BANKRUPTCY BASICS AGENDA

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1 BANKRUPTCY BASICS Shana Khader, Esq. General Legal Services Unit New York Legal Assistance Group (NYLAG) June 2, :00 2:30 p.m. CLE: 1.5 Professional Practice (Transitional and Nontransitional) AGENDA 1. What is bankruptcy? Overarching considerations. 15 min 2. Types of bankruptcy. 10 min 3. Exempt property. 10 min 4. The bankruptcy process. 10 min 5. Common bankruptcy questions. 30 min 6. Bankruptcy alternatives. 5 min 7. Questions. 10 min

2 Bankruptcy Basics Presented by: Shana Khader New York Legal Assistance Group June 2, 2014 What is Bankruptcy? Bankruptcy is a legal proceeding in which a person who cannot pay her bills can get a fresh financial start. Bankruptcy is a way to discharge certain debts. Once the debts are discharged, you will no longer owe them. The right to file for bankruptcy is provided by federal law, and all bankruptcy cases are handled in federal court. 2 Is it wrong to file bankruptcy? Constitution: Article I, Section 8, subsection 4. On the subject of economic justice and stability, the Torah is replete with examples of compassionate treatment of the poor and with preservation of the family unit. Devarim (Deuteronomy) 15:1-2 uses the following language: At the end of every seven years you shall grant a release. And this is the manner of the release: every creditor shall release what he has lent to his neighbor, his brother, because the Lord s release has been proclaimed. 1

3 Who should be considering bankruptcy? Whether bankruptcy is right for an individual is a complex and case-by-case analysis. Any time an individual has substantial debt and expenses that exceed their income, it is important to understand the pros and cons of bankruptcy. Bankruptcy is not just a last resort or emergency measure. Because timing is such an important consideration, it is useful for anyone struggling with debt to understand whether bankruptcy might be a good option for them. What information will I need? Bankruptcy is a detailed process, and for most legal services clients, the very vast majority of the work goes into gathering financial information. In order to evaluate someone for bankruptcy, you will need detailed information about: Income Assets Liabilities The importance of timing You can only file for Chapter 7 bankruptcy every 8 years. It is optimal for a debtor to file at a point when they can truly benefit from a fresh start, rather than be incurring new debt. If you could eliminate all of your credit card debt, would you be able to meet your living expenses going forward? The income used for the Means Test (discussed later) for Chapter 7 bankruptcy is calculated by adding all income received in the last 6 months prior to filing. A low-wage earner or someone who receives a fixed income may be collection proof. 2

4 Secured and Unsecured Debts Secured Debt: A debt for which a creditor has collateral. The creditor can institute a foreclosure or repossession to take collateral if the debtor fails to pay the creditor as specified by the loan. A secured debt can be discharged in bankruptcy, but the creditor still retains its security interest (that is, the debtor can lose the property if the debt is discharged in bankruptcy). Unsecured Debt: A debt that is not tied to any item of property. In order to collect on an unsecured debt, the creditor generally must sue you in court and get a court judgment against you. Common Secured and Unsecured Debts Secured debts: Mortgages Car loans Loans secured on household goods Unsecured debts: Credit cards Store cards Medical bills Loans, including from friends and relatives 8 Types of bankruptcy There are two main types of consumer bankruptcy: Chapter 7 & Chapter 13 Chapter 7 is known as straight bankruptcy or liquidation. For Chapter 7, the debtor files a petition asking the court to discharge their debts. The basic idea in a chapter 7 bankruptcy is to wipe out (discharge) the debts in exchange for giving up property, except for exempt property which the law allows the debtor to keep. In most cases for low-income individuals, all of their possessions will be exempt. But property which is not exempt could be sold, with the money distributed to creditors. 3

