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30

Apr 2022

Penalties for Bankruptcy Fraud

Posted by / in General Information About Bankruptcy Law, Weekly Posts /

April 2022 saw courts dish out two big penalties for Bankruptcy Fraud.

In April 2022, over in the UK, former tennis great Boris Becker was sentenced to two-and-a-half years in prison for bankruptcy fraud: hiding $3 million in assets during his case. Becker had landed bankruptcy in the UK back in 2017, because of a $5 million bank loan he couldn’t pay. It came to light later that he hid assets from the bankruptcy court.

Prison sentence of bankruptcy fraud

Boris Becker , former tennis great, gets over two years in prison for bankruptcy fraud

Also in April, closer to home, William Henry Romm, III, of Glen Allen Virginia, pled guilty to concealing $400,000 from the bankruptcy court in his Chapter 13 bankruptcy case.  He faces a possible 20 years in prison when he’s sentenced in August.  (Usually people who plead guilty don’t get the max.)

They Look for This Bankruptcy Fraud Stuff

There’s a government agency–the Office of the United States Trustee–that’s in charge of looking for this stuff.  (Sometimes it seems like they are just “neat paperwork” police, but their job is to catch bankruptcy fraud.)  In 2020, they recommended 2489 people for criminal law prosecution.                      

Tell the Truth to Your Bankruptcy Lawyer

For most people–usually–there are both legal and illegal ways to protect yourself and your property in bankruptcy.  Your lawyer can point you to the legal ways: as long as you tell your lawyer the truth. Also, now and then I have to warn some people they should never set foot in the bankruptcy court.

 

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05

Aug 2020

November Elections Might Help Bankruptcy Law and Your Student Loans

Posted by / in General Information About Bankruptcy Law, Weekly Posts / No comments yet

Democratic Platform Promises Good News on Bankruptcy and Student Loans

Are you struggling with student loans you can’t pay? The Democratic Platform promises to help.

The platform of the 2020 Democratic National Convention says this: Democrats will restore the prior standard in bankruptcy law to allow borrowers with student loans to be able to discharge their debts in bankruptcy as a measure of last resort.

What’s that “prior standard?” That probably means a bankruptcy discharge can discharge student loans that have been in payment status for several years. (The required payment status was five years beginning 1976; increased to seven years in 1990.)

And I hope it means that private student loans are just regular debt.  Bankruptcy filed any time should discharge those. (That was the law on private student loans until 2005.)

So, if the Democrats have their way, if you are out of school, with no deferments, for seven years (maybe only five), then you can file bankruptcy to discharge your student loans.

What does this promise of future help mean to you now?

Should I Wait and See Election Results?

Suppose you have a credit card problem right now–and impossible student loans also hanging over you. If you file Chapter 7 bankruptcy today, you can’t file Chapter 7 again for eight years. So if there’s a new law, you’d have a very tough time taking advantage of it.

Can you hold on until after the election? November 3, 2020 is election day this year. That will decide if a Democrat is elected President. It will also decide if Democrats take control of the United States Senate. (It might hinge on a Georgia runoff January 5, 2021.) Democrats likely need control of the Senate to deliver on this student loan promise.

PS  Didn’t get as much change as hoped in the election.

The November election did NOT bring as much change as people hoped in the US Senate. So the chances of getting a quick change is much lower.  This article in the November 7, 2020, New York Times shows it nearly impossible to clear your student loans under current law.  That’s not likely to get better any time soon.

 

Election day

Election day is November 3, 2020

After the Election, Expect More Delay

The new President and new Congress come into office next January. But I doubt they get started on bankruptcy law and student loans right away. The pandemic and economic crisis will keep them busy. My own guess: I’d expect to see changes in the bankruptcy law affecting student loans taking effect by July 2022. That’s more than a year and a half after the election.

Update: Student Loan Bankruptcy Relief May Happen by Summer 2021

A committee vote September 29, 2020 may signal quick action in the new Congress.  The Judiciary committee voted to approve a student loan bankruptcy bill by a vote of 19-5.  Now there are 41 members on the committee: 24 Democrats and 17 Republicans.  So a lot of people weren’t there. But the lopsided vote may mean that the Republicans aren’t willing to oppose student loan bankruptcy relief, if they know it will pass anyway.    

