The unfolding of the COVID-19 virus episode has been the weirdest experience in my lifetime. I remember the courthouse bombing by Timothy McVeigh in Oklahoma City and commercial jets hitting the Twin Towers on 9/11, but those were one day events.

The corona virus is different because it continues from day to day and all of us are potential victims. You see young people dying on breathing machines and you realize your family is not safe.

At first the virus seemed like just a bad version of the flu and I dismissed it, but as I kept reading news reports I realized this was different and it was heading our way.  Then it became apparent that all my staff would soon be working from home.

Our attorneys have always been able to work from home, but not the paralegals. I scrambled to purchase computers and then raced to my tech vendor set them up. Thankfully we got the job done just before daycare services closed so all our staff can work from home.

On March 19th our Chapter 13 Trustee, Kathleen Laughlin, held a Zoom conference with 32 attorneys across the state, and she explained that her court hearings would continue on Zoom.  Last week the Chapter 7 trustees declared that their hearings would be conducted by telephone.  So, the good news is that court hearings will go during this period of social distancing.

Four years ago I started a one-man campaign to allow clients to sign bankruptcy petitions using digital signatures.  This blog was instrumental in getting that message across, and two years ago our brave judge, Thomas Saladino, agreed that it was time to allow debtors to sign their bankruptcy petitions digitally.

Nebraska is the first and only state to implement a permanent rule allowing digital signatures. In a state that spans 450 miles across, that rule change has allowed us to serve clients in all 93 Nebraska counties.

Now that attorneys nationwide cannot personally meet with clients to sign petitions, 43 bankruptcy courts recently issued temporary orders allowing for digital signatures and more are expected to allow it soon.  This blog lead the way.

I participated in four bankruptcy hearings by Zoom last week, and I now interview new clients via Zoom right in their living room. Then I conducted a case signing using Zoom and shared my screen with the client who could see me typing in his responses and he could view the same documents I viewed on my screen. He said it was amazing, and it really was.

In many ways, the COVID-19 crisis has forced us to become better communicators and to utilize technology that was at our fingertips all along. Sometimes it takes a crisis to move forward. I doubt we will ever go back to the old ways again.

So, our firm is open. We are answering every call and responding to every email. Sometimes I work in my office apart from other employees, and sometimes I work in my home office. But wherever I or my staff works, we are all working full time every day and we can service new and existing clients thanks to our technology investments.

It’s going to be a wild year. Today we are scared. Tomorrow we start to pick up the pieces of our businesses and protect what remains from the claims of creditors. Whatever comes, our firm stands ready to serve.

Below is a letter written by a 64-year old bankruptcy attorney to the United States Trustee, the agency that oversees bankruptcy cases.

Clifford J. White III, Director
Executive Office for U.S. Trustees

Re: Covid-19 and consumer bankruptcy practice

Dear Director White:

On behalf of our NACBA membership and our entire NACBA Board of Directors, I am writing to you to suggest immediate (and hopefully temporary) remedial actions regarding the administration of Ch. 7 and Ch. 13 bankruptcy cases. These suggestions are meant to help stabilize our joint goal to maintain the integrity of the bankruptcy system while we all struggle for equilibrium in these trying times.

All pending 341(a) meeting of creditors in consumer chapter 7, 13 and 11 cases be automatically adjourned for some period of time (such as at least 4 weeks), OR

that debtors and their counsel be permitted to appear telephonically, in place (given quarantine or social distancing, as applicable), by joint conference call or other electronic means, AND

that ‘wet’ signatures (allow for /s/ signatures) be eliminated for those forms and in those jurisdictions where ‘wet’ signatures are required.

We know that you are aware of the heightened risk of serious illness and death for those aged 60 and over if this Covid-19 virus is contracted. While we cannot know exactly the proportions of our Attorneys, Clients nor Trustees who belong to that demographic, speaking for myself as a 64 year old, the risks to us all, at the present time, are clearly too great to ignore. I am sure you will agree that these suggestions, while representing a change from normal case administration, are warranted.

Your prompt response and action along these lines is appreciated.

On behalf of NACBA,

John C. Colwell
President, Board of Directors
National Association of Consumer Bankruptcy Attorneys

Nebraska is leading the way on this issue.  For two years I nagged the court in this blog and in bankruptcy seminars to allow digital signatures of bankruptcy petition, and our court finally agreed that the evidence supported this practice starting in February 2018.  For the past two years the Nebraska bankruptcy court has allowed debtors to sign their case electronically with digital signatures and the program has been a stunning success.  Debtors may review and sign documents through digital signature vendors like DocuSign and receive an immediate copy of what they signed.

In this strange and stressful Covid-19 virus episode, our clients are able to send and sign all required documents to us electronically. Most if not all of the work can be completed over the telephone and email.

Nebraska is the only bankruptcy court allowing digital signatures. And now the rest of the nation is in a panic to allow what our wise court accepted over two years ago.

The next step is to allow debtors to testify at the required trustee meeting over the telephone or via a video conference, such as Skype.  Our Nebraska trustee has already begun testing that service this past year.

Our office is fully ready to protect clients from the spread of the Covid-19 virus with the following service:

  1. Telephone or video consultations.
  2. Digital signatures of all bankruptcy documents.
  3. Documents may be emailed or sent via a ShareFile system.
  4. Payments are accepted online on our website, www.SamTurcoLaw.net
  5. We have video conferencing services ready to facilitate handling court hearings over the internet.
  6. All our staff is able to work from home.
  7. We handle cases in all 93 Nebraska counties.

As a result of continuously modernizing our firm, we are 100% ready for this Covid-19 virus.  Imagine that, a little state like Nebraska is the clear leader in solving this national problem, and I am in daily contact with attorneys nationwide who are looking to copy what we implemented two years ago. So much thanks is owed to Judge Thomas Saladino who had the guts to try something new that will soon benefit debtors and attorneys nationally.

 

 

At first glance it appeared that the debtor had a “slam dunk” case to receive a hardship discharge of her $140,000 student loan debt.

The debtor is a 36-year-old single mother of two disabled children, ages 11 and 12. She received no child support since her ex-husband voluntarily terminated his parental rights. She could not afford her own apartment and lived with her parents. She earned a $36,000 annual salary and did not expect any wage increases.

