Why Filing Bankruptcy Stops Payroll Garnishment: Virginia Law, Virginia Form I’m surprised a couple times each month by Virginia employers who don’t know that bankrutpcy stops payroll garnishment. Some employers think they need to keep on garnishing, until they get an order from a judge saying to stop. But if the read the Garnishee’s Answer Form, […]The post Why Filing Bankruptcy Stops Payroll Garnishment: Virginia Law by Robert Weed appeared first on Robert Weed.

Here at Shenwick & Associates, we've written extensively about the "means test," which is a complex series of calculations based on household size and income to determine if a debtor is eligible to file for Chapter 7 bankruptcy. However, the means test only applies to individuals whose debts are primarily "consumer debts," as opposed to business debts, pursuant to § 707 of the Bankruptcy Code. Congress did not define the word "primarily," but most courts have defined the word to mean more than half. If more than 50% of the debtor's debts are non-consumer debts or business debts, the debtor is automatically eligible to file for Chapter 7 bankruptcy without doing the means test, and the presumption of abuse does not apply.What are consumer debts? Section 101(8) of the Bankruptcy Code defines a consumer debt as "debt incurred by an individual primarily for a personal, family, or household purpose." Many bankruptcy courts have developed a "profit motive" test. If the debt was incurred with an eye towards making a profit, then the debt should be classified as business debt. Accordingly, a mortgage on an individual's home would be considered consumer debt; however, if a vacation home were purchased for investment purposes and rented out, then the mortgage would qualify as business debt. If an individual uses credit cards for consumer purchases, then those debts are consumer debts; however, if an individual used the credit card for business purposes, then in all likelihood that debt would be deemed business debt. If an individual guaranteed a debt for a business obligation, that personal guaranty would be deemed business debt, as would the investment losses.According to the Office of the United States Trustee's position on legal issues arising under the means test regarding a declaration of non–consumer debts: Less than 50% of total scheduled debt was incurred for personal, household or family purposes.Purpose of debt is judged at the time the debt was incurred.  Home mortgages are typically consumer debt.Most tax debts are not typically consumer debt.  However, with respect to tax debts, a number of bankruptcy courts outside the Second Circuit have held that those debts are business debts. See In re Brashers, 216 B.R. 59 (Bankr. N.D. Okla. 1998), which holds that the debtor's income tax obligations do not constitute consumer debt; see alsoInternal Revenue Service v. Westberry (In re Westberry), 215 F.3d 589 (6th Cir. 2000), which also holds that taxes are not consumer debt. Many subsequent courts examining this issue have followed the Westberry analysis.For all of your questions regarding debts, whether they be credit card, medical, consumer, business, taxes, secured or unsecured, please contact Jim Shenwick.

Written by Amy Weston, Paralegal and Salene Mazur Kraemer, Esquire         Fear of the unknown.  The Ch. 11 process is unknown to many.  C-level executives dread  discussions about bankruptcy options.  We just recently filed a new Chapter 11 case and thought we would write a series of posts on basic Ch. 11 procedural matters so as to demystify the process.       Filing Chapter 11 (reorganization/restructuring) is a powerful tool that can be invoked by businesses and certain individuals pursuant to Title 11  of the United States Code (aka the “Bankruptcy Code”).   As a practitioner,  I am privileged to be able to  facilitate such restructurings.  Here is the first post in this series on Ch. 11 basics. ***            The administrative burden of filing a case can be heavy.  Often, a paralegal is running the “paper pushing” ship just before and shortly after a case is filed.   Information gathering.  Data compilation.  Report generation.  A debtor’s bookkeeper, accountant and/or CFO all work with Debtor’s counsel and paralegal staff to gather  necessary documentation and to fulfill requirements imposed by the Court and the United States Trustee (appointed by Department of Justice).  Each office has very specific document requests, rules and procedures.           In furtherance of a U.S. Trustee’s monitoring responsibilities, here is a list of what the U.S. Trustee wants prior to the Initial Debtor Interview.  Most of the documentation requested is straightforward and anticipated: Bank account statements. Latest filed Federal Tax Returns or copy of extension to file. Financial statements. Payroll detail. Rent roll. Accounts receivable detail. Recently filed sales tax Recently filed payroll returns. Detail of intercompany transactions. Accounts payable detail. Check register for last 60 days. Filed Scheduled and Petition Other requirements are not as obvious. Two that specifically need explanation are: Proof of establishment of Debtor-In-Possession account(s) Proof of insurance indicating that the Office of the U.S. Trustee is an additional certificate holder. DIP Accounts          Once a debtor has filed a bankruptcy petition, it must close existing bank accounts and open new accounts which identify the debtor as a debtor in possession (“DIP”). All money from the bankruptcy “estate” (i.e. anything the debtor owns) must be put into these accounts.  The title of “Debtor in Possession” must be printed on the checks along with the bankruptcy case number.  The Bank will not issue a debit card for a DIP account.         While this seems complicated at first, the good news is that this is standard procedure. So, any bank should be familiar with this request.  However, a debtor cannot go to just “any” bank. The U.S. Trustee’s Office will only accept DIP accounts from approved depositories.  A current list of such institutions is available through the U. S. Bankruptcy Court in the district where the bankruptcy was filed.  Approved Banks DIP               Within 15 days of receipt from the bank, a debtor must serve copies of monthly bank statements upon all creditors and interested parties, together with a monthly operating report (MOR) of gross receipts and disbursements.  Both the monthly operating report (MOR) and DIP bank statements are publicly filed on a debtor’s docket. Proof of Insurance           A debtor must maintain all insurance coverage during the bankruptcy process.   This includes: general comprehensive liability; property loss from fire, theft or water; vehicle; workers’ compensation; and any other coverage that would be customary in line with the debtor’s business.            In addition to maintenance, a debtor must list the Office of the U.S. Trustee listed as an additional certificate holder and provide proof of such.  The documentation of proof must include the type and extent of coverage, effective dates, and insurance carrier information.  In order to fulfill the Trustee’s requirements, the debtor will usually have to provide proof of the request.   The proof of insurance and additional certificate holder requirement is standard, so the insurance company should not have any trouble fulfilling a debtor’s request.           Please TAKE NOTE that a debtor’s failure to comply could result in DISMISSAL of the case or conversion to a Chapter 7. If the case is a designated as a small business case or as a subchapter V small business case, there are additional  requirements. This post does not constitute legal advice.  Consult an attorney about your specific case.

