November 22, 2017

Process – Bankruptcy Basics

Article I, Section 8, of the United States Constitution authorizes Congress to enact “uniform Laws on the subject of Bankruptcies.” Under this grant of authority, Congress enacted the “Bankruptcy Code” in 1978. The Bankruptcy Code, which is codified as title 11 of the United States Code, has been amended several times since its enactment. It is the uniform federal law that governs all bankruptcy cases.

The procedural aspects of the bankruptcy process are governed by the Federal Rules of Bankruptcy Procedure (often called the “Bankruptcy Rules”) and local rules of each bankruptcy court. The Bankruptcy Rules contain a set of official forms for use in bankruptcy cases. The Bankruptcy Code and Bankruptcy Rules (and local rules) set forth the formal legal procedures for dealing with the debt problems of individuals and businesses.

There is a bankruptcy court for each judicial district in the country. Each state has one or more districts. There are 90 bankruptcy districts across the country. The bankruptcy courts generally have their own clerk’s offices.

The court official with decision-making power over federal bankruptcy cases is the United States bankruptcy judge, a judicial officer of the United States district court. The bankruptcy judge may decide any matter connected with a bankruptcy case, such as eligibility to file or whether a debtor should receive a discharge of debts. Much of the bankruptcy process is administrative, however, and is conducted away from the courthouse. In cases under chapters 7, 12, or 13, and sometimes in chapter 11 cases, this administrative process is carried out by a trustee who is appointed to oversee the case.

A debtor’s involvement with the bankruptcy judge is usually very limited. A typical chapter 7 debtor will not appear in court and will not see the bankruptcy judge unless an objection is raised in the case. A chapter 13 debtor may only have to appear before the bankruptcy judge at a plan confirmation hearing. Usually, the only formal proceeding at which a debtor must appear is the meeting of creditors, which is usually held at the offices of the U.S. trustee. This meeting is informally called a “341 meeting” because section 341 of the Bankruptcy Code requires that the debtor attend this meeting so that creditors can question the debtor about debts and property.

A fundamental goal of the federal bankruptcy laws enacted by Congress is to give debtors a financial “fresh start” from burdensome debts. The Supreme Court made this point about the purpose of the bankruptcy law in a 1934 decision:

[I]t gives to the honest but unfortunate debtor…a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.

Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). This goal is accomplished through the bankruptcy discharge, which releases debtors from personal liability from specific debts and prohibits creditors from ever taking any action against the debtor to collect those debts. This publication describes the bankruptcy discharge in a question and answer format, discussing the timing of the discharge, the scope of the discharge (what debts are discharged and what debts are not discharged), objections to discharge, and revocation of the discharge. It also describes what a debtor can do if a creditor attempts to collect a discharged debt after the bankruptcy case is concluded.

Six basic types of bankruptcy cases are provided for under the Bankruptcy Code, each of which is discussed in this publication. The cases are traditionally given the names of the chapters that describe them.

Chapter 7, entitled Liquidation, contemplates an orderly, court-supervised procedure by which a trustee takes over the assets of the debtor’s estate, reduces them to cash, and makes distributions to creditors, subject to the debtor’s right to retain certain exempt property and the rights of secured creditors. Because there is usually little or no nonexempt property in most chapter 7 cases, there may not be an actual liquidation of the debtor’s assets. These cases are called “no-asset cases.” A creditor holding an unsecured claim will get a distribution from the bankruptcy estate only if the case is an asset case and the creditor files a proof of claim with the bankruptcy court. In most chapter 7 cases, if the debtor is an individual, he or she receives a discharge that releases him or her from personal liability for certain dischargeable debts. The debtor normally receives a discharge just a few months after the petition is filed. Amendments to the Bankruptcy Code enacted in to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 require the application of a “means test” to determine whether individual consumer debtors qualify for relief under chapter 7. If such a debtor’s income is in excess of certain thresholds, the debtor may not be eligible for chapter 7 relief.

Chapter 9, entitled Adjustment of Debts of a Municipality, provides essentially for reorganization, much like a reorganization under chapter 11. Only a “municipality” may file under chapter 9, which includes cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts.

