Sonoma County Bankruptcy Lawyer Blog

Klavir & Associates has a sample Chapter 7 bankruptcy petition. It's worth a look to understand the basic model of a non-asset consumer bankruptcy.

Basically, you (1) show that you qualify for a Chapter 7 by passing a means test; (2) fill out schedules showing your real and personal property and your secured and unsecured debt; (3) a key schedule is the exemptions schedule, which shows that your personal property is exempt. If it is, you keep everything, lose all your debts and you're good to go.

It's not that simple for everyone, but that is the structure you're dealing with.

Continue reading "California debtors may be able to use other evidence of pay, if they don't have paystubs" »

The LA Tiimes reports that loan mods have crashed, perhaps in a sign that homeowners have far more financial problems than just a loan mod can cure.

"Even with a substantial reduction in mortgage payment and even some reduction in principal, you still have people who are over their head financially because of their reduced financial circumstances," independent analyst Bert Ely said. "Isn't it time to just rethink this whole business of modification ... and let the market clear through foreclosures and short sales?"'

If that seems harsh, perhaps it just speaks to the state of the economy and the unsustainable weight of equity loans, credit cards and lack of employment. Here in the North Bay, unsustainable mortgages are certainly not the only think leading people to seek bankruptcy protection.

Everyone knows bankruptcy is going up, but the numbers released by the U.S. Courts on Friday are pretty shocking.

The big picture: Consumer filings up 21 percent from a year ago, and Chapter 7 filings up 25 percent. Chapter 13 filings are up 10 percent.

Drilling down into California, we find the state definitely in the top 10 but not the worst-off. Nevada was No. 1 in Chapter 7 filings with 8.71 filings per 1,000 residents and a whopping 11.23 per 1000 people in all types of filings.

California came in 6th (5.05 per thousand) in Chapter 7s, 13th (1.44 per thousand) in Chap. 13s, and 7th overall.

In California's Northern District court, which includes the Bay Area, filings were up 39 percent, not quite as high as in the Central District, which includes LA, where filings were up an amazing 48 percent.

The 2005 bankruptcy reform act was supposed to put an end to "absusive" filings. But recent data shows that in bad times like these, filings have returned to pre-2005 levels. A study by Ronald C. Mann and Katherine Porter published in the Georgetown Law Review, entitled Saving Up for Bankruptcy reported this shocking statistic (from a 1998 study):

Bankruptcy relief would have afforded an economic benefit to about 15% of (the study group), but only about 0.66-1% sought relief any given year.

In other words, the authors point out:

Most families in serious financial distress do not file for bankruptcy.

Continue reading "The myth of bankruptcy abuse" »

In this interesting post, M. Jonathan Hayes addresses the problem of valuing businesses that really have no value.

I am listing the assets on schedule B at a value of zero but the exmeptions on schedule C as the full amount of the wildcard, roughly $23,000. So schedule C says, "Asset - interest in partnership - value zero. Amount claimed exempt - $23,000." I expect to get some guff from the trustee who will say there must be some value if we are exempting it and if no value, the exemption should be zero. I will point to Schwab and I am sure I am right.

Continue reading "Valuing a business without value" »

SANTA ROSA (Sonoma County), CA -- The big news in landlord-tenant law is that President Obama has extended the Protecting Tenants at Foreclosure Act through 2014, This law gives tenants renting from landlords who are later foreclosed on 90 days (if they have a month to month lease) or the remainder of the lease (if there's a current written lease.)

The problem with the law has been that it talks about leases entered into before "foreclosure.' Well, in California (and probably many other states) there is no specific event called foreclosure. There are two events: there's the notice of default and the actual sale. Banks have argued that "foreclosure" begins at the notice of default, which I personally think is ridiculous, since, although it's required for foreclosure, it's a totally curable notice of a problem.

The new law now makes clear that "foreclosure" means foreclosure (sale), not notice.

Continue reading "Obama extends, clarifies protection for tenants in foreclosed homes" »

How high? Check this out.

Michael R. Mastro, the Seattle real-estate tycoon, filed for Chapter 7 of the U.S. Bankruptcy Code last summer reporting liabilities of $570 million. He then proceeded to take vacations in Italy, Paris, New York and Palm Springs, Calif., as well as ski trips to Switzerland and Jackson Hole, Wyo.

He has enjoyed $2,900 dinners at the plush Seattle restaurant Canlis and continues to roll around in his Rolls-Royce and Bentley, which cost him $8,000 a month. He also still lives in his $15 million waterfront home in Medina.

Yikes.

If you're reading this blog but you're not yet ready to sign up for a consultation, feel free to post a question in the form to the right. I'll do my best to provide a basic understanding of the law. Obviously, I won't give specific legal counsel without having a solid understanding of your situation (that would require a face-to-face meeting in my Santa Rosa, CA offices -- or a phone meeting), but I encourage you to shoot me a question of comment here, and I'll try to provide some help.

Look forward to hearing from you.

Usually when I meet with people in my Sonoma County offices in Santa Rosa, one of the first questions they have is, how bad will filing for Chapter 7 bankruptcy be for my credit? Will I be able to rent again? Will I be able to buy a car?

