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Bill McLeod is a Boston-based bankruptcy attorney, representing creditors and debtors with over 15 years of experience. You can learn more about this and read more of his blog posts at www.mcleodlawoffices.com. Follow him on Twitter.  Find him on Facebook.

In recent months, I’ve been hearing from and speaking with attorneys young and old who express a desire to practice consumer bankruptcy law. Only some express a desire to enter into a practice area that is evolving, intellectually fascinating, and in this economy extraordinarily relevant. Virtually (but not) all express their belief that this is one practice area that is expected to grow in the coming years. Some mention that as the only motivation to consider it. I guess they have mortgage payments too.

If you’re considering changing practice areas, adding practice areas, or entering the consumer bankruptcy arena as a newly minted attorney fresh off the bar exam lawyer, here’s my…

Top Ten Things You Need to Know Before You Become a Bankruptcy Lawyer

1. Own a copy of the bankruptcy code. If you do not have a copy of the bankruptcy code and you’re already practicing (or perhaps better said, think you’re practicing) bankruptcy law, you’re already doing a bad job. Actually, you’re flirting with a malpractice claim. I have two: one at the office, and one which is always in my brief case, and my brief case is almost always with me (except when I leave it home). In addition to owning it, you should read it.

2. Never forget the basics. Attorneys have rules. You cannot lie, nor can you help a client lie. You cannot steal, nor may you help a client steal. You cannot violate your oath. There is no “winking” in bankruptcy. (more…)

"So I ran into Bill in the clerk's office in Boston recently..."

Friends of Bankruptcy Bill (FOBB) are experienced consumer bankruptcy lawyers willing to share their thoughts and answer bankruptcy questions on this site. Feel free to get in touch if interested in contributing as a FOBB.

Bill McLeod is a Boston-based bankruptcy attorney, representing creditors and debtors with over 15 years of experience. You can learn more about this and read more of his blog posts at www.mcleodlawoffices.com. Follow him on Twitter.  Find him on Facebook.

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When you discover that you are a creditor in a bankruptcy case…

Bill McLeod, Esq.

Recently, I was in the clerk’s office in Boston and overheard two people ask the clerk which forms needed to be filed in a bankruptcy case.  But this person was not a debtor – they were a creditor.  Their landlord had filed bankruptcy.  The former tenant was looking for their security deposit back, and was going to sue the debtor in small claims.  I couldn’t help myself – and I butted in.

“You need relief from the automatic stay.”

“The stay applies even to me?” one asked.

“It applies to everyone.”

After that short exchange, I thought I would put together a short checklist of things to do when your landlord – or someone else you know who also happens to owe you money – files a petition seeking bankruptcy protection.

• Don’t panic.

People have the right to seek bankruptcy protection.  Simply because they do does not mean that you’re not going to get paid.  On the other hand, simply because I am encouraging you not to panic should not be read to mean that you are going to get paid.  But still, don’t panic.  In my experience, panic can lead to actions that can get you into more trouble…such as violating the automatic stay…so with that said…

• Don’t violate the automatic stay.

The automatic stay applies to all creditors.  It does not matter if you’re a big bank or a friend or neighbor of the debtor, the same rules apply.  There are very limited exceptions to the automatic stay and you should not assume that you fall under one of those exceptions.

If you know that someone has filed bankruptcy, do not call the debtor and ask about payment.  Do not send them a letter.  Do not sue them – even in small claims court.   Don’t assume that just because you heard about it from a third party and did not receive any written notice does not mean that the automatic stay does not apply to you.  Stay violations can be costly.  Willful violations of the stay can be very costly.

Call an experienced bankruptcy attorney to determine what your next course of action should be (such as filing a motion for relief from the automatic stay).  And remember, the court clerk’s office cannot give you legal advice.

• Consult with an attorney.

At a very minimum, talk to a bankruptcy attorney.  Be prepared to explain the basis of your claim against the debtor and why (more…)

"...and they tried to collect the debt right on the ski lift."