Chapter 11, entitled Reorganization, ordinarily is used by commercial enterprises that desire to continue operating a business and repay creditors concurrently through a court-approved plan of reorganization. The chapter 11 debtor usually has the exclusive right to file a plan of reorganization for the first 120 days after it files the case and must provide creditors with a disclosure statement containing information adequate to enable creditors to evaluate the plan. The court ultimately approves (confirms) or disapproves the plan of reorganization. Under the confirmed plan, the debtor can reduce its debts by repaying a portion of its obligations and discharging others. The debtor can also terminate burdensome contracts and leases, recover assets, and rescale its operations in order to return to profitability. Under chapter 11, the debtor normally goes through a period of consolidation and emerges with a reduced debt load and a reorganized business.

Chapter 12, entitled Adjustment of Debts of a Family Farmer or Fisherman with Regular Annual Income, provides debt relief to family farmers and fishermen with regular income. The process under chapter 12 is very similar to that of chapter 13, under which the debtor proposes a plan to repay debts over a period of time – no more than three years unless the court approves a longer period, not exceeding five years. There is also a trustee in every chapter 12 case whose duties are very similar to those of a chapter 13 trustee. The chapter 12 trustee’s disbursement of payments to creditors under a confirmed plan parallels the procedure under chapter 13. Chapter 12 allows a family farmer or fisherman to continue to operate the business while the plan is being carried out.

Chapter 13, entitled Adjustment of Debts of an Individual With Regular Income, is designed for an individual debtor who has a regular source of income. Chapter 13 is often preferable to chapter 7 because it enables the debtor to keep a valuable asset, such as a house, and because it allows the debtor to propose a “plan” to repay creditors over time – usually three to five years. Chapter 13 is also used by consumer debtors who do not qualify for chapter 7 relief under the means test. At a confirmation hearing, the court either approves or disapproves the debtor’s repayment plan, depending on whether it meets the Bankruptcy Code’s requirements for confirmation. Chapter 13 is very different from chapter 7 since the chapter 13 debtor usually remains in possession of the property of the estate and makes payments to creditors, through the trustee, based on the debtor’s anticipated income over the life of the plan. Unlike chapter 7, the debtor does not receive an immediate discharge of debts. The debtor must complete the payments required under the plan before the discharge is received. The debtor is protected from lawsuits, garnishments, and other creditor actions while the plan is in effect. The discharge is also somewhat broader (i.e., more debts are eliminated) under chapter 13 than the discharge under chapter 7.

The purpose of Chapter 15, entitled Ancillary and Other Cross-Border Cases, is to provide an effective mechanism for dealing with cases of cross-border insolvency. This publication discusses the applicability of Chapter 15 where a debtor or its property is subject to the laws of the United States and one or more foreign countries.

In addition to the basic types of bankruptcy cases, Bankruptcy Basics provides an overview of the Servicemembers’ Civil Relief Act, which, among other things, provides protection to members of the military against the entry of default judgments and gives the court the ability to stay proceedings against military debtors.

This publication also contains a description of liquidation proceedings under the Securities Investor Protection Act (“SIPA”). Although the Bankruptcy Code provides for a stockbroker liquidation proceeding, it is far more likely that a failing brokerage firm will find itself involved in a SIPA proceeding. The purpose of SIPA is to return to investors securities and cash left with failed brokerages. Since being established by Congress in 1970, the Securities Investor Protection Corporation has protected investors who deposit stocks and bonds with brokerage firms by ensuring that every customer’s property is protected, up to $500,000 per customer.

The bankruptcy process is complex and relies on legal concepts like the “automatic stay,” “discharge,” “exemptions,” and “assume.” Therefore, the final chapter of this publication is a glossary of Bankruptcy Terminology which explains, in layman’s terms, most of the legal concepts that apply in cases filed under the Bankruptcy Code.

Reprinted from http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/process-bankruptcy-basics

CONTEMPLATING A BANKRUPTCY AFTER DIVORCE

Oftentimes Bankruptcy and Divorce go hand-in-hand.  If you are in the process of getting divorced, it would be wise to consult a consumer attorney to analyze your financial circumstances, ensuring all of your obligations will be accounted for in the Divorce Decree/Separation Agreement, and to determine if you can handle paying them once you go back to a single income after the divorce.  Bankruptcy may be a safe option once you are divorced if you find you cannot afford living on a single income.

