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07

Mar 2011

Before bankruptcy: Stopping automatic withdrawals.

Posted by / in Before Bankruptcy / 2 comments

<h2>Before bankruptcy: Stopping automatic withdrawals</h2>

 

While trying to avoid bankruptcy, people sometimes authorize debt collectors to take monthly withdrawals from their bank accounts.   (Or authorize withdrawals by these “debt settlement” scams.  Or credit card companies or bank loans.)

When people face the fact that bankruptcy is the better way to go, they struggle with turning off those automatic withdrawals.

A bank with good customer service should be happy to help, if you explain the problem to them.   So I’m constantly surprised at how often my bankruptcy clients report they won’t won’t help–and act like it’s not their problem.

The law–the Electronic Transfer of Funds Act–places the responsibility squarely on the bank.

Here are the steps the law says you have to take:

First, tell the debt collector (or debt negotiation scam or creditor) that they are no longer authorized to take money out of your account.  (Keep notes.)

Second, tell your bank.  You can do it orally or in writing.  I like taking a letter into the branch.  Show them where on your statement the money came out last month–and say that’s no longer authorized.   You need to talk to the bank at least three days before the next payment is scheduled to come out.

If the money comes out anyway, tell the bank to put it back.  Orally or in writing; obviously writing is smarter.  They have ten days (ten working days–two weeks).

If the money doesn’t come back, you can sue.  You get the money back, plus money to pay your lawyer, plus a penalty of up to $1000 thrown in.  Not bad.

The problem comes up if you agreed to such big payments, you can’t make the car payment if it takes the bank two weeks to get the money back.

In that case, you need to close the account.

Just last week I had a couple see me about bankruptcy.  They had an automatic withdrawal set up an a loan (not a credit card) owed to a Capital One Bank.   They called Capital One and said those withdrawals are no longer authorized.  “Can’t stop this month,” they were told.  “We need 15 days’ notice.”

(Fifteen days notice!  The law says a transfer is “unauthorized” if they don’t have your actual permission.  And taking money from your bank account, unauthorized–well, folks used to call that stealing.)

bank check

Back when I went to law school, your bank wouldn’t let someone take money out of your account, unless they had a signed check.

They then called their own bank–the law says you need to give three days notice to your bank.  The bank said, sorry.  We can put a stop payment, but when Cap One tries a second time, it will go through.

What now?  I told them, go back and close your account.  When they went down there–miracle of miracles.  Now they are told, don’t need to close your account.  We can stop that money from coming out, no problem.  And they did.

What’s the lesson?  The whole idea of banking is this.  Your bank pays people you want paid–and does NOT let other people take your money.  (Not without a court order, anyway.)   The law doesn’t allow your bank to give your money away.  And you shouldn’t allow it either.

This is one area where the law is clearly on your side.

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06

Feb 2011

Before bankruptcy: "Can debt collectors call my neighbors?"

Posted by / in Before Bankruptcy / 7 comments

I’m a Virginia Bankruptcy Lawyer.   I talk to a lot of people in financial trouble.  I talk to a lot who are harassed by debt collectors.

Many people–before they decide to file bankruptcy–don’t know what to tell debt collectors.  Often, they just stop answering the phone.

That can lead to debt collectors calling your neighbors.  That’s probably illegal.

Before bankruptcy, can debt collectors call my neighbors?

Before bankruptcy, can debt collectors call my neighbors?

The Fair Debt Collection Practices Act (FDCPA) says debt collectors can talk to people other than you.  But only “for the purpose of acquiring location information.” They cannot talk to other people for other reasons–like asking you to return their call.

That means it’s OK for them to call your neighbors and ask, “Does Virginia Consumer lives next door?”  But it’s illegal for them to say, “Can you ask Virginia to call me?”  Which is what they  often do.

I saw this news release a few months ago, that makes me wonder if even calling to ask “Does Virginia live next door?” isn’t nearly always illegal.

This news release talks about a service that offers “real-time . . .  enhanced … skip trace service.” It talks about how they check more than four billion records–to find out where you are living right now.

Probably you are living where you’ve lived last month and the month before–and not answering your phone does NOT mean you moved.   So they don’t need to acquire location information.  They already have it.

For our bankruptcy clients,  our law firm sues debt collectors for calling neighbors–but only after you have started answering the phone, again.  I’m wondering if we should start suing every time.  At least if you’ve been living at the same place for six months or more.

Since I’m a bankruptcy lawyer, I want to say one more thing:   If you have debt collectors calling, on a debt you do owe, you should think seriously about filing bankruptcy.

If you need a bankruptcy lawyer in your area, you can find one at the National Association of Consumer Bankruptcy Attorneys.  (NACBA).

If you want to find a lawyer who sues debt collectors, look at the National Association of Consumer Advocates.  (NACA).

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22

Jan 2011

Before bankruptcy: Don't pay off the car!

Posted by / in Before Bankruptcy / 174 comments

“In bankruptcy, everything is upside down.  Bad is good; good is bad.”  I tell people that all the time. What does that mean?

For the bankruptcy court to approve your bankruptcy, we have to show why you can’t afford to pay.  It’s good for your financial situation to be bad. Things you do to cut expenses to keep paying your debts–they usually come back to bite you.  It’s bad to be good.

