Chapter 7 and 13 Bankruptcy Blog

– by Victoria Ring, Certified Paralegal and Bankruptcy Specialist

I consider it a pleasure and an honor to work with many new bankruptcy attorneys. On Friday I received an email from a new attorney in New York who was in a desperate bind.  In the initial interview, he had told the clients that their Chapter 13 Plan payment would be about $400 per month.  Unfortunately, when all the math was done and the petition completed, the debtors had $1,500 of disposable income left on Schedule J.

The attorney was correct in questioning how he could propose a Chapter 13 Plan payment of only $400 to the court when the debtor’s had $1,500 in disposable income.  He called me and then sent the petition for a review.

This is not the first attorney to face this same problem.  I encounter new attorneys who make this mistake all the time.  But an attorney taught me this one time:  She said that the one word attorneys should also use in communication with clients is the word POSSIBLY.  In other words, never make statements that are written in stone; leave yourself an out in case the scenario changes (which is often the case.)

After reviewing Schedule J of this particular petition, I immediately noticed large monthly payments being allocated to private school fees, charitable contributions and college tuition for a daughter that was over 18.  I am not an attorney, but I have worked on thousands of bankruptcy petitions over the course of my 3o+ year career.  I have found that creditors often object to these types of allowances on Schedule J and redistribute the money to paying them instead of the private school, or whatever.

I worked on one case in Atlanta, Georgia where the house the children lived in was in a bad, drug-infested neighborhood.  The parents had sent their children to private school their entire lives. The kids were sheltered from the world they actually lived in.  A creditor won his argument and those children were forced to attend the bad school. The money allocated to the private school tuition was denied and that money was paid to the creditor instead.  It is sad to me when the innocent suffer and I often wonder that happened to those little children. I am sure they had to learn how to grow up quick.  What a shame.

Anyway, I related this information to the new attorney and we talked about it.  The attorney pointed out that in the case of his debtors, they were proposing to pay everything.  The only items placed inside the Chapter 13 Plan to be paid by the Trustee were: (1) Arrearages on home; (2) Unsecured debts; and (3) Attorney and Trustee fees.  This means that there will be no objections from the secure creditors since they are being paid in full.  The only creditors to object to the private school expenses, etc. would be the unsecured creditors.

Using this logic, the attorney made the decision to file the proposed Chapter 13 Plan with a payment of $1,500 (matching the disposable income on Schedule J).  Arrearages would be paid the standard interest rate and unsecured debts were paid at 50%.  This is what made this Chapter 13 Plan so easy and extremely easy to comprehend or argue at the 341 Meeting.

I hope this information helps you in your bankruptcy law practice.

Do you need help with your Chapter 7 or 13 practice?

I am available 6 days a week and I work after hours. Since I work from home, my prices are low because my overhead is virtually eliminated.  Prices start at $350 for simple Chapter 7s. For details and other prices, visit my website at: http://www.chapter713training.com/bankruptcy_petition_preparation.html and http://www.chapter713training.com/petition_review.html

- by Victoria Ring http://www.chapter7and13training.com

We had a bankruptcy client this week who filed a Chapter 7 but owed the IRS back taxes. The client had made arrangements to pay the back taxes through an IRS-approved payment plan.

When the bankruptcy was discharged the client received a CP504 Form from the IRS which is an Intent to Seize Property. If avoided, the IRS will seize the bank account, garnishee wages and implement any number of collection procedures.

Upon contacting the IRS office, we were informed that when a bankruptcy is filed, payment plans are voided and need to be reinstated. This requires a call to the IRS office, which the debtor can do.

Since most back taxes are included in a Chapter 13 Plan for the trustee to pay; it is important to inform all Chapter 7 clients who owe back taxes of this procedure.

Recommended Tax Attorney

Brian D. Salwowski Attorney at Law 55 Monument Circle #1300 Indianapolis, IN 46204 Office: 317-423-0019 bsalwowski@gmail.com

Michael Burstein and Debora Golshani (two attorneys who currently operate an Estate Planning practice) decided to open up a new Chapter 7 and 13 practice in the Central District of California. It was an honor that they chose Colorado Bankruptcy Training (CBT) to help them establish their new practice and you can find out more about them at:

http://www.bursteinlaw.net/attorneys/ Phone: 310-391-1311

Michael and Debora flew from Los Angeles to Denver, rented a car and drove to Colorado Springs on April 21. They obtained a suite at the Hyatt so that I could train them at their hotel on April 22 and 23.

