Chapter 7 debtors who have debt that is secured by property have a number of options, and among them is reaffirmation. A simple way of describing it: when a debtor reaffirms a debt, they are removing the debt from the bankruptcy and are agreeing to pay it. Such agreements – to be enforceable – must be reduced to writing and approved by the Bankruptcy Court. But since 2005, when Congress amended the Bankruptcy Code, attorneys who represent chapter 7 debtors have been struggling with a dual rule: that of attorney and counselor, and that of judge.
Archive for the ‘Consumer Rights’ Category
Yes, Virginia. There is a second episode!
Saturday, October 9th, 2010
…of Law & Propaganda.
This week, Jacob Simon and I discuss the Fair Debt Collection Practices Act. Let the laughter and the lawsuits ensue!
Hope is a 4-Letter Word
Sunday, October 3rd, 2010
Many have read media reports that decry HAMP (the Obama Administration’s purported “response” to the foreclosure crisis) and proclaim it is as lipstick on a pig. After two years have watching clients struggle in this program and few coming up with anything meaningful, I want to go on record as saying this:
HAMP is not only lipstick on a pig, but it’s continued existence only puts more light on the political impotence and the bankruptcy of leadership on both Beacon Hill and Capital Hill.
Law & Propaganda
Saturday, September 25th, 2010
Staying Out of the Valley of Disappointment
Tuesday, August 17th, 2010
Some Massachusetts homeowners have this peculiar belief that a homestead declaration is the legal equivalent of a real Chinese fire wall (i.e., with flames). That it keeps creditors at bay, allowing you to live in bliss in your home until you die or get sick of it and want to move on to a greener patch of grass. That’s not entirely the case. Not all debts are covered and not all creditors can be kept at bay. If you’re up to your eyeballs in debt, relying on the Homestead Declaration and only on the Homestead Declaration to keep your home from creditors will lead you to an unhappy and mythical place I call the Valley of Disappointment.
I came up with the Valley of Disappointment because I thought it seemed like a humourous metaphor But then, just to be safe, I did a websearch and just want to caution my readers not to confuse my mythical and metaphorical Valley of Disappointment, with Disappointment Valley which is: (1) a real valley located in Colorado; as well as (2) a documentary which according to IMDb “examines the plight of America’s wild horses and the rapidly deteriorating condition of our wild Public Lands.” Any similarity between my imaginary Valley and the real thing or the movie is totally unintentional and accidental…and kind of scary.
I envision the Valley of Disappointment as a place where none of the stores are open when you need them to be, and those that are all have the products you don’t want at prices you can afford, and products you need at prices that shock the conscience. I envision it as a place where the traffic lights stay green for only three seconds before they jump to red, where they stay for 3 minutes. It’s a place where things just don’t go your way, and you feel pretty powerless to do anything about it. It’s generally always cloudy or rainy. The street signs are all confusing, and it can be tough to navigate your way through it or out of it. Sometimes you just don’t know how you got there. Other times you do, and that knowledge can sometimes make it all worse. But enough about what I envision about the Valley of Disappoitment… I was talking about Homestead rights:
Birds flying high, You know how I feel
Thursday, July 8th, 2010
Back in September, I blogged about the conflict that exists with the rights of married same gender spouses to file a joint bankruptcy petition, and the conflict posted by what I have no problem calling the politically and legislatively ill-conceived Defense of Marriage Act. I felt then that it was – to get a bit personal here - another betrayal by the Clinton Administration (the first being “Don’t Ask/Don’t Tell”).
And just a few weeks ago, I met with a debtor contemplating bankruptcy who wanted to file a joint bankruptcy petition with his same-sex spouse. I advised him that he had two choices: one, is that he could focus on getting the relief from the debt that he had and work towards getting his discharge and getting on with his life. That meant separate petitions, separate cases, separate docket numbers.
Or the other: he and his husband could hunker down, prepare for a long (and not an altogether inexpensive) legal battle that may – or may not – end up at the U.S. Supreme Court – and he could revel in proving a point (although I can think of few bankruptcy debtors who by the time they arrive at the steps of any US Bankruptcy Court actually feel that they need to prove a point… other than the one that is rather obvious). Ultimately, same sex married couples have not enjoyed the benefit of filing a joint bankruptcy petition because the Defense of Marriage Act precluded such joint filings by same sex spouses.
But today, I’m feeling good. (more…)
Now… About Those Secrets that the Credit Card Companies Don’t Want You to Know
Wednesday, June 16th, 2010
You’ve seen the commercials and heard them on the radio: “don’t pay your debt, don’t go into bankruptcy, eliminate your debt!”
Eliminate your debt without bankruptcy? Really? What the hell am I advising my clients then?
So I did some poking around… which is big fancy lawyer talk for “legal research.” And I think I was able to put my finger on what some of these companies are actually selling.
E.D.Michigan Caps Petition Preparer Fees
Friday, April 23rd, 2010
I came across this interesting order issued on Tuesday, April 20th by the US Bankruptcy Court for the Eastern District of Michigan. The Administrative Order caps the maximum allowable fee charged by a bankruptcy petition preparer in any case to just $100.
When Bankruptcy Attorneys do a Wicked Bad Job
Tuesday, April 6th, 2010
I’ve been doing a lot of research lately on attorney malpractice… specifically, bankruptcy attorney malpractice. More and more attorneys are popping into bankruptcy practice because they think it’s the new growth area. And sadly, some are doing a god-awful job at it – and in some cases, they are hurting debtors. So in my research, I came across this case that came down last Friday out of the Northern District of California.
What caught my eye about it was the opening sentence: “[t]he schedules filed in this Chapter 7 case by [debtors’] attorney …contained horrific omissions, including a furniture store filled with furniture, a $13,000.00 bank account, a 2008 Mercedes automobile, and real property.” [emphasis added]. As I read the decision, I learned that the term “horrific” was justified, and then I wondered to myself…’how many other lawyers are out there doing the exact same thing as this guy?’
A Massachusetts Foreclosure Moratorium? Yes, but…
I admit that I have a stick in my craw. In May 2008, Massachusetts (a non-judicial foreclosure state) imposed a 90 day cooling off period to give time for defaulting home loan borrowers to work with their lenders. This summer, that period of time got extended to 150 days. Now, there are calls for a “foreclosure moratorium” in Massachusetts. I am not a fan of what I think is this inevitability, but before y’all think I’ve really fallen off my rocker, let me give you my perspective, and why I think we need to not just think about the moratorium – but for who and for how long.
(more…)
Tags: Commentary - Legal, Consumer Protection, Consumer Rights, Credit and Debt, Homes, homesteads and real estate, Modifications and Workouts, Mortgages and Foreclosures, Yep. We're in trouble.
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