Archive for the ‘General consumer bankruptcy info’ Category

Georgia Personal Bankruptcy Filings Continue to Increase

Friday, January 22nd, 2010

According to a recent article regarding Georgia bankruptcy published in the Atlanta Journal Constitution, it is nothing new that Georgia has one of the highest bankruptcy rates in the nation. What is new, suggests the AJC article, is who is filing: large numbers of people who have not previously had problems with financial instability.

With unemployment exceeding 10 percent, a real estate market in shambles, and many laws in place which support creditors, Georgia has had one of the highest bankruptcy rates for years. In 2009, and even here in early 2010, the numbers of people in Georgia filing personal bankruptcy continue to increase. These increasing numbers are partially the result of the large numbers of filers who are experiencing financial instability for the first time.

Richard Thomson, a partner at the Atlanta-based bankruptcy law firm Clark & Washington, said his firm is taking on an increasing number of higher-income professionals as clients. These higher-income filers simply can’t pay for all of their assets and possessions – boats, expensive cars, etc. As a result, they are filing bankruptcy as a means to start over, and their possessions are often given up as part of the process. According to Thomson, “They’re just saying ‘Take it. It’s not worth the effort anymore. I can’t keep up with it.”

Susan Blum and I are seeing the same trends here at Ginsberg Law Offices.   While our firm has regularly handled cases for formerly high earners and individuals with substantial assets, we are seeing more and more people who start our meetings by saying "I never in a million years thought I would ever end up talking to a bankruptcy lawyer…."   In many cases, clients who had previously enjoyed a comfortable lifestyle wait until disaster is about to strike before calling our office, perhaps in the expectation that their situations will improve.  And more and more of these clients are turning to a Chapter 7 liquidation rather than a Chapter 13 reorganization.

More Chapter 7 Cases Being Filed

According to the National Bankruptcy Research Center, over half of Georgians filing between January and November 2009 filed Chapter 7 Bankruptcy. In a Chapter 7, most debts are wiped out, but so are assets that aren’t protected by exemptions – second cars or vacation homes, for example. 47 percent filed Chapter 13 Bankruptcy, which allows consumers to hold on to a house and car but requires that they repay a portion of their debts generally over a five year period. A Chapter 13 is more or less a reorganization of debt.

These percentages are new for Georgia, which traditionally has been dominated by Chapter 13 filings, as debtors were most concerned about holding onto a house and accumulated equity. Currently, many homeowners have little equity or owe more than their houses are worth, which may be one reason for the spike in Chapter 7 filings.

According to Consumer Credit Counseling Service of Greater Atlanta, one in five consumers receiving recent pre-bankruptcy counseling said avoiding foreclosure was the primary reason for seeking bankruptcy protection. Georgia’s foreclosure process is the fastest in the nation, as it occurs without court or government supervision and takes only a week. A bankruptcy filing is the only realistic option for most Georgians seeking to delay a public auction of their homes.

I (Jonathan) have been representing individuals in Chapter 7 and Chapter 13 cases for over 20 years and I can only remember two or three times when the demand for our services was so high.  The Congressional Budget Office says that the recession is over but I am not seeing any indication that this is true.

Giant Debt Collector Law Firm Mann, Bracken Out of Business

Sunday, January 17th, 2010

A number of stories have recently appeared in bankruptcy and consumer rights blogs suggesting that the Atlanta based collection firm Mann, Bracken, LLC has gone out of business.   On his Caveat Emptor blog, Minnesota bankruptcy attorney Sam Glover has written several posts about the Mann, Bracken firm including one on December 22, 2009 stating that the calls to the firm's phone number instructs callers to communicate directly with their creditors.   I called several numbers listed for Mann, Bracken but the calls were answered by a message that "all circuits are busy, try your call again later."

Although based in Atlanta, Mann, Bracken has a national practice and it has apparently been growing by merging with other law firms.   I found a web site called paymbw.com which purports to be a payment gateway for debtors to make electronic check or credit card payments on debts being handled by Mann, Bracken.  This site notes that Mann, Bracken is the successor by merger to Wolpoff & Abramson L.L.P., and Eskanos & Adler P.C., two collection law firms well known to debtor's lawyers.

