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26

May 2012

Before bankruptcy: How to put Mom on your car title as lien holder

Posted by / in Before Bankruptcy / 23 comments

Before bankruptcy, sometimes you need to borrow money from Mom.  You might want to borrow that money and put her on your car title.

Now Congress made it illegal for me, a bankruptcy lawyer, to advise you to borrow money.  But the Supreme Court said it’s legal for me to tell you that it’s legal for you to do it.  (You may have to read that twice.)

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26

Oct 2011

Do I need to file business bankruptcy?

Posted by / in Virginia Bankruptcy / 2 comments

Do I need to file business bankruptcy?

A lot of people who think they need to file business bankruptcy really don’t.   They often need to do a personal bankruptcy, instead.  And they need to just dissolve their LLC or S corporation.  Does this apply to you?

You probably don’t like to hear from me that you need to file a personal bankruptcy.  After all, Donald Trump has been through three or four business bankruptcies and NEVER filed a personal bankruptcy.  Why?

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06

Feb 2011

After bankruptcy: worried about your tenants?

Posted by / in After Bankruptcy / 40 comments

Lots of people I see filing bankruptcy are landlords.

They’re not people who wanted to be landlords.  I’m talking about people who are renting out a house they cannot sell.  (Because the value has dropped way below what they owe.)

Virginia bankruptcy lawyer Robert Weed

Lots of people who talk to me about bankruptcy are landlords

They often come to see me when they realize they can’t afford to take the monthly loss on the rent, either.   And so we talk about filing bankruptcy to get rid of the house.

When they decide to file bankruptcy to get rid of that house, they ask about their tenants.  People don’t want to leave their tenants high and dry.

If you are in that situation, here’s good news.   A law signed by President Obama protects your tenants after foreclosure.  The foreclosure buyer cannot just evict your tenants.  The tenants have at least 90 days to find a new place to live and move out.

Here’s how that would work.

Suppose you come talk to me in January and we decide that you need to file bankruptcy.  You stop paying the mortgage on that rental property in February and file bankruptcy at the end of March.

Your mortgage company would probably get relief from the automatic stay in early May.  “Relief from the automatic stay” means permission from the bankruptcy judge to foreclose.   In Virginia, the foreclosure sale might be scheduled around the Fourth of July.

Then, under the “Protecting Tenants At Foreclosure Act,” the bank or foreclosure  buyer has to give the tenant 90 days notice to leave.   That’s October.

So, we are talking nine months from your decision to file bankruptcy before your tenants have to leave–plenty of time for them to find another place.

(This protection does not apply if the “tenants” are members of your immediate family.)

Just letting the place go to foreclosure without filing bankruptcy is not a good idea.  The mortgage company can still come after you.  (Often the first mortgage will not, but the second, if there is one, certainly will.) And, if you broke the lease, so can the tenants.

(All this has application if you’ve already moved out of your house and it’s vacant.  Especially if there’s a high condo fee,  the bank may be very slow to foreclose.  And as long as you are owner, you are liable for the condo fee.  Even after the bankruptcy is filed.   Rather than take that loss, make a little money.  Rent the place!)

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06

Feb 2011

Before bankruptcy: Virginia law is fast track for foreclosure

Posted by / in Virginia Bankruptcy / 3 comments

Many people file bankruptcy right before foreclosure.  Sometimes the timing of the bankruptcy is to get more time to get a loan modification approved.  Sometimes the timing of the bankruptcy is to get more time to move.   Sometimes it’s because people are out of work and have no where they can go.

As a Virginia bankruptcy lawyer, I see a lot of that.  Because foreclosure is faster in Virginia than almost anywhere.  (And while other states are adding protection for homeowners, Virginia is not.  So reports the Washington Post.)

Now most people who are being foreclosed in Virginia are in fact behind on the mortgage payments.  And they do owe a payment to somebody.  But, it’s not always the company who is trying to foreclose them.

Just last week, I met with a couple filing bankruptcy on the eve of foreclosure.   They had letters in December from two different companies, both saying they owned the loan.

Does that matter? Well, some.  Now in this era of falling housing values, banks will consider loan modifications and work outs, rather than just foreclose.  But you can’t apply for a loan mod, if you don’t know who has your loan.