Friends of Bankruptcy Bill (FOBBs) are experienced consumer bankruptcy lawyers willing to share their thoughts and answer bankruptcy questions on this site. Feel free to get in touch if interested in contributing as a FOBB.

Gailyn Wink handles personal and small business Chapter 7 and Chapter 13 bankruptcies for Wink & Wink, P.C. She focuses on adversary proceedings and other bankruptcy litigation.  For more information, go to www.winkandwink.com.

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Debt Collection in Colorado:  Know your rights

If you are struggling with debt, there’s a good chance you are also struggling with unwanted contact from debt collectors. Sometimes these are your actual creditors, the ones you signed a contract with, but often the person calling you works for another company altogether because your debt has been sold to a debt collection agency. No matter who is contacting you about your debts, it’s not a good feeling. And when debt collectors cross the line, it can be downright scary. Knowing your rights where debt collection is concerned is important and empowering. Here’s some information about debt collection in Colorado that can help you get some control back if you are in that situation.

THE FAIR DEBT COLLECTION PRACTICES ACT

The Fair Debt Collection Practices Act, often referred to as the “FDCPA” was passed by Congress to reduce abusive, deceptive and unfair practices by debt collectors and to give consumers affected by that abusive behavior a remedy for violations: cash damages.

The FDCPA applies to debt collectors working to collect debts due to someone other than themselves. This means that the Act does not apply to in-house collections, such as when a department store with whom you have a credit card contacts you directly. There is an exception if the collector uses any name other than his own which would indicate that a third person is collecting or attempting to collect the debt.

WHAT THEY CANNOT DO

Talking to Other People: When contacting a third party (anyone other than you), debt collectors can only attempt to find out where you live and where they can contact you. They must correctly identify themselves, but they cannot tell the third party that they are calling about debt collections. They cannot call third parties if they already know where to find you. They cannot call third parties more than once (unless that person asked them to call back).

Talking to You: Debt collectors cannot contact you at unusual or inconvenient times. This means no calls before 9:00am or after 8:00pm (unless you or a court has authorized times outside of these boundaries). Debt collectors cannot contact you if you are represented by an attorney. Debt collectors cannot call you at work if they know your work does not allow you to receive such calls (tell them this the first time they call!). And very importantly, they have to tell you who they are and, if you ask, who they are working for, and that anything you tell them is going to be used to collect on the debt.

They Must Play Nice: The FDCPA prohibits abusive and (more…)

"So I says to Greg..."

Gregory A. Holbus, Esq. is a Green Bay, Wisconsin-based bankruptcy attorney licensed to practice in both Wisconsin and Michigan. To learn more about Greg, you can visit his website (www.holbuslaw.com) or his blog (wisconsinbankruptcy.blogspot.com).

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Greg Holbus, Esq.

U.S. Supreme Court to decide Means Test Issue, In re:  Lanning

Before I get to the heart of the story, allow me to give you a quick refresher about the Means Test and what it means for a bankruptcy petitioner.

To grossly over-simplify the Means Test, it is basically Congress’ attempt to create a mathematical formula to objectively determine how much money, if any, a debtor can afford to pay to creditors holding unsecured claims. It (Form B22) determines whether you qualify for a Chapter 7, in which all of your unsecured creditors are discharged. And if you don’t qualify for Chapter 7, the same form determines how much income is available to those creditors.

A number of statutory deficiencies exist which have given rise to disputes and some bizarre interpretations to several aspects of the Means Test, often resulting in gross inequities. One example is whether a Chapter 13 debtor can take deductions on the Means Test for payments on a secured debt which the debtor intends to surrender because the payments are contractually due at the time of filing. In re: Dionne, in the Eastern District of Wisconsin says they can. I feel awkward writing about that decision because for one thing – this decision is favorable to debtors, and I am a debtors’ counsel. Also, I have nothing but respect for the judge who rendered the decision.

But I respectfully disagree that a debtor should be allowed to deduct payments on a loan that the debtor knows full well they will not pay again in the future.  Fortunately for me, (more…)

"So I says to Russ..."