The domain mbllc.com has a "coming soon" page and the registration information for that domain is private.   I looked up the contact information for the partners.  Douglas Mann's shows him as an inactive lawyer affiliated with Mann, Bracken.  Chris Bracken's registration shows a gmail.com email address, a business address at Mann, Bracken's location, but the space for the law firm information is blank.  Two other partners – Bill Layng and Steve Knezo – are now affiliated with other law firms.

Atlanta TV station WSB sent a crew to the Mann, Bracken offices and found deserted premises along with handwritten placards stating that the firm has closed down.  According to WSB, Mann, Bracken was associated with a large debt collector called Axiant, which is now in Chapter 7.

Based on all the information I can gather, the law firm of Mann, Bracken is no more.  However the demise of this firm does not mean that debts owed to clients of Mann, Bracken or Axiant are no longer collectible.   Apparently another large debt buyer/collector, NCO, has purchased or is about to purchase Axiant's accounts.

If you had a deal with Mann, Bracken to settle your debt, you may find that the underlying creditor or a subsequent collection agency may not honor your deal – so hold on to any paperwork you may have.  As attorney Glover notes on his blog, you should contact your creditor directly if you have previously been dealing with Mann, Bracken.

Free Tool to Calculate Your Median Income for Bankruptcy Purposes

Saturday, January 9th, 2010

median income test calculatorAs you probably know, your eligibility for bankruptcy protection is determined in part by your household income.  The Bankruptcy Code requires us to calculate your median income by looking at gross income earned by you, your spouse and any other working member of your household during the 6 months preceding the current month.  We add up all the income and divide by 6 to arrive at a number.  We then compare than number to a median income table provided to us by the Census Bureau and the United States Trustee's office.  This calculation is called the "median income test."

If you are over median, then a presumption of abuse arises as to your eligibility for Chapter 7 and we must proceed to perform additional calculations (these additional calculations are called the "means test.").

The addition of the median income and the means test to the consumer bankruptcy process has made bankruptcy a lot more complicated both for lawyers and for individuals.  I know several lawyers here in the Atlanta area who used to handle bankruptcy cases, but no longer do so because of the complexity of the median income/means test process.  I personally think it is absurd that bankruptcy has become so complicated that a reasonably intelligent person would have almost no chance at figuring out the calculations.  If there was ever a reason to avoid non-lawyer "petition perparers" this would be it.

Click on the link to see the current median income table for Georgia.

In any case, I did find an online tool that will allow you to calculate your median income.   If you are so inclined, you can download this tool as an iPhone app!  While obviously not a substitute for legal advice, this tool, created by a Massachusetts bankruptcy law firm, may help you get a sense of where you stand in terms of Chapter 7 eligibility.

Use Online Access Keep Track of the Disbursements in Your Chapter 13 Case

Friday, December 18th, 2009

Once you file a Chapter 13 bankruptcy and begin contributing monthly to the payment plan, you may wonder where your money is going, who’s being paid and how much money you still owe until you get your Chapter 13 discharge. As a Chapter 13 debtor, you can have access to much of the same information that the Trustee and your attorney have.

The National Data Center allows Chapter 13 debtors to access their case at no charge through its website: www.13datacenter.com. In order to view your case on-line, you must first register for a user name and password. Just go to the www.13datacenter.com website and locate the box that asks for User Name and Password. If you are a new user, click the link “New Debtor Access – CLICK HERE” to register for a user name and password.

Access key on a laptop

Step 1: You will be asked a series of questions to verify your identity. Make sure to enter your name exactly as it appears on your petition, your social security number and your case number.

Step 2: Once you’ve entered all information requested in the first screen, you will be taken to the second screen. Select one of the creditor names listed, which must also be one of the creditors included in your Chapter 13 petition. Select your correct mailing address (NOT the address of the creditor). Finally, select the name of the Trustee that has been assigned to your case.