All law firms who decide to train through CBT, receive 30 days of free access to My Bankruptcy School. I do this so that the attorney can benefit from the best of both worlds. Instead of spending our training time concentrating solely on how to prepare a petition (which can be obtained online) I am able to cover much more during the training period.

We began the first day of training by establishing a clear set of operational procedures. We covered a wide range of ideas, as well as tips and techniques used by other attorneys I have trained over the years. In addition we covered the court process for both Chapter 7s and 13s, as well as how to utilize Motions, Answers and Amendments as well as how to avoid many problems which are normally caused by the inaccuracy of the petition itself.

One thing I always include in my training is to show attorneys how to cross-reference information provided by the clients with the petition in order to maintain accuracy and reduce issues. This way, an attorney should know of any possible Objections that could occur BEFORE the petition is filed. The goal is for the petition to be as near perfect as possible and to eliminate any issues with the Trustee, which delay the petition process.

On Saturday, April 23 Michael, Debora and I spent the majority of time performing extensive case analysis.  We trained on PACER and I walked them through several Chapter 7s and 13s.  We also analyzed the various pleadings in open and closed cases and determined how these problems could be eliminated.

Although Michael Burstein does not have his bankruptcy law firm website online at the time of the writing of this article, I wanted to announce the news to the subscribers and LinkedIn members as soon as possible. Join me in congratulating Michael Burstein in the opening of his new bankruptcy practice.

Training References to Help Your Law Firm:

Colorado Bankruptcy Training offers a free, unique ebook titled: The Bankruptcy Attorney Start-Up Kit at: http://www.coloradobankruptcytraining.com/bankruptcy_attorney_startup_kit.pdf

For additional training and support options, visit:

Online Training http://www.coloradobankruptcytraining.com/online_bankruptcy_training.html

Training in Colorado http://www.coloradobankruptcytraining.com/bankruptcy_training_colorado.html

Training at Your Law Firm http://www.coloradobankruptcytraining.com/law_firm_training.html

Legal Web Design http://www.coloradobankruptcytraining.com/legal_webdesign.html

 

— by Victoria Ring

Problem: An attorney graduates from law school with knowledge of the law and how to interpret it; but they never learn the day to day operations of the law firm or how to market their practice.  That task used to be performed by law students, paralegals and legal secretaries. However, in the field of debtor bankruptcy, many attorneys are preparing their own petitions and marketing their own law firms.  In doing so, attorneys eliminate 90% of their overhead expenses and dramatically increase their profits.

But where does an attorney go to learn how to properly prepare a bankruptcy petition? There are many CLE courses for bankruptcy but none of them specifically address the Chapter 7 or 13 petition.  In the past, attorneys and paralegals had to learn either through trial and error (with the court) or by training through someone who had the experience.  But this type of training is not only inconsistent but it does not guarantee professional quality.  And without these two ingredients, the law firm for a bankruptcy attorney will lose profits and eventually collapse.

It is a known fact that if the bankruptcy petition is prepared correctly in the beginning, the entire case will process through the system with less complications. Additionally, potential problems can be addressed before filing; thus saving even more time and money.

REAL LIFE EXAMPLE

A law firm in Maryland was told by several of their attorney friends that preparing the bankruptcy petition paperwork was a piece of cake.  So, when a client came into the office with $4,000 in their hand wanting to file a Chapter 13 because of a foreclosure sale in 2 weeks, they promptly filed an emergency petition to save the home.

Typical example right?

Yes, but this is normally a bad decision.  It is a proven fact that if clients wait until the last minute to save their home, it is going to be extremely difficult and time-consuming to gather all the information needed to properly prepare the petition.  And when an Emergency (or Skeleton) petition is filed, the attorney only has 15 days to get the remaining schedules and Chapter 13 Plan filed.

When they run out of time, many attorneys are then forced to file an extension, which automatically causes the attorney to appear disorganized and unreliable. These negative feelings (that the court may form from this behavior) can have an effect on future cases the attorney may file.  Therefore, it is vitally important for the attorney to learn how to earn brownie-points with the court rather than create negativity from the beginning.

A SUGGESTED METHOD

When I set up new law firms and train new attorneys in paralegal-type operations, I always stress never to file an Emergency petition unless it is absolutely necessary and there are no other alternatives. Besides, when the debtor is aware they are on a deadline to save their home, they are more inclined to get the information the attorney needs to prepare the petition.  However, when an Emergency petition is filed, the client thinks everything is covered and they are not motivated to get the information needed as quickly.

Secondly, new attorneys need to realize that properly preparing a Chapter 7 or Chapter 13 is VERY DETAILED and a great deal of information is required (much like IRS tax returns.)  Without this information, the attorney will normally be filing several amendments to the schedules and a great deal of time will be lost; and time is money.

