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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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Posted in Filing Requirements, The Bankruptcy Courts | No Comments »

Tuesday, October 11th, 2011

Understanding WaMu’s Bankruptcy Plan Rejection

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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Posted in The Bankruptcy Courts | 1 Comment »

Tuesday, September 6th, 2011

Solar Panel Producer Announces Bankruptcy Plans

Last week, Silicon Valley-based solar company Solyndra laid off more than 1,000 workers and announced plans to file for Chapter 11 bankruptcy. The move made waves in part because the company had appeared promising to many investors: Solyndra attracted more than $1 billion in venture capital and a $535 million loan guaranteed by the federal government.

The company appeared to have everything going for it: it had developed new technology to improve the design of existing solar panels and it emerged at a time (2008) when investors were eager to back “green” technology.

But a number of factors got in its way of success:

  • Changing solar equipment prices: Solyndra apparently entered the market at a time when materials to make solar panels were expensive and watched the value of its equipment decline over time.
  • Increased competition from China: When Solyndra was in its early stages, competition from China was reportedly shaky and not well established. Over the course of Solyndra’s growth, solar panels produced in China gained credibility on world markets. Plus, the Chinese government subsidizes production.
  • Oversupply: Globally, more solar panels have been produced than people have been interested in buying. Part of the diminished demand can be blamed on the recession.

Learning from Bigger Bankruptcy Filings

If nothing else, the fate that Solyndra is facing serves as a welcome reminder to individuals considering filing bankruptcy. Many factors that lead people to choose bankruptcy protection are beyond any individual’s control.

In fact, bankruptcy filing surveys consistently note that top reasons people file for bankruptcy include:

  • Divorce;
  • A birth or death in the family;
  • Job loss or reduction;
  • An unexpected illness or injury; and
  • Natural disasters.

As part of its Chapter 11 bankruptcy, Solyndra will likely sell off parts of itself (such as its thin-film solar technology) that are valuable, if not workable for the company at present. Individuals can learn from this, too, and consider some of the following cash-raising techniques before or during bankruptcy:

  • Get a part-time gig: Many people have talents from which they make no money. As part of a bankruptcy recovery, consider selling those services.
  • Lighten the load: In Chapter 7 bankruptcy, filers’ non-exempt assets are sold to raise money for creditors as part of the bankruptcy process. Chapter 13 filers could try something similar, by selling unneeded items online or via a yard sale.
  • Don’t be discouraged: A number of high-profile investors (including the federal government and the Walton family of Wal-Mart fame) supported and helped fund Solyndra. Sometimes, even the best-laid plans end badly. Bankruptcy gives individuals and businesses a chance to move forward.

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Posted in Economic News: How Are We Doing? | 1 Comment »

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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Posted in Economic News: How Are We Doing?, Finance 101: Secure Your Future | No Comments »

Wednesday, August 17th, 2011

Why Escrow Accounts Matter in Chapter 13 Bankruptcy

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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Posted in Filing Requirements, The Law and Your Money | No Comments »

Monday, August 8th, 2011

Can Bankruptcy Help with an Underwater Car?

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

Chapter 13 bankruptcy 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 your lawyer before settling on a value.

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Posted in Filing Requirements, The Law and Your Money | 1 Comment »

Wednesday, July 27th, 2011

Bankruptcy Fraudster Finally Headed for Jail

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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Posted in The Bankruptcy Courts, The Law and Your Money | No Comments »

Tuesday, July 26th, 2011

Borders’ Bankruptcy: Reorganization to Liquidation

The Borders bankruptcy case currently making headlines provides a helpful illustration of the difference between the two main forms of bankruptcy, reorganization and liquidation. Here’s a look at what we can learn about personal bankruptcy from the Borders situation.

Reorganization: Chapter 11 and Chapter 13 Bankruptcy

Reorganization bankruptcy is exactly what its name suggests: it allows filers to reorganize their debts and assets to catch up on overdue payments. When a business files for reorganization (usually under Chapter 11 of the U.S. Bankruptcy Code):

  • It continues operating. Some store branches may close and the company may “streamline” its operations to make itself leaner and more likely to turn profits when the bankruptcy concludes.
  • It repays creditors. Chapter 11 cases, like Chapter 13 cases, include a plan that allows the filing company to compensate its creditors at least in part for its debts.
  • It tries to emerge stronger. The goal of a business reorganization is to trim the fat and let the company get back on its feet with a more workable model.

The Borders situation, though, seems unable to benefit from a Chapter 11 bankruptcy. Sources suggest that this is because of a number of factors, including the weak economy, the changing face of books and the fierce competition it faces from online booksellers.

When an individual enters a reorganization plan (usually under Chapter 13 of the U.S. Bankruptcy Code), she also makes payments to her creditors. At the end of the repayment period (usually three to five years), her goal is to emerge debt-free and with financial habits that will keep her that way.

Liquidation: Chapter 7 Bankruptcy

When a company liquidates (under Chapter 7 of the U.S. Bankruptcy Code), it sells off its assets and ceases operations. In other words, if Borders does indeed file for Chapter 7 bankruptcy, it will no longer be around. Business liquidations usually:

  • Involve a sale: This might come in the form of an “everything must go” sale of merchandise in stores, an auction to other businesses, or some combination of the two.
  • Lead to partial repayment: The proceeds from the sales are generally used to repay in full or part any creditors to which the company owes money at the time of filing.
  • Mean job losses: In Borders’ case, the company would have to close its 399 remaining stores and likely lay off the more than 10,000 people it currently employs.

Individuals who file for Chapter 7 usually don’t have enough income to make repayments to creditors. The liquidation part of an individual bankruptcy filing involves the bankruptcy trustee selling a filer’s non-exempt assets to raise money to repay creditors in part.

