Archive for the ‘The Bankruptcy Courts’ Category

A new trend in the Southwest suggests that the country’s bankruptcy courts are finally taking advantage of technology that many other industries have already adopted: online chat forums. Sources note that bankruptcy courts in Arizona, New Mexico and Nevada have all started dabbling in online contact for court users.

As many other companies have discovered, offering online chat forums provides consumers with a convenient way to get information about the nuts and bolts of bankruptcy law.

Help for Real Estate and Bankruptcy Lawyers

One interesting element of the new trend, according to sources, is that some of the first to take advantage of the online chat forums have been real estate lawyers who have expanded their practices to represent clients interested in filing for bankruptcy.

Likely a result of the implosion of the housing bubble (which hit especially hard in the Southwest), many real estate lawyers have apparently seen bankruptcy proceedings become a much larger part of their clients’ daily needs. This can be attributed to the fact that Chapter 13 bankruptcy can be used as a means of halting or delaying mortgage foreclosure.

But because most real estate lawyers lack the training and experience in bankruptcy laws and bankruptcy court proceedings, they have more questions about navigating the bankruptcy court system than traditional bankruptcy lawyers do, it seems.

Enter the online chat forums.

Online Forums Available to Bankruptcy Filers, Too

In addition to providing pointers to lawyers representing bankruptcy filers, the bankruptcy courts with online chat forums also offer valuable services to individual bankruptcy filers interested in learning more about the process or nitty-gritty details of filing a bankruptcy case.

Those interested in filing for personal bankruptcy can use the online chat system to:

  • Ask for direction about where to find necessary forms or schedules for filing a bankruptcy case;
  • Clarify parts of the Bankruptcy Code that they cannot decipher for themselves;
  • Learn about deadlines, procedures, and requirements of the bankruptcy court; and
  • Get general information about how bankruptcy works and what they can do to prepare for bankruptcy or recover from a bankruptcy filing.

The Internet as a Bankruptcy Tool

Since the Internet went mainstream, potential bankruptcy filers have used it to research the bankruptcy process and potential effects of filing for bankruptcy on their financial lives. The introduction of a venue where filers can get their questions answered directly marks a natural progression toward more and more consumer-oriented online offerings.

At present, the online chat forums are only available for filers in a few states; however, if their success continues to grow, other areas of the country may introduce similar tools for filers and potential filers.

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Tuesday, October 18th, 2011

New Bankruptcy Court Fee Schedules

Effective November 1, 2011, a new fee schedule will apply to all bankruptcy cases. The Judicial Conference of the United States agreed on the fee increases in mid-September and will use the proceeds generated to fund Judiciary needs.

Here’s a look at the new fees, the old fees, and what the changes might mean for you.

New Bankruptcy Fees

Most bankruptcy filers’ primary concern is the fee charged to file the bankruptcy petition with the court.

  • Chapter 13 bankruptcy: Formerly $274, the fee is now $281.
  • Chapter 11 bankruptcy: Formerly $1,039, the fee has been raised to $1,046.
  • Chapter 7 bankruptcy: Formerly $299, the fee has been raised to $306.

Luckily for most filers, the total increase in basic filing fees is not drastic; however, some critics of the bankruptcy system have complained that the fees were already prohibitively high for individuals truly struggling to make ends meet.

Other Bankruptcy-Related Fee Increases

In addition to the basic filing fee increases, the Judicial Conference also hiked fees associated with other parts of the bankruptcy process. The services whose fees have been altered include:

  • Certification: Formerly $9, now $11;
  • Exemplification: Formerly $18, now $21;
  • Audio Recording: Formerly $26, now $30;
  • Amended Bankruptcy Schedules: Formerly $26, now $30;
  • Record Search: Formerly $26, now $30;
  • Adversary Proceeding Fee: Formerly $250, now $293;
  • Document Filing/Indexing: Formerly $39, now $46;
  • Title 11 Administrative Fee: Formerly $39, now $46;
  • Record Retrieval Fee: Formerly $45, now $53;
  • Returned Check Fee: Formerly $45, now $53;
  • Notice of Appeal Fee: Formerly $250, now $293; and
  • Lift/Stay Fee: Formerly $150, now $176.

