Posts Tagged ‘Bankruptcy’

Power(lessness)

When the money stuff is not going the way you hoped, or planned, there can be a sense that things are just beyond your control.  And sometimes they are.  Sometimes people lose jobs, get sick or get divorced.  Sometimes bad things happen to good people. And sometimes, decisions we made that seemed really good at the time based on the information we had have been revealed by the light of time as regrettable.  Right now, many that are facing financial problems are experiencing regret.  That regret, and the emotions that it brings along with it can be utterly paralyzing.

In a way, it’s odd.  At one time, we had the power to make the decisions that brought us to the stage of life we find ourselves in.  Yet somehow, we cannot seem to find the power to get ourselves to move forward from it.  We end up wallowing. (more…)

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The Importance of an Informed Decision

I recently met with clients who got some very bad advice from probably well-meaning but – to be perfectly blunt – clueless friends and family who thought they knew what was best.  What happened to them is undoubtedly a lesson for others.

The married debtors have a large and unmanageable amount of credit card debt.  A few years ago, one of the debtors was actively employed and making a good living until a work injury changed all that.  Now, one of them is in chronic pain, has no income and is currently seeking disability benefits from the Social Security.  The injured debtor had a workers compensation claim which was resolved through a $30,000 settlement about 9 months ago.  There are children, and there are domestic support obligations.

Because this two-income family had been struggling as a one-income family for a few years, the debtors have been “robbing Peter to pay Paul.”  Retirement accounts had been depleted or had loans against them.  Credit cards were maxed out.  Collectors are calling, and lawsuits have been filed. Before the settlement even arrived, they were thinking about the possibility of having to file bankruptcy.

The Decision-Making

Family and friends urged them not to file bankruptcy.  Having not met the family and friends, I assume that they had good intentions and were ultimately well-meaning.  None of the family and friends were bankruptcy attorneys.  I didn’t ask if the friends and family were aware of this blog.

The debtors have vehicles and only own personal property.  The current sole bread winner makes a respectable, but nevertheless modest income in light of their expenses.  None of their expenses are extraordinary or raise a specter of bad faith.  They seemingly qualify for chapter 7, and since they have no real estate, they could  consider electing the federal exemption schemes.  Had the debtors elected to file bankruptcy when they received the settlement, the federal exemption scheme would enable them to keep most if not all of the proceeds of the settlement and discharge their remaining credit card obligations.  That’s not what happened.

Instead, they took the $30,000 and paid down the credit card debt.  It did not get paid off.  The credit cards and credit lines did not get closed.  The debt was merely lowered.  The credit card companies got some of that money.  However, had they filed bankruptcy before opting to pay them, the credit card companies would have received nothing – or close to nothing.

I asked them “why didn’t you file bankruptcy back then when you were thinking about it?”

They told me that their friends and family were telling them that they should not file bankruptcy and that they emphasized it: “oh, you don’t want to file bankruptcy!”  Apparently they were concerned about stigma and were concerned about being “one of those bankruptcy debtors that doesn’t pay their bills.”

Yet here they were.  In my office.  Not happy being there.  And I’m willing to bet, sick to their stomach because of it (actually, one of them expressed that sentiment).  Why?  The simple answer is that they now thought of themselves as “one of those bankruptcy debtors who doesn’t pay their bills.”  But I do think there maybe another reason.

After the cash was done, many of the credit lines were still open.  So if they looked ahead to through the end of the month and saw that they were a few hundred dollars short, they knew where to get it.

And with the settlement, they were able to pay their debts and feel good about paying their debts – which is presumably what their friends and family had in mind when they conveyed their likely less-than-helpful advice.  It’s good to pay debts.   After all, no one wants to file bankruptcy.  No one wakes up one morning thinking “hey…here’s something I haven’t done yet.”  But life does not always work out the way we want, hope, expect, and in some cases need it to.

