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On February 10, 2010, the Bankruptcy Court for the Southern District of Florida issued its opinion in the case of Deborah C. Menotte, Trustee v. Oxyde Chemicals, Inc., __ B.R. ___, 2010 WL 554900 (Bkrtcy.S.D.Fla.). The case involved a attempt to avoid and recover an alleged preferential transfer and the creditor's alleged a defense of "ordinary course of business" or "new value." The transfer in issue was a check dated within 90 days before the filing for payment of an invoice dated a few months earlier.
Elements of Preference Avoidance
The Court noted that the U.S. Supreme Court has explained that the purpose for the trustee's power to avoid preferences is to "discourage creditors from 'racing to the courthouse to dismember the debtor during bankruptcy,' and to facilitate an equality of distribution among creditors. The Court reviewed that section 547 (b) sets forth five elements to allow an avoidance of a preference.
- Payment was to or for the benefit of a creditor
- On account of an antecedent debt
- Made while the debtor was insolvent
- Made within 90 days before the bankruptcy petition date (one year for insider)
- Effective in allowing the creditor to receive more than it would have received in a chapter 7 distribution
Ordinary Course of Business Defense
The Court found that the five elements of a preference were met and that the payment could avoided unless one of the exceptions set forth in section 547 (c) applied. The creditor argued that the section 547 (c)(2)(A) "ordinary course of business" exception applied. The elements of this exception are that the (i) debt was incurred in the ordinary course of business or financial affairs of the debtor and creditor and (ii) the payment was made in the ordinary course of business of the debtor and creditor. The trustee argued that this exception did not apply as the payment was made later than payments made during the pre-ninety day period and was made in response to unusual collection activity.
The Court cited the 11th Circuit case of In re Globe Mfg. Corp., 567 F.3d 1291 (11th Cir. 2009) and explained that the "ordinary course inquiry is subjective" and requires the court to consider whether the transfer was ordinary in relation to other business dealings between the creditor and debtor. It further stated that courts consider the following in making this determination:
- Prior course of dealings between the parties during the pre-preference period - Transactions during the pre-preference are examined to determine the parties' ordinary course of business and then transactions occurring during the preference period are compared to the parties' pre-preference transaction to determine if they were made in a similar manner. Although courts have various mathematical tools available to make these analyses, there is no single formula the court must use and most tend to use the "range of terms that define the transaction, rather than considering only averages." The payment need not be rigidly similar to each past transaction, but need only demonstrate "some consistency with other business transaction."
- Amount of the payments
- Timing of the Payments - Untimely payments are more likely to be considered outside the ordinary course of business. The operative date is the date of delivery of the check and not the date the check is issued, but dishonored checks are considered delivered on the date the check is actually honored by the drawee bank.
- Circumstances surrounding the payments - Otherwise "normal" payments which result from "unusual debt collection or payment practices" are not protected. Marathon Oil Co. v. Flatau (In re Craig Oil Co.), 785 F.2d 1563, 1566 (11th Cir. 1986). In making this determination (as with aging of payments), courts "normally conduct a comparative analysis between the preference and pre-preference periods." The analysis in on a case by case basis and legal action or coercion is not required.
Although the Court found that the payment was within the range of the debtor's ordinary course of late payments, it found that the circumstances surrounding the payment indicated "unusual debt collection" and therefore took it outside of the ordinary course of business. In making this finding, the Court compared the emails between the parties during the preference and pre-preference periods and found that warning of imposition of prepaid credit status/request for next day payment and a placement of a "credit hold"(which triggered the payment herein) were substantively different types of collection activity.
New Value Defense
The Court also rejected the creditor's attempt to use the section 547 (c)(4) "new value" exception as the other credit that was extended was before and not after the challenged preference payment. The section 547 (c)(4) new value defense requires that (1) the creditor extend new value after receiving the challenged payments, 2. the new value must be unsecured, and 3. the new value must remain unpaid.