REFERENCES

If you would like to learn methods to save your bankruptcy law firm a great deal of time and money; and how to increase your profits, contact the author, Victoria Ring at:

http://www.victoria-ring.com Email: victoriaring1958@gmail.com Cell: 719-659-0743

Also, contact Karen Fairchild; a California bankruptcy who recently trained with Victoria. Her contact information is:

http://www.karenfairchild.com Email: karen@karenfairchild.com

Or, enroll in My Bankruptcy School; the first online school specifically designed to train attorneys and their staff in the Chapter 7 and Chapter 13 bankruptcy petition. Visit:

http://www.mybankruptcyschool.com We wish you the best of success.

 

Issue 04 – November 15, 2010

RE: UNEXEMPT EQUITY IN A CHAPTER 7

When Mary Doe (fictitious name) filed her Chapter 7 bankruptcy petition, the attorney used the Kelly Blue Book TRADE IN value for her car on Schedule B; which was $5,200.  The attorney was not aware that the local Trustee used the PRIVATE PARTY value from the Edmunds website.  The Trustee claimed that by using Edmunds and the Private Party value, he determined the market value of the car to be $7,800 instead of $5,200 and objected to the granting of a discharge until the unexempt equity ($4,500) was paid or the items would be seized and sold by the court.

From the courts point of view, this scenario makes perfect sense. Mary is asking the court and her creditors to forgive her of over $200,000 in debt resulting from a foreclosure and medical bills.  In exchange, she only needs to pay the court $4,500 in unexempt equity.  But from a human point of view this news is devastating because Mary is penniless. After paying her basic living expenses, she has less than $5 in cash to live on.  How can she pay the court $4,500?

Some people may say that Mary should find a job and increase her income; but Mary lost the muscle control in her hips and legs from 18 years of uncontrollable diabetes. She now must use a cane to walk short distances and a wheelchair for longer distances. Therefore, Mary is severely limited in her ability to earn an income outside the home.

In addition, Mary’s car is her only mode of transportation and she has no living relatives or friends that live close enough to provide daily transportation to meet her basic needs. If Mary loses her car, she will be unable to get to the doctor and the grocery store, thereby causing her to eventually become an award of the state as she would be forced on welfare simply to survive.

POSSIBLE SOLUTION NO. 1

The Chapter 7 may be able to be dismissed due to the fact that Mary would be placed in a hardship (much worse than she would have been prior to filing bankruptcy) if the present bankruptcy were to continue.  However, in order to dismiss the case, it would require the filing of a pleading and a court hearing would need to be scheduled in order to render a Judge’s decision on the matter.  Mary may also need to hire an attorney to represent her at the hearing, which she clearly cannot afford.

Note: Debtors are normally prevented from dismissing a Chapter 7 case when unexempt equity is involved, which is different from how unexempt equity is treated in a Chapter 13 filing.

But there is a problem; once the Chapter 7 case would be dismissed, Mary would be back to Square One and still owe her creditors $200,000; therefore, they would begin collection procedures again.  Since Mary has already revealed her car as an asset in the bankruptcy filing, the creditors will know this asset exists and would naturally file a lien against it and take the car anyway.

POSSIBLE SOLUTION NO. 2

Working with the attorney we naturally came to the conclusion that Possible Solution No. 1 was not in the debtor’s best interest.  Eliminating this solution left us with the only possible choice and that was to come to an agreement with the Trustee on the amount of unexempt equity Mary needs to pay back.

To do this, the debtor had to agree as to the true market value of her car.  She visited three different automobile dealers: (1) dealers who sold new and used cars; (2) dealers who only sold used cars; and (3) Buy Here Pay Here car lots.  She obtained a written proposal from each which amounted to $6,400, $6,700 and $6,900 respectively.

The attorney called the Trustee and convinced him to allow the lower $6,400 estimate simply because Mary was penniless and unable to afford to replace her current vehicle.  In doing so, this left Mary with unexempt equity of $3,100.  Due to Mary’s financial condition, the Trustee also agreed to accept monthly payments in the amount of $258.34 so she could keep her car.

Problem:  Although this appears to be a better solution for Mary compared to Possible Solution No. 1, where is Mary going to get the extra $258.34 per month to pay the Trustee?  Besides, if Mary agrees to make these payments, the Trustee will want to know where this extra money was obtained and why it was not included as income on Schedule I when the petition was filed.

