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bank-owned-foreclosureThere a lots of reasons a debtor needs to file a bankruptcy.  However, debtors should be warned that they are likely giving up valuable rights to fight a foreclosure of their home if they do so — unless they reaffirm the mortgage.  Over the last few years, many debtors elected not to voluntarily reaffirm an underwater home — this would allow them to be personally sued for any deficiency balance even after the bankruptcy was over.  Another problem is the decision to reaffirm sometimes comes up before a loan modification review is complete and debtors aren’t sure whether reaffirmation is in their best interest.

Bankruptcy case law has been building in various Florida jurisdictions over this conflict.  Many courts have seen this as an issue of debtors “having their cake and eating it too” when debtors are released of their liabilities under the mortgage, but yet they can continue to fight the foreclosure and live rent free.

In response to this dilemma, Governor Scott just signed a bill on March 26, 2018 that stops defendants from defending a foreclosure if they have previously agreed in bankruptcy to surrender the property to their lenders.

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oopsWould you know what to do if the Social Security Administration mailed you a letter stating that you have been overpaid and that you owe the government tens of thousands of dollars?  No problem, this oversight can be eliminated in a bankruptcy filing.  My colleague, attorney Jonathan Ginsberg in Atlanta, Georgia practices both bankruptcy law and Social Security law and I asked him to answer the question “can bankruptcy help you if you owe Social Security for a disability overpayment?”  Here is what Jonathan says:

Surprisingly, the answer is yes – as a general rule Social Security disability overpayments are dischargeable in bankruptcy.  You can use Chapter 7 to wipe out overpayment claims or Chapter 13 to pay back these claims as general unsecured debts.

Why Social Security Disability Overpayments Happen

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We have rented out our second conference room as an office and need to sell the furniture by April 1 if possible.  There is an antique oak round table, with two leaves to extend its size, an antique oak bureau and four small chairs.  Two single file cabinets free to a good home, fair condition.   May be able to deliver if local to South Tampa.  Call our office at 813-258-2808 or email me at christie@christiearkovich.com if interested.  Thanks!

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Reports have been surfacing that the Department of Education is kicking borrowers out of Income Driven Plans when they file bankruptcy.  It makes no difference if they are in a Chapter 7 or 13.  It also doesn’t matter if the debtor is current in their payments.  The National Association of Consumer Bankruptcy Attorneys (NACBA) views this as a direct violation of 11 U.S.C. 525 (Protection against Discriminatory Treatment).

There are ways to counter this and remain in an Income Driven Plan to continue progress toward debt forgiveness including Public Service Forgiveness.  A new development is spreading across the country to file what is called the Buchannan provisions in a Chapter 13 Plan.  We have recently adopted this in Tampa, Florida.

On January 5, 2018, Trustee John Waage and Judge Catherine McEwen agreed to the following Non-Conforming language in In re Hyland, 8-17-bk-01564-CPM that now allows for Income Driven Repayment Plans concurrently with a Chapter 13.

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nursing-care-ALF
One common problem encountered by caregivers right after they’ve checked in their loved one at a local nursing home or Assisted Living Facility is whether the facility is one that is covered by the elderly parent’s Long Term Care Insurance policy.  Does it have enough staff?  Enough beds? 24/7 or other nursing care available?  What is the facility called and how is it licensed?

Unfortunately, the wrong answers to any of these questions may be grounds for the insurance company to deny coverage.  Rather than moving your loved one to another facility, or incurring the out-of-pocket expenses of the preferred location, reach out to a consumer or insurance attorney for help.  Most attorneys experienced in this area offer a free intake analysis or consultation to determine if legal representation is warranted.  Many represent the client on a contingency basis or hourly basis for short term matters with reasonable payment plans.

Administrative exceptions can be asserted to keep your loved one in the facility of choice.  Often it may be the threat of a lawsuit or public exposure to convince an insurance company to do what is right.

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If you are in default on a federal student loan, one option to cure the default is to enter into a 9 or 10 month rehab plan to cure the default.  This can be a paperwork nightmare, with the result ending in wage garnishment if you are not careful.  Once a garnishment starts, it cannot be stopped for five months.  That means that you have to pay a negotiated rehab payment for nine months during which you’ll have 10 paychecks garnished.  Most people’s finances cannot suffer that.