Step 3: Once the second screen is submitted, you’ll be taken to the third screen. Here you will be able to choose your own username and password, as well as enter your email address.

Once you’ve completed Steps 1 – 3 of the registration process, you will receive an email with your username/password and will be automatically re-directed to the National Data Center homepage. Log-in using your username and password and freely navigate the National Data Center website to view your case on-line and keep tabs on where the money is going.

Post by Susan Blum.

Has “Financial Repression” Stopped You from Filing Bankruptcy?

Tuesday, December 15th, 2009

paperworkpileEditors note:  In this compelling guest post, Charleston bankruptcy lawyer Russ DeMott describes what he calls "financial repression" – the tendency of honest, hardworking men and women to delay or forego bankruptcy protection because of the administrative and expense burdens added to the bankruptcy filing process by the 2005 BAPCPA changes to the bankruptcy laws.

When you meet with your bankruptcy lawyer, you’ll be given a lot of information.  You’ll also be given many tasks to complete before you file your bankruptcy case.

Our new bankruptcy law, BAPCPA (Bankruptcy Abuse Prevention and Consumer Protection Act), created a tremendous amount of busy work for debtors.  You must complete a credit counseling session prior to filing your case, you must provide the trustee with the last tax return you filed, and you must give your bankruptcy lawyer six months’ worth of pay stubs, just to get started.  There’s lots of work to be done.

Debtors are already stressed out when they come to their lawyer’s office.  The law is often confusing.  There are many new terms thrown around: CMI, DMI, discharge, First Meeting of Creditors, 341, 362, median income, means test, trustee, and on and on.  Even if they have a lawyer who explains things well, there’s a large amount of new information to absorb.

On top of all this, they must provide their lawyer with numerous documents.  Some of these are easily accessible; some are not.

In my Charleston, South Carolina bankruptcy practice, I have noticed that many clients seem worn down by this process.  We regularly check on open files to notify the clients of the information we need to file their cases.  Sometimes they respond, but sometimes they don’t.  It’s as if they believe that if they ignore the financial mess they are in, the problems will magically disappear.  They won’t, of course.  In fact, they’ll continue to get worse.

I call this financial repression.  Like any other repression, it delays a resolution.  Whatever the problem is, it doesn’t get solved.

I know financial problems are stressful.  And I also know clients feel overwhelmed and beaten down.  To be honest, I hate asking my clients for many of the documents I have to request.  Much of the information is, as my high school history teacher would say, merely academic.  I need the information to fill in a spot on a form, even though it’s really not relevant to their financial situation.

russdemottBut I didn’t make these rules.  And your bankruptcy lawyer didn’t, either.  Think of the process as just a bunch of hoops you must jump through.  The Credit Industrial Complex, as one of my colleagues calls it, wrote much of our bankruptcy law.  The goal of the new law—or at least one of its primary consequences— was to make the process expensive and miserably labor-intensive.  But if you allow yourself to repress your financial problems, you will be letting your creditors win.

Roll up your sleeves, start digging for those documents, and give your lawyer what he or she asks for.  The sooner you do that, the closer you are to getting the fresh start you need and deserve.

About Russ DeMott:  Russell A. DeMott is a bankruptcy lawyer representing clients in Chapter 7 and Chapter 13 bankruptcy cases.  He practices in Charleston, South Carolina.

BAPCPA at 4 Years – Has It Solved Anything?

Monday, December 14th, 2009

paperworkI have been representing debtors in bankruptcy cases filed in the Northern District of Georgia for over 20 years. Until the law changed in 2005, filing bankruptcy was a fairly straightforward process – often I would meet with a client, decide whether to file and select Chapter 7 or Chapter 13, collect information about creditors, develop a budget, then file that day.

Attorney's fees and filing fees in those days were relatively low and relatively hassle free. Most Chapter 7 cases processed through to discharge, and Chapter 13 cases worked as long as the debtor remained employed and committed to making his case work.

Fast forward to October, 2005 – the time that the BAPCPA amendment to the Bankruptcy Code went into effect. The system became significantly more complicated. Clients were expected to gather page after page of documents, lawyers were charged with performing extensive budget calculations (the median income and means test).

