Chapter 7 and 13 Bankruptcy Blog

I am very happy to report that the Law Firm of John H Spurgeon in Pasadena, California has opened a new debtor law bankruptcy practice and will be accepting new clients soon.  Attorney John Spurgeon worked as a Certified Public Accountant for many years before graduating from the California Bar approximately 10 years ago.

Since that time, John Spurgeon has been specializing in family law.  He had been referring all bankruptcy requests out to other attorneys in the area.  However, when he found the requests were growing in number, he decided to open up a bankruptcy law practice to compliment his existing customer base.

A quick search on the American Bankruptcy Institute website at www.abiworld.org will show you the high level of increase in bankruptcy filings within the state of California.  For example: in the Second Quarter (April, May and June) of 2009 there were a total of 53,505 filings in the state of California alone.  These figures result down to almost 600 California residents PER DAY filing bankruptcy.  That is the most extreme I have ever seen in my entire 30+ year legal career.  The numbers are mind boggling and you may not understand the level of significance unless you are working in the bankruptcy field.

Due to these high numbers of filings, many homes in California are owned by banks.  Although the state of Florida is also suffering and filings are extremely high there also, the difference between the appraisal amount and the amount owed to the bank is much smaller in Florida compared to California.  For example: In California, there are many homes (priced at $100,000 in other areas of the country) originally selling for $700,000 and up.  Now that the housing market has collapsed, California home owners are finding the same property is appraised at $200,000 and they are underwater a half million or more.

In an effort to stabilize the housing problems in California, many California bankruptcy courts are putting provisions in place so that debtors may stay in their homes and this helps to prevent more criminal activity within the neighborhood as well as protecting the investment of other homeowners.  For example, did you know there are unscrupulous people who pick the locks of bank-owned homes, change the locks and rent the property to innocent victims?  If the person(s) owning the home would have stayed in it instead of moving the moment they received a foreclosure notice, this would not have happened.  It is unfortunate that people often do things that hurt them simply out of panic.

WHAT PROVISIONS IS CALIFORNIA BANKRUPTCY COURTS PUTTING IN PLACE FOR PEOPLE?

Victoria Ring is putting together a training package that will teach California attorneys how to propose strip downs of second mortgages and cram down first mortgages.  This is a new procedure that has been tested and approved by the Central District of California (the most difficult district to file a petition in).  Look for a future email announcement regarding the training package so that you can save your clients literally millions of dollars and help them get a fresh start in these hard financial times.

DO YOU KNOW OF ANYONE FACING FORECLOSURE?

One of the goals and focuses of Victoria Ring is to educate as many people as possible during these hard financial times.  If you know of anyone who has received a foreclosure notice, tell them NOT TO MOVE.  Stay in their home and keep it well maintained.  There are many opportunities for homeowners who are behind in their mortgage (and many are coming down the pike); simply because the bank would prefer to preserve their investment by having the property owner stay in the home instead of leaving and have the home subject to criminal activity.

ARE YOU AN ATTORNEY?

If you are receiving this notice and you are interested in discussing the establishment of a bankruptcy law firm for your practice, so that you can help 100s of people facing foreclosure also, feel free to call Victoria Ring at 719-659-0743.  What is the cost?  It depends on your training needs, which is why you must call for a free consultation and assessment.  Some attorneys only require training by teleconference and over the web, while others prefer that we physically come to their location.

CONTACT REFERENCE

Contact Information for John Spurgeon http://www.jsfamilylaw.com/

The following questions and answers were submitted to Victoria Ring either at a teleconference or by email during this past week. The best of the best were chosen to be published below.  The answers are provided by Victoria Ring who is not an attorney.  Therefore, the information provided in this material is for training purposes only and no whole or part should be regarded as legal advice.

DEAR VICTORIA:

If a lady is filing bankruptcy and she is pregnant at the time of filing, is the unborn child considered a dependent on Schedule I of the bankruptcy petition?

ANSWER:

No. An attorney explained it like this to a client one time who asked the same question: We do not know if your child will die at birth, be given up for adoption, raised by a family member or any other number of factors that could alter the dependent status of the unborn child.  Therefore, the child is not eligible to be a dependent until after the birth.

But, if the bankruptcy is still ongoing at the time the child is born and the child will be the dependent of the female filing bankruptcy, Schedule I and J would need to be Amended to allow for the dependent claim as well as the monthly expenses to care for the infant.

DEAR VICTORIA:

Am I to understand that I do not have to use a Certificate of Service when I initially file the bankruptcy petition?  That means I only need to use the Certificate of Service afterwards?

ANSWER:

You are correct.  The Creditors Matrix within the bankruptcy petition serves the place of the Certificate of Service.

DEAR VICTORIA:

If a bankruptcy case is closed, can it be reopened so the attorney can file an amendment?

ANSWER:

It depends on several factors.  How long has the case been closed? What are the reasons for reopening the case? Can the attorney prove to the Judge that there is good enough reason to reopen the case?  Was the case discharged or dismissed? (There is a big difference.)  Therefore, in order to sufficiently answer this question, you need to contact the Help Desk of your local bankruptcy court and obtain the rules for reopening a closed bankruptcy case so that your attorney can review them and make a decision whether to do so or not.

DEAR VICTORIA:

During an online search I found a motorcycle that was titled in the name of the debtor but the motorcycle was not reported on the client intake forms.  When I asked the debtors about it, the wife said it was repossessed and the husband said it was sitting in their garage.  Who should I believe?

