Pasadena Bankruptcy Attorney

Abandonment

2011-12-04 20:53:43 Catalano v. CIR, 279 F.3d 682 (9th Cir. 2002)
An order lifting or modifying the automatic stay by itself does not constitute a defacto abandonment of the property of the estate. Procedures under § 554 must be followed before property is legally abandoned.

Cusano v. Klein, 264 F.3d 936 (9th Cir. 2001)
Listing of prepetition “songrights” in a value of “unknown” “was not so defective that it would forestall a proper investigation of the asset.” Accordingly, the right to post-petition royalties from these assets vested in the debtor upon confirmation of his chapter 11 plan. Unpaid prepetition royalties did not vest in the debtor, because they were subject to a separate listing requirement as causes of action.

In re Adair, 253 B.R. 85 (9th Cir. B.A.P. 2000)
Debtor had no ongoing duty to provide trustee with updated information regarding properly disclosed estate assets. (Case had been closed for 3 years).

In re DeVore, 223 B.R. 193 (9th Cir. B.A.P. 1998)
Order reopening case and withdrawing no-asset report does not negate a technical abandonment.

In re Johnston, 49 F.3d 538 (9th Cir. 1995)
Tax consequences to debtor are irrelevant in determination to abandon

In re Pace, 159 B.R. 890 (9th Cir. B.A.P. 1993), aff’d, 56 F.3d 1170 (9th Cir.1995), op amended and superseded on denial of rehearing 67 F.3d 187 (9th Cir. 1995), aff’d in part, vacated in part, 67 F.3d 187 (9th Cir. 1995)
Unscheduled assets are neither abandoned nor administered under 554(d)

In re Pace, 146 B.R. 562 (9th Cir. B.A.P. 1992)
Abandonment of a promissory note does not equal abandonment of a malpractice action.

In re Pauline, 119 B.R. 727 (9th Cir. B.A.P. 1990)
(abandonment prevents trustee's property-churning conduct)

In re Berg, 45 B.R. 899, 903 (9th Cir. B.A.P. 1984)
(when abandonment occurs)

Bankruptcy Petition Signature

2011-11-25 18:59:45 Okay by now you would have completed the first online course. By now, I would have completed the preparation of the petition. At this meeting we will go over the petition and I will explain to you all the different portions of the petition. We will verify for the last time if all the information in the bankruptcy is correct, update all changes that may have occurred between the original interview meeting and the current signature meeting.

The typical time for me to prepare the petition is two weeks. In certain circumstances, the client may need additional time for practical reasons, such as having the remaining amount to pay the balance of attorney fees, the filing fee or the online classes. In other circumstances, we may delayed the filing of the petition for strategic reasons that might help a client qualify for chapter 7 when otherwise you would not have.

After a detailed explanation, you will be signing the petition, (approximately 15 signatures).  The petition after the signature will be prepared for electronic filing which will occur within 2 days after the signature.

After the petition is filed, I will send you the notice of filing, and the notice of the creditor meeting which is typically scheduled 30 - 45 days after the filing. You will receive instructions as to what to bring at the creditor's meeting and what to expect.

The next post will cover the 341 a meeting of the creditors and why I make a point of personally appear with you at that meeting as opposed to sending a substitute attorney as do so many other bankruptcy attorneys.

Bankruptcy Stages, Interview with attorney

2011-11-22 21:02:55 Once you decide you want to move forward, The next step is a detailed interview with the attorney himself to flush out and gather all the facts and documents needed to prepare a complete bankruptcy petition. By now, you have had the initial meeting with the attorney and the different bankruptcy option explained and a recommended course of action advised by your attorney. More importantly, you have had time to think about it and had all your questions answered.

For the interview, It usually takes me between 45 minutes to 1 hour to get all the facts I need to prepare my client's bankruptcy.  All the client will do during this time is answer my questions and hand me as many of the documents bellow that the client was able to gather uo. I do not ask clients to complete forms.  Prior to the meeting I would have advised the clients to bring or gather up as much of the following documents as possible.

1. Tax returns for last 2 years filed.


2. Pay stubs for last 60 days (both spouses, if married).


3. All credit card statement and collection letters.


4. All vehicle payment statements.


5. All mortgage payment statements including, 2nd and 3rd mortgages, if any.


6. All student loans.


7. All back taxes due.


8. Any and all lawsuits against you.


9. Any documents that claim you owe someone money.


10. Your credit report. You can obtain a copy of your credit report for free from AnnualCreditReport.com Make sure you print each of the reports from each credit reporting agency you were able to access on paper or PDF file .

