Diamond Speaks His Mind on Bankruptcy and Related Topics

Why Some Reaffirmation Agreements Are Approved And Others Are Not?

A reaffirmation agreement is a contract that is used in a Chapter 7 Bankruptcy case that must be approved by the Bankruptcy Judge, in most cases without a court hearing.  In general, the purpose of this agreement is to agree to repay what is owed to a creditor, in almost all cases the debt is secured by something that the debtor bought and wishes to keep.  A good example would be an automobile.  If the Debtor wishes to keep the car and still owes money on the car, he/she must agree to continue to pay for the car. 

A reaffirmation agreement is sent to the Debtor's lawyer by the Creditor, who then obtains the client's signature and then must certify that the reaffirmation agreement is in the debtor's best interest and does not present an undue hardship, as set forth in the bankruptcy code.  The document is then filed with the Court and approved by the Judge without a hearing.  However, as with all things in life, there are exceptions that would trigger a hearing before the Bankruptcy Judge, at which time the client, through his/her attorney would have to justify the reaffirmation agreement. 

One example, is that the debtor's budget filed as part of the paperwork that started the bankruptcy case does not demonstrate that the debtor would have the money to pay for the car the debtor wants to retain.  In this case, the debtor would have to find a way show the Judge that the payments could be made without creating undue hardship. 

Another example, would be the debtor wishes to reaffirm an unsecured debt and the debtor's lawyer is unable to certify the reaffirming the debt is in the debtor's best interest.  In this case the Judge is going to want to know what makes this particular unsecured claim different from the other unsecured claims, that he should allow the debt to be reaffirmed.  Justifying this type of reaffirmation usually requires demonstrating to the Judge that there is something unique about either the debt or the relationship between the debtor and the creditor.  An example of a reaffirmation agreement that I presented to the court was a situation in which the debtor had a career in the military and served his country honorable for a long time and had retired in El Paso to be close to a large military base as well as a military hospital.  He had always shopped on post and had always had a military credit card allowing him to make credit purchases on post.  His argument was simple -- He had always shopped on post and always had a military credit card and that the use of this credit card was not a contributing factor to his bankruptcy.  In short, he wanted to continue to do what he had been doing for over thirty years.  When I finished arguing the debtor's position the judge did not hesitate in making a ruling.  He stated:  "I come from a military family and I understand the special relationship that exists between this person and this particular creditor.  I further understand that not to allow this debt to be reaffirmed would be a life changing event for this retired person.  The Reaffirmation Agreement was approved by the Court.     

 

 

 

  

 

Copies Vs. Originals at Your Bankruptcy's 341 Meeting

Required by law, the first request that a trustee for a Chapter 7 or a Chapter 13 bankruptcy makes of a debtor is to see his driver's license and social security card in order to establish the identity of the debtor.  The trustee is fulfilling his obligation to identify the debtor by seeing an original driver's license, because it has a picture of the debtor and then matches the social security number against the name on the card and then compares the same against the bankruptcy paperwork.  There are, of course, other forms of identification that will work just as well such as a military identification card.  What will not work is a copy of any of the items mentioned, they must be originals.

If a debtor does not have these items with him/her, at least in El Paso TX, is that, in a Chapter 13 bankruptcy case, the meeting is continued to a later date, which means you have to take another day off of work and in the case of the Chapter 7 bankruptcy you must bring the originals by the Trustee's office within several days after your 341 Meeting, not as bad as having the meeting continued, but still inconvenient.  This may seem petty, still copies vs. originals will delay your bankruptcy moving forward.

A NEW EVIL HAS EMERGED - DEBT RELIEF STOREFRONTS

Oh my God, today I spoke with a woman who was considering bankruptcy as a way to get out from under her credit card debt.  She like most people would rather pay off her debts than file for bankruptcy especially when you can wrap your arms around your debt total.  I applaud your ethics and values.  Sometimes, based on how much you owe in credit card debt it could take years and years and years to pay off especially due to mounting interest rates.  Some of these debt relief storefronts are no better in helping you than the exorbitant interest rates charged by the credit card companies.  Getting back to this woman I spoke to today, her debts today were approximately $6,000.  The company she was (at least I hope it's in the past now)  considering working with was going to charge her on top of her  monthly payment towards her credit card debt  - a service charge of $300 per month during the lifetime of the  payment schedule.  She was told that it would take approximately 24 months.  What is wrong with this picture?  A $6,000 debt without additional interest charges would cost this woman more than $13,000.  People do the math!!  I know how it feels to have bills you can't pay and to have creditors breathing down your neck.  I know how badly that can make you feel and so you think anyone that will work with you is a blessing.  NOT................  Read, read, read the fine print........... You're not buying a car ............. you're paying off debts.   DO THE MATH. 

