wayne – Page 8 – Rochester Bankruptcy and Debt Relief

Automatic Stay and Proceedings in New York Family Court

I have previously written about automatic stay in Chapter 7 Bankruptcy and Chapter 13 Bankruptcy, and divorce, and domestic support obligations. While divorce is handled in the New York State Supreme Court, once in a while, a family court petition seeking child support or spousal support is filed against one of my bankruptcy clients in New York State Family Court. When this happens, usually I am asked whether the automatic stay prevent the filing or continuation of the family court proceedings. My answer to that question will depend on the type of bankruptcy filed.

While the debtors tend to believe that the automatic stay prevents creditors from proceeding with collection activities, it does not stop most family court matters. The Automatic Stay, in Chapter 7 Bankruptcy, which is governed by §362(a) of the Bankruptcy Code, will terminate any collection activities. However, one of the exemption included in §362(b) allows for actions in Family Court matters and also in Supreme Court involving domestic support obligations.

Specifically, Bankruptcy Code §362(b)(2)(A)(ii) provides:

The Automatic Stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding for –

the establishment of paternity,

the establishment or modification of an order for a Domestic Support Obligation such as child support,

the determination of child custody or visitation issues, or

the dissolution of marriage, except to the extent that such proceeding may seek to determine a division of marital property in which the bankruptcy estate also has an interest.

While the divorce can be granted in Supreme Court without first obtaining relief from the Automatic Stay, the marital property cannot be divided without obtaining such relief. The Automatic Stay also does not prevent the post-petition collection of Domestic Support Obligations such as alimony or child support.

from any property belonging to the debtor, providing that the bankruptcy estate does not also have an interest in said property,

from automatic wage deduction orders created by a statute or judicial or administrative order,

from the interception of debtor’s federal or state income tax refunds, or

from the withholding, suspension or restriction of a debtor’s driver’s license or professional or occupational license.

Thus, there is no protection in bankruptcy court from the obligations imposed by a Domestic Support Obligation which can be brought in either the Family Court or Supreme Court. The above is true with respect to Chapter 7 Bankruptcy, however, in Chapter 13 Bankruptcy the answer is not the same.

The reason for this is the way Chapter 13 Bankruptcy treats debtor’s earnings after the filing of the bankruptcy petition. The property of the Chapter 13 Bankruptcy estate, which is broadly defined, specifically includes “earnings”. See 11 U.S.C. §541 [a] [6]; §1306 [a]. Because payments to creditors must come from the debtor’s post-petition earnings, those earning are property of the Chapter 13 estate pursuant to 11 U.S.C. §1306 [a] [2]. Thus, the claimant seeking to collect arrearages in support obligations is not free to pursue the Chapter 13 debtor’s post-petition earnings in Family Court.

If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a Rochester, NY, bankruptcy lawyer.

Filing for Chapter 7 Bankruptcy and Keeping Your Bank Accounts

One of the most common questions I hear from clients is whether they are able to keep their bank accounts while they are in bankruptcy, or to open new accounts after bankruptcy. My usual answer to that question is that there is nothing under bankruptcy code that would prevent a debtor from having or keeping bank accounts. While there is nothing under the bankruptcy law that prohibits it, there are may be some practical complications.

As I have discussed previously, a typical bankruptcy requires planning and preparation. One of the possible situations I prepare my clients for is a possibility that their bank may close their bank accounts or withdraw money from their accounts. If the debtor has a bank account with a bank or credit union that has also loaned him or her money, that bank has the right of set-off. That is the bank has the right to set-off the money in the debtor’s account against any debt owed to the bank. This is true even if the debt was not delinquent and the funds would be protected by the debtor’s cash exemption. Under a typical lending agreement, a bank or a credit union is usually cross-collateralized. That means that any assets you have securing the loan, including any accounts you may have at that institution, secure all of debtor’s debts with that bank or credit union. If the debtor files for bankruptcy, the bank may take any funds and apply them to any outstanding loan. Even if the debtor is planning to continue to pay on the loan, and sign a reaffirmation agreement, the funds may be frozen or suddenly become unavailable. It is usually my advice to open a back-up account elsewhere, at an institution where the debtor didn’t borrow any money.