Prejudgment Interest
The Court found that pursuant to the 11th Circuit's decision in In re Globe Mfg. Corp., courts have the discretion to award prejudgment interest as a matter of federal common law, but that its award must be "equitable." As the Court found that the creditor's ordinary course of business defense was colorable although ultimately unpersuasive and that the creditor did not otherwise delay the proceedings, it declined to exercise its discretion to award prejudgment interest.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.
Jordan E. Bublick is a Miami bankruptcy lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. He has filed over 8,000 bankruptcy cases. His office is located at 1221 Brickell Ave., 9th Fl. Miami, Florida. Telephone: (305) 891-4055. www.bublicklaw.com
Chapter 13 and Mortgage Foreclosures
Chapter 13 bankruptcy may be the appropriate solutions for many homeowner's facing foreclosure of their mortgage.
In using chapter 13 to deal with a mortgage foreclosure, certain time deadlines and special considerations may be present.
Answer of Foreclosure Complaint. One time limitation is that once a foreclosure case has been served upon you, you should answer the foreclosure. It must be answered within the time period set forth in the summons. If you fail to answer it, you may lose all rights to contest the case and not receive any further notice before the Clerk of the Circuit Court sells your home.
b. Filing of Bankruptcy Case. A bankruptcy must generally be filed before the foreclosure sale takes place if you desire to cure a mortgage default and reinstate such mortgage under a chapter 13 or 11 plan.
c. Other Factors Regarding Filing of Bankruptcy Case. The first payment under a Chapter l3 bankruptcy plan is normally due 30 days after the bankruptcy case is filed. You should normally not file a Chapter 13 case unless you are in a position to begin making such timely payments.
d. Junior Mortgages. Junior mortgages (i.e. all mortgages besides a first mortgage) often have the right to payoff in full any senior mortgage (i.e. higher priority mortgages) if you are in default in order to protect their positions. Such advanced amount would then be part of the "reinstatement amount" due for such junior mortgage. This may make it difficult for you to reinstate such junior mortgage as such reinstatement amount may be a substantial sum--even when divided into installments over 3 or 4 years. This factor may make it wise for one with a junior mortgage to file a Chapter l3 bankruptcy case as soon as possible and before a junior mortgagee has an opportunity to payoff a senior mortgage.
e. Income Taxes. In addition, you should realize that there might be negative tax consequences in the event of a foreclosure sale. Your lender may report the foreclosure sale to the I.R.S. This firm was not consulted or retained for tax matters. You should review the tax consequences with a competent tax advisor at once.
f. Deficiency Judgment. Foreclosure of your mortgage loan may not relieve you of responsibility for your entire debt. If your property does not bring a price at the foreclosure sale sufficient to satisfy your debt, you may remain liable for balance owing after foreclosure, i.e. the "deficiency". Even though your lender may be insured against loss (for example, V.A. mortgages), their insurer may be in a position to sue you for the balance due.
.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.
If you’re involved in a personal injury lawsuit – as a plaintiff or defendant – a bankruptcy filing could send the case off the rails.
People get hurt. Sometimes they sue someone in connection with that injury.
People get into debt. Sometimes they file for bankruptcy to get out of debt.
And sometimes, people who are in debt are also a party to a personal injury lawsuit.
That’s when things get complicated.
If You’re Suing Someone Else And File For Bankruptcy
When you file for bankruptcy, all of your property gets turned over to the control of the bankruptcy trustee.
If you’re in a Chapter 7 bankruptcy the trustee’s job is to take all non-exempt property, turn it into cash, and distribute that cash to your creditors.
If you file a Chapter 13 bankruptcy then the proceeds of any settlement or judgment are used to fund your Chapter 13 Plan.
This means that, in the absence of court permission, the right to collect the money is out of your hands. It’s only when the trustee gives up the property that you regain control of it.
See Also:
Just as important is the fact that under the bankruptcy laws you’re required to cooperate with the trustee assigned to your case. If the trustee decides to hire a lawyer to take over the case, you’ll still need to do your part.
