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Most people having financial problems choose to file a petition in bankruptcy court. Bankruptcy attorneys get numerous calls and inquiries on such, particularly on related pros and cons.
The fact that rebuilding credit after bankruptcy can be difficult is indeed a down-side for some, but the bankruptcy filing in one’s credit report can be countered. Credit scores will improve and you will eventually be able to get credit. Furthermore, this minor disadvantage is worth the chance to pay back a creditor or even wipe out debts and have a fresh start at life.
Consumer bankruptcy (in contrast to business bankruptcy) are generally for those with medical debts or credit card debts. Note that each bankruptcy case is unique, and knowledge of the bankruptcy procedure is key to make the most out of your petition.
Bankruptcy laws can be quite perplexing. As would be explained by your bankruptcy attorney, the different types of bankruptcy work best in different circumstances. A Chapter 7 petition for bankruptcy is often best for a filer who wishes to have the unsecured debt discharged. A bankruptcy discharge is the court order that will essentially forgive or wipe out various types of debt. This is one of the main advantages of liquidation bankruptcy cases.
Filing Chapter 7 could indeed be a good debt-relief option if your priorities include discharging your credit card debt, medical bills, and other unsecured debts. Take note, however, that not everyone can file bankruptcy and work on debt-settlement under this chapter.
A major concern for those wishing to file for Bankruptcy Chapter 7 is the fact that it can be difficult for a debtor to qualify for such. Part of the bankruptcy process is a means test that looks into an individual’s monthly income, living expenses, and capacity to repay outstanding debts
The bankruptcy means test looks into the monthly income of the debtor, which must be below the state median income. Otherwise, following the bankruptcy code, his or her total expenditure will be subtracted to get the value of “disposable income” that could be used in paying off creditors and lenders.
One disadvantage of Chapter 7 bankruptcy proceedings is the fact the trustee will liquidate non-exempt assets. While the list of exemptions can cover a lot, some bankrupt individuals who do not pass the means test or who wish to keep certain personal property opt for restructuring instead. Filing for bankruptcy under Chapter 13 would enable the filer to restructure whatever he or she owed and pay back most of it through a payment plan.
Essentially, if you file for bankruptcy under Chapter 13, you can stop foreclosure and repossession but would have to pay back what is owed in three to five years.
Bankruptcy law is strict. The first steps one must take when filing for bankruptcy include undergoing bankruptcy counseling, taking the means test, and contacting a reliable bankruptcy law firm.
For assistance on how to file or fill out paperwork and supporting documents for the bankruptcy court, give us a call. Contact Northwest Debt Relief Law Firm to consult with an experienced bankruptcy lawyer.
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The post Declaring Bankruptcy Chapter 7: Discharged Debt and the Means Test appeared first on Vancouver Bankruptcy Attorney | Northwest Debt Relief Law Firm.
“Five Stars is Not Enough. ” T.D.
It would be difficult to fully describe how effective and talented Diane is. She took my exceptionally (some would say ridiculously) complex case and made sense of it. I’d had a very negative experience with my former counsel and from Day One the difference of working with her and Jay was like night and day. There’s a reason she is so well regarded and respected in the field and you couldn’t make a better selection for your representation. T.D.
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The controversial use of bifurcated attorney fees in Nebraska chapter 7 cases has reached critical mass. We can expect US Trustee complaints to be filed against attorneys using BK Billing and Fresh Start Funding in the near future.
Under a bifurcated fee arrangement, the bankruptcy attorney charges a small amount down to file an incomplete bankruptcy petition. A few days later a second fee agreement is signed to to prepare the remaining schedules which allows the attorney to accept monthly payments.
In theory, this fee arrangement makes filing Chapter 7 more affordable, but the reality is that debtors pay substantially more, and the United States Trustee’s Office believes the practice is abusive.
The Big Lie in Bifurcated Fee Arrangements.
The basic problem with bifurcated fee arrangements is that too little is paid to file a case. Bifurcation attorneys say that hardly any service is provided in the first stage so little must be paid. Nothing more than the name of the debtor and a list of creditors is prepared. And that is the big lie.
In truth, a lot of work MUST be performed in Stage One of the bifurcated case. It’s more than just stating a debtor’s name and list of creditors.