If you will be taking the bulk of the debt once you separate and do not have the income to support it, you may consider filing for bankruptcy and starting over all together once the divorce is finalized.  Here are some topics that often arise from divorce when contemplating a bankruptcy or may lead you to file for bankruptcy after your divorce:

  1. Who will take the marital home and pay its related expenses?

If you are getting a divorce and taking over possession of the marital home, along with taking over the related expenses, especially the mortgage(s) on the home, be sure to have your Divorce Decree state the terms of this transfer accurately.

Also, making a budget before the divorce is final will help you determine if you will be able to afford to stay in the home.

If it is determined that you can, in fact, afford to live in the home after the divorce, then make sure the proper documents are recorded on the Land Records after the transfer.  This will give you a paper trial you may need to provide in your bankruptcy case later on.

  1. Will you be responsible for credit cards in your ex-spouses name?

If so, make sure the Divorce Decree/Separation Agreement spells out all debt you will be taking responsibility for once the divorce is final, along with the last four digits of any account numbers.  Once the divorce is final, be sure to contact each company in writing and have the accounts switched into your name.  Wait at least six weeks and then review your credit report(s) to ensure accurate reporting, so as not to inadvertently leave off a debt you are responsible for on your Bankruptcy petition, among other things.

  1. Will you be ordered to pay alimony or child support?

Keep in mind, that these particular types of “debts” are allowable deductible expenses in your Bankruptcy case; this means that they are taken into consideration when qualifying for Bankruptcy.  Also, it is important to note that court-ordered Alimony and Child Support are what is known in the Bankruptcy realm as “priority debts” and cannot be discharged in most cases.  (Taxes and loans involving the government are also included in the priority category.)  It is vitally important to have all obligations in this category fully defined and explained in your Divorce Decree/Separation Agreement, as you will likely be fulfilling these obligations regardless of ever filing for Bankruptcy.

Filing for bankruptcy after a divorce is not the end of the world.  In fact, it may be the best thing that ever happened to you, and will help you to move on and start fresh.

Equifax Data Breach: What to do if your credit has been compromised

by Seena Gressin

Re-posted from the Federal Trade Commission Website

If you have a credit report, there’s a good chance that you’re one of the 143 million American consumers whose sensitive personal information was exposed in a data breach at Equifax, one of the nation’s three major credit reporting agencies.

Here are the facts, according to Equifax. The breach lasted from mid-May through July. The hackers accessed people’s names, Social Security numbers, birth dates, addresses and, in some instances, driver’s license numbers. They also stole credit card numbers for about 209,000 people and dispute documents with personal identifying information for about 182,000 people. And they grabbed personal information of people in the UK and Canada too.
There are steps to take to help protect your information from being misused. Visit Equifax’s website, www.equifaxsecurity2017.com. (This link takes you away from our site. Equifaxsecurity2017.com is not controlled by the FTC.)
    • Find out if your information was exposed. Click on the “Potential Impact” tab and enter your last name and the last six digits of your Social Security number. Your Social Security number is sensitive information, so make sure you’re on a secure computer and an encrypted network connection any time you enter it. The site will tell you if you’ve been affected by this breach.
  • Whether or not your information was exposed, U.S. consumers can get a year of free credit monitoring and other services. The site will give you a date when you can come back to enroll. Write down the date and come back to the site and click “Enroll” on that date. You have until November 21, 2017 to enroll.
Here are some other steps to take to help protect yourself after a data breach:
    • Check your credit reports from Equifax, Experian, and TransUnion — for free — by visiting annualcreditreport.com. Accounts or activity that you don’t recognize could indicate identity theft. Visit IdentityTheft.gov to find out what to do.
    • Consider placing a credit freeze on your files. A credit freeze makes it harder for someone to open a new account in your name. Keep in mind that a credit freeze won’t prevent a thief from making charges to your existing accounts.
  • Monitor your existing credit card and bank accounts closely for charges you don’t recognize.
  • If you decide against a credit freeze, consider placing a fraud alert on your files. A fraud alert warns creditors that you may be an identity theft victim and that they should verify that anyone seeking credit in your name really is you.
  • File your taxes early — as soon as you have the tax information you need, before a scammer can. Tax identity theft happens when someone uses your Social Security number to get a tax refund or a job. Respond right away to letters from the IRS.
Visit Identitytheft.gov/databreach to learn more about protecting yourself after a data breach.
https://www.consumer.ftc.gov/blog/2017/09/equifax-data-breach-what-do