So, it’s no surprise that several members of the Virginia General Assembly have introduced bills to give homeowners more protection.  One of those was Del Bob Marshall from Manassas.

If anybody can get the attention of the General Assembly for a consumer bill, Del Marshall would be the one.  He’s a member of the majority party–a Republican.  He’s been there twenty years.  He’s a well known right-winger.  His bill has support from both parties.

Virginia Del. Bob Marshall introduces a foreclosure bill

Del Bob Marshall

(Del Marshall also said his bill would help the state collect a tax that the banks already owe and don’t pay. That was an appeal to law and order and fiscal conservative types.)

The General Assembly is in session right now.  Are they doing anything about this?  No so far.

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13

Dec 2010

Right after filing bankruptcy: A Motion for relief from stay.

Posted by / in Virginia Bankruptcy / 15 comments

Before the housing crisis, I warned all my Chapter 7 bankruptcy clients, “make sure you are current on your house the day we file your case.”  If you went into Chapter 7 bankruptcy even one payment behind, the mortgage company would get relief from the automatic stay, and they’d start to foreclose.  Once that train left the station, it was hard to stop.

That’s still a good plan if you can do it; but not everybody can.  If you file Chapter 7 bankruptcy while the house is behind, the motion for relief from stay is important, but it’s not time to panic.

What to do when you get a motion for relief from the automatic stay?

Robert Weed

1.  If you can afford the house payment, and you want to be certain you will keep the house, then you need to get caught up.  In fact, you really should be caught up when the bankruptcy is filed.  Everybody knows, if you really want to keep your house, you need to get current and stay current.  That applies before bankruptcy, during, and after.

2.  If you don’t want to, or can’t afford to keep the house, make plans to move out.  See my blog on how long do I have.    (Remember to pay the home owners association!)   I suggest to many people that they file bankruptcy right before a foreclosure, to stop the foreclosure and get a little more time to live for free (except for the association) and save money for movers and the rent deposit.

3.  What if you need a loan modification?  Then it’s more complicated.  If you catch up (assuming you can), then you won’t get the mod.  You’ll never get a loan modification if you keep catching up.  At the same time, you don’t want to get foreclosed.  Trying to stay at least two, but no more than three payments behind is the safest place to get a loan modification.

Filing a motion for relief does not mean they have decided to foreclose you.   It may simply be their lawyers generating legal fees.  (Those fees will get put at the end of the mortgage if you get the mod.  If you don’t get it, the bankruptcy will wipe out what you owe so it doesn’t matter to you.)

The old rule was once they got relief from the stay, they went straight to foreclosure: that doesn’t apply any more.  Sometimes they do; sometimes they come with a mod offer much better than before; sometimes they wait for you to request a mod (again).  Really there’s no telling.

Once they get relief from stay, is there anything else I can do to stop them?

First, like I say, keep trying to apply for a loan modification.

Second, if your income has improved in a big way, you can file a Chapter 13 bankruptcy.  Under Chapter 13 , you would make your current payment, and make a monthly payment to the court to catch the house up.  Before the crisis, we did that a lot.  Now usually, if your income shows you can catch up, they will agree to that voluntarily.  So we don’t do that much any more.

Third, you can file against them in circuit court in your county, and make them prove they have the right to foreclose.  This is the Virginia approach to these foreclosure challenges in the news.  (In some states, they have to go to court against you to foreclose; in Virginia you have to go to court against them.)

There is one law firm I know of in Northern Virginia that does this.  Compliance Counsel. As far as I know, they have not gotten anyone a paid for house.  But they have, at least some of the time, gotten the mortgage companies to make a new mod offer, rather than fight it out.

Now, I got through all that strategy without explaining what a motion for relief from the automatic stay is.   If you are interested, that’s next.

Two bankruptcy protections.

People file bankruptcy to get protection from their creditors.   You get two kinds of protection.  You get long term protection from your debts.  That’s the bankruptcy discharge.   The discharge is your “new opportunity in life and clear field for future effort.”

Shorthand that’s your “fresh start.”   The Supreme Court said that your “fresh start” is the principal purpose of the bankruptcy code.

The bankruptcy discharge, about three months and two weeks after we file your Chapter 7 bankruptcy case, gets you your fresh start.  The discharge forbids anyone from taking any action to collect your discharged debts from you.