Obtaining a hardship discharge seemed like a no-brainer–this debtor was stuck in the mud and her student loans imposed a real and long-term financial hardship.

But the Nebraska bankruptcy court denied her application for a hardship discharge, and a closer look at the facts indicates why. (See In re Wells, Case #18-08339)

Public Service Loan Forgiveness Program.

Although the debtor had enrolled her loans into a 25-year income-based repayment program, she did not apply for the 10-year Public Service Loan Forgiveness Program even though she worked for an eligible nonprofit employer.

In fact, during the case the government attorneys offered to delay the trial to allow the debtor to apply for this program, but she declined to make an application.

Why should a bankruptcy court discharge federal student loans when a debtor can eliminate the debt in 10 years with no tax consequences through the Public Service Loan Forgiveness Program? The debtor failed to answer that question to the court’s satisfaction.

Lack of Evidence of Future Income and Living Expenses.

The court was also annoyed by a general lack of evidence presented at trial.

The debtor’s children were disabled and it appears that they might be eligible for Social Security benefits, but no evidence was supplied by the debtor as to whether an application would be made to obtain this income.

The debtor claimed her children’s needs could not be satisfied by attending the local public school and she was therefore incurring the expense of private school tuition, but no medical evidence was provided to support this position.

The debtor failed to provide any evidence indicating that higher paying jobs were not available.  No evidence of denied job applications were presented or that the debtor had maxed out her earnings capacity.

The debtor had a pending personal injury claim but no evidence was presented as to when the claim might be settled or the amount she might receive.

No medical evidence was supplied to show the necessity of certain medical expenses she incurred for her children.

In short, the debtor failed to provide evidence to support her expenses or future income potential.

Actual Expenses did not match Scheduled Expenses.

A review of the debtor’s bank statements revealed that her actual expenses differed significantly from the expenses she listed on her bankruptcy schedules. Specifically, her entertainment and recreational expenses appeared to be much higher than she reported.

Debtors seeking a hardship discharge of their student loans should expect a thorough examination of their spending activity as revealed by a close examination of their bank statements.  The bank statements and bankruptcy schedules must tell the same story.

Conclusion.

Although bankruptcy courts have become increasingly skeptical of the eligibility for various income-based repayment programs as a bar to student loan hardship discharge applications, eligibility for the Public Service Loan Forgiveness Program is almost a certain bar to a hardship discharge.

The Public Service Loan Forgiveness Program is relatively short (10 years) and unlike other income-based programs, if successfully completed it does not result in any income tax liability.  An eligible debtor who fails to apply for this program will almost never receive a hardship discharge.

 

Image courtesy of Flickr and GotCredit.

 

 

 

 

Lower-income debtors simply cannot afford the high cost of filing chapter 7, and that is a real problem when garnishments strike.

The cost of filing Chapter 7 in Nebraska ranges from $1,300 to $1,800 and ALL of those fees must be paid in full to file a case. How can low-income debtors stop garnishments if they cannot afford the fee?

Many debtors have no choice but to file a chapter 13 case which can be filed for as little as $75 down.  But attorney fees in Chapter 13 cases are currently set by court rules at $4,000 payable in monthly installments over 3 to 5 years. Chapter 13 cases are cheap to file but cost 3 to 4 times more in the long run.

And whereas chapter 7 cases have a 95% success rate, chapter 13 discharge rates are less than 50% nationally.

Lower-income families face a tough choice, but a bankruptcy court in Kentucky recently issued an opinion that may provide a roadmap to making the chapter 7 process more affordable.

Kentucky’s Bifurcation Opinion.

In the case of Chanda S. Carr, the Kentucky court reviewed a bifurcated fee arrangement in which the debtor was charged $300 down to file an incomplete chapter 7 petition consisting of nothing more than her name and a list of her creditors.

After the case was filed, the debtor signed a new fee agreement to pay $1,185 payable in 12 monthly installments of $98.75 for the remainder of the legal work.

On it’s own motion, the court reviewed this fee arrangement in great detail. The court noted several important factors in approving this Dual Contract scheme.

Disclosures.

It was very apparent that the debtor’s attorney made a full disclosure of all payment options.

First, the debtor was offered the option of filing a normal chapter 7 case for $1,135, but all of that fee had to be paid in full before the case could be filed.

Then, the debtor was offered a bifurcated fee arrangement of $300 down and then 12 payments of $98.75, for a total of $1,485.  This bifurcated arrangement would ultimately cost the debtor an extra $350 since it is more costly to prepare cases in this manner and payment to the attorney is stretched out over a year.

The combination of an inability to pay for a lower upfront fee combined with an imminent garnishment was a key factor in the court’s analysis. In other words, the debtor made an informed choice.

What is important to observe here is that the debtor was first offered a standard contract–pay a lower fee upfront to file a standard chapter 7 case. The debtor was not steered to the dual contract scheme, but rather chose that option when it was apparent that she could not afford to prepay all the fees up front and garnishments were pending.

The combination of an inability to pay for a lower upfront fee combined with an imminent garnishment was a key factor in the court’s analysis. In other words, the debtor made an informed choice.  She chose the lesser of of two evils–to pay a little more in the long run in order to avoid losing even more from a garnishment.  All the alternatives were laid on the table. She made a reasoned choice. That is a key factor.

Pre-petition Fees Not Shifted to Post-Petition Payments.

The United States Trustees Office–the supervisor of bankruptcy cases–is highly suspicious that attorneys using the Dual Contract method are really preparing most of the case prior to filing and then attempting to collect their fees after the case is filed.  In other words, the US Trustee believes this scheme is a fraud.

In fact, US Trustee investigations of attorneys using bifurcated contracts have revealed that some attorneys have clients sign both contracts at the same meeting and that most of the petition was prepared before the case was filed.

In the Carr case the Kentucky court determined that attorney and the debtor had a post-petition meeting to sign the second contract. The court found that the attorney really did prepare the bulk of the petition and perform the majority of the legal work after the case was filed. The court underscored the importance of this factor.

The Debtor’s Case Must Be Simple.