If You’re Being Sued And File For Bankruptcy
So long as the debt is dischargeable, your personal obligation to repay the debt will be wiped out in a bankruptcy case.
In addition, the lawsuit has to stop while you’re in bankruptcy unless the other side gets relief from the automatic stay.
Once the bankruptcy case is over, the personal injury lawsuit against you will pick up where it left off. Your insurance company will still pay out to the extent that you’ve got coverage, but that’s all the other side can possibly get.
If The Other Side Files For Bankruptcy
Most civil lawsuits are subject to the automatic stay in a bankruptcy case. The minute the bankruptcy is filed, you can’t continue the action.
Like a children’s game of “red light, green light, 1-2-3-,” you’ve got to stop where you are. And if you want to continue with the lawsuit while the other side is in bankruptcy you’ll need to ask for court permission.
Disclose The Lawsuit, Disclose To Your Lawyer
When you file for bankruptcy, you’re required to disclose all of your assets – including the right to sue someone else.
You’re going to want to talk with your lawyer about the pending claim. Work together to put together a strategy to keep as much of the proceeds of settlement or judgment as possible.
See Also:
- Filing for Bankruptcy Means Showing Your Cards
- Walk Into Bankruptcy Naked – Or Walk Out Naked
- How To File Bankruptcy – Listing Your Property
If you don’t disclose the lawsuit on your schedules and Statement of Financial Affairs, you could lose the right to begin or continue the action.
Overall, it’s a tricky situation – but one you can resolve by being honest and accurate in your dealings with your lawyer as well as the trustee.
Credit After Bankruptcy: Why Choose a Secured Credit Card Offer
Virtually everyone I meet with to discuss the filing bankruptcy is worried about future credit. Is it possible to reestablish credit after filing bankruptcy? It is. It might take a year or two after bankruptcy to rebuild your
credit score, but imagine how long it will take if you continue to struggle with your existing debt. One good way to start rebuilding your credit score after bankruptcy is by getting a secured credit card.
Unsecured or Secured Credit Cards after Bankruptcy?
When looking for a credit card after bankruptcy, you will receive piles of credit card offers from different companies. Choosing the right card can be a daunting task. Should you apply for a secured credit card or an unsecured credit card? Secured credit cards are often better deals than unsecured cards because the fees and interest right are usually lower that the unsecured cards you can qualify for immediately after a bankruptcy.
What is a Secured Credit Card?
A secured credit card requires a cash deposit as collateral for the credit line. Your credit limit is either the amount of your deposit or some percentage above that amount. Secured credit cards are designed for people with a poor credit score, such as bankruptcy. They may charge higher fees, but in many circumstances, they will less expensive.
Top Tips for Finding a Secured Credit Card after Bankruptcy
1. Check the fees involved with the credit card offer, because regular payments such as annual fees or processing fees may have to be made. Remember, annual fees differ significantly between various banks.
2. Apply for a secured credit card that doesn’t charge an application fee.
3. Because the card is secured by a deposit, you should not have to pay a high interest for a secured credit card you get after bankruptcy.
4. Make sure that the credit card company reports your payment history to the three credit bureaus. If they don’t, it will not help rebuild your credit.
5. The company should not report that you are holding a secured card to the bureaus, which can adversely affect your credit score.
6. Watch out for companies that use deceptive practices. Research the company and make sure that it does not have a history of consumer complaints.
Bouncing back from a bankruptcy does not have to be hard. My firm offers our clients free enrollment in a 14 Week Program that will teach you how to rebuild your credit the right way and how to re-establish your credit after a bankruptcy.
Original article: 6 Tips for Getting a Credit Card After Bankruptcy©2013 Arizona Bankruptcy Lawyer. All Rights Reserved.The post 6 Tips for Getting a Credit Card After Bankruptcy appeared first on Arizona Bankruptcy Lawyer.