If the debtor has accounts which might be subject to set off, there is no need to close such accounts. If there is a small amount of money left in the account, those issue can be resolved after the bankruptcy filing. With respect to opening bank accounts after bankruptcy, the debtor may run into some problems with the Chex Systems which is utilized by most banks. Chex Systems operates similarly to credit bureaus and receives reports from its member institutions.

Eviction, Chapter 7 Bankruptcy and Chapter 13 Bankruptcy

I often receive phone calls from people in Rochester and elsewhere in Western New York who are facing a potential eviction involving a commercial or residential lease. Usually the debtors do not know what their bankruptcy options are and are seeking advice how to proceed.

A bankruptcy filing by the tenant, either residential or commercial, immediately stops any pending eviction proceedings as a result of an “automatic stay.” Automatic stay, as I have written previously, is a mandatory injunction that arises by operation of law without the need for a hearing or order of the Bankruptcy Court. The automatic stay stops all of creditor’s efforts to pursue collections, litigation or judgment enforcement. The automatic stay protect the debtor and the property of the debtor’s bankruptcy estate. However, with respect to leases, it is critical to know at what stage the eviction proceedings are.

In the case of a lease, whether commercial or residential, the critical issue is whether a writ of eviction has already been issued from the landlord-tenant court. There is a significant body of case law holding that once a writ of eviction has issued from the landlord-tenant court the interest of the tenant in the lease has terminated. As result, if the lease is considered to be terminated by the bankruptcy court, the tenant can be evicted and the automatic stay will not stop the eviction. Thus, if a bankruptcy is being considered to prevent to postpone the eviction, it is critical for the debtor to contact a bankruptcy lawyer as soon as the eviction petition is served.

For a tenant who files for bankruptcy, the available options depend upon what chapter (type) of bankruptcy the debtor may be filing.

If the debtor is filing Chapter 7 bankruptcy, it may provide a delay in being evicted, and discharge the tenant from any liability under the lease. At the same time, the filing will not allow the debtor to either cure the default or give extra time to make payments under the lease.

For an individual debtor who has a lease, and has not kept up with the payments, Chapter 13 bankruptcy can provide the opportunity to cure the arrears (past due rent) over time. In a Chapter 13 bankruptcy, the arrears can be paid over a 5 year period, depending on the terms of the plan. If the tenant doesn’t stay current with post-bankruptcy rent, the landlord can seek “relief from the automatic stay” from the Bankruptcy Court to permit the landlord to move forward to evict the tenant in state court.

Do Debtors Meet Bankruptcy Judge During Their Chapter 7 Bankruptcy?

I am often asked whether the debtors here in Rochester will get to meet the Bankruptcy Court Judge during their 341 meeting, otherwise known as the meeting of the creditors. My usual response to this question is no, since the bankruptcy court judges are barred by law from attending the meeting of the creditors.

While the meeting of creditors is open and the public can attend it, the bankruptcy judge assigned to the case may not do so. While it seems counterintuitive, the reasons for this is to avoid any perception of bias on the part of the judge. Prior to 1979, when the current version of the bankruptcy code became effective, a bankruptcy court judge was able to attend the meeting of creditors. However, the Congress decided that it was necessary to prohibit judges from attending the meeting.

Accordingly, Bankruptcy Code section 341(c) provides that “the court may not preside at, and may not attend, any meeting under this section.” Although the local meeting of creditors is held in the Rochester Federal Courthouse, it is not a court hearing and the trustee presiding over the meeting is not a judicial officer. I tell the debtors that in most Chapter 7 consumer bankruptcy cases, the debtor will never appear before the judge assigned to the case.

If I am asked the same question about the Chapter 13 bankruptcy case, my answer will be the opposite since as a part of any Chapter 13 bankruptcy, the debtors will have to attend a confirmation hearing which, in Rochester, will be presided by Judge Ninfo.

