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The Bankruptcy Code for a Chapter 7
Found under the Bankruptcy Code 521 (a)(2) is the Debtor’s Statement of Intention on what he will do concerning his secured property. The debtor is required to file the statement in a Chapter 7 within the first 30 days of the Creditors 341 Meeting if he has any secured debt. Secured debt is a debt with a secured lien held against the property.
What Does the Debtor Do if He Does Not Have Any Secured Property?
This illustrated question came from a bankruptcy forum website that a debtor, while waiting for a Chapter 7 discharge, learned on Pacer that he was missing the Debtor’s Statement of Intention, even though he had reported on the Schedules D, E, and G that he had no secured assets: “I only have credit card debt; no car or home,” he said. “Will this be a problem?”
Exception to the Rule
Although the code states that a Chapter 7 type of bankruptcy requires a Debtor’s Statement of Intention, there are exceptions to this particular rule. A Debtor’s Statement of Intention is a statement made by the filing debtor on what his or her intention is regarding secured debt. Under code 521(a) section 2(A), the filing debtor has the choice to “retain or surrender such property and, if applicable, specify that such property is claimed as exempt, that the debtor intends to redeem such property, or that the debtor intends to reaffirm debts secured by such property.”
In the case of the illustration above, the filing debtor received a 11 USC 521 Notice of Noncompliance. This statement given by the bankruptcy court would have the effect of acknowledging the filing debtor has no secured assets to consider in a Chapter 7 case.
Even though the bankruptcy court has placed in the records the filing debtor has not complied with the code by providing a Debtor’s Statement of Intention, the Notice of Noncompliance proves the debtor has no secured assets in which to have any intentions. Therefore, the exception to the rule, logically, is that a Debtor’s Statement of Intention is really not needed because there is nothing to declare.
What Happens if the Trustee Files for Dismissal for Noncompliance?
Should a bankruptcy court panel trustee make an issue of not filing the Debtor’s Statement of Intention in a timely manner and then ask for a dismissal for noncompliance, which is not likely, the filing debtor need only take his Schedules and Notice of Noncompliance statement before the bankruptcy Judge who would recognize the significance of the statement under question. It is extremely unlikely a bankruptcy Judge would dismiss a case under those circumstances.
The Need for Bankruptcy Advice
Bankruptcy laws are sometimes complicated. How you fill out an application in a Chapter 7 bankruptcy is very important. Improperly filling out your paperwork can cause your case to be dismissed under certain circumstances. These are all good reasons why there is a need for experienced bankruptcy advice, and there is no one better to give you this legal advice than an experienced bankruptcy attorney.
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In the News
Back on January 11, 2012, a news blog was posted on Bankrate.com by David McMillin about the FBI warning consumers to be careful about doing you banking online. It seems there is a group of criminals that has come up with a clever scam to steal your personal banking information from your computer or cell phone.
McMillin wrote: “In a new warning, the Federal Bureau of Investigation warns account holders of a new spam email scheme that involves a type of malware called “Gameover.” The scheme involves fake emails from the National Automated Clearing House Association, the Federal Reserve or the FDIC. These messages attempt to trick recipients into clicking on a link to resolve some type of issue with their accounts or a recent ACH transaction. Once you click on the link, Gameover takes over your computer, and thieves can steal usernames, passwords and your money.”
McMillin asks at the end of his blog, if you have had a scam experience, to make suggestions on how you think the problem should be handled.
Personal Experience
I recently had two attempts to takeover my computer, one of which caused my computer to crash, and the other caused me to rethink my security protection for the computer.
The first one was a worm that caused my computer to seize. The solution was to erase all my information, restore my computer to its factory condition and buy better anti-virus protection. I lost all the work I did not have backed up.
The second attempt came when I discovered someone currently had control of my computer. The scam artist changed my web pages directly in front of my eyes and moved my cursor at will. I immediately shut down my computer, and it then took me three days to redo my security protection. I changed all pass words, and I now use my computer as a user, while any changes made can only be done by my administrator.
What Scam Artists Can Do With Your Personal Information
Anyone who has had some type of virus or worm that has caused your computer to crash most likely has experienced some type of scam to find out personal information about you. Personal identity theft is one of the largest growing crimes in America, and the reasons to scam you through entering your computer to get personal information is endless.
