disputed tax matters. In these cases, the only avenue for debtors who have been assessed an incorrect amount of taxes is to pay the full amount of the taxes and subsequently sue for a refund in state court.
The Commonwealth argued that the bankruptcy courts should abstain from deciding the amount of tax a debtor owes in no asset cases since the decision will not affect the debtor-creditor relationship. However, the debtor argued that he would be severely prejudiced since he would be forced to pay well over half a million dollars BEFORE he could litigate the incorrect assessment in state court. Due to the enormity of the debt, the debtor argued that he would be unable to litigate and therefore would be denied the fresh start guaranteed by Chapter 7.
The debtor further argued that while he would be extremely prejudiced by having to pay the tax first and litigate in state court later, the Commonwealth would suffer no prejudice either way because, in the end, the Commonwealth will only get the correct amount of tax due. The debtor argued that all that his case required was a substantiation of the amount of gross revenue he received and then calculate the correct tax due, which would not be a complex matter and not take up too much of the bankruptcy court's time. This outcome would be the same in either bankruptcy or state court, but the procedure in state court would severely prejudice the debtor. In the end, the court agreed with the debtor and allowed the case to move forward in bankruptcy court.
What is interesting about this case is that it illustrates the possibility for other debtors in similar situations to litigate their tax matters in bankruptcy court. This can prove very beneficial to many people who are already considering bankruptcy and also want to clear up a tax matter but have not been able to get the government's attention to resolve it. It also may eliminate the requirement of having to pay a mistaken tax assessment and sue for a refund later. Since most people are filing for bankruptcy precisely because they cannot pay their bills, being able to litigate tax matters before actually having to pay an incorrect amount of tax may make a huge difference in getting the "fresh start" promised by bankruptcy.
Bankruptcy is designed as a way for an insolvent debtor, one who cannot pay his or her creditors, to get a fresh start. Depending on the type of bankruptcy involved--Chapter 7, Chapter 11, or Chapter 13 for example--among the main functions of a bankruptcy court are to liquidate assets, discharge certain debts, or confirm a payment plan for non-dischargeable debts.
It can also serve as a way to dispute taxes, as illustrated in a recent Virginia bankruptcy court decision . In Harris v. Commonwealth, the debtor and his wife filed for Chapter 7 bankruptcy.
In Chapter 7, also known as a liquidation bankruptcy, a trustee takes control of the "nonexempt" assets of the debtor's and reduces them to cash from which creditors will be paid. (Note that before the case is filed you and your attorney will know if there are any nonexempt assets, and can plan accordingly.) While certain unsecured debts are discharged under Chapter 7, certain types of debt, like child support and income taxes less than three years old, are not dischargeable.
Like almost all Chapter 7 cases, this case was determined to be a "no-asset case," where there were no assets available for liquidation or to pay creditors. All of the dischargeable debts that the debtor had were discharged and the only reason for the Chapter 7 action was to contest an income tax assessment. The assessment was for nearly $613,000, and was disputed by the debtor.
Tax courts have broad discretion to determine tax liabilities assessed before or after the debtor filed for bankruptcy. However, in "no asset" cases, where there are no assets to distribute, courts have usually abstained from deciding disputed tax matters. In these cases, the only avenue for debtors who have been assessed an incorrect amount of taxes is to pay the full amount of the taxes and subsequently sue for a refund in state court.
The Commonwealth argued that the bankruptcy courts should abstain from deciding the amount of tax a debtor owes in no asset cases since the decision will not affect the debtor-creditor relationship. However, the debtor argued that he would be severely prejudiced since he would be forced to pay well over half a million dollars BEFORE he could litigate the incorrect assessment in state court. Due to the enormity of the debt, the debtor argued that he would be unable to litigate and therefore would be denied the fresh start guaranteed by Chapter 7.
The debtor further argued that while he would be extremely prejudiced by having to pay the tax first and litigate in state court later, the Commonwealth would suffer no prejudice either way because, in the end, the Commonwealth will only get the correct amount of tax due. The debtor argued that all that his case required was a substantiation of the amount of gross revenue he received and then calculate the correct tax due, which would not be a complex matter and not take up too much of the bankruptcy court's time. This outcome would be the same in either bankruptcy or state court, but the procedure in state court would severely prejudice the debtor. In the end, the court agreed with the debtor and allowed the case to move forward in bankruptcy court.