Bifurcation agreements are not appropriate for complex cases.  Why? Because complex cases require more pre-petition analysis to determine if a debtor’s income is too high to qualify for chapter 7 and even more analysis to determine if the debtor’s property is protected by exemption laws.

Cases involving higher-income debtors who own substantial property require most of the legal work be completed before the case is filed.  Thus, it is a fraud to use bifurcated contracts in those cases since no competent attorney would file a risky case without a full analysis of the debtor’s income, expenses, property and property transfers. A bifurcated fee arrangement in complex cases would be a lie.

But cases involving lower-income debtors with little property are inherently simple and require little pre-petition analysis. Determining if a debtor is above or below Median Income is simple.  For example, the annual median income for a single person in Nebraska is $48,796.  A debtor earning $12 per hour clearly earns less than that amount.  A debtor who rents an apartment with only basic household goods and who owns a used vehicle does not present a complex asset case requiring careful exemption planning.

Lower-income debtors with few assets facing imminent garnishments are the ideal candidates for bifurcated fee agreements since the bulk of the legal work can be prepared post-petition.  The Kentucky court agreed with this reality.

Bifurcated Legal Fees Must Be Reasonable and Should Not Utilize Factoring Arrangements.

The common link between cases where attorneys have been disciplined for the use of bifurcated fee agreements is the presence of factoring arrangements.

Almost all the attorneys sanctioned in bifurcated fee arrangements were using an accounts receivable factoring arrangement offered by BK Billing or Fresh  Start Funding.

The factoring finance companies present attorneys with a slick marketing package complete with fee agreements, disclosure statements and a pricing scheme that basically doubles the cost of the chapter 7 case.   Attorneys that would normally charge $1,500 to file a chapter 7 case are encouraged to bump the price of the case to $2,400.  After the dual contracts are signed by the client, the attorney sells off his post-petition contact to the finance company and receives an immediate payment of $1,500.  The financing company collects future payments from the debtor at typically high interest rates.

Factoring the legal fee contract is attractive to attorneys. Instead of waiting for debtors to slowly pay in their normal fee, they can now streamline the process and get paid now by advertising “No Money Down” chapter 7 services. And believe me, you can file a lot of chapter 7 cases if you can really charge no money down.  There is no shortage of people who need to file bankruptcy, but there is a real shortage of debtors who can afford the $1,500 fee to go broke.

Factoring arrangements should be avoided since they escalate the price of bankruptcy services to unreasonable levels.

But the attorney in the Carr case did not utilize a factoring arrangement. Nor did the attorney charge high interest rates. The extra cost he charged the client for the bifurcated fee arrangement was only $350, and that amount seems reasonable given the extra work bifurcated contracts require and the delay and risk associated with collecting payment.

Birfurcated contracts that charge only slightly higher fees than standard contracts for lower-income debtors with relatively simple cases are likely to be respected by the US Trustee and the courts.

Is the Bifurcated Contract Affordable?

The debtor in the Carr opinion was only required to pay 12 monthly payments of $98.75 post-petition.  Her monthly budget indicated that she could afford that payment. The amount of that payment was reasonable.  The Kentucky court found this payment agreement to be feasible and modest.

Courts that have sanctioned attorneys have found the payment demanded by factoring finance companies to be excessive and predatory. In those cases the debtor’s income and expense schedules would often show negative monthly income but the factoring contract would require payments of $200 per month or more.

If it is clear that a debtor cannot afford to a pay post-petition legal fee installment it is advisable not to enter into a bifurcated fee arrangement.

Conclusion.

The time has come for bankruptcy courts to craft Safe Harbor rules on the use of bifurcated fee arrangements. If we are really serious about addressing the very real problem of low-income debtors being denied access to our justice system, then we need to come up with a compensation system that encourages attorneys to assist those debtors now.

Just making statements like “we really need to change the bankruptcy law” is not enough. We have to work with the tools we have in our hands now instead of waiting for a legislative change that may never come.  Bifurcation is a tool we currently have that can immediately help lower-income debtors facing wage garnishments.

The cost of delaying the establishment of safe harbor bifurcation rules is significant. When low-income debtors cannot afford to pay for bankruptcy fees their wages become garnished, they fall behind on rent, they suffer evictions, their financial distress ignites family distress, and their children pay a dear price.

Attorneys feel threatened by the US Trustee’s office. The attorney in the Carr case faced a significant investigation by the US Trustee and faced potential sanctions and disgorgement of fees. Without safe harbor rules attorneys are reluctant to take a chance of being sanctioned or having their fees disgorged.

Congress is not going to fix this problem anytime soon. Nonprofit organizations lack the resources to handle the volume of cases.

The bankruptcy community of attorneys, trustees and judges must lay the framework to help the working poor access our justice system with the tools we already possess.

 

Image courtesy of Flickr Carl Wycoff.

photo by CafeCredit

The ironic feature of the bankruptcy system is that a debtor must come up with a lot of money to file a case.  Indeed, it costs a lot of money to go broke!

According to bankruptcy law professors  Pamela Foohey, Robert M. Lawless, Katherine Porter (now Congresswomen Katie Porter), and sociology professor  Deborah Thorne in their 2017 article No Money Down Bankruptcy, the high cost of filing chapter 7 bankruptcy is causing many debtors to file even more expensive, but less successful, chapter 13 cases that can be filed for “no money down.”

Attorneys charge an average of $1,229 to file and represent a debtor in a chapter 7 case and an average of $3,217 to file and represent a debtor in a chapter 13 case.

The study reveals that while 95% of Chapter 7 debtors receive a discharge of their debts, only one-third of chapter 13 debtors obtain a discharge.

Why is this happening? Why are lower-income debtors filing expensive chapter 13 cases instead of the cheaper and more successful chapter 7 cases?

You can fault the drafters of the bankruptcy code and the Bankruptcy Reform Act of 2005 for this mess.

When a debtor files a chapter 7 case, all debts–including fees owed to their bankruptcy attorney–are wiped out.  The debtor’s attorney may not accept payment for services performed prior to filing the bankruptcy petition.

That’s a big problem. Attorneys cannot accept payments for their services after the case is filed, so attorneys typically charge ALL their fees up front.  And lower-income debtors just can’t afford to come up with the money so they wind up filing chapter 13 for no money down.