You get that discharge when your bankruptcy is approved.

The second protection, right when you file your chapter 7 bankruptcy case, is the automatic stay.  The automatic stay prevents your creditors from taking action against you–and it also prevents them from taking action against your property.  The automatic stay is sometimes called your “breathing spell.”

The automatic stay is temporary.  Why?  Because, when your bankruptcy is discharged–in about three months and two weeks–if you haven’t made your car payment, they are going to repossess your car.  And if you are not making your house payment, the mortgage company–at least the first mortgage company (maybe not the second)–will eventually foreclose on your house.

Unlike the automatic stay, the discharge does not stop people who are on the title or deed to your property from claiming the property, if you don’t pay.

Relief from the stay. Sometimes the creditors don’t want to wait that three months and two weeks, for the automatic stay to be replaced by the discharge.   They want it sooner.  The car creditors don’t want the car wrecked.  The mortgage companies–well who knows what they are thinking these days.

Anyway, they file a motion for relief from the automatic stay.  The judge will give them relief from the stay unless you are completely current.

As I said before, staying completely current, if you can afford the house, and want to keep it, is your best plan.  As I also said, if you need or want a mod, getting completely current means you won’t get the mod.  You need to go back to your strategy.

(One more thing to keep in mind.  Cash is king.  If you have the ability to catch up but want the mod, hang on to the money and see what happens.  You can always catch up later in the foreclosure process–you will need to cover the late fees.  Draining all your cash now, and then not being able to pay later, may not be smart.)

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11

Oct 2010

Don't file bankruptcy until March if you get a big refund.

Posted by / in Virginia Bankruptcy / 11 comments

This time of year, you need to be very careful about filing bankruptcy in Virginia if you get big tax refunds.  Why?

Virginia law has a lifetime $5000.00 limit on how much cash you can have when you file bankruptcy, and your refund counts against that.  If you file bankruptcy in October, November, or December, the bankruptcy trustee is going to look at last year’s tax return and see how much money you got back.  Hummm.  If it’s any where near $5000.00, he’ll hold your case open and ask to see the 2010 return.

If that refund puts you over the cash limit, he’ll grab it.  Another reason this is a big problem is because Virginia only allows you equity in your car up to $2000.00.  That’s right, the Virginia General Assembly thinks the bankruptcy court should take your paid for car if its worth $2000.00.    (When I graduated from high school a brand new Volkswagen cost $1995.  But that was a LONG time ago.)

You can use your cash limit to protect a car that’s worth a little more, but that leaves the tax refund hanging out.

Darden Hutson and Mitch Goldstein, two excellent bankruptcy lawyers in Richmond, Virginia, are spearheading an effort to raise these limits.   But for now, they are what they are.

Now, there are two reason people get big tax refunds.  Some people get a big refund, because they pay big taxes–they over withhold.  If you are one of those people and you want to go ahead with your bankruptcy now, you should contact your payroll office and increase your exemptions to twelve.   Right, like you have twelve children.  (Both state and federal.)

That will cut to almost nothing the taxes you pay for the rest of the year–and we hope it sopps up enough of the refund that you stay under the cash limits.

Other people get a big refund because of the earned income credit.   The earned income credit is basically a boost that the federal government gives to families with children where the parents are working but not making much.   This was originally put in by Richard Nixon and increased several times over the years, including by Ronald Reagan.

Increasing your depedents to 12 won’t help people who get a big refund because of the earned income credit.  That’s because the refund is based on the number of children and the income–its not really based on what taxes were actually paid.

Unless there’s some real emergency, people who get an earned income credit should not file bankruptcy in Virginia after August.  Otherwise the money the federal government is giving to help your children will end up in the hands of the bankruptcy trustee.

Why am I saying file bankruptcy in March?  File your taxes as soon as you can in February and get that money in and spend it.  Don’t just throw it away–and you can’t bury it in your backyard or give it to your brother–but spend it on things the kids have been needing, probably since last year.

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06

Sep 2010

After my bankruptcy hearing: Pay the car. Pay the HOA.

Posted by / in After Bankruptcy / 2 comments

After your hearing with the bankruptcy trustee–called the “meeting of creditors”–here are two things you need to know.  Pay the car payment, if you want to keep the car.  Pay the HOA–even if you aren’t keeping the house.

