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Chapter 11 bankruptcy, which is also known as “reorganization bankruptcy,” is commonly used by C corporations, S corporations, limited liability companies (LLCs), and partnerships in California. Chapter 11 can also be filed by individuals, but these cases are so rare that Chapter 11 is primarily associated with small businesses and large companies. Our Sacramento bankruptcy lawyers explain what happens when a business enters Chapter 11, and discuss how Chapter 11 affects employees’ unpaid wages.
What Happens When a Company Files Chapter 11 in CA?
Before our Sacramento Chapter 11 lawyers explain what happens to employees and wages, let’s take a step back and begin with a brief overview of Chapter 11 bankruptcy in California.
Chapter 11 can be utilized by corporations, LLCs, partnerships, and in some cases, individual debtors. Unlike Chapter 7 bankruptcy, Chapter 11 allows business entities to continue operations and avoid closure while the bankruptcy is pending, making Chapter 11 an attractive alternative to Chapter 7 for business owners who wish to avoid liquidation of the company’s assets. Because business entities cannot file Chapter 13 in Sacramento — with some exceptions for sole proprietors, which a Sacramento Chapter 13 lawyer can explain — Chapter 11 is effectively the only feasible filing option for a Sacramento business owner who wishes to avoid shutting his or her company down.
Unlike Chapter 7, Chapter 11, similar to Chapter 13, involves the restructuring or “reorganization” of debts, which is where the phrase “reorganization bankruptcy” derives from. In addition to the petition for bankruptcy, the debtor also submits many other documents, such as disclosure statements and schedules of liabilities and assets.
After the debtor files the bankruptcy petition, he or she becomes a “debtor in possession” (DIP), and continues to manage the company. The bankruptcy court is unlikely to appoint a trustee to take over for the DIP, unless serious noncompliance, mismanagement, or fraud occurs.
The DIP must submit a reorganization plan, which must be approved by the court. The reorganization plan classifies each creditor’s “claim” (right to be paid), and specifies how and to what extent claims will be paid during the bankruptcy. The purpose of the plan is to rework the company’s debts, so that payments are reduced or spread out over a longer and more manageable payment period. The company may sell some of its assets to help raise money for the Chapter 11 payments. With foresight, strategic planning, and precise attention to detail, this allows the business to reestablish profitability over time.
Different rules and deadlines apply in Chapter 11 cases depending on whether the business entity is classified as a “small business debtor,” meaning a debtor who owes a maximum amount of $2,566,050. Our Sacramento small business bankruptcy lawyers can help you understand how your case could be affected by the size of your company, and what you will be required to do differently as a small business debtor.
Are Business Owners Required to Pay Employees During Chapter 11?
Filing for Chapter 11 doesn’t mean the end of the business – in fact, just the opposite. However, bankruptcy can have significant impacts on daily operations, including the payment of employees. So how and when are employees paid during Chapter 11? How are unpaid wages treated in Chapter 11 bankruptcy?
First and foremost, business owners should be advised that filing Chapter 11 does not dissolve, relieve, or alter the normal obligation to continue paying employees. If your company files Chapter 11, you are required to keep sending paychecks in the normal amount and at the normal time.
If you fail to pay your employees while your company is in Chapter 11, several negative consequences can result:
- The Department of Labor could investigate your business. This could lead to criminal prosecution.
- The bankruptcy court could dismiss your case, or appoint a trustee to manage your company’s finances.
- Your employees could simply quit, leaving your business in a precarious position precisely at the time when maintaining stability is critical to success.
Employees who are laid off when you file Chapter 11, or before you file Chapter 11, will join your other creditors. Employee claims are generally classified as “priority” claims, meaning claims that are paid before others. This classification extends to any wages your employees earned during the 180 days prior to the date on which you file Chapter 11, up to an amount of $12,850. This amount is periodically adjusted for inflation. In this context, the term “wages” covers:
- Commission
- Paid Sick Leave
- Salary
- Severance Pay
- Vacation Pay
Get Help Filing Chapter 11 from Sacramento Bankruptcy Attorneys
If you plan to file Chapter 11 in Sacramento, Folsom, Roseville, or the surrounding area, make sure you have the guidance you need before embarking on this rewarding yet complex process. It is not in the best financial interests of your business to file Chapter 11 without the assistance of a knowledgeable Chapter 11 attorney. It is easy for business owners to accidentally overlook small details or technicalities of bankruptcy law that can have serious ramifications for the future of your company.