So why can’t debtors just save up to file chapter 7?  Well, they can and most attorneys will accept payments before a case is filed.  In fact, most debtors break the chapter 7 fee into installments.

The problem is that debtors usually hire a bankruptcy attorney after they have been sued and wage garnishments are imminent. They have run out of time to save up to file the less expensive chapter 7 option. So even though they are a better fit for a chapter 7 case, they opt to file the “no money down” chapter 13 case to stop garnishments, repossessions and foreclosures.

Geography & Race Factors:

A very disturbing fact of bankruptcy cases is that the filing of a chapter 13 case has more to do with a person’s location and race than it does with anything else.  Debtors in Southern states and African American debtors filed a disproportionate number of chapter 13 cases, suggesting that the decision of which chapter to file has more to due to with the attorney they hire than what is best for a particular debtor.

In some districts as many as 80% of the cases are filed as chapter 13, whereas in 2015 in the Northern District of Iowa only 6.7% of the cases were chapter 13.  That difference cannot be explained by determining what was best for the debtor.  Rather, the authors suggest that attorneys are doing what is best for their bottom line at the expense of lower income Americans.

Correct observations but wrong conclusions.

Although the authors correctly point out the problems with No Money Down cases, they reach the wrong conclusions much of the time.

The basic problem here is compensation. Attorneys are more than happy to file chapter 7 cases if they can be compensated. The only reason attorneys are pushing chapter 13 cases is so they can get paid. The solution is to figure out how to compensate chapter 7 attorneys.

The professors make the following statements in their report:

  • “Given that attorneys facilitate “no money down” bankruptcy, the best way to ensure that all debtors have equal access to bankruptcy is to cabin attorneys’ incentives and role in chapter choice, while still allowing debtors access to this filing option if they so choose.”
  • “One solution to combat the effects of the “no money down” bankruptcy is to allow debtors to pay bankruptcy attorneys’ fees in installments during their chapter 7 cases.”
  • “Standing orders could provide that only if the debtor has paid twenty-five percent (or some other percentage) or more in attorneys’ fees prior to filing will the “no look” fee apply.”
  • “A similar solution would be to revise the requirements for confirmation of chapter 13 plans to include a condition that the plan must contemplate making a substantial repayment to creditors.”

So, the professors suggest that attorneys who steer their low income clients into chapter 13 cases should be denied their fees unless a substantial amount of the creditor claims are paid.  Well, that would DRASTICALLY reduce the number of chapter 13 cases filed.  But is that a good result?

That is actually a horrible idea. How does this help low income debtors? They can’t afford to file chapter 7 so chapter 13 is their only option. Their paychecks are being garnished so they must do something, but these professors just focus on the low success rate of chapter 13 cases instead of the debtor’s immediate need for relief.  Filing chapter 13 does offer IMMEDIATE relief from garnishments, repossessions and foreclosures.

There are two real problems here.  First, we have a chapter 7 compensation problem. Second, we have a chapter 13 success rate problem.

How can we compensate chapter 7 attorneys so they will file cases now and not make a debtor wait to file?  Well, as the professors suggest, legislative changes to allow that would be great, but when is that supposed to happen?

The Bifurcation Solution:

A current option to help allow debtors to file chapter 7 cases for a small retainer fee is to open up the doors to a bifurcated case.  That is, allow attorneys to charge a small payment down to file an incomplete case consisting of nothing more than a debtor’s name and a list of creditors and then allow attorneys to charge monthly payments after the case is filed for completing the remaining schedules.

This solution is available now, but the US Trustee has been extremely hostile to allowing this process even though court decisions say it is allowable.  The problem is, those firms attempting this approach have gone too far and have charged high fees and interest rates making the cost similar to chapter 13. But if courts develop Local Rules creating Safe Harbor zones for reasonable fees and payment schedules, this solution could be implemented right now with no Congressional action.

Chapter 13 Success Rate Solution:

The fact that only one-third of chapter 13 cases nationwide result in a discharge is outrageous. In Nebraska the success rate is about 60% and our firm has normally trended towards 70%. If the success rate of chapter 13 were higher nationally I doubt the authors would be complaining about no money down bankruptcies.

Why do some states have such low success rates for chapter 13? That is the key question not addressed by this article–a glaring omission. Success rates depend on cooperation between the courts, the trustees that supervise the case, and the attorneys who file them.  Chapter 13 cases require fertile soil created by sensible Local Rules that give the system flexibility.

Sometimes debtors cannot make the monthly payment. They lose jobs or file divorce or suffer health problems. Local rules must allow debtors to suspend payments easily.  Attorneys must be properly compensated for keeping the case alive when a debtor encounters trouble, and that means allowing for supplemental fees when amendments to plans or motions to suspend payments are filed.  And courts need simple rules that are easy to enforce. Combine all those ingredients and chapter 13 success rates soar.

The professors also fail to mention many of the benefits of those more expensive chapter 13 cases.  For example, car loans can be paid off for what a vehicle is worth instead of what is owed and at lower interest rates.  That savings can more than offset the higher cost of chapter 13. In addition, new debts incurred after the case is filed–especially ongoing medical bills–may be discharged if the case is converted to chapter 7 later.  Income tax debts may be paid off at lower interest rates as well. No mention of these cost savings is mentioned in the article.

Yes, we need reforms to help lower-income debtors file successful bankruptcies. But attacking attorneys–the gatekeepers to the justice system–or attacking debtors by making it more expensive to file chapter 13 is not the answer to the problem.

Image courtesy of Flickr and CafeCredit.com

The 8th Circuit Court of Appeals has affirmed a Bankruptcy Appellate Panel’s opinion regarding whether a retirement account awarded to a spouse in a divorce case is exempt in a bankruptcy proceeding.

Last year the BAP court ruled that a retirement account awarded in a divorce case was not earned by the debtor and was therefore not protected in a bankruptcy case under federal exemption laws.  (See Lerbakken decision 2019). This opinion came as a shock to many since funds in a retirement account are traditionally protected.

The BAP court explained that although funds earned and saved in the debtor’s retirement accounts are protected, retirement funds awarded to an ex-spouse are not earned by that debtor and are therefore unprotected under federal exemption laws. (State exemption laws, however, may extend such protection.)

