Archive for the ‘Small Business Bankruptcy’ Category
Thousands of Milwaukee residents file for bankruptcy each year. A good number believe they can’t afford a lawyer but are intimidated by the idea of trying find their way through a legal system they don’t understand.
These citizens have critical questions about the bankruptcy process:
“Can I keep my car?”
“Do my husband and I both need to file?”
“Will my child support arrearage be discharged?”
Many turn to bankruptcy petition preparers for those answers and pay $100 to $250 to get them. But most do not realize that petition preparers are simply typists. They are not trained in the law and do not know the answers to the questions that debtors need to ask.
Some preparers answer the questions anyway, often giving the wrong information.
Some take the debtors’ money but do not complete the papers or do not file the papers or do not file the correct papers.
Milwaukee’s bankruptcy judges have grown weary of being forced to dismiss cases because the debtor paid money he or she did not have to a petition preparer who gave the debtor the wrong information, did not file all of the required documents or filled out the documents incorrectly.
People who consider filing for bankruptcy already are hurting, without losing precious dollars to someone who cannot give them the advice they need.
To make it clear that the law does not allow petition preparers to give legal advice, and that they are not qualified to do so, the Milwaukee judges have established a new policy: Beginning Jan. 1, a petition preparer may charge only $75 for completing bankruptcy papers.
If the preparer is following the law, simply filling out the papers without giving legal advice, $75 is a reasonable price for that service. If a debtor needs more than typing services – and most debtors do – the bankruptcy court has a Help Desk, where from 9 a.m. to 10:30 a.m. every Thursday morning, bankruptcy lawyers will answer questions and help debtors with their paperwork.
And it’s free of charge.
Pamela Pepper is chief judge of the U.S. Bankruptcy Court for the Eastern District of Wisconsin, sitting in Milwaukee.
One important thing to do when you are speaking with a debt collector is to take detailed notes. The more detail that you can provide about the conversations with collectors, the more credibility you will have if you are involved in a lawsuit against the collector.
Moreover, the more knowledge you have of your conversations, the more intelligently and persuasively you can speak with the debt collectors. Debt collectors are notorious for putting false information in their notes in order to make you feel bad in an effort to convince you that you broke your promise. Isn’t it is ironic that a collector would lie in order to use your sense of morality against you?
When a debt collector says, “This is what you discussed with us last week,” and it is inaccurate, it is empowering to have your notes at hand to tell debt collector exactly what was discussed. It is not unusual for a collector to call one day and make an offer only to have the same collector deny that such an offer was made a few days later.
Naturally, the more detail the better. The more organized and prepared you are, the less likely you are to be badgered by or taken advantage of by rude collectors. I’ve talked about that on this blog here.
The Basics of Chapter 13 Bankruptcy
Chapter 13 is very effective at helping filers get a fresh financial start while being able to keep valuable assets like homes and cars Federal bankruptcy laws exist to give debtors an escape from overwhelming debt when they find themselves in an unworkable financial situation. The protections offered by a bankruptcy filing have only rarely been more important than they are in our country’s current economic situation. Stock market woes, the burst housing bubble and chronically high unemployment rates have left record numbers of Americans in financial trouble and looking for more information about debt relief options like credit counseling, loan modification, debt consolidation and bankruptcy.
Types of Bankruptcy
There are several different types of bankruptcy filings that a debtor might consider. Eligibility for these programs are based upon an analysis of the debtor’s unique financial condition and whether the filer is an individual, a business entity, a farming enterprise, a fishery, a railroad or a municipality.
- Businesses — depending upon the industry — might be able to file under Chapters 11, 12 or 15 of the U.S. Bankruptcy Code.
- Municipalities like cities, towns, villages and school districts can seek the protections offered by Chapter 9.
- Individual debtors, however, have two choices: Chapter 7 or Chapter 13.
What Is Chapter 7?
Consumer bankruptcy is the blanket legal term for a bankruptcy filed by a single individual (or by a married couple) instead of a by a business or other entity. Consumer bankruptcies are covered by Chapters 7 and 13 of the Bankruptcy Code.
Chapter 7 is better known as “liquidation bankruptcy.” It involves the literal liquidation (selling) of the debtor’s assets in order to raise money that will be used to pay debts. Secured creditors — those whose debts involve a tangible collateral like a house, car or appliance — are given priority, so they are paid first. Any debts not payable through the proceeds of a liquidation are discharged at the end of the proceeding, except for certain debts (student loans, taxes, child support and alimony) that are non-dischargeable. Chapter 7 does include myriad exemptions that will protect various types of property from being liquidated, however, so filers do get to keep the majority of their essential assets.
Because it is more inclusive and involves the discharge of all or most debts, it is more difficult to qualify for Chapter 7 bankruptcy protection than it is for Chapter 13. Potential filers must undergo what is known as a “means test” to determine eligibility. Most people who do not qualify to file under Chapter 7 are able to bring a Chapter 13 filing instead.
What is Chapter 13?