So it’s important to do this right.  Sometimes that doesn’t mean doing it yourself if this is a process you are unfamiliar with.  See what a rep for ACSI (Automated Collections Services, Inc.) said about working with our firm recently.  John advised: “he really appreciated how detailed the firm was with advising them of our client’s situation and how he appreciated that we submitted the supporting documentation straight away. He noted that if other firms implemented a system like ours, it would make his job that much easier. He’s been dealing with student loans and collections for 30 years now and has never come across a firm that has been as thorough with addressing a situation and helping to swiftly rectify it.”

Since this conversation, John has drafted and sent over the garnishment release notice to our client’s employer and had one of his associates follow up with us to get our client on an affordable repayment agreement.  This client approved for a $5.00 rehabilitation plan.

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Ignoring your debtor’s federal student loans in their Chapter 13 bankruptcy can have catastrophic circumstances.  While fixing vehicle, credit card and mortgage debt, you may have inadvertently allowed a debtor’s $100,000 federal student loan to balloon into nearly $150,000 by doing nothing.  This is because the standard procedure of the Department of Education is to place these loans into forbearance during a bankruptcy.  However, now in Tampa, we are permitted to use the following Non-Conforming Provision in Chapter 13 Plans to permit our clients to enroll in Income Driven Plans and even Public Service Loan Forgiveness whenever eligible.

On January 5, 2018, Trustee John Waage and Judge Catherine McEwen agreed to the following Non-Conforming language in our client’s case, In re Hyland, 8-17-bk-01564-CPM that now allows for Income Driven Repayment Plans concurrently with a Chapter 13.

The permitted language:

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health-ins-policy
When a parent reaches the point of needing long term medical or assistive care, sometimes a family member cannot locate the actual policy even if they know a long term care insurance policy exists.  How do you get a copy of the policy?  One tactic used by insurance companies is to delay everything – including the simple task of complying with a request for a copy of the policy itself.  They also know that if the policy’s language (terms and conditions of coverage) is not consulted early on, damaging statements regarding the condition of the insured and the type of care needed are often made to the detriment of obtaining coverage for the insured.

Knowledge of and citation to the Florida statutes should help to get a copy of the long term care policy asap.

Florida law requires insurance companies to promptly communicate with policyholders:  “acknowledge and act promptly upon communications with respect to claims.”  Fla. Stat. § 626.9541(1)(i)3.c.  In addition, another Florida statute requires the insurance company to represent policy provisions accurately and relate claim decisions to applicable policy language.  See Fla. Stat. § 626.9541(1)(i)3.b and Fla. Stat. § 626.9541(1)(i)3.f, respectively.

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One lesser discussed provision of the new tax bill passed at the end of 2017 provides great news for student loan borrowers.  Borrowers who have their loans canceled due to death or disability are no longer taxed for the forgiveness.  This also applies to those parents who have taken out Parent Plus loans for their children and their child dies (there is no forgiveness of a Parent Plus loan if the child becomes disabled, it is the parent who must be disabled).  The new law takes effect January 1, 2018.  Those with loans discharged prior to 2018 are still potentially taxable.  However, those with disability discharges should be able to argue that the loan is not actually discharged for tax purposes until the three-year monitoring period has ended – this is also when the 1099-C is sent.

This tax relief for student loan borrowers is set to expire at the end of 2025.

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get-rid-of-sl-in-bk
There are a ton of people who believed their student loans were discharged when they loans were simply listed in their bankruptcy.  It may have been years before the private student loan companies started to communicate with the borrowers to collect this debt which added to that impression.

As it turns out, there may be a way to argue this after all – in instances involving private loans.  Private student loan lenders have to prove their loans are in fact “qualified education loans” and meet other criteria in order to be exempt from a general discharge.  We are now filing cases where we do not believe the private lenders can meet this burden and the loans are and should have been considered discharged all along.  This opens the lender and servicer to a potential FDCPA and FCCPA case if it has tried to collect on previously discharged debt.  Moreover, it also opens up the lender to potential claims to refund monies paid toward these loans since discharge.

An easy way around this would have been for the private student loan lenders to have filed their own adversary actions in the debtor’s bankruptcy to obtain a declaratory judgment that its loans were excepted from the general discharge.  However, this was never done.

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1520 W Cleveland St
Tampa, FL 33606
Phone: (813) 258-2808
Fax: (813) 258-5911
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