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If you have run into financial problems and are unable to pay credit card payments you probably expect to hear from the bank. What you don’t expect is to be sued by a company that you never heard of. It is probably a debt buyer. This is becoming common.
Companies known as debt buyers routinely purchased accounts from major lenders and credit card companies. They buy these accounts at significant discounts and make substantial profits attempting to collect the full amount.
When they are unable to successfully collect through the use of collection agents they file lawsuits. Most of these lawsuits are not defended and a default judgment is signed by the court.
This is where the real trouble starts. Once a judgment is entered creditors can garnish your paycheck. Arizona law allows a creditor to garnish 25% of your take-home pay.
A recent article appearing on Credit Slips highlighted a common problem with these debt collection lawsuits. The credit industry has taken many shortcuts when they have sold or assigned these accounts. A major debt-buyer called LVNV Funding is a good example. In the case discussed on Credit Slips the account was originally owed to Sears. However, Sears had sold the account Citibank. Citibank turned around and sold the account to Sherman Financial Group. But, the lawsuit was filed listing LVNV Funding as the plaintiff, the company attempting to collect.
The only evidence that LVNV Funding was able to produce was its own business records. They were unable to produce any evidence or testimony that the person they were suing ever owed any money to Sears or that the account had been properly transferred to LVNV Funding. The Court ruled that LVNV Funding failed to prove that it had a right to collect and entered judgment in favor of the defendant.
The problem with the lack of proof shown in the LVNV Funding case is not unique. A recent decision by a New York state court commented that the practice of the debt-buyer industry unfairly affects consumers. It’s common for an account to be sold and then nothing to be done for several years. The interest rate on the credit card accounts is much higher than the creditor would be able to collect on a judgment. Also, the typical credit card agreement also allows late fees and penalties to be added. The judge in that case has set a deadline for the debt buyer to prove it has the legal right to collect in the Court’s pending cases. If it fails to do so, the judge has threatened to dismiss all 930 of its pending cases.
The debt-buyer industry is counting on the fact that most consumers do not know what to do if they are sued. Most of the collection lawsuits are not defended. When they are not defended the debt buyer is awarded a judgment by default. They are then allowed to use the legal process to garnish wages, freeze bank accounts, and seize personal property.
This isn’t a problem that just taking place in other states. Our office has successfully help several people faced with these debt buyer lawsuits. When you’re faced with financial problems bankruptcy is only one of the options. If your problems are being caused by an account that is now held by someone you never did business with, you probably have a valid defense.
We understand that most people have been through a tough few years. There is no shame in having financial problems that have gotten out of control. If you’re faced with problems such as these, please feel free to give us a call. We can help.
Original article: Debt Buyer Lawsuits: Are you being sued by someone you never heard of?©2013 Arizona Bankruptcy Lawyer. All Rights Reserved.The post Debt Buyer Lawsuits: Are you being sued by someone you never heard of? appeared first on Arizona Bankruptcy Lawyer.
The emerging trend, according to a recent CNN Money article, is that the economy has tanked to the point people can't even afford to file for bankruptcy.
Probably true, based on the experience of this law firm. When the crash hit in 2007, the biggest problem was the wave of toxic mortgages re-setting to interest rates, and consequently payments, that shot to absurd amounts. Home owners couldn't make the payments, so bankruptcy was one way to eliminate the debt and stop the foreclosure long enough to get out of the house and not have to abandon your toothbrush and Fido. This event, in turn, triggered the economic down-turn, the lay-offs and decline in income that bring us to where we are today.
The 2005 "reform" of bankruptcy law has compounded the problem for debtors by requiring more paperwork and thereby increasing costs. Among the most ludicrous requirements is pre-filing debt counseling. Bankruptcy is the last thing debtors want to do. If debt management re-payment plans were a solution, they would be doing them.
The average attorney fee for a Chapter 7 bankruptcy is $1,500 (and that is more or less what bankruptcy lawyers charge in DC, MD and VA.) But, says the article, it is expected that between 200,000 and one million consumers will not be able to afford even that.