ANSWER:

No one.  Your job as a non-attorney is not to make legal decisions. Make sure you document this problem and point it out to the attorney.  The attorney will need to determine the best way to handle the situation.

DEAR VICTORIA:

Do you really train attorneys?  I find that hard to understand.

ANSWER:

Why is it so hard to understand? Attorneys do not obtain training in how to prepare bankruptcy petitions and pleadings when they attend law school. They are trained in the legal aspects of the various chapters within bankruptcy; but they are not trained in the actual day-to-day operation of the bankruptcy law firm.  This is where I provide the service and it is one of the most fulfilling jobs I have.

DEAR VICTORIA:

I am interviewing a prospective attorney client whose full-service bankruptcy practice includes Chapters 7, 11, and 13, and creditor representation.  He is a solo practitioner (25 yrs in bankruptcy) and is done with the hassle of training staff.  Do you (at a fee, of course) provide any personalized training in Chapter 11 and creditor representation?

ANSWER:

I would never recommend that a Chapter 11 be done virtually.  You must be able to work in the law firm office.  Why?  In a Chapter 11 there is no trustee so the rules change considerably compared to a Chapter 7 and 13.  Additionally, a CPA is normally hired to maintain bookkeeping records and report to the bankruptcy court every month.  Finally, you also should have some working knowledge of corporate law to work with Chapter 11s.

As you know, I am solely dedicated to John Q public which is why I ONLY provide training in Chapter 7 and Chapter 13. Perhaps you have a Chapter 11 confused with a small business owned by a debtor.  Unless a debtor owes $1 million in Schedule F debts, the debtor still can file a Chapter 7 or Chapter 13 for their sole proprietorship business.

The following questions and comments were submitted through email to Victoria Ring. The answers are provided by Victoria Ring who is not an attorney.  Therefore, the information provided in this article is for training purposes only and no whole or part should not be regarded as legal advice.

DEAR VICTORIA:

I have a debtor that owns a home based business.  In addition to what her company grosses, she has paid herself a salary for the past 6 months from her business.  On the Means Test, do I have to average the amount she paid herself from the business (Line 3), and in addition, average the monthly net business income (Line 4)?  Or, do I fill in Line 4, only?  Please help!!! First time I’ve had this situation.   My attorney is waiting for Form.

RESPONSE FROM VICTORIA:

First of all you need to fill out the Business Income and Expense worksheet that is included in most of the bankruptcy software programs. If you are using Best Case software, scroll down to the VERY BOTTOM of the list of forms. There is a folder named SUPPLEMENTAL FORMS.  Inside that folder is a form named BUSINESS INCOME AND EXPENSES.

Fill this form out and make sure it is filed as an attachment to Schedule I when the petition is filed.

Take the AVERAGE NET INCOME (Line 23) and enter this figure into Line 3 of the Means Test.  If you refer to the form you will see that Line 3 states: Net Payroll Other Than Debtor.)  Therefore, you will NOT include the money the debtor pays herself from the business on this particular worksheet form.

Since we now understand this information, we can reasonably deduce that the money the debtor pays to herself needs to be listed on LINE 7 or LINE 13 of Schedule I.  Check with your attorney to be sure.

Also remember to remind the attorney that he or she needs to obtain 6 months of bank statements from the debtor’s business account as well as her personal account.  The attorney will need this to verify the debtors’ earnings reported within the bankruptcy schedules.

Note: In some states, the attorney will simply take the bank statements with them to the 341 Meeting and hand to the Trustee. In other states, when the bank statements are used as pay advices, they would need to be filed with the bankruptcy petition (sometimes the court even requires a cover sheet.)  Always check your local rules of procedure to address questions at this level.

DEAR VICTORIA:

The debtor is married but is filing as an individual.  I included the husbands’ income in the Means Test because they do not live in separate households.  My problem is that I am not sure how to complete the Statement of Affairs for the husband.  I put the wifes income for 2009, 2008, and 2007 but do I also need to include the husband income for the same years even though he is not filing bankruptcy?  I was told only put 2009 for the husband because its only this year that counts for CMI.  It just does not look right to me and I wanted to run it by you.

RESPONSE FROM VICTORIA:

They may do things different in California but in all the petitions I have done (if the husband is not filing) we would place the husband’s income under Item 2 of the Statement of Affairs.  It would be listed as Spousal Contribution.  The husbands income would also be listed under Schedule I as well as the Means Test.

However, you may want to call your local California Help Desk because I have found that California has many strange customs that is totally different from other states.  I learn so much when I visit California, so make sure you check out my response to make sure you are complying with the court rules.

DEAR VICTORIA:

This is my first bankruptcy petition and I need some help.  I am filing a petition for my client and I am in California.  As you know, this is a community property state.  If a husband and wife are divorced and living in separate residences, and the husband wants to file bankruptcy without his wife, will the wife be responsible for the debts that are discharged and the husband does not pay?

RESPONSE FROM VICTORIA:

I did a little online research and I found the following information at http://bankruptcy-law.freeadvice.com/consumer_bankruptcy/spouse_bankruptcy.htm which states (in part):

…. Community property and common law (also called “equitable distribution”) are the two types of martial property ownership. The vast majority of states apply the equitable distribution rules; nine states apply the community property rules. If you live in a common law property state, your spouse’s bankrupt estate will include his/her separate property and half of the jointly-held marital property. The non-bankrupt spouse will not have to worry about the effects of the bankruptcy on his or her separate property.