Do Not File Chapter 7 Until You’ve Read This 07/21/2010
There is nothing more frustrating than filing a Chapter 7 Petition and then learning that you’ve messed up in a major way because of something that could have easily been prevented. As a bankruptcy attorney here in the San Francisco Bay Area, I have a checklist I go through with my clients to make sure that we identify any “red” or “yellow” flags. These flags are items that the Bankruptcy Trustee may question you about at your Meeting of Creditors, and if not handled properly, could even cause dismissal of your case. My experience is that if you identify, disclose, and prepare for the items listed below, you’ll greatly increase your chances of your case going through smoothly. 1) Paying Debts Back to Family or Friends. Paying debts back to family or friends can pose a huge problem for both you and your family member or friend. The Bankruptcy Code requires that any payments over $600, made to family or friends within the past year, be disclosed on the bankruptcy paperwork. Depending on your situation, the Trustee may demand that the money you re-paid your family/friend be turned over to the Trustee. Imagine your loved one getting a letter from a Bankruptcy Trustee asking that they return the money you paid them. This could cause embarrassment, as well as a financial mess for your loved one who would have to come up with the money. If you’re considering bankruptcy and owe money to a loved one, the best thing is not to pay them back now. If you’ve already made such a payment, talk with your attorney about disclosing this properly and how to handle it. 2) Taking Cash Advances or Using Credit Cards Immediately Before Filing. A huge red flag, especially with creditors, is using your credit cards fairly close to the date you file for bankruptcy. If you are a debtor and have a bit of credit available on your credit cards, DO NOT decide to max it out and/or take a cash advance thinking you will be able to discharge it as part of your Petition. Why? Because your creditors, and the Trustee, will likely see your actions as fraudulent. This would then mean that your Petition could be dismissed and/or you may even face serious consequences such as criminal prosecution. Once you decide that bankruptcy is the path for you, stop using credit cards completely! 3) Transferring, Giving Away or Hiding Assets. Don’t transfer your assets to anyone else and definitely don’t hide anything (i.e. that second or third car, that timeshare in Cabo, that joint account with your girlfriend, etc.) because non-disclosure of assets is a HUGE no-no. Failure to disclose all your assets could greatly, and negatively, affect your case. For example, at a recent Meeting of Creditors, I witnessed the Trustee demanding that a debtor (not my client!) send the Trustee a check for $9,000 because the debtor could not explain why their reported bank balance did not match the bank statement. In extreme cases, failure to report and/or hiding assets can cause the Trustee to dismiss your case. 4) Your Income Is Greater Than Your Expenses. When filing for bankruptcy, you’ll need to calculate your income and compare it with your expenses. Your expenses must be reasonable, and what the law considers reasonable is sometimes surprising. Clearly, expenses for your dog Mr. Muffins would not be legitimate expenses for you to take into account. But even things like paying for your child’s college tuition might not be able to be included. If from the get-go, your income is greater than your reasonable expenses, you clearly will have a problem. The Trustee will wonder why you are not able to pay your bills, and could move to dismiss your case or have it converted to a Chapter 13 (the type of bankruptcy where you pay your debts back to creditors over time.) So before you file, make sure that you do your calculations, and make sure you don’t have any expendable income. 5) Banking With Your Creditors. If you’re considering bankruptcy, and have a bank account with a company to whom you owe money, you need to take action fast. Immediately close that account (make sure you have a paper trail) and open an account someplace else where you don’t owe money. Why? Because the bank to whom you owe money can easily freeze your account and/or pay themselves what you owe from your account. Yes, it seems unfair, but unfortunately, it frequently happens. I recently had a client that banked with their mortgage holder, and who made the mistake of not closing their bank account (even though I urged them to do so). Since the clients were behind on their mortgage, you can guess what happened to the $500 in their bank account. That’s $500 they could have used to keep food in the fridge. 6) Making Major Financial Decisions. When you’re in financial distress, it often feels like you have to do something, anything, to regain control of your finances. And sometimes, unfortunately, people react without getting all the information about what a specific transaction may mean to them. Example: Trying to avoid bankruptcy, Jane contacts a credit counseling service in order to deal with her $50,000 in credit card debt. One of her creditors settles the account and forgives $15,000 worth of debt. Without intending to or realizing it, Jane may be taking on a tax liability; any amount creditors have “forgiven” may be taxable. Thus, Jane still owes $35,000 to other creditors, and may owe taxes down the line on a portion of the $15,000 that was forgiven. Other major decisions that should be avoided if contemplating bankruptcy are short-sales, debt consolidation, tapping into retirement accounts, and selling a vehicle or home. The intent behind bankruptcy is to give people a clean slate as possible; in order to get that clean slate, avoid making any major financial decisions prior to consulting a bankruptcy attorney. 