Bankruptcy Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
Florida statute §222.14 provides that the proceeds of annuity contracts issued to citizens or residents of Florida are exempt from a beneficiary’s creditors unless the annuity was effectuated for the benefit of the creditor. §222.14, Florida Statutes. In the case of Mc Collam v. LeCroy, 612 So. 2d 572 (1993), the Florida Supreme Court held that an annuity contract awarded to the debtor by a defendant to fund a structured settlement of a personal injury case was exempt. The creditor argued that the annuity contract did not qualify as an exempt annuity contract as being in substance a nonexempt structured settlement. The court noted that the statute does not define “annuity contracts” and hence it did not find the exemption limited to any particular types of annuity contracts, such as those based on the insurance of human lives.
The court in In re Dillon, 166 B.R. 766 (Bankr. S.D. Fla. 1994) illustrated the distinction between an exempt annuity contract purchased to fund a structured settlement and a mere structured settlement. In Dillon the judgment creditor agreed to make annual payments and did not purchase an annuity contract to effectuate the annual payments. The court held that the annual payments were not exempt proceeds of an “annuity contract” pursuant to §222.14, Florida Statutes.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.
Bankruptcy Lawyer - Chapter 13 Bankruptcy Lawyer Jordan E. Bublick has an office in Miami and has over 25 years of experience in filing chapter 13 and chapter 7 bankruptcy cases. His office is located in Miami at 1221 Brickell Ave., 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
Florida statute 222.11 generally provides for certain exemptions of "disposable earnings" of a head of family and non-head of family in three different situations as follows:
- All of the disposable earnings of a head of a family of $500.00 or less a week are exempt.
- Disposable earnings of a head of family greater than $500.00 are exempt unless the person has agreed otherwise in writing (also cannot exceed 15 USC 1673)
- Disposable earnings of a person that is not a head of family is exempt to the extent of 15 USC 1673
15 USC 1673 generally limits the amount that can be garnished to 25% of the individual's disposable earnings per week. Exempt earnings that are deposited into a bank are exempt for six months if the funds can be traced to and identified as earnings.
The determination of whether a person is the "head of family" is based on the totality of the circumstances.
"Earnings" is defined to include compensation paid in money for personal services or labor whether denominated as wages, salary, commission, or bonus. Disbursements from a family owned business may not constitute "earnings" unless there is a formal arms length employment agreement and if the disbursements are characterized as "profits." Commissions and bonuses may constitute earnings even if the person is labeled an independent contractor if his activities are essentially a job, he is supervised, and not in the nature of running a business. But commissions have been held not to constitute earnings if the person is free to make his own business decisions and solely responsible for expenses incurred in the operation of his business. A return on an equity investment is not earnings.
Lost wages have been held to consitute earnings where the settlement properly identified them as earnings.
According to the Federal Rules of Bankruptcy Procedure, the party objecting to exemptions has the burden to prove by a preponderance of the evidence that a debtor is not entitled to the claimed exemption. If the objecting party establishes prima facie evidence that the exemption should be denied, the burden shifts to the debtor to establish that the exemptions are legally valid.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.
Bankruptcy is used by millions of consumers to help them regain financial control. As a significant financial tool it has been used to help stop repossession, foreclosure, and wage garnishment. You can obtain the fresh start you need or get help repaying obligations based on what you can afford without paying interest. It is common [...]
As many readers of our Cooler e-mails and blog posts are aware, one of the hottest current topics in personal bankruptcy is the treatment of rent–stabilized leases in Chapter 7 personal bankruptcy cases. Earlier this month, the New York Times had an excellent front page article entitled “Widow's Bankruptcy Case Poses Risk to Rent-Stabilized Tenants.” The case is captioned Santiago-Monteverede v. Pereira and involves 79 year old Mrs. Mary Veronica Santiago-Monteverede, who has lived in a two bedroom rent stabilized apartment in the East Village for 50 years and is paying monthly rent of $703, while the market rate for the unit would be $2,000 to $2,500 per month.
