Chapter 13 Bankruptcy

Published on: August 31, 2020

Our team will be presenting a webinar for the TBBBA tomorrow on The Intersection of Bankruptcy and Estate Planning

Don’t forget to register and put tomorrow’s (9/1/20) TBBBA consumer Zoom lunch at noon on your calendar. An attendee link was blasted out to all Tampa Bay Bankruptcy Bar Association members.

This month we have Ha Dao and Barbara Leon presenting: The Intersection of Bankruptcy and Estate Planning: How to Protect your Clients in this Life and Beyond. Examples of some questions to be covered include:

What happens to my inheritance if my parents, grandparents, etc. die while I’m in bankruptcy?

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Published on: July 16, 2020

For our attorney followers: we’re setting up the TBBBA fall line up now!

By Christie D. Arkovich, P.A.

The TBBBA is entering the Zoom age for the Consumer Lunches starting at Noon August 4 and continuing the first Tuesday of every month. The Zoom coordinates will be sent later in a TBBBA email blast.

It’s bring your own lunch – but no commute! CLE credit.

First up is: The Intersection of Bankruptcy and Tenant rights: Monetizing FDCPA and FCCPA claims for tenants.

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Published on: May 15, 2020

Local Insight Provided about the CARES Act on May 20 next week!

By Christie D. Arkovich, P.A.

Webinar: Why you should care about the CARES Act

May 20, 2020 at Noon

The Tampa Bay Bankruptcy Bar Association will be hosting a FREE Webinar via Zoom on May 20, 2020 from 12:00 to 1:30pm. Why you should care about the CARES Act and its impact on Student Loans, Foreclosure, Collection, and Consumer and Business Bankruptcy. Christie Arkovich, Jake Blanchard, Nicole Mariani Noel and Chapter 13 Trustee, Kelly Remick, will discuss provisions of the stimulus bill that expand or create options for Debtors in Chapter 13 cases as well as Small Business Debtors under Subchapter V and many more. Panelists will also discuss foreclosure, forbearance, collection and student loan impacts. No cost to attend. This will be a live webinar and will not be recorded. Register here.

Couldn’t come at a better time now that things are hoppin’ a bit more! I encourage our colleagues to register for local insight to help represent our clients the best we can in these trying times

Published on: May 2, 2020

How to Correct Your Credit Reports When Your Mortgage Payments are Not Reported Post Bankruptcy Discharge

By Christie D. Arkovich, P.A.

It can be risky to reaffirm a mortgage in a bankruptcy, particularly when the property is underwater (worth less than what is owed), or you may need to move and sell quickly. A reaffirmation agreement puts you back on the hook to pay for the full amount of the mortgage, including interest, taxes, insurance, foreclosure fees and costs after a bankruptcy, if you elect to keep the home. Why would someone ever sign one of these? Well, most mortgage companies do not report payments being made on a non-reaffirmed mortgage. So how do you avoid the risk, while at the same time, benefit from timely payments being made which rebuilds credit?

SELF REPORTING MORTGAGE PAYMENTS

WHEN YOUR LOAN WAS NOT REAFFIRMED

The bankruptcy code does not require that you reaffirm, or sign a court order agreeing to continue the payments on your mortgage. But unless you are surrendering your house, you will want to continue paying because the house will eventually be foreclosed if you do not.

Mortgage companies will not report your payments to the three major credit reporting agencies (Experian, TransUnion, and Equifax) if you have not reaffirmed. It is possible, nonetheless, to still get your payment history included in your credit report, as follows:

Request a payment history from the mortgage company. (The mortgage company is required by law to provide one every year free of charge.) There is no special form – just call your mortgage company and be persistent.
File a dispute with the three credit reporting agencies, attaching a copy of the payment history.
The credit reporting agency is required to verify the accuracy of the debt with the mortgage company within 30 days.
At that point, the mortgage company can either:

Remain silent – the credit reporting agency must accept the information you provided; or
Accurately report information. The mortgage company would be hard pressed to explain how a payment history it prepared was inaccurate.
Repeat this process on a regular basis, to update the information.

Additionally, you should keep the payment history, since that can be provided to anyone you’re applying to for new credit.

Published on: March 7, 2020

The Ugly Truth About Debt Relief Companies

By Christie D. Arkovich, P.A.

I just found an eye opening video by Gary Fraley, a certified bankruptcy attorney in California, on why debt relief companies should be avoided!

