Posts Tagged ‘Commentary – Legal’

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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…)

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Posted in Bankruptcy, Chapter 11, Chapter 13, Chapter 7, Consumer Rights | 1 Comment »

Credit Fueled Drunken Debauchery

Sunday, June 6th, 2010

Come on, you had to know I was going to write about this: Her no longer royal highness Sarah Ferguson is blaming booze (and her debt) for her lapse in judgment in seeking money in exchange for access to her ex-husband, Prince Andrew.  I’m still not entirely clear what “access” really meant… that alone could be another blog, on another website.

Oddly, this reminded me of among the many colorful jobs I had when I was going through school was that of a bartender.  In the movie “Cocktail”, Tom Cruise made bartending look sort of cool.  And to an extent it is… but for the smells of dirty bar rags that still sometimes haunt me in my dreams.  It also helps to have the physical stamina of a 20-something and be able to be cheerful and attentive past midnight.  Or 4am.

Then there’s another aspect of being a bartender that isn’t so fun: having to shut someone off.  That’s when a bartender has to make the call that a patron has had a wee-too-much and can be served no more alcohol.  Any bartender will tell you – this aspect of the job stinks.  But I see this emerging attitude about lenders and their reckless credit underwriting standards that resembles the same often righteous indignation I see when I would tell people they were on their last drink of the night.

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Posted in Bankruptcy, Foreclosures and Real Estate | No Comments »

Blackberries & Form-Fillers: What Bankruptcy Practice is Really About

Thursday, June 3rd, 2010

As I continue to work through (in my mind) the issues raised by the proposed auction at 115 Cottonwood in Fairhaven, I recall attending a seminar where one of the speakers remarked that consumers have become “Blackberried.”  Specifically, the speaker mentioned that clients had a tendency to send via Blackberry or email a specific legal question, and then call within 10 minutes or so wondering why no response to the question had been provided.  The speaker remarked at how clients wanted information “now” – but lawyers on the other hand, sometimes need time to think and analyze before responding.

The same can be said for certain practice areas.  For many years, I thought that consumer bankruptcy practice was just completing forms and filing them.  Many, many years ago, before I embarked out on my own an old friend and colleague from law school told me that the only way to practice bankruptcy law successfully was by “volume.”  That might have been true (way) back then, before BAPCPA was enacted, but it’s not the case now.  And it cannot be.

When I got out of law school, the thought of being a bankruptcy lawyer never entered my mind.  In fact, it was the last thing I wanted to do.  I viewed it as little more than completing forms.  Over time, I learned that I was wrong.

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The Elephant in the Room: Married Same-Sex Debtors

Monday, September 21st, 2009

The decision to seek bankruptcy protection is never easy, and when two people are involved, it is not necessarily easier.  Married opposite-sex debtors have the option of seeking bankruptcy protection jointly in one case.  But as a growing handful of states recognize same-sex marriages or its legal equivalent (“unions”), and as the legitimacy and constitutionality of the Defense of Marriage Act (or DOMA) continues to be litigated in courts across the country, same-sex debtors seeking bankruptcy relief face even tougher decisions.

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A Thought or Two on ‘Deadbeats’

Tuesday, May 19th, 2009

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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Lessons in Loan Modifications

Thursday, July 17th, 2008

Suze Orman is growing on me. Sort of. She often has sage advice for consumers, and lately she has been making regular appearances on CNN’s Larry King Live. I cannot say I completely agree with everything she says, but lately, she has been telling it like it is and when it comes to financial news and advice, it’s refreshing to see some honestly on TV. I have her suggest to consumers that if they are having problems with their mortgage, they should contact their lender (i.e., the workout or the loss mitigation department). A client recently told me he did just that, after hearing Orman suggest it sometime last year. He was falling behind on his mortgage, and decided to walk into his local bank to talk to them. It did not go quite the way he planned.

At the time, the client was not residing in Massachusetts, and his lender was a local bank. He sat down with the manager and explained his situation. Instead of extending an accommodation, or working with the client to help him keep his home, the manager basically said this: “sorry, but we have a lot of loans going delinquent and we need to cut our losses, so we’re going to start the foreclosure process now.” And so they did. The bank pretty much put the house into an accelerated foreclosure process.