Whether you own a restaurant, a construction company, a tech company, an auto repair shop, a retail shop or clothing boutique, a catering business, a bar or nightclub, a family farm, a consulting firm, a marketing firm, a produce market, or any other type of store or business, The Bankruptcy Group can help you avoid mistakes and comply with the law while managing your documentation and helping you reap the greatest benefits from your California business bankruptcy. To learn more about whether Chapter 11 or Chapter 7 could be right for your small business, contact the Sacramento Chapter 7 lawyers of The Bankruptcy Group at (800) 920-5351.
The post What Happens to Employees When a Company Files Chapter 11 in Sacramento, CA? appeared first on The Bankruptcy Group, P.C..
By STACY COWLEY and JESSICA SILVER-GREENBERG
Raid your 401(k). Ask your boss for a loan, load up on your credit cards, or put up
your house as collateral by taking out a second mortgage.
Those are some of the financially risky strategies that Pioneer Credit Recovery
suggested to people struggling to pay overdue federal tax debt. The company is one
of four debt collection agencies hired by the Internal Revenue Service to chase down
late payments on 140,000 accounts with balances of up to $50,000.
The call scripts those agencies are using — obtained by a group of Democratic
senators and reviewed by The New York Times — shed light on how the tax agency’s
new fleet of private debt collectors extract payments from debtors. On Friday, those
senators sent a letter to Pioneer, the I.R.S. and the Treasury Department accusing
Pioneer of acting in “clear violation” of the tax code.
In the letter, a copy of which was provided to The New York Times, the four
senators, led by Elizabeth Warren of Massachusetts, say that the I.R.S.’s contractors
are using illegal and abusive collection tactics.
In particular, they object to Pioneer’s “extraordinarily dangerous” suggestion that
debtors use 401(k) funds, home loans and credit cards to pay off their overdue taxes.
“Pioneer is unique among I.R.S. contractors in pressuring taxpayers to use
financial products that could dramatically increase expenses, or cause them to lose
their homes or give up their retirement security,” the senators wrote. “No other debt
collector makes these demands.”
On Thursday, in advance of receiving the letter, the I.R.S. said it was
comfortable with the approach its outside collectors were taking. The agency “is
committed to running a balanced program that respects taxpayer rights while
collecting the tax debts as intended under the law,” said Cecilia Barreda, an I.R.S.
spokeswoman.
The debt collectors are paid on commission, keeping up to 25 percent of what
they collect.
Pioneer instructs its employees to “suggest that liquidating assets or borrowing
money may be advantageous” and to “give the taxpayer ideas on where/how to
borrow,” according to the scripts it submitted to the I.R.S. for approval. If that route
does not work, the scripts show, Pioneer’s collection agents encourage taxpayers to
ask their family, friends and employers for money.
All four of the collection companies hired by the I.R.S. — CBE Group, ConServe,
Performant Recovery and Pioneer — tell debtors that they can set up an installment
plan lasting as long as seven years, two years longer than the span that private
collectors are legally allowed to offer. The code that authorizes the I.R.S. to hire
outside collectors says that they may offer taxpayers installment agreements that
cover “a period not to exceed five years.”
The I.R.S. said that payment plans lasting longer than five years were legal as
long as they were approved by the agency.
“If the taxpayer agrees, and after the I.R.S. approves, the private firm will
monitor payment arrangements between five and seven years,” Ms. Barreda said.
“This process is in accordance with the law and ensures that taxpayers assigned to
the private firms will have the same payment options as taxpayers dealing with the
I.R.S.”
Others disagree with the agency’s interpretation. Nina E. Olson, the national
taxpayer advocate at the I.R.S., said that the agency was engaging “in legalistic
gymnastics to justify something the law doesn’t allow.”
The I.R.S. is owed about $138 billion, a sum that lawmakers are eager to reduce.
To supplement the agency’s collection efforts, Congress ordered it to hire outside
firms — an approach that was tried twice before, in 1996 and in 2006, and then
abandoned because of cost overruns and concerns about abuses. Lawmakers hope
the new program, which began this year, will yield better results; the congressional
Joint Committee on Taxation estimated that it could net $2.4 billion over the next 10
years.
But consumer advocates, including Ms. Olson, view the project with alarm,
fearing that aggressive collectors will push troubled people to the financial brink and
hound them for payments they cannot afford.
