Bankruptcy Discrimination - The Law and its Limits

Bankruptcy discrimination has been in the news lately and though I did a blog earlier this summer, I thought I would write a more general purpose article. Bankruptcy discrimination, for filing bankruptcy, is illegal. From time to time I get questions from clients who ask about what would happen if their employer learned they had filed for bankruptcy. Often, debtors are worried that their job with private employers or governmental agencies might be in danger if their bankruptcy becomes public knowledge.

If you are contemplating bankruptcy, the worry of employment discrimination shouldn’t be a worry. Employment discrimination for bankruptcy is illegal for either private or governmental employers. Bankruptcy discrimination against an individual for filing for bankruptcy as to employment because that person has filed under Chapter 7 is illegal under 11 U.S.C 525.

Likewise under 11 U.S.C 525 (c), state and federal governmental agencies cannot discriminate certain government services due to a bankruptcy. For example, a government sanction agency cannot discriminate against a person as to the granting of licenses (driving, fishing, etc), permits, student loans, and similar school or education grants because that person has filed under Chapter 7 or Chapter 13.

Bankruptcy discrimination

Bankruptcy discrimination shouldn’t reduce your chance of opening the door for employment; but there are limits.

 

However, not all discrimination is illegal. In many cases credit history which includes a filed bankruptcy, is used in situations other than simply issuing credit. For example landlords will at times look at credit history when determining whether a tenant’s application. In practice, clients haven’t run into this issue too often. I one place wont lease to you, another most likely will. Car and other insurance companies may also discriminate as they will sometimes use credit history when factoring in and determining rates.

In most cases, when a potential client walks through my doors, their credit history is already poor. Nothing in the bankruptcy code prevents the majority of discriminatory practices against a debtor whether or not he or she has filed bankruptcy. Whether the potential client files for bankruptcy or not, it will likely take years to regain his or her credit. For many potential client, the fresh start that comes with a bankruptcy discharge allows the debtor to go out and start to rebuild their financial lives without being harassed by creditors or in constant stress when drowning in debt they can’t pay.

Remember, bankruptcy gives you two benefits. First, bankruptcy gives the debtor a fresh start, and second, to give creditors their fair share in cases where the debtor has significant assets. Federal law provides numerous protections for debtors to prevent discrimination and to allow the debtors to restart their financial lives.

Improving Credit Score in Seven Steps

Improving credit score after a bankruptcy or other financial hardship takes some time but isn’t that hard if you watch what you are doing. Going through bankruptcy impacts now not simply your debt and assets, but your credit rating also.  Your credit rating frequently diminishes in the course of going through financially trying times and usually isn’t doing to well by the time a client is looking at bankruptcy. Every missed credit score card, vehicle loan, or mortgage fee will take a tole on your credit  score.  If you choose to claim bankruptcy, your credit score rating will further decrease.
A bankruptcy will continue to be on your credit score report for up to 10 years, and there is a superb risk your fair Isaac credit score, more generally known as your FICO rating, will be lowered following a financial disaster.  These steps will help you improve credit score ratings. So read on.
With this being said, you do now not have to wait 10 years to rebuild a wonderful credit score.  In only a few years following financial ruin, your credit can improve drastically if these following these seven steps are adhered to:
One.     Assessment your credit report—it is essential to begin the manner of rebuilding your credit by using first gaining an knowledge of wherein you stand.  You have got the right to gain one loose credit score report a year from Experian, TransUnion, and Equifax on annualcreditreport.com.  After you keep your reproduction, similarly to assessing your rating, overview the credit record for any errors.  Contact the credit reporting agencies to correct any inaccuracies in order to negatively effect your score.
Two.     Constantly pay your bills on time—your payment history has a vast effect in your credit score, making up 35% of the general rating.  As a result, one of the simplest ways to convey up your credit score is to pay your payments on time.  It is helpful to put reminders in your calendar each month by using the due date.  Additionally, many offerings allow you to set up an automatic payment gadget, that allows you to ensure you keep in mind.
Three.     Cautiously follow for credit—credit cards can play a vital function in rebuilding credit.  If you did now not maintain a credit score card open throughout financial ruin, you have to follow for one after your financial disaster has been discharged.  You may want to open a secured card, which calls for you place a security deposit with the issuer.  Ensure you do now not repeat past mistakes—repay the total balance whenever viable and be cautious not to acquire any extensive debt. Improving credit score can be done with credit cards, but try not to use them unless you know you can pay them off each month.
Improving Credit Score

When going through the process of Improving credit score, make sure you know your limits

