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06

Jul 2017

Bankruptcy and Gumption

Posted by / in Weekly Posts /

Bankruptcy and Gumption

Most people come to talk to me about bankruptcy have been putting it off for years. People want to protect their “good credit” when all they are really doing is piling up bad credit. People worry that filing bankruptcy is “not how they were brought up.” They think they are better than Donald Trump, who used the bankruptcy law to get richer.

Some men, especially, are too embarrassed to ask for help.

For all those reasons, when people come to talk to me about bankruptcy, a lot of them a just exhausted.  They want to pay their lawyer bill, sign their papers and be done.

For a lot of people, it’s not that easy.

Dave Carmen

Dave Carmen came to see me June 14. He had moved to this area to take a substantial Federal job promotion. He started to work at the new job, January 3. His wife joined him and started working here in March.

He had hoped with the new job they would be able to handle their debt load; but like many people they had not allowed for the high cost of living in Northern Virginia.

I made notes on what Dave told me and we went over his budget, together. “There’s a lot of income here, but I’ll try to get you qualified on the long form.”  I needed to do more computer work, told Dave to come back Monday June 19. 

I told Dave on June 19 there was good news and bad news. The good news, was really good. We could go ahead with Chapter 7 bankruptcy in June, and eliminate more than $50,000 in card cards and finance company loans. The bad news? He would lose eligibility in July!

(Why would Dave lose income eligibility in July? Chapter 7 bankruptcy income eligibility is based on the past six months, ending a month before the papers go into the court. We needed December, when he was on his old job and his wife wasn’t working, to get our six month average down low enough. In July, December would drop out of the average and the income would just be too high. Remember he had gotten a big raise starting January.)

We had twelve days to get his Chapter 7 bankruptcy done.  Immediate next step Dave needed to identify an additional $600 a month in expenses—I told him where I thought his budget was too low, based on what I know about him and his family. I needed it by tuesday, June 27 at the latest. I had no doubt he could do it.

Tuesday June 27 came around and I hadn’t heard from Dave. Now we are into July, and it’s too late. Dave will have to pay back $54,000 that he can’t afford. Pay back $54,000 that we could have eliminated two weeks ago.

Dave had run out of gumption.  The years of battling with the creditors, the stress of moving his family and the new job, he was worn out. He needed a couple more hours of hard work to take an enormous burden off himself and his family; and he just didn’t have it in him.

The Purpose of the 2005 BAPCPA Bankruptcy Law

The 2005 BAPCPA Bankruptcy law was supported in Congress by people who claimed there was widespread fraud and abuse in the bankruptcy system. Studies in the ten years after didn’t show any of that. The statistical impact of BAPCPA is seen in the “substantial increased access costs.” Filing bankruptcy is harder and more expensive. That was probably the real purpose of the bank lobbyists who drafted the law. 

The 2005 bankruptcy law is filled with “gumption traps.” Rinky dink requirements that are designed to get you to give up.

Gumption—get back up

Gumption. In America, if life knocks you down, we get back up.

President Trump says knowing how to use the bankruptcy laws is a “tremendous thing.” (Love him or hate him, most people would agree President Trump has plenty of gumption.)

If you are in financial trouble, please come to see me—or another experienced bankruptcy lawyer—before all your gumption is gone. When you consider bankruptcy, your opening to a better life—a new start and a clear field—is right in front of you. You just need a little more effort to take control of your life, again. 

 

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22

Jun 2017

Supreme Court Knocks a Hole in the Fair Debt Collection Practices Act

Posted by / in Weekly Posts /

Supreme Court Knocks a Hole in the Fair Debt Collection Practices Act

On June 12, 2017, the Supreme Court knocked a hole in consumers’ rights under the Fair Debt Collection Practices Act.

Starting now, debt buyers, like Midland, Portfolio Recovery, and Cavalry are free of the regulations under the FDCPA.  Here’s my list of the top ten unfair and harassing tactics that are now LEGAL for debt buyers. 

  1. Call you 24 hours a day
  2. Call friends and family
  3. Call you at work after you tell them you’re not allowed to get calls at work
  4. Call you after you told them to call your lawyer.
  5. Publish your name and address
  6. Sue you in the wrong county
  7. Add fees that were not in your contract
  8. Take you to court on debts that are legally expired under the statute of limitations
  9. Threaten criminal action that can’t legally be taken
  10. Threaten to put false information on your credit report.