Fees went up because both the attorney's liability and the amount of work required increased greatly. And what is the end result? Many people with limited income and no hope of paying it back are filing Chapter 7. Others who would have fit into Chapter 7 sometimes do not qualify immediately and end up having to delay their filing for a few months. Folks with some capacity to pay end up in Chapter 13, but trustees are more demanding and Chapter 13 plans that would have worked under the old law do not always work now.

Honest, hardworking men and women have to jump through hoops and pay a lot more money. In my career I can count on the fingers of one hand the number of clients or potential clients who I felt were dishonest. Those with the goal of gaming the system are not deterred. If the purpose of the BAPCPA amendments were to ferret out fraudsters, it has been a complete waste of time.

Another unintended consequence of the BAPCPA laws – deserving debtors do not seek the relief to which they are entitled because they get frustrated with all the paperwork required. Many of these folks remain in financial limbo – unable to save or psychologically move forward because of crushing debt. In a macro-economic sense I wonder if the country is better off with these folks living in financial purgatory rather than moving on with a fresh start.

My colleague, South Carolina bankruptcy lawyer Russ DeMott, and I were chatting about this tendency of deserving debtors to give up or delay filing because of the burden that the Bankruptcy Code places on debtors in terms of document production, costly credit counseling that offers marginal benefit and record keeping. Russ calls this syndrome "financial repression" and he has written a compelling and thoughful article about this problem.  Russ has given me permission to republish his article on this blog, which will be the next post published here.  You should also check out Russ' Charleston bankruptcy blog. Your feedback is welcomed.

Georgia Among Top Five in Bankruptcy Filings Per 1000 Residents

Saturday, December 5th, 2009

Filing bankruptcy reshapes America.

Filing bankruptcy reshapes America.

This chart from the EconomicCrisisBlog.com graphically illustrates what many of us in the Atlanta area already know – Georgia has one of the nation's highest rates of bankruptcy filings.

Why is this and why has it been this way for years – long before the current recession?  From my perch as an Atlanta debtor's attorney, I believe that the following factors contribute to our state's high filing rate:

  • most people in Atlanta are not from Atlanta.  As such, they do not have close family nearby who can help out with a loan or with a place to stay
  • the economy in Atlanta is and has been primarily a service economy, with an emphasis on communications, IT infrastructure, and transportation.  These industries tend to move through boom and bust cycles more quickly than the economy in general, making jobs in these areas less stable
  • Atlanta is a young, somewhat flashy city that encourages conspicuous consumption.  As a metropolitan hub, Atlanta exploded in the 1970's meaning that most of the suburbs are 20 to 30 years old.  There really isn't much "old money" here – and the entrepreneurial class that drives much of the region's business is inherently less financially sound
  • bankruptcy filings tend to breed more bankruptcy filings.  When you look at the total numbers of filings over the past 20 years, the totals add up to more than the total population of the metro Atlanta area!  Now, obviously some folks have moved elsewhere but I sense that in general, the idea of filing a bankruptcy in Atlanta is seen as a financial tool rather than a badge of personal failure
  • there is a lot of information out there about filing for and recovering from bankruptcy.  Information empowers people to understand their options and to make reasoned choices.  Although bankruptcy is and should be considered a last resort, it can offer a fresh start for honest, hardworking people who are facing an otherwise unmanageable financial crisis

Can you think of other reasons why Atlanta and Georgia have such high filing rates – I'd love to hear from you.

Christmas Shopping and January Bankruptcy

Saturday, November 21st, 2009

credit card transactionAs we approach the Christmas holiday season, I want to remind my readers of two things.  First and foremost, I want to wish all of my clients and blog readers a happy and healthy holiday season.   Financial struggles will come and go but if you have your family and your health, not a whole lot of other things matter.

Secondly, I would respectfully suggest that it is never too late to begin the process of tackling your financial issues.   Over the years I have met with many potential clients in January and February who bring me credit card bills containing charges incurred for presents in November and December.  They are ready to make a fresh start and want to file.