Although the 8th Circuit has now affirmed the BAP’s Lerbakken opinion, it appears that the 8th Circuit is being careful to narrowly limit the scope of that opinion.

The 8th Circuit Court underscored the fact the debtor had failed to transfer the retirement accounts into his own seperate account prior to filing bankruptcy.  The BAP opinion mentioned this fact but did not emphasize it.  So, had the funds been fully transferred to his own account, would the funds be protected?  The 8th Circuit seems to suggest that.

Secondly, the 8th Circuit Appeals Court pointed out that true retirement accounts are not subject to creditor claims but the Lerbakken account was subject to a lien for unpaid attorney fees. So, if the funds were not subject to a lien of a current creditor, would they have been protected as an exempt retirement account? That fact seemed to make a difference to the appeals court.

Lerbakken’s interest in the IRA was a sum of money in his ex-wife’s IRA, not an account “set aside for the day when an individual stops working.”

The Takeaway:

First, it appears that had Lerbakken delayed filing his bankruptcy until after the retirement accounts were transferred to his own separate account, the funds might have been protected under federal exemption laws.

Second, had Lerbakken satisfied the claim of his divorce attorney prior to filing bankruptcy, the court may have viewed the accounts as retirement savings.

Nebraska Exemption Laws May Protect Retirement Accounts Awarded in a Divorce

The Lerbakken case was filed in Minnesota where the debtor was using federal bankruptcy exemption laws.  However, Nebraska has opted out of the federal exemption scheme and uses a different exemption law to protect retirement accounts.

Nebraska Statute 25-1563.01 protects retirement accounts in bankruptcy cases, but what about accounts awarded to a debtor in divorce? Are those accounts protected?

In an unpublished opinion the Nebraska bankruptcy court did rule that a retirement account awarded to a debtor pursuant to a divorce decree was exempt under Nebraska statute 25-1563.01. (See In re Reohrs, Case No. 18-41831).

Until there is a written opinion issued in Nebraska, debtors should be careful about filing chapter 7 cases if they own substantial retirement funds received in a divorce case.

Image courtesy of Flickr and Michael.

 

The Final Report of the  American Bankruptcy Institute on Consumer Bankruptcy offers suggestions to make paying for bankruptcy more affordable. The report does a good job of explaining why fees are so high, but the suggested remedies are generally lame and at times just plain wrong.

In what way? Well, the report correctly diagnoses the problems of escalating legal fees faced by debtors filing Chapter 7 cases, but the proposed recommendations to solve this problem are just bizarre. The ABI commission makes the following recommendations:

  1. Online Data Input Forms.
  2. Increasing Provisions for Bro Bono Cases.
  3. Reducing Court Filing Fees.
  4. Video Attendance at 341 Hearings.
  5. Hire Government Attorneys to Prepare Case.
  6. Make Chapter 7 Attorney  Fees Nondischargeable.

Online Data Input Forms.

The ABI suggests that if debtors could enter their own schedules online using easy-to-understand forms then attorneys could use this information to prepare cases less expensively.

First off, this already exists.  There are multiple websites that provide forms a debtor can enter online and the cost is usually less than $100.

Second, most attorneys use software that allows debtors to input their creditors, property, income etc.  Few attorneys utilize the service. Why?  The truth is, debtors do a poor job of entering information. In fact, most do such a poor job that asking them to enter information is generally counterproductive.

This is not to belittle clients, but unless you work with bankruptcy schedules on a regular basis you will not understand what is being requested and why it is important.  The ABI’s recommendation that new online data input forms be created is just a waste of time and money. The service already exists.

Increasing Provisions for Pro Bono Cases.

It is interesting that an organization comprised of law professors, attorneys and judges is actually suggesting that debtors would be better off by not having a competent attorney represent them.  The ABI is suggesting that more funds be paid to Legal Aid clinics to help debtors file their own case.

First, it is unethical for Legal Aid attorneys to prepare pro se petitions and then abandon the client to file their own case. Bankruptcy Rule 9011 requires that attorneys who help prepare a bankruptcy petition must actually sign the petition.  Multiple attorneys have been sanctioned by the court for attempting to contract away the duty to attend court and to provide “core and fundamental” services.  Ghostwriting bankruptcy petitions is unethical under current court rules, but that is what Legal Aid clinics do.

Second, filing bankruptcy is a complex process even for attorneys, let alone a pro se debtor.  The ABI is encouraging legal clinics to draft petitions and then abandon the debtor in court. I’ve seen pro se debtors lose homes, cars, and tax refunds because they were not properly represented. To encourage more of this is simply unwise. Filing bankruptcy is a dangerous process and debtors need competent (i.e., compensated) attorneys representing them.

Reducing Court Filing Fees.

Yes, reducing the $335 court fee to file Chapter 7 would help lower income debtors.  But it would also deprive courts of their main source of revenue. Defunding our bankruptcy court system is probably not in the best interest of debtors.  The ABI report does not state how this decrease in court funding would be addressed.

Video Attendance at 341 Hearings.

The move towards video court hearings is valid and that is actually starting to take place in rural communities. I’ve heard that this practice is already occurring in the Wyoming bankruptcy court and the US Trustee’s Office in Nebraska says they will start experimenting with it for rural cases.  However, whether the hearing is live or on video, the debtor and their attorney must attend the meeting and I doubt this will result in much cost savings.

Hire Government Attorneys to Prepare Case.

The ABI commission suggests that an agency similar to a Public Defender office be established to help lower income debtors file cases.  Gosh, isn’t that what Legal Aid clinics already do? I see nothing but disaster with this idea. First, this is never going to happen. Congress is not going to spend billions of taxpayer money to help people file bankruptcy. Second, does anyone actually think a government attorney is going to crank out a large number of petitions in any given week? Really, this idea is just plain dumb.

Make Chapter 7 Attorney  Fees Nondischargeable.

This idea makes sense, but I doubt it will be approved by Congress anytime soon.

Once a bankruptcy petition is filed with the court, bankruptcy laws prohibit an attorney from accepting payment for work prepared prior to filing.  So, Chapter 7 attorneys routinely demand that ALL fees be paid before the case is filed.