Four.     Realize your limits—for rebuilding credit score, as well as ensuring a fantastic monetary status, be privy to the boundaries for your credit cards and preserve balances properly under it.  Use all credit cards sparingly and pay the invoice on time, each time.
Five.     Be cautious of credit repair offerings—you may possibly acquire mailings from businesses promising to help repair your credit score.  Check out the sort of offerings before you operate them, as they may charge hefty costs and reap few consequences.  You can rebuild and ensure you are improving credit score in your personal for free of charge.
Six.     Gain a mortgage—a 12 months or two after your financial ruin, you could need to do not forget applying for a car mortgage or line of credit score.  Be sure the mortgage is less expensive and that you can successfully pay it off.  You can acquire higher hobby fees.  Keep round and know that your costs will drop in the destiny with successful compensation of the mortgage.
Seven.     Do no longer close bills—after maintaining bankruptcy, you’ll be leery of credit score cards and contours of credit score.  Many individuals move to this point as to close those traces of credit.  Taking this movement may have a dangerous impact on your credit.  Final debts reduces the quantity of credit to be had to you, thereby diminishing your credit score.  Preserve traces of credit open even if you do no longer use them.
If you’re thinking about bankruptcy you must seek advice from an experienced Phoenix bankruptcy attorney or Mesa financial disaster lawyer to find out the high-quality way to rebuild your credit score.
Asserting financial disaster impacts no longer simply your price range and personal life, however your credit rating as well.  Your credit rating frequently diminishes for the duration of the financially attempting instances main as much as financial disaster. Each overlooked credit score card, vehicle loan, or loan fee will take successful in your credit score.

Bankruptcy Code Requires Hearing and Notice and Trumps Local Rules

The United States Bankruptcy Code requires a hearing and notice via a motion to dismiss before a bankruptcy court is allowed to dismiss a debtor’s chapter 13 case and any contrary Local Rule in any local district is invalid. No v. Gorman (In re No), No. 17-1679 (4th Cir. May 24, 2018). While this may not apply to the 9th circuit where Seattle bankruptcy attorneys operate, the Bankruptcy Code likely would be interpreted similarly here.
Bankruptcy Code

The Bankruptcy Code takes priority over Local Rules

 

Sarah Hyunsoon No (yes, her last name is No) filed for bankruptcy under Chapter 13. She filed a subsequent proposed plan. However, Ms. No did not attend her scheduled meeting of creditors (341 hearing). She also failed to make her first payment under the payment plan as required. Initial payments are due within 30 days of filing under Bankruptcy Code section 1326 and her Local Rule 3070-1(C). The trustee, named Thomas Gorman, then certified via declaration that Ms. No had failed to make payments under the plan. Mr. Gorman also certified that Ms. No had not complied with the Local Rule and that her case should be dismissed. The bankruptcy court scheduled a hearing on the motion. However, the Court dismissed Ms. No’s case prior to the hearing. On appeal district court affirmed.
The case was then brought to the Circuit court. The Circuit Court found that the Local Rule conflicted with Bankruptcy Code section 1307’s notice and hearing requirement. The Fourth Circuit then reversed. Specifically, Bankruptcy Code Section 1307(c)(4) states that a bankruptcy court may, “on request of a party in interest or the United States trustee and after notice and a hearing, . . . dismiss a case under this chapter . . . for cause, including . . . failure to commence making timely payments under section 1326 of this title.” The circuit court decided the plain language of this bankruptcy code was unmistakable: Ms. No was owed a hearing before her Chapter 13 bankruptcy case was dismissed. The circuit court refused to accept the trustee’s counter-argument that a hearing was not necessitated because the bankruptcy judge dismissed the case pursuant to his own authority rather than in response to a motion by the trustee. The court found the trustee’s certification of Ms. No’s failures to comply with the Local Rule constituted a “request” under the bankruptcy code and triggering application of section 1307(c)(4) notice and hearing requirements. The court finally concluded that the Local Rule was invalid and was inconsistent with the Bankruptcy Code.
If you have debt issues like Ms. No and need a Seattle Bankruptcy Attorney to help, call our office and get started!