Should You Use Credit Cards Once You Decided to File Chapter 7 or Chapter 13 Bankruptcy

If you are contemplating filing Chapter 7 or Chapter 13 bankruptcy, you should stop using your credit cards. Once you’ve decided to file for bankruptcy, any credit card use after that point will be highly scrutinized by both the credit card issuer and the bankruptcy trustee, and is likely to be viewed with a great deal of suspicion. The reasons for this are obvious. If the debtor decides that he is seeking to eliminate his credit card debt through Chapter 7 bankruptcy, or pay a lesser amount though a Chapter 13 filing, then incurring additional credit card debt can be considered fraudulent. Specifically, the credit card issuer will make an argument that the additional debt was incurred without intention to repay, then the discharge can be objected to. Also, the issuer will also look at all of the transactions to verify that the money was not spent on such things as vacation trips, or that other unnecessary spending didn’t take place. If a credit card issuer learns that a debtor used a card without any intention of making full payment, then the credit card company has the right to object to the debtor’s discharge of that particular debt.

Also, if the bankruptcy trustee, or United States Trustee, learn that the debtor intentionally ran up his credit cards before filing, then either trustee can seek to have the debtor’s discharge denied or move to have the case dismissed. There is also the possibility that the debtor can be found to have engaged in bankruptcy fraud, which is a criminal offense.

While consumer Chapter 7 bankruptcy allows the debtor to eliminate all credit card debts and get a fresh new financial start, the debtor should not jeopardize his ability to seek bankruptcy protection by engaging in self-serving or foolish behavior. There is simply no reason to create problems for the upcoming bankruptcy filing. Therefore, don’t use your credit cards once you’ve decided to file bankruptcy.

If you are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a New York bankruptcy lawyer.

Mistakes to Avoid When Filing For Chapter 7 or Chapter 13 Bankruptcy in New York

While bankruptcy appears to be a straight forward process, there are many pitfalls for the unwary. Some actions taken by the debtor before filing Chapter 7 or Chapter 13 bankruptcy in New York, may result in serious consequences. Here are some areas where mistakes are commonly made

1. Debts owed to family and friends. I would strongly recommend that you don’t try to pay back the debts owed to family and friends in anticipation of your bankruptcy filing. A trustee in a bankruptcy case can reach back and undo any such transactions that took place within one year prior to your bankruptcy filing. The concept is known as preference. It is intended to prevent debtors from favoring some creditors over other creditors by transferring assets to a third party and then claiming they have nothing left. While you may not be aware of preference, and your actions are responsible and just, they are likely to be undone by the bankruptcy trustee.

2. Disclose your financial affairs to your bankruptcy lawyer. Always be honest with your lawyer about your assets and your financial transactions. I am on your side and am able to help you, but I need to know everything that has taken place in order to take full benefit of the bankruptcy law. I can’t do that unless I have all the information available. Also, if I am not aware of certain facts, and if they come to light during the case or even after your discharge that you’ve withheld information or hid assets, you’ll not only lose the assets that were hidden, but the entire discharge can be undone. This means all of the bankruptcy protection created by your bankruptcy is lost and creditors can once again pursue you.

3. Don’t withdraw your retirement money. Sometimes, this is the easy route out of financial difficulties since the debtor may think that he or she may need more cash on hand if you’re getting ready to file for bankruptcy. However, since retirement plans such as IRAs and your 401(k) are actually protected from creditors by bankruptcy exemptions in New York. If you take the cash out and try to keep it, it will become part of the debtor’s estate. Additionally, you’ll owe pay taxes on the money you withdraw.

4. Don’t disregard pending lawsuits against you. While the automatic stay will protect you from any pending actions, once the bankruptcy is filed, any lawsuits pending prior to the filing should not be allowed to go into default. Lawsuits, if permitted to go into default have consequences and may result in adverse finding that may be difficult to undo during the bankruptcy. Do not treat law suits the same way as creditors. While the creditors will primarily call you and send you letters, lawsuits can have serious consequences that can be implemented before you file. Therefore, make sure that you, or your attorney, respond to any pending actions.

Of course, the most important step in all of this is to make sure you’re working with a knowledgeable, experienced and trustworthy bankruptcy lawyer. A good bankruptcy lawyer will help you successfully navigate the bankruptcy process and help ensure that you avoid all of the potential problems.