Which Fees Apply to My Case?

Because no two bankruptcy cases are exactly alike, it’s not easy to determine which of the fees listed might affect your bankruptcy case. As a bankruptcy lawyer can explain to you, the complexity and intricacy of your bankruptcy filing can affect the duration and costs of the case, which is affected not only by bankruptcy court fees but often by certain legal fees as well.

One way to keep bankruptcy fees to a minimum is to pay careful attention to the advice you receive from your lawyer. A lawyer may guide filers on what paperwork to prepare, how to complete bankruptcy forms, and otherwise how to proceed with a case.

Taking note of the rules and regulations that govern bankruptcy court early on in the proceedings may prevent you (and the bankruptcy judge, your trustee, or creditors) from having to return to the bankruptcy case to investigate or contest part of the information.

If you are truly unable to afford the fees associated with filing for bankruptcy, you may qualify for a bankruptcy fee waiver, about which a bankruptcy lawyer can tell you more.

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Washington Mutual, Inc., the holding company for failed bank Washington Mutual, has faced some trouble having its reorganization plan accepted in bankruptcy court. The company filed for bankruptcy three years ago, but the court has twice rejected its plans for reorganizing and emerging from bankruptcy.

Here’s a look at what’s going on with this particular bankruptcy case and what kinds of issues might prevent an individual’s Chapter 13 repayment plan from earning court approval.

Insider Trading Accusations

At present, the bankruptcy judge overseeing Washington Mutual, Inc.’s bankruptcy case has ordered the company to undergo thorough mediation with its creditors in an attempt to work out a settlement that pleases everyone.

The judge suggested this course of action because, according to reports from the Associated Press, hedge funds supporting the company’s bankruptcy used information from the filing to engage in insider trading. Had the judge approved the current repayment plan, she believed creditors would have contested the ruling because of that insider trading.

Of course, such an issue is something that only a business seeking bankruptcy protection would have to worry about. Still, in individual bankruptcy reorganizations, a court might find reason to reject a reorganization plan.

Common Reasons for Chapter 13 Plan Rejection

In Chapter 13 bankruptcy filing, filers commit to a three- to five-year repayment plan designed to help them repay debts to some or all of their creditors. Filers submit their plan to the court, which approves it depending on a number of factors. Common reasons a Chapter 13 repayment plan might be rejected include:

  • Creditor objections to repayment terms: If creditors can show that they would have received more money from a Chapter 7 liquidation, they might object to the repayment plan. In the case that a Chapter 7 case would indeed better benefit creditors, the court may require a filer to file again, under Chapter 7. This is because the bankruptcy court has an obligation to both filers and their creditors.
  • Insufficient commitment of disposable income: Another common problem with Chapter 13 repayment plans is that a debtor has not committed all her disposable income to the repayment plan. Chapter 13 bankruptcy is designed to help both debtors and creditors, and it is most effective when both groups adhere to its rules – for filers, that means committing the entirety of disposable income to the repayment plan.
  • The repayment plan is not feasible: A plan that requires too great a commitment of money from the filer might be rejected as unrealistic, based on figures about a filer’s income and expenses. If a filer is unlikely to stick with the repayment plan for its full three- to five-year duration, the court is unlikely to approve it.
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Bankruptcy fraud is a serious crime, as the story of Brent Farris illustrates.  According to the Kansas City Star, St. Louis resident Farris pleaded guilty to bankruptcy fraud in 2004 but fled the country and avoided getting caught until earlier this year.

Here’s a look at his somewhat sensational case.