5 Chapter 7 Bankruptcy, Cont d The bankruptcy trustee can sell (liquidate) all property that is not exempt or whose value is greater than the exempt limit. There is a means test intended to prevent abuse of the bankruptcy process by wealthy individuals. However, this is more generous than you might think. First, is your client below the median household income for the State of New York (based on previous 6 months)? Ex: 1 person: $47,790; 4 people: $83,209 median_income_table.htm Even if the debtor is above the median family income, they may still qualify based on their expenses (actual expenses, or based on local averages). 10 Types of Bankruptcy, cont d: Chapter 13: In a Chapter 13 case, the debtor files a plan showing how they will pay off some of their past due and current debts over 3 to 5 years. Thus, a debtor needs a steady income to be eligible for Chapter 13. The most important thing about a Chapter 13 case is that it will allow the debtor to keep valuable property especially a home and/or car which might otherwise be lost, if the debtor makes payments under the plan. In most cases, these payments will be at least as much as their regular monthly payments on the mortgage or car loan, with some extra payment to get caught up on the amount they have fallen behind. The plan will also include payment to unsecured creditors, though often at less than the full balance. However, the creditors must be paid at least the same amount as they would have been paid had the debtor filed Chapter 7 (ex. through liquidation of non-exempt assets). Exempt Property Property is broadly construed by the bankruptcy laws. It includes not just money and land, but jewelry, antiques, intellectual property, legal claims, investments. The list of questions is exhaustive, and proper counseling is crucial. A debtor MUST report all of their assets on the bankruptcy petition. Failure to do so could result in criminal penalties, loss of the asset, and/or debts not being discharged. A debtor s assets could be sold in bankruptcy unless they are exempt. The debtor will be allowed to keep exempt assets. The debtor can choose to apply either the New York or the Federal property exemptions (see handout). An asset is valued at its fair market value, not its cost at time of purchase or its replacement cost. The amounts mentioned are doubled when a married couple files together. Both spouses are not required to file if one files. 4

6 Some common of New York exemptions Homestead Exemption: Property up to $150,000 (single) or $300,000 (married) above any debts or liens owed, as long as it is your principal residence. This refers to the equity (value over any mortgages/liens). No exemptions for vacation homes, 2 nd homes, etc. Federal exemption: $21,625 Pensions and retirement plans are fully exempt. Federal exemption: Exempt to the extent that they are in a tax exempt fund. Household goods and furnishings: up to $10,000 Federal exemptions protect $11,525. The replacement value of all household goods and furnishings must be estimated on the bankruptcy petition. Some examples of exemptions (cont d) Car: $4,000 of equity Federal exemption: $3,450. Jewelry: A wedding ring (but not engagement ring) and a watch not exceeding $1,000 in value are exempt. All other jewelry is non-exempt and must be declared. Federal exemption: $1,450. Tools of the trade: Necessary working tools are exempt up to $3,000. Federal exemption: $2,175. Some examples of exemptions (cont d) Cash of $5,000 and wildcard of $1,000 (if homestead not used) Federal exemptions include a wildcard of $1,150 plus up to $10,825 left over from the homestead exemption. Note on rent stabilized apartments. Value of rent stabilized lease may be considered an asset in bankruptcy. See In re Santiago (SDNY 2012), currently on appeal. Requires a case-by-case analysis. 5

7 The Bankruptcy Process The debtor must get budget and credit counseling from an approved credit counseling agency in the 180 days prior to filing. This counseling can take less than one hour. The debtor can then file for bankruptcy, which includes completing detailed forms about income, assets, and debts. The filing fees are $306 for Chapter 7 and $281 for Chapter 13 (court can waive). In many cases, the debtor only needs to go to Court once after filing, specifically to meet with the bankruptcy trustee. The debtor must take a course in personal finance before the case ends. This course can take two hours. In a Chapter 7 case, the debtor typically receives the discharge 4-6 months after filing the petition. 16 Common Bankruptcy Questions: Do I Still Owe Secured Debts (Mortgages, Car Loans) after Bankruptcy? Yes and No! The treatment of secured debts after bankruptcy can be confusing. Bankruptcy cancels your personal legal obligation to pay a debt, even a secured debt. This means the secured creditor can t sue you after a bankruptcy to collect the money you owe. But, the creditor can still take back their collateral if you don t pay the debt. For example, if you are behind on a car loan/home mortgage, the creditor can ask the bankruptcy court for permission to repossess your car or foreclose on the home. Or the creditor can just wait until your bankruptcy is over and then do so. Although a secured creditor can t sue you if you don t pay, that creditor can usually take back the collateral. For this reason, if you want to keep property that is collateral for a secured debt, you will need to catch up on the payments and continue to make them during and after bankruptcy, keep any required insurance, and you may have to reaffirm the loan (explained later). 6