- The Chapter 7 attorney has a legal duty to determine if any of the debtor’s property is unprotected BEFORE the case is filed. That requires a careful review of a property list.
- The attorney must verify if the debtor’s income is sufficiently low to qualify for chapter 7, and that requires a review of tax returns, bank statements and paycheck stubs.
- The attorney must look for avoidable preferences payments to creditors or family members.
- Credit Reports and background checks are carefully reviewed.
To claim that only a list of creditors is prepared is simply a lie. And the truth is that bifurcation attorneys ARE performing these chores prior to filing the case. They are not fools. They are investigating the case to identify non-exempt property that could be seized by the Chapter 7 Trustee. Work is being performed, a lot of it.
So how does the attorney get paid for these services when the case is filed for no money down? Here lies the issue. The attorneys are collecting those fees in Stage Two after the case is filed, and that is a violation of the bankruptcy stay which bars the collection of pre-petition debts.
Inflated Fees in Stage Two.
Attorneys claim that bifurcation cases are more difficult since they require one appointment to sign the petition and another appointment to complete the schedules. Additional work is required to collect monthly fees and that justifies the higher fees.
But many bifurcation arrangements call for Stage Two fees that are higher than the entire fee charged in a traditional case. For example, one Nebraska attorney charges $170 down to file a case and then $1,930 in stage two. However this same attorney only charges $1,400 to file a traditional case. Is this attorney really performing $1,930 of services in stage two or is he improperly collecting stage-one services with stage-two payments?
Reforming the Bifurcation Process.
An ethical application of a bifurcated fee arrangement involves the following principles:
- Limit the process to lower-income debtors who clearly qualify for chapter 7.
- Do not file a bifurcated case unless a garnishment is imminent.
- Charge sufficient fees in stage one to pay all court fees, credit reports, and reasonable attorney fees.
- The more difficult the case, the more the attorney should charge in stage one.
- Avoid filing complex cases with bifurcated fees.
- Keep the total cost of a bifurcated case at no more than 25% over the cost of a traditional case.
- Avoid the appearance of collecting fees in stage two for services performed in stage one.
- Ensure that debtors can afford the amount of the monthly post-petition fee and report that payment on the bankruptcy schedules.
Image courtesy of Flickr and Stewart Black.
Every client deserves competent advice in order to plan their life, but they also need to be able to avoid unforeseen results. They also deserve to be treated with respect and compassion by everyone involved in the bankruptcy process.
Helping a client protect important assets before filing bankruptcy has always been seen as appropriate “pre-bankruptcy planning. To quote Ret. Bankruptcy Judge Sarah Curley “it is malpractice not to provide competent pre-bankruptcy counsel”.
A good friend of mine, Larry Karandreas, said “are we at a time that good advice = bad faith?”. This is a warning to all consumer debtor attorneys and their clients. The adage refers to the reality that the consumer bankruptcy world is changing. Reduced bankruptcy filings result in the bankruptcy trustees, their attorneys and the US Trustee’s Office having more time to spend nit-picking every bankruptcy case filed. What was good solid good faith pre-bankruptcy planning yesterday may result in a bankruptcy action alleging “bad faith” today.
When a bankruptcy case is filed a panel trustee is selected (by a computer, unless there is only one trustee in that county) to “over-see” that case.
The trustee’s job is to their best to make sure the debtor is being honest and to maximize the return of funds to the creditors. As with all groups of humans, some of the group are fair and balanced in their interpretation of their job, others not so much. If there is a predisposition for a trustee, or their attorney, to assuming that anyone who files for bankruptcy is a bad person, then that clouds how that trustee, or their attorney, treats honest debtors assigned to their oversight. There are trustee guidelines, but those guidelines are not equally followed by all trustees. Arizona has some great trustees, and their attorneys, who treat honest debtors with respect and compassion. Unfortunately, there are other trustees, and their attorneys, who treat honest debtors very differently. At the end an honest debtor has a different result depending on which trustee, or trustee attorney, is assigned to their case. But, the experienced debtor’s attorney is well aware to that significant difference and can help the debtor plan.
What are the Qualifications to be a Panel Trustee?
From the Handbook for Chapter 7 Trustees (page 2-1):
QUALIFICATIONS FOR PANEL MEMBERSHIP
The minimum qualifications for membership on the panel are set forth in 28 C.F.R § 58.3(b).