Excepting attorney fees from the bankruptcy discharge would encourage attorneys to accept monthly payments for their services after the case is filed, and that would greatly help lower-income debtors.

Interestingly, the bifurcation of legal fees into pre-filing and post-filing services is gaining momentum and this practice does allow attorneys to accept monthly payments after the case is filed.   For lower income debtors who cannot come up with large retainer fees, a bifurcated legal fee arrangement may be their best option to make the process affordable.

The ABI Report gives negative reviews of the bifurcation process, but there is no substantial difference between bifurcating fees and making Chapter 7 legal fees nondischargeable.  It is really the same thing.  Bifurcation merely employs the legal trick of filing an incomplete petition that only provides a debtor’s name and list of creditors while the majority of the legal work is prepared immediately after the case is filed.

Bifurcation achieves the ABI’s goal of making legal fees nondischargeable and thus affordable.  And since this procedure is already available, no laws need to be passed to make this a reality.

It would seem that the ABI Commission may have better spent its time creating guidelines to make the bifurcation process more available to lower income debtors.  Bifurcation does not require more government programs or changes to the law.  There is no shortage of competent bankruptcy attorneys, but there is a shortage of compensated attorneys in this field.  That’s the real problem. Most bankruptcy attorneys I know are desperate for more business.  This is strictly a compensation problem. Solve the attorney compensation problem and you solve the low income debtor problem.

Chapter 13 Benefits Overlooked.

The ABI Commission is apparently distressed about lower income debtors being lured into expensive chapter 13 cases. Yes, legal fees in chapter 13 cases are significantly higher than fees chapter 7 cases.  However, the ABI Commission is overlooking significant advantages offered in the chapter 13 process.

First, debtors are represented by extremely competent attorneys in chapter 13 cases.  (Again, compensated = competent.) That means attorneys are aggressive at stopping garnishments, foreclosures and judgment liens.  Their fees are generally contingent on getting a chapter 13 plan approved, so attorneys are diligent in proposing feasible payment plans within a debtor’s ability to pay. A dismissed chapter 13 case results in the attorney not receiving compensation, so filing successful plans is the goal.

Second, chapter 13 plans have the power to cram down car loans to the value of a vehicle and to reduce interest rates as well. Those savings often pay for the additional cost of the chapter 13 case.

Third, new medical bills and other debts incurred after the chapter 13 case is filed may be added to the case if it is converted to chapter 7 later.  Converting chapter 13 cases to chapter 7 is extremely common and the ability to add new debts provides a debtor with a longer-term benefit, especially for debtors who lack health insurance coverage.

Forth, chapter 13 fees are not that expensive.  For a lower income debtor with no secured or priority debts, a 3-year chapter 13 case can be field for $310 of court fees down and a monthly payment of $100 per month.  That seems damn reasonable to most folks.

Fifth, the ABI Commission reports that only 46% of chapter 13 cases are successful.  Really? Then perhaps the ABI Commission should focus on that dismal success rate. In Nebraska the rate is closer to 60% and our firm has traditionally achieved a 70% discharge rate. Compared to Credit Counseling agencies that report a 25% to 40% success rate, that is actually pretty good.  And why do some courts have such poor success rates? That’s the real question.  Are the procedures streamlined? Does the court provide a framework of Local Rules that make the process simple? Do the Chapter 13 Trustee’s nitpick the cases and basically make the process miserable? Chapter 13 is an incredibility powerful tool to help lower income debtors when used properly and the fact that attorneys are compensated for providing that service is not a problem but is actually a mark of success.  Imagine that, attorneys who work for lower income America actually can earn a decent income. That’s a problem? Gee wiz, clean your glasses ABI.

 

Image courtesy of Flickr and New Media Consortium.

Low income debtors often need to file bankruptcy to stop garnishments, car repossessions and foreclosures. The problem is, filing Chapter 7 bankruptcy is expensive and attorneys will not file a case until ALL those fees (typically $1,400 to $1,800) are paid.

Why won’t attorneys file cases for a small retainer and monthly payments on the balance? Because court rules prohibit attorneys from doing that.  It’s ironic, but the very laws that are designed to help low income debtors actually impose a roadblock to hiring professional help.

When a bankruptcy case is filed, all debt collection must stop, including fees owed to the attorney. Chapter 7 attorneys cannot accept additional payments once a completed petition is filed.

WHAT IS BIFURCATION OF FEES?

One solution is to file an incomplete petition.  Under bifurcation the attorney files a skeletal petition consisting of nothing more than a debtor’s name and a list of creditors.  After the case is filed the debtor signs a new fee agreement to cover the work that needs to be completed (drafting asset and debt schedules, income and expense schedules, attending court hearings, etc.).

Since the bulk of the legal work is performed after the case is filed the attorney is allowed to accept monthly payments.  Hence, the process has been divided between pre-petition and post-petition services.

Is this allowed? Can an attorney divide their fees between pre-petition and post-petition services?

GRIMMETT CASE:

The Idaho bankruptcy court was one of the first to rule on bifurcated fee arrangements in the case of In re Grimmett.  In that case the debtor’s attorney used a factoring company called BK Billing based in Utah.  The attorney charged the debtor $500 to file a skeletal petition and then another $1,500 payable in monthly installments for work completed after the case was filed.  The attorney sold his fee contract to BK Billing and received $1,000 immediately.  To summarize this arrangement, the debtor paid $2,000 to file a case ($500 down and $1,500 in monthly installments), the attorney received $1,500, and BK Billing received $500 plus interest.