First, make sure you are making the car payment, if you want to keep the car.  They will not bill you.  Because of the bankruptcy, sending you a bill is trying to collect the debt.   And they are not allowed to try to collect the debt.  They will however repossess the car if you don’t pay.  So make sure you are current and stay current.

(If you were set up on an automatic payment, that has probably been turned off.  Check and be sure.)  If they are not receiving the payment, they will not call and yell at you.  They will repossess your car.

After the 2005 change in the law, they can repossess your car even if you are current.   The people who actually do that are Ford Credit, Chrysler Credit, and SunTrust.  (Mazda is part of Ford.)

(Most states have state laws that block them from repossessing if you are current; but this is Virginia.  Virginia has the worst consumer protection laws of any of the fifty states.  Seriously.)

Talk to me about reaffirmation if you have Ford, Chrysler or SunTrust.

Second, make sure you are paying the homeowners or condo association.  Your bankruptcy means they cannot go after you for what you owed before your case was filed.  But your next month’s association fee is an after bankruptcy debt.  So is the one after that and the one after that.   The bankruptcy court is not paying those.  You need to.  (If you have not paid between your filing date and the date of your hearing, you are probably already one payment behind.)

You owe the condo and HOA fees for as long as you own the house.  That’s usually three or four months after the bankruptcy is filed and sometimes it’s six or eight.   Especially when the condo fees are high, and there are already bank-owned condos in your development, the mortgage company is in no hurry to foreclose.   See my blog on “how long after bankruptcy can I keep my house?”

(The mortgage company doesn’t want to be paying the condo fees on an empty place–they’d rather you do it.  If you know there are a lot of empty units in your condo, think about renting yours, if you’ve already moved out.  Rent it on a month-to-month, obviously.)

When are you able to stop paying?  When there’s a foreclosure sale.  You’ll get notice by certified mail.  (They don’t send those to me, once the bankruptcy is over, I’m not involved.  They send them to you.)  Here’s what one looks like.

It would be a good idea to send notice of the sale to your association, so they do not continue to bill you once there is a foreclosure.

The situation with HOA’s and condo associations is so bad, I have one person in my office assigned to it.  It’s Laura Jones, at (703) 962-1043.  I gave her this job in part because she is a Realtor, on the side.

Problems constantly crop up.   Sometimes the associations apply your payments to pre-bankruptcy debts.  They can’t legally do that.   Sometimes they keep billing after the foreclosure finally goes through.  They can’t do that either.

But often, people aren’t making the association payments.   People say, I gave my house to the bankruptcy court.  Why do I still have to pay?  Answer, the bankruptcy court didn’t want it–they gave it back to you.

So, if you had stopped paying the HOA before the bankruptcy, you need to start paying once the bankruptcy is filed.  I know that seems strange, but there it is.  Pay the HOA.

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21

Aug 2010

Do I need to file bankruptcy after foreclosure?

Posted by / in Weekly Posts / 143 comments

Do I need to file bankruptcy after foreclosure?

As a Virginia bankruptcy lawyer, I talk to about a dozen people a month who have already lost their home to foreclosure.  When we look at the credit reports together, the first mortgage usually shows foreclosed, with a balance of $0.   And talk about the question, after the foreclosure, do I still need to file bankruptcy?

For some people, the answer is obvious.  If there was a second mortgage on the foreclosed house–those almost always sue.  Usually within a year.   If the credit cards got out of control while trying to save the house, then people need to file bankruptcy to clean up the credit cards.

But what if the foreclosed first mortgage is the only problem?

Up to this point, I’ve told people I almost never see any effort by anyone to collect on those foreclosed first mortgages.  (A couple months ago I saw a couple being sued on a first mortgage forelcosure.  That mortgage had been a rural development loan backed by the Department of Agriculture. Don’t see much of that around here.  That house had been in Culpeper County.  That may be the only time I’ve seen someone sued on a first mortgage.)

That may be about to change.  Bill and Janie (not their real names) came to talk to me about filing bankruptcy last week.

Bill and Janie had a collection letter for $137,000 from a company called Strategic Recovery Group.   This was the mortgage deficiency on a first mortgage that had been held by GMAC.  Their credit report showed “foreclosed” and $0 balance for GMAC; but now a debt collector was after them.