Friends of Bankruptcy Bill (FOBB) are experienced consumer bankruptcy lawyers willing to share their thoughts and answer bankruptcy questions on this site. Feel free to get in touch if interested in contributing as a FOBB.

Russell A. DeMott, Esq. is a Charleston, SC-based bankruptcy attorney with over 14 years of experience representing debtors in wide range of bankruptcy matters.  Originally from Michigan, he is licensed to practice in both South Carolina and Michigan.  To learn more about Russ, you can visit his website (www.scbankruptcyattorney.com) or his blog (www.scbankruptcyattorney.com/blog) and also find him on Facebook and Twitter.

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Russell A. DeMott, Esq.

Filing Bankruptcy to Surrender Assets (Sometimes it’s best)

When evaluating your financial situation, don’t let your emotions get in the way.  Chapter 7 or Chapter 13 bankruptcy may be the right solution, especially if you have assets with no equity.

I recently met a very distressed client.  He had three houses that he had been trying to keep for over two years.  Two of the properties were worth over $400,000 each.  One was worth about $200,000.   However, on each of the properties, the mortgage balances far exceeded the value.  The client had over a million dollars in property, but he owed far more than that.

As we discussed his financial goals and ability to pay his debts, I explained to him that the calculator on my desk was worth more than all three of these properties combined.  He looked puzzled.  After I explained that the calculator was worth something–at least a dollar–and that I owned it free and clear of any liens, I could see that he finally understood.  He also understood that the house payments he’d been paying were nothing more than rent.  It would be years and years before he even got to the break even point with the properties.

Photo by Michael Mulligan

He had been struggling for years to keep the properties.  He’d tried the HAMP (“Home Affordable Modification Program”), he’d tried negotiating, and he’d written letters.  All this was to no avail.  He was emotionally exhausted.  My recommendation was that he file a Chapter 7 bankruptcy and surrender the properties.

He left relieved.  He looked like a weight had been lifted from his shoulders.  He understood that he couldn’t go on like this and was glad he took time to learn that the bankruptcy laws could give him a fresh start.

Keep in mind that the value of your property is in the equity (fair market value less what you owe on it in mortgages and other liens).  If you have no equity and you can’t afford the monthly payments, you need to take a hard look at just why you are trying to keep these properties.  Think with your head and not your heart.  And keep focused on what’s really important in life.

"So I says to Bill..."

Friends of Bankruptcy Bill (FOBB) are experienced consumer bankruptcy lawyers willing to share their thoughts and answer bankruptcy questions on this site. Feel free to get in touch if interested in contributing as a FOBB.

Bill McLeod is a Boston-based bankruptcy attorney, representing creditors and debtors with over 15 years of experience. You can learn more about this and read more of his blog posts at www.mcleodlawoffices.com. Follow him on Twitter.  Find him on Facebook.

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Bill McLeod, Esq.

Who really files for bankruptcy?

What leads a person to the steps of the bankruptcy court seeking relief from debt? That is not an easy question to answer – although there are some out there who may think they know the answer. But as I was digesting a recent opinion out of the Bankruptcy Court in the Northern District of Texas, I read the following:

Anecdotally, this court notes that it sees all sorts of consumer debtors come through the bankruptcy system. At one end of the spectrum, there are individuals who have been plagued with many bad circumstances that have led to their financial demise-such as health problems, injuries, medical bills, job loss or instability, divorce, or death of a bread winner. At the other end of the spectrum, there are individuals who have been blessed with good health and adequate jobs and resources, and yet have somehow created a mountain of consumer debt that they (and probably their creditors) should have known could never be repaid. Some of these latter individuals have even engaged in some sort of fraud along the way-perhaps in a loan application at some point, or with intentional avoidance and nonpayment of taxes, or by hiding assets before entering into bankruptcy.

But the vast majority of debtors this court sees fall somewhere between the two extremes. They are individuals who probably cannot honestly blame “bad luck” as the cause of all of their woes. And many of them have made more poor choices than wise ones, and such choices have finally caught up with them.

So what does this mean, and why am I sharing it with you? The easiest answer is that it is my experience that the court is right. However, there’s a rather significant “but…” (more…)