tag:blogger.com,1999:blog-81756087284461261802024-03-06T14:01:30.499-06:00The Nevin Law FirmA Debt Relief Agency serving Middle Tennessee with high quality, professional legal representation for nearly 40 years.Unknownnoreply@blogger.comBlogger46125tag:blogger.com,1999:blog-8175608728446126180.post-35200419064206650322014-09-26T21:45:00.001-05:002015-05-03T09:14:16.695-05:00What Happens to Utility Bills in Bankruptcy? Utility bills are treated just like the other non-priority unsecured debts such as credit cards and medical bills. When a person files bankruptcy, any arrearage in one’s utility bill is eligible for discharge. Furthermore, Section 366 of the Bankruptcy states that a utilty company may not shut off water, electric, or any service for a debtor’s filing of bankruptcy. Therefore, your bill goes to zero and you start anew. But from then on, your utility company may shut off service if you miss any future payments like normal. Additionally, the utility company has the right to require a reasonable deposit, in order for you to keep your service. <br />
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One thing you must watch out for, however, is filing a chapter 13 case. When a person files a chapter 13 case, the non-priority unsecured creditors are not allowed to charge additional interest, penalties, or other charges. The balance at the date of filing, is the balance until discharge. But, if a chapter 13 case gets dismissed, then the creditors are allowed to add to that balance, all the interest that accrued while the bankruptcy was active. <br />
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That means, if you filed bankruptcy, lasted two years in a payment plan, and your owed utility bill was $500 when filed, then if the case gets dismissed, you will owe on top of the $500, an additional two years of accrued interest and late fees! That could easily take the $500 bill up to $800 or more. The highest I’ve personally seen was about $1,800. That also means your lights will likely be turned off if your chapter 13 case gets dismissed. <br />
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For more information be sure to call a <a href="http://www.thenevinlawfirm.com/bankruptcy-basics/" target="_blank">Nashville Bankruptcy Attorney in Nashville TN</a>.Unknownnoreply@blogger.com4tag:blogger.com,1999:blog-8175608728446126180.post-48491891545457452722014-08-04T13:13:00.001-05:002014-08-04T13:14:07.113-05:00Nashville Used Car Lot Sued for Consumer Protection Violation<div style="margin: 0in 0in 0pt;">
<a href="https://www.blogger.com/null" name="_GoBack"></a>One of our cases broke into the news last year. In that case, our client bought a car from a used auto lot. It turns out that at the time of the sale, the car had a salvage title; the car lot had not even applied for a new title at the time of sale, which is against state law. Additionally, our client made a cash down payment of $3,500 which the dealer denied.<span style="mso-spacerun: yes;"> </span>The General Sessions court found that the dealer’s actions violated the Tennessee Consumer Protection Act and awarded money damages to our client. </div>
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UPDATE:<span style="mso-spacerun: yes;"> </span>The dealer appealed, and we recently had a second trial, this time in the Circuit Court of Davidson County, who also found that the dealer violated the Tennessee Consumer Protection Act and awarded our client money damages. (Case No.<span style="mso-spacerun: yes;"> </span>13C4572)</div>
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If you have a dispute about a vehicle you purchased, new or used, give me a call for a free case evaluation.</div>
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The link to the news story is below:</div>
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<a href="http://www.jrn.com/newschannel5/news/newschannel-5-investigates/consumer-alert/249381751.html"><span style="color: blue;">http://www.jrn.com/newschannel5/news/newschannel-5-investigates/consumer-alert/249381751.html</span></a> </div>
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Please also know that previous results are not a guarantee for future results of a case. These results are not to be relied upon to form an expectation that the same results could be obtained for other clients in similar matters. Please see an attorney to go over your own specific factual and legal circumstances if you have been involved in a similar case.</div>
Unknownnoreply@blogger.com14tag:blogger.com,1999:blog-8175608728446126180.post-34306042248139246282013-11-26T09:58:00.003-06:002017-10-21T22:23:35.614-05:00What is Balance Transfers of Credit Card Debt?Transferring the balance of a credit card debt is simply paying off high interest credit cards or loans with lower interest credit cards. <br />
<br />
The benefit of transferring a balance is that one can substantially lower the interest rate of the debt, which helps one pay off the balance in less time and with less money. The negative of a balance transfer are the fine print. A “low interest” card may only last a few months or change at anytime.<br />
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Be sure to also avoid “cross default clauses” of the fine print which state that if you become late on anything you owe, including a phone bill or medical bill, then the interest rate goes from the low to a high default rate. <br />
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Make sure that the low rate does not only apply to new purchases or will be considered a cash advance and carry a higher rate. <br />
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Therefore, make sure to read all of the fine print and ask these questions to a customer service representative before transferring a balance for a lower rate.<br />
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<a href="http://www.a-law.org/">A-LAW DIRECTORY</a> <br />
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-22687951119492767112013-09-27T13:03:00.002-05:002014-06-27T15:56:58.296-05:00Is it Possible to Reverse a Foreclosure? The short
answer: Maybe.<span style="mso-spacerun: yes;"> </span>If the foreclosure was
conducted improperly then there are limited remedies, but only in a few rare
situations can a reversal be granted. And those remedies are not statutory
based.<span style="mso-spacerun: yes;"> </span>Our office has successfully
reversed a foreclosure.<span style="mso-spacerun: yes;"> </span>In that instance
the homeowner received a letter from her servicer stating that they would not foreclose
on her property within the next 20 days because she was in a modification trial
period.<span style="mso-spacerun: yes;"> </span>The letter also stated that if
foreclosure proceedings had begun (which they had) they would be ceased.<span style="mso-spacerun: yes;"> </span>Well our client relied on this letter and
decided not to file a bankruptcy, which would’ve ceased the foreclosure.<span style="mso-spacerun: yes;"> </span>After the foreclosure the bank tried to evict
her but we showed up to court with that letter and the bank agreed to reverse
the foreclosure.<span style="mso-spacerun: yes;"> </span><o:p></o:p><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<span style="mso-tab-count: 1;"> </span>There
is also another way in which a foreclosure can be reversed, but this is more of
a technicality.<span style="mso-spacerun: yes;"> </span>For any real estate to
change owners, the sale must occur in writing.<span style="mso-spacerun: yes;">
</span>It is not possible to transfer real property without a writing.<span style="mso-spacerun: yes;"> </span>Thus a foreclosure is effectuated in writing
through a Trustee’s Deed.<span style="mso-spacerun: yes;"> </span>Well, in
Tennessee, foreclosures occur as an auction at the court house steps.<span style="mso-spacerun: yes;"> </span>The problem is that just because a winner was
selected at the highest bid and the gavel struck does not make the property
sold.<span style="mso-spacerun: yes;"> </span>It must be conveyed through a
Trustees Deed.<span style="mso-spacerun: yes;"> </span>Many foreclosures result
in the lending bank buying the property themselves for the amount of the loan.<span style="mso-spacerun: yes;"> </span>When that is the case there is usually no
hurry to prepare a Deed and it may take them 7 days, 10 days, or 2 weeks to
sign a Trustee’s Deed.<span style="mso-spacerun: yes;"> </span>If that is the
case and a bankruptcy is filed before the Trustee’s Deed has been signed, then
the sale never actually occurred.<span style="mso-spacerun: yes;"> </span>So
while technically the foreclosure was not reversed, it was still prevented
after a winner was selected and “sold” during an auction. <o:p></o:p></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-20155076117495681422013-09-09T22:23:00.003-05:002014-09-26T20:57:51.876-05:00What is the Automatic Stay?<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
The Automatic stay is one
of the primary reasons that people file for bankruptcy. The
automatic stay is a legal protection that is given to a debtor when
he files bankruptcy. No court order is needed to create the stay,
hence the term “automatic.” The instant a petition is filed,
federal law makes it illegal for creditors to attempt to collect the
debts of a debtor. If a creditor knowingly takes action against the
debtor then the creditor will be liable to the debtor for any
damages, attorney fees, and costs incurred against the debtor, plus
possible punitive damages if the violation is egregious.