By entering your computer, thieves can often get your name, address, telephone number, social security number, banking information, and business information, if you do business online. They can learn your passwords and user names once the get into your computer.
Obviously, once they get this information, they can obtain credit cards in your name, take money from your accounts if they get your banking information, set up phony businesses in your name, make out phony identifying documents like driver’s license and passports. The scam artists do not necessarily have to be from the United States to benefit most from thes type of scams.
My Suggestions for Using a Personal Computer
Because of my personal experience with someone trying to scam me, I no longer keep any personal information on my computer, and unless a site is encrypted and protected, I will not fill in the blanks with personal information, or use that particular web page. My computer name has no personal information, and my computer has no personal information anywhere in it. I no longer do my accounting or banking with an online computer. I have another computer that I keep my accounting and banking information in, but I ALWAYS use this computer offline, never hooking it up to the internet.
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Most bloggers will use celebrities and various other famous people to illustrate that bankruptcy does not always just happen to common people who make very little income, but it can happen to anyone. This blogger offers his opinion of the top five worst bankruptcies ever filed, in descending order.
#5 Worst Bankruptcy Ever Filed
Lydia Harris claimed 50% ownership investment in Death Row Records in a lawsuit in 2006 against co-founder Suge Knight who had a history of trouble with the law. Harris was awarded $107 million by the courts for her 50% stake in Death Row. Knight then filed for bankruptcy protection in the same year, and the bankruptcy court found he had only $11 in his bank accounts. Knight continues to have financial trouble to this day as well as trouble with the law. Whatever happened to Lydia Harris? I don’t know, but my guess is she is no longer investing in record companies.
#4 Worst Bankruptcy Ever Filed
Willie Nelson filed bankruptcy in 1990 after the IRS reportedly handed Willie a bill for $16.7 million for back taxes. The IRS seized most of his assets to help pay those charges. Didn’t Willie know that most IRS back taxes are exempt from bankruptcy discharge? While it is true some back taxes are non-exempt from discharge, the automatic stay ran out of time, and Willie is still hurting from the IRS, some 22 years later.
#3 Worst Bankruptcy Ever Filed
Lawrence Taylor was one of the greatest linebackers to play for in the National Football League, and he was one of the highest paid players in the NFL for 13 seasons. Nearing the end of his career and after, Taylor lost all of his money through the use of illegal drugs, gambling and bad investments. In 1998, Taylor was arrested for failing to pay child support and had to file bankruptcy. Didn’t Taylor know child support is also exempt from bankruptcy discharge? Could investing in a drug rehabilitating program been a better investment than a bankruptcy lawyer?
#2 Worst Bankruptcy Ever Filed
Bud Post was the famous lottery winner who won a national lottery in 1988 worth $16.2 million. Bud then went on a spending spree buying almost anything in sight. Bud filed for bankruptcy protection in 1996, declaring later that winning the lottery had ruined his life. He died in 2006 with no money or possessions. Did filing bankruptcy really help?
#1 Worst Bankruptcy Ever Filed
Mike Tyson was one of the most written about boxers ever. He won the heavyweight boxing title at 20 years old, the youngest ever to do so. It is estimated he won over $300 million dollars in his professional career. Tyson’s lavish lifestyle cost him $400,000 a month during the decades of the 1980s and 1990s. Tyson filed for bankruptcy protection in 2003 listing debts of $27 million. After living such a lavish and expensive lifestyle and literally biting the ear that feeds you, Tyson gets my vote as the only famous person on this list who understood how to use bankruptcy in a timely manner. He lost my vote when I learned how he came about having to file bankruptcy. It just goes to show me that filing bankruptcy is the right of every American.
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When you finally realize you are in bankruptcy, the experience affects so many people in different ways. One debtor has shared her bankruptcy story on the internet in the form of diary style. She briefly recorded her story through short confessions as a debtor and how a credit card helped bring her to the brink of bankruptcy.
