Archive for August, 2011

The latest numbers from Equifax, a credit rating organization based in Atlanta, Georgia, show that small business bankruptcy filings decreased in the first quarter of 2011 compared to the same period in 2010. Down 15 percent from last year, the first-quarter small business filings were still higher than those in the first quarter of 2008, before the recession hit.

For the purposes of its statistics, Equifax considers a small business any corporation with 100 employees or fewer. Here’s a look at what these numbers might mean for the larger economy.

Small-Business Bankruptcy & Economic Recovery

Small business bankruptcy filings might affect the economy in a number of ways:

  • Jobs: When small businesses file for Chapter 7 bankruptcy, they liquidate and cease to exist. That means that any employees of that business become unemployed and enter the job market. A Chapter 11 bankruptcy means reorganization for a small business, but some employees could still be made redundant, especially in smaller operations where salaries are among the largest expenses business owners have. While it might not seem like a small business could have a big impact on the unemployment rate, consider this: about 38 million Americans work for companies with fewer than 100 employees.
  • Local economies: In many parts of the country, small businesses give a town its individual “flavor.” Liquidation bankruptcy by these businesses might hurt a local economy by removing a draw for tourists or out-of-towners; however, a successful reorganization could mean more-booming business in the future.
  • Real estate: In an admittedly less direct way, small-business bankruptcies could affect a place’s real estate market. Empty storefronts drive down real estate prices. This can be good if other businesses fill in right away, but could be bad if multiple businesses close down in the same area. Similarly, if an area’s businesses are failing and its residents are losing work, they may move to greener pastures, leaving their houses empty and potentially driving down residential real estate prices, as well. If few businesses exist to attract potential buyers, the problem could persist.

The Cycle of Small-Business Bankruptcy

One of the most difficult parts of a slow economy is its potential to lead to unhealthy economic cycles: when people are worried about jobs and money, they tend to save more and spend less (and, in fact, numbers have shown that the U.S. savings rate is much higher now than it was pre-recession).

When people aren’t spending money, though, the economy has a hard time getting started (as much as two-thirds of the U.S. GDP is made up of consumer spending). Small businesses, which have shallower reserves of cash, may not be able to attract the customers they need to stay afloat.

When local businesses fail, more people lose jobs and fight to save money, knowing they’ll need it if they cannot find work right away.

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New research published recently in the New York Times provides a fascinating look at how our brains work when required to make important decisions. The findings could have serious implications for people trying to avoid debt, rebuild after bankruptcy, or stick to a budget.

What Is Decision Fatigue?

Decision fatigue is exactly what it sounds like: a phenomenon that occurs when a person has made too many choices. Intriguingly:

  • Each decision a person makes requires energy.
  • We all have limits to our mental energy, but we may not realize we’re approaching those limits.
  • As we make decisions throughout the day, our mental energy is depleted. It can be restored with rest and food.
  • Poor people are reportedly more susceptible to decision fatigue than rich people because those with less money generally have to put more energy into each purchasing decision they make. Having fewer resources means that every spending choice has higher stakes.
  • Decision fatigue can lead to impulse buying, overextending yourself on credit and otherwise making the sort of purchases you wouldn’t if you had your full mental reserves available.

We’re wired to deal with decision fatigue in two ways: by acting impulsively or by making no decision at all. Clearly, either of those options can have serious side effects, especially if debt is on the line.

How Can I Fight Decision Fatigue?

We have to make so many decisions each day, we may not realize we’re making them: what to wear, what to eat for breakfast, what to pack for lunch, which lane to drive in, where to park – and that’s before getting to work.

Researchers have found that there are some key ways to fight decision fatigue and maximize your effectiveness throughout the day:

  • Plan ahead: Set out your clothes, pack your lunch and decide on breakfast before bed. In the morning, you can breeze through without stressing about minor things.
  • Schedule major decisions: If you know you have to make important decisions (e.g. buy a car or lead a big meeting at work), plan ahead. Make sure to get enough rest beforehand and to approach the decision with a full stomach.
  • Space major decisions: While it may seem productive to schedule major decisions or projects close together, you’ll probably serve yourself better by giving your brain a break between them.
  • Have a snack on hand: One encouraging finding of the decision fatigue research was that there is a simple way to fight back: eat something. The rush of glucose to the blood and brain we get from eating can help rejuvenate our energy and make decisions a little less overwhelming.
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Wednesday, August 24th, 2011

The Bankruptcy Option for Countrywide

In 2008, Bank of America acquired Countrywide Financial, a mortgage lending company that was heavily involved in subprime lending practices during the housing boom. Since the merger between the two companies, Countrywide has proven a costly addition to the Bank of America brand.