</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
Therefore, the <a href="http://www.thenevinlawfirm.com/creditor-harassment/" target="_blank">automatic stay</a> stops all foreclosures, repossessions, law suits, levies,
harassing calls, letters, etc. Furthermore, if a car has been
repossessed filing bankruptcy within 10 days can actually allow a
debtor to get the car back.
</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
Now some restrictions may
apply depending on the debtor's individual circumstances, but the
automatic stay is a great benefit to filing bankruptcy.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-83546968016676067872013-07-30T11:29:00.001-05:002013-07-30T11:29:37.059-05:00Wrongfully Foreclosed? 4 Tips to Protect Your Rights!<div style="text-align: justify;">
Since the collapse of the housing
market in 2008, the number of foreclosures on people’s homes has dramatically
increased.<span style="mso-spacerun: yes;"> </span>However, with that increase
of workload on the bank’s, not all of the foreclosures were properly done. <span style="mso-spacerun: yes;"> </span>Now if you are the victim of a Wrongful
Foreclosure, there are certain steps you must take to protect your rights.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
<span style="mso-tab-count: 1;"> </span>First, as
with any legal issue, consult an attorney immediately.<o:p></o:p></div>
<br />
<div style="text-align: justify;">
<span style="mso-tab-count: 1;"> </span>Second,
if you get served with detainer warrant, you MUST attend the hearing. <span style="mso-spacerun: yes;"> </span>A detainer warrant is how an eviction is done
in Tennessee.<span style="mso-spacerun: yes;"> </span>After your home is
foreclosed on the Bank will open a law suit to gain possession of the
property.<span style="mso-spacerun: yes;"> </span>There will be a hearing and it
will be in front of a judge.<span style="mso-spacerun: yes;"> </span>It is absolutely
critical in your case to show up to this hearing and tell the judge that you
were wrongfully foreclosed on.<span style="mso-spacerun: yes;"> </span>Many
strong wrongful foreclosure cases in Tennessee have been later dismissed
because at that original hearing, the victim did not claim wrongful foreclosure.<span style="mso-spacerun: yes;"> </span>There is a legal doctrine called Res
Judicata, which means that the same issues cannot be litigated again in a
different court.<span style="mso-spacerun: yes;"> </span>And by failing to raise
an issue out of the same fact scenario and circumstance bars that claim
forever.<span style="mso-spacerun: yes;"> </span>Now, the law in Tennessee is
not settled on this issue with foreclosure, but it is not worth having to fight
that battle.<span style="mso-spacerun: yes;"> </span>Show up to the
hearing!<span style="mso-spacerun: yes;"> </span>Be sure to bring up the
wrongful foreclosure at the eviction proceeding.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>Hire
and have an attorney there with you.<o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<span style="mso-tab-count: 1;"> </span>Third,
start building up a savings fund.<span style="mso-spacerun: yes;">
</span>Because you were foreclosed on and still living in the property, you are
not paying a mortgage or rent.<span style="mso-spacerun: yes;"> </span>So start
paying yourself the rent/mortgage.<span style="mso-spacerun: yes;"> </span>For
example, if your mortgage was $1,000 per month, then on the first of every
month take $1,000 and place it in a separate savings account so you will not
spend it.<span style="mso-spacerun: yes;"> </span>This fund will help you in
many ways.<span style="mso-spacerun: yes;"> </span>It will help you find a new
place to live and move if unsuccessful, and it will help you make bond if you
sue for wrongful foreclosure.<span style="mso-spacerun: yes;"> </span>If you
sue, then the Bank is not able to sell that house or have someone living in it
paying rent or a mortgage.<span style="mso-spacerun: yes;"> </span>So to protect
them, most courts will require you to purchase a bond in the amount of the year’s
mortgage from an insurance company.<span style="mso-spacerun: yes;"> </span>This
account will help with that purchase.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<span style="mso-tab-count: 1;"> </span>Lastly,
save every written communication between you and the bank, save every payment
and statement, and take detailed notes on phone conversations you have with the
bank.<span style="mso-spacerun: yes;"> </span>All of this could be critical
evidence in a wrongful foreclosure case.</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<o:p></o:p> </div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<o:p> </o:p><span style="mso-tab-count: 1;"> </span>Tennessee
laws weigh heavily in the favor or mortgage companies.<span style="mso-spacerun: yes;"> </span>It is difficult to reverse a foreclosure once
it has happened, but we have done it in the past.<span style="mso-spacerun: yes;"> </span>Call us to protect your rights.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-4439822641721986232013-07-25T10:10:00.000-05:002013-07-25T10:10:12.655-05:00How much does a Bankruptcy Cost? <div style="text-align: justify;">
This is a frequently asked question in the bankruptcy world.<span style="mso-spacerun: yes;"> </span>How much does a bankruptcy cost, and how am I
supposed to pay for it?<o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Well first it depends on under which chapter you are filing
bankruptcy.<span style="mso-spacerun: yes;"> </span>Chapter 7 is the least
expensive, but you must first qualify, and there are lots of restrictions.<span style="mso-spacerun: yes;"> </span>Chapter 13 is next highest, but with
relatively low risk if you have a job and can afford your repayment plan.<span style="mso-spacerun: yes;"> </span>As for Chapter 11, if you have to ask, you
cannot afford it. <o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
Currently in the Middle District of Tennessee, which
consists of Nashville and surrounding counties, the filing fee for a Chapter 7
is $306, Chapter 13 is $281, and Chapter 11 is $1,213 but also with quarterly
fees that depend on how much debt is owed.<span style="mso-spacerun: yes;">
</span><o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<o:p> </o:p> For Chapter 7 and Chapter 13 debtors, the filing fee does
not need to be immediately paid. For Chapter 13 debtors, the trustee will pay
the fee for you out of your monthly payments.<span style="mso-spacerun: yes;">
</span><span style="mso-spacerun: yes;"> </span>For Chapter 7 debtors, they have
up to 4 months to pay the filing fee; however, failure to do so will result in
closing of the case without a discharge.<span style="mso-spacerun: yes;">
</span>Thus we recommend paying the fee up front. </div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<o:p></o:p> </div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
The attorney fees for bankruptcy are set by the court.<span style="mso-spacerun: yes;"> </span>Chapter 7 fees can range from $1,000 to
