I’m Northern Virginia bankruptcy lawyer Robert Weed.  I want to talk to you about using Chapter 13 bankruptcy to stop foreclosure in Virginia. Before the housing crisis, Chapter 13 bankruptcy was the best way to stop foreclosure in Virginia.  Today, a lot of the time, getting a loan modification is a better way to stop […]The post Stop foreclosure in Virginia with Chapter 13 Bankruptcy appeared first on Robert Weed.

Most income taxes cannot be discharged in bankruptcy, but some can. To find out whether yours can, your lawyer will need your tax account transcript.  The IRS makes these available now on line.  You can download yours here. Why do you need that?  Your lawyer can use your account transcript to see if your taxes […]The post Before bankruptcy: Getting your tax account transcripts appeared first on Robert Weed.

The Statement of Current Monthly Income is used by judges to determine if your income level raises the question of abuse of the bankruptcy laws. Part of the responsibility of the judge in a bankruptcy case is to ensure that debtors do not abuse the bankruptcy laws and avoid paying debts by filing bankruptcy when they have the means to pay. Prior to 2005, this determination was made at the discretion of judges. After new bankruptcy laws were passed in 2005, judges are no longer able to use their discretion, but instead follow the formulas outlined in the law to determine if there is abuse. The Statement of Current Monthly Income provides this information to the judge.The post The Statement of Current Monthly Income and Your Bankruptcy Plan appeared first on Tucson Bankruptcy Attorney.

On Friday January 24, 2014, attorneys trying to access the federal courts' electronic records and filing systems were unable to get through for almost four hours.   While occasional local outages for maintenance or technical problems are not unknown, there is some reason to believe that the PACER and ECF systems for the entire federal court system were taken down by hackers.   This raises questions of who was behind the hack and why they targeted the federal court system.Here is what I have been able to piece together.   At approximately 2:45 p.m. CST, I attempted to access both the Western District of Texas and Southern District of Texas Bankruptcy PACER sites to look up some filings.   I received a message stating that the website was not available and to check whether I had spelled it right.  After multiple tries, I was not able to get through.At 2:54 p.m. CST, I received an email from the Northern District of Georgia Bankruptcy Court stating:Initial reports are indicating that a Hacker group is impacting PACER access for all U. S. Courts.  Another email will be sent when full access has been restored.At 3:33 p.m. CST, I received an email from the Western District of Texas Bankruptcy Court stating:The Case Management / Electronic Case Files System and the court website for the U. S. Bankruptcy Court of the Western District of Texas is currently UNAVAILABLE due to a network problem at the national level.  The problem is being worked on.  You will be notified when it is once again available.We apologize for the inconvenience.As the afternoon wore on, various other reports came in.   However, other than the initial report from the Northern District of Georgia, none mentioned the specter of hacking.At 6:34 p.m. CST, I received a notification of a filing by another attorney.   Thus, it looks like the system was down from approximately 2:45 p.m. to 6:30 p.m. CST, an outage of nearly four hours.As of this morning, the website for the U.S. Courts did not have any explanation for the outage, although it did feature a story entitled "Working Group Seeks Ways to Pull Plug on Cybercrime."   Back in 2009, Wire.com reported that hackers had engineered a way to go around PACER's pay wall and get documents without payment.  However, I was not able to find any reliable reports of prior hacking attacks on both PACER and ECF.   Having been mildly inconvenienced and perturbed by this possible hacking incident, I am curious at to whether we will learn more about what happened.   Who was behind this?   What was their motive?   Was this done by someone with a grudge against the court system or was it simply a case of teens with too much time on their hands?   From what I can surmise, this was simply a denial of service attack and not an attempt to access and manipulate PACER or ECF data.   However, this should be a warning to the administrative office of the courts that someone could attempt a more audacious attack in the future.   That would be bad.To the person or persons who did this, with apologies to Pink Floyd:We don't need no electronic frustrationWe don't need no nasty trollNo dark sarcasm on the internet Hey hackers, leave CM/ECF alone!