 

5 Ways to Save Money at a Carnival

Carnivals are great places to go where families can have fun times together and make great memories.  With no admission fees to most Carnivals, often folks have the impression that they are inexpensive.  Unfortunately, that is not always the case.  The cost of food, games, and rides most certainly adds up and a so-called “inexpensive” family night out has run your credit card up the same amount of money as a five star restaurant would.

Below are five ways to save money on your next trip to a Carnival:

  1. TREATS: Treats such as funnel cakes, popcorn, corn dogs, and cotton candy are so expensive at Carnivals so be sure to eat at home before you go and try to bring your own drinks to the Carnival to defray costs.
  2. DISCOUNTS: Take a look at the Carnival’s website before you go (see below for a few local carnivals and links to their websites) to check for any deals that may be available.  Sometimes there are coupons and discounts for groups, seniors/grandparents, etc. available online.
  3. SOUVENIRS: These can get super expensive, especially if you are trying to win one!  Limit how many tries you take, and shop around to different vendors within the carnival before you drop hundreds of dollars on one stuffed animal.
  4. PARKING: Scope out the parking situation before the day of the carnival.  On-site parking can be costly, but definitely more convenient.  Alternatively, you can try to find an off-site parking lot that will most likely be much cheaper or try Uber.
  5. RIDES: Paying per ride can get very expensive.  Again, go online or look at the carnival ticket booth for discounts and special packages.  They may have bracelet options or special deals for different age groups.

Carnivals can be a fun filled family day, but if you do not plan your trip wisely, they can be quite costly.  So, use these money saving tips above in order to have a fun filled “money-saving” family day!

Check out some local Carnivals below and have a Safe and Fun Summer!

Whee,
Theresa Rose DeGray
Attorney at Law

Savin Rock Festival
West Haven | July 27-30

Orange Volunteer Fire Association Carnival
Orange | August 3-6

Holy Rosary Italian Festival
Ansonia | August 10-12

Gain Financial Freedom in your Pursuit of Happiness!

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Every year I re-read the Declaration of Independence and meditate on the amazing freedoms I enjoy (and sometimes admittedly, take for granted). This year I have been studying the history of Bankruptcy in America and came across this wonderful book called Republic of Debtors: Bankruptcy in the Age of American Independence by Bruce H. Mann.

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After reading a bit of this book, I realized how incredibility blessed we are to have the laws that allow us to file Bankruptcy with ease of process, and without judgment or fear. It wasn’t always that way and not everyone who suffered from crushing debt was given that second chance. It took years and a lot of legislation to get the laws where they are today; the laws that protect debtors from their creditors.

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I believe the secret to happiness is the freedom of choice. When you choose to take the first step to get out of debt you begin on the road to financial freedom. Bankruptcy will help you keep your home, relieve you of unsecured debt, keep your utilities on and give you the freedom to start over. It was the best thing that ever happened to me (read my personal Bankruptcy story here) and was my own declaration of independence.

25% Off Estate Planning / Reminders & Announcements

For the month of January 2017, all Estate Planning Packages are 25% off.  They include a Will, Living Will and Power of Attorney.  Also, we are announcing that we are moving from 74 Cherry Street to 50 Cherry Street, Milford, CT as of February 1, 2017, and we will be starting a new Blog/Vlog Series in February 2017 regarding the entire Chapter 7 Bankruptcy process!!

Back To School Shopping On A Budget

Back to school shopping is no doubt a pain for all parents. If you’re watching your finances, school supply shopping can be even more difficult. However, back to school shopping on a budget can be a breeze if you do it right. Below are some tips every parent should incorporate into their August-September back to school shopping for their children.