Fast Track Debt Relief Violates Virginia Consumer Protection Law I’m a bankruptcy lawyer, in Woodbridge Virginia. I see a lot of people ripped off by debt settlement scams, before they come to see me. Last month, a judge in Fairfax County agreed with me that Fast Track Debt Relief violated the Virginia Consumer Protection Act. […]The post Fast Track Debt Relief Violates Virginia Consumer Law by Robert Weed appeared first on Robert Weed.

Written By: Daniel Hart Edited By: Salene Kraemer                    From time to time, we have clients buy into a franchise or occasionally want to franchise his or her own business concept.                  Franchising is a business model that combines aspects of working for yourself and working for someone else.  It is an efficient system for an individual who wants to own/run a business but lacks the experience to do so.  Within the United States, there are about 3,000 established franchise brands operating in over 200 different lines of business.  A franchise is a legal and commercial relationship between the owner of a trademark, trade name, and business system (franchisor) and an individual or group wishing to use that identification in a business (franchisee).  The most common form of franchising is product/trade name franchising in which a franchisor owns the right to a trade name and/or trademark and licenses the rights to use those. Buying a franchise offers many advantages that is not available to an individual starting a business from scratch.  Here are a few examples:  Proven business system and brand name. Through years of experience and trial and error, franchisors have developed a business system and brand name that are successful. Pre-existing business relationships. Many franchises have existing relationships with suppliers, distributers, and advertisers that franchisees can utilize.  Entrepreneurs must develop these relationships on their own. Quality market research. Typically, a franchisor will perform substantial market research into competition and the demand for the product or service in a specific location before allowing a franchisee to open a franchise there. Similar to an entrepreneur opening their own business, a franchisee must spend a substantial amount in order to obtain their own franchise. First, there is an initial franchise fee, which is a one-time charge assessed to a franchisee in order to use the business concept and trademarks, attend training program, and learn the entire business.  Franchise fees can have varying ranges depending on the size of the franchise system.  This can range from as low as $2,000 to over $100,000. Depending on the specific type of business that you franchise, a variety of additional up-front costs can occur.  These costs include rent/construction cost of building new facility, equipment, signage, initial inventory, working capital, and advertising fees. After these initial costs and fees, a franchisee generally pays the franchisor royalties running around 5 to 8 percent of gross revenue plus contributing funds to a company-wide advertising program. Many people may ask “why should I pay tens of thousands or hundreds of thousands of dollars before I start and then a royalty percentage every year after that?”  For some, the answer is clear.  By opening their own franchise of an already successful name-brand business, many can make more money quicker than opening their own business.  Also, there is a greater likelihood that long-term return on their investment will be realized. As with starting any business, it is vital to perform due diligence before investing in a franchise.  Here are some examples of basic information you need to discover before committing to a franchise:   Research growth potential. Simply, you need to make sure that there is a strong-likelihood that you can increase profits and have a successful business.  Also, is there a market for your business where your location will be? Check consumer and franchise regulators. Check these within your state to see if there are any serious problems with that company. Check with the Better Business Bureau for any complaints against the company. Search public court records. Is the company involved in any litigation? If so, determine the nature of the lawsuit.  If the nature of the lawsuit involves fraud or regulatory violations, that is a bad sign. Request a Franchise Disclosure Statement: By law, this document must be given to all prospective franchisees at least 10 business days before any agreement is signed. A franchise disclosure statement (FDD) contains an extensive description of the company.  It includes information such as amount of fees required, any litigation/bankruptcy history, trademark information, advertising program, equipment you are required to purchase, and the contractual obligations of both franchisor and franchisee.  If a franchise will not give you a FDD, you probably should not do business with that company. Contact other franchisees: The FDD should contain a list of existing and terminated franchisees. Use this list to your advantage.  Contact current franchisees in order to gain insight as to whether or not the training was helpful, how well the franchisor responds to your needs, and whether sales/profits met their expectations.  Reach out to a couple terminated franchisees as well.  Ask why their franchise agreement was terminated.  Was it due to lack of business, bad franchisor, or for some other reason?  Also, if the list of terminated franchisees is quite lengthy, that might be a sign that that franchise is not doing well. Visit a current franchise location: This can give you a lot of information. You can determine whether or not that franchise has a healthy flow of customers.  You might get an in-person conversation with a current franchisee and see how the operations are run. By performing due diligence, you will have a clear picture as to whether or not you will buy a successful franchise and whether or not you will be doing business with a helpful franchisor or not. Finally, work with a lawyer and accountant when undergoing the franchising process.  Lawyers have expertise in performing research and can assist in reviewing and negotiating the franchising contract.  An accountant can review any financial reports concerning the franchise and project profitability for the future.