Reviewing Your Chapter 7 and Chapter 13 Bankruptcy Petition – A Critical Part of Your Bankruptcy Process

I spend a fair amount of time in 341 hearings. While waiting for my bankruptcy cases to be called, I listen to the trustee asking debtors and their lawyers questions about bankruptcy petitions. In my experience, one thing that always that gets bankruptcy trustee worked up, are incomplete or inaccurate bankruptcy petitions. Because the bankruptcy petition is signed by the debtors who, by signing it, certify its accuracy, debtors’ failure to read their bankruptcy petitions and lack of awareness of factual errors or omissions that they contain may cause significant problems.

While a completed bankruptcy petition usually runs between 30 and 40 pages, it is not an exciting read, and contains plenty of legalese, as well as recitals of the debtors’ financial assets, income, expenses,a a list of all the creditors. However, by signing it, the debtor certifies that he/she not only read it, but that all information contained in the petition is true and correct, just as if the debtor testified to that information under oath. At the beginning of every 341 hearing, the trustee asking the debtor if he/she read the bankruptcy petition before having signed it, reviewed it with his/her bankruptcy attorney, and if everything in the petition is true and correct.

Trustees get very upset at debtors because their petitions weren’t accurate or complete. A typical debtor would tell the trustee, “I didn’t notice a mistake or omission and it needs to be corrected,” but later admit they did not read the petition carefully. When the bankruptcy petition is missing important information and that information could have been easily corrected by the debtor, the debtor’s credibility is greatly reduced. If the petition is completely inaccurate, the trustee can allege that the debtor was engaging in fraudulent and deceptive conduct.

In my practice, I insist that my clients read every page of their petition and review it with me before they sign it. Even if the client want to rely on my work, the petition has to be read by every client who must understand its contents.

Small Business and Chapter 7 Bankruptcy

In the last few months, I have received a number of calls from owners of small businesses who want to file Chapter 7 bankruptcy, primarily due to credit card debt, but want to continue to operate their businesses. In most of these cases, the business owner have used personal credit cards to fund business operations. Since the time the credit cards were used, the business improved, and is now profitable or would be profitable where it not for the payments on credit card debt.

Unfortunately, in this type of situation, filing bankruptcy comes with a price. If you own a small business and are incorporated, the shares of that business are assets of the bankruptcy estate. Further, any accounts receivable of the business are an asset of the business that belong to the shareholder. Thus, if the shareholder files Chapter 7 bankruptcy, the bankruptcy trustee will treat the shares in the business, value them, and will try to sell them

Except in the case of a personal service business that has no significant inventory, receivables or any valuable assets, other than the experience and labor of its owner, the bankruptcy trustee will demand that the owner cease operating the business, and produce its records, value its assets and disclose other information related to the business to the trustee. As a result, a Chapter 7 bankruptcy filing is likely to result in the business being shut down, and its owner being forced to start over. Once the bankruptcy is completed, a new corporate entity can be formed and, assuming that the owner is able to resume operations and the business can be profitable, operations can be restarted.

Besides Chapter 7 bankruptcy, there are other options. Under appropriate circumstances, an owner of a small business can file a Chapter 13 bankruptcy assuming that the business is being operated as a sole proprietorship, and, if the business is large enough, Chapter 11 bankruptcy may be an option. In a Chapter 13 filing, it is usually difficult to predict what the cash flow of the business will be like and, therefore, it is difficult to come up with a bankruptcy payment plan.

Why a Free Consultation Is Important in Chapter 7 or Chapter 13 Bankruptcy

When a potential client calls my office to ask bankruptcy-related questions, I usually suggest that he or she come in for a free initial consultation. I also ask that when we meet, you bring your bills, tax returns, pay stubs and any other documents that may be related to your situation. The reason I ask for such documents is to assess your overall financial picture and to come up with possible solutions to existing problems.