Our bankruptcy and tax law firm has recognized this reality. That is why we have set up a new program to make legal representation in bankruptcy more affordable to debtors in DC, MD and VA. The initial cost to start is minimal and the monthly payments within reach. In the meantime, you have legal representation, an advisor, and someone to "run interference" (if I may borrow a sports term) with creditors. Take a look: FINANCED BANKRUPTCY℠.
Call us, and we'll discuss your situation.
The emerging trend, according to a recent CNN Money article, is that the economy has tanked to the point people can't even afford to file for bankruptcy.
Probably true, based on the experience of this law firm. When the crash hit in 2007, the biggest problem was the wave of toxic mortgages re-setting to interest rates, and consequently payments, that shot to absurd amounts. Home owners couldn't make the payments, so bankruptcy was one way to eliminate the debt and stop the foreclosure long enough to get out of the house and not have to abandon your toothbrush and Fido. This event, in turn, triggered the economic down-turn, the lay-offs and decline in income that bring us to where we are today.
The 2005 "reform" of bankruptcy law has compounded the problem for debtors by requiring more paperwork and thereby increasing costs. Among the most ludicrous requirements is pre-filing debt counseling. Bankruptcy is the last thing debtors want to do. If debt management re-payment plans were a solution, they would be doing them.
The average attorney fee for a Chapter 7 bankruptcy is $1,500 (and that is more or less what bankruptcy lawyers charge in DC, MD and VA.) But, says the article, it is expected that between 200,000 and one million consumers will not be able to afford even that.
Our bankruptcy and tax law firm has recognized this reality. That is why we have set up a new program to make legal representation in bankruptcy more affordable to debtors in DC, MD and VA. The initial cost to start is minimal and the monthly payments within reach. In the meantime, you have legal representation, an advisor, and someone to "run interference" (if I may borrow a sports term) with creditors. Take a look: FINANCED BANKRUPTCY℠.
Call us, and we'll discuss your situation.
Naturally we worry about how filing bankruptcy will affect those we care about. It is common for a parents to have a car, bank account, even a house, in their names because their daughter or son needed help to buy the car, get a bank account, or qualify for the house.
Does this mean that the daughter’s property is going to be at risk if you file bankruptcy? Usually not.
We have all been brainwashed into thinking that the legal system is all about technical loopholes and “fine print.” Even lawyers will often latch onto an old rule of law and insist that it controls the outcome.
One of these rules is that ownership is always determined by whose name is on the title. That may be a starting point, but it does not determine the outcome.
A recent example is a dispute I was involved with in a Chapter 7 bankruptcy. The case was filed in the Phoenix Bankruptcy Court. My client’s car was in the name of his limited liability company. We claimed the car as protected in his personal chapter 7 bankruptcy. The bankruptcy trustee objected and claimed my client did not have the right to protect the car because it was not in his name. The trustee correctly pointed out that limited liability companies (LLC’s) did not have the right to protect any property.
At the hearing at the Arizona Bankruptcy Court, the Bankruptcy Judge agreed that the car was owned by my client based on the evidence that he personally paid for the car, paid the insurance, and treated the car as his personal property. Although the name on the title was some evidence of ownership, it alone did not determine the outcome.
The same is true of the everyday situation where a parent is on the title of their children’s car. Often this is done for purposes of financing and insurance. It is also true of bank accounts because the child may not be old enough to open an account in his name alone. There have even been court decisions involving the “true” ownership of real estate.
This reasoning works both ways. Sometimes a client will ask me if it would be okay to put a valuable asset into someone else’s name as a way to protect it from the bankruptcy process. I understand that most people are not at their best when first learning that they may lose something important when filing a bankruptcy. These are things that most of us would never do, but it does not stop use from thinking them. It would not work anyway.
Just putting someone’s name on the car title is not enough to transfer the “true” ownership. The bankruptcy trustee and bankruptcy judge would consider other factors. Also, there are special rules that allow the Court to take back anything that is given away in contemplation of bankruptcy.
Before worrying too much about how a possible bankruptcy will affect others whose financial lives are tied to yours, check with an experienced Arizona Bankruptcy Lawyer. It is more complicated than just filling out the Court forms and knowing some general rules.