(The debt collector did not say they were collecting for GMAC.   They said they were collecting for Fannie Mae.  Most mortgage loans in the country are made by one of the big banks, but then sold to Fannie Mae, who bundles them up and sells them to big investors.)

Other than that, they had no credit problems,  Each had one small credit card that was current.   What to do?

Back in June, Fannie Mae put our a press release saying they were going to start taking legal action to collect on those foreclosed loans.  Looked like this might be the first sign that they were doing it.

We spent a long time talking about what was the best way to go.  The debt collector had not his their credit report, at least so far.  And there was still no sign that Fannie Mae really was suing on these.  So waiting to see what happened next was definitely an option.  That was my recommendation.  (Also, personally, I was curious.)

Why go ahead now?   This family wanted to buy a house in a few more years.   If they went ahead and file bankruptcy now, they knew they’d be back to good credit in a couple years, when they wanted to buy.

Does that surprise you?  Take a look at this chart.  It was prepared by the National Association of Realtors.  It shows the current policies of Fannie Mae, Freddie Mac and FHA.  Basically, you can have good enough credit to buy a house two years after a bankruptcy.  Three years after a foreclosure.

Bill and Janie lost their house to foreclosure about a year ago.  So if the go ahead and file bankruptcy now, the two years after bankruptcy and three years after foreclosure will end at about the same time.    If they wait to see if Fannie or Strategic sues them for the $137,000–maybe a year and a half from now–then the two year waiting period after bankruptcy would start then.  and that would put off their chance to buy a house again.

(Actually, they wouldn’t even have to sue.  If Strategic or Fannie waited a year and then hit their credit report–bam–then they’d have to file bankruptcy or never get back to good credit.)

So rather than wait and see what happens next–and take a chance on ruining their credit just as it was getting good again–they decide to go ahead and file bankruptcy now.

It was a close call, but it makes sense to me.   (So I still don’t know if Fannie Mae actually does follow up on its threat to start suing.)

(This is specific to Virginia law.  In about half the states, they cannot sue on a foreclosed first mortgage.   But in Virginia, they can.)

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29

Jul 2010

Before bankruptcy: beating a warrant in debt

Posted by / in Before Bankruptcy, warrant in debt / 64 comments

Bill, not his real name, is filing bankruptcy with me in October.  (He needs a couple more months to finish everything to get his bankruptcy approved.)

Virginia Bankruptcy Lawyer Robert Weed

Virginia Bankruptcy Lawyer Robert Weed

In the meantime, he received a warrant in debt.  Midland Credit Management, a big debt buyer, was suing him on a old Chase card.  He didn’t want to get a judgment and a garnishment while we were waiting for the right time to file the bankruptcy.

Bill knew, from my warrant in debt website, that he had to go to court on his return date, and tell the judge he wanted a trial.  He had an easy basis for saying he wanted a trial.  “I never heard of Midland Credit Management.  I don’t know who they are or what this is about.”

He asked for a bill of particulars, and Midland’s lawyer asked for grounds of defense.

When Midland submitted their bill of particulars, they wrote they had bought the debt from Chase, and Bill owed Chase $4822.

For Bill’s grounds of defense, he wrote to the court and Midland’s lawyer that there were no documents showing that Midland really bought the debt from Chase; and that Midland had no evidence of how much he owed Chase–they would need a witness from Chase to prove that.

Bill was nervous on his warrant in debt trial date, but it was easy.  When they called his name, the lawyer for Midland said, “Your Honor, this is our first dismissal of the day.”  The Judge then turned to Bill and scolded him slightly to be financially responsible.  Then he  said, you won today,  you are free to go.

Bill handled this on his own, but I had given him some tips.  One thing I said, if this is still America, you’ll win.  Nice to know this still is America.

Under Virginia law, Midland would be able to bring the same warrant in debt a second time.  But they won’t be able to move fast enough to beat our October bankruptcy filing.  (And they probably couldn’t prove it then, either.)

When we get to October, his bankruptcy will go fine.

PS  Here’s an update on March 30, 2011.  The Attorney General of Minnesota announced he is going after Midland, and their parent company, Encore.  He says they used robo-signed affidavits to sue people on in Minnesota.  In other words, Midland claimed they reviewed their records and had proof so-and-so owed them money–but nobody actually looked to see whether they really had that proof.  This press release would be something to bring to the attention of the Judge, if you go to court and fight Midland on one of these.

