Archive for the ‘Law’ Category
Tuesday, August 10th, 2010
As you may know, last year Congress passed a law called the Credit Card Accountability Responsibility and Disclosure Act of 2009. This law, nicknamed the CARD Act of 2009, was designed to regulate a variety of unpopular credit card tactics, such as interest rate increases without notice, inactivity fees and unfair interest calculations.
According to credit card industry analysts, the CARD Act of 2009 will eliminate over $390 million in fees for credit card issuers. Not surprisingly, the credit card companies do not intend to walk away from this fee income. For every fee and penalty eliminated by the CARD Act, credit card issuers are finding replacements. For example the annual fee for many cards has been increased, sometimes dramatically. Card issuers are also sending corporate card applications (called "professional cards") to consumers. Corporate cards are not included in the CARD Act.
The Wall Street Journal recently ran a story explaining how the credit card companies intends to recoup their lost fee income. The bottom line: the CARD Act of 2009 will eliminate some consumer-unfriendly tactics used by the credit card companies, but it will trigger an equal number of new consumer-unfriendly tactics. Caveat Emptor.
Posted in CARD Act of 2009, Congress, Consumer Protection, Credit, Disclosure, Law, a, accountability, act, act the, and, applications, called, card, corporate, credit card company tactics, credit card fees, dramatically , fees, inactivity, included, issuers, issuers , journal, notice, passed, responsibility, sending, street, tactics, the, unfair, unpopular, wall, year | Comments Off
Wednesday, July 28th, 2010
Amit Mehta asked:
Bankruptcy records are a result of an individual or company filing for bankruptcy. This means that the individual or company has recognized that the income they are earning is not enough to meet their financial obligations.
There are two kinds of bankruptcy in the United States. The first is liquidation, where all your assets are sold off, and the second is reorganization, where you file for a new payment plan to address your financial obligations. Filing for bankruptcy means that you are admitting that you can no longer turn your losses into profits and as a consequence, you need to be freed from further payment of debts.
Bankruptcy Records are Public Records
If you think that filing for bankruptcy only means being absolved of debt, then you should be aware that bankruptcy filings are created in your name or your company’s name for public access. Bankruptcy records could deter future partners or companies from ever engaging in business with you again because of your poor financial history. On the other hand, it may also demonstrate how you were able to rise above adversity.
If you know where to look, obtaining bankruptcy records should not be too difficult because these are considered public records. You can actually call the Bankruptcy Court in the vicinity where the bankruptcy was filed and conduct a search based either on the case number of the bankruptcy, the name of the person or company who filed it or the social security number or tax identification number of the involved parties. Finding the case number will enable you to request for a copy of the entire bankruptcy file for your perusal.
The United States Courts has an administrative office with an official website that allows you to look up bankruptcy filings. Although some of the personal information found in bankruptcy records will be withheld, the new cases in the bankruptcy courts are shown on a daily basis on this website. For purposes of safety and protection, bankruptcy filing documents that are used in criminal cases will not be displayed on this website.
Apart from government sites, there are plenty of private companies online who can assist you in locating bankruptcy records. Apart from the convenience they offer you, most records can be in your hands in as short as a couple of hours from the time you file online.
Why You Should Access Bankruptcy Records
If you are thinking of joining someone in business, then it is important that you check on your future partners’ financial records. Bankruptcy documents serve as an excellent source of research either for business students and entrepreneurs. You can read extensively about public bankruptcies to learn about what others have done wrong and how you can avoid making the same mistakes in your own business endeavors. If you are deeply mired in debts yourself, bankruptcy records can help you determine the next course of action to take on your own.
Bankruptcy Questions
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Saturday, May 15th, 2010
MIKE SELVON asked: Congress decided to make major changes to the United States bankruptcy code in recent years because of the problem the current code was creating. With more people filing for bankruptcy protection and discharging their debts, companies that extended credit to the debtors were forced to cease trying to collect on the money that was owed to them.
Under the new guidelines, it is much more difficult for debtors to simply discharge their debts and they are forced to enter into repayment options if they choose to file. The most recent reformations were a result of many years of abusing the bankruptcy system.
The new bankruptcy code resulted in the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, but changes in bankruptcy code are not new for citizens of the United States. Congress was authorized to make changes to the rules and regulations that govern the relationship between debtors and creditors since 1801. Since then, the legislators have amended the bankruptcy code many times. The 2005 changes, however, created the most significant changes in the code in nearly two decades.