Important Lesson:  Many Trustee’s use this approach when a Chapter 7 is filed because they are able to determine if the debtor has lied about their true income. By placing a debtors assets on the line and threatening to take them away, debtors often come up with extra money and then the Trustee can dismiss the case because the debtors committed perjury by misrepresenting their income on Schedule I.

At this point is when a discussion with Mary was necessary in order to resolve the issue.  When I contacted Mary (on behalf of the attorney) she said that her ex-husband offered to make the necessary monthly payment so that she would not lose her only mode of transportation.  Once the Trustee accepted the newly proposed amount of unexempt equity. Mary’s cousin mailed a check for $258.34 to the Trustee every month and satisfied the court’s requirement.

What if …?

What would have happened if Mary told us she would pay the $258.34 to the Trustee each month to keep her car?  Before making a proposal to the Trustee we would need to know where she obtained this additional money and why it was not reported on Schedule I.

If Mary had recently received a raise in salary, we would need to amend Schedule I to report the new income and obtain pay check stubs (which would be used as Exhibits) to verify the increase in salary. If Mary said she rented a room in her home to get the extra money we would need a copy of the rental agreement.

But in Mary’s case, her ex-husband agreed to make the payments because he knew that Mary was penniless and would be on welfare if she lost her car.  In addition, the ex-husband knew he could not buy a reliable replacement vehicle for $3,100.  In this case, the ex-husband wrote a letter to the Trustee stating that he agreed to make the payments and the ex-husband made these payments directly from his personal checking account throughout the payment duration.

Are You An Overworked Bankruptcy Attorney?

We are accepting new attorney clients. Please give me a call at 719-465-2442 to discuss your bankruptcy case needs. I am normally in the office from 10:00 am to 8:00 pm Mountain Standard Time.

Talk to you next week ….

Victoria Ring Colorado Bankruptcy Training http://www.coloradobankruptcytraining.com

Many bankruptcy attorneys that we prepare petitions for are normally apprehensive regarding cram downs and strips downs of mortgages. Although I have written many articles about these topics, one angle I have not covered before is the angle of NOT proposing cram downs or strip downs at all. This is great news for those bankruptcy attorney practicing in states where they encounter problems with the courts when they try to propose cram downs and strip downs to help their debtors. Read the rest of this entry »

An independent review of the My Case Info tool developed for bankruptcy attorneys in an effort to save them time and eliminate paperwork. This video shows you a behind the scenes look at how the information is imported and the havoc caused within the petition. Read the rest of this entry »

– Victoria Ring, Colorado Bankruptcy Training

For those of you just entering the field of debtor bankruptcy, this article will be very helpful to you because it addresses a very common problem that occurs when working with debtors.  The common problem is that debtors want their cake and eat it too. This statement may sound a little harsh but allow me to explain:

I am finding that many new attorneys entering the bankruptcy field do not have the training to screen their clients before sending us the petitions for input.  One of the easiest methods for an attorney to screen their clients is to find out how much equity is in their home before taking the case. During the intake it only takes a minute or two to find out approximately how much the debtors owe on their mortgage.  Then, while the client is still in the office, go to a computer and do a search on www.zillow.com.  Although Zillow is certainly not a court authority by any stretch of the imagination, it will tell you immediately the approximate amount of unexempt equity the debtor may have.

For example: I had a case today for a California debtor who had just divorced. There was $200,000 of equity in the home.  Since the debtor was divorced, he only had to claim $100,000 of this equity.  Under the 704 California exemptions, the debtor was provided with a healthy $75,000, leaving him with $25,000 that was UNEXEMPT.  Was the debtor happy about the $75,000 exemption?  Of course not.  The debtor was angry because he wanted to keep the $25,000 plus have all his debts excused.  Although most debtors may not realize it at the time, in reality they are being unfair and asking the attorney to commit fraud by making this selfish demand.

Unfortunately, most of the new bankruptcy attorneys that I work with do not understand the bankruptcy law well enough to properly advise their client.  Instead, they accept the case, have the client fill out the intake forms, pay the fees and send the paperwork to my team.  We input the petition and discover the problem with the equity in the home.  By this time, the attorney has invested his or her time, the debtor has spent several hours gathering information and we have worked inputting the case.  When we discover this problem we alert the attorney, the attorney talks to the client and the debtor decides not file bankruptcy.  The attorney is forced to refund some of the money because the attorney did not know how to properly explain the advantages to the debtor of filing a Chapter 13 instead.  In fact, if the attorney had called to discuss this case with me, I could have taught him how to turn this unhappy client from a Chapter 7 to a positive Chapter 13 because I deal with these issues all the time.