The panel member must:
1. Possess integrity and good moral character.
2. Be physically and mentally able to satisfactorily perform a trustee’s duties.
3. Be courteous and accessible to all parties with reasonable inquiries or comments about a case for which such individual is serving as private trustee.
4. Be free of prejudices against an individual, entity, or group of individuals or entities which would interfere with unbiased performance of a trustee’s duties.
5. Not be related by affinity or consanguinity within the degree of first cousin to any employee of the Executive Office for United States Trustees of the Department of Justice, or to any employee of the Office of the United States Trustee for the district in which he or she is applying.
Below are links to these and other documents:
- Handbooks and Reference Materials for Chapter 7 Trustees,
- Chapter 7 Trustees Play Important Role in Enforcement Against Bankruptcy Crimes
- The US Trustee’s Guidance to Chapter 7 trustee’s use of short sales.
- Update to Handbook for Chapter 7 Trustees
LT Clifford White, Director of US TE re burdensome document requests (5 downloads)
How are the bankruptcy estate funds used?
The funds are paid first to the trustee, then to the trustee’s attorney and, lastly, to the creditors. The trustee is paid 25% of the first $5,000 collected, with a sliding scale from there. The trustee’s attorney (if any) is usually paid all of their fees and costs. How about the creditors? Once the trustee and their attorney are paid, the balance is distributed to creditors (in a pro rata fashion, depending on the type of debt). In some chapter 7 cases there is very little left to pay to the creditors.
Now don’t get me wrong, I believe that everyone, especially the hardworking panel trustees should get paid a decent wage (see link below to the US Trustees’ report of those fees). Currently a panel trustee is paid a menial fee $60 for a huge amount of work. Which is ridiculous and should be increased significantly, but when you look at the Professional Fee Report you will see a significant difference between the annual fee paid to some trustees and their attorneys ($120,000 compared to $1,000,000).
TIMING IS EVERYTHING
Unlike the majority of other states, Arizona law, as of this writing, does not protect tax refunds (including child care credit) from seizure by a bankruptcy trustee. It is only after filing the bankruptcy that the desperate person looking for protection from their creditors, finds out that the trustee is going to take a portion, if not all, of their tax refunds. Had that person talked to a good bankruptcy attorney before filing the case, they would have learned about this problem and been able to make an informed decision when, or if, to file for bankruptcy protection.
How much are the chapter 7 trustees and their attorneys paid?
See – Link to Professional Fee Report from 2012
How Can I Help You?MUSINGS FROM DIANE:
The point of this blog? A good bankruptcy attorney is supposed to give their clients good legal and practical advice. Unfortunately, even if they give good advice and the client correctly follows that advice, bad things may happen. Filing bankruptcy needs to be done carefully and with lots of forethought. Some of the stakeholders in any bureaucracy are easier to deal with than others, After all, we are all humans. I don’t have the answer to this problem, other than to stand up to those who are over-reaching and force them into court. We can only hope the judge will see what is really happening and send a message to the trustee and their attorneys. Only time will tell.
Update – February, 2021 several of the chapter 7 trustees filed complaints with the State Bar of Arizona because of the things I said in this website. These complaints were immediately dismissed by the State Bar. One of their complaints is that in this post I used some rather stirring pictures and words. Such as “blackmail” and pictures of a man with a gun to his head or a woman being strangled. Note – this post was written five years ago. But, given the current political atmosphere (Trump and the horrific attack on the US Capital and Congress) I agreed that those pictures were not the best for the current times and removed them. Most likely this attack by the trustees was prompted because I was a signor on a letter to Clifford J. White, III, Director of the US Trustees Program, which pointed out to Mr. White that some Arizona panel trustees were making extremely burdensome document requests of every debtor, not just the few debtors who should produce more extensive documents. This letter came from the National Association of Consumer Bankruptcy Attorneys, National Consumer Law Center and Arizona Consumer Bankruptcy Counsel (I am the founding co-Executive Director).
