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Evictions and BankruptcyOn November 7, 2021, the New York Times published an article titled "With Cases Piling Up, an Eviction Crisis Unfolds Step by Step". The article can be found at https://nyti.ms/3mPXsGf The article stated that evictions are on the rise nationwide. We are receiving more and more calls and emails from individuals facing evictions and/or businesses in distress at Shenwick & Associates.The first step an individual or business facing eviction should take is to consult with an experienced litigator or landlord-tenant attorney. Can bankruptcy help these people and businesses? Yes, it can. Bankruptcy can provide temporary or permanent relief from many of these problems.By filing a bankruptcy petition, all litigation against the Debtor (person or company that owes money) is automatically stayed pursuant to section 362 of the bankruptcy code. The purpose of section 362 is to give the debtor breathing room!Chapter 13 of the Bankruptcy Code allows an individual debtor to reorganize pursuant to a confirmed chapter 13 plan. A chapter 13 plan could permit the debtor to keep their house or lease, despite the pending eviction action. Chapter 13 plans are generally funded by 3 to 5 years of the debtor's future earnings. Corporations and limited liability companies cannot file for chapter 13 bankruptcy.Individuals who don't want to keep their lease or home and owe money to banks, landlords, or creditors can file for chapter 7 bankruptcy, which will wipe out their debts and give them a "fresh start."Corporations or LLCs may file Chapter 7 or Chapter 11 bankruptcy or a new Subchapter V Chapter 11 bankruptcy. Debtors' finances are reviewed holistically, including the property they own, who owes money to them, a recent tax return and an after-tax monthly budget. For business we review their Income Statement, Balance Sheet, a recent tax return and guarantees. If you or your business is contemplating bankruptcy, call or email Jim Shenwick, Esq. 212 541 6224 or [email protected] to learn about your options.
The U.S. Court of Appeals for the Sixth Circuit recently ruled in a case involving a Chapter 13 debtors’ attempt to shield contributions to a 401(k) retirement account from “projected disposable income,” therefore making such amounts inaccessible to the debtors’ creditors.[1] For the reasons explained below, the Sixth Circuit rejected the debtors’ arguments. Read More ›
Tags: 6th Circuit Court of Appeals, Chapter 13
The U.S. Court of Appeals for the Sixth Circuit recently ruled in a case involving a Chapter 13 debtors’ attempt to shield contributions to a 401(k) retirement account from “projected disposable income,” therefore making such amounts inaccessible to the debtors’ creditors.[1] For the reasons explained below, the Sixth Circuit rejected the debtors’ arguments. Read More ›
Tags: 6th Circuit Court of Appeals, Chapter 13
A statute must be interpreted and enforced as written, regardless, according to the U.S. Court of Appeals for the Sixth Circuit, “of whether a court likes the results of that application in a particular case.” That legal maxim guided the Sixth Circuit’s reasoning in a recent decision[1] in a case involving a Chapter 13 debtor’s repeated filings and requests for dismissal of his bankruptcy cases in order to avoid foreclosure of his home. Read More ›
Tags: 6th Circuit Court of Appeals, Chapter 13
A statute must be interpreted and enforced as written, regardless, according to the U.S. Court of Appeals for the Sixth Circuit, “of whether a court likes the results of that application in a particular case.” That legal maxim guided the Sixth Circuit’s reasoning in a recent decision[1] in a case involving a Chapter 13 debtor’s repeated filings and requests for dismissal of his bankruptcy cases in order to avoid foreclosure of his home. Read More ›
Tags: 6th Circuit Court of Appeals, Chapter 13
CFPB Confirms Effective Date for Debt Collection Final Rules
(Reprint from CFPB, July 30, 2021) The Consumer Financial Protection Bureau (CFPB) today announced two final rules under the FDCPA will take effect in November. The first rule, issued in October 2020, focuses on debt collection communications and clarifies the FDCPA’s prohibitions on harassment and abuse, false or misleading representations, and unfair practices by debt collectors when collecting consumer debt. The second rule, issued in December 2020, clarifies disclosures debt collectors must provide to consumers at the beginning of collection communications. The second rule also prohibits debt collectors from suing or threatening to sue consumers on time-barred debt. Additionally, the second rule requires debt collectors to take specific steps to disclose the existence of a debt to consumers before reporting information about the debt to a consumer reporting agency.