Some debtors see bankruptcy as a shameful thing, but this debtor, who once felt shame, has overcome bankruptcy and managed to share a sense of hope through her very elegant and poetic style of writing. Here are some excerpts taken from her diary style confessions:
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In 2010, I was first confronted with the cold, stark reality that a bankruptcy was in my future. I was earning $50,000 plus a year but was saddled with credit card and other kind of debt, plus I was supporting my partner who was unemployed for more than a year.
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I cried all the time the first few weeks after I came to the realization that bankruptcy was the only real solution for me. I felt like such a failure. I was so ashamed!
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Immediately, I stopped using and paying on my credit card. I haven’t used one since early July 2010. I thought it was impossible, but I don’t even miss the credit card now.
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I have waited [to file] because I needed to have a small surgery and I knew I was about to incur considerable medical bills.
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And then the unthinkable happened. I lost my job in June 2011. In fact, not only did I lose my job, but I went home that night to find a water line had burst…The city shut off the water and told me I couldn’t live there until it was repaired. I somehow managed to lose my job and temporarily my home all within six hours. Talk about a bad day.
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It was a blessing. Unemployment was a crash course on what I need vs. what I want. I had inklings of it already and had learned to live without credit. But I didn’t really learn what it was to only buy what I must have and go without whatever I wanted until then. One of the things I wanted but did not need was my house.
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It has [all] been a blessing in disguise. I found a new job in December. It pays 40 percent less than my former one, but I am happier here. I am now solidly in Chapter 7 land.
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That’s another lesson I learned in this. Your worth is not financial. You can’t find it in your bank statements or your credit score. It’s in what you bring to the world, what you do for people around you. I know it sounds trite, but it’s true.
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Don’t lose sight of all the good in you through all this. Someday when we’re no longer here anymore (hopefully some day far, far in the future), it’s the things we’ve done for our friends, family and even strangers that will be remembered.
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And I’m ready now. I’m ready to finally file for bankruptcy. I’m at the point, finally, where thinking about it brings a sense of relief, not more anxiety. I’m taking the stack of updated papers and documents to my attorney tomorrow. It’s been a long road to get here. I’ve learned a lot of hard lessons along the way. I’m ready!
These diary style confessions were shared on the internet on February 15, 2012. If you are currently facing bankruptcy, then I hope these diary confessions have given you hope for the future. You too can start over and learn the hard lessons such an experience has along the way. Are you ready?
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In the News
Robot calls, commonly called ‘robocalls,’ are computer operated calls made to thousands of homes for the purpose of making a sales pitch for some type of product, making a survey, addressing politician’s concerns, or solicitations for nonprofit organizations. Consumer retail business, by far, is the largest user of robot calls, and most of these calls come to the consumer at some of the most inconvenient times without permission from the consumer. In effect, they are often a nuisance to most consumers.
As of today and according to an abc news report, the Federal Communications Commission (FCC) has cracked down on the robot call by requiring companies soliciting business for consumer sales to get your expressed, written consent before they use robot calls or text you.
The Problem with the FCC Crack Down
Unfortunately, the FCC will not be the explicit one necessarily policing any violations made by companies. You, as the consumer, will have to report any violations to the FCC. Unlike in times past where there has been little done for violations of the federal “national do not call registry,” the FCC is trying to put some teeth in the federal ordinance.
Technically, the companies using the robot calls are suppose to give you the opportunity to opt out of any future robot calls within the first few seconds of the call. Even in a perfect world where every company will do like they are suppose to, you can still receive as many one time calls as there are different companies. What happens, though, when a company just flat out violates the spirit of the new rules?
If you are registered with the “national do not call registry,” the FCC will handle your complaint and enforce the new rules, but if you have not registered, the only recourse you have to fight a violation, according to the FCC changes, is to sue the company within the jurisdiction of your state laws.
You have to re-register every five years to make sure you comply with federal law. That is a particular problem for seniors who might forget to re-register and a violation occurs. They, or people like them, will most likely be forced with having to file in state court for satisfaction, something most of them will not be able to afford to do.
If you have to take a risk by filing your complaint in state court, unlike in the past, you will now have the FCC new rules on your side. The risk you will be taking on filing in state court is paying for the cost of the lawsuit until you have proven your case. There is always a possibility you cannot prove your case in a state that is more pro business.