What is interesting about this case is that it illustrates the possibility for other debtors in similar situations to litigate their tax matters in bankruptcy court. This can prove very beneficial to many people who are already considering bankruptcy and also want to clear up a tax matter but have not been able to get the government's attention to resolve it. It also may eliminate the requirement of having to pay a mistaken tax assessment and sue for a refund later. Since most people are filing for bankruptcy precisely because they cannot pay their bills, being able to litigate tax matters before actually having to pay an incorrect amount of tax may make a huge difference in getting the "fresh start" promised by bankruptcy.
In the first few months of any given tax year, families across Washington eagerly wait for their tax refund checks to come back in the mail. For many Washington families, the whole refund process is really used as a savings device to get the money together to cover large out of pocket expenses that cannot be satisfied out of a bi-weekly paycheck. Fortunately, Washington consumers who wish to keep their refund checks while filing bankruptcy can usually accomplish these twin aims without risking the loss of a dime to their Chapter 7 Bankruptcy Trustee. This is so because so long as a prospective bankruptcy filer has lived in the state of Washington for over two years, she is eligible to choose either the Washington or federal bankruptcy exemptions to protect a potential tax refund.
Under the federal exemptions, you are currently allowed $1,150 plus $10,825 of any unused portion of your homestead exemption to exempt any type of property you wish to keep. Since few people in Washington have any equity in their homes, there is almost always a large amount of personal property, including a large refund, that can be protected under the federal exemptions. The only bad news is that not every bankruptcy filer in Washington is eligible to use the federal exemptions.
If you have lived in Washington for the last two years, you can use the federal exemptions, but if you have lived in Washington for less than two years you may not be able to do so. If you have lived in Washington and one other state during the last two years, you will (in most cases) be forced to use the exemptions of whichever state you lived in for the majority of the period between 24 and 30 months ago.
If you live in Washington and need help determining whether you can use the federal exemptions to protect your potential tax refund or want to just discuss strategies for holding onto both this one and the next one, call our Vancouver or Seattle offices to make an appointment or, better yet, set up a phone consultation on the appointment calendar on this website.
The original post is titled Protecting Your Tax Refund in a Washington Chapter 7 Bankruptcy , and it came from Oregon Bankruptcy Lawyer | Portland, Salem, and Vancouver, Wa .
The chapter 7 trustee is a private party who is appointed by the US Trustee’s Office to oversee chapter 7 cases. Most chapter 7 trustees are attorneys, but some are CPAs or people with backgrounds in business. The chapter 7 trustee conducts the 341 meeting of creditors, reviews the petition for accuracy, collects and liquidates assets, makes the asset report to the court, and reports suspected fraud to the US Trustee’s Office.
When you file chapter 7, you will be automatically assigned a chapter 7 trustee. Local bankruptcy lawyers will talk about a trustee being a “Seattle chapter 7 trustee,” a Tacoma Chapter 7 Trustee,” or an “Everett chapter 7 trustee.” This is because the trustee is assigned based on the county that the debtor lives in at the time of filing.
What Will The Chapter 7 Trustee Do In My Case
Debtors often worry that the chapter 7 trustee is going to be mad at them or try to punish them for filing bankruptcy. That is not true. The trustee has a job to do. Sometimes that job puts them at odds with a debtor, because the trustee has to liquidate an asset, report that someone is not eligible for bankruptcy, or report suspected fraud. This is not personal. If the trustee does not do their job, the US Trustee will remove them from the panel of trustees.
The goal is for the chapter 7 trustee to do nothing in your case; or at the very least, to do nothing unexpected. Here are some tips for making sure that your case goes smoothly:
- Make sure that your bankruptcy petition is complete and accurate. Trustees know how to find hidden property.
- Make sure that you use accurate values for your property. The trustee knows when someone has dramatically undervalued a car or piece of real property.