Since 2008, according to The New York Times, Countrywide has cost Bank of American tens of billions of dollars in legal fees in addition to other significant losses.

Now, media outlets are throwing around the question of whether or not Countrywide might attempt a bankruptcy filing to help ease some of its debt. Here’s a look at what some insiders are saying.

Business Bankruptcy Rules

If an individual was losing as much money as Bank of America, she would likely need bankruptcy protection. But businesses have different considerations and are governed by different laws than individuals. Consider these.

  • Limited liability: One key element that might affect whether or not Bank of America chooses bankruptcy for Countrywide is whether it’s considered liable for the company’s losses. Business mergers commonly include provisions that limit the legal responsibility shareholders (and the other business) have for the acquired business’s debt. If these laws apply, Bank of America may not need bankruptcy for Countrywide.
  • Consolidation transactions: But there’s a chance the limited liability laws won’t apply in Bank of America’s case. That’s because the bank apparently engaged in a series of complicated transactions upon its acquisition of Countrywide to transfer its profits and debts to various subsidiaries.
  • Acquisition of notes and debt: In addition to the consolidation moves, Bank of America also reportedly took on some of Countrywide’s debt and assets. This further complicates the question of whether or not Countrywide remains separate enough from Bank of America to qualify for bankruptcy on its own.

Many of the complex manipulations between Bank of America and Countrywide came to light when insurance giant AIG filed a lawsuit against the bank insisting that it is liable for the mortgage lender’s debts.

At its heart, the question of bankruptcy is one of separation and commingling. Think of it this way: Countrywide’s financial distress could have been, to Bank of America, like a frostbitten limb. If amputated in time, the rest of the body could have been saved.

But because Bank of America reportedly allowed its healthy parts to mix with the troubled parts, separating the bad stuff from the good stuff might not be so simple. Many analysts have suggested that, because of the complexity of the maneuver, bankruptcy for Countrywide is an unlikely option.

Mortgage-Related Bankruptcy for Individuals

Unfortunately, the potential bankruptcy of Countrywide holds no real poetic justice for those who turned to bankruptcy because of unaffordable subprime mortgages. Rather, the financial faltering of an entity as large as Bank of America is just another symptom of a woebegone economy whose problems started in the housing market.

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Monday, August 22nd, 2011

How Can Social Media Affect Bankruptcy?

Most of us have heard warnings about how social media can affect our lives in unexpected ways (e.g. robberies that occur when people post their out-of-town status on Facebook), but the effect of social media on bankruptcy filings is less well known.

Here’s a look at how your online presence might affect your bankruptcy case (and why it’s so important to avoid bankruptcy fraud).

Social Media: Assets, Spending Habits, Income

The bankruptcy petition all filers must complete and submit to the bankruptcy court requires a lot of information about the state of the filer’s personal finances. Putting incomplete or incorrect information on a bankruptcy petition could result in charges of bankruptcy fraud (which can come with jail time and fines of up to $500,000) or the dismissal of a bankruptcy case.

When you’re filing out your bankruptcy paperwork, keep in mind that social media can affect all of the following.

  • Asset list: You may not think of Facebook as a place where you catalog your possessions, but pictures from birthdays and holidays (and even shots around the house) often include our stuff. If you fail to mention new electronics, jewelry or other valuable items in your bankruptcy petition, a savvy trustee could comb through your Facebook pictures and find evidence that your paperwork was wrong. This could prevent you from getting your discharge or mean you have to pay for the non-exempt portion of those assets.
  • Luxury expenses: In Chapter 7 bankruptcy, credit card debt is usually dischargeable (i.e. the bankruptcy court can eliminate most credit card debt). The exceptions to this rule include credit card purchases for luxury goods or services made within 90 days of filing the bankruptcy petition. So pictures online of you and your family on vacation just before you filed for bankruptcy could raise some uncomfortable questions with your bankruptcy trustee. And if the vacation was on a credit card and was within three months of submitting the bankruptcy petition, there’s a good chance you’ll have to pay those debts.
  • New jobs: In Chapter 13 bankruptcy, filers are required to make repayments to their creditors over a period of three to five years. Those payments are calculated based on a filer’s disposable income at the time of the filing, although if that income changes during the course of the repayment plan, the amount of the monthly payments should change too. So if you get a raise or a great new job and tweet about it or post about it on Facebook but don’t tell your bankruptcy trustee, you could still end up having to pay more to your creditors.

Privacy in Social Media

Even if you keep your social media profiles private, you aren’t in a “protected” zone. That’s because the bankruptcy court can subpoena your online information and thus uncover anything you’ve posted online.