The Solution
The FCC, in this writer’s opinion, should revisit the new rules to plug these obvious loopholes. If the FCC refuses to truly include all consumers like seniors, the only other protection is for consumers still capable to make their telephone numbers less obtainable. How you do that in this computerized world in which we now all live is still a mystery.
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After going through a Chapter 7 bankruptcy and having a discharge on your mortgage, can you still get a loan modification?
This question is very common from people facing bankruptcy or who have already experienced bankruptcy discharge through filing a Chapter 7. One such filer recently shared their personal bankruptcy story online at a bankruptcy forum. The debtors where 2 ½ years post Chapter 7 bankruptcy, had not reaffirmed their mortgaged house, had voluntarily made mortgage payments on the house up until now, and they wanted to know how to get a modified loan after their discharge. They are beginning to struggle financially again making the high mortgage payments, but the mortgage lender will not consider modifying the loan as long as the debtors keep paying the payments on time.
The former debtors are still experiencing bad credit with the bankruptcy still on their report, do not have enough money for a down payment on a new mortgage, the home needs repairs they cannot afford, and they do not have the money to move out to rent a place the size of the home they now live. If the former debtors try stop payments, they are afraid the mortgage lender will foreclose on the property.
The stress caused by their fears is unfounded. The couple is not going to get the help of government or the mortgage lender for a loan modification after a discharge until they show a financial need. Their current situation is deceiving to the government and mortgage lender because the couple had all their unsecured debt discharged in the Chapter 7 bankruptcy they filed, and since they are making their mortgage payment on time, it appears they are not currently showing any financial need to get a modification.
The truth is, the couple are still financially struggling with the high mortgage, and they are allowing the house to deteriorate in order to make the mortgage payments. The only way to bring that fact to the attention of the government and mortgage lender is to stop mortgage payments right away.
Stopping payments that are not owed and have been discharged in bankruptcy will have two effects on the government and lender. First, it will alert both entities who can potentially make a loan modification that there may be a financial need after all. A house that is not kept up properly quickly loses what value it has. Secondly, by stopping the mortgage payments, the owners can save the mortgage payment money in order to make a down payment on another loan or move. The Sheriff’s sale on a foreclosure is still out near 12 months in most states. That time will give the homeowners a chance to save enough money before they have to leave the house. Too, with showing the financial need for modification help, the homeowners might negotiate with their mortgage lender or qualify for a government modification if they want to keep the house.
Walking away from the house might be the worse thing the couple can do at this point. Like bankruptcy, foreclosure is a legal process that takes time. Understanding the complicated loan modification, foreclosure, and bankruptcy laws can help the couple to make the best decision concerning what to do about the discharged home. Getting legal advice from a lawyer may be wise at this point.
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In the News
A breaking Yahoo Sports news report has revealed that Allen Iverson, the Philadelphia 76ers basketball player who was an 11 time all-star in the NBA, has been ordered to pay over $860,000 for jewelry he recently bought, and he wasn’t able to cover the amount. He now is facing bankruptcy. All of this despite making $154 million during his professional career in the NBA that began in 1996.
A Georgia judge has reportedly ordered that Iverson’s bank accounts be garnished to pay for the jewelry. Some have suggested that Iverson has gone from a famous wealthy athlete to a deadbeat overnight. Deadbeat is often a term associated with people who file bankruptcy to protect their assets from creditors.
Filing a bankruptcy would immediately stop collection activities like garnishment of wages and bank accounts. Currently, there is no evidence Iverson has yet filed for bankruptcy.
Potential Causes for Iverson’s Financial Decline
According to an article placed on the Yahoo Sports website, “Iverson felt he owed his childhood friends from the old neighborhood because “They made me.” The feeling was, without them protecting him from the mean streets, he would have never made it to the NBA.”
Iverson is known to travel with one of the largest entourages accompanying a professional athlete. It is not unusual for professional athletes to have friends and families accompany them when they are at home or sometime on the road. Most of Iverson’s entourage is made up of his childhood friends.
According to Bill Lyon of the Philadelphia Inquirer, “Iverson has had as many as 50 people attend Sixers home games, and has also taken a hair stylist on the road with him. He likes to buy expensive jewelry for himself and his Mother, Ann Iverson.”