$1,500 depending on how complicated the case is.<span style="mso-spacerun: yes;"> </span>Some newer attorneys and high volume law
firms will charge less, but like most things in life, you get what you paid
for.<span style="mso-spacerun: yes;"> </span></div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<span style="mso-spacerun: yes;"></span><o:p></o:p> </div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
As for Chapter 13 cases, the fee can range from $2,500 to
$4,000, but these fees are paid through the monthly plan payments and are
disbursed by the Trustee of the case.<span style="mso-spacerun: yes;">
</span>Also, chapter 13 fees are higher because the case lasts from 3 to 5
years.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
Lastly, are the counseling courses.<span style="mso-spacerun: yes;"> </span>The 2005 amendments to the bankruptcy code
requires that debtors attend 2 budgeting courses.<span style="mso-spacerun: yes;"> </span>The course holder must be a non-profit agency
and approved by the Bankruptcy court.<span style="mso-spacerun: yes;"> </span>The
agencies that we recommend our clients to charge $25 for the first course and
$15 for the second course.<span style="mso-spacerun: yes;"> </span>In a chapter 13,
however, the trustee will teach the second course for free.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
At our firm, we do take pro-bono cases and will charge less
fees for individuals who truly cannot afford the fee. <o:p></o:p></div>
<div style="text-align: justify;">
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-87356306681503802142013-06-24T13:26:00.002-05:002013-06-24T13:27:02.373-05:00How to File Bankruptcy?<div style="text-align: justify;">
The easiest answer is to call a local attorney, explain your
situation, and then see what she advises. However, the point of this post is to explain what you need
to do in order to file a bankruptcy petition.<o:p></o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<span style="mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">1)<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span>Collect and compile all of your debts.<span style="mso-spacerun: yes;"> </span>Pull your credit report, for free with no
strings at annualcreditreport.com.<span style="mso-spacerun: yes;">
</span>Gather all bills, statements, and collection letters from your creditors
to make sure you have all account numbers, balances, recent payments made,
their names and addresses.<span style="mso-spacerun: yes;"> </span>All of this
information, except for the account numbers, must be included in your
bankruptcy petition. So get all of this organized. <o:p></o:p></div>
<o:p> </o:p><br />
<div class="MsoNormal" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<span style="mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">2)<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span>File your taxes.<span style="mso-spacerun: yes;">
</span>Bankruptcy law does not allow you to file a bankruptcy unless you have
filed your taxes.<span style="mso-spacerun: yes;"> </span>It does not matter if today
is February 3 and you have until April 15.<span style="mso-spacerun: yes;">
</span>Bankruptcy law will not grant you a discharge unless you have filed your
taxes.<o:p></o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<span style="mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">3)<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span>Collect and organize your previous 6 months of
paystubs or other proof of income.<span style="mso-spacerun: yes;"> </span>The Bankruptcy
court requires that you disclosure all income received and its source from the
previous six months prior to filing the case.<span style="mso-spacerun: yes;">
</span>The court also requires that the previous 2 months of income statements
be submitted to the US Trustee’s office for review.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<span style="mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">4)<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span>Organize and know all of your assets.<span style="mso-spacerun: yes;"> </span>In your petition, you will have to list
everything you own.<span style="mso-spacerun: yes;"> </span>The underlying,
extremely simplified premise behind bankruptcy is: that when you file a trustee
is appointed to your case who has the ability to take and sell everything you
own, use that money to pay your debts, and whatever debts still remain are
discharged, or “wiped away.”<span style="mso-spacerun: yes;"> </span>Well,
having everything you own being sold does not really help with a “fresh start,”
therefore, federal and state law allow you to keep certain items to a certain
amount.<span style="mso-spacerun: yes;"> </span>That is why you need to tell the
court everything you own, so the trustee can calculate the value of your assets
and determine which ones are exempt and which ones are not exempt from
seizure.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<span style="mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">5)<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span>Property Identification.<span style="mso-spacerun: yes;"> </span>The Bankruptcy Court requires government
photo-id and government issued social security number.<span style="mso-spacerun: yes;"> </span>You cannot use a tax return, because you send
that to the government. You need your SSN card, Medicare Card, W-2, or Tax
Transcript because those are from the government.<o:p></o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
Filing bankruptcy is a completed
process and we strongly urge that you hire an attorney to represent you in a
bankruptcy case instead of trying this on your own, but having the above things
taken care of will significantly help with a smooth process.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<br />
<div class="MsoListParagraph" style="margin: 0in 0in 0pt 0.5in;">
<o:p> </o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
<o:p> </o:p></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-83951317843674276792013-06-11T21:53:00.001-05:002013-06-11T21:53:48.213-05:00What happens to my Chapter 13 Bankruptcy Payments if my case is dismissed?<div style="text-align: justify;">
The answer to the above question used to depend on how far along a person was in their bankruptcy plan. The law was well settled that if a case was dismissed prior to the Court issuing an order of a debtor's plan, then the plan payments held by the trustee would go back to the debtor subject to only administration costs. </div>
<div style="text-align: justify;">
<br /></div>
<div style="text-align: justify;">
Prior to just a couple of weeks ago, here in Middle Tennessee, if a case was dismissed after the plan had been confirmed any funds held by the trustee at that time were sent to the creditors in accordance with the plan since those payments were received by the Trustee when the case, and therefore the plan, was still alive. However, that was the custom. The Middle Tennessee Bankruptcy Court just recently issued an opinion stating that any funds being held by the trustee when the case is dismissed will go back to the debtor, subject to any objections after parties have been given notice to file applications for that money. </div>