To consumer advocates, the call scripts seem to realize their fears. All of the
collection companies encourage taxpayers who may not be able to fully pay off their
tax bill, even through installments, to make a one-time voluntary payment. Three of
the agencies instruct debtors that “extra payments or higher payments can be
accepted at any time.”
That kind of “give us anything you can” approach is common among consumer
debt collectors, but the government has typically been more measured, weighing
what is owed against what the taxpayer can reasonably afford. When taxpayers
cannot pay their entire bill at once, the I.R.S.’s internal collectors are generally only
permitted to place them into installment plans that will fully resolve their debt.
The idea is that pushing taxpayers to the limit, while temporarily good for the
I.R.S., causes long-term strain on the government over all. No one wins, the theory
goes, when taxpayers wind up on public assistance from settling overdue tax bills.
The I.R.S. does not try to collect from people who make only enough to afford basic
living expenses like food, housing and transportation. (Only one collector,
Performant, had lines in its scripts about how to handle hardship cases. Those
accounts should be marked and returned to the I.R.S., Performant instructed its
employees.)
Low-income taxpayers make up most of the cases farmed out to the private
collectors, according to an analysis by Ms. Olson. After reviewing the first batch of
files the I.R.S. sent to outside collectors, her office found that nearly a quarter of the
accounts involved taxpayers with below-poverty level wages, and more than half
were taxpayers with incomes of less than 250 percent of the poverty level.
Ms. Olson said she was “deeply concerned” by collectors suggesting that
taxpayers borrow against their retirement savings, take out home loans or increase
their other debts to pay their taxes.
“The I.R.S. may suggest those things, but the I.R.S. is authorized to perform a
financial analysis of a taxpayer’s ability to pay, and it does not collect from taxpayers
where its financial analysis shows doing so would impose a financial hardship,” she
said by email.
Pioneer, a subsidiary of Navient, was effectively fired two years ago by the
Education Department from its contract to collect overdue student loan debt after
the agency determined that it gave borrowers inaccurate information about their
loans at “unacceptably high rates.” Pioneer was sued this year by the Consumer
Financial Protection Bureau, which said it “systematically misled” borrowers.
Navient is fighting the consumer bureau’s lawsuit and has denied any
wrongdoing. It declined to comment on its tax debt collection efforts, referring
questions to the I.R.S. The other three collectors did not respond to questions about
their call scripts.
For its part, the I.R.S. said that it supported its private collectors’ tactics.
The agency “encourages people to look into options for paying their tax debt,
including things such as installment agreements,” Ms. Barreda said in a written
response to questions about the call scripts. “How they pay is a personal choice.
Giving taxpayers ideas of possible borrowing sources to pay their tax liability is
consistent with fair debt collection practices as well as I.R.S. practice.”
But Ms. Warren and the three other Democratic senators who sent the letter on
Friday — Sherrod Brown of Ohio, Benjamin L. Cardin of Maryland and Jeff Merkley
of Oregon — took exception to these collections practices. They particularly criticized
the extended payment offers and the encouragement for debtors to send in “extra
payments,” both of which they said violated the I.R.S. code.
The law “allows collectors to ask only for a payment in full, or an installment
agreement providing for full payment over a maximum period of five years,” the
senators wrote. “When Congress required the I.R.S. to hire private debt collectors to
collect certain tax debts, it did so under strict provisions to ensure that taxpayers
were not put at risk during the collection process, but it appears that Pioneer is not
adhering to these protections.”
The I.R.S.’s last effort to outsource debt collection was deemed a failure by the
agency, which eliminated the program in 2009 and said that its internal staff could
handle the work more efficiently. The program wound up costing the federal
government millions more than it actually recouped from taxpayers.
The latest attempt stems from a 2015 provision, buried in a $305 billion
highway funding bill, that required the agency to outsource some of its collection.
President Trump’s Treasury secretary, Steven T. Mnuchin, said his department
would monitor the effort.
“In general, I am supportive of using outside firms on a contingency basis after
all other means have been used,” he said at a congressional hearing last week. “I
think it’s a balance between making sure the government collects money efficiently
and appropriately with making sure we don’t jeopardize taxpayers.”
© 2017 The New York Times Company. All rights reserved.
By STACY COWLEY
About 12 million people will get a lift in their credit scores next month as the
national credit reporting agencies wipe from their records two major sources of
negative information about borrowers: tax liens and civil judgments.
