Stopping the foreclosure of your home through bankruptcy

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Both Chapter 7 and Chapter 13 can help you save your home. But how does a bankruptcy stop foreclosure?

You have undoubtedly heard that the filing of a bankruptcy stops a foreclosure. You may have also heard that Chapter 13—the repayment version of bankruptcy—can be a good tool for saving your home in the long run. Both of these are true, but are only the beginning of the story. This post tells you more about how bankruptcy stops a foreclosure.

The “automatic stay” is the part of the federal bankruptcy law which immediately blocks a foreclosure from happening. The very act of filing your case “operates as a stay,” as a court order stopping “any act to… enforce [any lien] against any property of the debtor…  .”

But what if your bankruptcy case is filed and the mortgage lender or its agent can’t be reached in time so that the foreclosure sale still occurs? Or if there’s some miscommunication between the lender and its agent or attorney, with the same result? Or if the lender just goes ahead and forecloses anyway?

As long as your bankruptcy is filed at the court BEFORE the foreclosure sale, then that sale is not legally valid, whether it occurred by mistake or intentionally. (This filing “at the court” is usually actually done electronically from my office, with a date and time-stamped record proving when the court filing took place.)

IF a sale happens by mistake after the filing of your bankruptcy, lenders are usually very cooperative in legally undoing the foreclosure sale and its documentation. If your lender would fail to undo such a sale after becoming aware of your bankruptcy filing, it would be in ongoing violation of the automatic stay, exposing itself to significant financial penalties. That would be rare.

Does it matter whether your case is a Chapter 7 or Chapter 13 one for purposes of the automatic stay?

No, the automatic stay is the same under both chapters, and would have the same immediate effect.

On the other hand, how long the protection of the automatic stay lasts can depend on which chapter you file. That’s because even though you get the same automatic stay, the other tools each chapter provides for protecting your home are very different. So your mortgage lender or servicer may very well react quite differently depending on the chapter you file, as well as on what you propose to do about your home and your mortgage within that chapter.

The automatic stay is a powerful tool

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Don’t take for granted the extraordinariness of bankruptcy’s automatic stay. That’s the federal law that stops creditors from pursuing you, your money, and your other possessions the moment your bankruptcy case is filed.

In my last two posts, I discussed the relatively rare situations in which the automatic stay does not apply—situations in which certain special creditors, or sometimes even all creditors, can continue collecting their debts. But let me re-emphasize–most of the time, once your bankruptcy case is filed, all creditor efforts against you and your property stop immediately.

The automatic stay is powerful because it is 1) fast and 2) broad in what it covers.

Very Fast

Few legal procedures work as quickly as the automatic stay. To get anything done in most courts usually takes weeks, months, or years. A complaint or motion of some sort needs to be filed, the other side usually has the opportunity to respond, then there’s often a hearing, and finally a judge makes a decision.

But not with the automatic stay. It operates as a one-sided and immediate court order, made effective by the very act of filing the bankruptcy case.  A judge isn’t even involved. The creditors have no immediate say about it. There IS a procedure for creditors to object and ask the judge for “relief from the automatic stay,” in other words, for permission to continue or start pursuing you or your money or property, but that’s after the fact. The automatic stay gives you an immediate breathing spell, whether your creditors like it or not.

Broad Coverage

This breathing spell protects you from your creditors in almost every way. It stops all phone calls and letters—“any act to collect, assess, or recover” a debt. Except for those situations spelled out in my prior posts, the automatic stay stops all court and administrative proceedings against you from starting or continuing. It does not matter if your bankruptcy is filed two minutes before the start of a civil lawsuit trial or the foreclosure of your house, the trial or foreclosure should not happen. If there is a judgment against you and the creditor is about to garnish your wages or levy on your checking account, these collection efforts are stopped. If you’ve fallen a couple of months behind on your vehicle loan payment and the repo man is looking for your car in the employee parking lot, the automatic stay sends him away empty-handed. If the IRS is about to record a lien against your home and vehicle to collect an income tax debt, the automatic stay stops the tax lien. Or if you already have a recorded tax lien and the IRS is about to grab your vehicle to pay the debt, your bankruptcy filing stops this enforcement of the tax lien.

This IS powerful medicine. 

As with other strong medicine, it should be administered with the right guidance and with help for handling any potential side effects. Stopping your creditors with a bankruptcy would essentially be the end of the story for many of them. But for other creditors—those with rights against your home or vehicle, or with special kinds of debts such as taxes and student loans—the breathing space gives us the opportunity to address each of these special creditors.