Early January 2011, the Supreme Court, in a decision called Ransom, added keeping your junker car to the list of things that make it harder to get your bankruptcy approved.

I want to be really clear on what this means to people like you.  Suppose you could have traded in your old car two years ago on a new one.  But you knew you couldn’t afford the car payment and still pay your credit cards.  So, you kept the old car, and kept trying to pay your credit cards.   According to the Supreme Court, that can make you a bankruptcy abuser.   Good is bad.

If you got that new car–and then realized you couldn’t afford the credit card bills–the Supreme Court makes it much easier to get your bankruptcy approved.  Bad is good.

bankruptcy abuser driving older car

Still driving that old car while you try to pay your debts? The Supreme Court says that makes you a bankruptcy abuser.

The Supreme Court decision explains the car ownership expense in the bankruptcy means test.   In the budget you were assigned by Congress in 2005, you are allowed to claim $496 for your car payment–regardless of what the payment is.    You get twice that for two or more cars.

Most judges agreed that you got that $496 even if the car was paid for.  Their theory was even if you didn’t have a payment today you would need one sooner or later–and the means test is about whether the court will make you keep paying for five more years. (Also the IRS  standards referred to in the law say One Car and Two Cars.  Not One Payment and Two Payments.)

The Supremes disagreed.  You get the $496 as long as there’s even one payment left, but if it’s paid for, you don’t get it. That can make a big difference to a lot of people–having to keep paying the credit cards $496 a month for five more years.  That’s twenty nine thousand dollars!

OK.  So if you are in financial trouble, you now know to come to see me before the car is paid for.  And we’ll file your bankruptcy in a hurry.  That’s easy.

But suppose the car is already paid for.  Now what? That brings is to another Supreme Court decision, called Milavetz v United States.

Congress in 2005, when they wrote this complicated means test into the law,  also made it illegal for me to “advise” you to incur more debt in “contemplation of filing a bankruptcy case.”  Since lawyers are supposed to tell the truth to their clients, the Supremes gave me some wiggle room on that.

Some wiggle room.  I’m allowed to “talk fully and candidly” about incurring more debt.  I’m not allowed to “advise” you to abuse the bankruptcy system. But we can talk about the “legal consequences” of different courses of action.   So?

I’m not allowed to tell you to run up the credit cards just to have a bigger bankruptcy.  (That would be bad advice.  You’re not allowed to do that, anyway, and I never advise someone to do something they are not allowed to do.  They do often pick up on it, too.)

I am allowed to tell you it will be three years after bankruptcy before you can get a car loan at a good interest rate.  If your credit is still good now, and you’ll need a car soon, then I can advise you that now would be a good time.   I’m allowed to “advise” that, because you’re not incurring new debt “in contemplation of filing bankruptcy.”  You’re incurring new debt “in contemplation of” needing a car at a good interest rate.

But suppose your credit is bad already, and your junker car won’t get you through five years.   Am I allowed to tell you that you’re looking at a five year payment plan, driving around for five more years in that junker, unless you finance a car now?  Am I allowed to “talk fully and candidly” with you that?

I never advise anyone to get a car loan when they have bad credit–unless there’s no other way at all to get to work.  But, to be fully candid, I have to talk to you about the “consequences.”

Getting a car while your credit is bad may mean a $500 a month payment for five years on a 2002 Pontiac.  Not getting the car may mean making a $500 a month payment for five years to the bankruptcy court to pay your credit cards.   Which is worse?

Of the two choices, getting the car is better for your credit.  Getting the car means you might be able to get a mortgage loan in less than three years.  Otherwise, you’re talking seven years.

And getting the car means you’re driving that 2002 Pontiac with 70,000 miles, which is at least better than the 97 with 120,000 miles that you’ve got now.

“Candidly,” I have to tell you that you can figure that out for yourself.

Maybe I should stop here.

Some lawyers have told me privately that they think their clients should get a title loan on that older car.

I’d never “advise” getting a title loan.  Title loans mean you get $3000 on your car, and you have to pay $500 per month FOREVER.  That’s never a good idea.    But if we discuss it fully, suppose you could use your tax refund to pay off the title loan after one month.  Then it costs you $500 to borrow $3000 for just one month.  And as a bonus, you avoid having to pay the bankruptcy court for five years.

Any better ideas?  Suppose the junker really needs work, which you can’t afford.  And mom has offered to let you borrow her car for a few months, for free.

Free is usually good.  But, talking candidly now, if you offered to lease mom’s car for six months, rather than borrow it, now we can get your bankruptcy approved.  I’m allowed to tell you that in a “robust discussion.”  But I have no advice on the matter.

Just before the Milavetz decision came down, I had some clients ask me if they were “allowed” to buy a car before filing bankruptcy.  I told them I couldn’t tell them to do it, but I could tell them they were allowed to do it. The enforcement people from the Justice Department asked some very pointed questions about that.   With help of the Supreme Court, they finally agreed I was allowed to tell my clients they were allowed to finance a car.

Keep this in mind.  If you decide to trade in the 96 Chevy on the 2002 Pontiac, it’s not because I told you to.   I’d never tell you to do that.

If you do it, it’s because you decided.

Remember, you didn’t read it here.

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NORTHERN VIRGINIA BANKRUPTCY LAW OFFICES