Congress is knocking off for the years shortly, so this won’t become law in 2020.  But it might happen quicker than I expected in 2021.

Can’t Wait that Long? Consider Chapter 13

If you can’t handle, or outrun, your debts until summer of 2022, you can protect yourself with a Chapter 13.

A Chapter 13 bankruptcy is a payment plan through the bankruptcy court. You have to pay “all you can afford” for three years–or sometimes five years. “All you can afford” puts you on a tight budget; but not as tight as a garnishment for 25% of your after-tax pay. (If you have a security clearance, filing Chapter 13 can protect your clearance. Going late on your debts can put your clearance in jeopardy.)

Here’s a big advantage of Chapter 13: You can drop out of Chapter 13 at any time. You’d plan to drop out when a new law allows you to discharge your student loans in a Chapter 7. If the law doesn’t change, you’d likely want to see the Chapter 13 through to the end.

Conclusion

Are your credit cards out of control? Are you in danger of getting garnished now? Do you also have a student loan problem?

Maybe filing Chapter 13 now is a good plan. You can set up small payments on the debts now. And be able to take advantage of a new law on student loans when it’s available.

Student loans can keep you in poverty

Now, bankruptcy is almost no help with impossible student loans.

Bankruptcy Law and Student Loans:  When Student Loans Became Special

Student loans now are in a special category that bankruptcy law can hardly touch.

Under the old, 1898 Bankruptcy Act, student loan debt was just another debt. You could clear in in bankruptcy just like credit cards, loans, medical bills. Starting in 1976, clearing student loans got tougher and tougher.

In 1976, a new law said that student loans had to be in repayment status five five years, before they could be discharged.  (Excerpt for undue hardship.) The current bankruptcy code was passed in 1978, kept that five years.  In 1990, it was stretch out to seven years. In 1998, the seven years was gone.  You could only clear student loans based on “undue hardship.” And undue hardship basically means paralyzed, never work again.

In 2005, private student loans received the same special status of government and charitable student loans. That’s where we are today.

During the presidential primary season, Sen. Elizabeth Warren called for the Federal government to just forgive them all. The Democratic platform doesn’t go nearly that far.  Probably a Democratic majority in the Senate won’t do that either.

 

PS Final Draft is Stronger

The final draft of the platform was stronger.  It has me hoping a Democratic majority could make student loans dischargeable in bankruptcy, without the five year, or seven year requirement.

 

PPS  Nothing in the Republican Platform.  

The 2020 Republican Platform said nothing about bankruptcy and student loans. Actually, because of the pandemic, they voted to have no platform at all.  

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23

Nov 2013

Taxes, short sale, and bankruptcy!

Posted by / in General Information About Bankruptcy Law, Weekly Posts / No comments yet

The tax break on short sales is due to expire on December 31, 2013.

Since 2007, Congress has waived the debt forgiveness tax when a homeowner does a short sale. This tax break was put in place at the beginning of the housing crisis and set to expire at the end of 2012.  Congress extended it for one more year, to 2013.  But the Washington Post reports  it looks like it won’t be extended again.

Here’s the background.  The basic tax rule is that debt forgiveness counts as income–and is taxed as income.  If somebody cancels your debt–like in a short sale–you get a debt cancellation 1099-c.  And you have to pay taxes on that “debt cancellation income.”

Short sale can lead to taxes on debt forgiveness income.

Cancellation of debt is “income.” And the income tax is a tax on income. So a short sale can lead to tax on that debt foregiveness income.

You can fight that.  If you show the IRS that the lender never would have gotten the money anyway, then you defeat the tax.  The IRS explains that here.

One way to show that is to file bankruptcy.  Another way is to fill in this form.  A third was is to live in a state where the lender can never come after you for a deficiency after a foreclosure.   That’s the law in California, for example.  But not here in Virginia.

Do you need to get out of a house where you owe way more than it’s worth?  Most people who do would rather do a short sale than a bankruptcy.  And if that’s your only problem, most bankruptcy lawyers would agree.  Until now.