Ms. Santiago-Monteverede filed Chapter 7 bankruptcy to discharge $23,000 of debt, none of which was owed to her landlord. Her landlord made an offer to purchase her lease from Chapter 7 Bankruptcy Trustee John S. Pereira, which he accepted. The sale of the lease was subsequently challenged by Ms. Santiago-Monteverde’s attorneys. The U.S. Bankruptcy Court for the Southern District of New York and the U.S. District Court for the Southern District of New York both ruled in favor of the Bankruptcy Trustee, and the case is now pending before the 2nd Circuit Court of Appeals, where oral arguments were held on September 23rd.
This is the first Chapter 7 personal bankruptcy rent–stabilized case to reach the 2nd Circuit Court of Appeals. Please keep monitoring our Cooler e-mails and blog, and when the 2nd Circuit Court of Appeals issues a decision and order, we will report on it. Again, debtors who live in apartments with rent–stabilized leases need to proceed with extreme caution in deciding whether to file for bankruptcy. Jim
As long as you like. And in some respects, not at all.
You’re in debt and can’t climb out of the hole. So you bite the bullet and file for bankruptcy.
It’s not what you wanted to do, but it’s what you needed to do.
Now, sitting with your discharge in hand, you wonder: how long will this drag me down?
Tough question.
The answers may change your thinking about filing for bankruptcy.
Your Credit Report And Bankruptcy
The fact that you filed for bankruptcy will remain on your credit report for 7-10 years depending on the type of case you filed.
Your old debts, the ones you wiped out in bankruptcy, will show a balance due of $0 with a notation that the debt was discharged in a bankruptcy case. Those tradelines will remain on your credit report for 6 years.
The real question, however, is how long your credit score will remain negatively impacted by the fact that you filed for bankruptcy.
See Also:
- Credit Repair After Bankruptcy – Necessary Or A Scam?
- How To Remove Bankruptcy From Your Credit Report
Here’s where things get more complicated. Credit scoring takes into account a variety of factors, including your recent payment history. If you’ve got no debt coming out of bankruptcy, the impact of the case will be larger at first and decline slowly.
If, on the other hand, you have debts that were not wiped out in your bankruptcy case (for example, student loans) and make all post-bankruptcy payments on time then the impact on your credit score will decrease more quickly.
A rule of thumb is that your credit score should start to rise about 12-18 months after your case is closed. If you’re smart about handling your new debt, your credit score should be in terrific shape in about two years.
The Impact On Your Personal Financial Situation
Once you’ve filed for bankruptcy, you’re no longer going to be paying those debts.
Now is the time for you to sit down and work out a budget that includes putting some money away for the proverbial rainy day.
I’m in in your pocket, but without the money going out each month to pay the debts I’m sure you can spare a few bucks for savings. In just a few months, that cushion will be large enough to float you through the bumps in the road of life.
Your State Of Mind
I know how it feels to be deep in debt without a way out. You feel trapped, like an animal in a very small cage.
Every phone call produces anxiety and fear.
You find yourself holding your breath when you pick up the mail.
So your relationships suffer, your sleep patterns are thrown off, and you get tossed into a mad whirlwind of depression. Overall, you become a person who is a not nearly as nice and kind as the person you used to be.
But now that there’s no more debt, the ringing phone signals a friend or family member who wants to talk with you. Mailboxes contain … well, probably junk mail that you can toss out.
You sleep better, for the first time in a long time.
That good feeling can last forever, so long as you keep yourself out of debt.
The Bad Falls Away, The Good Remains
Yes, there’s a credit score hit when you file for bankruptcy. But that hit falls away pretty quickly.
On the flip side, the positive impact on your life can be long-term and sustained.
If you’re at the point where bankruptcy is the best option – or if you’ve already gone through bankruptcy – consider the short-term burden as a small payment for long-term benefits.
Updated daily, this blog will keep you informed on the latest bankruptcy news! 
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