It is not unusual to have some of the above documents unavailable or missing, do not worry, I usually pull credit reports of my clients directly as well. And there are other places where I can gather other information that might not be readily available to the client. but the more you can provide, the better and more complete of a petition preparation I can do.

Once the interview is complete, It will take me about 2 weeks to have the petition ready for signature. However, in urgent circumstances, we can file within 24 hours. In the mean time, I provide the client instructions on completing the credit counseling course that must be completed prior to the filing of the bankruptcy. So while you complete the 1st of the required courses (don't worry, it takes about 45 minutes to do it online) I go ahead and get everything ready. We will meet again in about 2 weeks time at which point I will go over the petition with you myself, and if all is well, the client will sign the petition for filing.

Next I will cover what happens after the petition is filed.

Bankruptcy Stages, Free Initial Consultation

2011-11-21 10:17:23

Bankruptcy stages start from initial consultation and end at post-discharge issues. The first step should be the initial consultation with a bankruptcy attorney.

Bankruptcy is a difficult choice for clients. Often the client has been unwilling to file bankruptcy for months or sometimes years. The reasons I see are many. Some are feeling ashamed believing that filing for bankruptcy is an admission of failure. Some are overwhelmed with the debt and simply do not want to deal with it. Sometimes clients are misinformed and believe that they either do not qualify or does not apply to their circumstances.

Sometimes I get clients who have tried or are trying to deal with creditors but are realizing that despite their best efforts, their financial circumstances are not improving. They are very discouraged for many reasons. Sometimes the creditor does not care and asks for much more that the client can afford. Sometimes the potential clients are making some payments but the interest rate is so high that the balance just keeps going up or will never be paid down. Sometimes the potential client has been working with a "debt consolidation company" only to discovery that the first 18 payments of a 60 month plan that was proposed to them, was going to pay the debt consolidator's fees. And none of the payments have been going to any creditor and now they are being sued.

In my practice since 1997, I have never had a client who was just eager to file bankruptcy. I do not blame them that is the way its supposed to be. But when they do pickup the phone and call for help from an attorney, I applaud them for finally seeking legal and credible information to deal with their financial difficulties. Whether they ultimately decide to file bankruptcy or not is not important. What is important is that the client get the correct information about their particular circumstances and make an informed decision.

The first step in seeking knowledge and solutions about your financial difficulties is to meet with a bankruptcy attorney, not a paralegal, and not an an attorney who does everything else including bankruptcy. I have heard so many times from clients that come to my office telling me that they meet with a paralegal or an attorney who told the client, "they can file bankruptcy". I tell them great, and continue with asking all the questions that I need to ask to familiarize myself with the financial situation of the potential client.

When I am done with my questions, the client is left wondering why the paralegal did not ask all these questions? how did the paralegal know if bankruptcy is the right choice? which chapter? what are the consequences? When the client voices their concerns about the paralegal. I tell them, "The paralegal told you they (the paralegal)  can file bankruptcy" that is they can fill the forms and upload the petition to the court. The paralegal did not tell you bankruptcy is the right choice for you or that you, the client, should file bankruptcy.

Your first meeting with a bankruptcy attorney should be detailed as much as possible. It should be free of charge and It should be in person with the attorney himself who will be handling the case from beginning to the end. This meeting is as much as for the client to get to know the attorney as it is for the attorney to find the facts and circumstances of the client. After the initial questions, I explain what bankruptcy is, the different chapters, the process, my recommendation, the cost and give you the opportunity to ask any questions you want.

A bankruptcy attorney should be able to advise you whether bankruptcy is the right choice for you. Whether you qualify for chapter 7 bankruptcy or you must file a chapter 13 bankruptcy or you are better off negotiating your debts. Whether the timing is right, or if waiting couple of months may put you at a better advantage. What of your assets will be protected. What will be at risk. The answers to these questions are highly dependent on the exact circumstances of your particular circumstances.

At the end of the meeting, I will thank you for meeting with me, and I will ask you to go home and think about it or discuss it with you spouse. You should never be pressured to file bankruptcy by anybody.

Roland Kedikian is a Los Angeles bankruptcy attorney, providing bankruptcy solutions to debtors since 1997.