Now you have to worry about being hit for taxes on the amount of money the sale is “short.”  If it’s a little bit, the tax won’t be much.  But if you are short fifty or seventy five thousand dollars–and there are still homes around Northern Virginia that far underwater–the tax could be a big problem.

You should talk to a tax professional (not just listen to a real estate agent) about the tax consequences of doing a short sale.  And if your tax adviser is not real confident you are ok under IRS Form 982, you should consider bankruptcy.

PS  If you have a second mortgage, you also need to worry about whether the second mortgage is forgiving your deficiency–or are they just allowing to short sale to go through, but planning to sue you later.  That happens a lot–I explain why here.

 

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04

Oct 2011

Bankruptcy and bank statements

Posted by / in General Information About Bankruptcy Law / 43 comments

Bankruptcy and bank statements

Planning to file bankruptcy?  You will need to round up bank statements.  You’ll need them at the beginning of the bankruptcy process; and you’ll need them again for your bankruptcy hearing.

(Here are specific instructions on what bank statements you need for your bankruptcy hearing in Alexandria, Virginia.)

Since you need to tell the bankruptcy court about all your accounts when you file your bankruptcy papers, you want to talk them over with your lawyer early–in time to identify and fix any problems.

Virginia Bankruptcy Lawyer Robert Weed

Bring bank statements on every account in your name, when you first meet with your bankruptcy lawyer.You will need to tell the court about every account your name is on.  So you and your lawyer needs to know what those accounts are.

Does that include the account with only five dollars that you never use any more?  Yes.

Does that include your mother’s account that she “just put your name on in case of emergency”?  Yes.

Does that include the account where only your wife’s paycheck goes, but is in both names?  Yes.

Does this includes credit unions, too?  Yes.

Does it includes accounts you have with your minor children?  Yes.  And also college savings plans you have for them.

Does it includes money markets?  And investment, brokerage accounts?  Yes and yes.  And Bitcoins; and Paypal accounts. And accounts you have overseas.

More than just banks, it includes every place you have money.

When you first talk to your lawyer, you need to talk about all those accounts.  So bring bank statements–and other accounts–with you.

Is your mother’s $200,000 life savings–in the account you are on “for emergencies”–going to be a problem?  You want to talk that over when you first meet with your lawyer.  Do not wait and bring it up when you are signing the final draft of your bankruptcy papers.

The same thing with your wife’s account that’s “in both names.”

When you bring in the bank statements, then you are not guessing.  You and your lawyer can see whether, and how, your name is listed on each account.  And how much money goes through it every month.

Both of those can be important to getting your bankruptcy approved–without having the bankruptcy trustee take some of your money.  (Or worse, take some money that’s not yours–that belongs to someone else in the family.)

Getting through bankruptcy, without losing any money, may take some planning.  Your lawyer may have your wife change her direct deposit to a different account–one only in her name.  Your lawyer may want mom to take all the money out and put it in a different account.  Maybe the lawyer will just want proof of where mom got all that money.

Besides the bankruptcy trustee maybe grabbing those accounts, some of your creditors might try to get to them.   Your lawyer will want to compare your accounts with your creditors–and may suggest you change banks for that reason.

All that takes time and planning–so make sure you bring in all those bank and other account statements at the beginning.

Toward the end of the bankruptcy process, you are required to show those statements to your bankruptcy trustee.  What statements?  Every one that your name is on.

You need to give your bankruptcy trustee copies of your bank statements. That can be a big headache.

Those will mostly be the same accounts that you went over with your lawyer at the beginning, but maybe with some changes.  If you have accounts that you don’t use, your lawyer may have told you to close them.  If your accounts were in a bank where they weren’t safe, you may have new accounts now.

The bankruptcy trustee is looking at your account statements for two reasons.  First, because the law (Bankruptcy Rule 4002) requires it.  Second, to see if you had too much money on the day you filed your bankruptcy case.  (“Too much money” meaning enough that the bankruptcy trustee can grab some of it.)