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When the automatic stay doesn’t apply

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In VERY RARE circumstances, ALL of your creditors can pursue you even if you file bankruptcy. Here’s how to avoid those rare but dangerous circumstances.

In my last post I listed three special classes of debts for which you can still be pursued in spite of filing bankruptcy. They are exceptions to the automatic stay, the broad protection from creditors that you get immediately when your case is filed.  But in this post today I’m talking about a circumstance in which the automatic stay does not apply to your case AT ALL, regarding ANY of your creditors. And about another circumstance in which you can lose the protection of the automatic stay 30 days after your case is filed. 

Because of the huge importance of the automatic stay, you absolutely want to avoid these circumstances, as rare as they might be.

For anybody who is thinking about filing a bankruptcy and has NOT had a previous bankruptcy case filed in their name in the last year, and then dismissed, you can stop worrying about this. Or if you have already filed a bankruptcy case recently and I’m getting you worried here, stop worrying if you did NOT have a previous bankruptcy case filed in your name, and then dismissed, in the year before your present case was filed.

But, IF you filed TWO OR MORE prior bankruptcies in the year before your new one, AND they were dismissed, the automatic stay does NOT go into effect with the filing of the new case.  The automatic stay CAN go into effect AFTER the case is filed if certain conditions are met.

Or, IF you filed ONE prior bankruptcy in the year before your new one, the automatic stay EXPIRES 30 days after the filing date, unless certain conditions are met before then. 

The details of the conditions for imposing or preserving the automatic stay are beyond the scope of this post. What IS of immediate and absolute importance is that you must tell your attorney—AT the BEGINNING of your INITIAL CONSULTATION—if you have filed ANY prior bankruptcy cases, and especially any recent ones.

Now if you’re wondering who goes around filing multiple bankruptcy cases in one year?—it happens more often than you might think.  It tends to come up two ways: 1) A person files a bankruptcy without an attorney, gets overwhelmed by the process and doesn’t follow through, so the case gets dismissed. 2) Or a person hires an attorney, signs some papers, and the case gets filed, maybe without the person even realizing it, and then gets dismissed because he or she doesn’t follow through. In either case, eleven months later they’ve forgotten all about it. Or don’t think it’s important.

The point of these anti-automatic stay rules is to stop “serial bankruptcy filers,” the very, very small minority of folks who file multiple cases, arguably abusing the bankruptcy process, usually to repeatedly delay a foreclosure or some other creditor action.  But these rules can also seriously penalize innocent people in situations like the ones I just mentioned.

Avoid this happening to you by 1) thinking carefully about whether there is ANY possibility that you filed a prior bankruptcy case within the last year, and 2) then telling your attorney if there’s ANY chance that you did. If so, there’s a good chance the bankruptcy court can be persuaded to impose or retain the automatic stay, but only if your attorney knows about the issue in advance and determines whether your case so qualifies.

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When a bankruptcy filing does NOT stop collection actions

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Your bankruptcy filing can stop all your creditors’ collection actions against you. Or can it?

Isn’t a bankruptcy filing supposed to stop all your creditors’ collection efforts against you and your property? Yes, and in fact in many cases a bankruptcy filing does exactly that. Stopping collection efforts is a benefit of filing bankruptcy called the “automatic stay,” because at the moment of the bankruptcy filing, a legal injunction automatically goes into effect “staying,” or stopping, most creditors’ actions against you. But because the automatic stay is something we count on, we had better know its exceptions.

Today I’m just going to list some of the most important exceptions. Then in the next couple of posts I will explain in practical terms these and other important aspects of the automatic stay.

So creditors CAN do the following in spite of your bankruptcy filing:

1) A district attorney or other governmental authority can begin or continue a criminal case against you, such as an indictment, a criminal trial, or a sentencing hearing. This includes not just felonies and misdemeanors, but also lesser matters like traffic infractions that you might not think of as “criminal.”

2) Your ex-spouse, or about-to-be ex-spouse, or somebody on his or her behalf, can start or continue a variety of divorce and family court proceedings. These include legal procedures to establish paternity of a child, determine or change the amount of child or spousal support to be paid, settle child custody or visitation issues, address domestic violence disputes, and even dissolve the marriage. (Although a marriage dissolution usually cannot include a determination about how assets or debts would be divided between the spouses.)

3) Specifically about child or spousal support, the person owed ongoing support can continue collecting it. If there is back support owed, then in spite of a Chapter 7 filing, the person who is owed the support can in most cases start or continue collecting it. This includes not only collection through wage withholdings and garnishment of bank accounts, but also through seizure of a tax refund and suspension of a driver’s license, an occupational or professional license, or even a hunting or other recreational license. In contrast, a Chapter 13 filing can stop these aggressive methods of collecting back support.