Watch the video – it’s short, to the point, and there’s a cool saddle in the back ground — looks like a former Texas transplant to California. I kept looking for a cowboy hat, but that’s probably in his Ford truck hung on the rifle rack. Okay, I may have been watching too many Ranches on Netflix lately!

www.youtube.com/watch?v=DP1BVHdsexc

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Published on: March 2, 2020

Are Student Loans Considered “Consumer Debts” for Bankruptcy Filings?

By Christie D. Arkovich, P.A.

Courts are divided on this issue. The answer may matter as to whether a debtor in bankruptcy must pass the means test.

The federal Bankruptcy Code defines consumer debt as debt incurred by an individual “primarily for a personal, family, or household purpose.” … The court may classify student loans as either consumer debt or non-consumer debt.

Some courts, like the court in In re Gentri, 185 B.R. 368, 373 (Bankr. M.D. Fla. 1995), assume that student loans are consumer debts, but do not analyze, whether student loans are “consumer debts.” See In re Dickerson, 193 B.R. 67, 70 (Bankr. M.D. Fla. 1996); In re Chapman, 146 B.R. 411, 416 (Bankr. N.D. Ill. 1992).

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Published on: February 21, 2020

Are Those Pesky Student Loans or Other Debt Hanging on Despite a Settlement or Bankruptcy?

By Christie D. Arkovich, P.A.

The FCRA requires that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. Section 1681e(b).

That’s a high burden “maximum possible accuracy”! And it is not being met. In one over the top case of ours, despite a client providing proof of life, she was reported as deceased by her student loan servicer over and over again wrecking havoc on her credit report.

More typically we run into instances where student loans are incorrectly reported as being in default when in fact they are no longer owed due to a settlement or discharge in bankruptcy. This in fact is becoming our bread and butter raising these types of claims.

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Published on: February 7, 2020

Filing Bankruptcy for a Small Business?

By Christie D. Arkovich, P.A.

Filing bankruptcy for small businesses just got a whole lot easier! The Small Business Reorganization Act of 2019 takes effect on February 19, 2020. Some of the new features are that it adds a new subchapter V to Chapter 11 of the Bankruptcy Code which is good for small business bankruptcies because:

There are no quarterly trustee fees;
There is no absolute priority rule;

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Published on: January 29, 2020

Discharging Taxes in Bankruptcy Just Got Easier for Florida Debtors

By Christie D. Arkovich, P.A.

Orlando Bankruptcy Judge Jennemann’s ruling to discharge taxes was just affirmed in Mass. Dept. of Rev. v. Shek, Case #18-14922 (11th Cir. Jan. 23, 2020). Several Circuits around the country including the 1st, 5th and 10th hold that tax debts for late filed returns can never be discharged. The 11th Circuit joined the 4th, 6th, 7th and 10th Circuits in favor of discharging this debt. As you can see it can make a big difference where you live, as this is a pretty even split among the country’s Circuit Courts.

The Court found this definition fit best under Section 523(a)(1)(B)(ii) which implies that a tax debt can be discharged if there is a delay of at least 2 years between the filing of the return and the filing of the bankruptcy. This would essentially give the IRS two years to collect on this debt, before a debtor could discharge the tax in bankruptcy.

While we are not tax attorneys, we consult with tax attorneys whenever necessary, for the best results in bankruptcy for our clients. I spoke with a potential client this week who was unaware that nearly $50,000 in past due taxes, interest and penalties could be discharged in full provided certain tests and timelines were met. This can be a valuable tool to reset someone’s financial lives to move forward.

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Published on: October 20, 2019

How to Avoid Arbitration Clauses in Consumer Contracts — Bankruptcy Court Can Help!

By Christie D. Arkovich, P.A.

Are you looking down the barrel of an arbitration clause in your consumer/creditor agreement? I’ve posted before (Arbitration Clauses in Consumer Contracts – How to Avoid Being Thrown out of Court) on some local case law here in Florida to help avoid arbitration clauses – but here’s a new case in the consumer’s favor in Bankruptcy Court for the Middle District of Florida.

The Bankruptcy Court ruled that an arbitration clause did not constrain the court’s contempt powers, “[w]ords in a consumer agreement cannot deprive the bankruptcy court of the inherent power to enforce compliance with an injunction.” Verizon Wireless Personal Communications, LP v. Bateman, No. 14-5369, Adv. Pro. No. 18-1394 (M.D. Fla. Sept. 24, 2019).

So if you’re in bankruptcy, or had a previously filed one that you can reopen (without a filing fee), challenge the arbitration clause in bankruptcy – you may be much more likely to win!

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