On more than one occasion I heard the explanation "well, I knew that I was going to have to file bankruptcy at some point – but I wanted my family to enjoy a nice Christmas first."

From my perspective as a bankruptcy lawyer, this attitude will get you in trouble.  Common sense should tell you that you cannot run up your credit cards buying gifts, then wipe out that debt a month or two later by filing bankruptcy.

Not surprisingly the Bankruptcy Code addresses the issue of "credit card binge" debt as well.

Section 523(a)(2) excepts from discharge debt that was obtained if an individual made material and false representations about his financial condition (i.e. , lies on the credit application).

Section 523(a)(2)(C) provides that:

  1. consumer debts owed to a single creditor and aggregating more than $500 for luxury goods or services (luxury goods defined as goods or services reasonably not necessary for the support or maintenance of the debtor or a dependent of the debtor) incurred by an individual debtor on or within 90 days before the order for relief under this title are presumed to be nondischargeable; and
  2. cash advances aggregating more than $750 that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 70 days before the order for relief under this title, are presumed to be nondischargeable;

Section 523(a)(2)(a) excepts from discharge money, property or services incurred by false pretenses, a false representation, or actual fraud (i.e. incurring debt that you knew or should have known that you would not be able to repay)

As a practical matter this means that if you incur several hundred or several thousands of dollars of charges in December then try to discharge that debt in January or February, credit card lenders have three potential arguments to object to the discharge of that debt.  Further, the last thing you want to face in your bankruptcy case is discharge litigation, as litigation is expensive and risky.
When I meet with clients in January and February who show me Christmas credit card statements, I will advise them to wait four to six months at a minimum and to make regular payments during that period.
So, if you are already in debt, or unemployed, I urge you to fight the impulse to use your credit cards to purchase gifts that you cannot afford.  The satisfaction you will feel giving those gifts will shortly give way to frustration when your bankruptcy lawyer tells you that you have to wait.

Will a Personal Bankruptcy Affect my Small Business if I am Self Employed?

Saturday, October 24th, 2009

Bankruptcy businessmanWith a sluggish economy, I have met with an increasing number of small business owners who are considering personal bankruptcy to deal with credit card debt and personal loans, but who want to keep their business assets and credits separate.  Is this possible.

First, it does make a difference whether the small business is incorporated.  If your small business is a proprietorship (i.e. "Tom Smith d/b/a Tom's Lawncare") then there is no way to separate personal assets and debts from business assets and debts.  In this situation, all debts are "personal" because the proprietorship does not have a separate identity from the individual.  All debts would have to be listed – for bankruptcy purposes in this situation, there is no difference between your personal credit card debt that arises from gasoline and grocery purchases and a credit card that you use for business purchases.

Assets of the proprietorship would be considered personal assets – assets that do not fit within the Georgia exemption statute would be at risk.

In a Chapter 7, if you have non-exempt assets you would have to surrender those assets to the trustee or offer to buy the "estate's interest" from the trustee (usually at a discount from fair market value).

Note that any receivables of the business or any other property with potential resale value (i.e. customer lists, pending contracts) could be claimed as estate assets.

In rare instances a Chapter 7 trustee could object to your small business bankruptcy using an "income suppression" argument.  This argument asserts that you should not be eligible for bankruptcy relief because you have intentionally suppressed your income by leaving a highly paid job or intentionally refused to maximize income opportunities.

If you are incorporated, the shares of your business are assets and you may very well be asked to justify a de minimus (i.e. $500) valuation that you put on those shares.   I see this issue frequently when clients own service businesses.  For example, I recently represented a client in an incorporated service business that had about $75,000 worth of equipment, but also had around $80,000 of credit card debt, $2,000 of tax debt and was behind on rent and facing a possible eviction.  What is the value of the shares in this case?   Is it $75,000 under the theory that the equipment was not subject to any lien and could be liquidated?  Is it zero under the theory that the business (and my client as personal guarantor) could be liable for a fraudulent transfer if it liquidated the equipment when the business was insolvent?  Or is the value somewhere in between zero and $75,000 using a compromise argument?