<div style="text-align: justify;">
<br /></div>
<div style="text-align: justify;">
Now, any funds received by the Trustee after the case was
dismissed, because funds were in the mail or sent prior to an employer
receiving notice of the dismissal, are sent back to the debtor. That stills holds true. The change in the disbursement of funds was limited only to funds received prior to dismissal, but not yet disbursed. Good news for debtors, bad for creditors.</div>
<div style="text-align: justify;">
<br /></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-31871056799681317832013-05-08T14:27:00.003-05:002013-05-08T14:28:13.487-05:00Can I Discharge my Traffic Tickets in Bankruptcy?<div style="text-align: justify;">
One of the questions we receive quite often is whether or not traffic tickets and other court costs are dischargeable in bankruptcy? Many debts are not dischargeable such as some income taxes, child support, and most student loans. For traffic tickets we have to look at the Bankruptcy in detail.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Section 523(a)(7) of the bankruptcy code states:</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
"a discharge under section 727, 1141, 1228(a), or 1328(b) of this title does not discharge an individual from any debt – to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty."</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
In a Chapter 7 case, government fines are not dischargeable, including criminal fines. A Chapter 13 debtor, however, who completes his case and receives a discharge may be able to discharge certain non-criminal government fines. Section 1328(a)(3) of the bankruptcy code states that a Chapter 13 debtor who completes all payments under the Plan receives a discharge "of all debts provided for by the plan or disallowed under section 502 of this title, except any debt – for restitution, or a criminal fine, included in a sentence on the debtor's conviction of a crime."</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Therefore, if your fine is for a criminal act determined by state law, it is not dischargeable in Chapter 7 or Chapter 13. If the fine is considered a civil penalty, it is not dischargeable in Chapter 7, but it is dischargeable in your Chapter 13 case.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-45779832350079331272013-04-17T10:41:00.001-05:002013-04-17T10:42:09.460-05:005 Tips to Avoid Foreclosure<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">1.<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Prioritize!<o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;">In
order to keep<span style="mso-spacerun: yes;"> </span>your home out of
foreclosure, you need to make your house the number priority.<span style="mso-spacerun: yes;"> </span>We see many cases where a person’s obligations
exceed his income, and it is the mortgage that does not get paid.<span style="mso-spacerun: yes;"> </span>Instead of missing the mortgage: cancel your
cable, quit eating out, and take the bus.<span style="mso-spacerun: yes;">
</span><span style="mso-spacerun: yes;"> </span>Do you want to keep your house or
ESPN?<span style="mso-spacerun: yes;"> </span>Want to keep your house or your
iPhone?<span style="mso-spacerun: yes;"> </span>Instead of paying your credit
card bill, pay the mortgage.<span style="mso-spacerun: yes;"> </span>But the
credit card has a 20% interest rate and late fee!<span style="mso-spacerun: yes;"> </span>Well, being late on your house equals losing
your home!<span style="mso-spacerun: yes;"> </span>Therefore, making the house
your top priority ahead of your other creditors and daily luxuries can keep you
in your home.<o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">2.<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Savings!<o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;">This
tip is two fold.<span style="mso-spacerun: yes;"> </span>First, just as Dave
Ramsey preaches, you should always have an emergency fund.<span style="mso-spacerun: yes;"> </span>Dave says when you are cleaning up your debt
to put $1,000 in an emergency fund for when disaster hits.<span style="mso-spacerun: yes;"> </span>I personally prefer to have at least the
$1,000 but if your mortgage payment is $1,200 then make the fund $1,200.<span style="mso-spacerun: yes;"> </span>That way you always have at least one month
of a mortgage payment ready just in case you will not be able to make it with
your current checking account.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Second
part of savings.<span style="mso-spacerun: yes;"> </span>If you fall behind on
your mortgage payments, almost every bank out there will not accept any
payments to catch back up unless it is the full amount including late fees,
interest, etc.<span style="mso-spacerun: yes;"> </span>Therefore, if you are
$3,000 behind, and have $1,500 ready to give to the bank, but they won’t accept
it, do not keep it in your checking account.<span style="mso-spacerun: yes;">
</span>Otherwise you will see your account with an extra $1,500 and it will be
used at the grocery, gas, other bills, etc.<span style="mso-spacerun: yes;">
</span>Instead, open up a separate savings account, and place that $1,500 in
there.<span style="mso-spacerun: yes;"> </span>And then when the next month
begins and you will owe another mortgage payment, which will not be accepted,
pay yourself the mortgage payment in the savings account.<span style="mso-spacerun: yes;"> </span>Therefore, you can catch yourself back up and
be ready to pay the bank in full.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div style="text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;"></span></span><br />
</div>
<div style="text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">3.<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Watch
out for scams!<o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;">There
are a plethora of scammers waiting to pounce on desperate homeowners.<span style="mso-spacerun: yes;"> </span>Since the home is almost everyone’s prized
possession, we are willing to spend lots of money on the hope of a solution.<span style="mso-spacerun: yes;"> </span>A lot of people offer services that will stop
a foreclosure, but they end up with the money instead of the bank, and instead
of you.<span style="mso-spacerun: yes;"> </span>Please be careful.<span style="mso-spacerun: yes;"> </span>If you choose to go through a third party to
work with the bank on stopping the foreclosure, instead of through bankruptcy, use
only HUD approved housing counselors:<span style="mso-spacerun: yes;"> </span><a href="http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm"><span style="color: blue;">http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm</span></a>.