Bottom line: don’t lie on your bankruptcy forms. And don’t post anything online you don’t want your bankruptcy trustee to know.

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Recent court rulings may have significant impact on how bankruptcy courts handle escrow debts in some Chapter 13 bankruptcy cases. Here’s an overview of the issue and how escrow debts are likely to be handled in future bankruptcy cases.

What Are Escrow Accounts?

Escrow accounts are accounts set aside as part of a mortgage deal to hold money for expenses like property taxes and homeowner’s insurance. In many cases, the mortgage lender or servicer collects escrow money as part of monthly mortgage payments.

How Do Escrow Accounts Affect Chapter 13 Bankruptcy?

When a homeowner falls behind on mortgage payments, she likely also falls behind on escrow payments. This can lead to difficulties paying property taxes and other non-mortgage fees associated with homeownership.

This may become problematic if a person files for Chapter 13 bankruptcy to avert foreclosure, which is fairly common because of the foreclosure-halting powers of the automatic stay. In Chapter 13 bankruptcy cases, the following might happen to escrow accounts:

  • Mortgage debts can’t be modified in bankruptcy court. This provision was established decades ago as part of efforts to encourage homeownership among Americans. But for underwater homeowners today, it can mean bankruptcy filers have great difficulty keeping their homes, because it means that homeowners must continue making payments as they agreed in their loans.
  • Escrow arrearages are listed in the petition. Overdue escrow payments must be included on bankruptcy paperwork. The good news is that a recent court ruling (in the case In Re Beaudet) asserted that overdue escrow payments accrued before a bankruptcy filing can be considered non-mortgage debts. That means they can be included as part of the bankruptcy repayment plan and repaid over a three- to five-year period, possibly at a lowered interest rate.
  • Future escrow debts are undefined. The bankruptcy case did not establish, though, whether missed escrow payments in the period after a bankruptcy case is filed would be considered part of mortgage debts. In other words, those who continue to have difficulty making their mortgage payments after filing for Chapter 13 may or may not be required to make escrow payments in addition to regular loan payments.

For now, Chapter 13 filers may have to rely on case-by-case judge discretion when missed escrow payments are part of a bankruptcy estate. Considering the high number of struggling homeowners, though, it’s possible that bankruptcy court rulings will decide the issue definitively in the near future.

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Media attention to the fallout from the Congress’s last-minute decision to raise the debt ceiling has mostly gone to the downgrade in America's debt rating by credit rating agency Standard & Poor’s. But another potential side effect may have a more direct impact on some American consumers.

As part of the debt compromise, Congress agreed to cut nearly a trillion dollars in spending – and one casualty was federal subsidies for student loans. That means that people interested in borrowing money for higher education may see a higher price tag for that privilege in the near future.

Student Debt & Bankruptcy

So why is an increase in the cost of student loans a big deal? For a few reasons:

  • Student debt in the United States has already topped $800 billion and analysts estimate that it will reach $1 trillion by the end of 2011. That’s more than our credit card debt, which was estimated at $793 billion in May 2011.
  • The job market has been slow to recover since the recession hit, especially for younger job seekers. Nationally, unemployment is hovering at about 9.1 percent, meaning that finding a job after graduating is tougher than it once was. And the average college graduate hits the job market with about $24,000 in student debt.
  • Student loans are not dischargeable in bankruptcy. That means that borrowers are legally obligated to repay their student loans no matter what (though some rare exceptions exist).
  • For-profit universities have recently faced new sanctions that require them to meet certain requirements in order for their students to receive federally subsidized student loans. The measure was put in place because of evidence that showed students were borrowing money to pay for these schools that they were unlikely to earn back based on income projections upon graduation.

In other words, educational debt in the U.S. has already proven cause for concern from many consumer advocates. An increase in interest rates will mean an increase in the amount of that debt.

Change to Student Loan Rates

As of now, federally subsidized Stafford loans come with an interest rate of 3.4 percent. What’s more, under the current system, the government covers interest that builds up while a student is actively pursuing her education.

When the debt ceiling-related changes go into effect next year, though, that interest rate will double to 6.8 percent and the interest waiver for active students will disappear. Further, the new law removes certain rate reductions that are currently used to incentivize on-time payment.

Student lending is an interesting sector of the U.S. economy: unlike most other loan products, student loans are offered freely, without much regard for a person’s credit history. Because of this, it’s far too easy for young adults to take on more debt than they realize – and entirely possible that they’ll get in over their heads.