LT Clifford White, Director of US TE re burdensome document requests (5 downloads)
We have several videos on this site. Such as the following:
- “The Chapter 7 Process”
- “The Chapter 13 Process”
- “Arizona Exemptions”
The post Is Pre-bankruptcy Planning Good Advice at the Time, but Bad Faith Later?” appeared first on Diane L. Drain - Phoenix Arizona Bankruptcy Attorney.
Every client deserves competent advice in order to plan their lives, but they also need to be able to avoid unforeseen results.
Helping a client protect important assets before filing bankruptcy has always been seen as appropriate “pre-bankruptcy planning. To quote Ret. Bankruptcy Judge Sarah Curley “it is malpractice not to provide competent pre-bankruptcy counsel”.
A good friend of mine, Larry Karandreas, said “are we at a time that good advice = bad faith?”. This is a warning to all consumer debtor attorneys and their clients. The adage refers to the reality that the consumer bankruptcy world is changing. Reduced bankruptcy filings result in the bankruptcy trustees, their attorneys and the US Trustee’s Office having more time to spend nit-picking every bankruptcy case filed. What was good solid good faith pre-bankruptcy planning yesterday may result in a bankruptcy action alleging “bad faith” today.
When a bankruptcy case is filed a trustee is selected (usually by a computer) to “over-see” that case.
The trustee’s job is to maximize the return of funds to the creditors. There are trustee guidelines, but those can be open to interpretation. If the debtor has repaid family, has a tax refund, transferred property the trustee may elect to pursue those funds, for the “bankruptcy estate”.
How are the bankruptcy estate funds used?
The funds are paid first to the trustee, then to the trustee’s attorney and, lastly, to the creditors. The trustee is paid 25% of the first $5,000 collected, with a sliding scale from there. The trustee’s attorney (if any) is usually paid all of their fees and costs. How about the creditors? Once the trustee and their attorney is paid, the balance is distributed to creditors (in a pro rata fashion, depending on the type of debt). In many chapter 7 cases there is very little left to pay to the creditors.
How much are the trustees and their attorneys paid?
See – Link to Professional Fee Report
How Can I Help You?MUSINGS FROM DIANE:
The point of this blog? A good bankruptcy attorney is supposed to give their clients good legal and practical advice. Unfortunately, even if they give good advice and the client correctly follows that advice, bad things may happen. Filing bankruptcy needs to be done carefully and with lots of forethought. Some of the stakeholders in any bureaucracy as easier to deal with than others, After all, we are all humans. I don’t have the answer to this problem, other than to stand up to those who are over-reaching and force them into court. We can only hope the judge will see what is really happening and send a message to the trustee and their attorneys. Only time will tell.
We have several videos on this site. Such as the following:
- “The Chapter 7 Process”
- “The Chapter 13 Process”
- “Arizona Exemptions”
The post Is Pre-bankruptcy Planning Good Advice at the Time, but Bad Faith Later?” appeared first on Diane L. Drain - Phoenix Arizona Bankruptcy Attorney.
Will you lose your COVID-19 stimulus money if you file for bankruptcy protection?
Simple answer is no. Read below.
“Recovery rebates” (“stimulus monies”) received as a result of either the CARES Act or CAA are NOT PROPERTY OF THE BANKRUPTCY ESTATE. Which, in simple English, means the person receiving the funds does not have to give the funds to the bankruptcy trustee.
Title X, Section 1001, of the Consolidated Appropriations Act of 2021 (CAA) contains the bankruptcy relief provisions. The Act include a temporary revision to the “property of the estate” definition under Bankruptcy Code Section 541 to exclude certain federal COVID relief payments. Effective date of this Act is December 27, 2020.
See below:
TITLE X—BANKRUPTCY RELIEF SEC. 1001. BANKRUPTCY RELIEF.
(a) PROPERTY OF THE ESTATE.—
(1) IN GENERAL.—Section 541(b) of title 11, United States
Code, is amended—
(A) in paragraph (9), in the matter following subparagraph (B), by striking ‘‘or’’;
(B) in paragraph (10)(C), by striking the period at
the end and inserting ‘‘; or’’; and
(C) by inserting after paragraph (10) the following:
‘‘(11) recovery rebates made under section 6428 of the Internal Revenue Code of 1986.’’.