<o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">4.<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Communication!<o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Be
sure to open all mail you receive from your bank and respond to
everything.<span style="mso-spacerun: yes;"> </span>The lender might be offering
modifications, loan restructuring or other relief options to help you keep your
home.<span style="mso-spacerun: yes;"> </span>You need to know your rights and
options and you cannot do that unless you open all of your mail.<span style="mso-spacerun: yes;"> </span>Also, be sure to respond to all of it as
well.<span style="mso-spacerun: yes;"> </span>Keep a record of all communications.<span style="mso-spacerun: yes;"> </span>Also, when speaking to a bank representative
or customer service, keep a record of the phone calls such as date, time,
person, phone number, and notes of the conversation.<span style="mso-spacerun: yes;"> </span>These records can help you in the long run
with a future cause of action if the bank does not do what they promised you,
so you are not going only from memory and “he said, she said.”<o:p></o:p></span></div>
<div style="text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;"></span></span><br />
</div>
<div style="text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-list: Ignore;">5.<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Bankruptcy<o:p></o:p></span></div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;">Bankruptcy
is a last resort option, but filing a bankruptcy will stop a foreclosure and
allow you to repay the bank over a three to five year period to get caught back
up.<span style="mso-spacerun: yes;"> </span>Bankruptcy is a legal way to force
your bank to listen to you instead of just ignoring you. <span style="mso-spacerun: yes;"> </span>Bankruptcy is not for everyone and you must
contact a local attorney to see if your situation warrants filing
Bankruptcy.<span style="mso-spacerun: yes;"> </span>This is something we have
much experience and do regularly.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-6323132199888141682013-01-20T17:26:00.002-06:002013-01-20T17:26:53.683-06:00What is a Chapter 20 Bankruptcy?<div style="text-align: justify;">
A Chapter 20 Bankruptcy is the situation where a debtor files for Chapter 7, and then immediately refiles another case under Chapter 13. The purpose are a few reasons why a debtor would want to take this strategy. The first purpose is to reduce the monthly payments that will be required in a Chapter 13 plan. If a person has $50,000 of general unsecured consumer debt (such as medical bills and credit cards) and also has $50,000 of student loans, which is not dischargeable, then chapter 13 payments to pay everyone in full would be $1,666.67 per month for 60 months. However, if the debtor first files Chapter 7 bankruptcy, then $50,000 of the consumer debt would be discharged. After the case is closed the debtor can immediately refile under Chapter 13 in order to pay the nondischarged student loans. That monthly payment would be $833.33 for 60 months. </div>
<div style="text-align: justify;">
<br /></div>
<div style="text-align: justify;">
Another reason to file a chapter 20 is because the debtor exceeds the Chapter 13 debt limits. Currently, a debtor cannot file a Chapter 13 bankruptcy if the unsecured debt exceeds $360,475. Chapter 7 has no debt limits. Thus, a debtor may have $400,000 in unsecured debt, which is mixed with dischargeable and nondischargeable debt, as well as secured debt of a house and car. The debtor (if he qualifies for a chapter 7) file the chapter 7 first reduce the overall debt to be under the debt limit. Then the debtor could file a Chapter 13 bankruptcy in order to cram-down the car loan or strip off a second mortgage on a house.</div>
<div style="text-align: justify;">
<br /></div>
<div style="text-align: justify;">
Now, one thing to remember is that by filing a Chapter 7 first, the debtor will not be eligible for a second discharge in the Chapter 13 bankruptcy. All of the consumer debt would've already been discharged in the Chapter 7, but the debtor would be liable for any deficiency if he later choose to surrender the house or car in the chapter 13 bankruptcy. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-39236827428963496862013-01-02T14:23:00.000-06:002013-01-02T14:23:32.957-06:00What are the current Tennessee Estate Taxes?<div style="text-align: justify;">
Now that is it 2013 the Tennessee inheritance tax exemptions have changed for the better of Tennessee residents. From 2006 through 2012 the estate tax exemption was One-million dollars( $1,000,000.00). In 2013, Tennessee estate tax emption moves up to One-million, two hundred fifty thousand dollars ($1,250,000.00). That means if a resident of Tennessee dies, $1,250,000 of the person's estate will be transferred to the designees or heirs, without an estate tax. In 2014, the exemption grows to Two million dollars ($2,000,000.00); in 2015 to five-million dollars ($5,000,000.00); and in 2016 the exemption will be unlimited. </div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Now, estate planners must still be wary despite the laxation of taxation for Tennessee residents because federal estate tax will still have to be paid. Congress was able to act intime to avoid the fiscal cliff consequences for estate planning. Instead of the $5.12 million exemption being reduced to $1 million the amount remained the same at $5.12 million, but the maximum rate increased from 35% to 40%. Very importantly, portablility remained intact, so that if one spouse transfers all of his estate to his surviving wife, then the wife may use his and her exemptions when she finally dies, thus being able to have a maximum $10.24 million federal exemption. </div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Given these changes if you think that your will needs to be redone call your attorney to setup an appointment to specifically talk about your situation. If you do not have a will, then you should contact an attorney to discuss the legal consequences.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-87274299467008662562012-12-10T14:16:00.001-06:002012-12-10T14:16:36.831-06:00Bankruptcy Case Update: Student Loan Discharge<div style="text-align: justify;">
In a recent decision out of the Central District of Illinois, the Court held that while a debtor's prior, sporadic payments on her student loans were likely all that she could afford, given that she was unemployed, her unexplained failure to participate in the income contingent repayment plan (ICRP), along with her extreme hesitance to consider jobs outside her chosen field of study and admission that, after unsuccessfully applying for such jobs, she had effectively given up looking for work, precluded a finding that the debtor had made the requisite "good faith" effort to repay her student loans and prevented her from obtaining an "undue hardship" discharge of this debt. To find that the debtor had made a "good faith" effort to repay her student loans, based on the fact that the debtor had paid off one of these loans with proceeds of a divorce settlement and made sporadic payments on others, the bankruptcy court, at a minimum, had to correctly explain why the ICRP or a similar program was a bad deal for that particular debtor, and could not simply dismiss her admitted unwillingness to participate in the ICRP as "not dispositive."</div>
<div style="text-align: justify;">
<em>Educational Credit Management Corp. v. Krieger</em></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-22658549207571724152012-10-26T16:20:00.001-05:002012-10-26T16:22:20.811-05:00Estate Planning Is For Everyone<div align="JUSTIFY" style="margin-bottom: 0in;">
There a giant
misconception that estate planning is just for the rich. Growing up,
before becoming an attorney I used to have a false belief of estate
planning. When I heard “estate planning”, I envisioned some
millionaire sitting down with an attorney coming up with ways of how
to hide money in Island countries and writing five hundred page trust
documents that keep his money out of the hands of the government
forever while showering his family with wealth.</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
I could not have been
more wrong. Estate planning is making sure that not only are your
assets distributed in the way you wish when you pass, but that the
end of your life wishes are emphatically published to all so that
there is no confusion, strife, or bickering among your family.</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
The primary instruments
that are used for estate planning are: Will, Power of Attorney, Power
of Attorney for Health Care, and a Living Will.
</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
The Powers of Attorney
give a person who you appoint the power to take care of your finances
and health care decisions if you reach a state of mental incapacity,
whether from illness or injury. You can put restrictions on your
attorney-in-fact or give him free reign. Usually this power goes to
a spouse or other family member.
</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
The Living Will, also
known as an “affirmative directive”, authorizes, or does not
authorize, the withholding of <span style="font-family: Times New Roman, serif;"><span style="font-size: small;">artificially
provided food, water, or other nourishment or fluids if the patient
reaches a terminal state with no reasonable medical expectation of
recovery.</span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<span style="font-family: Times New Roman, serif;"><span style="font-size: small;"><span style="font-size: small;"> </span>All
of these documents are affordable for everyone, but so many people do
not have these drawn up either because of the misconception that
“Estate Planning” is for the very wealthy, or do not like to
dwell on the end of their life. Make the smart decision and call an
estate planning to get these documents executed to prevent hassles
and inter-family strife at the end of your life.</span></span></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-82796459129245310752012-10-24T09:24:00.001-05:002012-10-26T16:21:56.000-05:00Student Loans and Hardship TestRecent Case Updated from the 9th Circuit:<br />
<i>In re Jorgensen 2012 WL 3963339</i><br />
<br />
<div style="text-align: justify;">
Under the <i>Brunner</i> “undue hardship” test, a debtor seeking discharge of student loan debt must prove that (1) she cannot maintain, based on current income and expenses, a minimal standard of living for herself and her dependents if required to repay the loans, (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period, and (3) the debtor has made good faith efforts to repay the loans.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
<br />
The Court of Appeals held that the lower Bankruptcy court did not abuse its discretion by refusing to discharge $8,045.02 of Chapter 7 debtor's approximately $36,285 in student loan debt; the court refused to discharge $6,050 because debtor would not be paying rent during the five and one-half months that she was teaching abroad and she did not satisfactorily explain why the excess $6,050 was necessary to maintain a minimal standard of living, and the court refused to discharge $1,995.02 because debtor purchased a new vehicle prior to her trip and her car payment while abroad was not necessary to maintain a minimal standard of living.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-351928353428441462012-08-18T10:15:00.006-05:002012-08-18T10:17:53.004-05:00Voided Mortgages in Bankruptcy<div align="JUSTIFY" style="margin-bottom: 0in;">
Currently the hottest
issue in Bankruptcy law, at least here in Nashville, TN, is stripping
mortgages from a person's home. In order for any creditor to be paid
in a Chapter 13 bankruptcy, the creditor must file a Proof of Claim.