  • In 2002, Farris, who at the time owned an art gallery in St. Louis, reportedly filed for bankruptcy.
  • During the case, he concealed from his bankruptcy trustee a painting worth about $300,000 with the intention of selling it later and keeping the profits.
  • The trustee suspected fraud and when Farris faced charges in 2004, he pleaded guilty and was sentenced to 20 months in prison and a fine of $300,000.
  • Farris reportedly fled the country before his sentence began and spent the next five years (from 2004 to 2009) on the lam, hopping between 14 countries.
  • In 2009, sources note that Italian authorities apprehended Farris, but he managed to break his house arrest and flee again.
  • Last year, Farris was discovered in Mexico. In March, he apparently pleaded guilty to the charges of failing to appear in court and was sentenced to 14 months in prison.

Who Does Bankruptcy Fraud Hurt?

In order to understand why the penalties for bankruptcy fraud are so severe (the maximum sentence is a five-year prison sentence and damages or fines up to $500,000), it helps to understand who’s hurt by bankruptcy fraud.

Consider this:

  • Bankruptcy protection is designed to help consumers. By giving consumers an alternative to repaying their financial obligations as originally agreed, bankruptcy provides a sort of emergency exit for those who get in over their heads financially.
  • Bankruptcy can hurt creditors. Of course, when a person does not repay a debt, someone loses out. Both Chapter 7 and Chapter 13 bankruptcy are designed so that creditors are often able to recover some of the money they lent to filers, though usually not the full amount the filer owes.
  • Bankruptcy fraud cuts into the creditors’ repayment. Concealing or transferring property before bankruptcy (or otherwise engaging in fraudulent behavior) reduces the amount of money creditors get from a bankruptcy case. And while it’s easy to paint the creditors as the bad guys, it’s important to remember that they’re often powerful organizations. Translation: if too many big companies are unhappy with the way bankruptcy laws work, they’ll likely lobby Congress until those laws are changed. After all, such changes were already introduced in the form of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

If you’re considering a bankruptcy filing, it’s important to make sure you avoid committing fraud, either intentionally or accidentally. A bankruptcy lawyer in your state can explain the laws more explicitly and help you keep your paperwork aboveboard.

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Wednesday, June 22nd, 2011

Bankruptcy Court Challenges DOMA

The Defense of Marriage Act, which bars federally recognized same-sex marriage, got a surprise challenge from a California bankruptcy court last week. Here’s a look at what happened and what it might mean in the future.

  • A gay couple married in California. In 2008, when gay marriage was briefly legalized in the Golden State, Gene Balas and Carlos Morales wed.
  • Later that year, Proposition 8 was passed. This law amended California’s constitution to exclude the right for gay couples to marry, though the state acknowledged the legitimacy of marriages that had already occurred.
  • The couple filed jointly for Chapter 13 bankruptcy protection. In February 2011, the couple was pushed by illness and unemployment to seek bankruptcy protection. They filed under Chapter 13, which allows filers to catch up on past debts with the help of a three- to five-year repayment plan.
  • The U.S. Trustee’s office requested dismissal of the case. Because bankruptcy is governed by federal laws and the federal government does not recognize same-sex marriages, the U.S. Trustee wanted the California court to deny the joint bankruptcy protection. If this request had been granted, the two men would have had to file for bankruptcy individually. This could have been more expensive, both in initial filing fees and long-term debt repayment.
  • The California judges refused dismissal. Instead of tossing the case out, twenty judges signed a ruling asserting that DOMA is unconstitutional and infringed the rights of the two men seeking bankruptcy protection.

Joint Bankruptcy, DOMA & Civil Rights

Right now, married couples seeking bankruptcy protection can choose between filing individually or jointly. The decision usually depends on state laws, the types of debts a couple has, a couple’s income and a number of other factors.

But because DOMA only permits marriage to a certain group of citizens, it automatically excludes others from joint bankruptcy protection. This exclusion, say California bankruptcy judges, is not in line with the rights guaranteed by the Constitution.

The judges used the language of the DOMA law to dispute its validity:

  • The joint Chapter 13 bankruptcy, noted the judges, would have “no effect on procreation.” One of DOMA’s professed goals is to promote childbearing.
  • The bankruptcy case, too, would be in no danger of “harm[ing] any marriage of heterosexual persons,” according to the California ruling. Another of DOMA’s stated goals was to defend and nurture the tradition of heterosexual marriage.

