Ron Holmes Bankruptcy Attorney Realtor and Qualifying Broker for Stetson Realty

Transcription

1 Ron Holmes Bankruptcy Attorney Realtor and Qualifying Broker for Stetson Realty

2 University of New Mexico B.S. in Economics and Political Science double major 1991 University of New Mexico School of Law Juris Doctor 1996 admitted to State Bar of New Mexico 1996 Law Offices of Ron Holmes solo practitioner since 1999 Qualifying broker for Stetson Realty Realtor since 2001 Former Bankruptcy Trustee

3

4 Governing law title 11 United State Code Federal Law but involves state law Two most common ways of filing in New Mexico (consumer bankruptcy) Chapter 7 Chapter 13 Record number of filings in 2005 >12K cases

5 Bankruptcy filings in New Mexico 2011 Chapter 7 Chapter 11 Chapter 13 1% 8% 91%

6 14000 Total Cases

7

8 Chapter 7 Bankruptcy - Liquidation Non exempt assets are sold by the trustee and money paid to creditors after administration expenses deducted Chapter 13 Personal Reorganization Wage-earner repayment plan Code requires regular income in order to fund a Chapter 13 plan

9 Not all individuals can qualify for Chapter 7 relief. Must qualify under a ability to pay test, known as the means test Those who can afford to pay should pay a portion back in Chapter 13

10 Means testing has two parts: Gross median income if over median income, apply means test Means test determines ability to pay If positive disposable income, then case is presumed to be an abuse for Chapter 7 relief

11 Household size 1 $38, $51, $53, $56, *Add $7, for each individual in excess of 4

12 Trustees liquidate non-exempt property. So what is non-exempt property? Answer: not much Less than 5% of Chapter 7 cases are Asset Cases Meaning the Chapter 7 trustees liquidate nothing in 95% of filed cases.

13 Exemptions apply to all bankruptcy chapters However, only Debtors who are individuals can claim exemptions Two ways to exempt (protect) property: Federal Law under Title 11 (Bankruptcy Code) State Law Exemptions Chapter et al.

14 Found in New Mexico Statutes Annotated in Chapter 42, Article 10 Real Property New Mexico s homestead exemption is $60K per person so a married couple can exempt $120K in equity Vehicle exemption is limited to $4K per person in one motor vehicle Household goods and clothing 100% exempt Jewelry not to exceed $2, per person Misc. exemption of $ in any property

15 Homestead exemption limited to $21, each person (married couple $43,250.00) Household goods limited to $11, with no one item being over $ Jewelry $1, each person Motor vehicle $3, each person Wild Card - $1, plus any unused portion of homestead exemption very flexible for those who don t own a home or have no equity (up to $11, each)

16 Depends largely on current make-up of property. If no equity or own no home? almost always Federal exemptions If tons of equity? State Exemptions

17 A Bankruptcy Discharge only discharges dischargeable debts What does that mean? Hopefully a fresh start Certain debts are non-dischargeable Taxes that are less than 3 years old Student loans Domestic Support Obligations (DSO s)

18 What is discharged? Basically everything else All personal debts of the debtor including mortgage notes and car notes but.. A bankruptcy discharge does not remove consensual liens on property (i.e. mortgage, security agreements on vehicles, PMSI s)

19 A mortgage is a lien not a monthly bill. A mortgage transaction has two components: The Mortgage itself which is recorded in the County records and creates a lien on the property The promissory note that accompanies the lien the promise to pay $x.xx dollars for 30 years.

20 So Bankruptcy discharges the promise to pay BUT does not remove the lien Liens are typically unaffected by the entry of discharge So the mortgage company can still foreclose if the loan (really lien) is not fully satisfied And a bank can still repossess a car

21 Upon the filing of a bankruptcy case, the Court enters an Order of Relief A provision called the Automatic Stay is entered with the Petition. See 11 U.S.C. 362 The Automatic Stay stops all collection activities against the Debtors including..

22 Foreclosures Garnishments Lawsuits All communication from creditors regarding the collection of the debt Enforcement of liens The Automatic Stay does not stop..

23 Collection or establishment of a Domestic Support Obligation (DSO) or custody Criminal actions against the Debtor (i.e. SEC investigation against Doug Vaughn) Collection of post-petition obligations

24 Chapter 13 is for individuals with regular income (wage earner). See 11 U.S.C. 101(30). Businesses like corporations, LLC s or partnerships not eligible for Chapter 13 relief. Debt limitations on Chapter 13 (as of 4/1/10) Secured of $1,081, Unsecured of $360,475.00

25 Chapter 13 s are typically filed to address a specific financial problem To cure mortgage arrears Chapter 13 allows a Debtor to make up the past due mortgage payments over a period of time typically three to five years Can t pass the means test in Chapter 7 (make too much income) Have non-exempt property Pay non-dischargeable taxes w/o interest/penalty

26 Save the house Chapter 13 plans. Stop foreclosure (automatic stay) Allow Debtors up to five years to pay back the past due mortgage arrears while keeping current (prospectively) on the mortgage payments Must pay interest at the contract rate Pay the Trustee for the privilege at 10% commission of what ever is paid through plan

27 Chapter 13 Debtors are Debtors in possession Means the Debtors are in control of their property The Chapter 13 Trustee does not technically own the property of the estate Still under the control of the Bankruptcy Court All transactions involving estate property must be court approved

28 Please call me if you have any questions or would like to discuss anything presented here further Ron Holmes