For unsecured creditors, such as credit cards and medical bills, the
creditor merely has to file a Proof of Claim form and they are
entitled to payment, and it is the burden of the debtor to rebut the
presumption that he owes that debt. However, for creditors with
collateral securing their loan, such as mortgages and car liens, the
creditor must attach with their Proof of Claim, documentation that
proves the claim is in fact secured. So for a mortgage, the bank
with the mortgage must attach the Deed of Trust and the Promissory
Note.
</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
Now, the collapse of the
housing market for the past five years has unveiled many “mistakes”
and “errors” of the banking mortgage industry. Once a homeowner
signed a mortgage with a local bank or even a national/global bank,
many of those mortgages were bundled, sold, and traded multiple
times. However, the actual physical documents that were signed
cannot be found because many of these transactions were done
electronically. Therefore, in Bankruptcy Court, when the Proof of
Claim for a mortgage is filed and the documents are not attached, or
the documents attached have the name of a different bank on them,
then the claim gets disallowed. Subsequently, section 506(d) of the
Bankruptcy Code provides that to the extent that a secured claim is
not allowed the lien securing that claim on the property is void.
Thus, if the Bank cannot prove that they own the mortgage with a Deed
of Trust and Promissory Note then the claim is disallowed, and then
the lien may be stripped.
</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
Now, for a Bankruptcy
attorney, I am going to discuss some strategies when this issue
arises. First, the bankruptcy attorney must follow the Proof of
Claims Deadline. When we receive the Notice of the Meeting of
Creditors, on it is published the Deadline for Creditors to file
Proof of Claims. We mark our calendars for these deadlines.
According to our Local Rules, here in Middle Tennessee, the debtor
has 30 days beyond this deadline to file a proof of claim on behalf
of the creditor. So once this deadline approaches, we check to see
if the secured creditors of a case filed their Proof of Claim. If
they didn't we file one on their behalf. Obviously, we do not have
the Deed of Trust or the Promissory Note, so shortly thereafter the
Trustee of the case files a Motion to Disallow that claim. Next, we
file with the Trustee an agreed order to hold the funds provided in
the plan meant for the mortgagee, that way if the documents arise
during litigation, the trustee has been holding those funds so the
debtor doesn't fall behind in her payments.
</div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<br /></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
Now is when we file our
adversary proceeding against the alleged mortgagee with the lien to
strip the lien pursuant to section 506(d). Also, an attorney must be
sure to properly serve the complaint on the bank pursuant to Rule
7004. Another good strategy, is when/if the bank responds with an
answer, is to request discovery, production of documents, or subpoena
the bank to produce the Note and Deed of Trust. Thus, if the bank
cannot provide the documents, then the lien is stripped, or if the
bank refuses to supply them, as a strategy to avoid saying the
documents cannot be found, then you can ask for sanctions.
</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-58949506816971275872012-07-19T22:47:00.001-05:002012-08-18T10:22:08.084-05:00Property Taxes in Bankruptcy<div style="text-align: justify;">
I wrote a post a few months ago on Property taxes is bankruptcy because we argued the case and the decision had yet to come down. Well, a couple of weeks after that post was written we the judge issued his opinion and the decision was split, partially granted and partially denied. </div>
<div style="text-align: justify;">
<br /></div>
<div style="text-align: justify;">
First, we won on the issue that "penalities" are not "fees, costs, or charges" that could be allowed for the secured creditor. Therefore, a debtor's delinquent property taxes would be charged a 12% interest rate and not an 18% interest rate; moreover, the secured claim would only grow at 12% and not 18%. One part of the decision the judge added in, and it was not argued by us nor the Metro Trustee's office, but was argued in the Chapter 13 Trustee's brief. That issue was the fact that since, in this case, the debtor was solvent the Metro Trustee's office should be allowed an unsecured claim of the 6% penalty, but only from the date of filing to the date of the confirmation order. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-55179792712041380252012-06-02T17:45:00.003-05:002012-06-02T17:46:13.037-05:00When Can Someone File Bankruptcy Again? A common question we receive is: "I filed bankruptcy [x] years ago, does that affect me?" Section 727 of the Bankruptcy Code lists the amount of time that a person must wait if he has received a bankruptcy discharge. The following are the amounts of years that must be between the filing dates of the bankruptcy cases and their respective Chapters:<br />
<br />
Between Chapter 7 and Chapter 7: 8 Years<br />
Between Chapter 7 and Chapter 13: 4 Years<br />
Between Chapter 13 and Chapter 7: 6 Years<br />
Between Chapter 13 and Chapter 13: 2 Years<br />
<br />
The six year requirement between a Chapter 13 and a Chapter 7 has two exceptions: (1) the debtor paid all "allowed unsecured" claims in the earlier
case in full, or (2) the debtor made payments under the plan in the
earlier case totaling at least 70 percent of the allowed unsecured
claims and the debtor's plan was proposed in good faith and the payments
represented the debtor's best effort.Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-5904276147487980782012-05-19T10:14:00.004-05:002012-05-19T10:15:15.974-05:00New York Law Firm Likely to File Bankruptcy<div style="text-align: justify;">
New York law Firm <span class="yshortcuts" id="lw_1337397245_2">Dewey & LeBoeuf</span> seems it is on the track to filing a Chapter 11 bankruptcy. My first thought when seeing this headline was, "Why does a law firm have any debt at all in the first place?" Answer #1: Many times as a firm grows, the next step to becoming a "big firm" is to purchase real estate and own its office rather than being a "mere tenant." The problem with this line of traditional thought is once the firm purchases real estate, it is no longer a law firm. It is now a landlord, developer, and investor. I understand the benefits of a firm purchasing real estate, and in many cases it is a good choice. Earn equity instead of paying rent. The problem comes when the business uses debt to purchase the real estate. I like to follow Dave Ramsey's advice of paying cash for everything, especially in business. </div>
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Answer #2: Another reason a law firm takes on debt is to fund a large case. Many clients have great winnable lucrative cases but not the cash to fund one. Therefore, it becomes the lawyer to fund the case and then take his fee through the winnings. The problem here is (1) if you lose, you get lots of debt and no money to pay for it; (2) the winnings do not turn out to be that big; or (3) you win but the defendant has no assets for you to take. If that were the case with Dewey & LeBoeuf, again what I cannot wrap my head around is why get debt? Dewey & LeBoeuf had over 300 partners and 500 employees. A firm that large should be able to handle litigation costs on a contingent fee case. According to the following attached article, the firm had bondholders, which means the debt is more likely tied to litigation than real estate (my best guest). </div>
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More Dave Ramsey advice for businesses in general: if you are taking on a project, joint venture, expansion, etc., think about the risks and ask yourself, "If everything in this project were to fail would that bankrupt the business?" If the answer is "yes", then do not take on such a project. </div>
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For more on this likely Bankruptcy:</div>
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<a href="http://finance.yahoo.com/news/dewey-consider-bankruptcy-filing-source-030341955.html">http://finance.yahoo.com/news/dewey-consider-bankruptcy-filing-source-030341955.html</a></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-53376194776364844222012-05-14T14:57:00.005-05:002012-05-14T14:58:34.881-05:00The Automatic Stay and Creditor Harassment on Surrendered Property<div style="text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;">One