The income suppression argument described above also applies when the individual debtor's business is incorporated.  I have seen trustees take the position that a debtor with a certain level of education and training should make a reasonable effort to monitize that education rather than chase an entrepreneurial dream at the expense of creditors.

In the case of an incorporated business where the debtor has partners, the Chapter 7 trustee may become a replacement partner by virtue of his trustee powers and thereafter force a liquidation or a buyout.

I usually advise my clients who own small business clients that there is a possibility that the trustee may demand that the business close its doors and that they may have to find a new line of work.  This possibility is less likely if the business is a service business that does not involve hard assets or inventory, and more likely if there are business assets with value or receivables.

Needless to say there are a myriad of potential issues for small business owners who are thinking about filing a personal bankruptcy.  As always, you will benefit greatly by seeking counsel before your situation becomes critical.

Another Debtor Ripped Off by a Foreclosure Scam (Part 2)

Sunday, October 4th, 2009

Last month, I wrote a post describing a case that was recently heard by one of the judges in the Northern District of Georgia.  In this case, a debtor had filed a Chapter 13 the day of a foreclosure.  The lender was not aware of the bankruptcy so it went ahead with the foreclosure sale.  Like many foreclosure sales in Georgia, the amount of the mortgage was equal to the likely value of the house so there were no bidders at the foreclosure sale.  Instead, the lender bid the amount of the mortgage and was, in effect, the winning bidder.

By the end of foreclosure Tuesday, the lender's law firm had learned of the Chapter 13 filing so the law firm did not "record" the foreclosure deed.  Instead, the lender filed a motion to "validate foreclosure" asking the judge to permit the foreclosure to go through thereby divesting the debtor of title.

The debtor painted a very sad picture – he and his wife had four children of their own and a sister and her three children were also living in the home – and they faced  homelessness if the foreclosure was allowed to go through.  Further, the debtor claimed that he and his wife had been victimized by a "paralegal service" that had prepared emergency "two page" petitions then did nothing more.

The lender's attorney took a very hard line – between the husband and wife, these debtors had filed 5 previous cases only one of which actually worked for more than a few months.  The debtor was trying to scam the system and the court ought not permit such an action.  Further, the debtor had used the same paralegal service twice – if they were a ripoff why did he use them a second time?

The judge, who is a compassionate and decent man,  was clearly struggling with what to do.  I felt that the lender's attorney took the wrong approach.  In my view the debtor and his wife came across more confused than pathologically dishonest.  They clearly did not have entirely clean hands when it came to using the bankruptcy process to stop a foreclosure, but I could see that the judge was bothered by the idea that 7 children and two families might end up on the street.

In my previous post I asked what you thought would happen.  Here's what the judge did:

The judge decided to validate the foreclosure and lift the stay.  He was very concerned about the multiple filings and by the fact that there was no equity and an almost impossible likelihood that the debtor could actually fund a Chapter 13 that included over 2 years of mortgage arrearage.  He did note that Georgia law now provides that foreclosure notices must include the name and contact information of a human being at the mortgage company who has the authority to enter into loan modifications.  He directed the lender's lawyer to include this information in the order that would be issued granting the lender's motion (in most cases, the moving party in a motion hearing has the obligation to draft a proposed order for the judge to sign).

In case you are wondering, I would not have a lot of hope that the lender will be very cooperative in working out a deal with the debtor.

He also directed the debtor to cooperate with the U.S. Attorney in investigating the paralegal service.

What can you take from this case?  First and foremost, any Chapter 13 case that you file must be viable on its face.  In other words if you have only $200 disposable each month, and you have to pay $20,000 over five years, your case is not viable.  You have to present a workable plan.

Second, multiple filings make judges very concerned.   I am not a big fan of petition preparation services or paralegal services.  Bankruptcy has become a lot more complicated over the past 10 years or so.  I think that you take a very big chance when you use a non-attorney for your bankruptcy filing.  If you are going back a second or third time you should never do so without a lawyer as the Bankruptcy Code has been amended specifically to make repeat filings more difficult.