If you choose to handle your credit card debt through a debt relief agency seek out a non- profit agency.  Or consider filing bankruptcy, Chapter 7 where you erase entirely your credit card debt as well as all unsecured debts if you qualify.

DISCHARGABILITY OF STUDENT LOANS IN BANKRUPTCY

In an average bankruptcy case, regardless of the chapter (7,13) filed, student loans are not dischargeable.  In the Western District of Texas, payments on student loans may not be included in a Chapter 13 Plan unless such plan proposes to pay the unsecured creditors 100% of their claims.  Instead, student loans are deferred until after the Chapter 13 plan has been completed. All the while interest is accruing on these loans. 

There are possibilities that present opportunities to discharge student loans, as set forth below: 

 1. The opportunity to discharge a student loan is to determine whether or not the loan made is actually a student loan.  The provisions of the bankruptcy code dealing with student loans are very specific, although very broad as to what constitutes a student loan that is non-dischargeable.  Therefore, each loan must be examined to determine whether or not the loan is of a type that falls within the definition of the statute.  If it does not, then the loan is dischargeable like any other unsecured claim.

 2. The opportunity to discharge a student loan is set forth in the statute and reads in part "unless accepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor's dependents, for..."  The burden of proof a debtor must overcome is very high but not impossible.  What constitutes "undue hardship" is in fact driven and therefore is dependent on the facts in each case.

 3. A potential opportunity that is presented is more complex and deals with the situation where a loan was made but the educational institution failed to furnish that which was promised at the time the loan was made.  An example of this type of situation is where an educational institution failed before the institution furnished or completed the course(s) and the student was unable to transfer all or any portion of the credits that would have been received to a second institution.  Whether or not this type of situation would allow the loans to be discharged would in all probability depend on the relationship between the financial institution making the loan and the educational facility.

All of the above is complicated by a case decided by the Supreme Court commonly referred to as "Seminole".  The case limits the Bankruptcy Court's jurisdiction to decide certain issues if they only involve States rights.  Therefore, if the student loan referred to is made by a state institution and does not involve any federal institutions, the court may not have the power to hear and determine any of the above.

 

 

 

 

 

Not All Debt Relief Companies Are Created Equal

 

I want to make it clear that I have nothing against "Debt Relief Agencies".  Under the right circumstances they perform a service that avoids bankruptcy for many people.  Some of these companies are honest, charge reasonable fees and have a staff that is well trained.  A good example is the YWCA here in El Paso, Texas.  Over the past six months it appears that the number of companies that offer debt relief by making deals with your creditors has increased substantially.  You see their ads on TV, hear their ads on the radio and read their ads in the newspaper.  Unfortunately many of these companies charge large up-front fees and provide no meaningful service to their customers.  The bankruptcy judge has expressed deep concern over these companies and has said that there has been at least one indictment and conviction in San Antonio, Texas.  He has asked the bankruptcy bar (lawyers) and the Office of the United States Trustee to gather as much information as possible with the idea in mind of turning the information over to the Department of Justice for prosecution.  However, as with most things in life, you must protect yourself.  Before hiring a debt relief company ask for references and check them out carefully.  Beware of any company that wants large up-front fees (read the fine print) before they will do anything on your behalf.  Most importantly, remember if it sounds too good to be true - it usual is. 

 

 

Pay Day Loan Companies Are Cunning!

Lots of people seeking help from a bankruptcy lawyer to file a Chapte 7 (eliminate unsecured creditors) or a chapter 13, have one or more payday loans.  Payday loans are difficult to deal with for both the client and the bankruptcy lawyer.  The companies that offer these loans seem to know every trick in the book to continue  receiving payments, as well as avoiding having their addresses known so they cannot be notified of a bankruptcy filing.  The only way to prevent such a lender from collecting on their loan is to close the bank account upon which the lender collects its funds.  Merely having a zeo balance does not seem to work, inasmuch as many people have accounts that have overdraft protection or at the least, will incur a charge for every returned check.  Closing their bank accounts presents a few challenges to many clients for reasons such as automatic withdrawals for monthly payments and/or direct deposits of checks. If you are going to stop these folks from collecting, you must promptly close your account and open a new account at a different bank.