Iverson’s Potential Future
At the end of a great career, it is rumored Iverson may play outside the United States in order to make more money to cover his debts. According to the Yahoo Sports news article on Iverson, the Los Angeles Lakers may still have an interest in him. He would more likely make more money outside the United States, but only time will tell what he will do.
Whether or not filing for bankruptcy is in Iverson’s future will most likely depend on his success in staying active in basketball. Filing bankruptcy is an option for the basketball star to stop his garnishment and provide him enough time to reorganize his finances if he continues to work.
Statistics on NBA Players Going Broke
Many famous people including famous athletes have had to file for bankruptcy protection. According to an article posted on the Business Insider website, 60% of NBA players go broke within 5 years after their retirement.
Some suggest the players who go broke, most of which have not been used to handling the amount of money they make in the NBA, do so because they ultimately trust others to handle their new found wealth, or they lavishly spend money on their friends an family until the money is gone.
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The Question
Some debtors have been asking on bankruptcy forum websites whether of not they should place extra money they currently have into a 401K account for their retirement before they file for bankruptcy. Is that a good idea?
The Problem
A bankruptcy court trustee can go back up to a year before you file a bankruptcy in order to investigate whether or not you have showed preference in paying any debts, hidden any assets, or for any expected fraudulent activity. So, a potential problem for you filing bankruptcy and trying to save money in a 401K can be scrutinized by the bankruptcy court trustee in a negative light.
Possible Repercussions
If you owe a very close relative you want to pay off before you file bankruptcy and the trustee finds out about the payoff, the trustee can take back the amount of the payoff and return the money back to the bankruptcy estate to be paid to your creditors in an priority order. The same thing can happen if you pay more to a certain creditor within a year of filing bankruptcy.
If you try to hide assets by selling them to a friend or family member at a low price in order to buy them back in the future, the trustee can not only take the assets back, he can have the bankruptcy dismissed, and/or have you charged with fraud if he thinks it to be an attempt to defraud the bankruptcy process.
In the case of just increasing your 401K for retirement before you file bankruptcy, trustees in the past have viewed the increase in a variety of ways.
Possible Benefits
Some trustees will seize the money which has increased the 401K and place the money back into the bankruptcy estate. Others have allowed you to keep a portion or all of the 401K increase in order to gain a small savings by the end of a bankruptcy.
Very few trustees have historically seen the increase as any type of fraud, but if you are considering filing bankruptcy, it is best to check with a bankruptcy lawyer who is experienced with the trustees in your Bankruptcy Court District. They can tell you how the trustee might react to finding out you have increased your 401K just prior to filing bankruptcy.
If a trustee is known only to check as far back as only three months, a bankruptcy attorney might recommend you increasing your 401K to make a savings for you in the future.
A Warning
The same attorney will most likely tell you that after reaping the increase of the 401k and taking the money out early when the bankruptcy closes, the bankruptcy trustee could reopen the case if he finds out about the early withdrawal. Then, he might seize the money and/or file fraud against you for fraudulent intent.
The Chance to Start Over
If you find such a cooperative bankruptcy lawyer and trustee that allows an increase, count your blessings for your windfall, but do not test the fortunate situation you find yourself. Many trustees are kind and want to see you make it in the future. That is why many are not so hard on you for increasing you 401K. After all , it is your future retirement , and bankruptcy is all about starting over and being able to help you take care of yourself in the future. Retirement 401K accounts exist for the same purpose.
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Concerned Mother Raises Questions
One concerned Mother recently blogged a bankruptcy forum website about her son who had a car accident. He was found at fault in the accident, and his driver’s license was taken away. The party who the son was involved in the accident with filed a lawsuit against him and was awarded a judgment for $7000.
The state court of jurisdiction handling the lawsuit said the son could not get his driver’s license back until he paid the debt in full. The son is married, has four children, barely makes enough income to support his family of six, and needs the car to continue working. The people awarded the $7000 is demanding the payment in full or “forget it.” The Mother wants to know if the son filed a Chapter 7 bankruptcy, would he be able to have the debt of the judgment discharged by the bankruptcy? She also wanted to know if the judgment is discharged, could he get his license back?