In April of 2005, President George Bush signed into law some new regulations to be added to the existing bankruptcy code. Under the new bankruptcy regulations, debtors who file for any form of bankruptcy protection must meet several requirements. Firstly, debtors who file for new bankruptcies are required to complete a financial counseling course.
Since a large number of bankruptcy filings are due to irresponsible personal finance management, the counseling course is designed to help people recognize and change their spending behaviors. This also helps to deter future bankruptcy filings because statistics show that many people who file bankruptcy will do it again in the future.
One way that the new code discourages abuse of the bankruptcy system is that it requires the signature of a lawyer for those who are considering bankruptcy. With the new guidelines, a bankruptcy petition cannot officially be filed unless a debtor has consulted with an attorney about other options that are available.
This encourages a second look at the person’s finances and the circumstances regarding the debt rather than just rushing to have them discharged. A comparison of the debtor’s finances against the average income of the state’s population plays a major role in the investigation.
Other restrictions of the new bankruptcy code make it more difficult for debtors to file Chapter 7 bankruptcy to simply have their debts discharged. With the new regulations, the majority of cases are forced into a Chapter 13 bankruptcy that requires debtors to repay their debts with a scheduled payment plan.
This process involves a court-appointed trustee to handle the finances of the debtor and a certain percentage of their regular income is delegated to the creditors. Repayment schedules are typically arranged so that the debts are paid within five years. Under the old bankruptcy code, however, it was much easier for debtors to file Chapter 7, which simply erases their debts without any form of repayment.
As of October 17, 2005, these and other changes were added to the United States bankruptcy code for several reasons. Because of the toll that unpaid debts have on the economic status of society, major changes were needed to lessen these detrimental effects. Since the focus of these amendments was placed on behavior change and reducing the abuse of the bankruptcy system, the new code should be able to force debtors to think about their financial decisions more carefully.
Bankruptcy Questions
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Tuesday, April 6th, 2010
Todd Osbourne asked: orians credit the Romans with first documenting the phenomenon of “bankruptcy” to describe a merchant or tradesman who had his board broken when he couldn’t pay his creditors back. And the US hasn’t had debtors prisons since the 19th century. But, people still file for bankruptcy everyday- even in 2008.
If you’ve read any of the personal finance books released during the last few years, like “Maxed Out” by James D. Scurlock, you’ve probably read that many people’s debt loads have increased substantially during the last few years. And if you take a quick glance at any popular newspaper today, you may find stories documenting the rise in personal debt levels in the U.S. With record home ownership rates and, up until recently, new cars seemingly everywhere you look, it’s not surprising to read that some household’s non mortgage debt levels now exceed $100,000.
In the U.S., some consumers start considering their bankruptcy options when it doesn’t look like paying back their debts will be realistic and they need a fresh start to deal with their financial predicaments. These consumers are most likely thinking of filing for Chapter 7 bankruptcy. Chapter 7 bankruptcy is sometimes referred to as “regular” or “ordinary” bankruptcy. People who file for Chapter 7 bankruptcy can occasionally discharge some of their debts when the process completes. This is in comparison to Chapter 13 bankruptcies in which the focus is more on having debtors design debt repayment plans. Most bankruptcies filed in 2008 are still Chapter 7, AKA “regular,” bankruptcies.
Some consumers file for bankruptcy protection in the hopes of stopping harassing phone calls & collection efforts from creditors. Consumers look forward to cleaning up their debts and starting over. However, people who file for bankruptcy can find that their credit scores have been affected by the bankruptcy.
It may be difficult to quickly rebuild their credit scores again.
In fact, some banks specialize in credit cards for people who have prior bankruptcies on their records. What sort of terms they offer can vary tremendously. However, some people with bankruptcies on their records may be able to rebuild their scores back to the point where they can start qualifying for regular credit cards again.
Online, there seems to be a lot of people looking for bankruptcy & debt related information. People seem to search for bankruptcy related terms thousands of times each day. According my keyword research, people seem to search for the specific term “debt consolidation” more than 3000 times daily. And “chapter 7 bankruptcy” gets more than 400 searches in Google alone every day. That is a fairly exact term to receive that many searches everyday!
In fact, some bankruptcy professionals have seen large increases in their businesses recently. This uptake in business is reflected in the latest stats that show bankruptcy filings increasing by more than 30% in some states from the first half of 2007 to the first half of 2008.
Overall, filing for bankruptcy is a decision that is up individual debtors. Is it right for everyone? Probably not. But bankruptcy is an option that more consumers seem to be considering today…
Fill This Out For Free Bankruptcy Evaluation!