I came across a woman recently who was considering chapter 7 bankruptcy. She had a home that was underwater by more than $175,000. She had absolutely no intention of keeping the home. Her goal was to stay in the home for as long as possible, surrender it to the lender after a sheriff sale, and+ Read More The post When Assets Are Potentially At Risk, Stick With Chapter 13 appeared first on David M. Siegel.

Nobody wants to file for bankruptcy.  However, circumstances can spiral out of control and you can find yourself without any choice.  You were laid off from work or had unexpected medical bills. You had to make a choice between paying the monthly credit card bills or putting food on the table.  The choice is easy. + Read More The post Taxes Owed To The IRS Could Be Discharged In A Chapter 7 Bankruptcy appeared first on David M. Siegel.

By Ron LieberSo someone has asked you to co-sign for a student loan.Chances are, it’s your child or grandchild, or perhaps a niece or nephew. You have unrelenting faith in this teenage freshman, or near certainty that graduate school will lead to a lifetime of gainful employment. And maybe you feel badly that the family has not been able to save enough to pay the bills outright.Fine. But be very, very careful.When you co-sign for a loan, you, too, are responsible for it. If the primary borrower can’t pay, you have to. If that borrower pays late, your credit could get nicked as well. And the mere existence of the loan on your credit report may keep you from being able to get other kinds of loans, since lenders don’t always want to do business with people who already have a lot of debt.In some cases, the lender will try to collect from a co-signer even if the primary borrower is dead, as a recent collaboration between ProPublica and The New York Times revealed. Legislators in New Jersey held hearings on the matter this week.After a postrecession lull, the so-called private loans — which generally have less favorable rates and terms than federal loans, and tend to require co-signers — are making a comeback of sorts. About one in 10 undergraduates takes one out, according to Sallie Mae, the biggest lender. Undergraduate and graduate students together borrow $10 billion to $12 billion in new private loans each year, according to MeasureOne, a market research and consulting firm, and the trajectory has been upward since the 2010-11 school year. The $102 billion in outstanding private student loans make up just 7.5 percent of the $1.36 trillion in total student loan debt; the rest is made up of federal student loans. Undergraduates, however, can borrow only so much each year from the federal government before hitting limits.So for anyone who wants to borrow more, there are the private loans, which usually come from Sallie Mae, banks and credit unions or other entities. The Consumer Financial Protection Bureau has a helpful guide on its site that explains the difference between federal and private loans in some detail.Most private lenders require borrowers to have a co-signer to get a loan at all or to get a better rate. During the 2015-16 academic year, 94 percent of new undergraduate private loans had a co-signer, while 61 percent of graduate school loans did, according to MeasureOne’s analysis of data from six large lenders that make up about two-thirds of the overall market. Tempted to help out by lending your signature and good credit history to someone? Your participation could indeed make a difference. Credible, an online loan marketplace, examined about 8,000 loans and found that undergraduates looking for loans who had co-signers qualified for loans with (mostly variable) interest rates averaging 5.37 percent. Students flying solo got a 7.46 percent quote.For graduate students, the numbers were 4.59 percent for duos and 6.21 percent for people going it alone. For its average undergraduate loan — $19,232, paid off in eight years — the savings over time would be $1,896, which comes to about $20 a month.But co-signing comes with plenty of risk. The Consumer Financial Protection Bureau outlined a number of them in a report it issued last year. In theory, most lenders provide a process by which the co-signer can be removed from the loan at the primary borrower’s request.Perhaps the biggest concern for co-signers ought to be the bureau’s assertion last year that lenders turn down 90 percent of the borrowers who apply for these releases. The bureau’s director, Richard Cordray, described the process as “broken.”But Sallie Mae said that more than half of its borrowers who make this request succeed. For PNC, the figure was 45 percent for the last 12 months. Citizens Bank reported a 64 percent number, while Wells Fargo said so few people had asked for a release that it did not track the number. (It’s possible that many don’t