The CFPB proposed extending the final rules’ effective date by 60 days to allow stakeholders affected by the COVID-19 pandemic additional time to review and implement the rules. The public comments generally did not support an extension. Most industry commenters stated that they would be prepared to comply with the final rules by November 30, 2021. Although consumer advocate commenters generally supported extending the effective date, they did not focus on whether additional time is needed to implement the rules. The alternative basis for an extension that many commenters urged, a reconsideration of the rules, was beyond the scope of the NPRM and could raise concerns under the Administrative Procedure Act. Nothing in this decision precludes the CFPB from reconsidering the debt collection rules at a later date.
The CFPB is committed to informing consumers about their rights and protections under the rules and assisting debt collectors in implementing them. Consumer education materials on debt collection and resources to help debt collectors understand, implement, and comply with the rules are available through consumerfinance.gov.
The CFPB will consider additional guidance for debt collectors, including those that service mortgage loans, as necessary. The CFPB recognizes that mortgage servicers are expected to receive a potentially historically high number of loss mitigation inquiries in the fall as large numbers of borrowers exit forbearance and that, as a result, mortgage servicers in particular may face capacity constraints. The CFPB will continue to work with all market participants to ensure a smooth and successful implementation.
Debt Collection Rule FAQs
(reprint from CFPB website) The questions and answers below pertain to compliance with the Debt Collection Rule.
This is a Compliance Aid issued by the Consumer Financial Protection Bureau. The Bureau published a Policy Statement on Compliance Aids, available here, that explains the Bureau’s approach to Compliance Aids.
Read more…..
Topics
- Limited-Content Messages
- Telephone Call Frequency
- Telephone Call Frequency: Presumptions
- Telephone Call Frequency: Excluded Calls
- Telephone Call Frequency: Rebutting the Presumptions
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Important Update to rules
Every day financially distressed neighbors are hounded and bullied by debt collectors. Many, if not most, use illegal procedures to collect debts, that may not even be collectable.
Consumer Financial Protection Bureau “CFPB”, was established to police banks, lenders, car dealers, payday lenders, student loans, banks, and many more. They focus on those who try to take advantage of people who don’t know their rights in dealing with unscrupulous businesses.
Unfortunately, the Trump administration gutted CFPB, but the good news is “they’re back”. Every week there is a new announcement of CFPB pursuing those who think they can ignore the law. The above article focuses on one of those groups – debt collectors. The new rules limit what they can do and the consequences of their bad behavior. But, in order for this to be successful, you have to be part of the process. If you do not report bad actors to both the CFPB and FTC (Federal Trade Commission), then the bad actors will continue to abuse others. Stand up and be heard.
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“They answered all our questions patiently and thoroughly explained the legal processes and what we could expect so there were no surprises. .” T.D and R.I.
Diane and Jay are an absolutely phenomenal professional team. Bankruptcy is not an easy undertaking and there is a lot of paperwork you have to gather before filing so be prepared and do not get annoyed because Diane and Jay will guide you every step of the way. Try looking at it as a valuable learning experience to get you back on the right track to financial stability. They answered all our questions patiently and thoroughly explained the legal processes and what we could expect so there were no surprises. Her website is a fantastic reference for both clients and attorneys. Spend some time reviewing it and you’ll be convinced that she is the right attorney for you. From your first call to Diane you will immediately see that she is compassionate in understanding your situation and will feel confident that she is the right attorney to proceed with. Keep in mind that she has been specializing in bankruptcy’s for about 30 years and is held in high esteem within the court system. Her fees are very reasonable and her Yelp review page says “discounts available” which we found to be true as my spouse and myself are both veterans and we originally connected with Diane through a link upon another link within the VA Weekly Newsletter. We highly recommend Diane and Jay and are most grateful for all the kindness and respect they showed us in handling our case to completion. T.D. and R. I.
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