7) Hiding Any Information That You Think Should Be Disclosed. Please – when filing for bankruptcy, don’t lie, and don’t hide anything - because the Trustees have a pretty good knack for knowing when someone is not being truthful. A typical trustee sees about 10 cases per hour for about 6 hours a day, 2-3 times a week. That’s about 180 cases a week, 720 cases a month, 2160 cases a year! With those numbers, you can get the picture that the Trustees have seen it all, heard it all, and are really good at reading people. When it comes to bankruptcy, not disclosing something is often worse than having it disclosed it the first place. As a bankruptcy attorney, I always tell my clients – if in doubt about whether to disclose something, trust me – and tell me about it. I can help you prepare for when it does come up. To do otherwise is a huge risk, and frankly, not something I would consciously allow a client to do. I work with people that need help, but I will not represent someone that is looking to lie, deceive, or abuse the system. If you need a bankruptcy attorney in the San Francisco Bay Area, I would be honored to help you. Please contact me at 925-415-6101. Some people decide to walk away from their properties because they are too far underwater on their mortgage payments. They believe that since the lender now has the house, they are now off the hook for the money owed, and the lender can’t come after them. Is this true? Well - as with all things legal – it depends. If you only have a first mortgage on the property, this strategy may work. In California, a first mortgage is generally a non-recourse loan, which means a lender cannot get a deficiency judgment against a person in a non-judicial foreclosure (which most foreclosures are). However, you may still be liable for income tax on the difference between the amount you owed, and the amount the lender sells the property for. The reason for this? The IRS treats as income the amount you didn’t have to pay back. If you’re thinking that’s pretty nutty, I agree. Check out this post for more information on the tax consequences of a foreclosure or short-shale versus a bankruptcy. Now, if you have a refinanced mortgage, an equity line of credit, or a second mortgage, those loans are most likely recourse loans. This means that you are still personally liable for the amount you owe. The lender can sue you – and eventually garnish your wages - for something you thought you had walked away from. I’m seeing more and more people each day that are being hounded by collection companies coming after them for those recourse loans. So, what are your options? They are: 1) pay the outstanding amount owed (good luck trying to negotiate with the bank); or 2) look into whether a Chapter 7 bankruptcy filing will wipe out the debt. If you do not have significant assets, and don’t have disposable income each month, it likely will. If you're in the San Francisco Bay Area and need a Chapter 7 bankruptcy attorney, the Law Office of Mauricio Ramos is always happy to help. Myth. Many people see on their credit report that a debt has been “charged off” and believe they no longer owe the debt. That belief is incorrect, and can cost you money. A bank can still send a “charged off” debt to collections, sell the debt to another company, or even sue you for the amount owed. Why is this? Because banks use the “accrual method” of accounting, which allows them to count income when it is earned and not received. For example, credit card banks are allowed to count as income the interest that is due from a consumer, even if not yet paid. When you stop paying on a debt, and enough time has gone by that it’s clear you are in default, the bank then “charges off” and stops counting as income the interest which it earned but did not receive. A debt being “charged off” has nothing to do with you being off the hook for the debt. You still owe the debt, and unless the Statue of Limitations (which determines whether a debtor can collect on a debt) has passed, it is highly likely that the bank will do whatever it can to recoup what you owe. If you file a Chapter 7 Bankruptcy Petition, make sure you list all debts that appear on your credit report, including ones that say “charged off,” because you are still responsible for those debts. If you're in the San Francisco Bay Area and need a bankruptcy attorney, the Law Office of Mauricio Ramos is always happy to help. Your Debt Just Became More Unmanageable 03/23/2010
You might have heard that there is a new federal credit card law that has taken effect – the Credit Card Accountability, Responsibility and Disclosure Act of 2009. The intent is a great one because many of the profitable (and abusive) practices of the credit card companies are now banned. For example, interest rate increases can now only affect new purchases, not balances, and the new rate only goes into effect if you’ve missed a payment beyond 60 days. That’s great news. The bad news though is that these sorts of tactics are expected to cost the credit card industry over 12 billion a year in lost revenue and so now credit card companies are creating new ways to go after your money. Some, for example, are tacking annual fees to your account. In reality, the new law really benefits people that don’t really have any credit right now. If you had a balance before the law took effect your debt may have just become more unmanageable. Here’s why: Before the law took effect, credit card companies raised interest rates because they knew it was going to get much, much harder for them to raise rates. In other words, there’s a good chance that you may already be paying a much higher interest rate than you were before the law took effect. Take me for example. I had a CitiPremier credit card with an interest rate of about 9% and sometime at the end of 2009 I get this letter stating that the new interest rate is now going to be 29.99% on the current balance! They gave no reason whatsoever. I’ve never been late, and I’ve paid more than the minimum. You’d think they would