Original article: Will My Daughter Lose Her Car if I File Bankruptcy?©2013 Arizona Bankruptcy Lawyer. All Rights Reserved.The post Will My Daughter Lose Her Car if I File Bankruptcy? appeared first on Arizona Bankruptcy Lawyer.
Many people find themselves in a tough position when they’ve fallen behind on their mortgage payments and are unable to make them up. They try to negotiate with the mortgage company, enter into a loan modification, or some even try to borrow the money from friends or relatives. It’s a very scary to receive a Notice of Foreclosure especially when your options are limited. When people in this situation come into our office it’s important that as their potential attorney we delicately ask the question “Can you really afford to save your home?” This is a difficult topic and many people dismiss it when it’s first brought up, however, it’s important to realize bankruptcy should be a solution to your financial problems and bankruptcy should give you debt relief. The reality is sometimes financial challenges come up and we fall behind. This can be corrected by filing bankruptcy - Chapter 13, however, if the problem is you cannot afford your mortgage payment on an average month then bankruptcy will be nothing more than a temporary solution. I have this conversation with clients on a weekly basis and try to help people realize that a life in which your finances are under control is a life with much less stress and anxiety. When attempting to save your home it’s important that you weigh the pros and cons. If holding on to your home is going to leave you in the same position you were in or worse, choosing to keep your home may not be your best solution. There are many people who surrender a home within a bankruptcy and are later able to purchase another home when their finances improved. Surrendering a home in your bankruptcy does not mean that you will never own a home again it just means you are making the decision to get back on your feet and headed in the right direction when it comes to your finances.
By: Marshall G. Reissman Bankruptcy Attorney in St. Petersburg, Florida at The Reissman Law Group, P.A.
The test that everyone wants to talk about when they come in for a consultation is the Means Test. Folks generally want to know if they qualify to file Chapter 7 by passing the Means Test. This test is pretty simple. If you are below the state median income you qualify. Everyone breathes a big sigh of relief that they won’t be forced into a repayment plan under Chapter 13. The problem with this is the Means Test is where the analysis begins, not where it ends. The actual income and expenses of the Debtor must be taken into account in order to pass the not much discussed “Totality of Circumstances Test.”
Even if a Debtor is below the median income on the Means Test, if the Debtor has disposable income on the bankruptcy schedules, the Debtor may not qualify to receive a discharge under Chapter 7. This is called the Totality of Circumstances Test. If a Debtor has disposable income to pay back unsecured creditors, the Trustee can file a notice stating that receiving a discharge under Chapter 7 would be an abuse. Not many folks talk about the Totality of Circumstances Test, and the only test you can find on the internet is the Means Test. Inevitably, folks do some research on the internet, find out they are under their state’s median income, and automatically think they can receive a discharge under Chapter 7. Therein lies the mistake. Passing the Means Test just gets you to the starting line, a better analysis needs to be performed to see if you can finish the race.
I recently had the opportunity to review Warren Sapp’s bankruptcy petition when I was interviewed by a Tampa Bay Times reporter. Link to the story can be found here. I previously wrote an article about the reason why I, and other bankruptcy attorneys, think that Mr. Sapp filed for bankruptcy. The garnishment. Another question folks had was how could a person with so much income file Chapter 7. Looking over the schedules, it did not appear Mr. Sapp had substantial income in the six months prior to filing the Chapter 7 Bankruptcy petition. What I believe will be problematic for Mr. Sapp is the amount of disposable income he shows on his schedules. While Mr. Sapp does not fail the Means Test, Mr. Sapp lists more than $4,500.00 in net monthly income on his schedules, which could be viewed as an abuse is he receives a discharge under Chapter 7. I guess we will have to wait and see.
In the meantime, if you want to find out if you not only qualify to file Chapter 7 Bankruptcy, but will be able to receive a discharge under Chapter 7, call us for a free consultation. We have more than 30 years combined experience representing individuals in bankruptcy.
By: Marshall G. Reissman Bankruptcy Attorney in St. Petersburg, Florida at The Reissman Law Group, P.A.