The change stems from a lengthy crusade by consumer advocates and
government officials to force the credit bureaus to improve the accuracy of their
reports, which are often speckled with errors and outdated information. Those
mistakes can limit borrowers’ access to credit cards, auto loans and mortgages, or
saddle them with higher borrowing costs.
Starting July 1, the three major credit reporting companies — Equifax, Experian
and TransUnion — will enforce stricter rules on the public records they collect,
requiring each citation to include the subject’s name, address and either their Social
Security number or date of birth. Nearly all civil judgments and at least half of the
nation’s tax lien records do not meet the new standards, and will be eliminated from
consumer credit reports.
The change will benefit borrowers with negative public records, but it will also
help thousands of people who have battled, often in vain, to have incorrect
information removed from their files.
“We’ve filed hundreds of lawsuits over this,” said Leonard Bennett, a consumer
lawyer in Alexandria, Va. “Comprehensively fixing it hasn’t been something the
industry has prioritized.”
That began to change two years ago, when a coalition of 31 state attorneys
general cracked down on the credit bureaus and negotiated a deal that required
sweeping changes to their practices. (New York’s attorney general had previously
reached a separate settlement with similar terms.) The credit bureaus have already
made some adjustments, like removing traffic tickets and court fines from their files,
but next month’s changes will have the broadest effects yet.
Around 7 percent of the 220 million people in the United States with credit
reports will have a judgment or lien stripped from their file, according to an analysis
by Fair Isaac, the company that supplies the formula that generates the credit scores
known as FICO.
Those people will see their scores rise, modestly. The typical increase will be 20
points or less, according to Fair Isaac’s analysis. (FICO scores range from 300 to
850. Higher is better; lenders generally prefer people with scores of 640 and above.)
The biggest beneficiaries, consumer advocates say, will be those who are spared
the frustration of trying to fix errors. False matches have been a common problem.
Without the kind of additional identifying information that will now be required, a
court record showing a judgment against Joe Smith can easily wind up on the wrong
Joe Smith’s credit report. (Last week, a California jury awarded $60 million to a
group of consumers who said TransUnion falsely flagged some of them as terrorists
and drug traffickers because it had mistaken them for others with similar names.)
Starting next month, the credit bureaus will also be required to update their
public records information at least once every 90 days.
That change pleases Brenda Walker, a Virginia resident with a pending lawsuit
against TransUnion over the company’s monthslong delay in amending her report to
show that a tax lien had been satisfied.
Ms. Walker said she had been turned down for credit cards, a car loan and a
student loan she tried to take out for her daughter’s education. “It wreaked havoc,”
she said. “My credit score was so damaged from something that had already been
paid and released.”
The flip side of the change, lenders warn, is that some borrowers may now
appear more creditworthy than they actually are.
“This removes information from the picture that our customers get about what a
borrower has done in the past,” said Francis Creighton, the chief executive of the
Consumer Data Industry Association, which represents credit reporting companies.
“If someone has a big bill that they owe, that’s something that should be part of the
conversation.”
But when the two largest credit scoring companies, Fair Isaac and
VantageScore, tested what happens when tax liens and civil judgments are removed,
both found that it did not meaningfully change the snapshot provided to lenders on
most borrowers.
More than 90 percent of people with a negative public record have other
negative information on their credit file, like late payments, according to FICO’s
analysis. VantageScore experimentally tweaked its model to focus on other data
points, like the number of credit cards a borrower has with high balances, and found
that the predictive value was almost identical.
“Not surprisingly, those with civil judgments and tax liens are likely to have lots
of other credit blemishes,” said Ethan Dornhelm, Fair Isaac’s principal scientist.
“These changes aren’t going to bring those people into the tiers where they’re going
to qualify for prime credit.”
As public records disappear from the big bureaus’ reports, other data providers
are eager to step in and fill the gap. LexisNexis Risk Solutions has for years gathered
public records information from about 3,000 jurisdictions around the country and
sold it to the credit bureaus. Now, with that business drying up, the company is
marketing its own Liens and Judgments Report to lenders.
Because LexisNexis is not a party to the credit bureaus’ settlement, it is still free
to sell that information, said Ankush Tewari, a senior director with LexisNexis Risk
Solutions. The company can accurately link people to their public records, even
without identifying information like a Social Security number, with an error rate of
around 1 percent, he said.