Government Penalties in Bankruptcy: What makes them non-discharbeable

Government penalties are not dischargeable in Chapter 7 bankruptcy. However, government penalties are dischargeable under Chapter 13 after a payment plan is completed. This does get tricky when a particular debt or penalty also comes from a finding of fraud. Penalties that originate based on fraud fall under section 523(a)(2) of the bankruptcy code. These penalties when owed to the government are based on fraud first and a penalty second when looking at section 523(a)(2) and then looking at 523(a)(7). Section 523(a)(7) lists penalties from a government agency as non-dischargeable in Chapter 7, but is excluded from exemption in a Chapter 13. Therefore when a government penalty is based on fraud, the debt falls under Section 523(a)(2) and is thus not dischargeable. Were the debt solely based on a penalty (Section 523(a)(7), then the debt would be dischargeable under Section 1328(a). Andrews v. Mich. Unemployment Ins. Agency, No. 16-2383, Kozlowski v. Mich. Unemployment Ins. Agency, No. 16-2680 (6th Cir. May 29, 2018).
In two recent and separate cases, chapter 13 debtors, Richard Kozlowski and Priscilla Andrews, tried to discharge penalties incurred upon them for fraudulent collection of unemployment insurance benefits. In each case the bankruptcy courts denied discharge under section 1328(a). On appeal their respective district courts affirmed the lower court rulings.
The appeals were consolidated; meaning that they were separate cases but heard simultaneously by the appeals court. The debtors put forward that their debts fell under section 523(a)(7) which is excluded from subsections of bankruptcy code 523(a) which are excluded from discharge under section 1328(a)(2). The Court began by looking at the prior case of the Supreme Court case of Cohen v. de la Cruz, 523 U.S. 213 (1998), where in that case the Court found that Cohen set forth the rule that “the penalties associated with fraud should be regarded as essentially the same as the fraud itself and are to be included under the § 523(a)(2) exception from discharge, as debt arising from fraud.” The court then threw out the appellants argument that Cohen was inapplicable (distinction for the lawyers out there) here because Cohen didn’t involve a dispute between a debtor and a government, but instead involved a dispute between private parties. The court found that distinction irrelevant and the other case law unpersuasive as the case law set forth by the Debtors predated Cohen and therefore no longer applied.
Government Penalties can be discharged in Chapter 13, generally.

Government Penalties can be discharged in Chapter 13, generally.

The Court further ruled that the general principle that exceptions to discharge should be narrowly construed in favor of the debtors was intended for the protection of the “honest but unfortunate debtor,” rather then the debtor whose prior fraudulent conduct was the cause of his or her indebtedness.
The court cited Husky International Electronics, Inc. v. Ritz, 136 S. Ct. 1581 (2016), the court went on to rule that the various subsections in section 523(a) are not mutually exclusive and therefore a debt may fall under more than one category. This is the case here where the penalties imposed by the governmental agency were also within the meaning of both section 523(a)(2) and section 523(a)(7) and the subsections were drafted and written toward slightly different types of debts, with neither being more specific than the other.
The appellate court ultimately affirmed. As a result, government penalties based on fraud are not dischargeable in the Sixth Circuit and are unlikely dischargeable in the 9th circuit either. However, if you have a debt based  solely on government penalties, those may be dischargeable in a Chapter 13. If you need help, contact our office and visit our Seattle bankruptcy attorney website.

Bankruptcy Law History of the Constitution

Bankruptcy law in the world dates back thousands of years. Both old testament and the Quran discuss religiously mandated ease from debts, either permanently or in the case of the Quran; delaying payment until hardships had passed. In the United States, bankruptcy is specifically mentioned in the original constitution.
Originally when drafting the Articles of Confederation and later the Constitution; the founding fathers borrowed heavily from English common law. Borrowing from the English legal template was quite common, and most of our current common law and even much of our written law was shaped by English common law.
After the Revolutionary War, ad prior to the formation of the Federal Government under the Constitution, each independent state developed their own forms of bankruptcy. Laws regarding bankruptcy in New York could be drastically different then those in Georgia. A debt that might get you imprisoned in one state might not in another.
Bankruptcy is specifically named in Article I, Section 8 which give Congress the specific power to establish uniform laws regarding bankruptcy throughout the United States.
This power was specifically enumerated so that states and citizens wouldn’t need to fight over jurisdiction. Now, a single body of law could be applied universally throughout hte United States regarding debtors receiving relief from the government regarding their debts.
Still, the law moved slowly regarding bankruptcy. As you’ll see, most bankruptcy laws are passed during or quickly after an economic crisis. In fact, the last debtor prison wasn’t formally abolished until 1833, some 46 years after the Constitution was signed. Congress didn’t even act on its own authorization to set forth any bankruptcy laws until 1800 when Congress passed the Bankruptcy Act of 1800 which was a very creditor friendly law which only permitted involuntary bankruptcy – which meant that creditors could force you into bankruptcy; but you wouldn’t be able to file yourself.
Forty-one years later Congress finally got around to passing a new federal bankruptcy law allowing debtors to file their own bankruptcy without the need for a creditor to initiate. However, the law was repealed two years later when creditors complained too much about how the law was too favorable to debtors.
The third major Congressional law occurred in 1867 after the Civil War and yet another financial panic. This law was again favorable to debtors, but once more was repealed in 1888 after creditors complained the law was too favorable to debtors.
It wasn’t until 1898 that Congress finally got around to passing a bankruptcy law that was more or less permanent. While the law has changed and been amended, the law has never been repealed and ended any further times when no bankruptcy laws were in effect.
1978 was the last major reform to Bankruptcy and made comprehensive and wide ranging changes to the bankruptcy system and wasn’t altered again until 2005 when some additional changes were made and included requiring credit counseling and debtor education courses.
Bankruptcy Law