4) Taxing authorities can start or finish a tax audit, can send you a notice that you owe taxes, can demand you to file your tax returns, can assess your taxes and demand you to pay them, and in some situations can even file tax liens against you and your property.

Notice that each of these exceptions involves a special kind of creditor. As I said, the automatic stay stops actions against you by most creditors. But if you are involved in a court proceeding or collection efforts by the criminal or taxing authorities, or by an ex-spouse, be especially aware of these exceptions.

 
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Must I report illegal or previously unreported income in my bankruptcy?

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It sometimes comes up that a person who wants to file for bankruptcy has income that is either derived from an illegal source (such as drug dealing) or that has not been reported to the IRS (when it should have been). Also, many people get confused between the reporting requirements for the IRS and those for the bankruptcy court – understandably, they tend to think that these requirements are the same when they are not.

The fact is, you need to tell your attorney about all of your income, regardless of whether it is derived from an illegal source or whether you think it is not taxable or should not count. Not all income is necessarily countable as such for certain purposes in bankruptcy – such as Social Security on the means test portion of the bankruptcy papers – but it all needs to be disclosed to your attorney so that their analysis can be completed accurately.

Illegal sources

A recent case from Pennsylvania highlights a problem with illegal income and failing to report it in bankruptcy. The debtor filed a Chapter 7 and received a discharge of her debts. Later, she was convicted of heroin and cocaine trafficking. As a result, the trustee for her bankruptcy case asked the court to revoke her discharge based on fraud, claiming that the debtor failed to report her revenue from her drug trafficking activities.

The court decided that while the debtor had a duty to report all income, even if it was from illegal activity, the trustee did not meet her burden of proof to show that there was a knowing and fraudulent intent behind the failure to report the illegal income. The trustee lacked basic evidence as to the amount of income and when it was received.

While the debtor in the Pennsylvania case prevailed in the trustee’s action against her, the case serves as a reminder of the pitfalls that await the debtor with illegal income. The debtor who has current income derived from illegal activity may wish to think twice about filing bankruptcy at all.

Unreported taxable income

And the potential debtor who has had income that was not reported to the IRS or to state taxing authorities when it should have been may wish to delay filing for bankruptcy until the tax issues have been defined more clearly. Specifically, any tax returns that should have been filed but were not need to be filed so that any tax debt or refund amounts can be set prior to filing. It is difficult to list a tax debt (or a refund owed to you) on your bankruptcy paperwork if you do not know exactly how much it is.

Additionally, you are required to provide your bankruptcy trustee with copies of your tax returns. Your case can be dismissed for failure to provide these copies.

Photo by Dave Dugdale.

How the Dodgers’ Bankruptcy Altered a Divorce Settlement

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The Los Angeles Dodgers baseball team filed for bankruptcy under Chapter 11. The filing provides a good opportunity to take a look at the often complex intersection of bankruptcy law and divorce law.

The Dodgers’ owner, Frank McCourt, has been going through a divorce for the past couple of years. One of the issues in the McCourt divorce is whether the Dodgers team is community property under California state law. If the judge decides that the team is community property, that means it is jointly owned by both Mr. and Mrs. McCourt. Under that scenario, a sale of the team to pay Mrs. McCourt in a marital property settlement would have been possible. However, the team’s bankruptcy filing changes things. Now the team’s creditors are to be paid according to the dictates of the Bankruptcy Code. As a result, Mrs. McCourt could be cut out of proceeds from a sale of the team.

Since this blog is primarily focused on New Jersey, you should know that New Jersey is NOT a community property state. However, even if you live in New Jersey now but were (or are) married and owned property with a spouse in a community property state, you should let your bankruptcy attorney know so that they can properly assess the situation. There are certain disclosure requirements in a bankruptcy where community property is involved, due to the presumption of joint ownership.

For a more in-depth analysis of the financial issues facing the L.A. Dodgers, along with a copy of the team’s main filing in the Delaware bankruptcy court, check out the blog Dodger Divorce.

Student loans: What can be done

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Many people have student loans that they have trouble paying. I am often asked what can be done about student loans.

It is extremely difficult to get student loans discharged in bankruptcy. Therefore, most people need to look at alternatives to bankruptcy to address their inability to afford their loan payments.

Following is a group of links to websites where you can get basic information about the limited options available for reducing student loan payments.