The test that everyone wants to talk about when they come in for a consultation is the Means Test. Folks generally want to know if they qualify to file Chapter 7 by passing the Means Test. This test is pretty simple. If you are below the state median income you qualify. Everyone breathes a big sigh of relief that they won’t be forced into a repayment plan under Chapter 13. The problem with this is the Means Test is where the analysis begins, not where it ends. The actual income and expenses of the Debtor must be taken into account in order to pass the not much discussed “Totality of Circumstances Test.”
Even if a Debtor is below the median income on the Means Test, if the Debtor has disposable income on the bankruptcy schedules, the Debtor may not qualify to receive a discharge under Chapter 7. This is called the Totality of Circumstances Test. If a Debtor has disposable income to pay back unsecured creditors, the Trustee can file a notice stating that receiving a discharge under Chapter 7 would be an abuse. Not many folks talk about the Totality of Circumstances Test, and the only test you can find on the internet is the Means Test. Inevitably, folks do some research on the internet, find out they are under their state’s median income, and automatically think they can receive a discharge under Chapter 7. Therein lies the mistake. Passing the Means Test just gets you to the starting line, a better analysis needs to be performed to see if you can finish the race.
I recently had the opportunity to review Warren Sapp’s bankruptcy petition when I was interviewed by a Tampa Bay Times reporter. Link to the story can be found here. I previously wrote an article about the reason why I, and other bankruptcy attorneys, think that Mr. Sapp filed for bankruptcy. The garnishment. Another question folks had was how could a person with so much income file Chapter 7. Looking over the schedules, it did not appear Mr. Sapp had substantial income in the six months prior to filing the Chapter 7 Bankruptcy petition. What I believe will be problematic for Mr. Sapp is the amount of disposable income he shows on his schedules. While Mr. Sapp does not fail the Means Test, Mr. Sapp lists more than $4,500.00 in net monthly income on his schedules, which could be viewed as an abuse is he receives a discharge under Chapter 7. I guess we will have to wait and see.
In the meantime, if you want to find out if you not only qualify to file Chapter 7 Bankruptcy, but will be able to receive a discharge under Chapter 7, call us for a free consultation. We have more than 30 years combined experience representing individuals in bankruptcy.
The post The Test No One Discusses in Bankruptcy appeared first on St. Petersburg Law Blog.
Myths and Truths About Chapter 13 Bankruptcy: Part II
Myth: Debtors who file a Chapter 13 bankruptcy will lose their entire tax refund every year they are in the Chapter 13 without exception.
Truth: Sometimes debtors in a Chapter 13 bankruptcy are required to turn over their tax refunds. The debtor is obligated to turn over tax refunds; however, the debtor may retain the lesser amount of either $600 or two months plan payments. The debtor is required to turn the excess over to the trustee and should not spend the rest of the refund. If the debtor would like to retain more than that amount, they can contact their attorney and have their attorney file a Motion to Retain Tax Refunds. The motion states the legitimate expenses debtor would like to spend the money on, and receipts or bids for the services or products would be attached so the trustee can confirm the amounts the debtor wishes to retain. The trustee has 21 days to object. If no objection is filed, the debtor can retain the portion of their refund accounted for by the motion. If the trustee objects, the debtor would be required to surrender their tax refund to the trustee.
Myth: When the debtor makes his or her Chapter 13 plan payment every month, the trustee takes most of the money for himself.
Truth: The trustee gets paid a small percentage of the total plan base as his fee. The percentage rate fluctuates but is usually about five percent. The trustee disperses the rest of the monthly plan payments to various creditors. The trustee pays on secured debts, such as vehicle loans, arrears on houses, and monthly mortgage payments if the debtor wishes. They also pay taxes, unsecured debts, sewer bills, and other debts as well. If the debtor is required to surrender tax refunds or employee bonuses, the trustee does not keep that money for himself. He generally uses those proceeds to pay unsecured creditors a portion of their debt if they have filed a proof of claim. The trustee may pay certain creditors before other creditors based on their priority level.
If you have questions, please contact a St. Louis or St. Charles bankruptcy attorney.
Myths and Truths About Chapter 7 Bankruptcy: Part II
Myth: Debtors can include some creditors in a bankruptcy and leave out other creditors so that some creditors can be discharged while debtors continue to pay other creditors.