In their case, the credit has run dry.  The retirement accounts are empty.  And now the settlement is gone.  And before me were two people who – like many others – had to struggle with an unexpected change in income, and who tried to do what they thought, and what their friends and family thought, was the right thing to do.  But they should have elected to get bankruptcy advice from a bankruptcy attorney rather than bankruptcy advice from well-meaning friends and family more than 9 months ago.

What advice would I have given to them if they saw me 9 months ago?  I would have advised them to take the time to explore their personal spending.  I would have advised them that with one income earner disabled, they had to adjust their budget…or adjust their income.  I would have determined that their credit card debt could be discharged in a 7, and depending on the amount of the settlement, and the value of their other personal property, the settlement proceeds would likely be exempt.  I would have told them to stop using credit, to start using cash, and to view the cash as what it was: finite.

Instead, they now know that their personal spending must be adjusted, that very tough decisions need to be made, and some very difficult discussions with friends and family members might be in the foreseeable future.  And the most important thing that has changed since they listened to their friends and family: there is no more cash they can tap into when they need that extra few hundred bucks to get them through the month.

For these good people, I think it could played out differently.  And I am willing to bet that this realization is what is contributing to that awful feeling in their stomach.

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The Sunday News

A fellow bankruptcy attorney shared this article that appeared in last month’s New York Times Magazine.  I see in it some of the same difficulties I see in clients.  It also makes me question how “half-empty” the glass really is.  Although in the interest of full disclosure, the writer has a book coming out.  In other news…

ONE FLAG! Six Flags Amusement Parks files for Chapter 11 protection.

Nashua NH Telegraph:  Welcome to the New Consumer Economy.

Boston Herald:  Consumer spending may never be the same as it was.

South Coast: Home values could take years to recover.  We also could be hitting bottom (I’m not being sarcastic, it says the market “could be a reading a valley”).  I could also be a ledge (ok, that was sarcastic).

Nantucket foreclosures.  I wonder if these homeowners claim their loan was predatory?  I also have to question whether it was.

A bad apple is removed from the barrel: Brockton lawyer settles fraud suit with the Massachusetts Attorney General’s office.

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My Thoughts on the Half Glass

There seems to be a trend to see our country’s economic problems through the lens of a glass containing several ounces of a beverage that is approximately 50% of what the container will hold.  Some will look and say the glass is half empty.  Those folks are perceived as pessimists.  Others, including our President, view the glass as half full.  That view is considered more optimistic.  I have a very different take on all of it.

Let’s assume that the beverage is water.  The conventional wisdom (which apparently is now being debated) is that you need 8 glasses of water each day.  Thus, if I am looking at half of a glass of water, I’m not thinking “by golly, it’s half full!”  Instead, I’m thinking “where the heck are the other 7 ½ glasses?”  Surely, I can enjoy that half-full glass.  But sooner or later, I’ll be thirsty again and if I do not find more water, I could slip into dehydration and then things could just get uglier from there.

Recently, a prospective client called me to discuss their business problems.  Over the last several years, the client had made major investments into what he miscalculated as a growing business.  Additional locations were added, staff was increased, and overhead costs exploded.  The problem was that the revenue of the business depended exclusively on consumers who have disposable income and have a budget that provides for recreational spending.  Needless to say, business was not going according to the original plan.

He told me his goal was reorganizing the business.  After exploring a few options with him on the phone and learning more details about his situation, I asked if  - as a part of his reorganization – he had considered pairing down his business to a more manageable or fiscally feasible model.  He didn’t like that idea.  I reminded him that it was important to consider a ‘Plan B.’

Before we ended our conversation he was kind enough to share with me this gem: “You know, I think need to work with someone who like me, sees the glass as half-full.”

Really?

I appreciate the need for remaining positive.  Being positive is what helps us all get out of bed in the morning.  However, I also appreciate the need for being realistic.