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Seven fraudulent mortgage modification services are facing cease and desist orders from the state of New Jersey, according to reports from NJ.com. The legal action comes from the state’s Department of Consumer Affairs and includes steep civil penalties against the firms.

Unfortunately, mortgage scams are nothing new and in fact have been fairly common since the housing market collapsed and adjustable-rate mortgages began to reset en masse. Here’s a look at how these particular companies allegedly scammed New Jersey residents:

  • Promise for negotiation: Scammers apparently piqued victims’ interest by offering to negotiate with their mortgage lenders on their behalf. This offer is understandably attractive to those homeowners struggling to make mortgage payments, who might be in danger of foreclosure or considering a bankruptcy filing to help ease their debt burden.
  • Collection of fees: Naturally, the scammers insisted on collecting payment for their work up front, before actually delivering on their promises. In many cases, consumer protection laws prohibit companies from collecting fees before performing any services.
  • Failure to follow through: Unsurprisingly, the scammers did not actually help victims adjust their debt. In fact, the seven companies weren’t even registered as debt-adjustment services, as the state requires, according to reports.

Debt Negotiation as a Bankruptcy Alternative

While New Jersey’s attorney general has now taken action to repair some of the damage these fraudsters caused, it’s likely that at least some victims endured serious financial hardship because of the scam.

On the (mildly) positive side, the scam provides an excellent opportunity to review some of the differences between debt adjustment services and personal bankruptcy.

Bankruptcy alternatives:

  • Are not regulated as strictly as bankruptcy: At both the federal and state level, there are laws designed to protect consumers from scammers like the ones that struck in New Jersey. But, as this mortgage scam shows us, it’s fairly common for fraudsters to break those laws. Bankruptcy, on the other hand, follows the same set of laws no matter where in the country a filer lives. Those laws are published online where filers can easily access them.
  • May affect credit differently than bankruptcy: One reason many people seek non-bankruptcy alternatives to eliminating or reducing debt is because of the negative perceived impact that bankruptcy can have on a credit score. But assuming your credit won’t be hurt by debt settlement or debt negotiation is a gamble: if you work with a less-than-trustworthy company, you may end up losing money and hurting your credit.
  • Do not offer the legal protections that bankruptcy does: One major benefit of bankruptcy is that filers know that they can expect certain protections (e.g. from creditor contact and collections) after they file their case. No such legal protections exist for bankruptcy alternatives.

Bankruptcy is not right for everyone, but it’s an important and powerful debt-relief option to consider for those in financial distress.

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The housing crisis has led to plenty of attention for homeowners who are underwater on their mortgages – that is, who owe more on their homes than the properties’ current value. Less press time has been devoted to other types of underwater loans, particularly those for cars.

The good news? Filing for bankruptcy may help you out of an underwater car loan (also sometimes called an “upside down” loan). Here’s a look at how things might work.

Underwater Car Loans in Chapter 7 Bankruptcy

Those who file Chapter 7 bankruptcy may handle an underwater car loan in one of three ways:

  • Surrender the car. This option means giving up the vehicle and eliminating the debt connected to it. While this isn’t a practical option for those who need a vehicle, it may be useful for folks who have other transportation options.
  • Redeem the car. This option lets filers repay creditors the remainder of the car’s fair market value in a lump sum. In other words, you pay your lender the car’s current value minus whatever amount you’ve already paid. This tends to benefit those with underwater loans and enough cash on hand.
  • Renew the loan. This choice may work for those who do not have the cash to redeem their cars and who need them for transportation. Loan renewal equals an agreement to continue making payments as outlined in the original loan papers. Chapter 7 bankruptcy may make these more manageable by discharging other debts and thus freeing up enough money to allow for car payments.

Underwater Car Loans in Chapter 13 Bankruptcy

The other common form of personal bankruptcy, Chapter 13 requires filers to make monthly payments to their creditors over a three- to five-year period. In Chapter 13, car loans:

  • Older than 910 days may be eligible for “cramming down.” This requires filers to continue making car payments, but only for the vehicle’s fair market value (not for the entire loan amount).
  • Less than 910 days old generally require full repayment. However, some Chapter 13 filers are able to repay their car loans at lower interest rates than those outlined in their original loan agreements.

Determining a Car’s Real Value

If you plan on including an underwater car loan in your bankruptcy filing, it’s important to make sure you understand how car values are assessed for the court’s purposes. You have to provide a value for your car as part of your bankruptcy petition and you must swear to the accuracy of that value as part of your case.

Misleading or blatantly false information could lead to charges of bankruptcy fraud, so you may want to do some research and/or consult with a bankruptcy attorney before settling on a value.