Without more information from the woman about the son’s circumstances during the judgment phase of the lawsuit, it is almost impossible to provide good answers to her questions.
Exemptions from Bankruptcy Discharge
There are certain lawsuit judgments that are exempt from bankruptcy discharge. As an example of one, if a person is found guilty of having an automobile accident while under the influence of alcohol, the damages awarded in a lawsuit judgment cannot be discharged by a bankruptcy.
State laws might conflict with federal laws concerning losing your driver’s license for an automobile accident, so when it comes to an automobile accident judgment award during a federal bankruptcy case, some possibilities exist where a debtor filing bankruptcy might have those awards discharged. Since the federal law says the judgment award is forgiven, the debtor would have a good case to get his or her driver’s license back because the state awarded judgment would be satisfied by federal law.
If the son was under the influence of alcohol during the accident, he would not be able to have the judgment award discharged in a bankruptcy, but he could petition either the state or bankruptcy court to make out a reasonable plan to satisfy the award because of his financial hardships. Either a civil lawyer or bankruptcy lawyer could petition one of the courts to force the party who was awarded judgment to abandon their all or nothing stance concerning the $7000 award. In addition, a successful appeal to return the driver’s license due to his hardship might allow the son enough time and the transportation to pay the award off in a timely fashion.
Experience Recommended to Petition Hardship Cases.
Hiring a lawyer to petition the court for such a hardship case could be a cost prohibitive move for the son. He could petition either court Pro Se, but the complexity of his situation might make it hard for an inexperienced petitioner to win a hardship case. What the son mostly likely needs is an experienced lawyer.
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The Automatic Draft Entanglement Set Up
Creditors are notorious for wanting to set up an automatic bank draft for monthly debt payments. Many companies like insurance companies will draft your account on a regular basis to make their premiums and offer you a discount if you will allow them to make an automatic bank draft. What happens to the automatic bank draft when you have a financial catastrophe like a job loss and don’t have the money in your bank account to draft?
Over drafting can get very expensive in bank penalties and fees, but getting a creditor weaned off of control can sometimes be a very difficult thing to do. The automatic bank draft is the debt collector or debt settlement company’s favorite way to move money from your account to theirs, but when you decide the relationship has no future, how do you extract yourself from the automatic bank draft entanglement? It really isn’t always that easy or clear.
Personal Bankruptcy Story Illustrating Difficulties in Stopping the Automatic Bank Draft.
Consider this personal bankruptcy story that was shared on a bankruptcy forum website: “Last month I went online, downloaded all my statements onto a thumb drive, canceled my automatic bank draft payments, or thought I did, and then changed my telephone number to Google Voice and hunkered down.Some banks immediately started calling me up to 10 times a day, and evidently one didn’t get the message apparently. They STILL debited their $500+ minimum from my account and overdrew me by $300! How do you get them to stop and are overdrafts discharged in a bankruptcy filing?”
Federal Trad Commission and Bankruptcy Laws Help Stop Automatic Bank Drafting
If you do not file for bankruptcy, you can get them to stop over drafting under the Federal Trade Commission laws by notifying your bank in writing to immediately stop the automatic drafts of your account. They are required to do so and can be ultimately held responsible if they do not comply.
You can also file a bankruptcy to stop the automatic drafts, and the automatic stay will immediately force the creditors to cease all collection activities, including immediately suspending the automatic bank draft. They can be in violation of the automatic stay of the bankruptcy court if they continue to take the automatic drafts. If convicted of a violation of the stay, you stand a chance to receive $1000 plus lawyer fees for the violation.
In addition to getting the automatic bank drafts immediately stopped, certain bankruptcies can discharge overdrafts if you qualify for that type of bankruptcy. So filing a bankruptcy not only gets your creditors who automatically draft your banking accounts to immediately cease the practice, it also can get you forgiveness of the overdrafts under certain circumstances.
How to Proceed Against Creditors Who Might Overdraft Your Accountant
It is never a good idea to tackle overbearing creditors by yourself. If you are filing a bankruptcy to curb over drafting practices, it is a good idea to have a bankruptcy lawyer on your side.
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