Reasons To File Bankruptcy People hesitate to file bankruptcy for a variety of reasons.  The first is the name bankruptcy has a negative connotation which has been around for centuries.  The truth is bankruptcy was put in place to help people who are struggling financially.  Bankruptcy is not a scarlet letter that someone has to+ Read MoreThe post Why Do People Hesitate To File Bankruptcy? appeared first on David M. Siegel.

Once you file for bankruptcy, there are two things that automatically occur: the automatic stay springs into effect to prevent your creditors from collecting, and the bankruptcy estate is created. The bankruptcy estate defines the nature of your assets by the date and time that you filed for bankruptcy. Money earned immediately before filing for bankruptcy is considered property of the estate, while money earned after filing your petition is not a part of the estate.The post Understanding the Bankruptcy Estate appeared first on Tucson Bankruptcy Attorney.

If you’re looking to save a home from foreclosure, chapter 13 will help you provided you file your bankruptcy case before a Sheriff sale has taken place. Chapter 13 will allow for you to pay back your mortgage arrearages over a three to five-year period. You also have to make your regular mortgage payment each+ Read MoreThe post My Sheriff Sale Date Has Passed. Will Chapter 13 Bankruptcy Help Me? appeared first on David M. Siegel.

The case of self-proclaimed "investigative blogger" Crystal Cox took another turn as the Ninth Circuit reversed and remanded the case against her.   The decision gives greater First Amendment protection to bloggers than the stingy view taken by the District Court.   However, it also recognizes that trustees are not public figures entitled to less deferential review.   The case is Cox v. Obsidian Finance Group, No. 12-35238 (9th Cir. 1/17/14), which can be found here.    I have previously blogged about the case here and here. What HappenedSince I have already written extensively about the case, I will just quote the Ninth Circuit's excellent summation of what happened here.Kevin Padrick is a principal of Obsidian Finance Group, LLC (Obsidian), a firm that provides advice to financially distressed businesses. In December 2008, Summit Accommodators, Inc. (Summit), retained Obsidian in connection with a contemplated bankruptcy. After Summit filed for reorganization, the bankruptcy court appointed Padrick as the Chapter 11 trustee. Because Summit had misappropriated funds from clients, Padrick’s principal task was to marshal the firm’s assets for the benefit of those clients.After Padrick’s appointment, Crystal Cox published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations. This defamation suit ensued.The district court held that all but one of Cox’s blog posts were constitutionally protected opinions because they employed figurative and hyperbolic language and could not be proved true or false. Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1232–34 (D. Or. 2011). The court held, however, that a December 25, 2010 blog post on bankruptcycorruption.com made “fairly specific allegations [that] a reasonable reader could understand . . . to imply a provable fact assertion”—i.e., that Padrick, in his capacity as bankruptcy trustee, failed to pay $174,000 in taxes owed by Summit. Id. at 1238. The district judge therefore allowed that single defamation claim to proceed to a jury trial. The jury found in favor of Padrick and Obsidian, awarding the former $1.5 million and the latter $1 million in compensatory damages. Opinion, pp. 3-4.After trial, noted First Amendment scholar Eugene Volokh (who contributes to the excellent Volokh Conspiracy blog) agreed to represent Ms.Cox on a pro bono basis.  She also drew high-powered amicus support from the Reporters Committee for Freedom of the Press and Scotusblog.com.   The Issues on AppealThe First Amendment is an interesting thing.   It allows anyone to say almost anything without prior restraint from the government.   However, that does not mean that free speech is free of consequences.   However, whether speech can be punished as defamatory depends on both the situation of the speaker and the identity of the person spoken about.  As explained by the Court of Appeals:The Supreme Court’s landmark opinion in New York Times Co. v. Sullivan began the construction of a First Amendment framework concerning the level of fault required for defamation liability. 376 U.S. 254. Sullivan held that when a public official seeks damages for defamation, the official must show “actual malice”—that the defendant published the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280. A decade later, Gertz v. Robert Welch, Inc., held that the First Amendment required only a “negligence standard for private defamation actions.” 