As the credit bureaus continue to work through the settlement terms, further
changes are coming. Starting in September, their reports will eliminate medical debt
collection accounts that are less than six months old, a change intended to reflect the
sometimes-lengthy process of sorting out health insurance reimbursements.
Also that month, all data furnishers — the companies that provide information
about consumers to the credit bureaus — will be required to include each individual’s
full name, address, birth date and Social Security number in their reports.
© 2017 The New York Times Company. All rights reserved.
Study finds domestic violence, ‘coerced debt’ often go together
The following is an excerpt from a post by GreenPath regarding an study about the tie between physical abuse and financial abuse, by Susan Ladika/CreditCards.comm 26 September 2012
Financial abuse and physical abuse are both abuse.
Abusers take control of their victims by saddling them with unwanted debt (credit cards, buying vehicles, houses or guarantying business loans). The victims believe the abuser is looking out for their best interests, when in truth the abuser is planning ways to make it harder for the victim to escape.
“Financial abuse pretty much goes hand in hand with domestic violence, and domestic violence is all about control,” says Persis Yu, an attorney with the National Consumer Law Center.
Victims of domestic violence also face financial abuse
Fight back against abusers (not intended to be gender specific).
Angela Littwin, an assistant professor in the School of Law at the University of Texas at Austin, has noted the link between domestic violence, bankruptcy and what she terms “coerced debt” — any nonconsensual, credit-related transactions that take place in a violent relationship.
In July 2012, she published an article in the California Law Review, “Coerced Debt: The Role of Consumer Credit in Domestic Violence.” Littwin calls coerced debt an unstudied area that is just now appearing on the radar screens of credit counselors, divorce lawyers and law enforcement. In an interview, she calls it “a tactic of abusers. It keeps people from being able to leave.” 
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About the Author:
Diane L. Drain is a well known and respected Arizona bankruptcy attorney. She is an expert in both consumer bankruptcy and Arizona foreclosure. Since 1985 she has been a dedicated advocate for her clients and spokesperson for Arizona citizens. Diane is a retired professor of law teaching bankruptcy for more than 20 years. As a teacher she believes in offering everyone, not just her clients, advice about the Arizona bankruptcy laws. She is also a mentor to hundreds of Arizona attorneys. 
I would be flattered if you connected with me on GOOGLE+
*From Diane: This article/blog is available for educational purposes only and does not provide specific legal advice. By using this information, you agree there is no attorney client relationship between you and me, and that this information should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state.*
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Supreme Court Knocks a Hole in the Fair Debt Collection Practices Act On June 12, 2017, the Supreme Court knocked a hole in consumers’ rights under the Fair Debt Collection Practices Act. Starting now, debt buyers, like Midland, Portfolio Recovery, and Cavalry are free of the regulations under the FDCPA. Here’s my list of the […]The post Supreme Court Knocks a Hole in the Fair Debt Collection Practices Act by Robert Weed appeared first on Robert Weed.
Supreme Court Knocks a Hole in the Fair Debt Collection Practices Act On June 12, 2017, the Supreme Court knocked a hole in consumers’ rights under the Fair Debt Collection Practices Act. Starting now, debt buyers, like Midland, Portfolio Recovery, and Cavalry are free of the regulations under the FDCPA. Here’s my list of the […]
Supreme Court Knocks a Hole in the Fair Debt Collection Practices Act On June 12, 2017, the Supreme Court knocked a hole in consumers’ rights under the Fair Debt Collection Practices Act. Starting now, debt buyers, like Midland, Portfolio Recovery, and Cavalry are free of the regulations under the FDCPA. Here’s my list of the […]
The post Supreme Court Knocks a Hole in the Fair Debt Collection Practices Act by Robert Weed appeared first on Robert Weed.
According to an article in USA Today “Wells Fargo faces new accusations that it tried to capitalize financially on its customers without their permission — this time by allegedly modifying mortgage terms for people who had filed for bankruptcy protection.
With the smoke still lingering from the firestorm that erupted from the bank’s opening of fake consumer accounts, Wells was hit with multiple lawsuits alleging that the bank surreptitiously extended loan lengths, potentially costing some homeowners tens of thousands of dollars.
”
On June 7, 2017 plaintiff attorneys alleged “illegal stealth modifications” of mortgage loans. The attorneys are seeking to establish a class action group in the bankruptcy court detailing actions taken by Wells Fargo in more than 100 bankruptcy cases.
