In In re Brown, 2013 WL 5493213 (Bankr. E.D. Ky, Oct 2, 2013) the Court found the pro-se debtor in civil contempt for failure to turnover property to the trustee, and entered a judgment against them for $147,851 in favor of the chapter 7 trustee and a moving creditor.  The debtor had initially filed under chapter 11 and converted to chapter 7.  The Court granted a motion by the trustee and creditor for turnover of specific property removed from one of the debtor's houses, including an engagement ring appraised at $65,000, and an accounting of all property purchased for more than $500 between January 1, 2008 and January 13, 2012.  When the debtor did not comply with this motion, the court held an evidentiary hearing on the movant's motion for contempt and sanctions   The trustee introduced the order sustaining the objection to exemptions and the turnover order, and through the debtor's testimony established that she did not fully comply with the turnover order, including turnover of the engagement ring.  The Court found the Debtor's testimony that she did not see the order not to be credible.  The Debtor also testified that she did not have and did not know what happened to other jewelry including a ring valued at $75,000 and other jewelry valued at $35,531 purchased on a cruise in April 2011.    The Court found power for contempt under §105 of the bankruptcy code, authorizing the court to take any action necessary or appropriate to carry out the court orders.   Civil contempt is designed to be remedial; to compel or coerce obedience to a court order or to compensate a party for another's noncompliance with a court order. In re Joint Eastern and Southern Districts Asbestos Litigation, 830 F.Supp. 1153, 1155 (C .D.Ill.1993 Civil contempt may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.” Int'l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994).   Three elements are must be shown by clear and convincing evidence to support a finding of civil contempt.  (1) the alleged contemnor had knowledge of the order which he is said to have violated; (2) the alleged contemnor did in fact violate the order; and (3) the order violated must have been specific and definite.” Glover v. Johnson, 138 F.3d 229, 244 (6th Cir.1998). Willfulness is not an element of civil contempt and intent to disobey the order is irrelevant. Rolex Watch, U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir.1996). Once the movant establishes his prima facie case, the burden shifts to the contemnor who may defend by coming forward with evidence showing that he is presently unable to comply with the court's order.  The Court noted that the movants were entitled to turnover of all property, including property with no market value.  The debtor's testimony that she did not know where the property was, and indicating that it might have been stolen, was found to be not credible.  The remedy for a finding of contempt is the actual damages incurred, shown by credible evidence, and attorneys fees.  Incarceration is also available for either civil contempt or criminal contempt.  The Court found that the value of property not turned over was $135,851 and added $12,000 in attorneys fees to arrive at the judgment amount of $147,851. 

Who Should Not file Bankruptcy? Ray came to see me last week, wanting to file bankruptcy.  Right away.  He had his first payment, seven hundred-dollar bills, set down on my desk. I told him, “no, not yet.  And not with me.”  Why did I tell him he should not file bankruptcy? Ray’s credit was shot. […]The post Who Should Not file Bankruptcy? appeared first on Robert Weed.

As many readers of our e-mails and blog are aware, if an individual resides in an apartment with a rent controlled or rent stabilized lease and files for personal bankruptcy under Chapter 7 of the Bankruptcy Code, the trustee assigned to the case can assume, assign and transfer the bankruptcy estate's rights and interests in the lease to the landlord, pursuant to § 365 of the Bankruptcy Code. In other words, if an individual resides in an apartment with a rent controlled or rent stabilized lease and the fair market rent of the apartment is significantly greater than the rent paid by the rent controlled or rent stabilized tenant/debtor, a Chapter 7 bankruptcy trustee can sell the bankruptcy estate's rights and interests in the lease to the landlord and remove the debtor/tenant from the apartment. A more complicated scenario occurs where a married couple are both signatories on a rent controlled or rent stabilized lease, but only one spouse files for Chapter 7 bankruptcy. Can the Chapter 7 bankruptcy trustee sell the bankruptcy estate's rights and interests in the rent controlled or rent stabilized to the landlord free and clear of the non-filing spouse to the landlord and remove the non-filing spouse from the apartment? While there are no reported decisions on point in the Southern or Eastern Districts of New York, § 363(h) of the Bankruptcy Codeallows a bankruptcy trustee to sell a bankruptcy estate's interest in property and the interest of a non-debtor co-owner in the property as a joint tenant, a tenant in common or a tenant by the entirety, but only if:1. Partition in kind of the property among the bankruptcy estate and the co-owners is impracticable;2. The sale of the bankruptcy estate's undivided interest in the property would realize significantly less for the bankruptcy estate than the sale of the property free of the interests of the co-owners;3. The benefit to the bankruptcy estate of a sale of the property free of the interests of co-owners outweighs the detriment, if any, to the co-owners; and4. The property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power.If a Chapter 7 Trustee decided to analyze the assumption, assignment and sale of a rent controlled or rent stabilized lease to which a non-debtor spouse is a party using the §363(h) factors, the lease could be at risk. A better strategy for a couple in this situation, if they want to keep the apartment, is to do an out of court workout with creditorsor file for bankruptcy under Chapter 13 of the Bankruptcy Code. Individuals or couples who are in debt and have a rent controlled or rent stabilized lease need to consult with an experienced personal bankruptcy attorney, such as Jim Shenwick.

