Monday, February 22, 2010

Can I Keep The House If I File Bankruptcy?

It might be the number one question I get asked about personal bankruptcy.


"Can I keep the house?"

It makes sense. We are often very attached to our homes. Few of us want to move if we don't have to.

It is probably also the area of bankruptcy law where there is the most confusion. I know this because when I give the answer, people are often surprised.

The answer: "It depends"

Really, there is no hard and fast rule here. It is not as if every chapter 7 debtor has to give up his or her house or every chapter 13 debtor gets to keep it. Or vice versa. It just doesn't work that way.

To oversimplify, a chapter 7 debtor who can manage to make all the mortgage payments probably will keep his or her house. There is at least one exception: If the house has substantial equity in it, the trustee might try to liquidate it. By substantial, I mean at least tens of thousands of dollars and maybe more. Frankly, that doesn't happen too often in the current environment.

For a chapter 13 debtor, the analysis is quite a bit more complex. Again to oversimplify, if the debtor can manage to pay the amounts owed to its lenders -- even by using future earnings over a period of years to pay amounts past due -- the debtor probably can keep the house. Whether this is possible in a particular circumstance depends upon a lot of different factors. That is one of the many reasons that it is best to have a competent bankruptcy lawyer if you are going to file a bankruptcy case.

So if you really want to know whether you get to keep the house if you file a bankruptcy, consult a bankruptcy attorney. He or she can look at your particular situation and see what your options are.

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Tuesday, February 16, 2010

Four Ways That Student Loan Debt Is Like A Tattoo

One of the harder discussions I have with consumer clients is explaining student loan debt. That's because student loan debt is troublesome in a lot of ways. To show the quirky nature of student loans, I am using a little analogy.

Here are four ways that student loan debt is like a tattoo.

#1 You tend to get it when you're young.

What's the typical age for the first tattoo? I found one Danish site that said about 23 years old for men and 21 for women. Folks tend to get student loans at about the same time. They are in college or grad school and need money to pay for it.

#2 They are easy to get.

What do you need to get a tattoo? Evidence that you are old enough and a few bucks in your pocket.

What do you need to get a student loan? Often even less. You don't necessarily need to have any money or show any sign of being employable.

#3 They are hard to get rid of.

Seriously, ever try to get rid of a tattoo? It costs a lot of money and takes a lot of time. A tattoo is pretty much designed to go with you to your grave.

Just like a student loan.

Odds are, you will pay off the student loan or you will take it to your grave.

#4 I can't help you much with either one.

It's true. I am a restructuring attorney, not a dermatologist. If you want to get a tattoo removed, I can't help you.

If you want to get rid of a student loan, there isn't much I can do for you there either. Almost every kind of debt can be addressed one way or another. Most kinds are dischargeable in a chapter 7 bankruptcy. Almost all kinds are dischargeable in a chapter 13 bankruptcy. Secured debt can be addressed through the collateral. Some kinds can be negotiated and settled with lenders.

But student loan debt is dischargeable only in cases of undue hardship. The caselaw on undue hardship is not favorable for the borrower. If you are able to work, your chances of getting a student loan discharged are not good.

That said, if we eliminate or restructure your other debts, you might find that the student loan payments are easier to make. And sometimes you can consolidate loans to reduce interest rates and improve the payment plan.

But keep all of this in mind if you thinking about getting a tattoo or dealing with education expenses.

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Monday, February 8, 2010

True Story From My Best Birthday Ever

About a dozen years ago, my wife gave me a very special birthday present. She arranged for us to have a weekend at Pebble Beach and have me play a round of golf there.


This was a special present not just because I got to play Pebble Beach. The year prior I had spent my birthday doing my second of six rounds of chemotherapy. (Ed: It was acute non-Hodgkins lymphoma and I'm fine now, thanks.) So suffice it to say that this was a vastly better birthday than the year before. I still have the picture in my office of playing golf there.

I wanted to walk rather than take a cart so I hired a caddy. I'm going to change his name here to protect his privacy. We'll just call him Dave.

For all sorts of reasons, I really enjoyed my round that day. The weather was nice. The views were beautiful. The course was in good shape.

Most of all, though, I really enjoyed the company of my caddy.

Dave and his wife had moved to the area a few years earlier because they wanted to enjoy a more relaxed lifestyle than they had before. Dave was working as a caddy and not making great money by any stretch. But his job involved walking Pebble Beach every day and meeting people. He clearly enjoyed his job.