- If you are working with an attorney, you should know ahead of time if there is any risk that the trustee will want to liquidate property.
- If there is an inaccuracy in your petition, make sure that you fix it as soon as your find out about it. Ignoring errors or waiting to fix them is a recipe for disaster, especially if the trustee finds out about the error before you have a chance to fix it.
How Do I Deal With The Chapter 7 Trustee
Chapter 7 trustees have anywhere from dozens to hundreds of open cases at any one time. They are paid $60 per case, plus a percentage of whatever they recover for the benefit of the bankruptcy estate. It is a very difficult job and one that requires them to be very efficient. As a result, a chapter 7 trustee will start each 341 meeting with a series of instructions. Those instructions are designed to keep everything moving quickly and to identify the information that the trustee needs to do their job.
There are a few ways to make sure that your relationship with the trustee goes smoothly:
- Make sure that you submit the Rule 4002 documents to the trustee on time. If you have an attorney, they will submit the documents for you.
- Make sure that you arrive for the 341 meeting on time. I suggest that you plan to get there about ten minutes ahead of time. Parking in Seattle and Tacoma can be tricky, so give yourself plenty of time.
- Have your photo ID and proof of social security number in your hand and ready when your case is called. I suggest that you take them out while the trustee is making their introductory announcements.
- Listen to the trustee’s introductory announcements.
- Most of the questions only require a yes/no answer. If the trustee wants more information, they will ask for it.
What If The Chapter 7 Trustee Is Wrong?
Just because the chapter 7 trustee says something doesn’t mean it is true. The trustee is not a judge. When there is a dispute that you can’t settle, the bankruptcy judge makes the decision. If a trustee breaks the law, is excessively rude, or is unprofessional, the bankruptcy court or the US Trustee’s Office can take action against them. Here are some tips for dealing with a chapter 7 trustee dispute.
- It’s not the trustee’s fault if your lawyer screwed up. I get a lot of phone calls from debtors who are mad at the trustee and think the trustee is out to get them, but it turns out their lawyer was the one who made the mistake.
- You may challenge any liquidation or seizure of property. However, the court will not stop the trustee from sending an appraiser to value your house, your car, or your other property.
- There is a time and place for everything. Remain calm and respectful during the 341 meeting. Losing your temper in a 341 meeting doesn’t work. If push comes to shove, you can put the issue in front of the bankruptcy judge.
People want to know whether a bankruptcy can be overturned or revoked. There are three ways that a bankruptcy can be overturned or revoked: 1) denial of discharge, 2) revocation of discharge, or 3) denial of dischargeability. Each one is different.
Denial of Discharge
A bankruptcy discharge is denied through an adversary proceeding. Denial of discharge is usually what people mean when they ask if a bankruptcy can be denied.
When the discharge is denied it means that none of the debts are discharged in the bankruptcy and that those debts can never be discharged in bankruptcy. If the debtor files a bankruptcy in the future – even many years in the future – they cannot discharge any debt that could have been included in the bankruptcy where the discharge was denied. Obviously this is a severe penalty that has far reaching financial consequences for a debtor.
A denial of discharge requires a creditor or trustee to bring an adversary proceeding and prove that the debtor has committed fraud in connection with the bankruptcy, made false oaths in connection with the bankruptcy, refused to comply with a bankruptcy court order, or wrongfully denied the trustee access to property of the estate.
Denial of discharge is most common where the debtor has made a major omission on their petition or wrongfully transferred property during or after the bankruptcy was filed.
There is a deadline to file an action to deny the discharge. The deadline can be extended, provided the request is filed with the court before the deadline expires.
Revocation of Discharge
A revocation of discharge occurs after the discharge has been entered. It also requires an adversary proceeding. Similar to the denial of discharge, the revocation of discharge revokes the entire bankruptcy and none of the debts that were part of that bankruptcy can be discharged in any future bankruptcy.
Revocation of the discharge is more complicated than denial of the discharge and is granted on more limited grounds. One issue in a discharge revocation case is whether the complaining creditor or trustee had knowledge of the facts of the case before the discharge was entered.