Surprise – Wells Fargo “strongly denies the claims”.
In a separate article in the L.A. Times, Elizabeth Warren calls on Feds to use their powers to remove Wells Fargo board members over the earlier false accounts scandal.
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About the Author:
Diane L. Drain is a well known and respected Arizona bankruptcy attorney. She is an expert in both consumer bankruptcy and Arizona foreclosure. Since 1985 she has been a dedicated advocate for her clients and spokesperson for Arizona citizens. Diane is a retired professor of law teaching bankruptcy for more than 20 years. As a teacher she believes in offering everyone, not just her clients, advice about the Arizona bankruptcy laws. She is also a mentor to hundreds of Arizona attorneys.
I would be flattered if you connected with me on GOOGLE+
*From Diane: This article/blog is available for educational purposes only and does not provide specific legal advice. By using this information, you agree there is no attorney client relationship between you and me, and that this information should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state.*
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Deciding to file bankruptcy is a really personal decision. But there are a few red flags which probably mean it's a really good option. So if you're considering going into your retirement account and borrowing money to pay off unsecured debts like credit card debts and medical debts, that's a pretty good sign that it might be time to file bankruptcy. Look your retirement funds are earmarked for your retirement. They are 100 percent exempt in bankruptcy. So if we file a bankruptcy for you nobody can touch your retirement account. So why would we take the money out of your retirement account and pay off debts that are dischargeable in bankruptcy. It probably doesn't make sense.
The post Bankruptcy Attorney in Tucson, Arizona appeared first on Tucson Bankruptcy Attorney.
By Jessica Silver-Greenberg and Michael Corkery
More than a decade after Yvette Harris’s 1997 Mitsubishi was repossessed, she is still
paying off her car loan.
She has no choice. Her auto lender took her to court and won the right to seize a
portion of her income to cover her debt. The lender has so far been able to garnish
$4,133 from her paychecks — a drain that at one point forced Ms. Harris, a single
mother who lives in the Bronx, to go on public assistance to support her two sons.
“How am I still paying for a car I don’t have?” she asked.
For millions of Americans like Ms. Harris who have shaky credit and had to turn
to subprime auto loans with high interest rates and hefty fees to buy a car, there is no
getting out.
Many of these auto loans, it turns out, have a habit of haunting people long after
their cars have been repossessed.
The reason: Unable to recover the balance of the loans by repossessing and
reselling the cars, some subprime lenders are aggressively suing borrowers to collect
what remains — even 13 years later.
Ms. Harris’s predicament goes a long way toward explaining how lenders,
working hand in hand with auto dealers, have made billions of dollars extending
high-interest loans to Americans on the financial margins.
These are people desperate enough to take on thousands of dollars of debt at
interest rates as high as 24 percent for one simple reason: Without a car, they have
no way to get to work or to doctors.
With their low credit scores, buying or leasing a new car is not an option. And
when all the interest and fees of a subprime loan are added up, even a used car with
mechanical defects and many miles on the odometer can end up costing more than a
new car.
Subprime lenders are willing to take a chance on these risky borrowers because
when they default, the lenders can repossess their cars and persuade judges in 46
states to give them the power to seize borrowers’ paychecks to cover the balance of
the car loan.
Now, with defaults rising, federal banking regulators and economists are
worried how the strain of these loans will spill over into the broader economy.
For low-income Americans, the fallout could, in some ways, be worse than the
mortgage crisis.
With mortgages, people could turn in the keys to their house and walk away. But
with auto debt, there is increasingly no exit. Repossession, rather than being the end,
is just the beginning.
“Low-income earners are shackled to this debt,” said Shanna Tallarico, a
consumer lawyer with the New York Legal Assistance Group.
There are no national tallies of how many borrowers face the collection lawsuits,
known within the industry as deficiency cases. But state records show that the courts
are becoming flooded with such lawsuits.
For example, the large subprime lender Credit Acceptance has filed more than
17,000 lawsuits against borrowers in New York alone since 2010, court records
show. And debt buyers — companies that scoop up huge numbers of soured loans for
pennies on the dollar — bring their own cases, breathing new life into old bills.
Portfolio Recovery Associates, one of the nation’s largest debt buyers, purchased
about $30.2 million of auto deficiencies in the first quarter of this year, up from
$411,000 just a year earlier.