And more.  If you write and tell them you are disputing the debt, they are free to ignore your dispute and keep trying to collect.

What Changed?

The Fair Debt Collection Practices Act was passed in 1977. It says debt collectors are companies who collect debt owed to another. So when Midland—who you never heard of—calls you on a debt they say you owed to Citibank, are they collecting debts owed to another.  Right?

No! said a unanimous Supreme Court. Once Midland buys the debt, they are no longer collecting for another. They are collecting their own debt. 

If you, or I, or most judges, would look at the FDCPA, we’d see the financial world divided into two groups. 

The term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

Is Midland a creditor? They did not extend credit to you and the debt was transferred to them ”for the purpose of facilitating collection of such debt… ”  

Oh but they are! There’s that “for another” at the end of the definition of creditor. Once your debt’s been assigned or transferred to Midland, they are not collecting for another. So, they are just a creditor.

That interpretation means the second half of the definition of creditor, everything after the word “but,” never covers anybody; but oh well, said the Supremes. The Supremes agreed that debt buyers had outsmarted Congress, but that’s the way the world works. “Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world.”  Henson v Santander (2017).

How Soon Will Things Get Bad?

Can we expect round the clock debt buyer phone calls starting next weekend? Three things might slow them down. 

The “principal purpose” clause might still protect you. Santander, the debt buyer in the Supreme Court case, makes car loans. The Supreme Court said nobody tried to argue that the purpose of Santander was collecting debts—because they were in the business of making car loans. Is the purpose of a debt buying business the collection of debts?  We need some consumer friendly judges to say, of course. (But, Midland, Portfolio and Cavalry all say their business purpose is to help consumers resolve their debt.) Don’t know how long it will take to get some good decisions from friendly judges, but I do know it will NOT start in Virginia.

The debt buyers need to check out all fifty state laws. Some states have copied, or strengthened, the FDCPA. (California is one example.) The debt buyers will need to check each state before they get too carried away with their new freedom. (Knowing Virginia, here will be one of the first places they’ll determine they don’t have to worry about any state laws.)

Maybe Congress will help. After Richard Nixon and the Watergate scandals, Democrats in Congress were very strong and they passed the FDCPA, FCRA and other important consumer protections. Will Congress and the White House change parties in 2020? We have to wait and see. Maybe the debt buyers will take it easy until then.

Fair Debt Collection Practices Act

The Supreme Court knocked a hole in the Fair Debt Collection Practices Act.

Bankruptcy Protections Are Still There

Asking creditors to stop calling you are work, and stop calling your family, probably isn’t going to work any more. So if you don’t want everybody you know involved in your financial problems, talk to a bankruptcy lawyer—before the debt buyers start to call.          

 

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01

Apr 2017

Lowest rate of bankruptcy dismissed in Northern Virginia

Posted by / in Weekly Posts /

Robert Weed has the best rate of bankruptcy dismissed in Northern Virginia

Just finished checking on the number of my law firm bankruptcy cases dismissed the first three months of this year. (“Dismissed” means thrown out; the opposite is “discharged” which means successfully completed.)
 
We had 4 dismissals and 90 cases filed—that’s 4.4%. One other lawyer in the top ten, Robert Brandt, was at 5%. How does that compare?
 
One very busy bankruptcy lawyer around here had a dismissal rate of 40%—ten times (!) what mine was. The next busiest guy’s was “only” 24%. His cases were six times (!) more likely than mine to be thrown out. The next six of the top ten also had a 24% dismissal rate.
 
Every case is different; sometimes you want a dismissal. Past performance is no guarantee of future success. But the differences between lawyers are really big. Two lawyers of the top ten have dismissal rates of 5% and 4.4%. The next closest, Michael Sandler, is at 16%. The rest are from 20% up to 40%.
4-1-2017 2-29-15 PM

Robert Weed has the lowest rate of bankruptcy dismissed in Northern Virginia. Here’s the chart for January – March 2017.

It’s been this way for years.

I ran the same numbers back in 2012. We were at 4% back then, too. You can read more, here. 

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NORTHERN VIRGINIA BANKRUPTCY LAW OFFICES