Archive for the ‘Bankruptcy’ Category

Understanding Tom Martino’s Bankruptcy, Non-Consumer Chapter 7 Bankruptcy!

Wednesday, September 14th, 2011

Local Colorado celebrity Tom Martino filed chapter 7 bankruptcy on September 2, 2011. In Martino’s bankruptcy petition he reported income of $453,924 just from the Troubleshooter network. How does someone who has an income greater than 97.2% of the U.S. Population get to file Chapter 7 bankruptcy and wipe over $75 million in debt? According to Martino’s bankruptcy petition, he shows net monthly income (that is left over money after expenses) of $89,860.16. Didn’t the 2005 bankruptcy amendments make it so high income earners could not file chapter 7 bankruptcy?

Mr. Martino is known as the “Troubleshooter” and hosts a radio and T.V. show providing consumer advice and advocacy and he provides a referral list of “trusted” businesses.  He has other businesses and real estate holdings (which were apparently his financial downfall).

The 2005 bankruptcy amendments (otherwise known as BAPCPA) put in place a Means Test. The Means Test was designed to be a rote calculation to determine who could qualify for chapter 7 bankruptcy and who had to pay something back in chapter 13 or chapter 11 bankruptcy. You would think that someone with almost $90,000 in disposable income would be required to pay something back? Not so fast!

The bankruptcy code provides an exception. The means test is only applicable to individual filers who have primarily consumer debt. Most of Mr. Martino’s debt is related to real estate investments and business investments. As such, the majority of his debt is non-consumer debt; and according to bankruptcy code section 707(b)(1) the court may only dismiss a case of an individual with disposable income (that is a means to pay something back to creditors) only if that debtor’s debt is primarily consumer debt. Consumer debt is personal credit cards, mortgage on your primary residence, car loans, etc.

Entrepreneurs and business owners get a bankruptcy pass (so to speak) for taking risks to invest, open businesses, and employ people. If and when those endeavors fail, the bankruptcy code allows entrepreneurs to walk-away so they can continue to be contributing members of society.

Tom Martino filed a non-consumer chapter 7 bankruptcy; so even though he has plenty of money left over at the end of the month, the bankruptcy system will not require him to pay back even a portion of his debt. We shall see?

What is a Motion for Relief From Stay in Bankruptcy?

Monday, September 12th, 2011

A Motion for Relief from Stay (“MRS”) is usually filed by secured creditors to allow them to continue with repossession or foreclosure (that is, exercise their security interest) notwithstanding the bankruptcy.

First, when an individual files for bankruptcy, they receive the benefit of the Automatic Stay. The Automatic Stay stops all collection activity, including foreclosure and automobile repossession, against the client. Second, secured creditors have a security interest in an item of property owned by the client; the typical examples are houses and cars. Third, a bankruptcy does not extinguish or discharge a secured creditors’ security interest; the security interest survives a bankruptcy. As such, secured creditors can still enforce their security interest if the client is in default on her loan. However, because of the Automatic Stay, secured creditors are halted from initiating or continuing with the foreclosure or repossession process. The Automatic Stay continues in effect from the date a client files bankruptcy until the case is discharge.

Typical chapter 7 bankruptcies take 4-5 months and chapter 13 bankruptcies take 3-5 years. If clients are unable to become current on their secured obligations, e.g. car payment, mortgage payment; the secured creditor can file a Motion for Relief From Stay, which, if granted, will allow the secured creditor to initiate or continue their enforcement action (foreclosure/repossession) before the bankruptcy is discharged. Nine times out of ten a MRS is not an issue because the client is surrendering the item of property. In a chapter 7, if the client goes into it behind on her car payments or mortgage payments, a MRS is issued almost automatically by the secured creditor. In short, a Motion for Relief of Stay is used so that an action that is normally halted by bankruptcy may be initiated or continued notwithstanding the bankruptcy.

Can the Bankruptcy Trustee Take My Business?