418 U.S. 323, 350 (1974). This case involves the intersection between Sullivan and Gertz, an area not yet fully explored by this Circuit, in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions. Opinion, pp. 8-9.Crystal Cox had argued that she was entitled to be protected under the First Amendment but the District Court would have none of it.  It instructed the jury that “Defendant’s knowledge of whether the statements at issue were true or false and defendant’s intent or purpose in publishing those statements are not elements of the claim and are not relevant to the determination of liability.”   According to the District Court, Cox's speech did not relate to a matter of public concern because she did not meet the traditional definition of a journalist.   Among other things, she was not trained as a journalist, did not interview sources and did not seek to present both sides of a story.   The District Court also held that Padrick would not have been thrust into public controversy but for Cox's posts about him.The Court of Appeals summarized Cox's position on appeal as:Cox does not contest on appeal the district court’s finding that the December 25 blog post contained an assertion of fact; nor does she contest the jury’s conclusions that the post was false and defamatory. She challenges only the district court’s rulings that (a) liability could be imposed without a showing of fault or actual damages and (b) Padrick and Obsidian were not public officials. Opinion, p. 7.  The Ninth Circuit's RulingThe Ninth Circuit conclusively rejected the argument that the institutional media is entitled to greater protection under the First Amendment than other speakers.   It quoted the recent Citizens United decision for the proposition that We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.Citizens United v. Federal Election Commission, 558 U.S. 310, 352 (2010). The Court concluded that the professional media were not entitled to greater protection than anyone else so that the identity of the speaker was constitutionally irrelevant.  Instead, the critical issues were whether the plaintiff was a public figure and whether the speech related to a matter of public concern.The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones. We therefore hold that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants.Opinion, pp. 11-12.Having reached this conclusion, the Court still had to analyze whether Cox's speech was in fact related to a matter of public concern and whether Padrick was a public figure.   The Court had little difficulty ruling for Cox on the first issue.The December 25 post alleged that Padrick, a court appointed trustee, committed tax fraud while administering the assets of a company in a Chapter 11 reorganization, and called for the “IRS and the Oregon Department of Revenue to look” into the matter. Public allegations that someone is involved in crime generally are speech on a matter of public concern. (citations omitted). This court has held that even consumer complaints of non-criminal conduct by a business can constitute matters of public concern. (citations omitted). Cox’s allegations in this case are similarly a matter of public concern. Padrick was appointed by a United States Bankruptcy Court as the Chapter 11 trustee of a company that had defrauded its investors through a Ponzi scheme. That company retained him and Obsidian to advise it shortly before it filed for bankruptcy. The allegations against Padrick and his company raised  questions about whether they were failing to protect the defrauded investors because they were in league with their original clients.Opinion, pp. 13-14.However, the Court did support the trustee on the public figure issue.Although bankruptcy trustees are “an integral part of the judicial process,” (citation omitted), neither Padrick nor Obsidian became public officials simply by virtue of Padrick’s appointment. Padrick was neither elected nor appointed to a government position, and he did not exercise “substantial . . . control over the conduct of governmental affairs.” (citation omitted). A Chapter 11 trustee can be appointed by the bankruptcy court for cause or when the best interests of the estate or creditors dictate. (citation omitted). But, an appointed trustee simply substitutes for, and largely exercises the powers of, a debtor-in-possession. (citation omitted). No one would contend that a debtor-in-possession has become a public official simply by virtue of seeking Chapter 11 protection, and we can reach no different conclusion as to the trustee who substitutes for the debtor in administering a Chapter 11 estate. We also reject Cox’s argument that Padrick and Obsidian were “tantamount to public officials” because they received compensation from the court for their efforts. In Gertz, the Supreme Court held that there is “no such concept” as a “de facto public official,” (citation omitted), and that a lawyer who had served briefly on several housing committees appointed by the mayor of Chicago, but who had never held “any remunerative governmental position,” could not be considered a public official. Id. Bankruptcy trustees do not receive remuneration from the government. Their compensation is drawn from the assets of the Chapter 11 estate they administer. (citation omitted). They are not rendered public officials by virtue of that compensation, any more than is an expert witness compensated by the estate. Opinion, pp. 15-16.   