of the most important and influential aspects of Bankruptcy is the Automatic
Stay.<span style="mso-spacerun: yes;"> </span>The Automatic Stay is just that,
automatic.<span style="mso-spacerun: yes;"> </span>As soon as the bankruptcy
petition is filed, all of a debtor’s creditors are stayed (prohibited) from
making any attempts whatsoever to take any property, money, income, etc., from
the debtor.<span style="mso-spacerun: yes;"> </span>This means that all
lawsuits, phone calls, repossessions, foreclosure proceedings, EVERYTHING must
immediately stop otherwise the debtor can receive money damages from the
creditor for a stay violation.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; mso-layout-grid-align: none; text-align: justify;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt;"><o:p> </o:p></span><span style="font-family: "Times New Roman","serif"; font-size: 12pt;"> Now just focusing only on Chapter
13 cases, a creditor does have the right to ask the court for permission to be
relieved from the stay (Motion for Relief from Stay), for instance, in order to
repossess a car that the debtor is not paying for or is uninsured.<span style="mso-spacerun: yes;"> </span>Furthermore, many times in a bankruptcy a
debtor will voluntarily surrender a car or home to the creditor. When this
happens, the creditor usually does not need permission from the court to
recover the collateral, as such permission is typically included in a
confirmation order. <span style="mso-spacerun: yes;"> </span>Here is an example
from an actual order: <span style="mso-spacerun: yes;"> </span>“The plan
surrenders the debtors interest in collateral to the creditors listed below. The
automatic stay has been lifted to allow these creditors to repossess the
collateral upon which they have liens.”<span style="mso-spacerun: yes;">
</span>Well when the stay is lifted, does that mean the creditor can begin
harassing the debtor again?<span style="mso-spacerun: yes;"> </span>As counsel
for debtors, we say no; however, there are creditors who say yes!<span style="mso-spacerun: yes;"> </span>While in my research I have yet to find a
case that addresses this particular issue, I found many cases that are
analogous.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12pt;"> For example, a reaffirmation
agreement is a voluntary agreement between a debtor and creditor that allows a
debt to be exempt from discharge and remain in effect after the bankruptcy (This
is done for debtors who wish to keep cars or houses).<span style="mso-spacerun: yes;"> </span>It has been held by many bankruptcy courts
that a creditor can contact debtors about such an agreement since both parties
have this right. However, litigation soon followed because the creditor was
trying to harass the debtor into such an agreement.<span style="mso-spacerun: yes;"> </span>Courts have held that while a creditor is
allowed to contact the debtor for this purpose, the creditor cannot do so
through harassment, threats, or coercion, as this defeats the purpose of the
Bankruptcy Code protections.<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12pt;"> Usually, when property is being
surrendered, the discourse between the creditor and debtor is tranquil and they
arrange a time for the surrendered car to be picked up or a time limit for the
debtor to move out of a house. <span style="mso-spacerun: yes;"> </span>There is
currently a case going on right now where the debtors moved out of their house,
which was surrendered, two years prior but are still getting harassing and threatening
phone calls about transferring the property.<span style="mso-spacerun: yes;">
</span>Though the stay had been lifted, the debtors are contending that like
reaffirmation agreements, surrenders cannot be coercive.<span style="mso-spacerun: yes;"> </span>It will be interesting to see how the case
turns out.<o:p></o:p></span></div>
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</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-111410939622310592012-04-21T07:58:00.001-05:002013-02-11T13:34:03.582-06:00QWR: Qualified Written RequestPractice Tip for practicing Bankruptcy attorneys: Qualified Written Request (QWR). <br />
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One thing we do at Nevin Law Firm is send out a QWR for any bankruptcy client who has a mortgage. What is a QWR? Glad you asked. A qualified written request gets its name from RESPA, the Real Estate Settlement Procedures Act. This act, and Section 6 dealing with a QWR, was put in place to give borrowers of a mortgage a dispute resolution mechanism. As most of us know, it is really hard to deal with large institutions such as a bank. Always receive a recording, voicemail, put on hold, or told you called the wrong department. Well a QWR was Congress's giving borrowers a weapon to combat this type of customer service when a borrower has a legitimate concern regarding his mortgage. Specifically, the QWR is for when a borrower is concerned that an error has occurred in calculating how much money is owed. RESPA requires that when a QWR is received by a mortgage lender, the lender must send an acknowledgement of receipt within 5 days and answer or correct any alleged miscalucaltions and provide any requested information within 30 days (as modified by the Dodd-Frank Act). If the bank fails to abide by these deadlines then a borrower is allowed actual damages, statutory damages (not to exceed $1,000), and attorney fees. The bank, however, is allowed to give the borrower notice that they are extending the time to respond by up to 15 days so long as in the notice the provide reason for the delay. </div>
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Now, there are specific requirements of what makes a letter a QWR and just a letter. The letter must state that it is a Qualified Written Request, state that the bank must abide by the requirements of RESPA, be mailed to the actual servicer (not servicer's attorney), and allege errors, omissions, of defects occurred in calculating payments, fees, costs, charges, notice, etc. (These requirements are not an exhaustive list). This is a great tool for attorneys because it does a number of things: (1) if it goes unanswered you get fees; (2) forces the bank to provide you with mortgage documentation so you can look for errors; and (3) allows you to dispute any differences made on a proof of claim filed by the servicer in the bankruptcy case. </div>
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Major Caveat!! A couple things you need to be careful about. QWRs are not to be used as a "fishing expedition" and doing so can have the potential to adversely affect a client. A Deed of Trust may have a provision that in a dispute the borrower is responsible for legal fees. In such a case, if used as a "fishing expedition" and there is no actual specific error alleged, you may have added a few hundred more dollars to the balance of your clients mortgage.<br />
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Before sending out your own QWR and taking action to recover damages and fees if no response is given, be sure to read section 6 of RESPA and research the caselaw as this article only scratches the surface. </div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-5213871382576434592012-03-28T21:50:00.004-05:002012-04-07T07:08:18.008-05:00Pitfalls of Bank's Pilot Mortgage Forgiveness Program<br />
<div align="JUSTIFY" style="margin-bottom: 0in;">
Recently a large national
bank has announced that it is launching a pilot program that will
allow some homeowners facing foreclosure stay in their homes. The
program would allow homeowners, who are behind in their mortgage,
deed the property back to the bank and then have their mortgage debt
forgiven. At this point the former homeowner would then lease the
property from the bank at a lower rent than the monthly mortgage
payment. The tenant would also not be responsible for the property
taxes or insurance.</div>
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This program benefits the
bank for a few reasons. The bank saves the expenses it costs them to
do a foreclosure (The average foreclosure takes nearly two years to
complete, according to Florida-based Lender Processing Services, and
costs nearly $78,000, according to a Congressional estimate.).