The case is getting a lot of attention because it attacks the controversial anti-gay marriage law from an unexpected angle. It also comes only months after the Obama administration announced that it would no longer defend DOMA in court, as it deemed the law unconstitutional.

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Monday, October 11th, 2010

Supreme Court Considers Means Test Case

The Case Ransom v. MNBA appeared before the Supreme Court last week and raised interesting questions about the role of the means test bankruptcy filers must pass in order to qualify for protection under Chapter 7 of the U.S. Bankruptcy Code. Here's a look at what's involved in the case and what it might mean for future bankruptcy filers.

Car Payments and Income in the Means Test

The court case involves the bankruptcy petition of man named Jason Ransom.

  • No car loan: Sources note that Ransom has a car that he owns fully – that is, he is no longer making payments on the vehicle.
  • Ownership deduction: In his bankruptcy petition, Ransom reportedly claimed an ownership deduction of $471 per month for his vehicle.
  • Court rejection: Because he had no car payment, though, the bankruptcy court rejected this deduction in his initial case filing. An appellate court upheld the decision. The Supreme Court must make a final decision.
  • IRS definition: Apparently, both the district court and the appellate court denied Ransom's deduction claim based on the Internal Revenue Service's definition of an allowable deduction for car owners, which limits such deductions to people who are currently making payments on their vehicles.

So the issue at hand is whether or not a Chapter 13 filer (that is, a bankruptcy petitioner who has above-median-income levels and so does not pass the Chapter 7 means test) can keep money each month (instead of paying it to creditors) under the car ownership deduction if he or she is not currently making payments on a car.

Why It Matters: Your Money in Chapter 13 Bankruptcy

The issue may sound fuzzy, but the Supreme Court's decision could have real impact on future bankruptcy cases. Here's a look at why and how.

  • The language of the Bankruptcy Code: While the language of the U.S. tax code is clear that an ownership deduction is only available to those still making payments on a vehicle, the language of the U.S. Bankruptcy Code is a bit fuzzier.
  • The cost of owning a car: As Ransom's lawyers are reportedly arguing, the "ownership deduction" should be available to those who own their cars outright because such vehicles require maintenance and repairs – especially if they're older.
  • The expensive car loan argument: One of the reasons that this issue is so interesting is because it essentially rewards people who have expensive car loans and newer cars and punishes those who are (perhaps more fiscally responsibly) driving older vehicles they've already paid for.
  • The freedom of extra money: If the Supreme Court decides to grant the ownership deduction to people who own their cars outright, it could mean greater financial independence for car owners who file for bankruptcy. Because they'd be able to save more money each month, they could potentially catch up on other payments more easily and possibly even build savings, thus preparing themselves more fully for post-bankruptcy life.
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Tuesday, January 12th, 2010

Medical Records in Bankruptcy Court

A recent report from the Milwaukee Journal-Sentinel Online describes a potential complication that might arise during a bankruptcy filing. Here’s a look at what happened and what it might mean for other filers.

Your Records in Chapter 13 Bankruptcy

When you file for Chapter 13 bankruptcy, you’re agreeing to the following:

  • Committing to a repayment plan that lasts three to five years and satisfies part or all of your secured debt
  • Completing two courses (the pre-filing credit counseling briefing and the pre-discharge debtor education course) designed to help you improve your relationship with money and credit
  • Making public your records of debts and payments

It’s the last item on this list that has proved problematic. In the case of some Wisconsin bankruptcy petitioners, it seems, debt and payment information in medical bills that became part of the public record included details about doctor’s visits, procedures and medicines they used.

Now, according to sources, several Wisconsin residents have filed class-action lawsuits in state and federal court against Aurora Health Care Inc., the company reportedly responsible for submitting the detailed medical information.

Beyond Embarrassment

Bankruptcy filers who see their medical history become part of public record may have reason for embarrassment, but, according to reports, that isn’t the only reason this lawsuit has gotten attention.

