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Reports have been surfacing that the Department of Education is kicking borrowers out of Income Driven Plans when they file bankruptcy.  It makes no difference if they are in a Chapter 7 or 13.  It also doesn’t matter if the debtor is current in their payments.  The National Association of Consumer Bankruptcy Attorneys (NACBA) views this as a direct violation of 11 U.S.C. 525 (Protection against Discriminatory Treatment).

There are ways to counter this and remain in an Income Driven Plan to continue progress toward debt forgiveness including Public Service Forgiveness.  A new development is spreading across the country to file what is called the Buchannan provisions in a Chapter 13 Plan.  We have recently adopted this in Tampa, Florida.

On January 5, 2018, Trustee John Waage and Judge Catherine McEwen agreed to the following Non-Conforming language in In re Hyland, 8-17-bk-01564-CPM that now allows for Income Driven Repayment Plans concurrently with a Chapter 13.

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nursing-care-ALF
One common problem encountered by caregivers right after they’ve checked in their loved one at a local nursing home or Assisted Living Facility is whether the facility is one that is covered by the elderly parent’s Long Term Care Insurance policy.  Does it have enough staff?  Enough beds? 24/7 or other nursing care available?  What is the facility called and how is it licensed?

Unfortunately, the wrong answers to any of these questions may be grounds for the insurance company to deny coverage.  Rather than moving your loved one to another facility, or incurring the out-of-pocket expenses of the preferred location, reach out to a consumer or insurance attorney for help.  Most attorneys experienced in this area offer a free intake analysis or consultation to determine if legal representation is warranted.  Many represent the client on a contingency basis or hourly basis for short term matters with reasonable payment plans.

Administrative exceptions can be asserted to keep your loved one in the facility of choice.  Often it may be the threat of a lawsuit or public exposure to convince an insurance company to do what is right.

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Sl-and-Bk-rule-changing
Ignoring your debtor’s federal student loans in their Chapter 13 bankruptcy can have catastrophic circumstances.  While fixing vehicle, credit card and mortgage debt, you may have inadvertently allowed a debtor’s $100,000 federal student loan to balloon into nearly $150,000 by doing nothing.  This is because the standard procedure of the Department of Education is to place these loans into forbearance during a bankruptcy.  However, now in Tampa, we are permitted to use the following Non-Conforming Provision in Chapter 13 Plans to permit our clients to enroll in Income Driven Plans and even Public Service Loan Forgiveness whenever eligible.

On January 5, 2018, Trustee John Waage and Judge Catherine McEwen agreed to the following Non-Conforming language in our client’s case, In re Hyland, 8-17-bk-01564-CPM that now allows for Income Driven Repayment Plans concurrently with a Chapter 13.

The permitted language:

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health-ins-policy
When a parent reaches the point of needing long term medical or assistive care, sometimes a family member cannot locate the actual policy even if they know a long term care insurance policy exists.  How do you get a copy of the policy?  One tactic used by insurance companies is to delay everything – including the simple task of complying with a request for a copy of the policy itself.  They also know that if the policy’s language (terms and conditions of coverage) is not consulted early on, damaging statements regarding the condition of the insured and the type of care needed are often made to the detriment of obtaining coverage for the insured.

Knowledge of and citation to the Florida statutes should help to get a copy of the long term care policy asap.

Florida law requires insurance companies to promptly communicate with policyholders:  “acknowledge and act promptly upon communications with respect to claims.”  Fla. Stat. § 626.9541(1)(i)3.c.  In addition, another Florida statute requires the insurance company to represent policy provisions accurately and relate claim decisions to applicable policy language.  See Fla. Stat. § 626.9541(1)(i)3.b and Fla. Stat. § 626.9541(1)(i)3.f, respectively.

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get-rid-of-sl-in-bk
There are a ton of people who believed their student loans were discharged when they loans were simply listed in their bankruptcy.  It may have been years before the private student loan companies started to communicate with the borrowers to collect this debt which added to that impression.