 

 

 

 

 

Bankruptcy, The Answer For Your Business?

 

Have you ever wondered why doctors and lawyers ‘practice' their profession?  I have.  Today you have to be lucky to find a doctor that focuses on ‘healing' and an attorney that focuses on ‘selfless problem solving'.  It has been my experience that the word ‘practice' gives professionals the freedom to make choices that may not best serve our needs.  It's important to sift through the rhetoric and do your homework.

I 'm Sidney Diamond wife and I can often be his worst critic.  He leaves his clothes everywhere, almost never closes a cabinet door and is constantly misplacing his keys.  He's also brilliant and has more integrity than anyone I know. 

Case in Point:  I sat in on a free initial consultation with a potential client this week.  The gentleman was devastated about his state of affairs and at his wits end.  He started his business over 10 years ago, incorporated his business and now due to the economy his industry came to a screeching halt. I was impressed by how prepared he was for this meeting.  He wanted to know if he should consider filing a business Chapter 7 or a Small Business Chapter 13.  He had corporation papers, his lease, credit card statements, tax information; he knew the answers to all the questions asked and had all the documents that Sidney asked for.  He had several years left on his lease (which he did not personally guarantee), credit card debt and bank loans (which he did not guarantee).  Basically his business was in debt for almost $100,000 and the business had no assets to protect.  

Sidney recommended closing the business and walking away.  Bankruptcy was not recommended in his situation.  It was amazing to see the relief on his face.  His reality is still scary, he worries how he'll continue to feed his family, pay his mortgage and find employment.  Lucky for him he found sound legal advice.   

CHAPTER 7 - CAN I KEEP THE DOG HOUSE?

 

If you have lived in Texas two (2) years prior to the date you filed your Chapter 7 bankruptcy (or plan on filing) you are entitled to use Texas Law to determine what property you get to keep.  That means you may either use the property that is "exempt (free to keep)" from bankruptcy under the Texas State Statute or you may choose to use the Federal Exemption Laws.  Which law you use is up to the person(s) filing Chapter 7, which means you get to choose the statute (Texas State or Federal) that gives you the most benefit.  For most people this generally means you get to keep everything you have, with few exceptions.

Which law is most advantageous depends on whether or not you own a home and how much equity you have in your home. Equity is determined by the difference between what you owe on the house and how much the house is worth.  If your house has a lot of equity one usually finds the Texas Statute gives a person the biggest relief.  While Texas Law protects most things it does not protect cash, cash in banks or income tax refunds.  Federal Law on the other hand would allow you to apply the "wild card".  The "Wild Card" under federal exemptions is exactly the same concept as the wild card used in a poker game - it is any card you want it to be.  In a bankruptcy case, it can be used to exempt from the bankruptcy anything that the debtor wants to keep that is not otherwise exempt.  The 'Wild Card' is contained in Section 5 of the Federal Statute.

The exemption laws are designed to allow people to keep enough of their property to have a "fresh start", not to strip them of their assets or dignity.

Click on these links to see an outline of the Texas Exemption Code and an outline of the Federal Exemption Code.

The fate of your property not protected by either statute (Texas or Federal) is in the hands of the Chapter 7 Trustee. The Chapter 7 Trustee is only going to take things he can turn into a relatively large amount of cash quickly which he can then use to pay your creditors.

6. What property will I get to keep?

A New Amendment to the Bankruptcy Code - Maybe?

According to multiple sources, including the American Bankruptcy Institute and the National Association of Consumer Bankruptcy Lawyers, efforts to amend the bankruptcy code to allow bankruptcy judges to modify home mortgage including reducing the outstanding debt to the current market value and modifying the interest rates to current rates is moving forward.  It is not clear what the final legislation will look like inasmuch as there are multiple versions of the amendment being offered and there is bound to be last minute changes to the legislation as well as changes made to resolve differences between any bill passed by the Senate and the Congress.  WHAT'S IMPORTANT IS SOME TYPE OF RELIEF IS ON THE WAY.

 One of the things that is lost in the confusion over the various provisions of the stimulus package is that the amendment to the bankruptcy code will cost the American Taxpayer nothing.  Absolutely no funds are needed for this amendment to be implemented.