For example, this particular debtor had $38,000 in Schedule F debts and $25,000 of unexempt equity in his home.  The debtor did not want to surrender his interest in the property because he wanted to make sure his ex-wife and children had a home to live in.  This is admirable, but the court and creditors look at numbers because they are not emotionally tied to debtors. New attorneys must learn these types of skills so they can help the debtor understand why it may or may not be to their advantage to file bankruptcy at this time.

But for the particular debtor in our scenario, it would have been to his advantage to file a Chapter 13.  First of all, we could have proposed a 100% Plan which would have more than likely protected the $25,000 of unexempt equity.  Secondly, the Chapter 13 would have eliminated $73,000 in interest charges over the 5 year Plan period, the debtor would have paid off his student loan in full as well as the unpaid personal income taxes from 2002.  By presenting these positive factors to the debtor, the attorney may have saved this case and never had to refund money.  Plus the debtor would be happier once he understood the advantages.

(Note:  A key to good marketing is to point out advantages for the client.  If you can show a client how much money you can save them and how, they often will do whatever is necessary to comply with your requests and invest their time and money making it happen.  This is what makes a happy client and this is what generates referrals.)

But in this case, the attorney did not call to discuss the matter with me.  He simply told the client that he would have to pay $25,000 or lose his home.  This naturally scared the debtor to death and he decided not to file. Who can blame him?

It amazes me when things like this happen; and they happen quite frequently.  In fact, it may be shocking to you also.  I hope so, because I want this article to be shocking enough to help to prevent this from happening to you.  Also, please understand that this article is not intended in any manner to provide legal advice.  I am not an attorney and I am not trying to predict what a bankruptcy court to do by writing this article.  I am simply trying to help you understand the concept of fairness so you will know how to better deal with situations exactly like this in the future.

I wish you the best of success and encourage you to continue learning and working hard to protect the debtor; but in a fair and balanced way.

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– by Victoria Ring, Colorado Bankruptcy Training

In the old days (not long ago) when a person decided to file bankruptcy they normally really needed to file bankruptcy.  But today, a large number of cases are filed with the fraudulent intention of taking advantage of the bankruptcy system and it is up to every one of us working in this field to do our part to protect the system or we risk even more regulations and hoops to jump through.

The best way to accomplish this goal is to demand that debtors provide verifiable documentation about their income for the past six months.  During the last month I have witnessed four cases involving debtors who claim to work as a 1099 employee but they have no verification of income and expenses to back up their statements.  When confronted for additional data, normally the debtor (who is trying to hide something) will give the attorney and their staff conflicting stories.

One attorney we helped this past week told us that the debtor had given him 100 different stories.  The attorney wanted us to call the debtor and see if we could get the truth.  First of all the debtor would not answer the phone and gave the excuse that he avoided phone calls because of credit collectors.  Note:  Don’t fall for this. The debtor knew he was filing bankruptcy and that his attorney will need to get in touch with him during the process.  In my experience, debtors avoid phone calls because they: (1) Are too paranoid to face their problems and want to forget about them; or (2) They are hiding something and need time to think up a good excuse.  (Please understand that I am not trying to be harsh.  I am just stating facts.)

In all case scenarios we worked on this past week, the debtors were required to provide six months of income statements.  Of course 1099-employees do not receive a paycheck from an employer, but they must have some type of accounting system to show the income and expenses for their business.  If they do not, something is odd.   Keep in mind, that some debtors will tell you that they do not keep records to avoid providing you with information about their actual income, so you need to go a step further.  You need to get the debtors to provide you with a Profit and Loss statement for their business, regardless of whether they have one or not.  They can write one up and provide to their attorney.  And the income figures the debtors provide need to match the bank deposits from their business and personal checking accounts.  If not, creditor objections are very probable.

That’s right.  You need BOTH the business and personal checking account statements for the past six (6) months; and if you want to go an extra step, compare the figures with the IRS Income Taxes that were filed the year before.  Of course these figures may not be exact, but comparing them will often allow you to determine if the debtor is providing you with fraudulent data in an effort to hide their income.  For example:  If the IRS Tax Forms that were filed in 2009 showed a loss of $20,000, and the 2010 bank statements show the debtors are depositing $5,000 a month; something is wrong.  A business does not normally operate an entire year, go in the red $20,000 and suddenly make $5,000 every month.

Use logic in your analysis of the data the debtor provides whether you are an attorney or working for an attorney.  Doing so will protect the attorney, fulfill due diligence and protect the system from fraudulent debtors.

Visit us online at: http://www.coloradobankruptcytraining.com