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Wednesday, February 10th, 2010
My office colleague, Susan Blum is in the process of filing a Chapter 7 bankruptcy for a young woman. Our client currently lives in a rented apartment, and her lease runs through July of this year. Our client would like to find a cheaper place to live, however, she is concerned that she may not be eligible to sign a new lease after filing for bankruptcy. Our client asked for our advice about what to do.
First, we advised out client that her bankruptcy filing would not prevent her from finding a new apartment later this year and signing a lease. However, the the months immediately following a bankruptcy are a time when a debtor's credit is most damaged – it is very possible that our client would have a difficult time finding a landlord who would lease her an apartment right after the bankruptcy.
A better option in cases like this would be for our client to to sign a new lease prior to filing bankruptcy and reject the current lease in the bankruptcy filing.
Under the bankruptcy law a lease is considered an "executory contract," meaning that our client still has on-going obligations to perform under the contract. In this case, our client has the contractual obligation to pay her lease. Other examples of executory contracts are vehicle leases, health club memberships and cell phone contracts.
The bankruptcy law allows a debtor to "reject" or "assume" an executory contract. If the contract is assumed, the debtor remains obligated under the terms of the contract. If the contract is rejected, the debtor's obligations terminated.
In our client's case if she rejects her old apartment lease, the law deems the lease contract as breached as of the day before the bankruptcy filing. The landlord is entitled to repossess the apartment in accordance with state law. Any damages that the landlord might suffer are treated as pre-petition general unsecured claims. Per the Bankruptcy Code, the rejection damages that the landlord is entitled to are limited to either 15 percent of the balance of the rent that is left in the lease or the rent due for one year from the filing date or the date the apartment was surrendered, whichever is earlier. Fortunately the debtor can include any outstanding rent in her petition and wipe out the debt along with other unsecured debt.
Susan's client took our advice and has already signed a new lease on an apartment and she will be rejecting her current lease in the Chapter 7, including all future rent and penalties incurred for not fulfilling the lease’s terms.
Posted in Apartment, Bankruptcy, Current, Executory Contracts, Law, a, an, and, apartment leases, canceling leases, cell, club, contract, contracts the, deems, filing, health, lease, lease , memberships, phone, reject, rejecting, rejects, signing, susan blum, the, year | Comments Off
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.
Posted in 10, Amp, Assets, Bankruptcy, Chapter 7 Bankruptcy Filings in Georgia, Filers, Foreclosure, General consumer bankruptcy info, Georgia Bankruptcy, Georgia bankruptcy rates, Law, Possessions, and, atlanta based, boats, can’t, clark, clients, exceeding, expect, experiencing, financial, firm, georgia bankruptcy filings, georgia’s, higher income, homes jack, instability, instability with, numbers, pay, percent, problems, process, protection, recent bankruptcy trends in Georgia, seeking, simply, the, unemployment, williams, – | Comments Off
Tuesday, December 1st, 2009
Ian Koch asked: Filing bankruptcy is a nightmare for anyone. While it is not something you might like to even think about, there might come a time when you might have to comprehend the bankruptcy laws and file one yourself. But how can you know whether filing bankruptcy is the right thing for you? Or whether you can prevent it? What exactly is bankruptcy?
For starters, bankruptcy is a federal court process to help individuals and businesses repay their debts under the protection of the bankruptcy court (Chapter 13 Bankruptcy) or get rid of their debts completely (Chapter 7 Bankruptcy). If an individual or business files for bankruptcy, the court issues a stay that prohibits creditors from taking any action to recover the debts from you without court approval.
Bankruptcies fall under to broad categories - liquidation and reorganization. US bankruptcy laws cover liquidation under Chapter 7 Bankruptcy, which allows your assets to be sold off or liquidated to pay off your debts.
The other type of bankruptcy - reorganization is more commonly referred to as Chapter 13 Bankruptcy. Under reorganization bankruptcy, a repayment proposal is worked out with the court and accordingly some debts are repaid in full, others as a percentage of the original debt while some others are signed off without repayment. A reorganization bankruptcy would usually be spread over three to five years.
But after filing for reorganization bankruptcy, it is very important you stick to the repayment plan because it is only at the end that creditors might grant you new credit. While a liquidation bankruptcy stays on your credit history for 10 years and you are denied credit during this period, a reorganization bankruptcy can be cleared off your credit history after 6 years. And depending on your repayment record, you can reestablish your credit.