– The first grouping of links leads to web pages about Income-Based Repayment (IBR):

Description of Income Based Repayment

Income Based Repayment Questions and Answers

More Q&As about Income Based Repayment

Income Based Repayment info from a non-profit

– The second link takes you to a website that discusses Income Contingent Repayment (ICR):

About Income Contingent Repayment (scroll down)

– The third grouping of websites is about other flexible payment options:

Repayment Plans

More about repayment plans

Repayment relief

– Finally, here is a website with information about consolidation loans:

Student Loan Consolidation

Photo by Chris Radcliff

Do you have $50,000 to throw away?

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Well, do you? You may have already thrown it away, without even thinking of it that way. The money I’m referring to here would be what you have (or had) socked away in your IRA or 401(k) account. You might be thinking about cashing out that account in order to pay your credit card bills because you are falling behind and your minimum payments just went up, or you lost your job, or you just took a pay cut at work, or for whatever reason I haven’t mentioned here.

I know, you may not have as much as $50,000 in an IRA or a 401(k). It might be only $1200. Maybe it’s a lot more than $50,000. Or you might not even have a 401(k) or IRA account – but this post is targeted to those who do.

If you have fallen behind, or are about to fall behind, on your credit card payments and you are considering taking money from your IRA or 401(k) account to catch up those payments and to avoid bankruptcy, please reconsider. Before you touch any of that money, sit down and work out the numbers, without taking into consideration future job prospects or future money that *might* come your way at some point. Only use current income numbers – will cashing out your 401(k) or IRA savings really be a good thing? Don’t forget to add in the taxes, penalties, and/or interest that you will owe on the distribution from the 401(k) or IRA, plus the fact that if it’s a 401(k) loan, add in the money that you will owe yourself on that loan. And add in how much it will cost you to save up that much money all over again.

If you’ve worked out the numbers, did you notice how expensive it gets to take money out of these types of accounts and to use the money to pay down on your credit card debt? And how the amount probably doesn’t even cover all of your credit card debt? If the latter is the case, then I ask you: Why are you even thinking about it at all?

Regardless of whether you can pay off all of your credit card debt by cashing out a 401(k) or IRA, you would be doing yourself a disservice if you did not consider bankruptcy as an alternative. And I mean *alternative* – what I am trying to prevent by writing this post is a situation in which you cash out the 401(k) or IRA, throw the money at your credit cards, and then file for bankruptcy anyway. Because that will have been a terrible waste, and I’ll tell you why:

In Chapter 7 bankruptcies in New Jersey, most IRA and 401(k) accounts are safe from being taken and used to satisfy your debts.

That’s it, really. So if you are about to cash in that 401(k) or IRA account to pay on your credit cards, please think again and consider the huge costs you will be facing by doing so.

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Tip income can’t necessarily be garnished in New Jersey

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I have to admit, I picked this case for this post mainly because of its cool name, Big M, Inc. t/a Annie Sez v. Texas Roadhouse Holding, LLC. But it also has something interesting to say about debt collection.

The New Jersey Supreme Court decided Big M on July 16, 2010. The issue in the case was whether tips and gratuities are subject to garnishment. As you may recall, a garnishment can happen when a debt collector who has a judgment against you gets a court order to take part of your pay to satisfy the judgment.

Big M involved a waitress working for Texas Roadhouse Holding, LLC whose wages were being garnished. When her creditor, Big M, got a check for only $4.21 from its $672 wage garnishment, it sued her employer. In the course of deciding the case, the trial court judge determined that tips placed on credit cards are garnishable, but cash tips are not. Then the New Jersey Supreme Court considered the case on appeal.

Looking at both New Jersey law and the Federal Consumer Credit Protection Act (CCPA), the court did not find any law directly speaking to the issue of whether tips were subject to garnishment. So it examined an opinion letter and field operations handbook from the Department of Labor, which enforces the CCPA, and found the opinion that tips, whether paid in cash or charged, are not subject to garnishment. Although the New Jersey Supreme Court is not required to follow a Department of Labor opinion, the court chose to give the opinion consideration and deference.

Big M, the creditor, argued that all tips should be subject to garnishment because they are taxable income for state and federal tax purposes. The court did not find this argument persuasive because the process of counting and recording tip income and reporting it for tax purposes does not allow the employer to exercise enough control over tip income to make it garnishable. The whole idea behind wage garnishment is to capture the income while it is still in the employer’s hands, before it gets paid to the employee.

The court held that the amount of control an employer exercises over tip income determines whether those tips are subject to wage garnishment. If the employer pools all the tips and then divides the pooled amount amongst the employees, then tip income could be garnished. But if the tips are generally paid directly to the employee, even if the tips are charged on a credit card, they are not subject to garnishment.

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