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Posted in Bankruptcy News and Events, The Truth about Bankruptcy | No Comments »

Wednesday, July 20th, 2011

Foreclosure after Bankruptcy

Chapter 13 bankruptcy is sometimes considered “famous” for helping people avoid or delay foreclosure. But it’s important to understand that filing for Chapter 13 (or even Chapter 7 bankruptcy) does not guarantee that you will avoid foreclosure.

Here’s a look at foreclosure laws and how foreclosure after bankruptcy works.

Preventing Foreclosure During Bankruptcy

Filing for bankruptcy temporarily stops foreclosure in most cases. Here’s why:

  • A legal protection called the automatic stay takes effect as soon as the bankruptcy case is filed. The automatic stay halts all collection actions, including creditor calls, repossession and foreclosure.
  • This protection typically stays in effect for the duration of the bankruptcy case. That could be as little as four to six months for a Chapter 7 case and as long as three to five years for a Chapter 13 case.

But the protection of the automatic stay only lasts as long as a filer sticks to the terms outlined by the bankruptcy agreement. In Chapter 13, that means making regular monthly payments according to the repayment plan.

If the filer can’t catch up on mortgage payments even with the help of bankruptcy, foreclosure might still be an option after the bankruptcy case ends.

Liens, Second Mortgages & Foreclosure after Bankruptcy

Things can get tricky, too, when filers have second mortgages or home equity lines of credit (HELOCs) when they file for bankruptcy. And thanks to the housing market that collapsed in 2007, many Americans currently do have multiple mortgages or loans attached to their homes.

Here’s how they’re treated by the bankruptcy court:

  • A HELOC in Chapter 13 bankruptcy: In Chapter 13, filers are required to make payments to their primary mortgage lender and to the bankruptcy trustee. The trustee distributes these payments among priority debtors. After the case concludes, the HELOC may be eliminated (discharged). The lender will have gotten a percentage of trustee payments during the case.
  • A HELOC in Chapter 7 bankruptcy: Chapter 7 may cancel the debt on a home equity credit line, but it cannot cancel the lien that creditor has on the house. In fact, a HELOC lender may still be able to foreclose on a filer’s house after bankruptcy is over (though if there’s no equity in the house, this would be unlikely). One way to avoid post-Chapter 7 foreclosure is to reaffirm payments to a HELOC lender in during bankruptcy.
  • Second mortgages in Chapter 13: Second mortgages that are no longer secured by a home’s value can be discharged in Chapter 13 bankruptcy. Underwater homes may have second or third mortgages that are not secured any longer by the house’s value (that is, the amount of the loans totals more than what the house is currently worth). However, discharging a second mortgage will not affect what a bankruptcy filer owes on a first mortgage.

Could You Face Foreclosure after Bankruptcy?

If you’re considering filing for bankruptcy as a way to escape foreclosure, it’s essential to speak with a bankruptcy lawyer to make sure you understand how your mortgage will likely be affected by a bankruptcy filing – and whether you might find yourself facing foreclosure after you get your discharge.

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Posted in Home Foreclosure, The Truth about Bankruptcy | 2 Comments »

Wednesday, July 13th, 2011

Personal Bankruptcy Filings Down This Year

Recently released data show that consumer bankruptcy filings in the first half of 2011 fell by eight percent compared with the first half of 2010. The numbers, reported by the American Bankruptcy Institute, paint a potentially hopeful picture for the overall rate of economic recovery:

  • From January 1, 2011 to June 30, 2011, a total of 709,303 personal bankruptcy cases were filed in the U.S.
  • In the first six months of 2010, 770,117 personal bankruptcy cases were filed.
  • This year has seen eight percent fewer personal bankruptcy filings than last year.
  • Personal bankruptcy filings in June 2011 also fell compared to those in June 2010: 119,768 cases were filed this year; 126,270 cases were filed in June 2010.
  • Compared to May of 2011, June filings rose by four percent.

What Do Personal Bankruptcy Filings Mean for the Economy?

It’s impossible to measure the health of the economy by looking at only a single indicator. But still, these bankruptcy numbers seem to follow other trends in economic factors:

  • Overall, unemployment has been steadily decreasing for several months. The pace of the decrease has been slow – this seems to mirror the slight decrease in personal bankruptcy filings and suggest a gradual economic recovery.
  • The last two months have shown slight upticks in the unemployment rate, which might also be reflected in the May-to-June increase in bankruptcy filings.
  • Bankruptcy filings are still on pace to hit or surpass a million this year, meaning that the economy is still a long way from fully healthy.

What Can Personal Bankruptcy Do for Unemployed Americans?

Surveys given to those who file for bankruptcy in the U.S. almost always indicate that unemployment plays a contributing role in prompting people to file for bankruptcy protection. And it’s no wonder: bankruptcy can offer powerful protections to those who have lost their job or had their hours reduced.

Specifically, bankruptcy offers:

  • Protection of assets: Once filers submit their bankruptcy petition, the court protects certain assets from repossession and/or garnishment. In Chapter 7 bankruptcy, these protections are called “exemptions.”
  • Protection from creditors: For the duration of any bankruptcy case, a legal protection called the automatic stay prevents creditors from making contact with or collecting from filers. The automatic stay can halt foreclosure, vehicle repossession, wage garnishment, debt lawsuits and more.
  • Discharge of debts: At the end of a successful bankruptcy case, the court discharges (that is, eliminates) all eligible debts. Filers are not responsible for repaying discharged debts.
  • Time to catch up on payments: In Chapter 13 bankruptcy, filers get a chance to catch up on late payments with help from the court.

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Posted in Economic News: How Are We Doing?, Year in Bankruptcy | No Comments »

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