The Idaho court pointed out several problems:

  • The agreement provided that if the debtor failed to make timely payments the schedules would not be filed and court fees would not be paid resulting in a dismissal of the case.  In short, the attorney threatened not to complete his job when payments were late.
  • The agreement provided that the attorney would stop working on the case even if the attorney did not receive court permission to withdraw.
  • The court was concerned about whether debtors were giving “informed consent.”  That is, did the client really understand what they were signing?
  • The attorney threatened to send the unpaid account to collection.
  • Until an attorney is allowed by the court to withdraw from a case, the attorney must be prepared to assist the debtor through normal, ordinary and fundamental aspects of the process.  These core duties would include completion of the bankruptcy schedules, attending the meeting of creditors, and assisting the debtor with normal tasks involved with reaffirmation agreements, filing credit education certificates, etc. An attorney cannot contract away core and fundamental duties.
  • It is doubtful that a debtor can appreciate or understand the adverse consequences that may befall him or her when the attorney abandons the case midway through.
  • There is great suspicion by the court and US Trustee that this is an effort to allocate charges of pre-petition work to post-petition fees. In other words, the US Trustee suspects the arrangement is a scam and most of the work is really done prior to filing the case.

If either lawyer or client wishes to limit services in order to preserve a lower fee, that limitation must be carefully considered and narrowly crafted, and be the result of educated and informed consent.

Several cases have been brought against bankruptcy attorneys in various bankruptcy courts when they sell their unpaid accounts to BK Billing.

UTAH COURT ALLOWS BIFURCATION

In 2019 the Utah bankruptcy court issued a ruling approving the use of bifurcated fees in Chapter 7.  (See In re In re Haszelett).

In May of 2016 Brett Hazlett met with the attorneys of Lincoln Law to file bankruptcy but could not afford to pay a $1,200 retainer fee.  Later that year creditors obtained judgments against Hazlett but he was again informed that no case could be filed until he fully paid the retainer fee.

Hazlett then met with attorneys of the Capstone law firm and entered into a bifurcated chapter 7 agreement to pay Capstone $2,400 payable in 10 payments of $240 after the case was filed.  Hazlett completed his bankruptcy case and received a discharge of his debts.

About a year later an attorney from Lincoln Law contacted the debtor about why he had not filed bankruptcy with  his firm. When the debtor informed the attorney about the zero-down payment system offered by Capstone, Lincoln Law filed a complaint with the Utah bankruptcy court to disgorge fees and impose sanctions.

In contract to the Idaho court, the Utah bankruptcy court found nothing wrong with the BK Billing arrangement and offered the following observations about the BK Billing program:

  • The bifurcation documents included a multitude of disclosures, explanations, and warnings regarding the fee arrangement, the bankruptcy process, the possible use of BK Billing as a third party to collect payments, and the importance of providing true, complete, and accurate information .
  • The Instructions contain almost fifty paragraphs of disclosures and explanations that the Debtor was required to read and initial.
  • The attorney’s fees did not arise under the prepetition agreement as alleged by Debtor. Rather, they arose under a post-petition agreement, which is not governed by § 362 because the “claim”—or right to payment—does not arise “before the commencement of the case under this title.
  • Lincoln Law has repeatedly failed to demonstrate how the Debtor was actually harmed in any way by Capstone Law.
  • After careful scrutiny, this Court determined that all the charges were reasonable, and that the outcome of the bankruptcy case was completely satisfactory as to the Debtor.
  • The Debtor is an adult who, based on his inability to pay an up-front retainer, made an informed business decision to enter into a post-petition agreement.

Wow, two different courts reviewing the same BK Billing contract reach completely opposite conclusions. It appears that the key difference in these cases is how the different attorneys acted towards their client.   The Idaho attorney was basically a threatening jerk to his client while the Utah attorney completed his client’s case resulting in a discharge of the debts.

So is completing the case and obtaining a discharge the key to allowing bifurcated agreements? If the Idaho attorney had simply promised to complete the job regardless of whether the client was current on payments, would the result be different?  That seems to be the great concern of the Idaho court–that “core and fundamental duties” be fulfilled and that clients not be abandoned.

Indeed, if attorneys can promise that core and fundamental duties will be honored and that clients give informed consent, there is no reason for courts or the US Trustee to condemn bifurcated fee agreements. As the Utah court asked, how is a debtor harmed, especially when a debtor is unable to pay a retainer fee and is facing garnishments?

Even the American Bankruptcy Institute’s Commission on Consumer Bankruptcy has recommended that Chapter 7 bankruptcy fees be excepted from discharge so that attorneys may offer payment plans similar to the BK Billing program.

Honoring core and fundamental duties.  Informed consent. These are the building blocks of a successful bifurcation fee arrangement.

 

Image courtesy of Flickr and Juhan Sonin

It costs a lot of money to go broke.  It really does. The cost of filing Chapter 7 in Nebraska is about $1,400 to $1,800 for the typical case, and many can never afford that cost.

To make matters worse, once a bankruptcy petition is filed with the court, attorneys are not allowed to accept further payment. As a consequence, bankruptcy attorneys must charge ALL their fee up front before the case is filed.  And that is a big problem for lower-income debtors.

How can a low income debtors afford bankruptcy fees when they are being garnished? 

And then I had and idea after viewing a self-help bankruptcy service called Upsolve. Would it be possible to offer a drastically discounted fee to review bankruptcy petitions prepared by the debtor? If debtors could input most of their petition online and provide us a draft copy, could we offer an inexpensive service to review their petition?

Chapter 7 can be dangerous and complicated, even for low income cases. Bankruptcy trustees appointed by the court must review every case filed and personally meet with with the debtor. Trustees are paid commissions to uncover unprotected property and transfers.  In other words, your mistakes equal their profits, and that is why it is extremely dangerous to file chapter 7 without an attorney.

And then I did the research.

So I researched if we could offer an inexpensive bankruptcy petition review service, and the court cases I read clearly indicate that attorneys may not offer limited scope services in bankruptcy.

In the case of In re Castorena an Idaho attorney set up a legal clinic that charged clients $250 to prepare a bankruptcy petition with the understanding that the client would file their own case and the attorney would make no appearance at the court hearing.  The Idaho bankruptcy court was not pleased with this limited scope arrangement and took away fees in 19 cases.  The court extensively explained why bankruptcy attorneys could never agree to such a limited representation.