 

Bankruptcy Discharge Student Loans

2011-11-14 22:04:34 Bankruptcy does not discharge student loans except in very small circumstances such as disabling event that prevents you from practicing you profession. In this post, which is part 2 of a series of how to handle debts, either in bankruptcy or outside of bankruptcy, I will talk about how to mitigate the negative effects of an unmanageable student loans. In the prior post, I talked about Bankruptcy and credit card debt. Today, lets talk about your options when it comes to student loans.

If you are about to graduate and you are unable to pay the debts, consider deferment. There are programs that allow you to defer the payments on your student loan for a period of a maximum of 3 years. Hopefully you will be able to obtain a well enough paying job in the mean time to begin covering your living expenses and start paying back the student loans.

If that is not possible, you must plan your spending behavior in a manner that recognizes that student loans are not discharged in bankruptcy. If you have to decide between paying a non dischargeable debt or a dischargeable debt, always, always, always, pay back the none dischargeable debt. Pay back you student loans first and foremost, and them make your credit card payments. So long as you are making the minimum payment and keep the interest rate on your credit card at very low interest rates, bellow 5%, (by doing balance transfer offers) you are staying above water and hanging on to fight another day.

If job prospects are not improving and your debt limit is rising steadily, at least it is the dischargable debt that is rising. Bankruptcy court will not penalize you for choosing to pay your student loans and not pay your credit card debt. Just do not go crazy using the credit cards. Use them for reasonable necessities of life and do not abuse the credit cards by doing major cash advances to pay off your student loans. If you have to file a chapter 7, in such a case at least you will wipe out all the credit card debt that accumulated, while you paid of the non dischargeable student loans.

In the next post in this series, we will talk about mortgage debt and how that can be handled in bankruptcy.

Bankruptcy filing reaches 1.4 Million through september 2011

2011-11-11 03:32:30

1.47 million bankruptcies were filed between January and September 2011. A decline of 8% as consumers reduce debt and fewer businesses sought to reorganize or liquidate.

According to the Administrative Office of the U.S. Courts, business bankruptcies declined 18 percent in the first nine months of the year. Chapter 7 filings are down 18 percent and Chapter 11 reorganizations decreased 22 percent from the same period in 2010.

Consumer filings fell 11 percent to 1.06 million in the January to September period. Nevada remained the state with the highest per capita filing rate at 9.7 per 1,000 residents. Utah had the highest percentage gain in total filings for the 12-month period, followed by the Middle District of Louisiana, where filings rose 1.3 percent, and the Central District of California with a 0.9 percent increase.

Districts with the biggest percentage decrease included Guam, with a drop of a 31 percent; Vermont, with a decline of 26 percent; the Southern District of West Virginia, with a decrease of 24 percent; and the Western District of New York, down almost 20 percent.

The reason for the decline is a combination of factors. Lenders have been reining in the amount of credit they allow. Also, consumers can't tap their homes as much for equity and are being cautious in spending. That means they aren't getting into as much debt.

Bankruptcy filings by consumers are often driven by imminent seizure of a home or a car by a lender. Consumers seek bankruptcy protection to halt such imminent seizures. However, foreclosures have slowed sharply because of controversy over improper documentation and robot signing controversy. Additionally there are state and federal efforts to help borrowers that is also delaying the process and encouraging more settlements. Those are expected to pick up again when the paperwork problems are resolved.

Bankruptcy or Handling Credit Card Debt

2011-11-09 21:04:59 In this series of posts, I will discuss option available to you on handling debt. Lets start with credit card debt since this is the most common debt that consumers overwhelmingly have when filing bankruptcy.

If you are unable to  make minimum payments on your credit cards, your credit score will be damaged, and you will get many calls form your creditor asking for payment.

1) Try calling your creditors and see if they will arrange a payment plan. Suggest to them, closing the account, reducing the interest rate and making reasonable payments on a monthly basis. Offering them $10 a month or "whatever I can" will not work, your figures must be reasonable given your circumstances and the balance that you owe.

2) Try consolidating your debt together with a low interest rate debt that you may be able to get on another credit card such as a balance transfer. But of-course to be able to have this option, your credit should still be intact, in other words, you can see the difficulties you are about to have and are preparing yourself in advance. Now here you may also be able to consolidate with a home equity line, but you must be very careful. In doing so, you are  converting the nature of your debt from unsecured to secured debt that attaches to your house. (generally not advisable unless you are 95% sure you will be able to pay back in full and in a relatively short period of time)

3) Try debt management firms that might be able reduce the interest on each card and manage the payment to these cards. A reputable firm will charge you about $35 per month for their service. You must be very careful, there are many "companies" that charge you $6,000.00 before you realize that all the payments you are initially making is going to pay their "fees".  If you can not find a reputable firm that charges you monthly, try doing it yourself. That is try #1 above.