know that it’s possible, as the bureau chided lenders for not making the rules clear.)What accounts for this gap? The bureau’s sample includes many loans that the original lenders sold to investors. These anonymous loan owners may not have the same incentive to be customer-friendly as big-name banks.Some co-signers can’t get a release because the primary borrower doesn’t have sufficient income or a good enough credit score — fair and square. But sometimes it’s neither fair nor square. The bureau reports numerous instances where people make several months’ worth of payments in a lump sum but then don’t get credit for the consecutive monthly payments that some lenders use to keep score on people who are aiming to release their co-signers.Worse still, co-signers who make payments themselves may discover after the fact that the lender requires the primary borrower to make years of on-time monthly payments before it will consider a release. So efforts by the co-signer to help the primary borrower stay on track may foil their very attempt to get themselves off the loan later.There are rarer horrors, too, where the death or the bankruptcy of the co-signer causes an automatic default, according to the bureau. At that point, a mourning child can receive a bill for the full balance, and debt collectors may chase after the executor of the estate for a dead grandfather who co-signed a loan years ago. The big banks that offer private student loans say they do no such things.As for more likely events, like credit-sullying late payments, just 4.37 percent of borrowers were at least 30 days late on their loans at the end of the first quarter, according to MeasureOne’s look at the big private lenders. But it’s not necessarily the same 4.37 percent who are overdue at any given moment. Moreover, that number will go higher during the next downturn, and there might be more than one bad economic cycle during any individual’s tenure as a co-signer.A CreditCards.com survey of people who had co-signed on loans of all sorts found that 38 percent ended up paying at least some money, 28 percent were aware of damage to their credit and 26 percent saw relationships suffer as a result.So where does this leave someone trying to help and tempted to co-sign? The tough-love reply goes like this: If you need a private loan as an undergraduate especially, then your college of choice is simply not affordable. Federal loans plus savings and current income should be enough to pay all of your costs, and if they aren’t, then it’s community college and living at home for you. And no, we won’t take the debt on in our names only or yank money from home equity, since we need to think about retirement and not be a burden to you later.But can you really bring yourself, as a parent in particular, to deny a teenager or an ambitious graduate student a shot at the better opportunities that a more prestigious and expensive school might bring, as long as the debt isn’t outsize? Even an aspiring engineer who will earn plenty?Many people simply will not be able to say no. So a few words for them. First, keep in mind that the teenagers you’re betting on may never graduate. And if they don’t, the odds are higher of the co-signer being liable for the private loan while the college dropout earns a modest hourly wage. So be especially wary if you think there is even a chance that your child or grandchild is not committed to college.Finally, look the primary borrower in the eye and draw out a commitment of total and utter transparency. “Don’t assume that the primary borrower is making the payments, and make sure you have an open enough dialogue that they will tell you about it before they miss that payment,” said Dan Macklin, co-founder of SoFi, a company that helps many people refinance older student loans. “I’ve seen too many people where it’s an embarrassment and not spoken about, and it’s not very healthy.”Copyright 2016 The New York Times Company.  All rights reserved.

Loan modifications come in many different forms and at many different times as they relate to a bankruptcy filing. The most common loan modification is one that avoids bankruptcy entirely. I’m referring to a person or couple that fall behind on their mortgage, reach out to their lender for loss mitigation opportunities and are lucky+ Read More The post Filing Bankruptcy Should Not Kill A Loan Modification appeared first on David M. Siegel.

Bankruptcy is The Best Credit Repair for Most People Is bad credit costing you thousands of dollars every year?  It is, if you are paying more than 5% on your car loan.  People with great credit are paying less than 3.0%.  The difference between 3% car loan and an 18% car loan on a $24,000 car […]The post Bankruptcy: The Best Credit Repair for Most People by Robert Weed appeared first on Robert Weed.