Lucky us. Not. We have a  new, multipage model Chapter 13 plan in several Bay Area divisions.  It exalts mathematic precision over the intentions of the plan. Have the wrong number for the fixed monthly payments to particular creditors, and the money is distributed, willy-nilly, to unsecured creditors.  (There are other idiocies that I will surely complain to you about later.  This one will do for today.) Given the quality of the information we begin with, as bankruptcy lawyers, multiple modifications of plans are inevitable. The young lawyer at the training session wanted to know how the system was going to compensate him for the added effort. It’s going to be hard because he doesn’t keep time. He doesn’t know how much time a case takes now, in contrast to what a case will take under the new regime. Not good facts. How bankruptcy lawyers are paid In the decades I’ve been practicing consumer bankruptcy law, courts have broadly recognized a no-look fee.  I think San Jose’s Judge Grube coined the phrase. The no-look fee was the amount that he would approve for your work in a Chapter 13 without looking at your time records or other evidence of effort or accomplishment in a case. Most practitioners in our division embraced the idea.  Other courts adopted the approach. It seems that most practitioners threw out their billing programs or their time slips and felt liberated. Seductive, perhaps, but a bad move. What time records do for you Without time records, you are hostage to the sense of your judges as to how much time a case under BAPCPA takes. Very few bankruptcy judges came from the consumer practice.  They have no experience with the naivete, the disorganization, and the distraction that consumers display. How are you going to either make the case for an adequate increase in the no look fee, or make an application for the time required for each modification if you have no time records? “Well, Your Honor, it was a bunch of work”. I don’t think that will be persuasive. My sense is that the new San Francisco plan will increase the  time required by 25%.  Because I keep contemporaneous time records, I will know, on the small sample that my cases provide, what the increased time amounts to. I will have evidence.  And I will use it to be paid fairly. More I will be speaking on Getting Paid at the NACBA Fall Workshop later in October with Jed Berliner, of fee-only fame, and Maryland practitioner Brett Weiss.  We expect to allow time for an open discussion of pricing cases and collecting fees.  Join us in NOLA.  Image courtesy of Flickr and Thomas Hawk.    

Can filing bankruptcy make you smarter? A new book, Scarcity: Why Having Too Little Means So Much, explains why filing bankrutpcy can make you smarter about money. The book authors, Harvard Professor Sendhil Mullainatha and Princeton Professor Eldar Shafir, don’t talk about filing bankruptcy.  What they do talk about is how smart people get stupid, when things [...]The post Can filing bankruptcy can make you smarter? appeared first on Robert Weed.

   The Florida Department of Revenue was found in contempt for continuing to send collection letters to a debtor after the chapter 13 plan was confirmed.  The State appealed, and the contempt and attorney fee sanction was affirmed by the District Court in In re Gonzalez, 2013 WL 5308020 (S.D. Fla., Sept 20, 2013).  The State argued that there had to be specific injunctive language in the order confirming plan to prevent post-confirmation collection activity for child support arrearages.  Judge Marra ruled that  In re Rodriguez, 367 Fed. Appx. 25 (11th Cir.2010), cert. denied, ----U.S.---, 131. S.Ct. 128, 179 L.Ed.2d 34 (2010) supported the finding of contempt.   In Rodriguez the 11th Circuit found that the sending of post-confirmation collection letters by the Fla. D.O.R. violated the confirmed plan and affirmed the award of fees to Debtor's counsel.  Id. 367 Fed.Appx. at 30.  It also found the filing of claim had waived sovereign immunity.  Id.   Appellant's conduct was unambiguously proscribed by 11 U.S.C. § 1327(a). It was not necessary for the Bankruptcy Court to add anything additional to its order.    Finally, Judge Marra found that BAPCPA did not not change the result in Rodriguez.  Had Congress intended support obligation creditors to not be bound by orders confirming plans, it would have amended §1327 to so state.   .