Finally, the Court affirmed the District Court's ruling that Cox's most outrageous and inflammatory statements were non-actionable.Padrick and Obsidian argue on cross-appeal that the district court erred in granting Cox summary judgment as to her other blog posts. Among other things, those posts accuse Padrick and Obsidian of engaging in “illegal activity,” including “corruption,” “fraud,” “deceit on the government,” “money laundering,” “defamation,” “harassment,” “tax crimes,” and “fraud against the government.” Cox also claimed that Obsidian paid off “media” and “politicians” and may have hired a hit man to kill her.In Milkovich v. Lorain Journal Co., the Supreme Court refused to create a blanket defamation exemption for “anything that might be labeled ‘opinion.’” (citation omitted). This court has held that “while ‘pure’ opinions are protected by the First Amendment, a statement that ‘may . . . imply a false assertion of fact’ is actionable.” (citation omitted). We have developed a three-part test to determine whether a statement contains an assertion of objective fact. (citation omitted). The test considers “(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”(citation omitted).As to the first factor, the general tenor of Cox’s blog posts negates the impression that she was asserting objective facts. The statements were posted on obsidianfinancesucks.com, a website name that leads “the reader of the statements [to be] predisposed to view them with a certain amount of skepticism and with an understanding that they will likely present one sided viewpoints rather than assertions of provable facts.” (citation omitted) The district judge correctly concluded that the “occasional and somewhat run-on[,] almost ‘stream of consciousness’-like  sentences read more like a journal or diary entry revealing [Cox’s] feelings rather than assertions of fact.” (citation omitted). As to the second factor, Cox’s consistent use of extreme language negates the impression that the blog posts assert objective facts. Cox regularly employed hyperbolic language in the posts, including terms such as “immoral,” “really bad,” “thugs,” and “evil doers.” Id. (quoting blog posts). Cox’s assertions that “Padrick hired a ‘hit man’ to kill her” or “that the entire bankruptcy court system is corrupt” similarly dispel any reasonable expectation that the statements assert facts.And, as to the third factor, the district court correctly found that, in the context of a non-professional website containing consistently hyperbolic language, Cox’s blog posts are “not sufficiently factual to be proved true or false.” (citation omitted).Opinion, pp. 16-17.What It MeansPart 1--The Founding Fathers Would Be Pleased I have quoted large portions of the opinion because I think that Judge Hurwitz wrote a masterful opinion and said it better than I could have.   In my view, this opinion is an important contribution to First Amendment jurisprudence in the internet age.   The District Court's ruling appeared to be based on the elitist construct that only the professional media are entitled to speak on matters of public concern.   It is my belief that the founding fathers, who were well acquainted with the pamphleteering of citizen journalists, would have been appalled at the District Court's attempt to distinguish between speakers instead of speech.    In case I haven't been entirely clear, the Ninth Circuit corrected an egregiously misbegotten ruling from the lower court.Part 2--Who Is a Public Figure?The Court's ruling on who is a public figure is interesting.   Previously I did not think that public figure was synonymous with public official.   However, it is something that I have wondered about.  A few years back there was a case from Austin that suggested the issue.   Franco v. Cronfel, 311 S.W.3d 600 (Tex. App.--Austin, 2010, no pet.) is an intriguing case that does not quite get there.   In that case, an attorney was appointed as a state court receiver.   The judgment creditor became disenchanted with the receiver's performance and posted a report on a site called the Ripoff Report.   