8 Do I Have Other Options for Secured Debts? You may be able to keep the collateral on a secured debt by paying the creditor in a lump sum the amount the item is worth rather than what you owe on the loan. This is your right under the bankruptcy law to redeem the collateral. Redeeming collateral can save you hundreds of dollars. Since furniture, appliances and other household goods go down in value quickly once they are used, you may redeem them for less than their original cost or what you owe on the account. You may attempt to modify the terms of your mortgage through the loss mitigation process. What debts cannot be discharged? Alimony, maintenance or support for a spouse or children. Student loans. With rare exceptions, student loans are not canceled by bankruptcy. You can ask the court to discharge the loans if you can prove that paying them is an undue hardship, but this is an extremely high bar, requiring the debtor to show that they cannot maintain a minimal standard of living for himself and his dependents, and that this situation is likely to persist for a significant portion of the repayment period of the loans. See Brunner, 831 F.2d 395 (2d Cir. 1987). Money borrowed by fraud or false pretenses. A creditor may try to prove in court during your bankruptcy case that you lied or defrauded them, so that your debt cannot be discharged. A few creditors (mainly credit card companies) accuse debtors of fraud even when they have done nothing wrong. Their goal is to scare honest families so that you agree not to discharge the debt. You should never agree to this if you have done nothing wrong. What debts cannot be discharged? Most tax debts. The vast majority of tax debts cannot be discharged, but if they are older (over 3 years old) they may be dischargeable. However, even if the tax debt is old, it is probably not dischargeable if the debtor did not file a tax return. Most criminal fines, penalties and restitution orders. This exception includes even minor fines, including traffic tickets. Drunk driving injury claims. 7

9 Will my future property be taken? In Chapter 7, any property acquired after filing the petition is NOT subject to seizure as property, unless: It was owed to you at the time you filed It is acquired within 6 months of filing by: Inheritance Property settlement with debtor s spouse As a beneficiary of a life insurance policy Will I ever be able to get credit again? Yes. Credit reporting agencies will report a Chapter 7 bankruptcy for 10 years and a Chapter 13 bankruptcy for 7 years. Then they must drop it from credit reports. Some companies will still offer credit, albeit at a higher interest rate. You can obtain a secured credit card to slowly rebuild your credit. What can bankruptcy do for me? Bankruptcy may make it possible for you to: Eliminate the legal obligation to pay most or all of your debts (a discharge ). It is designed to give you a fresh financial start. Temporarily stop foreclosure on your house and allow you an opportunity to catch up on missed payments. (Bankruptcy does not, however, automatically eliminate mortgages and other liens on your property without payment.) The loss mitigation process may give you the opportunity modify a mortgage loan through bankruptcy. 8

10 What Can Bankruptcy Do for Me, Cont d? Filing of the three page bankruptcy petition, in most cases, freezes the debtor s assets to prevent creditors from taking them (the automatic stay ). This will give you immediate relief from: wage garnishment, debt collection harassment, and similar creditor actions to collect a debt. This freeze will usually stay in effect until your case is closed, discharged, dismissed, or denied. Beware: This protection can be waived by landlords when you remain in your rented apartment but are not paying rent. Restore or prevent termination of utility service. Allow you to challenge the claims of creditors who have committed fraud or who are otherwise trying to collect more than you really owe (Note: You can also do this without filing for bankruptcy). A license revoked due to nonpayment of a judgment or fine can be restored (Example: Driver s License). What Bankruptcy Cannot Do: Bankruptcy cannot cure every financial problem. Nor is it the right step for every individual. In bankruptcy, it is usually not possible to: Eliminate certain rights of secured creditors. This is because generally, you cannot keep your house or car unless you continue to pay the debt. You can force secured creditors to take payments over time in the bankruptcy process and bankruptcy can eliminate your obligation to pay any additional money if your property is taken. What Bankruptcy Cannot Do: Protect cosigners on your debts. When a relative or friend has co-signed a loan, and you discharge the loan in bankruptcy, the cosigner may still have to repay all or part of the loan. Discharge debts that arise after bankruptcy has been filed. While governmental agencies and private employers may not discriminate against the bankrupt, there is no prohibition against discrimination from private creditors and landlords. 9