  • Regardless of the propriety of the attempt to limit the scope of representation, the attorney was absolutely obligated to sign the petition under Federal Bankruptcy Rule 9011(a).
  • This Court agrees that there is no excuse for a lawyer, who counsels a debtor regarding a bankruptcy and prepares that debtor’s petition, schedules and related documents, to fail to sign the petition.
  • Attorneys must sign what that cause to be prepared.
  • A competent, ethical attorney is confronted with an extremely difficult, if not insoluble, dilemma when contacted by a client who is inclined to file for bankruptcy, but who, for whatever good reasons, does not want or can not afford “full-service” legal representation in the case. Can the attorney legally and ethically assist a client in prosecuting a bankruptcy case when the lawyer can not in good conscience conclude the would-be debtor is capable of analyzing, confronting and successfully overcoming the legal problems he or she may encounter in bankruptcy court?
  • Is consent by the client to a lawyer’s proposal to restrict services of consequence if the client is not equipped to appreciate the intricacies, and perils, associated with such a decision?

The court in Castorena is not alone in its opinion. Lots of courts have made similar rulings.  (See In re Ruiz, 515 B.R. 362,   “Where a law firm entered into a limited representation agreement with the debtor, failed to sign the petition, failed to formally appear in the bankruptcy case or directly file the petition, and failed to attend the meeting of creditors or provide other necessary services to the debtor, the law firm’s attempt to limit their services was prohibited by Bankr. M.D. Fla. R. 9011-1.“)

Solutions to the low income problem of filing bankruptcy.

So how does a lower-income person who is being garnished file bankruptcy?

File Chapter 13: The most effective solution is to file Chapter 13. Under a chapter 13 case a person must pay back SOME of what is owed, but payments can be as low as $100 per month and Chapter 13 cases can be filed for as little as $75 down.

Also, there are many extra benefits to Chapter 13.

  • Vehicle loans can be “crammed down” to the value of the vehicle and repaid at lower interest rates.
  • New medical bills may be added if the case is converted to chapter 7 later. In fact, if a debtor does not have health insurance or is anticipating lots of new medical bills in the near future, chapter 13 may be the preferred solution.
  • Recover Garnishments of the past 90 Days.  Another benefit of filing chapter 13 now is that it may allow a debtor to recover garnishments taken in the 90 days prior to filing bankruptcy. If one creditor garnished more than $600 within 90 days of filing bankruptcy, a debtor may be able to get that garnishment refunded.

The professional service provided by a paid bankruptcy professional should not be undervalued. A competent and properly compensated (Hmm . . . notice that the words “competent” and “compensated” are similar?) bankruptcy attorney will provide numerous benefits. They pull credit reports. They do background checks. They understand what bankruptcy trustees like to take away. They know how to stop garnishments quickly. They know how to retrieve garnishments of the prior 90 days. They know how to avoid judgment liens. They have experience to avoid the numerous pitfalls that await a pro se debtor. In short, a competent bankruptcy attorney should save a client more than the extra fee they charge many times over.

Need for new rules to assist low-income debtors.

Generally speaking, rules regulating bankruptcy attorneys should be few and clear.  Right now there is a lot of confusion about limited scope representation in bankruptcy cases. Courts are rightfully concerned about making it too easy for attorneys and others to provide limited services that basically dump complicated cases in the court that a pro se debtor is unable to manage.

Bankruptcy attorneys are rightfully reluctant to file chapter 7 cases for lower fees knowing they can’t and won’t be paid for services after the case is filed.

Unfortunately, that is the system we currently have and it will probably take new rules to help lower income debtors to file attorney-assisted cases for less money down if the court thinks it is wise to open the Pandora’s Box of problems that will necessarily follow.

 

Image courtesy of Flickr and Stephen Samuel

 

I recently returned to work after being a stay at home mom. When I quit working I stopped paying on one large credit card. They took this all the way to judgement and are now trying to garnish my wages with my new employer. I am a mortgage processor and am wondering if I file bankruptcy will it affect my NMLS? My second question is will I even qualify for bankruptcy at this point? The judgement is for about $10,000.  I can’t afford the $400 per paycheck garnishment. I’m going to see if they will take a settlement but if they don’t, bankruptcy is my only other option. I’m just worried I make too much money now to file bankruptcy. Any advice or experiences you’ve had would be great to hear. Just trying to figure out the best way to move forward.

The Nationwide Multistate Licensing System & Registry (NMLS) is the agency that regulates those who originate mortgage loans. Because these individuals handle sensitive financial information and are responsible for ensuring the integrity of our nation’s mortgage lending industry, mortgage originators are subject to many regulations that affect their license.

Generally speaking, the filing of a bankruptcy case does not threaten the license of a mortgage originator, but the filing of a bankruptcy must be reported on license applications and renewals. Some state’s require that a copy of the bankruptcy petition be provided along with an explanation of the circumstances surrounding the filing.

Income Requirements to File Bankruptcy.

There are income limits to qualify for Chapter 7 bankruptcy based on the size of a debtor’s household.  The income limits are adjusted every six months to stay current with the average income in each state, and the median income figures for Nebraska as of January 2020 are as follows:

1 Earner 2 People 3 People 4 People 5 People
$ 48,796 $ 68,061 $ 77,274 $ 93,747 $ 102,747

If your income is below these median income figures, you should qualify for Chapter 7 (unless it is abundantly clear that you have excess income available to repay a significant portion of the debt).  However, if your income is slightly over median income, a person may still qualify for Chapter 7 after taking into account such monthly expenses as mortgage payments, auto loans, health care expenses, etc.  In addition, not all types of income count, such as Social Security or Veterans benefits that are excluded from median income calculations.

Even if your income is too high to qualify for Chapter 7, you always have the right to file for the repayment bankruptcy of Chapter 13.  In Chapter 13 you repay  a portion of what you owe based on your income over a 3 to 5 year period of time, and the unpaid portion is discharged at the end of the case. While you are in Chapter 13 creditors may not garnish paychecks or bank accounts.

Is this enough debt to justify filing bankruptcy?

Given that your income is on the rise and that you question whether you even qualify for bankruptcy, it may be that working out a payment agreement or settlement with your judgment creditor may be the better option.

A good bankruptcy attorney not only helps guide clients through the bankruptcy process, but they actually help clients to avoid filing bankruptcy by working with creditors to set up payment plans and settlements. In fact, bankruptcy attorneys are usually the most effective attorneys to negotiate settlements since they routinely work with creditor attorneys on a daily basis.

 

Image courtesy of Flickr and WOCinTech Chat