Sometimes getting those bank statements is a problem, if you wait until after your case is filed.  Some banks, and especially some credit unions, stop sending statements when they get notice of the bankruptcy.  And they may cut off your internet access, too.

(Stopping the statements and cutting off internet access is most likely a problem if you owe money to that bank.  They don’t want to be violating the bankruptcy law by trying to collect your old debts, so they just stop sending you ANYTHING.)

I recommend a two step process.  First, when you come in for your court preparation appointment, bring your most recent bank statements.  Those may be a few days, or even a few weeks old.

Then, the day after your bankruptcy case is filed and your papers go down to the court, get an internet print out from the end date of the last statement on through to the day after your bankruptcy is filed.  Take care of that right away–in case the banks and credit unions cut off your internet access when they get notice of the bankruptcy.

Taking care of bank statements–and all account statements–both early and late in the bankruptcy process, is a key to have your bankruptcy case go smoothly.

 

Bankruptcy and bank statements: Update–there’s now a charge

Filed a bankruptcy case for some folks last week who had SIXTEEN bank accounts. Half of them they hadn’t used in years, but kept open because it was too much trouble to close them. Now they are trying to get account statements showing the date the bankruptcy was filed, and the bank is not cooperating.

Duh–if you’ve left a three dollar balance on a bank account for four years, the bank is NOT going to consider you a good customer. And if you thought it was too much trouble to close those accounts before you file bankruptcy, see how much trouble it is to get that bank statement balance now that you have filed bankruptcy.

You need to do yourself–and the bank–and the bankruptcy court a favor and close accounts you are not actively using.

So, I’m starting to charge. I’m charging for the extra paperwork we have when people have multiple, unnecessary bank accounts.

For a single person, your first THREE bank accounts are free. If you have more than THREE! accounts on the day you file bankruptcy, there’s a $50.00 charge.

For a married couple the first five are FREE. After five, there’s a fifty dollar charge.

(You also get one more for free for each child you have.)

Each bank account you have means a lot of work–for you, for me, for the bankruptcy trustee. And the more you have, the harder it is–for you, me. and the bankruptcy trustee–to make sure they are all covered. So, close ’em.

If it’s too much trouble to close them, I’m charging for the extra paperwork on my end. You will still have to do extra work to get each statement balance. And if you get sent home from your hearing because the trustee thinks you missed one statement, you were warned.

So, close those accounts you’re not using.

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24

Sep 2011

Bankruptcy means test: how big families can pass

Posted by / in General Information About Bankruptcy Law / 12 comments

The 2005 bankruptcy law is unfair to families.   If you have children, you need to fill out your bankruptcy means test budget very carefully.  Here’s why.

The means test in the 2005 bankruptcy law is easy on singles, and hard on big families.    Here’s an example:  a household of one is allowed $300 for food.  A family of four is allowed $757.   That’s ten dollars a day to feed the first person in the family–$5.07 a day each for the next three.  (When you go above four, it drops to $4.80.)

Congress set this up so that just trying to take care of your kids is called bankruptcy “abuse.”

There’s not much we can do about the unfairness of what the bankruptcy law allows for food and clothing.   But, other things you spend money on for your children, you are allowed to claim your real cost.

Those are the areas where you need to focus when you fill in your bankruptcy means test budget.

Child care.  Most families pay for child care by the week.  And then multiply by four to calculate the monthly.  But you should multiply by 4.333.  Because there  are more than twenty eight days in a month–usually thirty or thirty one.   So don’t short yourself.  Budgeting those extra three days could be the difference between having your bankruptcy approved and having it turned down.

Besides pre-school or after school care, budget for baby-sitting.  Most families, maybe once a month, both mom and dad have to go somewhere, together, and you need a sitter.   That twenty bucks or so goes in your bankruptcy means test budget, too.

Do you send the kids to summer camp?  That’s child care–and goes into your child care budget.

Are the kids lagging in school?  Let’s make sure we take advantage of that.  (In bankruptcy everything is upside down–bad is good; good is bad.)  So having trouble in school is an advantage in bankruptcy.

school boy

Kids struggling in school? Money for tutoring is allowed in your bankruptcy means test budget.