Bankruptcy law in the United States abolished debtors prisons in 1849

While bankruptcy hasn’t always been at the forefront of Congress’ “to-do” charts, bankruptcy does now allow debtors a reasonable opportunity to get out from under massive debt. Though certainly not perfect, I think we’re lucky to live in a time where debtors prisons are a relic of the past.

Acceleration Abandonment Upheld in Texas

Acceleration of a debt occurs when a periodic contract amount becomes due all at once. In a case down in Texas, it turns out that in some instances a mortgage lender can abandon an acceleration of a mortgage in a number of ways. While the case discussed here is not in the 9th Circuit where Seattle sits, the case may be adopted in part or full in the future. A creditor can abandon the acceleration of a debt either by specific agreement or by actions consistent with abandonment, such as latches or statute of limitations(delay in bringing an action). In re Williams, No. 16-33276 (Bankr. S.D. Tex. Aug. 3, 2017).
In a Chapter 13 case, the debtor Durwyn Williams defaulted on his mortgage from U.S. Bank Trust which was then being serviced by Caliber Home Loans. Caliber accelerated the balance due on the Note in the year 2010, and later started foreclosure actions against the home securing the mortgage. In 2014, with the foreclosure still ongoing, Caliber sent Mr. Williams another notice repeating the information that his property was in foreclosure and there was a balance of approximately $250,000.00. Mr. Williams filed for Chapter 13 bankruptcy in 2016. Caliber then filed a proof of claim, claiming Caliber was owed more than $500,000.00. Williams’ attorney objected. William’s attorney argued proof of claim was precluded by the four-year statute of limitations (again in Texas) triggered when Caliber invoked the Note’s acceleration clause.
Under 5th Circuit, in particular Boren v. U.S. Nat. Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015), abandonment of an acceleration can result from either agreement or “other action” of the creditor and debtor. Courts have broadly interpreted that “other action” by the creditor may include acceptance of payments after acceleration or written/verbal assurances that future payments will be made and accepted, intering into a new intent-to-accelerate notice, or institution of new foreclosure proceedings. Here, Caliber argued that it abandoned the acceleration when it sent Mr. Williams the 2014 statement showing an amount that was lower than the total accelerated balance. Caliber cited Leonard v. Ocwen Loan Servicing, L.L.C., 616 Fed. Appx. 677 (5th Cir. 2015) and Boren, 807 F.3d at 99, in which communications from the creditor to the debtor, while not using the word “abandon,” explicitly showed that payment of less than the accelerated balance would prevent foreclosure.
The court however, was not persuaded by Caliber’s. In Mr. Williams’ case, all communications from Caliber to Mr. Williams confirmed the existence of the acceleration by repeatedly reminding Williams that his property was currently in foreclosure and that he should pay the balance of the loan. Aside from this, the statement Caliber pointed to as indicating a balance less than the accelerated balance, was sent after the four year statute of limitations had already expired.
The court also denied Caliber’s contention that it abandoned acceleration when Caliber made advances for taxes and insurance on the property. Looking to Bank of New York Mellon v. Maniscalo, 2016 WL 3584423 *3 (E.D. Tex. March 3, 2016), the court determined that a lender does not abandon acceleration merely by taking action to protect its lien.
In this case there was no abandonment of the acceleration. Caliber failed to foreclose within four years, and therefor lien on Mr. Williams’ property was void to the degree Mr. Williams was objecting to the accelerated amount.
Turning to then to Caliber’s demand for the taxes and insurance, the court determined that the parties’ mortgage contract allowed for payments to be made incident to default by the debtor and for the taxes/insurance to be added to the indebtedness secured by the property. The limitations period that precluded Caliber’s claim for the balance of the mortgage did not also prevent the independent claim for the  payment of the taxes and insurance. The court then ordered an equitable lien for Caliber for $65,448.09, representing amounts paid over 4 years to maintain the property.

