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ABIToday the American Bar Institute (ABI) Consumer Bankruptcy Committee presented an excellent webinar about the new bankruptcy bill pending in the House.  Basically, the House would eliminate the existing Chapter 7 and 13, and replace them with a new Chapter 10 under the Consumer Bankruptcy Reform Act of 2020.

While this is a major overhaul and expectations are low that it would pass as is, there is a good possibility that many of the points within may be included in various stimulus bills and are important to note for the future.  I am not expressing an opinion for or against any of these items.  I’ve included a short summary below:

The first goal was to streamline the process and make it cheaper:

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As the owner of a small bankruptcy law practice in Tampa, Florida, we were often thought of as the epicenter of the great recession and foreclosure crisis back in 2008-2012.

One thing that always made a big impression on me, was the number of people who genuinely believed and tried their very best to catch up with their bills once they became re-employed.  These were folks who unfortunately had to run up their credit cards when not working, only to encounter high interest rates and an inability to catch up and actually pay down the balance even after they got a good paying job.  Then I had to tell them that they could no longer file a Chapter 7 – the full bankruptcy.  Instead, they were limited to filing a Chapter 13 – and partially or even worse, fully repaying the debt.  Now this doesn’t always happen, but if you’re making 80k, are single and filing bankruptcy, it could.  And often did.

Don’t be this person.  Consult a bankruptcy attorney if you’ve had to run up your credit cards or incur a pile of debt whether medical expenses, unpaid rent, etc.

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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgThe question as to whether the private student loans were incurred “solely to pay qualified education expenses” under 26 U.S.C. Section 221(d)(1) is where these cases are won or lost.

In Conti v. Arrowood Indemnity Co., No. 20-1172 (6th Cir. 12/14/20), the Court affirmed a bankruptcy court’s judgment against the borrower, and refused to consider arguments that were not raised at the trial court level.

Why is Conti decision important?  Two reasons.  First, it put a lot of emphasis on the purpose of the loans – as opposed to their actual use.  Court vary on this approach and it may depend upon where you live as to what approach is used by your courts.  Second, the Sixth Circuit emphasized the need to fully flesh out all available legal arguments and facts at the trial court level.

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The most important thing about being a POA is to sign as POA! If you are assisting an elderly person with his or her finances, including contracting with vendors for services, such as home health services, assisted living arrangements, under a durable power of attorney, you must make clear to the vendor of your role as POA and write out the letters “POA” next to your signature!

Here’s why:

I was being sued by a home health care company which I hired to supplement my father’s care while at an assisted living facility even though I signed for such care under a durable power of attorney. After my father passed away, debt collectors contacted me regularly over the alleged balance of his account of well over $10,000, causing me to be worried, stressed out, and feeling very desperate until talking and working with Ha Dao, an attorney at Christie D. Arkovich P.A., who ultimately got the case dismissed. I would recommend the firm to anyone who has a need for legal services. The result these lawyers delivered far exceeded my expectation, but the best part is it gives me back my peace of mind!

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Dementia may cause major financial problems long before diagnosis – this was the headline in a recent Washington Post article.

Often, family members are the first to notice something awry.  The signs could include things like missing critical medications, or putting last night’s leftovers in the toaster oven or microwave instead of the refrigerator – only to be found a couple days later.  Ewww.   Yes, this is exactly what my family members did as they aged.

Or, you may be helping with organization of the mail and bills and start to see funny things going on.  Things that do not appear normal.

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Despite Secretary DeVos summarily denying virtually every Borrower Defense to Repayment application that was ever filed under her watch, don’t give up hope!

The Judge in Sweet v. DeVos just ruled that Secretary DeVos must give prior notice to the Court before denying any more borrower defense claims from student loan borrowers cheated by their school.  The court had threatened to enjoin the agency from issuing borrower defense denials, which prompted the Department of Education to stop voluntarily.

Now that the the tide of denials has stopped, the key is whether the Judge will vacate the tens of thousands of denials that were sent to 94% of borrower defense applicants since June 2019.  The class members have asked the Judge for an injunction and to vacate the prior denials – and is taking depositions now of officials with the Department of Education.

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Are you STILL having problems with your mortgage servicer after catching up with your mortgage while in a Chapter 13?

Are you being charged a huge sum to catch up even after the bankruptcy is over?  A mortgage servicer is required by federal law to perform an annual escrow analysis on all loans for which it manages an escrow account.  But do they always do this?

Are you suffering not only from payment shock, but also negative credit reporting for these alleged deficiencies?

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Good news.  There’s lots of money left in TEPSLF.  700 million was appropriated and as of September 2020, only about 87.5 million had been discharged under TEPSLF.  There is a new form here: https://studentaid.gov/sites/default/files/public-service-application-for-forgiveness.pdf.

Under the new form, you don’t have to apply for regular PSLF first, be denied, and then apply for TEPSLF.  And even more important, as I read the new form, you don’t have to wait until 10 years to determine if your prior “wrong plan payments such as those under the Graduated or Extended Plans” counts or not.  That is huge for someone wanting to make life decisions about whether to remain in PSLF a few more months/years for the win — or bail and start perhaps a higher income position in the private world or start their own business!

What is TEPSLF?  This is the fund that Congress set up to help those who were in the wrong payment plan so their student loan payment didn’t count toward Public Service Loan Forgiveness.  It does not fix the FFEL loan versus Direct loan fiasco.

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Miller-SL-facetime-11-24
Join us tomorrow at noon EST/ 11:00 CST for a Facetime Interview between Jamie (Miller and Miller in Wisconsin) and Christie (Arkovich Law in Florida) as we discuss why NO ONE should feel compelled to return to work right now, just to be able to pay their student loans.

There are new avenues to say “Goodbye” to both federal and private student loans in many situations!  Things that everyday people and even your average bankruptcy attorney have no idea about!  NONE of these things we are doing for clients right now involve a future Act of Congress.  None.

“A lot of people, even some of the lawyers who represent consumers, thought for years that you really shouldn’t even try because there’s not a chance you’ll win, but I think everyone is looking at it now with sort of a fresh look,” says John Rao, an attorney with the National Consumer Law Center.

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