Imagine your waiter bringing over a lovely cheese soufflé and then asking him, ‘is this fattening?’  If the waiter wants you to feel good and still eat the dish you ordered, he’ll say something like ‘of course not’, or perhaps something wry such as ‘only if you eat it on Sunday, and since today is Wednesday, you’re ok.’  It would make you feel better about eating it, but it you cannot really say it was being particularly realistic…unless you really believed that eating certain foods on certain days of the week somehow affects their caloric value and fat content, which is far, far beyond what I am capable of commenting on.

On the other hand, if your waiter respects that your need for information is fueled by a desire to make an informed decision (and hopefully the best one), the answer you get will be honest. After all, do you call a bankruptcy attorney because you want an straightforward assessment of the issues facing your life and what you can do about them? Or are you looking for someone else that will look at that half-glass of water and tell you what you want to hear?

Perhaps this is a better question: are you  better off believing that things are better than they really are?  Or are you better off with honest answers to tough questions so you can make the best and sound decisions for you and your family?  The bottom line, it really doesn’t matter whether the glass is half-full or half-empty.  What matters is what’s in the glass, and whether you can, should, or want to drink it.

And that decision, as difficult as it may be, is entirely yours to make.  But you cannot make it without the right information.

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Coming Soon: Chapter 13 in 13 Chapters

chapter13coverI’m pleased to announce the soon-to-be published consumer bankruptcy manual: Chapter 13 in 13 Chapters. The manual is available exclusively through the American Bankruptcy Institute.   Pre-publication orders are being accepted now.

This manual provides a comprehensive overview of the chapter 13 process from the perspective of both debtors and creditors. Everything from filing preparation and debtor education to the role of the chapter 13 trustee to the discharge of debts is covered, as well as things to consider before a case is converted and when to modify the terms of a payment plan. Written by William J. McLeod and edited by M. Regina Thomas (McCalla Raymer, LLC, Atlanta, GA), the manual provides sage advice for the chapter 13 attorney regarding the timing of the debtor’s tax filings, anticipating and addressing a debtor’s change in circumstances post-confirmation, enforcing the debtor’s rights against a creditor’s collection activity, and post-discharge actions. Heavily peppered with case citations and key excerpts from relevant sections of the Bankruptcy Code, Chapter 13 in 13 Chapters is the essential reference guide that chapter 13 attorneys should have at their fingertips to assist in their practice and to share with clients to help explain the bankruptcy process.

To pre-order, please click here.

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Another Good Reason to Stay Close to Home

One of the best things about summer is the local produce you’re likely to find not just in the supermarket, but on road side stands.  While I admit I’m a bit biased, when I was a kid, there was no better place to get tomatoes and sweet corn than the small farms on Aquidneck Island.  That’s probably going to tick-off the good folks in Little Compton, but hey, I know what I know.  I am sure that I can find a place online that would ship them to me, but it’s not the same as pulling over to the side of the road, smelling the air, and reaching into your pocket for a few bills to get some good stuff.   Law firms advertise online, as do credit counselors and so-called debt settlement and consolidation firms…and there are hundreds if not thousands of companies and firms offering assistance to people struggling with debt.   Is it a good idea for Massachusetts consumers stay “local” when they are looking for resources to help them deal with their debt?  This very question came up today when I was talking with a prospective client.

For a variety of reasons, the family is in a lot of debt and exploring options.  There’s bankruptcy (and I can help them with that), and there’s credit counseling (which I can offer a recommendation).  There’s also debt consolidation and debt settlement, but ironically, there do not seem to be too many local companies that offer such services.  Perhaps it is because those services are usually little more than a scam.  Perhaps it’ because it’s been tried

The clients were considering the “Consumer Law Group, PA” located in Florida.  I like Florida – I have not been there in years – but it’s a pleasant place to be.  And while I like oranges, I don’t feel the need to go to Florida to get them.

Fortunately, the client did some research on this outfit on their own.  They learned that the “Consumer Law Group, PA” had only been around since November 2007.  They found websites where people had some very unfavorable things to say.   More than one person, actually.   They also learned that in less than two years period, they earned an exceptionally low BBB rating.  That was their wake up call.  It dawned on them: “why are we not dealing with a local business who can help us?”