(2) SUNSET.—Effective on the date that is 1 year after the date of enactment of this Act, section 541(b) of title 11, United States Code, is amended—
(A) in paragraph (9), in the matter following subparagraph (B), by adding ‘‘or’’ at the end;
(B) in paragraph (10)(C), by striking ‘‘; or’’ and inserting a period; and 2036(C) by striking paragraph (11).
.fusion-body .fusion-builder-column-1{width:100% !important;margin-top : 0px;margin-bottom : 0px;}.fusion-builder-column-1 > .fusion-column-wrapper {padding-top : 0px !important;padding-right : 0px !important;margin-right : 1.92%;padding-bottom : 0px !important;padding-left : 0px !important;margin-left : 1.92%;}@media only screen and (max-width:980px) {.fusion-body .fusion-builder-column-1{width:100% !important;}.fusion-builder-column-1 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-1{width:100% !important;}.fusion-builder-column-1 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:980px) {.fusion-title.fusion-title-1{margin-top:15px!important;margin-bottom:0px!important;}}@media only screen and (max-width:640px) {.fusion-title.fusion-title-1{margin-top:10px!important;margin-bottom:10px!important;}}MUSINGS BY DIANE:
Law is a complicated set of rules and procedures – many unwritten. It amazes me how many people do not ask for guidance when they are faced with crippling debt. They live in fear every day and their family is in that same hell. There are resources to help everyone learn how to handle their money.
When something bad happens, like health issues, unemployment, death or divorce, it is time to ask for advice from those who care about your welfare and future. The Internet is seen as the source for all answers. Want to learn how to knit? Go to YouTube for some great videos. Want to learn if someone can take your wages? Go to an experienced bankruptcy attorney who cares about you and your future. Be very careful about asking those who are just out to take your money (yes, even some attorneys – several bad Arizona attorneys are discussed in my website).
@media only screen and (max-width:980px) {.fusion-title.fusion-title-2{margin-top:0px!important;margin-bottom:6px!important;}}@media only screen and (max-width:640px) {.fusion-title.fusion-title-2{margin-top:10px!important;margin-bottom:10px!important;}}– Diane L. Drain.fusion-body .fusion-builder-column-2{width:100% !important;margin-top : 0px;margin-bottom : 0px;}.fusion-builder-column-2 > .fusion-column-wrapper {padding-top : 0px !important;padding-right : 30px !important;margin-right : 1.92%;padding-bottom : 0px !important;padding-left : 45px !important;margin-left : 1.92%;}@media only screen and (max-width:980px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}.fusion-body .fusion-flex-container.fusion-builder-row-2{ padding-top : 0px;margin-top : 0px;padding-right : 0px;padding-bottom : 0px;margin-bottom : 0px;padding-left : 0px;}.fusion-button.button-1 {border-radius:10px;}.fusion-button.button-1.button-3d{-webkit-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);-moz-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);}.button-1.button-3d:active{-webkit-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);-moz-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);}Click here for steps to your free bankruptcy consultation
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“Diane and Jay were able to ease our fears. ” J.L.
Diane and Jay were the absolute best. Going through the bankruptcy process can be quite worrisome. Diane and Jay were able to ease our fears and made the process as smooth as possible. J.L.
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People who file bankruptcy sleep better. Ninety four percent of people surveyed said they slept better after filing bankruptcy. That’s the result of a 2019-2020 study taken through SurveyMonkey.com of former clients who filed bankruptcy with us three or four years before. One hundred four people participated in the survey. Getting good sleep […]
The post File Bankruptcy and Sleep Better by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.
People who file bankruptcy sleep better. Ninety four percent of people surveyed said they slept better after filing bankruptcy. That’s the result of a 2019-2020 study taken through SurveyMonkey.com of former clients who filed bankruptcy with us three or four years before. One hundred four people participated in the survey. Getting good sleep […]
The post File Bankruptcy and Sleep Better by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.
People who file bankruptcy sleep better. Ninety four percent of people surveyed said they slept better after filing bankruptcy. That’s the result of a 2019-2020 study taken through SurveyMonkey.com of former clients who filed bankruptcy with us three or four years before. One hundred four people participated in the survey. Getting good sleep […]
The post File Bankruptcy and Sleep Better by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.
Updated daily, this blog will keep you informed on the latest bankruptcy news! 
Learn more about how Bankruptcy works and what you need to know.