Bankruptcy filing has serious consequences and bankruptcy laws don’t look easily upon individuals or businesses filing for it. The decision to file bankruptcy should not be taken easily because having your debts erased does not miraculously solve your long term financial issues. This can only be a once in a lifetime resort to get out of crushing financial burden brought on your by job loss, medical bills, or other circumstances that are out of our control.
The best way to avoid bankruptcy is to be both “penny and pound wise,” meaning practicing good money management. This includes avoiding impulse spending, not using a credit card unless you have the cash to pay it off, tearing up any special credit card offers received, devising and following a realistic budget and covering yourself adequately by insurance (medical, homeowners, auto). At the same time, you need to make sure you don’t speculate too much or fall into company with people who have questionable financial habits.
Bankruptcy Questions
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Saturday, November 21st, 2009
Jon Arnold asked: Only a few years ago, Congress made multiple huge changes to the bankruptcy laws which impacted how bankruptcy would be filed, and even who is eligible. For example, no longer can you file bankruptcy just because you are tired of paying your bills, but with the new laws, there is a defined set of procedures that must be followed for each chapter being filed, and your financial status will be evaluated under a microscope, where you must be approved before you can even file.
But one of the areas that was left pretty much untouched by the wide range of changes was Chapter 13 Bankruptcy. This chapter was originally constructed to prevent a home from being put on the foreclosure block. But with the massive number of foreclosures that are happening in the US today, it is unfortunate that many people still do not know that Chapter 13 Bankruptcy filing can still be used to prevent foreclosure on their home.
For the average consumer, there are three different types or chapters of bankruptcy that may be available to them, depending on their specific circumstances. The first one is Chapter 7 Bankruptcy, which is the most common type and is also sometimes referred to as a liquidation. Obviously the reason it is known as liquidation is because most of their debt is discharged by allowing the court-appointed trustee to liquidate all of their non-exempt assets. Even with this chapter, however, be aware that there are certain types of debts that cannot be discharged by going bankrupt.
Although it used more appropriate to be used by either businesses or people with substantial assets and income, another type of bankruptcy available to the consumer is Chapter 11, frequently also known as a business reorganization. This type does not wipe out debts, but rather it allows the person or business to reorganize its debt structure and make revised payments to the creditors, sometimes over a longer period of time, and sometimes also with a reduced interest rate. Creditors usually are willing to do this, since collecting their money over time and with interest is certainly better in their eyes than to have the debt wiped out completely via a different chapter.
The last type or chapter of bankruptcy available to the consumer is Chapter 13, frequently also known as the Wage Earner’s Reorganization. This type is the least expensive to file and is typically used by consumers who still maintain their ability to make their payment obligations, usually within three to five years. The total value of their assets which are classified as non-exempt is used as a basis and guideline for the amount that needs to be repaid over this period of time, as well as considering their level of income and any debts which cannot be discharged.
But what many consumers do not realize is that Chapter 13 Bankruptcy also allows property owners to stop foreclosure proceedings if they are behind on their mortgage payments. While the same can be said for the other chapters of consumer bankruptcy, Chapter 13 is particularly designed to permit the consumer to pay the delinquency in equal monthly payments for as long a period of time as 60 months (5 years). The mortgage lender has no choice but to agree to this, as long as all the other requirements and qualifications of this chapter are met.
The procedure to be qualified to file this chapter is more stringent than the others, since it involves a thorough examination of total debt and total income. No chapter of bankruptcy is any longer consider to be a “do-it-yourself” process with all the new legal requirements in place, so regardless of what chapter you are thinking about, it is strongly recommended that you consult with a qualified bankruptcy lawyer and ensure that both you and your property, combined with your specific situation, actually do qualify.
The biggest benefit that you can have with Chapter 13 bankruptcy, if you qualify and if you are facing foreclosure proceedings, is that it buys you time. That time can be used to make your current financial situation better, or it can also be used to find the right buyer for your property. If you move forward with this, keep in mind that the time you are granted with this is finite, and you need to start planning and take action NOW.
Bankruptcy Questions
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Friday, November 20th, 2009
David Siegel asked: The Debtor’s Greatest Weapon, The Automatic Stay
Immediately when your bankruptcy case is filed, an automatic stay is created. An automatic stay is the equivalent of a restraining order that prevents creditors from taking certain collection actions against you. These collection actions include: Telephoning you at home, at work or on your cell phone; Filing lawsuits against you or continuing with lawsuits that are already in progress; Repossession attempts; Foreclosure proceedings; Wage or bank garnishments; Recording any liens or judgments; Anything that attempts to collect a debt or improve a creditor’s position as it relates to you and your underlying debt.