341 Hearings in Bankruptcy Aren't That Bad


341 Hearings in Bankruptcy

341 meetings, sometimes called a Meeting of Creditors or 341 hearing, is often the only actual meeting a bankruptcy filer must attend during the bankruptcy process. Every bankruptcy petitioner in a CHapter 7 and/or a Chapter 13 must attend a 341 hearing in order to have their debts discharged.  As an introductory summary, at a 341 hearing you will be asked questions under oath about your financal condition by a Bankruptcy Trustee, Bankruptcy Administrator, and/or possibly your creditors and/or their Seattle bankruptcy attorney. It sound scary and to first time filers; can be and feel nerve-wracking. However, in the vast majority of cases, you spend less than five minutes answering questions.

Prior to the 341 Hearing

341 hearings are usually scheduled 4-6 weeks after the date in which you file. At least one week before the 341 hearings, you or your Seeattle bankruptcy attorney should make sure the bankruptcy Trustee receives copies of your most recent tax returns, bank statements covering the date of filing, and 60 days of paystubs.  If you do not provide these documents or reasons why they are not provided, (for example you can’t provide pay stubs if you haven’t been working) your 341 hearing may be simply continued and you will have to come back for another hearing after the documents are provided.  At the meeting, you will usually be scheduled along with a room full of other people persons who have recently filed.  When your name is called, you will approach the trustee with your attorney to the front of the room. There you must provide two forms of ID, a photo ID, and some sort of ID that shows your social security number along with your name.  After that you will be placed under oath and sit down to answer questions.
During the Meeting
Some questions are canned, and are asked of every debtor at their meeting. Questions that everybody or almost everybody is asked:
Is everything that you wrote on your bankruptcy application correct?
Did you read and sign the petition before filing?
Do you have any domestic support obligations?
Have you ever filed for bankruptcy before?
Is the tax return provided the most recent tax return filed?
Have you made any payments on loans in the last 90 days?
Do you plan on keeping your car (if you owe money on your car?)
Additional questions may be asked by the trustee or administrator if your case is more complicated (if any funds may be distributed for example). Business owners and those with real estate may be asked additional questions. In my experience, business owners are typically asked the most questions in cases where there are items the trustee may need to seek and/or value to determine if any portion of this property must be liquidated.
When the Trustee has finished asking questions, the Trustee will ask if any creditors are present who want to ask the debtor any questions under oath.  In the vast majority of cases, there are not. If no creditors have any questions, the debtoris excused. and their 341 meeting is over.
After the 341 Hearing
Creditors will have an additional 60 days from the date of the 1st scheduled 341 meetings to object to any discharge in the bankruptcy petition.  In a Chapter 13 this means The debtor will also need to complete the 2nd credit counseling course (financial management course, sometimes called Debtor Education) within these 60 days.  If creditors have no filed objections; or any objections from the Trustee, a discharge in a chapter 7 typically takes place about 15 days after the deadline to object. In all about 80-90 days after filing).
Relax, its cool. Don’t be Scared!
Bankruptcy can still be the right move

341 hearings aren’t that bad in most cases

The 341 meeting is an extremely important step in the bankruptcy process. In the vast majority of chapter 7 cases it takes only a few minutes and is a brief hurdle towards a bankruptcy discharge.  Usually only people who did not do the necessary preparation (such as bringing their two forms of ID or did not make their paystubs available to the Trustee) have to repeat their 341 hearings.  If are ready and have a good Seattle bankruptcy attorney to help you, the 341 meeting is often one of the easiest tasks that you have to do in your chapter 7 bankruptcy.