While this is arguably yet another reason to stay clear from any outfit claiming to offer debt consolidation or debt settlement services (which again, are a scam), I think it is also important to consider going with someone local.  It doesn’t matter if it is an attorney, a credit counselor or a lender who may be trying to help you refinance…. why go with an out of state outfit state?  After all, we are talking about your money, your life, your family and your future.

For those reasons, it’s important to get good help from someone who knows what they are doing.  And frankly, if these issues are important enough for you and your family, then you should be able to look that professional square in the eye.  That’s hard to do when they are a few states away.

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A Thought or Two on ‘Deadbeats’

Recently, I attended a seminar that covered a variety of topics related to bankruptcy law.  During one of the non-consumer related presentations, a word was used to refer to a debtor.  Not any particular debtor, but rather in terms of a description or hypothetical.  While technically it was a business presentation, and arguably, the word as it was used (rather repeatedly) does not necessarily imply some personification of the word, it’s difficult for me to hear the word and not think that it refers to a person.  I write about this word because as a bankruptcy lawyer, I found the word offensive.  The word is deadbeat.

I expect people who do not understand bankruptcy or who have little sympathy for those who are experiencing financial difficulties to have some level of disdain for those who are experiencing it.  In many cases, those are the type of people who work as collection agents – the ones who act like it’s their money that’s owed which is why they may treat consumers with little to no respect.  They are also the ones who are very quick to point out that someone has not lived up to their end of an agreement…as if Western Civilization would collapse because of it.  The use the term ‘deadbeat’ because it is judgmental, and it is offensive.  But I expect a bit more from a bankruptcy attorney, regardless of whether their focus is consumer or commercial matters.

While representing consumers, it is common for me to be in court with attorneys representing lenders and other creditors.  At no time have any of my colleagues who I see very regularly and most of whom I have tremendous respect for – said to me “why isn’t your deadbeat paying the mortgage?” or “why do you represent deadbeats?”  Admittedly, some have said “why do you practice on the dark side?” which then leads me to respond with “I’m not, you are on the dark side…come to the light!”  Then it turns into a volleying “no, you are!” discussion that inevitably leads to laughter.  But I digress.

Had my colleagues used that word, I likely would have reacted in such a manner that most reasonable minds would conclude was counter productive.  Perhaps even intemperate.  But they do not because like me, I think many of my colleagues understand that for some people, life happens.  Sometimes regrettable decisions are made by debtors.  Sometimes decisions are made by others that debtors end up regretting.  Sometimes it just is what it is.  And we do what we do because we are compelled to help them through a difficult time.

Again, while I appreciate that some people with a certain amount of ignorance (or perhaps blindness) don’t share the same level of understanding I have with people struggling with debt, that is not to say I find the use of the term appropriate, especially when used by a bankruptcy attorney who should know better.  To those attorneys, and to those readers who wonder where my head is on this subject, I say this: we accomplish nothing by sitting in judgment of people facing the prospect of seeking bankruptcy protection, and certainly there but for the grace of God, none of us have the right to.

After all, we can only plan and hope.  No one really knows what tomorrow will bring.  And those who did not plan well, or perhaps had far too high hopes don’t deserve being referred to as a deadbeat.  By anyone.

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Filing Bankruptcy Without an Attorney

According to a New York Times article, more and more people are representing themselves in court.  I have had much experience counseling debtors who have initially elected to seek bankruptcy protection without the benefit of counsel.  There are many reasons for this: the lack of money to hire an attorney being one of them, if not the biggest.  Another, and perhaps more troubling reason is that pro see filers have a belief that a judge will help them through the process.

From the article:

Judges complain that people miss deadlines, fail to bring the right documents or evidence and are simply unprepared for legal proceedings. Such mistakes make it more likely they will fare poorly – no matter the merit of their cases.