We were a few holes into the round when Dave asked me, "So, Andy, what do you for a living?" After I told him, he got very excited: "We filed bankruptcy two years ago. Best thing we ever did." I explained that most people who file a bankruptcy are much better off for it. He couldn't have agreed more.

There were a couple things going on in Dave's life that precipitated the filing. First, his wife liked to shop and got them a little stretched with credit cards. Second, his wife was diagnosed with multiple sclerosis and that affected her ability to work.

Dave told me the story about how his wife initially was reluctant to file bankruptcy: "It'll be the end of us," she said. He joked that the shopping was going to take them down long before the bankruptcy would.

I asked how she came around. Dave explained that, once they met with their attorney and she laid out how bankruptcy worked, his wife got comfortable with what was involved. Obviously, the process of filing personal bankruptcy isn't all that pleasant. But the pain of filing a bankruptcy is usually less than the pain of trying to get out of debt that is beyond one's means.

Why am I telling this story?

It's not because I want you to call me to file your case. Obviously I am happy to help if you or someone you know can use my services. But there will be about 1.5 million personal bankruptcy cases this year. That will be more than enough to keep people like me busy.

I am telling this story because it is typical of what people in financial distress go through. At first, they have this terrible mix of emotions arising from debts they can't manage. Many eventually decide that they need to call someone like me. A lot of them dread that call like nothing else. Once they understand the process and come to accept it, the prospect of bankruptcy isn't so bad. After their case is done, they are relieved.

When people I meet learn what I do, lots of them start talking to me about their personal bankruptcy cases from years past. It's not necessarily something they're proud of. But they want to share their experiences and don't mind talking about it.

Some people think that they are immune from the financial pressures that afflict millions of other people in the United States. Some people think that only bad/dishonest/irresponsible people file bankruptcy. They think, "It can't happen to me." Unfortunately, it can happen to anyone.

Everybody goes through hard times. Sometimes it's illness. Sometimes it's family troubles. Sometimes it's financial troubles. Unfortunately some of those overlap quite often. We all try to avoid the hard times. But ultimately some bad things happen even to the best of people.

I talk on a daily basis with people from all walks of life. They are of all ages, income classes, education levels, and ethnic backgrounds. The reasons for their problems are similarly diverse. Bad things often happen to good people.

Financial restructuring is a lot like chemotherapy or any other treatment for a dangerous disease. It's not terribly pleasant. But it usually leaves you better off than you were before.

Fortunately, most folks are good, honest people. They will get through the process largely unscathed and be able to talk openly about it later. Dave certainly didn't mind talking about it. Ultimately it was just one of the things that happened to him in life and that he got through.

And he gave me a really good story. So small surprise that a few years later when I had the chance to play Pebble Beach again, I specifically requested him. He only vaguely remembered me then. But he asked again what I did.

Then he remembered all about me.

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Monday, February 1, 2010

The Most Common Mistake People In Financial Distress Make

What's the most common mistake that people in financial distress make?


They wait too long before calling someone like me

Or at least they probably wait longer than they should.

People get into financial distress for all sorts of reasons. They have a health issue, sudden loss of income, poor financial planning, divorce, or any combination of those or other reasons. Some of these we can control to some degree and some we can't.

But turning to a restructuring professional anyone can do at any time. Most of us will chat for a bit over the phone to discuss the situation at no charge. Maybe you can restructure your debts, maybe you need to file a bankruptcy case, maybe there is some other approach.

And it's probably best that people do so earlier rather than later. Why? Because as time passes your options decrease. If things are not too far gone, maybe there is a chance at restructuring things and avoiding bankruptcy. Even if you are in the position where you must file a bankruptcy, it is possible to time the filing in a way that might be advantageous to you.

It is fairly common that someone contacts me a few months after the point at which I could have saved them some money or presented them with better options. Perhaps they just spent a ridiculous amount of money on a debt settlement program that had no chance of succeeding. Perhaps they just finalized terms of their divorce in a way that compromises their financial situation. Perhaps they got so far behind on their house that they have to file a chapter 13 instead of a chapter 7. Perhaps there is a judgment about to be entered or wages being garnished. There are a lot of different variations on that theme.

The luxury of time goes a long way. If we can plan a little bit ahead, more options are likely to be available.

Call sooner rather than later.

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