Chapter 13 bankruptcy involves the reorganization / consolidation of all the filers debts into one amount that is repaid over a period of three to five years. People filing under Chapter 13 do not have to pass a means test, but they do have to prove to the bankruptcy court that they have an income with which to make regular payments on their debt. Some debts — the like student loans, taxes, child support and alimony mentioned above — cannot be included in the repayment plan and are not subject to discharge.
Chapter 13 is very effective at helping filers get a fresh financial start while being able to keep valuable assets like homes and cars without seeking exemptions. There is not the immediate discharge of debt like there is in Chapter 7 bankruptcy, but if the debtor fulfills the obligations of the repayment plan, remaining debt is discharged at the end of the agreed-upon time.
Why File a Chapter 13 Bankruptcy?
Most people choose Chapter 13 bankruptcy filings to protect themselves from foreclosure, repossession or wage garnishment. Filing for bankruptcy protection activates something called an “automatic stay.” That means that while the filing is pending, creditors cannot pursue lawsuits, garnishments, repossessions or foreclosures. In fact, they cannot even contact the debtor while the automatic stay is in place — all harassing phone calls and threatening letters must stop once the filing process has begun. Past due amounts on mortgage or car payments can be rolled into the consolidated debt and paid back over the life of the repayment plan, so as long as the debtor remains current.
In addition to the protections offered by the automatic stay, Chapter 13 is also a relatively inexpensive way to get a fresh financial start. Yes, filers have to commit to making payments on their debts for a period of time, and the bankruptcy will have a long-lasting impact on their credit rating, but they can also start to rebuild credit not long after filing. Furthermore, the negative impact of a bankruptcy filing is still less significant than that resulting from a foreclosure, repossession or garnishment.
If you want to learn more about filing for Chapter 13 consumer bankruptcy, contact an experienced bankruptcy attorney in your area.
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Bankruptcies ease in U.S., state
By Paul Gores of the Journal Sentinel
July 25, 2011 |(1) Comments
Bankruptcy filings in Wisconsin and the nation are running behind last year’s pace, but attorneys say it’s too soon to know whether the wave of filings triggered by the economic downturn has crested.
Still, at least in some lawyers’ offices, the number of people coming in to declare themselves insolvent has slowed slightly. And more of those filing for bankruptcy today are people who at one time were higher on the economic scale. That compares with many of those who filed earlier in the recession – people who were living paycheck to paycheck and folded quickly when their income was cut, lawyers said.
“I think those that we’re seeing now are those who were able to survive the downturn – people who were self-employed, people who had higher-paying jobs, were able to tap into retirement accounts and use the credit card but make the minimum payments,” said James Miller, of Miller & Miller in Milwaukee. “There is just not that same mass of people as those who fit into the first category.”
U.S. Bankruptcy Court records show bankruptcy filings fell 8.4% in the first half of 2011 in Wisconsin, to 14,682 from 16,024 in January through June 2010. About 80% were Chapter 7 filings, which wipe out debt on things such as credit cards, medical expenses and utility bills.
The Wisconsin numbers mirror a decrease in consumer bankruptcies nationally. There were 709,303 filings in the United States in the first six months of 2011, an almost 8% decrease from 770,117 during the same span in 2010, according to American Bankruptcy Institute.
“What we’re seeing is still high filings, but off the peak,” said David Leibowitz, founder and managing member of LakeLaw in Milwaukee and Kenosha. “I don’t think we can take a great deal of comfort in it. But I do think that there’s a direct correlation between the economy and unemployment on one hand and the bankruptcy statistics on the other hand.”
Madison bankruptcy attorney Claire Ann Resop of von Briesen & Roper said people who had been making at least midlevel incomes are among those she sees more frequently. Among those on the list: teachers, nurses, sales people, tradesmen, homebuilders and truckers.
“They had higher income and they had more resources to try to keep up for a while,” she said.
Milwaukee attorney Robert Waud said he was “kind of surprised” to hear the number of filings in the state declined.
“It’s pretty steady coming in the door,” he said.
Small-business owners, trades people and land developers are common bankruptcy filers, he said.
Waud, of Todd C. Esser & Associates, isn’t convinced bankruptcy filings have peaked, even if the half-year trend is down from a year ago.
“I think it’s too soon to say,” he said.
Miller said restraints on credit since the start of the recession and financial crisis have cut the likelihood of people charging huge debts that end up in bankruptcy.
“Credit companies aren’t taking as many risks on people, so there are not as many credit-related defaults,” Miller said.
Lawyers said issues that historically have led to bankruptcy remain the big factors – uninsured major medical costs, divorce and job loss.
“The problem still, as far as I’m concerned, is there are not enough people working,” Waud said.
*Criminal fines or restitution or drunk driving injury claims
*Guaranteed Educational Loans
*Fine or penalty owed to governmental unit
*Damages arising from willful injury to person or property
*Spousal or child support, or ex-spouse attorney fees for obtaining support
*Income taxes less than three years old
*Income taxes over three years and tax return not filed more than two years ago
*Income taxes not assessed at least 240 days
*Payroll taxes and sales taxes