Thursday, September 8th, 2011

If a individual files bankruptcy and owns an interest in a corporate entity or limited liability company, then the bankruptcy trustee steps into the shoes of the debtor and inherits the debtor’s rights. However, the rights of the trustee will be limited by the Articles of Incorporation and whatever Operating Agreement is in force at the time the debtor files bankruptcy. The trustee cannot exercise more rights over the company than the debtor; thus, if the debtor does not have the right to force a liquidation of the company, then neither can the Bankruptcy Trustee. If the company was properly formed and has an operating agreement, most operating agreements have provisions to deal with a part owner’s bankruptcy (e.g. automatic revision of the shares to the corporation etc). But if the business entity has only one owner, then the bankruptcy trustee can easily liquidate the business if there is a reason to do so.

Generally speaking, unless the Corporation or LLC owns tangible assets (cars, trucks, fixtures, inventory etc) or has significant cash flow or accounts receivables with few expenses or business debt, bankruptcy trustees take little interest in a debtors corporation.

Two Bankruptcy Secrets Your Creditors Don’t Want You To Know!

Thursday, September 8th, 2011
  1. Bankruptcy is NOT a 10 year death sentence to your credit. Most peoples credit score recovers in 18 to 24 months after bankruptcy.
  2. Most people lose nothing in a chapter 7 bankruptcy.

Credit rebuilding after bankruptcy occurs fairly quickly and you will have access to credit (if you want it) immediately after filing bankruptcy. You will be shocked by how quickly you receive credit card offers and offers to finance a car immediately after your chapter 7 bankruptcy discharge. During that rebuilding phase, if you use credit, you will pay a higher interest rate, but once you reach that 18-24 month mark, you should be able to receive market, prime credit interest rates.

Every state, in some manner, allows you to protect your assets from being taken in bankruptcy. Bankruptcy is not about leaving you destitute for the benefit of your creditors. Bankruptcy is about rebuilding your financial life so you can thrive and be successful. In over 90% of chapter 7 bankruptcies, the debtor loses nothing (source).

Move Your Money Movement – Take Control!

Tuesday, March 30th, 2010

Move your funds out of the bailout Wall Street banks and financial institutions.  Without which future generations will be saddled with this illegitimate debt and drain on the American economy for decades to come.  Send a message to the banks that you have had enough!
MOVE YOUR MONEY!“>

Click here for more Move Your Money Movement Link

Bailouts and bonuses have many Americans frustrated with big banks. Some consumers think these giant institutions have lost touch with customers and basic good business practices. They’re so fed up that they’re holding these behemoths accountable by moving their money to community banks.


Click here for Move Your Money Movement Link

Top Five Reasons People File for Bankruptcy

Tuesday, March 23rd, 2010

The bankruptcy statistics in America are alarming. The past few decades have seen a dramatic rise in the number of people that are unable to pay off their debts, and Congress has recently addressed the issue with legislation that makes it harder to qualify for this status. Following is a list of the most common causes of bankruptcy in America today.

1. Medical Expenses

A study done at Harvard University indicates that this is the biggest cause of bankruptcy, representing 62% of all personal bankruptcies. One of the interesting caveats of this study shows that 78% of filers had some form of health insurance, thus bucking the myth that medical bills affect only the uninsured.

Rare or serious diseases or injuries can easily result in hundreds of thousands of dollars in medical bills – bills that can quickly wipe out savings and retirement accounts, college education funds and home equity. Once these have been exhausted, bankruptcy may be the only shelter left, regardless of whether the patient or his or her family was able to apply health coverage to a portion of the bill or not.

2. Job Loss

Whether due to layoff, termination or resignation, the loss of income from a job can be equally devastating. Some are lucky enough to receive severance packages, but many find pink slips on their desks or lockers with little or no prior notice. Not having an emergency fund to draw from only worsens this situation, and using credit cards to pay bills can be disastrous.

The loss of insurance coverage and the cost of COBRA insurance also drain the job seeker’s already limited resources. Those who are unable to find similar gainful employment for an extended period of time may not be able to recover from the lack of income in time to keep the creditors at bay.

3. Poor/Excess Use of Credit

Some people simply can’t control their spending. Credit card bills, installment debt, car and other loan payments can eventually spiral out of control, until finally the borrower is unable to make even the minimum payment on each type of debt. If the borrower cannot access funds from friends or family or otherwise obtain a debt-consolidation loan, then bankruptcy is usually the inevitable alternative.

