A commenter posed an interesting scenario. She received a Chapter 7 discharge in 2002. Since then, she rebuilt her credit and was able to get into her home. Unfortunately, she ended up with a subprime mortgage with payments that are high. Those payments were manageable when she was making $80,000 a year. But she recently lost her job. Now those payments seem daunting. So, the question is, can she seek bankruptcy protection again?
Archive for July, 2007
What’s Income, and What’s Not?
Wednesday, July 18th, 2007
In yesterday’s post, I discussed the definition of “Current Monthly Income” as set forth in Section 101(10A) of the Bankruptcy Code. Currently Monthly Income is used to determine whether someone is “abusing” the bankruptcy process by filing a Chapter 7 petition, when they (arguably) should be filing a Chapter 13 petition. The Current Monthly Income (or CMI) calculation does not include “benefits received under the Social Security Act.” This would obviously include Social Security benefits, such as those received at retirement. But would this apply to other sources of income that might emanate from the act? How about DUA or unemployment benefits? A Massachusetts Bankruptcy Judge recently said yes.
In this case, the married debtors excluded from their CMI the $1,010 monthly income the wife was receiving in unemployment benefits. The US Trustee objected and sought to dismiss the case, claming that the unemployment benefits should be included in the CMI calculations, and if the income was included, there would exist a presumption that the bankruptcy process was being abused (what we also refer to as the “presumption of abuse”). Debtors argued that the unemployment compensation was a “benefit under the Social Security Act” and that Social Security Act included received as unemployment compensation.
Filing Bankruptcy: Timing can be Everything in Chapter 13
Tuesday, July 17th, 2007
There are many things that factor into the decision to file bankruptcy. Avoiding a foreclosure sale, stopping a wage garnishment, or just ending the relentless harassment of collectors all force people into the bankruptcy court. But under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, something new was invented that factors into the decision as to when a bankruptcy petition should be filed. It’s called “Current Monthly Income.”
I have mentioned before that “Current Monthly Income” is neither current, nor monthly, and it is certainly not income. Under Bankruptcy Code Section 101(10A),
the term “current monthly income”–
(A) means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor’s spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on–
(i) the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedule of current income required by section 521(a)(1)(B)(ii) [11 USCS § 521(a)(1)(B)(ii)]; or
(ii) the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii) [11 USCS § 521(a)(1)(B)(ii)]; and
(B) includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor’s spouse), on a regular basis for the household expenses of the debtor or the debtor’s dependents (and in a joint case the debtor’s spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act [42 USCS §§ 301 et seq.], payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18 [18 USCS § 2331]) or domestic terrorism (as defined in section 2331 of title 18 [18 USCS § 2331]) on account of their status as victims of such terrorism.
What this really means (we think) is that “current monthly income” is ultimately determined by the amount of income received during the 6 calendar month period prior to filing. That’s a really simplistic definition, since “income” is still being defined (and I’ll be writing about that later this week). But the big question is, why is any of this relevant in the context of a Chapter 13 plan?
Reflections at 14,000
Monday, July 16th, 2007
I am just getting back from a much needed respite. I had originally contemplated writing about my attending the Northeast Consumer Forum in Newport, Rhode Island. But after I wrote about it, I thought it was a pretty boring piece. So instead, I’ll simply mention that I happened across this article out of San Diego on the foreclosure crisis.
But before I do, I need to create the mood, and since I am still trying to get back into the swing of things, I cannot manage a more artful segue than to tell you that I am going to create mood and thus, I am going segue.
In the 2001 film Moulin Rouge, Satine, played by Nicole Kidman is a doomed temptress at the French Club which is run by Harold Zidler, played by Jim Broadbent. Satine needs to tempt the Duke to give money to the club to fund a show. But before she can finish singing her first number, she passes out to the horror of the “guests” of the club. As she is carried backstage, concerned people fawn all around. When she awakes, she is coughing up blood, a fact her attendants are all too careful to hide from Harold who desperately needs the Duke’s money, and presumably, the Duke’s happiness, and sees the only way of getting both is through Satine.
Being the trooper that she is, she gets up. She is clearly having difficulty breathing. She doesn’t look like she can stand, and she’s sweating profusely. She assures Harold she’s fine, and Harold who can see only what he wants to see, announces gleefully “e-very-thing’s go-ing so welllll!” It’s painfully funny and sad.
Segue back to this article. Here’s a tid bit:
Now that the dice have come up snake eyes on the housing market, other shoes will probably be dropping soon. Retail sales, which are plummeting at places like Home Depot and Sears, seem likely to decline further as defaulting home buyers cut down on their big-ticket purchases. In June, retail sales excluding gasoline fell 0.9 percent.
If retail sales continue to fall, adding to the declines in construction and real estate employment, unemployment could start to rise. The Norris Group’s latest real estate market report presents a feasible scenario in which unemployment in California rises above 8 percent, compared with its current level of 5.2 percent.
Since the Dow closed today just shy of 14,000 points, I felt the need to bring balance to the impression that everything is going so well.
For Everything, There is a Time
One of the most common client complaints I have heard throughout my career is how long the legal process can take. I can appreciate that. At the same time, what’s worth doing right, is worth doing well. Sometimes, it takes time to do something well. And lately, time is something that has been a luxury with some of the clients I see. Today, I was reminded how important time can be.
I received a call from some homeowners. They are in one of my least favorite mortgage products: 2/28, interest only. Translated: the first two years of their mortgage payments are “interest only.” Then, in 2 months, the principal will be added to their already high interest-only mortgage payment.
Fortunately, they are not behind. Yet. But they will be if time continues to march forward without some intervention. And even more fortunately, they are calling me early enough that we can take our time and explore all reasonable options available. There is no rushing to the Bankruptcy Court to stop an auction. We can take our time, explore the options, and move in the best direction for them.
Not everyone has that option, but the fact is, the only reason why they do not have the option is because they do not, or cannot look at the handwriting on the wall. Privately, colleagues have expressed their view that I tend to have a negative view of the economy. At the risk of continuing to sound like a ‘Negative Nancy’, today the stock market decided to deal with the summer heat by slipping into the deep end of the pool. Is the end nigh? No. But one cannot ignore that come October $50 billion worth of mortgages will be adjusted to reflect higher interest rates. For real. The handing writing is on the wall for more than the folks who were brave enough to pick up the phone today.
If you see the handwriting on the wall – and perhaps most importantly, if you can muster up the strength to look at what might not be so pleasant to look at on that yonder wall, call someone. Call someone now. It’s only July. There’s two full calendar months before October to plan, prioritize and strategize. That is time. And time is a precious commodity when it comes to saving your home.
October is a time for pumpkins, leaf raking and the World Series. If you are looking to October with a sense of dread, it’s time to do something about it. You can. There is time.
Tags: Bankruptcy, Chapter 13, Commentary - Legal, debt, debt relief, Economy, foreclosure, mortgage, Mortgage and Foreclosure, Mortgages and Foreclosures
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