Certain information (for instance, about treatment for past injuries) could prevent a filer from getting hired at a job in the future or pave the way to medical identity theft. And privacy laws often protect the disclosure of such information.

Should You Be Worried?

The good news here is that, while medical records included as part of a bankruptcy filing may have the potential to hurt your career or cause you embarrassment, the odds of anyone besides your lawyer, your bankruptcy trustee and the judge on your case seeing them is slim.

After all, such information appears as part of the loads of paperwork involved with filing a bankruptcy petition – sifting through to find such details would be a daunting task.

Still, this story highlights one more reason why enlisting the help of an attorney when you decide to file for bankruptcy protection can be a crucial element of making sure you receive the protection and fresh financial start you’re seeking.

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Earlier this week, the U.S. Supreme Court heard arguments in a case that could affect many Americans who seek financial relief from Chapter 7 bankruptcy. Here’s a look at what’s going on.

Background: Chapter 7 Bankruptcy

Chapter 7 bankruptcy (sometimes called liquidation), works by giving debtors a complete discharge of many non-secured debts. Though the debts are forgiven, some filers must sell off some of their property to raise money to pay whatever they can against the debts.

Filers are also entitled to keep specific items of property; these bankruptcy exemptions are determined by state law.

The Case: A Caterer’s Equipment

In the case before the Court…

  • A caterer filed for Chapter 7 bankruptcy. When she filed in 2005, she indicated on her forms that the equipment required to run her catering business was worth $10,718 – exactly the value of property her state permitted in exemptions.
  • An auctioneer valued her equipment. He estimated that her gear was worth closer to $17,000, which would mean she’d have to auction some of it off to repay her creditors.
  • Her trustee never filed an objection. William Schwab, the bankruptcy trustee assigned to the case, failed to file an objection before the deadline. Though he reportedly filed a motion in court to have the caterer sell her equipment to raise $10,718, she countered that, because of the missed deadline, this request was unfounded.

So far, the bankruptcy court and the appellate courts have sided with the caterer here, essentially ruling that, because the trustee did not file his motion in time, it cannot stand.

Possible Implications

It seems the Supreme Court justices have expressed two major concerns:

  • Trustees have insufficient time to review all their cases. This could lead to more oversights like the one in the caterer’s case and could promote bankruptcy fraud among unscrupulous filers.
  • Filers have motivation to undervalue their possessions. Naturally, if there’s a chance your trustee isn’t reviewing your case that carefully, that provides an incentive to underestimate the value of your possessions so you have a chance of keeping more stuff.

Take-Home Lesson

Reports indicate that the caterer who filed for bankruptcy clearly filled out her forms and indicated that she had no exempt property, which suggests that the error of careless oversight may indeed be her trustee’s. If you are filing for Chapter 7 bankruptcy, you may want to speak with a bankruptcy lawyer who can help make sure you take necessary steps to protect yourself and your property when you file.

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Thursday, September 24th, 2009

Bankruptcy Class Action Law Suit Continues

When you successfully exit bankruptcy protection, you receive a full discharge of your debts. This means that creditors can no longer come after you for those debts. Likewise, these debts should be fully cleared from your credit report because they are no longer outstanding. As far as the courts are concerned, they've been settled.

Unfortunately, that's not how it always works. In fact, over the years, millions of people who filed for bankruptcy continued to see “charge-off” or “120 days late” appear on their credit reports from the major credit score companies.

On Aug. 31, millions of affected Americans were sent a notice that they may soon receive their share of the settlement.

The three main credit bureaus offered a $45 million settlement. However, that works out to about $1 per person affected.

Lawyers involved have filed a motion that aims to increase the amount of money paid out to those affected. They are hoping to get a favorable ruling from the judge, or a new offer from the credit bureaus.

If after successfully filing bankruptcy, you were able to exit with your debts discharged, but still saw "charge-off" or "120 days late" statements on your credit report, you may want to get in touch with Robert Weed. Check out his site at: http://stopthebankruptcydischargesettlement.com/

If we hear of further updates to this major bankruptcy case we'll provide an update.

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