PPS.  Washington Post had a good article on beating Midland in May 2014.

In Northern Virginia, Encore’s Midland unit has filed 16,878 lawsuits from 2003 to March of this year in the district courts of five counties. The company won nearly two-thirds of those cases through judgments against consumers who either failed to appear in court or simply agreed to pay the amount.

Almost 20 percent of those people wound up having their wages garnished, according to a review conducted by The Washington Post. Debts range from as little as $53 to as much as $23,786.

The Post article includes a comment from a guy who calls himself “rogerramjetz.”  He says he used to work as a collection lawyer on exactly those cases.

A guy gets a credit card with an Account Agreement that charges him $137 to open the account the first time he uses the card, and the card has a $250 credit limit. He then buys a $35 iron and a $45 coat at Walmart with the card. He now owes $217 the next month, and when he doesn’t pay the bill, he accrues an interest charge of $5 at 29% interest. When he doesn’t pay the next month, the card accrues a late charge of $35, $5 in interest, and an overdraft fee of $35 a month, totaling $297. The following month, interest is $6, and the late fee is $35 and the overdraft fee is again $35. A year and a half after the initial $80 purchase, the account shows a $1600 balance to Providian Bank. Totally legal.

Providian then sells the debt to Midland for $0.17 on the dollar, or around $200, and gives the last statement the guy received for $1600 as evidence of the debt. Glasser & Glasser in Norfolk is promptly retained to sue the guy for $1600, with interest at 29%, and accrued interest since the default a year before totaling $500, while the Account Agreement is invoked for a “33.3% reasonable attorney’s fee, totaling $533” and court costs of $63.00. An affidavit from Midland and Providian is generated, and a sheriff delivers the Warrant in Debt to the guy.

Total sued for? $2,693, but we will gladly settle for a lump sum of eighty cents on the dollar, or $2,154. For an iron and a coat at Walmart. Or we will take a judgment and garnish 25% of your wages until paid, and in three years the balance will double again at 29% interest.

How do I know this? I worked for Glasser as local counsel.

“Roger’s” example may be extreme but it shows how small debts can lead to fairly big garnishments, with late fees, over limit fees, later over limit fees, legal fees and the rest are added in–the just 29% interest alone doing it’s magic.

What’s the lesson:  Many credit cards in bankruptcy have already been money makers for the credit card companies.   And if you are getting sued by people you never heard of, it’s time to talk to a lawyer.

 

 

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21

Jul 2010

How "Avoid Bankruptcy" plan avoids Virginia consumer protection law

Posted by / in Virginia Bankruptcy / 4 comments

After talking with a lady yesterday, we’ll call her Jerri, I went to the website of Greenshield Financial Services. Here’s what they say they do: “Greenshield Financial Services is a Financial Health Management Company serving individuals seeking debt relief or debt help by offering debt settlement programs as an alternative to bankruptcy.”

Jeri had a set up fee for Greenshield Financial Services of $3500–paid as $900 over four months. And then a monthly management fee of $425. A total of over $7000.00 had been paid to these people as their fee to help Jerri with debt settlement.

As a result of their work, two small credit cards had been settled. Jerri saved less than $1000 total. Spending $7000 to save $1000 is not exactly a good alternative to bankruptcy. She figured that out when the sheriff brought around court papers from some of her bigger credit cards, that had not settled their debts through Greenshield.

At first, I thought it was a violation of Virginia law. Virginia law says a debt management program can’t charge more than $75 set up and $60 per month.

Now $3500 is a whole lot more than $75–and $425 per month is more than $60. But Greenshield is not covered by the law.

Here’s how they avoid the law. To be a debt management program under Virginia law, the debt negotiator needs to collect the money from the consumer and pass it on to the creditor. Greenshield works out the settlement, but the creditor take the money directly from the consumer’s account. As long as Greenshield never touches the money, they aren’t covered by the law. So they can charge as much as they can talk people into paying. Which, in Jeri’s case, was a lot.

(And no, she is not likely to avoid bankruptcy.)

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NORTHERN VIRGINIA BANKRUPTCY LAW OFFICES