Yikes.

That’s lesson number one: don’t go telling your lender that you’re having problems paying your mortgage unless you have some reasonable expectation as to what the response will be.

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Who’s Happy about this Economy?

Wednesday, July 16th, 2008

Yesterday, I met with a couple where we discussed their need to file bankruptcy. The husband expressed embarrassment at their decision to file and (like many of my clients) expressed concern that their employer or coworkers could learn about it. I did not think it was a possibility, and I told them so. But they told me something I felt the need to share with you.

Apparently, at his place of employment everyone is just happy and feeling fine (according to the client). Everyone has nice cars, nice houses and dresses well. No one there could possibly be considering bankruptcy. When my client looked at me and said “no one at my company is going through this”, I felt I had no choice but to ask him “how the $%@# do you know that?”

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Hope Floats (or Sinks)

Monday, July 14th, 2008

We’re hearing a lot about “hope” lately. Recently, I met two people in seemingly hopeless financial situations who are relying on hope to get them through. There is hope. Then there is denial. And sometimes, it can be difficult to see the difference between the two.

These folks had marginal income, high mortgage payments, and both are facing foreclosure. One hoped they could find a job (even though they had been unemployed for almost a year). The other, whose income was not nearly enough, hoped business would pick up and their income would change (they are in real estate). Both clients hoped things will change and they can keep their homes. While I also hope things will change for them, unless they do it simply will not happen. And this is what I told them.

A friend of mine once suggested that I write more about “hope”, and even went further to suggest that I “sell hope.” I will continue to leave the selling of “hope” to politicians like Barak Obama whose campaign website is apparently “Powered by Hope.” The purpose of this website is not to sell “hope.” The people who visit this site tend to be (as they often tell me) looking for honest information. If readers find “hope” on this site, it’s because they found it. They do not need me to sell it to them.

Don’t get me wrong, I think everyone needs hope. Without hope, there is little reason to get out of bed in the morning. Without hope, there is little reason for a sick person to get well. While preparing this blog, I thought of two metaphors: hope is like a good wine: a few glasses is fine. It actually can be quite nice. But a bottle (or two) will get you drunk, and perhaps very sick. Maybe for a day or two. Or we can look at hope like coffee: a little will keep you awake and alert. Too much, and you’re jittery, sweaty, gasping for air, struggling with heart palpitations and otherwise bouncing off the walls.

If you’re facing some financial difficulty, ask yourself, how much of your game plan is based on “hope” and how much of that hope is really based on reality? Will your income improve? Will you be able to pull it together in time to avoid a foreclosure? If your answer to these questions is “I hope so”, then you need to thing about how much of your hope is your not wanting to see what might really be there. Like the real possibility that you will lose your home.

For the two clients I mention above, they both know what they have to do to get where they want to be. Both also know what if they cannot pull it together, they will need to start the process of moving into the next phase of their life, which will not be in the home they currently reside in. Both clients face very difficult realities. They may succeed and they may not. These clients came to me presenting difficult situations and wanting honest answers to their questions. I could have chosen to provide hope. But I believe that they deserved honesty first. I am fairly certain that both are grateful that that is what they got. One even gave me a big hug afterwards and said “thank you.”

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“I Need to Get Through the Winter”

Monday, July 7th, 2008

For weeks I have wondered what impact the high price of home heating oil was going to have on people who need it. Would it push them into bankruptcy (or worse)? Since it is usually an accumulation of things that leads one to file bankruptcy, there is no clear way I can predict that the price of oil is going to push people over the financial edge. But last week, I spoke with a client who found himself standing on the proverbial financial precipice, and it was that realization that lead them to think about filing bankruptcy.

The client recently ended a long term relationship. As many of us know, it is far cheaper for two people to live under the same roof than it is for one. The household income had dropped, and every day expenses increased. There was also some debt that continued to linger such as credit cards and consolidation loans. While he was paying a modest rent (less than $1,000 per month), it did not include the price of home heating oil.