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Wednesday, August 3rd, 2011

Payday Lender Pays Big for Misdeeds

The Federal Trade Commission has scored another win for consumers. Last week, it convinced a federal court to rule that payday lending company Swish Marketing must pay $4.8 million as a penalty for tricking consumers into buying expensive debit cards they didn’t want.

The case highlights abuses that consumer advocates continue to fight against, including deceptive online advertising and negative-option marketing. Here’s a look at the case and what the FTC’s action might mean.

  • Online payday lending: The company’s web site reportedly claimed that it matched online consumers with payday lenders to meet their needs.
  • Hidden products attached: When consumers completed the online loan application, they were apparently directed to a screen that included four additional offers. Of these, three offers had a “no” box checked and one had the “yes” box checked. In some cases the additional offers were presented as a “bonus.”
  • Automatic charges: Customers who didn’t notice the “yes” box or who didn’t read the fine print ended up with a debit card that automatically connected to their bank account and charged them $54.95.

Expensive Products, Debt-Ridden Buyers

In addition to being illegal, deceptive marketing practices like the ones Swish Marketing engaged in tend to prey on those who can least afford them. In many Chapter 7 cases, for example, some of the unsecured debt that filers discharge comes from payday loans.

Payday loans are short-term, high-interest loans that often lead to serious debt for those unable to make ends meet. They provide an immediate source of cash but come with a high price tag in the long run.

Penalties for the Payday Lender

Thanks to the FTC’s action, Swish Marketing and its owners are now prohibited from:

  • Misrepresenting relevant facts about a product or service. Its improper sale of debit cards failed to explain how customers would be charged and how much the product would cost.
  • Improperly identifying a product as a “bonus.” The previous offer didn’t provide sufficient information about the “bonus” debit card, which left consumers unable to make an informed decision about whether or not they wanted such a “bonus.”
  • Charging consumers without disclosing privacy plans. Related charges against the company addressed the fact that it reportedly sold or shared customer information without warning that it would do so.
  • Failing to make sure affiliates follow the rules. From now on, Swish will be held responsible for the actions of any company it works in tandem with.

The FTC did not report how the $4.8 million will be distributed. In many similar cases, funds are used to refund money consumers lost as part of the scam.

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Bankruptcy has been in the news a lot lately, and not just because individuals are seeking bankruptcy protection. Thanks largely to the economic strain in much of the country, municipalities are now considering bankruptcy in large numbers.

But what happens when a city, town or county files a bankruptcy petition? Here’s a look.

Chapter 9 Bankruptcy: For Municipalities Only

Most individuals can file for bankruptcy under Chapter 7 or Chapter 13 of the U.S. Bankruptcy Code. When cities file, though, they must do so under Chapter 9, a type of bankruptcy designed during the Great Depression to help municipalities in distress.

Here’s a look at how Chapter 9 bankruptcy works.

  • Two main reasons cities file: According to insiders, municipalities that choose Chapter 9 protection tend to do so for one of two reasons. Either they’re faced with a one-time catastrophe that prevents them from repaying their creditors, or their financial structure is fundamentally unsound and unsustainable. Cities with the former problem may move into and out of bankruptcy more quickly than those with the latter problem, which may spend more time negotiating with creditors and considering bankruptcy alternatives.
  • Eligibility for bankruptcy: Not all municipalities are legally permitted to file for bankruptcy. Eligibility is regulated by state laws, and in some states no district can seek Chapter 9 protection. Elsewhere (as in California), any municipality has the bankruptcy option and in still other places, judges decide on a case-by-case basis whether or not a town can file.
  • Chapter 9 capabilities: Once a town enters bankruptcy protection, Chapter 9 gives it the ability to negotiate labor contracts that might otherwise have been off-limits because of union laws. In some cases, negotiating pension terms or other benefits allows the city to seriously cut costs in a way that it couldn’t have done without the protection of the bankruptcy court.
  • Pre-filing negotiations: In some cases, the mere threat of a Chapter 9 bankruptcy is enough to convince creditors and other groups to negotiate with a municipality. Because bankruptcy can mean that creditors lose a significant amount of the money they invested in a town, many are willing to accept a deal to prevent the town from filing a petition.
  • Chapter 9 frequency: Despite the threats of municipal bankruptcies that pepper newspapers, actual Chapter 9 filings are fairly rare. This is partly because once towns recognize bankruptcy as an option, they and their creditors have lots of non-bankruptcy alternatives available, including raising taxes, raising fees, cutting costs, negotiating payment terms and more. Plus, politicians are often reluctant to have a municipal bankruptcy on their record, which can look bad in future elections.
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