   It is not uncommon for a complaint under §523 to be dismissed for failure to state a claim.  An amended complaint in these proceedings may well be time-barred under Rule 4007(c), Fed. R. Bankr. P.  unless it relates back to the original complaint.  This is the issue before the Court in In re Holland, 2013 WL 5314872 (Bankr. D.D.C. 2013).    The timely filed original and initial amended complaints were dismissed for failure to plead facts establishing the nondischargeability of  the debts under the various provision of §523(a) plead. The 2nd amended complaint was filed at 1:10 a.m. on the day following the expiration of the dischargeability bar date.  Rule 4007(c) generally requires any complaint objecting to the dischargeability of a debt to be filed within 60 days of the date first set for a meeting of creditors.  While this can be extended by the court, such extension must be requested before the expiration of the bar date.    Under Rule 15(c)(1)(B) Fed.R.Civ.P. (applicable in bankruptcy per Rule 7015, Fed.R.Bankr.P.) an amended pleading relates back to the original pleading if “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B).   The test being whether the original complaint adequately notified the defendants of the basis for liability the plaintiffs would later advance in the amended complaint.”Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866 (D.C.Cir.2008).  The Holland Court found that all the nondischargeability claims in the second amended complaint arise out of the same conduct, transaction, or occurrence set forth in Jones' first complaint.  While the factual allegations in the second amended complaint were more detailed than in the prior complaint, where such changes do not allege a new claim but rather simply renders prior allegations more definite and precise, the amendment relates back.  Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir.2004).    Even when the plaintiff added a new count under §523(a)(15) not included in the prior complaint, the Court still found that it related back.  The Court found that the original complaint did claim that Jones was entitled to half of the proceeds from the intended sale pursuant to the parties' divorce, therefore it gave adequate notice to the defendant that her alleged failure to sell the Property and give half of the proceeds to Jones incident to their divorce was a basis for liability.    The Court also found that Plaintiff adequately demonstrated excusable neglect under Rule 9006(b)(1), Fed. R. Bankr. P. to warrant an extension after the deadline had passed.  While no formal motion under Rule 9006(b)(1) was filed, the Court found that the oral argument of counsel at the hearing on the Defendant's motion to vacate the order extending time to file the complaint was an implicit motion for such extension.   

If you filed bankruptcy through no fault of your own, or if you suffered a foreclosure for reasons beyond your control, it is now possible to get an FHA insured loan. You can get a new mortgage  one year after bankruptcy or foreclosure if you can show you had a big cut in pay, a big decline in your business income or became unemployed for no fault of your own.  And as in the past, you can be eligible if you suffered a medical emergency or recently became a widow or widower. You can’t get on this fast track to a new mortgage if you quit your job, or if you were fired for cause. The new FHA policy is much more liberal than the harsh policies of Fannie Mae and Freddie Mac.  These agencies require a waiting period of 3 years after completion of a foreclosure or discharge from bankruptcy if there are “extenuating circumstances” and up to a seven year waiting period otherwise. There are many bogus sources for FHA financing.  However, you can  find many answers to your questions about FHA loans at  http://portal.hud.gov/hudportal/HUD?src=/FHAFAQ.  You can also find an FHA approved lender at http://www.hud.gov/ll/code/llslcrit.cfm To qualify for a mortgage after bankruptcy or to qualify for a mortgage after foreclosure, it’s very important that a bankruptcy case or the foreclosure case to be completely closed.  Lenders frequently fail to complete a foreclosure, especially for condominiums and homes with a home owner association because they don’t want to assume the costs of home-ownership.  This leaves the owner stuck holding the bag.  It also leave the owner ineligible to look for a new mortgage. Lakelaw has developed innovative tools to force lenders to take action to conclude a foreclosure case and allowing borrowers to have a fresh start. We at Lakelaw value our former clients and friends and hope you gain value from our periodic messages to you about developments in bankruptcy and foreclosure. We especially appreciate your referrals of friends, family members and others you know who can benefit from our services.  Thank you for your continued interest in and support of Lakelaw – your financial lifesaver ™ We continue to represent people and businesses in bankruptcy and foreclosure defense in Illinois and Wisconsin.  We do so with care, kindness, courtesy, respect, professionalism and dedication. And we always will.