You are allowed to budget $125 per month to pay for schooling.  Now if the kids are in full time private school, at $125 a month doesn’t begin to cover it.  But if the children need tutoring to get through a tough class–or need to pay for summer school to catch up–that could be that $125 per month you are allowed in your bankruptcy budget.

(This schooling budget only covers kids up through age 17.  Congress says they are on their own for college.)

Are the kids having big trouble in school?  If the children are “challenged,” then the $125 per month cap doesn’t apply.  Your bankruptcy budget for education for employment of physically or mentally challenged children is unlimited.   (And goes past age 18, too.)

I see some parents who put their kids in private school because they couldn’t handle the public schools.  In that case, you can claim that whole expense.

Health and medical.   The bankruptcy means test allows you $60 per person for health and medical expenses.  Most people think they spend a lot less–but actually spend a lot more.

A lot of what you think of as grocery money can actually be counted at health care.  And for healthcare, unlike groceries, you can claim above the allowance.

Let’s start at Walgreens or CVS.    Vitamins–that’s health care.  Tylenol, allergy medication–health care.   Shampoo and toothpaste goes in the grocery budget–but anything stronger is health care.   Does your dentist recommend Listerine–that’s healthcare.

Lots of families are spending $20 or more per person on over-the-counter stuff that you can claim in your health care budget.

Prescriptions.  Should be obvious, but don’t leave it out.

Glasses or contacts.  According to the Vision Council of America, approximately 75% of adults use some sort of vision correction.   I’m spending over four hundred dollars a year–thirty five dollars a month–on glasses.  Your children may be spending more–because they lose or break them.

The dentist.  Just routine dental check ups can cost a couple hundred dollars a year.  Maybe half the people I talk to about bankruptcy tell me they are avoiding the dentist because they can’t afford what it will cost.  Budget that in.

You are allowed to claim the dental work you’ve been putting off  as health care.

Braces.  Approximately 4 million people are in braces in the US at any one time.    Orthodontics can cost a couple hundred dollars a month.  If the children need braces, put it in your budget.

Runny noses and broken arms.  In addition to preventive care, children (and adults) catch cold and flu, break their arms, and end up at the doctor’s one way or another.  Allow something for the unexpected in your bankruptcy health care budget.

Mental health.   A Gallup-Healthways Well-Being Index survey conducted in 2009 revealed that about 40 million American adults had recently been diagnosed with depression.

When life knocks you down, there can be changes in the chemistry of your brain.  People need help–counselling or medications or both–to get back to their right mind.  Things that caused your financial problems–unemployment, break-ups, other health problems–can also bring on depression.

If depression is impacting your family, be sure to add that to your health care budget.  (And be sure to take care of it, too.)

Don’t forget these categories

Charitable giving.  Most people have a good handle on what they give to their church, their favorite cause, or other regular commitment.

But if you have children (or even if you don’t), you get hit for donations for Girl Scout cookies, the high school band, and that kind of thing.  I’m guessing most families spend at ten dollars a month on these neighbor-to-neighbor charities.

Elderlies.  Along with the family in your home, many of us are helping out parents or grandparents.  One of the very few good changes in the 2005 bankruptcy law, help for elderly (or disabled) family members is now expressly ok.  (This includes family overseas.)  

To get your bankruptcy approved, we need to show the court where you need to spend your money.  People who come to talk to me about bankruptcy have been living from paycheck to paycheck–usually for a long time.  But they are often so stressed, they really don’t know where the money has been going.

I hope this article helps you think clearly about your budget–so we can get your bankruptcy approved.

 

 

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07

Aug 2011

Bankruptcy and security clearance, and defense cutbacks.

Posted by / in General Information About Bankruptcy Law / 19 comments

Defense cutbacks are now certain.  (At least as certain as anything is in this world.)

Lots of people whose jobs seem safe now will soon be out of work.

Will you lose your job and get behind on your debts?  Please don’t jeopardize your security clearance–and your future.  Please don’t put off filing bankruptcy.

That’s the lesson of the thousand people with security clearances I’ve helped. And the lesson of the half dozen who lost their security clearances because they filed bankruptcy too late.