Statistics indicate that most debt-consolidation plans fail for various reasons, and usually only delay filing for most participants. Although home-equity loans can be a good remedy for unsecured debt in some cases, once it is exhausted, irresponsible borrowers can face foreclosure on their homes if they are unable to make this payment as well.

4. Divorce/Separation

Marital dissolutions create tremendous financial strain on both partners in several ways. First come the legal fees, which can be astronomical in some cases, followed by a division of marital assets, decree of child support and/or alimony, and finally the ongoing cost of keeping up two separate households after the split. The legal costs alone are enough to force some to file, while wage garnishments to cover back child support or alimony can strip others of the ability to pay the rest of their bills. Spouses who fail to pay the support dictated in the agreement often leave the other completely destitute.

5. Unexpected Expenses

Loss of property due to theft or casualty, such as earthquakes, floods or tornadoes for which the owner is not insured can force some into bankruptcy. Many homeowners are likely unaware that they must take out separate coverage for certain events such as earthquakes. Those who do not have coverage for this type of peril can face the loss of not only their homes but most or all of their possessions as well. Not only must they then pay to replace these items, but they must also find immediate food and shelter in the meantime. Furthermore, those who lose their wardrobes in such a catastrophe may not be able to dress appropriately for their work, which could cost them their jobs.

Reaffirmations – Why the Judge Denying one is a good thing!

Thursday, February 18th, 2010

Even if a debt can be discharged, you may have special reasons why you want to promise to pay it. For example, you may want to negotiate a better deal or bring current with the bank on your car or home. To promise to pay that debt, you must sign and file a reaffirmation agreement with the court.  Reaffirmation agreements are required by bankruptcy law on vehicles only. Reaffirmation agreements–

  • must be voluntary;
  • must not place too heavy a burden on you or your family;
  • must be in your best interest; and
  • can be canceled anytime before the court issues your discharge or within 60 days after the agreement is filed with the court, whichever gives you the most time.

If you are an individual and you are not represented by an attorney, or it has been established that the agreement falls under “Undue Hardship”  the court must hold a hearing to decide whether to approve the reaffirmation agreement. The agreement will not be legally binding until the court approves it. If the court does not approve the agreement, you do not lose the car or house unless you have not been paying on the loan.

If you reaffirm a debt and then fail to pay it, you owe the debt the same as though there was no bankruptcy. The debt will not be discharged and the creditor can take action to recover any property on which it has a lien or mortgage. The creditor can also take legal action to recover a judgment against you. -  – and in financial trouble again.

101- Bankruptcy Chapters

Wednesday, February 17th, 2010

WHAT KINDS OF BANKRUPTCY CASES ARE THERE?

There are three  types of bankruptcy cases that a consumer would be interested in:

  • Chapter 7 is know as “straight” bankruptcy or “liquidation.” Debtors are provided certain cash limits on assets called “exemptions,” .  If a client is over these limits, the Debtor often has an opportunity to purchase back this property for the cash value over the exemption amount, from the Trustee.
  • Chapter 11, known as “reorganization,” is used by businesses and a few individual debtors whose debts are very high and they are unable to file a Chapter 13 or 7.
  • Chapter 13  requires a debtor to Chapter 13 Plan to repay a portion of certain debt,  from what is lets in their monthly household budget, after expenses.  This is the chapter that allows you to strip a mortgage from your home or cram a car to it’s value, for repayment.

Most people filing bankruptcy will want to file under  Chapter 7.   Either type of case may be filed individually or by a married couple filing jointly.

Basic Bankruptcy 101

Tuesday, February 16th, 2010

Bankruptcy is a way to temporarily suspend, and later prevent, all debt collection actions for debts you had at the time you filed your bankruptcy petition.

Once a person files for bankruptcy, the federal court grants an “automatic stay.” This prevents creditors from attempting to collect on any outstanding debts. Creditors may petition the court for relief from the automatic stay. Often, creditors whose loans are secured by property are permitted to take possession of that property.

 
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