However, the bank will face some additional costs/ responsibilities.
The bank will bear the costs of property taxes, insurance,
maintenance, land scaping, repairs, security, waste disposal, and
other property management requirements. Furthermore, the bank would
need to employ an attorney to oversee any evictions that would occur.</div>
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For the property owner
this may seem like a good way to remain in his home, however there
would be some negative consequences. For instance, forgiveness on a
debt is considered by the IRS as taxable income, so the homeowner
could be left with a very large tax bill after a $150,000 mortgage is
forgiven. Moreover, the former homeowner could be removed from the
property a lot faster than if he owned the home. If the property
were being foreclosed, the procedure could a couple of months and the
homeowner has the protection of the Bankruptcy Code, where filing
bankruptcy would cease the foreclosure and allow the debtor to make
up any missed payments. However, with the former homeowner now
renting his house, he can be evicted from the house in about two to
three weeks if he were to miss a rent payment. Also, the Bankruptcy
Code is very favorable to landlords. Remaining in the house during a
bankruptcy does not alleviate the tenant's responsibilities from
paying rent, while a homeowner can remain in the home a lot longer
without making a mortgage payment; the post-petition rent that comes
due during the bankruptcy will also not be discharged, and the tenant
can later be sued for it, unlike a homeowner.
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<div align="JUSTIFY" style="margin-bottom: 0in;">
Though it seems like this
program could help the bank and homeowner, it may also be just
substituting one problem with another.
</div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-8175608728446126180.post-26188981098483151662012-03-19T22:08:00.001-05:002012-03-19T22:09:47.491-05:00Nashville Probate Committee Hosts Judge Kennedy<div style="text-align: justify;">
Today, the Nashville Bar Association Probate Committee had the pleasure to have Davidson County's Probate Judge Randy Kennedy speak at our monthly meeting. Various topics were discussed including new procedures for his courtroom and advice/tips for petitions to probate wills, specifically lost wills. But the bulk of the discussion involved the Judge discussing the proposed amendments to the State of Tennessee's Conservator and Guardianship laws. Judge Kennedy summarized many of the changes and possible ramifications. Overall, his main message was for the Tennessee bar members to read through the legislation and submit any comments, concerns, and questions to the legislature. </div>
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The Tennessee Bar Association is putting together a committee to research the new proposed amendments and submit a report discussing the positions of the probate bar. A future article will include a more thorough discussion of the amendments and the specific provisions and their potential ramifications. If interested, the following are links to the proposed amendments:</div>
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<div style="text-align: justify;">
http://www.capitol.tn.gov/Bills/107/Bill/SB2519.pdf</div>
<div style="text-align: justify;">
http://www.capitol.tn.gov/Bills/107/Bill/SB2398.pdf</div>
<div style="text-align: justify;">
http://www.capitol.tn.gov/Bills/107/Bill/HB2456.pdf</div>Unknownnoreply@blogger.com2tag:blogger.com,1999:blog-8175608728446126180.post-57007398991253279842012-03-12T16:02:00.007-05:002012-03-12T16:05:01.727-05:00Property Taxes in Bankruptcy<div style="text-align: justify;">
</div>
<div style="margin-bottom: 0in; text-align: justify;">
As I write this article, the issue of
property taxes is still unsettled in the Federal Districts of
Tennessee, the 6<sup>th</sup> Circuit, and in Bankruptcy law all over
the country. Nevin Law Firm was fortunate enough to be the ones with
the case to settle this newly arisen issue.</div>
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<div style="margin-bottom: 0in; text-align: justify;">
This issue
involves the treatment of property taxes in a Chapter 13 plan.
Tennessee statute states that late paying property taxes are subject
to 1% per month (12% per year) interest rate and a .5% per month (6%
per year) penalty for a total of 18% rate. Section 506 of the
Bankruptcy Code determines what post-petition interests and “fees,
costs, and charges” are allowed. We are arguing that the
additional 6% penalty is not a fee, cost, or charge and therefore
should not be allowed. Metro Trustee, obviously is arguing they are
entitled to the additional 6%.
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Now, for a Chapter 13 debtor every
dollar counts. Debtors are placed on a very tight budget to pay as
much as they can afford to their creditors so an additional 6%
payment can break a budget, even if its only a few dollars extra per
month. Additionally, after combining all these cases, the 6% penalty
can mean hundreds of thousands of dollars to the counties of
Tennessee and even more when addressing the entire 6<sup>th</sup>
Circuit. Another implication of this is that if a “penalty” is
found to be a “fee, cost, or charge” other secured creditors will
be able to collect post-petition penalties that accrue in the case.
This will surely equal millions of dollars.</div>
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We argued the issue two weeks ago and
submitted supplemental briefs last week. Currently, the Judge is
researching and writing his own opinion to decide whether we or the
Metro Trustee is correct in interpreting the Bankruptcy Code, and I
am eagerly awaiting his decision. It is very likely this case will
go to the 6<sup>th</sup> Circuit Court of Appeals and possibly the
Supreme Court (which would be such an honor as a venue to argue the
issue). Thus no matter the current decision, the issue will continue
to be contested for the next couple of years. Again, we are very
excited at the Nevin Law Firm to have the honor and responsibility to
be handling this case and will post an update as soon as we receive
the decision.</div>Unknownnoreply@blogger.com2