Bankruptcy and security clearance

Virginia bankruptcy lawyer Robert Weed on Security Clearances

Some people think the worst thing you can do for your clearance is file bankruptcy. That’s completely false. The worst thing you can do is to ignore the problem. If you get into financial trouble, you need to talk to your FSO and then clean it up.

Some people think bankruptcy destroys your security clearance.  That is false.  The worst thing for your security clearance is “irresponsibility.”

It is irresponsible to get into debt you can’t pay.

But if you have debt you can’t pay, the responsible thing to do is clean it up.  The irresponsible thing is to ignore it.   The irresponsible thing is to drag out the problem.

This is not just me talking.  The legal office of the Air Force Academy says the same thing.  (Thanks to the Air Force Academy for putting this valuable information in writing.  So much in the security clearance world is not for publication.)

“Not filing for bankruptcy may make you more of a security risk due to the size of your outstanding debts. By the same token, using a government-approved means of dealing with your debts may actually be viewed as an indication of financial responsibility. Eliminating your debts through bankruptcy may make you less of a security risk.”

Here’s a post on security clearances, from the US Army Ft Meade.  They say it’s a “myth” that filing bankruptcy means you lose your clearance.  They say, and I agree, you need to be ready to explain how and why you got into trouble.

Let me make it clear.  Bankruptcy is not a good thing.  Paying everything on time is a good thing.  But bankruptcy is better than not paying. It is better than ignoring the problem.

I’ve helped a thousand people with clearances; and I know a handful who have lost their clearances.  Nearly all lost clearances for an obvious reason–they did not come to see me in time.  They did nothing until they were told they were in clearance trouble for financial irresponsibility.  Then they checked around.   Then they found out they should have filed bankruptcy when they first got into trouble.

Too late.  They needed to show responsibility by facing the problem when they first got into the financial problem.   Waiting until you get into a clearance problem is waiting too long.

Don’t wait too long.

Bankruptcy and Security Clearance articles by two other lawyers

(Russ DeMott, a bankruptcy lawyer in Charleston, SC, has an excellent article on bankruptcy and security clearances.   His experience is pretty much the same as mine.  Except that he’s mostly talking about active duty military people.  And my experience is mainly with civilians:  DoD, CIA and Homeland Security employees, and employees of contractors in the defense, intelligence and security fields.)

(Here’s a more recent article by Brett Weiss, a bankruptcy lawyer in Maryland, who says pretty much what I am saying here about bankruptcy and security clearances.    He also emphasizes the importance of self reporting to your clearance officer when you get into financial trouble, and before you file the bankruptcy.)

Bankruptcy and Security Clearance Update–December 2014

Yesterday, a Federal agent came to talk to me.  A young lawyer who had worked for me for a couple years had taken a Federal job.  she needed a clearance.

So the Federal agent was doing an investigation.

No surprise there.

Here’s the headline.  The Federal agent, the guy doing the clearance investigation, had filed bankruptcy with me back in 2001.  He didn’t just have a clearance himself–he was doing clearance investigation.  (And back in 2001 he was working for the same agency he was working for now.)

Proof of what I tell people. If you get into financial trouble, you need to clean it up.  And if you can’t clean it up any other way, then file bankruptcy.  The people who lose their clearances are the people who just let the problem get worse.  Be responsible, take control, fix the problem.  File bankruptcy.   (And don’t forget to self-report.)

Bankruptcy and Security Clearance Update–December 2015

Just filed Chapter 7 bankruptcy for Don and Donna.  Both disabled veterans, both battling multiple medical issues, and starting a new family.

They first came to see me in February 2014.  they were in trouble because they downed a house in an area with defense cutbacks that they couldn’t sell.   Told them they needed to file bankruptcy to fix that problem.

Don lost his nerve and they didn’t come back until October 2015.  Don’s clearance had been suspended, along with his job, for financial irresponsibility–and failure to self report.  That’s exactly what I told him would happen, if he did NOT file bankruptcy.  If he was a contract, he’d just be out of luck–and out of a career.  Because he’s a Federal employee, he has more protections.  I’m HOPING that his clearance will be saved on appeal, now that he has, finally, taken care of the problem.