Of course a bankruptcy stays on your credit report for 10 years, so it ain't great. But if you're sitting in a bankruptcy attorney's office -- the odds of you having stellar credit are pretty bad. In point of fact, you probably have a wave of late payments, nonpayments, credit cards sent to collections, perhaps a foreclosure ... you get the idea.

Putting yourself in a creditor's seat, would you rather work with someone who clearly can't pay their bills, or someone who declared bankruptcy and 6 months later is paying all their bills on time?

This article on the National Bankruptcy Forum points out that a key factor is your debt-to-income ratio.

If you have tens of thousands of debt, that ratio is going to look pretty bad. If you have declared bankruptcy, you have virtually no debt, so your debt-to-income looks great. Once you get a little new credit in place and make regular payments, you're on the way to a clean bill of health.

Santa Rosa, CA -- Back in 2005, Congress passed -- at the behest of credit card companies -- a dramatic overhaul of the bankruptcy laws, under the supposed need to stop debtor "fraud." In fact, the law was intended to protect the monied interests by making it harder to file bankruptcy.

The San Francisco Chronicle took a look at the effect of the law 5 years later. It's clear that the law had an immediate freezing effect on bankruptcy filings, but today in light of the Great Recession, filings have steadily and markedly marched upward.

This either proves, as Scott Talbott, with the Financial Services Roundtable, claims: "The fact that the numbers are up means people still have access to the bankruptcy courts."

Or that there are many people who can't afford bankruptcy who desperately need it.

The Government Accountability Office, the nonpartisan watchdog agency of Congress, told lawmakers in June 2008 that the 2005 law boosted Chapter 7 expenses from about $914 to $1,477, including legal, filing and counseling fees.

What's not clear from this data is how many of these increased filings are Chapter 13s instead of Chapter 7 bankruptcies, which provide a full discharge.

2009 was a record year for bankruptcies, with a record high of 2,264 cases in Sonoma County alone. According to a Santa Rosa Press Democrat report from April, Chapter 13s are a growing part of bankruptcy here, as people look to save their homes.

Key reason: Homeowners can strip the second mortgages on their underwater homes, while entering a payment plan to cure arrears on the first mortgage, while staying current on the first. As a result, many homeowners are able to modify their loans on the first.

The story features a typical Chapter 13 story, Robert and Jennifer Campbell, who were able to strip their second mortgage in a 13 and drive their credit card debt to minimal amounts under their plan. Campbell,a photographer, couldn't do a Chapter 7 because he would lose his 1969 Helio Courier airplane -- the kind of personal property for which there is no exemption.

A Chapter 13 allows Campbell to keep his property, strip the second and save the house -- maybe. The article points out that just the $500,000 first mortgage is plenty to keep Campbell up at night

All consumer debtors contemplating Chapter 7 (full discharge) bankruptcy have to tackle the Means Test. Back in the distant days before 2005, this wasn't the case - you could file Chapter 7 regardless of income. These days, some fairly complex calculations are involved to figure out if you have disposable income that could be used to pay creditors.

(Of course, if your debt is more than 51 percent business debt, for instance if you are defaulting on mortgages on homes you ran for rental income, you're exempt from the Means Test.)

As this Nolo.com article points out, the first issue is whether your income is above the median for Sonoma County, California, for your household. If not, you're golden. Even if it is above the median, we then look at "allowed monthly expenses" for your family size in Sonoma County.

If you don't pass the means test, you are limited to Chapter 13 -- which is essentially a court-monitored repayment plan. But all is not lost, if you are close to qualifying, some judicious choices about expenses or waiting to file can help make it work. There are no sure things, but working with you attorney can make the difference between qualifying for a Chapter 7 and a 13.

Fannie Mae says it will crack down on homeowners who "walk away" from the mortgages on their underwater homes. Borrowers who have the means to pay on their loans but engage in "strategic defaults," won't be able to get another mortgage for seven years, according to news reports.

In states that allow deficiency judgments - California does not - Fannie Mae will sue walkaways, the mortgage guarantor said.

In Sonoma County, property values have fallen so hard in the real estate crash that one third of all homes are underwater, the Press Democrat reported this winter. That's some 34,000 borrowers looking at an average of $70,000 in "negative equity."

If Fannie Mae is going to be suing walkaways, it would seem they're just going to be driving up the number of bankruptcies. Until banks are ready to seriously modify loans to reflect market reality, people will still walk away from underwater loans. Renting for seven years is still going to look better than funding a permanently underwater home.

There's a fascinating article on Avvo's Naked Law site, titled 8 Reasons College Tuition is the Next Bubble to Burst.

It's of particular interest to me not only because I have a son about to enter 11th grade but also because the article implicates the 2005 "reform" of bankruptcy law in the Tuition Bubble.

Here's the theory in a nutshell: Private colleges have been riding the same debt bubble that real estate and derivatives were riding - spiking profits based on consumers getting easy credit. And since student loans are nondischargable in bankruptcy, the lenders take no risks that students will default. In other words, we have a system that encourages private schools to hike tuition rates, since students can always get those giant loans, and encourages banks to lend the money, since they know they will not be left holding the BK bag.

Continue reading "Is college tuition a bubble that's about to burst?" »