Seattle bankruptcy attorneys must meet a high standard by law

Seattle Bankruptcy Attorneys is not immune to the possibility of being sanctioned by bankruptcy courts. One reason why hiring Seattle bankruptcy attorneys can be far better then filing yourself is that seattle bankruptcy attorneys are held to a very high standard in how they deal with clients and care for them. The 9th circuit in particular (where Washington resides) is particularly careful with how ot both punishes and protects attorneys who knowingly dismiss the need to file clients with care and consistency.
Bankruptcy judges have broad equitable power under Bankruptcy Code Section 105(a) which states in part that “The court may issue any order, process, or judgment that is necessary or appropriate to cary out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” Essentially this means that the court has absolute authority to control the actions of any and all persons interacting with the court. This includes Seattle Bankruptcy attorneys but also includes anyone filing individually.
The Bankruptcy Court also has broad authority to impose sanctions under Rule 9011(c). Under §9011(c)(1)(A) sanctions under this section would typically be brought by motion.  Under  §9011(c)(2), the Rule provides guidance on the limitations of sanctions to directives of non-monetary nature, monetary sanctions to be paid to the court if warranted for effective deterrence, or reasonable fees to an opposing party.  Bankruptcy rule 9011(c)(1)(A) requires a 21 day notice before a motion for sanctions may be filed.
 The 9th Circuit has provides quite a bit of guidance in imposing sanctions throughout the years. Other courts also provide instances of when and how sanctions should be levied. In addition, when sanctions are imposed, the degree of sanctions is also carefully and strictly construed where appropriate, and expansive where appropriate. In Crayton, the BAP determined that “reasonable sanctions” are those sanctions which apply the ABA Standards (ABA = American Bar Association). The ABA Standards dictate consideration of four different criteria: (1) whether the duty violated was to a client, the public, the legal system, or the profession, (2) whether the attorney acted intentionally, knowingly or negligently, (3) the seriousness of the actual or potential injury caused by the attorney’s misconduct, and (4) the existence of aggravating and mitigating factors. In re Crayton 192 B.R. at 980 (9th Cir. BAP 1996).
Front Page Bankruptcy Lawyer

Seattle bankruptcy attorneys need to take the time to make sure filings are correct.

Aggravating facts in each instance can warrant an increase in the degree of discipline imposed include considerations of any prior disciplinary offenses, multitudes of offenses, an ongoing pattern of misconduct, and/or a refusal to acknowledge the wrongful nature of the conduct. In re Crayton 192 B.R. at 981. On the other side of the coin, mitigating circumstances justifying a reduction in the degree of discipline include the absence of a prior disciplinary record, personal or emotional problems, inexperience in the practice of law, or a timely good faith effort to make restitution or to rectify the consequences of the misconduct.
Three sources of authority make available the ability to admonish bad faith. “Bad faith” is a formless and elusive concept, and its definition can vary from jurisdiction to jurisdiction. It has been generally defined as “knowingly or recklessly raising a frivolous argument making a claim for an improper purpose, “delaying or disrupting the litigation”, hampering enforcement of a court order, improper motive, giving “no meaningful thought” to the purposes of bankruptcy, and more. In re Walker, 532 F.3d at 1309 (11th Cir. 2008); In re Yorkshire, LLC 2008 WL 3306680 at 2 (5th Cir. Aug 8, 2008).
In Hale v Trustee, a bankruptcy attorney refused to sign a bankruptcy petition he had prepared, arguing that the client had only hired him to draft the petition, and to not file the petition or do any post petition work. The Court ordered teh bankruptcy attorney to sign the petition. The attorney refused again. The court sanctioned counsel for failing to sign a pleading under B.R. 9011(a) but noted at lengthy ongoing and consistent pattern of counsel in eluding, failing to recognize poor conduct, and continually violating direct orders; the punishment was a $250 disgorgement and $2,000 along with an encouragement to change his conduct. Hale v. U.S. Trustee, 509 F.3d 1139, 1148 (9th Cir. 2007). The attorney had previously been required in the past to disgorge fees in several cases such as In re Castorena, 270 B.R. 504 at 532 (Bankr. D. Idaho 2001). The Court was relatively lenient in this matter considering the ongoing conduct of the attorney.
In re Nguyen, 447 B.R. 268 (9th Cir. BAP 2001) the attorney for the Debtor Margolis showed a distain for his own action. Margolis’ testimony revealed his generally lax and hands-off approach when attempting to ascertain the accuracy of bankruptcy schedules and statements of financial affairs. Margolis would not meet with clients, failed to counsel clients (letting his paralegal do all the work), and would file schedules not signed by the clients. The bankruptcy court was proper to be worried about potential harm to the public resulting from these practices and refusal to accept his/her own wrongdoing. Therefore, the court enjoined Margolis from filing schedules unless a Seattle bankruptcy attorney conducted the initial client interview and spent at least one hour with the debtor to make sure that assets and debts would be discovered and properly scheduled. Consistent with the bankruptcy court’s findings, this penalty was tailored to coerce Margolis into spending time and exerting effor with clients to determine a full view of their financial history, assure the clients’ understanding of the importance of correctly completing bankruptcy documents, and to assure that Margolis has a proper understanding of his clients’ requirements.
Other stories exist, and I may do another blog or two reviewing some of the cases which have resulted in Seattle bankruptcy attorneys being sanctioned or punished (or avoiding punishment) in the weeks to come. I find them interesting and a great warning to other Seattle bankruptcy attorneys when trying to figure out what is expected of them.