Sam and Sally were victims of payday loans in Wisconsin.  The payday lenders were sucking large sums of money from their bank accounts every month. Lakelaw filed bankruptcy for Sam and Sally to stop the payday lenders. The automatic stay for bankruptcy in Wisconsin serves as a legal stop sign.  If a creditor tries to collect a debt even after we file a chapter 7 case in Wisconsin or even a chapter 13 case in Wisconsin, Lakelaw can sue that creditor for damages and attorneys fees to make them stop. Bankruptcy stops payday lenders from collecting.  Bankruptcy stops payday lenders from taking money from peoples’ bank accounts.  But Sam and Sally’s payday lenders ignored the law.  They took money from Sam and Sally’s bank account after Lakelaw filed their bankruptcy.  Sam and Sally got hit with bank fees and overdraft charges. Lakelaw informs creditors after a bankruptcy filing our client has filed a bankruptcy case, whether under chapter 7 or chapter 13.  This way, the creditor can’t complain they didn’t know about the case.  If they keep collecting anyway, it’s a willful violation of the automatic stay.  We also tell our clients to stop any automated withdrawals from their bank account.  We frequently tell our clients to close their bank accounts and open new ones so the creditors can’t get their hands on their money. Most honest creditors stop collection right after we file the bankruptcy case.  But Lakelaw will sue and collect from those who insist on doing the wrong thing, Creditors with no notice of filings might not be willingly ignoring the bankruptcy stay when they act, but if they get notice and still refuse to correct their behavior, a court can rule they were liable for their actions after getting the notice. Lakelaw helps our clients recover money taken from them after filing, even if it means extra time on the phones and fax lines.  It’s part of completely representing our clients from start to finish and providing them with true debt relief. Lakelaw also protects people after bankruptcy taking advantage of consumer protection laws such the Fair Debt Collection Practices Act, the Telephone Collection Practices Act and by enforcing the discharge injunction.  After a bankruptcy is complete,  creditors can’t collect on claims which arose before the bankruptcy. Lakelaw insists that such creditors stop.  And if they don’t we sue them and collect for our clients. We also help our clients restore credit after bankruptcy by reviewing their credit reports and correcting errors. When facing financial crisis, whether in Wisconsin or Illinois, let Lakelaw fight for you.  Remember, Lakelaw is your financial life-saver ™.  We help people with bankruptcy and foreclosure in Illinois and Wisconsin.  

Taxes were due prior to filing. They are discharged right?The answer is, it depends. Taxes and their dischargeability depend on the type of taxes, what tax year they are form, when they were filed, when they were assessed and whether they are now secured by any real estate.We will discuss the most typical type of taxes that Debtors want to discharge. That is state and/or federal income taxes. In order to taxes to be discharged they must meet the following criteria:Taxes must be for a year that is atleast 3 taxes years ago from prior the date the bankruptcy is filed; AND Example: The bankruptcy is filed on August 1 2013. The 3 tax years that were due at the time of filing are 2012, 2011 and 2010. This means that any debt owed for those years is not discharged. However, Tax years 2009 and prior can be discharged through the bankruptcy IF it meets the remaining criteria detailed below.Taxes must have actually been filed atleast 2 taxes years ago from prior the date the bankruptcy is filed; AND Example: The bankruptcy is again filed on August 1, 2013. The taxes that are owed are for 2008 meaning that they pass the test above in that they were filed more than 3 tax years ago as of the date the bankruptcy was filed. So now we look to when the taxes were actually filed. In our example we will say the taxes were actually filed on July 10, 2011. Given that July 10, 2011 is more than 2 years prior to the date the case was filed, the taxes are eligible to be discharged through bankruptcy IF it meets the remaining criteria detailed below.Taxes must have actually been filed atleast 180 days ago from prior the date the bankruptcy is filed; AND Example: Example: The bankruptcy is again filed on August 1, 2013. The taxes were for tax year 2008, they were actually filed July 10, 2011 and were assessed December 15, 2011. Given that they meet the criteria above and they were assessed more than 180 days prior to the date the bankruptcy was filed, the taxes are eligible to be discharged through bankruptcy IF it meets the remaining criteria detailed below.There must not already be a lien placed on your property, real estate or otherwise.Even if the taxes meet all the criteria above, if there is a lien against your real estate the debt cannot be discharged through a bankruptcy.