On motion for summary judgment, State District Judge Scott Jenkins held that the receiver was a public figure, but denied the defendant's motion that there was no evidence of actual malice.   The Court of Appeals affirmed the summary judgment ruling that actual malice had not been negted but found that it lacked jurisdiction over the appeal of the public figure ruling.   Because the court of appeals assumed that the receiver was a public figure for purposes of appeal but did not ultimately reach the issue, the case is intriguing but not substantive.  In my view, a person does not become a public figure merely by being appointed trustee of a bankruptcy case.    However, I think that a trustee or other court-appointed official could become a public figure based on either the importance of the case or the trustee's efforts to seek the limelight.  To paraphrase Skakespeare, some are born public figures, some achieve public figure status and some have public figure status thrust upon them.   Attorneys are shameless self-promoters.    When an attorney or a trustee gets a really big case, it is human nature to want to proclaim it to the world since media exposure is free marketing.   In other cases, the trustee finds himself participating in a case of such public importance that he becomes a public figure whether he wants to or not.  In my view, Irving Picard is an example of both.    As the trustee for Bernard L. Madoff Investment Securities, LLC, Mr. Picard became a player in one of the largest scandals of our time.  According to the Huffiington Post,A little more than two years into the job, the 69-year-old Picard, who was plucked from obscurity to recover the money, has become America's most unlikely celebrity lawyer, and perhaps its most underrated.While Mr. Picard may not have consciously sought public figure status, any time you can be described as "America's most unlikely celebrity lawyer," you are one.  Part 3--Hyperbole and DefamationFinally, the court's discussion of the difference between defamation and hyperbole, while legally correct, is sadly ironic.   What it says is that if you are going to attack someone, the more outrageous and unprovable your statements are, the less likely it is that someone could successfully file a defamation suit against you.An example.   Let's say that I have a case with bankruptcy trustee Ron Satija and get mad at him.  I post the following statement on my blog:Ron Satija is an arrogant snot of a trustee who uses his East Coast education to oppress anyone he considers to be his social inferior.   The elitist indoctrination he received at Columbia serves him well in destroying the lives of ordinary Texas citizens.In this example, the only factual statements are that Ron Satija is a trustee and that he was educated at Columbia which is on the East Coast.   The rest is hyperbole and opinion.   The factual statements are undisputably true because Ron is a trustee and he did attend Columbia.   While the remaining content is calculated to make people think bad things about Ron Satija, they are protected under the First Amendment.   On the other hand, assume I said:At a 341 meeting on January 23, 2014, bankruptcy Trustee Ron Satija told debtor John Smith, "You are an ignorant cowturd who attended Texas A & M University.  Therefore, I shall object to your discharge."At this point, I have made a factually provable statement.   There either was a 341 meeting held for John Smith or there was not.   The statement was either made or it was not.   While the statement conveys the same sentiment as before, it is now making an assertion of objective fact.  I guess that the lesson is that while we must all suffer the slings and arrows of outrageous fate, we can only sue if those arrows are tipped with factually verifiable statements.Note:  Ron Satija is neither an arrogant snot nor an East Coast elitist.   He is a well-mannered and gracious individual.   I used Ron as an example because he is a friend and fellow blogger.   You should check out his blog at www.spirituallybankrupt.com.  

Court Is In Chicago If you live in Chicago or any part of Cook County, Illinois and file bankruptcy, then your court date is going to be in downtown Chicago. The court will take place at the Dirksen Federal building which is located at 219 South Dearborn Street in Chicago. The court date is in reality+ Read MoreThe post Do I Have To Go To Court In Chicago If I File Bankruptcy? appeared first on David M. Siegel.

Filing chapter 13 bankruptcy is not a one-shot deal. You do have the ability to file another chapter 13 bankruptcy case should your first case fail states Chapter 13 bankruptcy attorney David Siegel. No one sets out to fail in bankruptcy. Debtor’s and their counsel wish to file a perfect chapter 13 petition and to+ Read MoreThe post Chapter 13 Bankruptcy Attorney States “You Get More Than One Shot” appeared first on David M. Siegel.