The Automatic Stay Is Not Absolute
There are exceptions to the automatic stay, especially in the case of re-filings. Creditor actions are not stayed in the following circumstances: Criminal actions. Filing a bankruptcy case will not prevent Federal, State or local authorities from pursuing their criminal action against you. Lawsuits involving child support or spousal support are not stayed and can be pursued despite your bankruptcy filing. Actions by governmental units to enforce a police power are not stayed.
Recent Changes
There are many changes that have occurred in the area of automatic stays since bankruptcy reform generally went into effect October 17, 2005. The major changes have to do with repetitive bankruptcy filings. If you file a second bankruptcy case within one year of a prior filing, the automatic stay will only go into effect for thirty days, unless you can prove to the court that the second filing was filed in good faith. You must file a motion and have it heard before the Judge, prior to the expiration of the thirty day period. The motion can be brought against one particular creditor, or more likely, against all creditors. After notice and a hearing, the court will rule one way or another. You have the burden of proving that the second case was filed in good faith. This can be accomplished by showing a positive change in your circumstances such as higher, more stable income. Another example would be if you recovered from a serious medical condition which had previously prevented you from gainful employment. If you file a third bankruptcy case within one year of two prior filings, the automatic stay will not go into effect at all. You can attempt to invoke the automatic stay by bringing a motion, similar to the one mentioned above, showing that the third filing was made in good faith. Although not impossible, it would require a very compelling reason to convince the court to allow the stay to be imposed on a third filing within one year. In eviction cases, if the landlord has already obtained a judgment for possession prior to the bankruptcy case filing, then there is no automatic stay. You should file your bankruptcy case prior to the landlord obtaining a judgment so that the stay can go into effect. There is also no stay if the eviction is based upon endangerment of the rental property or an illegal use of controlled substances is occurring on the premises and the eviction started prior to the bankruptcy case being filed.
Bankruptcy Questions
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Thursday, November 19th, 2009
MIKE SELVON asked: Chapter 7 bankruptcy is the type of discharge that most people associate with the idea of bankruptcy. Chapter 7 is also the option that most people commonly choose because it offers a fresh financial start without the obligation to repay the debts that the debtor has incurred.
Although there are several other options that debtors can choose to deal with their financial troubles, Chapter 7 bankruptcy is ideal for people who have no way to repay the huge amount even with a repayment plan. However, according to the law, bankruptcy involves a variety of options and guidelines to help people make an informed financial decision.
Although Chapter 7 bankruptcy provides many people with bankruptcy alternatives and a new beginning concerning their finances, it is not a panacea for their problems. The courts do not just grant a complete discharge for debts without fully investigating the circumstances surrounding the debt. People who file for a discharge are obligated to undergo a “means test,” which is a comparison of the person’s monthly income to that of the state’s median income.
Due to the new law, bankruptcy petitions are subject to greater scrutiny than in previous years and they require the signature of a lawyer. Bankruptcy filings in the past year also affect the status of one’s petition according to the new guidelines. This helps the courts to decide if the person is even eligible for a complete discharge.
The new bankruptcy code guidelines are designed to discourage abuse of the system. If an investigation finds abuse, the court can cancel the bankruptcy or require the debtor to repay their creditors through other means.
Suspected abuse includes multiple bankruptcy filings or trying to get debts discharged immediately after an expensive shopping spree. In the end, the court and its officials make the final decision regarding a Chapter 7 bankruptcy before debtors are granted relief.
Chapter 7 bankruptcy is not the only bankruptcy alternative for a debtor. Other bankruptcy options, such as Chapter 13 bankruptcy, allow the debtor to repay the debts in a 3-5 year repayment plan set up by the bankruptcy courts.
The court’s trustee assesses the debtor’s income and debts and decides on a plan in which the money is taken directly out of the debtor’s income for the purposes of paying the creditors. This option is often settled out of court with the creditors and is often used as a means for debtors to save their home from foreclosure.
Before filing for Chapter 7 bankruptcy, the best thing you can do is to talk to an attorney. Maybe you can avoid bankruptcy. Bankruptcy attorneys are familiar with the entire process and can advise you as to your best options before rushing into such a drastic measure.
If the attorney feels that you should file, they will also tell you which chapter of bankruptcy is the most advantageous to your particular case. Whether you decide to file or not though, focusing your efforts on changing your behavior is best so you do not end up in this situation again.
Bankruptcy Questions
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