This applies in any courtroom, and in any legal proceeding.  If you want to represent yourself, you have to be prepared.  That means, you have to know what the legal issues are (not what you think the legal issues are or should be) and have your ducks and documents all lined up.  It also helps if you know the law.

But relying on the judge to help your is tantamount to ignoring that the role of the judge actually is.  As the Times discusses:

Overseeing a proceeding where one or both sides lack lawyers puts a judge in a difficult position: The judge is supposed to be neutral but also has an interest in moving things along.

“If you see a person making a terrible mistake, you can’t always jump in and save them,” said Judge Borbely, the circuit court judge in Vermilion County, Ill. “You cannot take the role of an advocate.”

To ensure fair outcomes, courts must do more to help people navigate the courts, said John T. Broderick, the chief justice of New Hampshire. “If you and I went to the hospital and they said, ‘Do you have insurance?’ and we don’t, and they said, ‘There are some textbooks over there with some really good illustrations,’ ” Judge Broderick said, “we would think that was immoral.”

At the same time however, while courts can and do offer navigation assistance (such as the Pro Se Clerk at the US Bankruptcy Court), they cannot offer legal advice and the judges cannot be your advocate.

(more…)

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This is Suze Orman…

Last fall I shared my thoughts about Dave Ramsey. The blog article brought in more comments than I usually get. I’ve had my eye on Suze Orman ever since I happened to catch her CNBC show over the holidays. James Scurlock has written an article over at Slate.com that puts Orman in a new light. Here’s an excerpt:

Although study after study has shown that personal bankruptcies are caused primarily by catastrophic events like divorce, job loss, and, above all, medical bills and that most of us are struggling with a gap between our income growth and the soaring cost of necessities like housing, Suze tends toward psychological causes that invariably blame the victim. Who is struggling these days, according to Suze? “People who grew up without much money and later earn a comfortable living sometimes spend too much to make up for what they didn’t get as children. … People who feel entitled to the good life, or are unconsciously copying a mother or father who lived beyond her or his means. … If you feel the need to impress people with what you have rather than with who you are, you are at high risk for credit card abuse.”

There’s more here. It’s a good read, but prepare your stomach for the shock and awe of what this financial guru thinks of people who struggle with debt while at the same time offering financial advice that makes me cringe.

I’ve had some limited exposure to Orman. I a CNBC show where callers ask for her blessing to buy expensive things: a camera, a trip with family, or in the particular show I watched, running stilts. After a quick drive-buy glance at some financial information, the caller then says “I really want these running stilts.” Then, the caller waits for either the blessing to buy it, or the chastisement for not knowing better to think otherwise.

I read the article, and decided to take a few minutes and spend some time on her website. The one thing that caught my eye was the promo for the Valentines Day CNBC show (9PM and Midnight ET, 2/14/2009) titled: “Marriage & Money.”

On this Valentines Day, the financial pluses to being married. Should a man pay down his fiancée’s Student loans? Viewers ask if they can afford a puppy, a trip to the 2010 Olympics.

Let me first start by saying that if you want to adopt a pet and can handle the responsibility, please do so.

With that said, why does the promo not say this: “Should you pay down your fiancée’s Student loans?” I can guess that the show’s demographic is primarily women. But still…even so, why shouldn’t the same question be posed to both parties who are planning a life together regardless of their gender? Perhaps I’ll have to watch the show to find out. And if I watch the show, I’ll probably have more to write about.

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Monday’s News…

There’s so much going on in the news that it almost seems silly to repost it here. But I did come across a few items that I wanted to share.

In the UK, Debt Collectors are “getting heavy.”

A plan to let homeowners modify their mortgages in bankruptcy may lower foreclosure rates by as much as 20 percent.

Not everyone supports changing the bankruptcy laws to help homeowners modify their loans and plenty of groups are paying lobbyists to kill that bankruptcy legislation. The AP reports who is paying and how much.

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