Truth: Debtors may not include some creditors in a bankruptcy but not others. Any creditor who debtor owes money at the time of the filing of the bankruptcy must be listed in the bankruptcy petition. The debtor may not pick the creditors he/she wishes to continue paying while other creditors will be discharged and will not receive any money. The trustee will ask the debtor under oath at the 341 Creditor meeting whether all creditors have been listed. If not all creditors who the debtor owes money are listed, the debtor will have to pay the additional court fees in order to amend the creditor matrix to make sure all creditors they are aware of are listed. The trustee does not want some creditors to get preferential treatment. If the balance on a particular account is $0, the debtor does not need to list that creditor on the petition.
A debtor can continue to pay on secured loans, such as a house or a car. The trustee allows those debts to be paid back because they are secured. Those debts do still need to be listed in the bankruptcy so the trustee knows what assets a debtor has at the time of filing.
Myth: If a debtor has equity in a home, vehicle, or any other un-exempt property, they can transfer the property into someone else's name so the trustee will not attempt to seize the equity.
Truth: A debtor cannot transfer property to avoid the trustee or their creditors. The debtor has an obligation to list in the Statement of Financial Affairs any transfers of property or any sales in the two years prior to the filing of the bankruptcy. The trustee can void the sale or transfer of the property if within the two years prior to the filing. If the sale or transfer is voided, the trustee can regain possession of the property, sell it, and use the money to pay the debtor's creditors. If the transfer is not listed in the bankruptcy petition, the debtor would be in violation of the bankruptcy rules.
If you have any questions, please contact a St. Louis or St. Charles bankruptcy attorney.
Recently I, Bankruptcy Attorney Jeffrey Hsu of JCH LAW FIRM, successfully filed a bankruptcy for members of an LLC faced with personal guarantees related to a retail business. While some bankruptcy attorneys recommended that they file for chapter 7 corporate bankruptcy (I believe those attorneys were hoping to justify the generation of additional attorney’s fees), I act with integrity when dealing with clients - meaning I am honest and professional. Therefore, I did not advise the clients file an unneccessary corporate bankruptcy where the real issues at hand dealt with the liabilities stemming from the personal guarantees.
The clients were satisfied and saved thousands in out of pocket expenses had a corporate chapter 7 also been filed. Because a corporate bankruptcy does not result in a discharge of debts, there is generally little incentive to file a chapter 7 corporate case when the real issues relate to personal guarantees against the members of the LLC in an individual capacity. The limited liability offered to members does not shield the individual liability when personal guarantees are extended to the creditor.
Thus, when thinking about bankruptcy, remember that your bankruptcy attorney should not only be competent - your attorney should also be honest. If your attorney is well established, well known, and a supposed expert in the field, your attorney should be able to break down fundamental legal concepts and explain it to you so that you understand. If your bankruptcy attorney says something is either too complex to explain, or you do not understand the explanation, either your attorney does not know the law, or even if the attorney does know the law, if it can’t be explained to you, how do you think the attorney will explain the situation to the trustee or judges in bankruptcy court?
At JCH Law Firm, we are a bankruptcy firm that specializes in the practice of bankruptcy law for all persons involved in the bankruptcy process. We cater to the San Gabriel Valley Community.
We file Alhambra bankruptcies, Monterey Park bankruptcies, El Monte Bankuptcies, Rosemead Bankruptcies, Altadena Bankruptcies, Arcadia Bankruptcies, City of Industry Bankruptcies, Covina Bankruptcies, Diamond Bar Bankruptcies, Duarte Bankrutpcies, Pasadena Bankruptcies, Glendora Bankruptcies, Hacienda Heights Bankruptcies, Monrovia bankruptcies, Montebello bankruptcies, Pomona Bankruptcies, Rowland Heights bankruptcies, San Gabriel Bankruptcies, Temple City Bankruptcies, Walnut Bankruptcies, Whittier Bankruptcies, and more.
Contact us for a free consultation at 626-999-5959. Our office is located at 1031 S. Garfield Ave., Alhambra, CA 91801.
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