want to do whatever they could to maintain my loyalty. Instead, they turn around and give me a 20% rate increase. I immediately closed the account. Yes, many financial advisors will advise that closing credit card accounts is not a good idea, but in this case I felt the rate was obscene. So check your statements, because there is a good bet you’re paying a higher rate and may not even know it. Say you owe $10,000 on a credit card, and prior to the changes in the law, the card had a rate of 9%. The minimum payment was $150 a month. At that rate, it would have taken you about 7 ½ years to pay off your balance. Now, let’s say your rate has been jacked up to 29.99%. Given the much higher interest rate, you decide to pay more than the minimum each month. Even paying $100 more than the minimum - $250 a month – it would now take you 20 years to pay off that same $10,000 balance! I’m all for credit card companies giving people credit so they can buy items they need, but I believe it is outrageous that credit card companies have gotten away with raising rates on balances for items that you bought at a much lower rate! Imagine if car companies did that! My advice – review your statements closely because credit card companies are now required to advise you what it will cost you to pay over the long term. The credit card companies don’t like that because they know what’s going to happen. You’ll see the truth that they don’t want you to see. The truth of how much they are ripping you off. If you are finding that your credit card debt has now become unmanageable, bankruptcy may be something to consider. Feel free to contact me to discuss your financial situation. I’d be more than happy to help. Are you considering declaring bankruptcy, but are afraid you'll lose your tax refund? I get that question a lot as the tax season approaches. Let’s say you are contemplating filing a Chapter 7 bankruptcy, and have calculated that you’ll be receiving a $2,500 tax refund. What should you do? Should you file your taxes now? File your petition first? Not say anything? My answer is the same each time. If it's tax season, than most likely the trustee (who acts as a sort of like a judge in a bankruptcy case) will consider the tax refund as property of your bankruptcy estate, regardless of whether or not you’ve filed your taxes. The answer is the same regardless of when you file your case - the trustee will consider the refund whether you file your case before you receive the refund, or after. You never want to hide any assets from the bankruptcy court, as this would be grounds for a dismissal of your bankruptcy petition. Additionally, you could face formal charges and its simply just not good karma. Now for the good news: There’s a good chance that you'll be able to keep your refund because it may be covered by exemption laws. These are the laws that allow you to keep some assets after bankruptcy. (There’s a myth out there that if you declare bankruptcy, you are left with nothing but the clothes on your back. Biggest myth ever.) Whether or not you can keep your refund will depend on the value of the other assets you own (car, savings, clothes, furniture, tools of the trade, equity in home, etc.). These days, when so many families are upside down on their mortgages and/or have lost their homes, they have few assets - so they're able to keep their tax refund. If you already have the refund in hand, don’t (I repeat don’t) use your tax refund to repay a debt. If you repay more than $600 to say, your aunt, the trustee will count that as a “preference” and can take money back. Now, if you need to use the money for living expenses (i.e. food, gas, car repairs, etc.), that's a much better idea. As always, facts make a world of difference, so always talk with an attorney to make sure you do what’s right in your specific situation. If you're in the San Francisco Bay Area and need a bankruptcy attorney, I am always happy to help. The broken economy is hitting everyone hard, and if you're thinking about filing bankruptcy, you're not alone. The headline of today's Contra Costa Times featured a story about the huge increase in bankruptcy filings all over the San Francisco Bay Area. Filings by Alameda and Contra Costa county residents increased 59% over last year, filings by San Francisco, San Mateo, and San Joaquin county residents increased 62%, and filings in Santa Clara, Santa Cruz, Monterey and San Benito increased by 50%. The article notes that even people with higher incomes - over $150,000 - are being forced to declare bankruptcy due to large debt and their inability to get modifications to their home loans. One of the biggest things that prevents people from declaring bankruptcy is the perceived stigma attached. We're conditioned to think about bankruptcy as synonomous with failure. As something only "irresponsible" people do. Perhaps you hold these beliefs yourself. I ask you to let that belief system go. This article is proof positive that thousands of good people - just like you - are declaring bankruptcy in droves right now. They're not failures. They're not irresponsible. They're doing the very best they can in a very ugly financial world. Take comfort in knowing you are not alone. Declare bankruptcy if you feel it is right for you. And go forward, unburdened, with a fresh start and new hope for the future. There is no doubt that deciding whether or not to file bankruptcy is one of the toughest choicest you’ll ever have to make. The consequences, and what they mean to you, ranks up there with getting married, choosing where to live and other deep impact choices. Here are 3 questions that can help you decide whether bankruptcy is the right choice for you. These aren’t the only questions you should ask yourself but they are at the core of making this decision. Part II of the series: Getting Credit Part I of the series: Your Financial Blueprint |
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