As it turns out, there may be a way to argue this after all – in instances involving private loans.  Private student loan lenders have to prove their loans are in fact “qualified education loans” and meet other criteria in order to be exempt from a general discharge.  We are now filing cases where we do not believe the private lenders can meet this burden and the loans are and should have been considered discharged all along.  This opens the lender and servicer to a potential FDCPA and FCCPA case if it has tried to collect on previously discharged debt.  Moreover, it also opens up the lender to potential claims to refund monies paid toward these loans since discharge.

An easy way around this would have been for the private student loan lenders to have filed their own adversary actions in the debtor’s bankruptcy to obtain a declaratory judgment that its loans were excepted from the general discharge.  However, this was never done.

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are-you-covered
Let’s face it, many people stuck in the middle taking care of both elderly parents and their own children, are overwhelmed when the Long Term Care Insurance company denies coverage for their loved ones.  Who has the time to deal with this with our otherwise busy lives?  Who has the knowledge to go toe to toe with the insurance company and force them to grant coverage?  And does it really make a difference with Medicare picking up the pieces if coverage is denied?

American Society on Aging addresses some common misnomers about what Medicare covers when long term care is needed.  The ASA pointed out that contrary to recent surveys which show that the public believes that Medicare pays for long-term care, this is not what happens in reality.  Medicare tries to limit its availability for the provision of personal and assistive care services.  If skilled nursing or rehabilitative services are needed, that’s where Medicare kicks in.

Medicare.gov defines long-term care as a range of services and support for personal care needs.  Most long-term care isn’t medical care, but rather help with basic personal tasks called activities of daily living (bathing, eating, dressing etc.)  The site states very clearly:  “Medicare doesn’t cover long-term care (also called custodial care), if that’s the only care you need.  Most nursing home care is custodial care.”

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https://www.tampabankruptcylawyerblog.com/wp-content/uploads/sites/10/2015/07/christie_d._arkovich_p.a_1_small.jpgIf you run into trouble paying your student loan, chances are you’ve been told to “just go on forbearance.”  Here are five reasons that is a terrible idea in many cases:

  1. The client I just finished speaking with has had a few hardships in her life (health, divorces, low pay, disabled daughter etc.).  When she called her servicer for help, she was told she could go on a forbearance.  She’s been on many forbearances over the years.  Her servicer never adequately explained her options.  She could have taken advantage of an income based plan with ten year debt forgiveness because she was a teacher.  She’s been a teacher for practically forever.  She would owe zero right now if she’d known what to do.  But instead her loan has ballooned from 23k to, wait for it, $126,000.  It’s gone up 10x!  And she has only three years until she retires, divorced with a disabled daughter.  Do.Not.Trust.Your.Servicer.to.do.the.Right.Thing.
  2. You might ask, how does a loan go up 10 times from 23k to 126k?  Easy, although this is one of the worst I’ve seen.  The interest capitalizes every time the forbearance is renewed.  This means the unpaid interest is added to the principal balance and now you owe interest on interest.
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Are you expecting a large tax refund this year?

If so, and you have had some financial difficulties this year, do NOT file your tax return if you are in default on your federal student loans OR about to file bankruptcy.

Instead, some pre-planning is in order.  For federal students loans, cure the default before you file your taxes.  File an extension if you must to gain some additional time.

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Crushing-debt-podcast

Parent Plus Loans are federal loans that a parent or grandparent takes out for their child or grandchild to go to college.  Learn more about these loans, their high default rates and avenues to reduce this type of student loan debt by listening to our interview on the Crushing Debt Podcast with Shawn Yesner.

 

 

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PAF
I’d like to thank the PAF’s Hillsborough Chapter for the invitation to speak at their luncheon today with the assistance of our long term legal assistant, Angie Glaser, now paralegal!! — about Taking Control of Your Student Loans.

There were lots of good questions by people starved for information and surprised about what they learned today.  Hopefully, they will go back to their offices and share this with their attorneys and clients – and help us to share the word that there are many ways to reduce student loan debt that are not discussed by student loan servicers.

If you know of any group who would be interested in learning more about dealing with their student loans, please contact us to arrange a speaking engagement!

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