4) Try debt settlement. If you are behind about 6 months, your credit card debt is sold to a collection agency. They typically will offer 30% - 40% of the amount you owe to settle. However, often these collection agencies tag high interest and penalties and within a span of 6 months your original balance can rise substantially more that it was. Sometimes you end up with more debt than what the credit limit was on the original card. When negotiating with collection agencies, stick to what you think the balance that you owe and start offering them a percentage from there. Make sure you do not give any personal information to them like who you work for or your checking account number and bank information.

5) Finally there are bankruptcy options available to you. While there is a negative stigma attached to bankruptcy, In certain circumstances its the best option for you and your creditor. If you do not believe there is a way to pay back within one year, filing bankruptcy is a legal and most expedient way to resolve your financial predicament. This also will  get the creditor to realize that they will not recover and move on without spending any more time, money and effort on this debt.  You can read more about bankruptcy chapter 7 and chapter 13 at our website www.LosAngelesBKLaw.com or consult an attorney in your area.

In following posts I will discuss how to deal with other debt such as student loans, taxes, medical bills, Mortgage payments 1st and 2nd, Auto payments and medical bills.

Banks want customers to use credit cards

2011-11-07 19:19:38 Bank of America has been running commercials touting its "cash rewards" credit card offering no annual fee, a $50 sign-up bonus, then a 1 to 3 percent cash refund on your spending. The same bank, until public pressure forced it to recant last week, wanted to charge customers $5 a month to use a debit card.

So, was America's second-biggest bank trying to tell us all to put away our debit cards and use credit cards instead? Yes. Bankers now make more money when you say credit instead of debit. Credit cards remain the golden goose of banking. Congress plucked a few feathers last year when it banned banks from raising interest rates willy-nilly on existing credit card balances, along with other nasty practices. But the cards remain profitable. Banks charge an average of 13 percent interest to the unfortunate souls who don't pay their balance in full every month. (A little less than half of Americans carry balances.)

Using Bankruptcy to Discharge Taxes

2011-11-06 19:37:17 Chapter 7 or Chapter 13 bankruptcies enable consumer debtors to get a financial "fresh start" by discharging most and sometimes all of their credit card debts. But what about  tax debts?

Getting tax relief through bankruptcy is not easy. Whether a tax debt will be dischargeable depends on the type of tax involved as well as the taxpayer meeting certain requirements.

Requirements to Discharge Personal Income Taxes

There are  rules that determine whether a debtor may discharge their personal income taxes. To be eligible, the taxes must meet the following requirements:

- Three-Year Rule: The tax must be for taxes that were due at least three years prior to filing the bankruptcy.

- Two-Year Rule: The tax return must have been filed at least two years prior to filing the bankruptcy.

- 240-Day Rule: The IRS cannot have assessed the tax liabilities within 240 days prior to filing the bankruptcy. These timing requirements are complex, and can be reset by numerous events, so caution is advised when calculating them.

-The taxpayer must have filed their tax return for their debt to be dischargeable. Although taxing entities will sometimes file taxes on a taxpayer's behalf when he or she fails to file their own return, liabilities from these returns will be non-dischargeable because the taxpayer did not file them.

-Fraudulent tax returns are not dischargeable. This logically follows the general bankruptcy rule that any debt incurred through fraud is non-dischargeable.

Similarly, any taxpayer who has intentionally evaded taxes by moving or hiding assets, or attempted to use another person's name or social security number on a return will be ineligible for discharge of their taxes.

Foreclosure review process begins

2011-11-02 20:54:50 The federal government kicked off its foreclosure review process Tuesday, which will offer nearly 4.5 million consumers the chance to get their foreclosure cases reviewed for mistakes and potential restitution.

The first batch of letters informing consumers of their right to a review went out Tuesday. They'll all go out by Dec. 31, the Office of the Comptroller of the Currency says.

A website has also been set up at www.independentforeclosurereview.com. Consumers can call 1-888-952-9105.

The foreclosure review — covering foreclosure actions taken by 14 mortgage servicers and their affiliates in 2009 or 2010 — was ordered by federal banking regulators in April after an investigation found significant weaknesses in mortgage servicing and foreclosure processes.

The individual reviews, which consumers must request no later than April 30, could take months to complete. They will cover foreclosure actions against primary homes only. More...