 

Bankruptcy and Security Clearance Update–December 2017

December 28, 2017

Got an email today from “Candace.” She said she had lost her security clearance because of “financial concerns.” I make this point over and over. People do NOT lose their clearance for filing bankruptcy. You DO lose your clearance for not dealing with the problem. Usually dealing with the problem involves three steps. Talk with a lawyer and figure out what you have to do. Self report that you have financial problems and are taking steps to deal with them. If necessary have the action you are taking approved by a court.

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13

May 2011

After bankruptcy. Help! They're suing my LLC!

Posted by / in General Information About Bankruptcy Law / 16 comments

Many people who file bankruptcy are small business owners.  Especially owners of one-person small businesses.  People like the freedom of being their own boss, but it can be a tough way to make a living.

small business

Operating a small business can be a tough way to make a living

A lot of those small businesses are set up as corporations or LLC’s.  Why?  People have heard that they are not liable for the debts of their business if they incorporate.   That’s true.

(Now starting out, nearly everyone you do business with will want you to sign a personal guarantee.  So that protection doesn’t go as far as you’d like.  And those personal guarantees for a lot of people are the reason for the personal bankruptcy.)

The advantage of setting up a corporation or LLC turns against you, if you have to file bankruptcy.  Why?  Just like you are not liable for the business’s debts, the business is not covered by your bankruptcy.  You are not the corporation; the corporation is not you.

That hits home hard after the bankruptcy, when creditors keep sending bills, or even send court papers, in the name of your corporation or LLC.   What to do?

Well, if the business is closed, do nothing!  Go back to square one.  Why did you set up the corporation or LLC in the first place?  Because you are not liable for the corporation’s debts.  So if they bill the corporation, you don’t care.  If they sue the corporation, you don’t care.  That was the whole point.  You are not the corporation.  You are not liable for the corporation’s debts.

If the business is closed, why do the bills keep coming?  Why would collection agencies go after closed businesses?  To scare people–specifically to scare people into paying.   The key thing here is, don’t be scared into paying.

“I’ve filed bankruptcy, so I don’t have to pay.  The XYZ Company is out of business, so it can’t pay.”  Keep those two things in mind and you’ll be fine.

(Suppose you are still operating.  Now that’s trickier.  We need to talk about that in person.  If you had a lawyer, accountant or business advisor when you started up, you need to go back to that person again, too.  It’s really important to do that right.)

But if you have closed, then it’s simple.  You don’t care.

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03

Apr 2011

Does bankruptcy help with inherited debt?

Posted by / in General Information About Bankruptcy Law / No comments yet

“Do I need to file bankruptcy on inherited debt?”

In my twenty years as a bankruptcy lawyer, I’ve been asked about bankruptcy and inherited debt maybe four or five times.

Someone’s mother or father passed away, leaving nothing but credit card and medical bills.  What to do?  Does bankruptcy help?  Most people know that you don’t need to file bankruptcy–because you can’t inherit debt in America. I never thought I’d need to talk about it in my bankruptcy blog.

(Unless you were already a co-signer, collectors cannot come after you for the bills of your mother or father.   At least they shouldn’t.)

So I was surprised by a news release posted on the internet March 31, 2011.  Debt collector Phillips & Cohen brags about their leadership in collecting “deceased account recovery.”  Deceased account recovery?

Now if someone dies and leaves a probate estate, legitimate creditors should be paid.  That’s one of the things that Phillips & Cohen says they do, on their website.

They also say they have “effective family … communication.”  What’s that???

The Fair Debt Collection Practices Act says that a collector cannot communicate with anyone other that the consumer debtor or spouse or attorney or the credit bureau.  The only exception is to obtain “location information.

So I’m not sure how these people–who are clearly collectors–communicate with family.  They aren’t trying to locate someone they know is deceased.  Doesn’t any other communication instantly violate the FDCPA?

If a loved one dies and leaves a probate estate, creditors should be notified and legitimate debts should be paid.

But if they leave nothing, you do not inherit the debt.  Don’t let anyone tell you that you do.

There’s no need to file bankruptcy.

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