Basically, if a creditor or trustee finds out that the debtor violated the Bankruptcy Code before the discharge is entered, then they must act on that knowledge before the discharge is entered. A discharge cannot be revoked at all if more than one year has passed since the case was closed.
Dischargeability
An adversary proceeding to determine dischargeability only applies to specific debts. Unlike a revocation or denial of the discharge, a creditor has to prove that a specific debt should not be discharged in the bankruptcy. There are two types of debts that are nondischargeable: 1) self-executing, and 2) action required.
Action Required Non-Dischargeable Debts
The actin required non-dischargeable debts require a creditor to bring an adversary proceeding to deny the dischargeability of the debt. The adversary proceeding must be brought before the expiration of the deadline to object to discharge or the creditor must seek an extension of that deadline.
There are three types of debt that require an adversary proceeding to be deemed non-dischargeable:
- Money, property, services, or an extension of the same obtained through actual fraud or a written false statement of financial condition.
- Fraud or defalcation by a fiduciary, embezzlement, or larceny.
- Willful and malicious injury.
Self-Executing Non-Dischargeable Debts
If a debt is a self-executing non-dischargeable debt, then the creditor does not have to bring an adversary proceeding to deny the dischargeability of that debt. If the Debtor wants that debt discharged, then they have to bring an adversary proceeding to determine dischargeability.
The most common self-executing non-dischargeable debts include taxes, domestic support obligations, student loans, fines and penalties from criminal cases, student loans, personal injury claims related to a DUI, debts not listed on the bankruptcy petition, debts not listed on a previous bankruptcy petition, non-support obligations from a divorce, debt incurred for the purpose of paying taxes, and debts owed to a retirement fund (i.e. 401(k), IRA, or pension). There are other forms of nondischargeable debt, but they are case specific and do not arise as often.
If you’re facing foreclosure, you need to talk to an experienced professional immediately. A qualified expert can evaluate your situation and explore your options with you. Whether you are victim of improper mortgage servicing practices or have just struggled financially in the past, an attorney can help.
One foreclosure alternative that has received a lot of attention lately is a short sale. In fact, new legislation, Prompt Decision for Qualification for Short Sale Act of 2013, was just introduced this March to expand legislation from last year and to improve the short sale process overall. Even if you have received a foreclosure notice, a short sale may be an option.
What Is a Short Sale?
A short sale provides borrowers the opportunity to avoid foreclosure by allowing them to sell their home for less than their mortgage’s remaining balance. If the servicer accepts that less-than-full amount, the house is sold to the new purchaser, and the lien against the property is released. However, the borrower will still owe the remaining unpaid balance of any first or second mortgage on the property.
This can eliminate or reduce your mortgage debt, help you avoid the negative impact of foreclosure, allow you to begin repairing your credit sooner than if you experienced foreclosure, and may give you the chance to get another Fannie Mae or Freddie Mac mortgage in as little as two years. Note that a short sale will negatively impact your credit score, but for many, getting out from under an overwhelmingly burdensome mortgage is worth the credit score hit.
Speedier Short Sales
In the past, short sales were rarer than they are now, because fewer people qualified for them, the market has drastically changed from what it was, and the short sale process was long and frustrating. Now, borrowers whose loans have been purchased or guaranteed by Fannie Mae or Freddie Mac enjoy a standardized and streamlined short sale process.
Short sales used to often fail because mortgage servicers took an inordinate amount of time to make decisions and process paperwork. Potential buyers would make an offer, the servicers would take too long to proceed, and the buyers would get frustrated and back out of the transaction.
A program that took effect last year makes the short sale process take much less time. For federally-backed loans, lenders must decide whether to accept a short sale offer within 30 days, aligning short sales with a traditional home-selling and home-purchasing experience. New legislation introduced just this month seeks to expand this 30-day limit to mortgages not backed by Fannie Mae or Freddie Mac. Speedier short sales means increased closing rates, which allows buyers and sellers to move on with their lives more quickly, and boosts the housing market.
More People Are Eligible for Short Sales
Historically, only delinquent borrowers were eligible for short sales, but an important short sale program went into effect last year. That Fannie Mae and Freddie Mac program allows short sales not only for homeowners whose mortgages are in default, but also for those who are not in default but are encountering a substantial hardship that could push them into default.