To meet his obligations, the client did what many people do: he decreased expenses. However, he did so to the detriment of his health. A few years ago, he underwent a gastric by-pass. Instead of buying the protein and vegetables that his doctor expected him to eat (and that frankly, we all need to eat), he was instead eating the less expensive pasta and starch that he should not be eating.

Since it’s July, his oil use in the summer is limited to heating the hot water, and just ½ tank (100 gallons) can get him through most of the summer. But from December through April, it is not uncommon for his tank to be filled at least once per month. What prompted him to call me was that when he got his summer oil delivery last month, that 100 gallons cost him $429.

Making things more difficult: many (if not all) oil companies are refusing to lock in prices or offer budget plans.

The client realizes that unless the other debt is somehow compromised, he either will not be able to heat his apartment, or his other creditors will not get paid. In other words, he sees that at some point, a choice will need to be made. Without the debt, the client could get through the winter assuming that that there are no dramatic increases in the prices. And it is this scenario that causes me to ponder this: “how many other people are wondering how they are going to do it?”

It’s not an easy question I can answer. However, for this client, who is struggling with the increasing prices on consumer goods and debt, and facing a cold and expensive winter, he has answered that question by considering bankruptcy. For him, it might be the only way to get through the winter.

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A Thanksgiving Message for My Clients and others…

Tuesday, November 20th, 2007

I imagine it is very hard to think of Thanksgiving when foreclosures in Massachusetts continue to rise. I think I am safe saying that it’s going to be hard for me to think of it, since I’ll be likely thinking about the work I am not getting done while I am visiting family. This is also compounded by the fact that my mind is still reeling from a statistic I heard this afternoon from a prominent creditor’s rights attorney.

At a brown-bag lunch seminar on foreclosures, the attorney told the crowd of debtor and creditor attorneys that in 2008 it is expected that 2 million mortgages will adjust up. In other words, the New Year is not going to bring an end to the housing mess that was brought on by the irrational exuberance (to steal a phrase) in housing. Things are not going to get easier for the people I represent.

Even though people were wishing each other Happy Thanksgiving, many were in a mad rush to get everything done they needed to get done in anticipation of the holiday. As I was sitting at my desk this evening, trying to clean it off before tomorrow – when I know I’ll have more work that I know I need to get done before, like so very many, I hit the road – I received a phone call.

It was a relative of a client who I met last week to discuss options. This client was very nervous – as many are – when they come to meet me. No one really plans on seeing a bankruptcy attorney in their life. You’re never going to open a high school yearbook and under a class picture it reads: “Future plans: I’m going to file bankruptcy!”

At some point during the meeting, his nervousness subsided, and he started to relax and tell me his side of things.

I spent about and hour and a half learning about his history, how the debt grew and grew. And we discussed what we could do to get through bankruptcy; to let him get on with his life. As the meeting went on, he began to smile more. When it was over and as I was walking him out, I asked him if he felt better than he did when he came in. He admitted that he did. I smiled back and said simply “that’s part of my job.” We parted ways, and shortly after that, I headed home.

The relative called to tell me that he died unexpectedly over the weekend. I was taken-aback bit. No, more accurately, I was stunned. The relative had called, knowing that he had come to see me, and just wanted to know if there was anything they needed to know or do. I told them no, not now, but that they could call if they ever had any questions or concerns and perhaps I could help. Then, after I offered my condolences again, there was a long awkward pause.

All day I have been wishing people a “Happy Thanksgiving.” All day I have been either talking to people who deal with people in financial crisis, learning about how to help people in a financial crisis, or talking to people in financial crisis. Yet, during that pause, all I could do was think ‘how can I wish this person a Happy Thanksgiving?’ There was no easy answer to the question, and honestly, I am not sure what I said.

Some of us will have a Happy Thanksgiving, and some of us will not. And the more I think of it, some of them are my clients. It will not always be that way. We will all, at some point, be forced to face loss and pain. I can tell you that some holidays will be happier than others. This is life, and there’s nothing that this bankruptcy lawyer can do to change that. But as we head into Thursday, I urge you all to look around you and be thankful for what you do have.

Chances are, you do have at least one thing to be thankful for: a tomorrow.

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