One of the people Credit Acceptance sued is Nagham Jawad, a refugee from
Iraq, who moved to Syracuse after her father was killed. Soon after settling into her
new home in 2009, Ms. Jawad took out a loan for $5,900 and bought a used car.
After only a few months on the road, the transmission on the 10-year-old Chevy
Tahoe gave out. The vehicle was in such bad shape that her lender didn’t bother to
repossess it when Ms. Jawad, 39, fell behind on payments.
“These are garbage cars sold at outrageous interest rates,” said her lawyer, Gary
J. Pieples, director of the consumer law clinic at the Syracuse University College of
Law.
The value of any car typically starts to decline the moment it leaves the dealer’s
lot. In the subprime market, however, the value of the cars is often beside the point.
A dealership in Queens refused to cancel Theresa Robinson’s loan of nearly
$8,000 and give her a refund for a car that broke down days after she drove it off the
lot.
Instead, Ms. Robinson, a Staten Island resident who is physically disabled and
was desperate for a car to get to her doctors’ appointments, was told to pick a
different car from the lot.
The second car she selected — a 2005 Chrysler Pacifica — eventually broke
down as well. Unable to afford the loan payments after sinking thousands of dollars
into repairs, Ms. Robinson defaulted.
Her subprime lender took her to court and won the right to garnish her income
from babysitting her grandson to cover her loan payments.
Ms. Robinson and her lawyer, Ms. Tallarico, are now fighting to get the
judgment overturned.
“Essentially, the dealers are not selling cars. They are selling bad loans,” said
Adam Taub, a lawyer in Detroit who has defended consumers in hundreds of these
cases.
Many lawyers assisting poor borrowers like Ms. Robinson say they learn about
the lawsuits only after a judge has issued a decision in favor of the lender.
Most borrowers can’t afford lawyers and don’t show up to court to challenge the
lawsuits. That means the collectors win many cases, transforming the debts into
judgments they can use to garnish wages.
The lenders argue that they are just recouping through the courts what they are
legally owed. They also argue that subprime auto lending meets an important need.
And collecting on the debt is a critical part of the business. The first item on the
quarterly earnings of Credit Acceptance, the large subprime auto lender, is not the
amount of loans it makes, but what it expects to collect on the debt.
The company, for example, expects a 72 percent collection rate on loans made in
2014 — the year that a used 2009 Volkswagen Tiguan was repossessed from Nina
Lysloff of Ypsilanti, Mich.
With all the interest and fees on her Credit Acceptance loan factored in, the car
ended up costing her $28,383. Ms. Lysloff could have bought a brand-new
Volkswagen Tiguan for $22,149, according to Kelley Blue Book.
When Ms. Lysloff fell behind, the trade-in value on the car was a fraction of
what she still owed. Last year, Credit Acceptance sued her for $15,755.
The strategy at Credit Acceptance, which has a market value of $4.4 billion, is
yielding big profits. The Michigan company said its return on equity, a measure of
profitability, was 31 percent last year — more than four times Bank of America’s
return.
Credit Acceptance did not respond to requests for comment.
Some of the people who got subprime loans lacked enough income to qualify for
any loan.
U.S. Bank is pursuing Tara Pearson for the $9,339 left after her 2011 Hyundai
Accent was stolen and she could not pay the fee to get it from the impound lot. When
she purchased the car in 2015 at a dealership in Winchester, Ky., Ms. Pearson said,
she explained that her only income was about $722 from Social Security.
Her loan application listed things differently. Her employer was identified as
“S.S.I.,” and her income was put at $2,750, court records show.
Citing continuing litigation, U.S. Bank declined to comment about Ms. Pearson.
Auto lending was one of the few types of credit that did not dry up during the
financial crisis. It now stands at more than $1.1 trillion.
Despite many signs that the market is overheating, securities tied to the loans
are so profitable — yielding twice as much as certain Treasury securities — that they
remain a sought-after investment on Wall Street.
“The dog keeps eating until its stomach explodes,” said Daniel Zwirn, who runs
Arena, a hedge fund that has avoided subprime auto investments.
Some lenders are pulling back from making new loans. Subprime auto lending
reached a 10-year low in the first quarter. But for those borrowers already stuck with
debt, there is no end in sight.
Ms. Harris, the single mother from the Bronx, said that even after her wages had
been garnished and she paid an additional $2,743 on her own, her lender was still
seeking to collect about $6,500.
“It’s been a nightmare,” she said.
Copyright 2017 The New York Times Company. All rights reserved.
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