  • Set a budget. Go into the back to school shopping season with a specific budget. Let your children know what the overall budget is and that there will be no going over it.
  • Make a list! Get a list of supplies that your children need from each of their teachers. Before you go out and purchase everything, go through your home and look for things you may be able to cross off the list. Look at what school supplies your children have left from the previous year and what things you may be able to reuse. Also separate the list into needs and wants. Get all of the essentials for your child and in order to keep under budget, consider skipping some of the “wants” on the list.
  • Don’t go right to Staples for your child’s school supplies. Get things like pencils and pens from your local Dollar Store.
  • Buy your child a bookbag that will last! Brands like L.L Bean and Jansport have a lifetime guarantee on all their bags so buy one that your child can use year after year so you will definitely get your money’s worth.
  • Reuse! Buy your children plastic folders instead of cardboard and such. The plastic will be reusable for years after the purchase as long as your children take care of them.
  • Look through your children’s closet and see exactly what they need so you may plan ahead. Avoid shopping in August for clothes. If you can, wait until mid September or around that time in order to hit the sales that go on after stores think that everyone in town has already completed their back to school shopping. Alternatively, your family can go clothing shopping for fall clothes at the beginning of the summer in order to take advantage of some deals.
  • Try shopping at local thrift stores or outlet malls. Some thrift stores sell name brands for cheap and outlets always have good deals on clothes and shoes.

 

Back to school shopping no longer needs to be a dreadful, money-sucking event that happens at the end of every summer. If you use these helpful tips, you will succeed in getting all the supplies your children need, but also stay well under your budget.

5 Ways To Save Money At A Carnival

Carnivals are a place that families go in order to have a fun night out together. With no admission fees to most carnivals or fairs, some people have the impression that they are inexpensive. Although, unfortunately, that is not always the case with these game-filled and ride oriented affairs. The cost of food, games, and rides most certainly adds up and your so-called “inexpensive” family night out has run your credit card the same amount of money as a five star dinner for two. Below are five ways to save money on a trip to the carnival.

  1. Allot one treat per child. Instead of spending over $100 on food at the carnival, talk to all of your children in advance and let them know that they are entitled to one treat and one treat only while at the fair. Treats such as funnel cakes, candy, popcorn, corn dogs, and things of that nature are so expensive at carnivals so be sure to bring snacks and drinks with you. Take things from your own home such as water, juice boxes, granola bars, and chips to snack on so your children’s one allotted snack each fills them up.
  2. Take a look at the fair or carnival’s website before you go to check for any deals that may be available. Sometimes there are coupons and discounts for rides only available online that are not advertised. You will never know that discounts and such were available unless you look for them!
  3. Think hard about souvenirs. Do you really need that $15 souvenir cup with free refills? No one needs that much soda in one day.
  4. Scope out the parking situation before the day of the carnival. On-site parking can be costly, but definitely more convenient. Alternatively, if you are looking to save money, maybe find an off-site parking lot that will most likely be much cheaper. Sure, you and your family may have to walk a little bit, but the money you will save will be well worth it.
  5. Limit the rides. Rides can be very expensive at fairs and may run anywhere from $4 to $9 each. Tell your children before even getting to the fair to choose their rides wisely because each child will only be able to pick two or three to go on.

Carnivals can be a fun filled family day, but if you do not plan your trip wisely, they can be quite costly. Check online for coupons and discounts that you may be able to use. Have a talk with your children and let them know that this day trip will not be a free for all. The children will be allotted a certain amount of rides and food choices each. Also think wisely about what souvenirs you buy. If there is a possibility you can get a souvenir somewhere else, it would be best not to buy it at a carnival for a more expensive price. Use these money saving tips above in order to have a fun money-saving family day!

FORECLOSURE DEFENSE & BANKRUPTCY SEMINAR | JUNE 8, 2016 | STAMFORD, CT

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Estate Planning & Identity Theft Seminar | Thursday, April 28, 2016 | Stamford, CT

FCBA SEMINAR

This firm is a debt relief agency. We help people file for bankruptcy relief amongst other things, under the Bankruptcy Code.