A Few Reasons Why Chapter 7 Bankruptcy Might NOT Be Right For You

We get a log of clients who call our Seattle bankruptcy lawyer office and ask; “I have lots of money owed in unsecured debt. My family has researched talked to family and friends who recommended the benefits of filing Chapter 7 bankruptcy. I know, however, that it cannot be all good because it sounds too good to be true. Can you tell me more about the drawbacks of filing Chapter 7 and whether it’s actually a good choice for me.”

At every consultation, we go over everyone’s situation. Look at their assets, look at their debts and make sure that the path we take is the right one. Here are a few of the most common reasons why a Chapter 7 bankruptcy might not be a good option. Keep in mind a Chapter 13 may be preferable if a Chapter 7 won’t accomplish the goal of keeping all of your property and discharging your debt. In addition, a Chapter 20 bankruptcy (filing a chapter 7 and then a chapter 13) is in a very small number of cases another option.

Chapter 7 bankruptcy overview

Chapter 7 bankruptcy allows Seattle debtors to receive a discharge all or some of their unsecured debt. There are a few categories of debts that cannot be discharged, and there can be ramifications if a full review isn’t done properly. But before you decide to file Chapter 7 bankruptcy it’s smart to review bankruptcy laws with a Seattle bankruptcy attorney. So ask your Seattle bankruptcy attorney if your debts can be discharged and understand the ramifications of your decisions.

It’s a good idea to slow down and find out all you can about the bankruptcy process. Too many debtors and attorneys rush to file without really understanding what they are doing or taking the time to do their due diligence and find out if their particular situation warrants a Chapter 7 bankruptcy.  With that in mind, let’s take a brief overview of some of the negatives to filing for Chapter 7 bankruptcy.

 
Reasons filing Chapter 7 bankruptcy may not be a good idea
1.    Chapter 7 may not discharge all unsecured debts.

Filing Chapter 7 bankruptcy could be a mistake for you if the vast majority of debt you have cannot be discharged. For example, if you have only secured debt, child support debt, certain taxes and student loan debt, filing Chapter 7 may not be the right option. However if your dischargeable debt is still substantial; then its definitely a good idea to think strongly about filing for Chapter 7.

2.    Chapter 7 will ruin your credit.

Most debtors already have a very low credit score due to repossessions, defaults, debt/income ratio, or wage garnishments. For those with a good credit score, their credit score plunge. A myth is that filing for Chapter 7 may also limit your ability to get new credit. While this is true of major loans like house loans, business loans and expensive cars; most clients are fine with waiting a few years to rebuild their credit. You will still have access to quality used car loans, small credit cards and other credit to start to rebuild. You should also have no problem finding housing to lease so long as you can afford it after your bankruptcy. Finally, bankruptcy does remain on your credit report for up to 10 years.

Buying any large item such as a home will also be impossible for several years; typically as early as 2 years after filing. In addition, due to tougher lending laws which are slowly relaxing, you may also have to save for a down payment if you want to buy.

3.    You might lose property.

Although some debtors have few assets and are not concerned about liquidation, other debtors may be forced to sell assets and other items that they would otherwise want to keep. A careful review with your Seattle bankruptcy attorney is necessary to determine if you can protect your property using available exemption laws.

 

4.    You have not investigated other options.

As mentioned above, many debtors move to file bankruptcy before really considering whether there might be an alternative option for solving their financial issues. For example, it might be a mistake to file bankruptcy if you have not analyzed your budget, cut your living expenses, considered additional employment to generate more income, or talked to a financial planner about consolidating your debt. I typically do not suggest debt consolidation but in some cases this may be an option if the payments are low in relation to your income and expenses.

At the same time, if you have more then $10,000 in debt, then considering filing for bankruptcy may still be your best move even considering the above. It can take years, even decades, to pay off $15,000 to $20,000 of debt. Interest will continue to accrue all the time. So getting a clean slate may be a great move if other options aren’t ideal or won’t safely work.  

5.    You think your situation may be worse in the future. 

Under some conditions, such as a severe medical issues or short term chronic problems, it may be a mistake to file Chapter 7 too soon. For example, if you think you might have more medical debts in the future for a surgery or physical therapy; filing now may be premature and you may want to wait. In fact, if you finalize a Chapter 7 and receive a discharge now you cannot file another Chapter 7 case for at least 8 years from the date you last filed for bankruptcy. Chapter 13 does remain available to those who need it, however. So, there are still solutions available if you need to file immediately to protect from garnishments, foreclosures, or repossessions.

Check us out at Johnson Legal Group and contact us today if you are in the Seattle area and are looking for an attorney to help decide if you should file for bankruptcy.