11 Can a creditor object to the discharge? BEWARE: Creditors have the option to file an objection to discharging your debt. Their request will generally be granted if: You have used your credit card to purchase luxury goods or services exceeding $500 within 90 days before filing You have taken a cash advance of $750 or more within 70 days before filing What is Reaffirmation? Although you filed bankruptcy to cancel your debts, you have the option to sign a written agreement to reaffirm a debt. If you choose to reaffirm, you agree to be legally obligated to pay the debt despite bankruptcy. If you reaffirm, the debt is not canceled by bankruptcy. If you fall behind on a reaffirmed debt, you can get collection calls, be sued, and possibly have your pay garnished or other property taken. Reaffirming a debt is a serious matter. You should never agree to a reaffirmation without a very good reason. If a creditor tries to pressure you to reaffirm, remember you can always say no! What is Reaffirmation, cont d? Can I Change my Mind After I Reaffirm a Debt? Yes. You can cancel any reaffirmation agreement for 60 days after it is filed with the court. You can also cancel at any time before your discharge order. To cancel a reaffirmation agreement, you must notify the creditor in writing. You do not have to give a reason. Once you have canceled, the creditor must return any payments you made on the agreement. Also: a reaffirmation agreement has to be in writing, has to be signed by your lawyer or approved by the judge, and has to be made before your bankruptcy is over. Any other reaffirmation agreement is not valid. 10

12 Reaffirmation, cont d If you are behind on a car loan or a home mortgage and can afford to catch up, you can reaffirm and possibly keep your car or home. If the lender agrees to give you time to catch up on a default, this may be a good reason to reaffirm. But if you were having trouble staying current with your payments before bankruptcy and your situation has not improved, reaffirmation may be a mistake. The collateral is likely to be repossessed or foreclosed anyway after bankruptcy, because your obligation to make payments continues. If you are up to date on your loan, you may not need to reaffirm to keep your car or home. Some lenders will let you keep your property without signing a reaffirmation if you continue to make your payments. Lenders might do this if they think the bankruptcy court won t approve the reaffirmation agreement. Reaffirmation, cont d It is almost never a good idea to reaffirm a credit card. Reaffirming means you will pay bills that your bankruptcy would normally wipe out a very high price to pay for the convenience of a credit card. If you do reaffirm, try to get something in return, like a lower balance, no interest on the balance, or a reasonable interest rate on any new credit. Don t be stuck paying 18% - 21% or higher! Sample Scenario: Some offers to reaffirm may seem attractive at first: Let s say a department store lets you keep your credit card if you reaffirm $1,000 out of the $2,000 you owed before bankruptcy. They say it will cost you only $25 per month and they will also give you a $500 line of credit for new purchases. What they might not tell you is that they will give you a new credit card in a few months even if you do not reaffirm. More importantly, though, you should understand that you are agreeing to repay $1000 plus interest that the law says you can have legally canceled. This is a big price to pay for $500 in new credit. 11

13 When Bankruptcy Might Not Be Helpful You have defenses to your debts. Example: your credit card debt is due to identity fraud. Your debts are secured and you have insufficient income to make payments on these and to catch up past due amounts. You have valuable, non-exempt assets that you do not want to lose. Example: a vacation home or expensive antiques. You can afford to pay your debts. 34 Alternatives to Bankruptcy The following alternatives should only be considered with caution, and may not be good options depending on an individual s situation: Replacing unsecured debt with secured debt is often a bad idea because the secured debt cannot be discharged through bankruptcy. Using tax advantaged retirement accounts to pay unsecured debts is often a bad idea because retirement accounts are exempt in bankruptcy. Using a debt management plan (DMR) is often a bad idea because payments often cannot be made. 35 Resources Personal bankruptcy: Is it right for you? City Bar Justice Center uptcy_pamphlet.pdf Bankruptcy information and Bankruptcy Basics US Courts BankruptcyBasics.aspx Sample bankruptcy client questionnaire National Consumer Law Center bankr_questionnaire_en_12.pdf 36 12

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