Now, servicers may approve borrowers for a short sale even if they are current on their payments if they are suffering a hardship such as divorce or separation, death of a borrower or primary wage earner, borrower or dependant family member having a long-term or permanent disability, natural or man-made disaster, sudden increase in housing expenses beyond the borrower’s control, a business failure, or distant employment transfer or relocation (including Permanent Change of Station orders for service members). This list is not exhaustive, as a servicer may submit a short sale recommendation for approval if a non-delinquent borrower is facing a hardship not listed above. (There are also other, non-hardship eligibility criteria not discussed here. See Fannie Mae or Freddie Mac for more details.)
Preparing for Short Sale
Collect your basic financial and loan information. This includes your mortgage statements, other monthly debt payments, and income details like paystubs and income tax returns. Then outline why you are having difficulty making your mortgage payments. You will need to explain to your servicer your hardship and why it is a long-term problem. The documentation required to show need is reduced or eliminated for those who have missed several mortgage payments, have low credit scores, and are facing serious financial hardships.
As I mentioned previously, your very first step should be to talk to a qualified professional. An experienced attorney will need the above information to help you determine your best course of action, so it is a good idea to have these materials on hand. But remember, a foreclosure may not have to be your fate, and a short sale certainly is not your only option. For instance, if you are behind on your payments but can afford your mortgage and just need some help getting back on track, consider a Chapter 13 bankruptcy plan to prevent foreclosure and to avoid a short sale. Or, if you have other debts that you cannot manage, a Chapter 7 bankruptcy may help you resolve all of your debts, including the mortgage, in one short process.
See Related Blog Posts:
Fannie Mae Loss Mitigation Options
What is a Qualified Mortgage?
The post Is a Short Sale Right for You? appeared first on AKB.
By Ryan C. Wood The short answer is because corporate profits and corporations in general are favored over protecting the individual from harm these days. Below is only one court decision in the long dismantlement of individual rights in favor of corporate rights. Every state, well, every state used to have usury laws. Have you [...]The post Ever Wonder Why Credit Card Companies Can Charge Such High Interest Rates? appeared first on National Bankruptcy Forum.
Mortgage companies and banks often put you on a “no communication” list after you file bankruptcy. Your on-line access log-in may stop working, you will no longer receive loan statements, and when you call customer service you may be told that because you are in bankruptcy, the lender cannot talk to you anymore.Lenders are not giving you the silent treatment because they are angry at you for filing bankruptcy, nor are they trying to be rude. They are not talking to you because the automatic stay protection of the Bankruptcy Code says that once you file, it is a violation of the stay to make any effort to collect a debt.Arguably, a loan statement could be construed as attempting to collect a debt and customer service reps not knowledgeable about bankruptcy may say something inproper. Basically your bank or mortgage company does not want to find itself facing a claim for damages arising from violating the stay so many of these companies simply cut off all communication.The problem for you, of course, is that you may have a need to speak with a representative. Perhaps you need to confirm receipt of a mortgage payment that was paid directly after filing. You may need to make an electronic payment directly from your checking account. You may need a copy of your payment history.How do you get past the wall of silence?I have found that one tactic which does work many times involves a letter from me (or your attorney) stating that I represent you in a particular bankruptcy case and that I authorize the lender to communicate with you directly about your account and to resume sending statements.Many lenders find this type of letter sufficient to ease their concern about potential liability for communicating with a bankruptcy debtor.Obviously you, as the debtor, must be careful about what you say to a creditor representative and limit your discussions to your specific needs. For example, you would not want to engage the lender’s representative in a discussion about your failings at managing your credit card bills. You should assume that any conversation you have with a bank or mortgage company representative is being recorded.Generally, your lender will communicate with me as your lawyer. I regularly receive notices of changes in payments, escrow changes and payment address changes. I will forward these along to my clients but obviously it is better if my clients receive these directly.The post Bank Won’t Talk to You Now that You have Filed Bankruptcy – Here’s a Solution appeared first on theBKBlog.
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