Bankruptcy can still be the right move

Bankruptcy can still be the right move

 

Bankruptcy 341 Hearing Reviewed

What is a Bankruptcy 341 Hearing?
Having not blogged for quite some time, I felt it might be good to go over 341 hearings again for those potential clients seeking a Seattle bankruptcy attorney but wanting a little information prior to committing to a consultation. During consultations the Bankruptcy 341 hearing is gone over in some detail, as the hearing can be daunting for those without legal experience. In general, a 341 hearing is nothing to be panicked about or to have anxiety over. Once in a great while, however, the Bankruptcy 341 hearing can have issues. For Chapter 13 clients, the 341 can be slightly more involved then a Chapter 7.

A 341 meeting is called a “meeting of creditors”. Its called a “341” because of the bankruptcy code Section 341 which requires the hearing. A 341 hearing is something virtually every bankruptcy filer must go through (with very rare exceptions) in order to receive their bankruptcy discharge and complete the process.

As a brief intro, at the hearing you will be asked questions about your financial condition by a Bankruptcy Trustee, the Bankruptcy Administrator (in some states), and possibly your creditors, the IRS if you have tax debts, and/or their Seattle bankruptcy attorney. It sound scary, and it can be; and can produce a large amount of anxiety in my clients; but in the vast bulk of cases, you spend less than ten minutes answering questions.

Preparation for the Meeting

A 341 meeting is typically held a month to a month and a half after you have filed, and is scheduled at the time your petition is properly filed with the Seattle bankruptcy court. Prior to the meeting, at at minimum a week before the scheduled hearing, you and your Seattle bankruptcy should provide the Trustee (1) your most recent tax returns, (2) bank statements covering the date of filing, and (3) previous 60 days of paystubs as of the filing date.

If these documents are not provided timely, your case may be continued to a following hearing date; so its best to get these documents to your Seattle bankruptcy lawyer as fast as possible.

At the bankruptcy 341 hearing, which are usually scheduled every hour on meeting dates; you will be in a room of about 10 to 15 other individuals or couples who have recently filed. When the trustee calls your name, you will need to approach the front of the room, and provide a photo ID, and some ID that shows your social security number. Once this is done the Trustee will administer an oath to tell the truth, and you may sit down next to your attorney.

Bankruptcy 341 Hearing

Your bankruptcy 341 hearing will usually last less then 10 minutes

During the Meeting

There are some “canned questions” that everybody or almost everybody is asked:
With the help of counsel did you prepare and file a bankruptcy petition with this court?
Did you read the petition and did you sign it?
Are you aware of the contents?
Are there any errors or omissions?
Did you list all of our assets?
Did you list all of your debts
Do you have any domestic support obligations?
Have you made any payments on loans in the last 90 days?
Have you made any substantial gifts in the last year
Do you plan on keeping your car (if you owe money on your car?)
Have you ever filed for bankruptcy before?
Have you read the bankruptcy information sheet?
Additional questions may be asked by the trustee or administrator if your case is more complicated (if any funds may be distributed for example)
When the Trustee and Administrator have finished asking questions, the Trustee will ask if any creditors want to ask the filer any questions. In the vast majority of cases there will not be any creditors present. If no creditors have any questions, you will be excused. and the Bankruptcy 341 hearing is over.

After the Meeting
Creditors will have 60 days from the date of the 1st scheduled 341 meeting to make object to anything in the bankruptcy petition and/or to object to a discharge of their owed debts. In the case of Chapter 13s they have a limited opportunity to object to a plan.

The debtor will also need to complete a financial management class (sometimes called Debtor Education) before this 60 days are up or the case may be dismissed without discharge. If there are no objections from the Trustee or the creditors, discharge in a chapter 7 typically takes place about 15 days after the last day to object (about 90 days after the initial 341 hearing, or about 105 days after filing your petition).

Don’t be Frightened
The 341 meeting is extremely important, but in the majority of Chapter 7 cases; the hearing takes only a few minutes depending on when you are called; and is basically a relatively minor requirement towards discharge.

The purpose of the meeting is to ensure the debtor has been honest in his/her petition to the best of that petitioner’s knowledge. Issues can happen though, which is why hiring a Seattle bankruptcy attorney is very important.

Filers who do not do the necessary preparation (such as bringing their two forms of ID or did not make their documentation available to the Trustee) have to repeat their Bankruptcy 341 hearing. If you prepare and file everything correctly, the bankruptcy 341 hearing is often one of the easiest tasks that you have to do in your chapter 7 bankruptcy.