At the consultation, I ask questions to find out what assets are owned by the potential client and also what their debts are. Depending on the responses I receive, I ask follow-up questions about the issues that may determine the course of action:

1. Recent significant use of credit cards/balance transfers/cash advances;
2. Transfers of property to third parties without payment or adequate consideration;
3. Values of assets which may exceed applicable New York exemptions in a Chapter 7 bankruptcy and may force a Chapter 13 bankruptcy filing instead;
4. The level of household income to make sure that the client can meet the means test and file a Chapter 7 bankruptcy;
5. Whether the debtor recently repaid a debt to a relative or friend which may be a preference;
6. Whether the debtor has a personal injury lawsuit pending, or the right to bring such lawsuit;
7. Whether the debtor had any prior bankruptcy filings;
8. Whether the debtor owes any non-dischargeable debts, such as student loans, maintenance and child support, and some income taxes;
9. Debts incurred as a result of fraudulent conduct or drunk-driving.

After I ask all of these questions, I am able to recommend the course of conduct for the debtor. I typically will explain if the bankruptcy a good option; what are its costs; and how a typical bankruptcy gets prepared, filed and proceeds in bankruptcy court. If a bankruptcy is likely to solve debtor’s problems, I will discuss which type of bankruptcy is available and what are the advantages and disadvantages of Chapter 7 and Chapter 13 bankruptcy?

In the event you decide to proceed with a bankruptcy filing, I will ask you to sign a retainer agreement. You will leave my office with a bankruptcy questionnaire which will ask you to provide information on your income, expenses, assets and liabilities. I will also provide you with a checklist of the documents I am going to need to prepare your petition and file your bankruptcy, including paystubs and tax returns. In addition, I will provide you with a list of organizations providing consumer credit counseling course, so you can meet pre-filing requirements.

I will also tell you how to deal with continuing phone calls from your creditors. There are times when I am not able to answer every questions, and may ask for additional documents to figure out the debtor’s circumstances. I believe that the free consultation benefits both me and the potential client.

Can You File Chapter 7 Bankruptcy If Your Income Exceeds Median Family Income?

In these uncertain economic times, I am getting this question more and more from people considering filing for bankruptcy all over Western New York. So can someone in Rochester making more than $75,000 file for Chapter 7 bankruptcy? The answer to that question is likely to be yes.

I have previously written about the means test component of the Chapter 7 bankruptcy. Under BAPCPA, the means test and its income standards were designed to be a bright line dividing those that were able to file Chapter 7 bankruptcy from those who were forced to file Chapter 13 bankruptcy. But the means test is more complicated than that, and the sheer median family income numbers alone are not alone dispositive, as discussed below.

The first Chapter 7 bankruptcy test the debtor has to pass in New York in order to qualify, is the Median Family Income test. It is the test that most debtors have heard about. Most debtors have heard about it from friends or relatives who filed for bankruptcy, usually along the lines “If you make over a certain amount, you can’t file.” Like most things you hear, these statements are only partially correct. The current Median Income limit in New York for a family size of one is $46,485. For a family size of two, the amount is about $58,109.

So how can someone filing for bankruptcy in Rochester who earns over $75,000 possibly file for bankruptcy in New York? The short answer is that BAPCPA, the bankruptcy law that was passed in 2005, allows you to take certain deductions when determining if you are qualified to file Chapter 7 bankruptcy. You can take standard IRS deductions that your bankruptcy lawyer knows about. You can deduct certain childcare expenses. You can deduct taxes that are being garnished from your wages. You can deduct your actual mortgage payments. You can deduct vehicle ownership expenses. You can deduct health care expenses. You can deduct food expenses. In other words, if you’re earning more than that median income test, you still absolutely have a possibility for filing for Chapter 7 Bankruptcy in Western New York.

While most of the deductions are technical in nature and require analysis of the debtor’s expenses and needs, I would recommend you speak with a Rochester bankruptcy lawyer and that lawyer will sit down with you and explain how the bankruptcy law requirements apply to you. This is what makes a difference to the debtors since a bankruptcy attorney can help someone in difficult financially situations. When meeting with the bankruptcy attorney, the debtor should discuss the full extent of his/her financial situation and when finished, should understand what course to take.