Articles Posted in Chapter 7 Bankruptcy

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SSA-overpaymentThe Social Security Administration (“SSA”) assesses overpayments in any instance where it thinks it may have overpaid benefits.  This most commonly occurs when a recipient doesn’t timely report a change in circumstances, such as income.

In many cases, the overpayment may be caused by the SSA itself, when it fails to update its records after receipt of a change in circumstances.  Or the SSA may deposit benefits into someone else with a similar name.  There is no way for beneficiaries to independently verify whether they are receiving the correct amount of benefits every month and instead they must rely on the SSA’s calculations.

Overpayments can be made over a lot of years – even 20-30 years.  Frequently, a mistake is caught and a handful of years have gone by, and the money has long been spent, usually on reasonable and necessary living expenses.

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I’m usually reluctant to talk much about pending bills recently introduced because so much can happen before a bill becomes a law.  Remember that cartoon with the little bill walking from place to place?  Wow, that dates me a bit.

But odds are something along these lines will get passed this year in part as COVID 19 relief:  Student Borrower Bankruptcy Relief Act of 2019 and Protecting Homeowners in Bankruptcy Act of 2020  – the bill markups are found here.

If you have private student loans, we don’t need to wait for Congress.  We frequently can discharge those private, high interest loans right now.  If you’ve filed a bankruptcy if the past, we can reopen your case (as long as the bankruptcy pre-dates the loans themselves) and wipe the deck clear of many, if not most, private student loans.

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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgThis week I received an email from a borrower who believed that she didn’t have to make her private student loan payments due to COVID and the CARES Act.

Not true.  While many private lenders have indeed voluntarily agreed to forbearance of two to six months per a recent Wall Street Journal article, “For Student-Loan Borrowers, There is Some Relief – but That Isn’t the Whole Story“.  The article emphasized that these are uncertain times for all student loan borrowers, but especially those with private loans.

First, these short forbearances are coming to an end and decisions will need to be made.

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TBBBAThe TBBBA is entering the Zoom age for the Consumer Lunches starting at Noon August 4 and continuing the first Tuesday of every month. The Zoom coordinates will be sent later in a TBBBA email blast.
It’s bring your own lunch – but no commute! CLE credit.
First up is: The Intersection of Bankruptcy and Tenant rights: Monetizing FDCPA and FCCPA claims for tenants.
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CARES-ACT

Webinar: Why you should care about the CARES Act

May 20, 2020 at Noon

 

The Tampa Bay Bankruptcy Bar Association will be hosting a FREE Webinar via Zoom on May 20, 2020 from 12:00 to 1:30pm. Why you should care about the CARES Act and its impact on Student Loans, Foreclosure, Collection, and Consumer and Business Bankruptcy. Christie Arkovich, Jake Blanchard, Nicole Mariani Noel and Chapter 13 Trustee, Kelly Remick, will discuss provisions of the stimulus bill that expand or create options for Debtors in Chapter 13 cases as well as Small Business Debtors under Subchapter V and many more. Panelists will also discuss foreclosure, forbearance, collection and student loan impacts. No cost to attend. This will be a live webinar and will not be recorded. Register here.

Couldn’t come at a better time now that things are hoppin’ a bit more!  I encourage our colleagues to register for local insight to help represent our clients the best we can in these trying times

 

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It can be risky to reaffirm a mortgage in a bankruptcy, particularly when the property is underwater (worth less than what is owed), or you may need to move and sell quickly.  A reaffirmation agreement puts you back on the hook to pay for the full amount of the mortgage, including interest, taxes, insurance, foreclosure fees and costs after a bankruptcy, if you elect to keep the home.  Why would someone ever sign one of these?  Well, most mortgage companies do not report payments being made on a non-reaffirmed mortgage.  So how do you avoid the risk, while at the same time, benefit from timely payments being made which rebuilds credit?

SELF REPORTING MORTGAGE PAYMENTS

WHEN YOUR LOAN WAS NOT REAFFIRMED

The bankruptcy code does not require that you reaffirm, or sign a court order agreeing to continue the payments on your mortgage. But unless you are surrendering your house, you will want to continue paying because the house will eventually be foreclosed if you do not.

Mortgage companies will not report your payments to the three major credit reporting agencies (Experian, TransUnion, and Equifax) if you have not reaffirmed. It is possible, nonetheless, to still get your payment history included in your credit report, as follows:

  1. Request a payment history from the mortgage company. (The mortgage company is required by law to provide one every year free of charge.) There is no special form – just call your mortgage company and be persistent.
  2. File a dispute with the three credit reporting agencies, attaching a copy of the payment history.
  3. The credit reporting agency is required to verify the accuracy of the debt with the mortgage company within 30 days.
  4. At that point, the mortgage company can either:
  • Remain silent – the credit reporting agency must accept the information you provided; or
  • Accurately report information. The mortgage company would be hard pressed to explain how a payment history it prepared was inaccurate.
  • Repeat this process on a regular basis, to update the information.

Additionally, you should keep the payment history, since that can be provided to anyone you’re applying to for new credit.
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I just found an eye opening video by Gary Fraley, a certified bankruptcy attorney in California, on why debt relief companies should be avoided!

Watch the video – it’s short, to the point, and there’s a cool saddle in the back ground — looks like a former Texas transplant to California.  I kept looking for a cowboy hat, but that’s probably in his Ford truck hung on the rifle rack.  Okay, I may have been watching too many Ranches on Netflix lately!

www.youtube.com/watch?v=DP1BVHdsexc

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Courts are divided on this issue.  The answer may matter as to whether a debtor in bankruptcy must pass the means test.

The federal Bankruptcy Code defines consumer debt as debt incurred by an individual “primarily for a personal, family, or household purpose.” … The court may classify student loans as either consumer debt or non-consumer debt.

Some courts, like the court in In re Gentri, 185 B.R. 368, 373 (Bankr. M.D. Fla. 1995), assume that student loans are consumer debts, but do not analyze, whether student loans are “consumer debts.” See In re Dickerson, 193 B.R. 67, 70 (Bankr. M.D. Fla. 1996); In re Chapman, 146 B.R. 411, 416 (Bankr. N.D. Ill. 1992).

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The FCRA requires that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. Section 1681e(b).

That’s a high burden “maximum possible accuracy”!  And it is not being met.  In one over the top case of ours, despite a client providing proof of life, she was reported as deceased by her student loan servicer over and over again wrecking havoc on her credit report.

More typically we run into instances where student loans are incorrectly reported as being in default when in fact they are no longer owed due to a settlement or discharge in bankruptcy.  This in fact is becoming our bread and butter raising these types of claims.

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Filing bankruptcy for small businesses just got a whole lot easier!  The Small Business Reorganization Act of 2019 takes effect on February 19, 2020.  Some of the new features are that it adds a new subchapter V to Chapter 11 of the Bankruptcy Code which is good for small business bankruptcies because:

  • There are no quarterly trustee fees;
  • There is no absolute priority rule;
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