Monday, December 14, 2009

Under What Circumstances Can Creditors Object to the Discharge of a Debt?

A creditor may object to the discharge of amounts owed to them by the debtor under certain circumstances. If a creditor objects to the discharge of any of the debts listed in your petition or schedules, such objection must be raised within 60 days after the first scheduled §341(a) Meeting of Creditors. Alternatively, the trustee must move to dismiss your case within the 60-day period following the §341(a) Meeting of Creditors if he or she finds that the granting of relief would be an abuse of the provisions of Chapter 7.

If you incurred new debt of $500.00 or more for "luxury goods or services" within the 90-day period before your bankruptcy, or if you obtained a cash advance from a credit card or other loan in the amount of $750.00 or more within the 70-day period before your bankruptcy filing, that debt is presumed to be non-dischargeable, absent the debtor's showing to the contrary.

A creditor may object to your request to discharge a debt if the debt was obtained or incurred as a result of fraud, embezzlement or larceny, or any willful or malicious injuries you have caused others. If the Creditor establishes by a preponderance of the evidence that the debt was obtained by any of the above means, the debt will be deemed non-dischargeable.

Creditors may object to the discharge of certain debts if you have concealed or destroyed any property or financial records; made any false statements in connection with incurring a debt or other financial obligation; withheld financial or other material information; failed to explain losses; failed to respond to material questions permitted under the Federal Rules of Bankruptcy Procedure; or if you were granted a discharge with respect to that debtor in a prior bankruptcy case filed within the last 6 years.

Tuesday, December 8, 2009

Data Security: Best Practices Are Not Always High Tech

When I was an attorney practicing personal injury law in New York City, I was taking the train from court back to the office. Anticipating a busy afternoon, I called the office to find out of a particular client had dropped of a packet of discovery materials and chatted briefly with my colleague about the yet-to-be completed discovery.

Immediately after I ended the call, I was approached by a gentleman who asked if I was an attorney. I answered that I was, and apologized if I was speaking too loud on my phone. He told me he hadn't been bothered, and, as an attorney himself, acknowledged the urge to get work done while on the train.

He then shared the following story:

Approximately 10 years ago, he was on the train riding home after work and overheard a man in front of him talking on a cell phone. He soon realized that the conversation he was hearing was between an attorney and either co-counsel or a client about a case that he and his office was handling for the defendants in an open case. When the discussion turned to the plaintiff's tactics for the upcoming trial, the accidental eavesdropper was ready with pad and pen.

When the time for trial came, the plaintiff's counsel could not understand why their opponents consistently and instantaneously adapted to their every procedural move and change in trial strategy. In the end, the defendants won the day, due in part to good lawyering, but also to the accidental intelligence gathered by a observant associate. He cautioned me about the risks of talking business on the train - even the things I thought were mundane could be a gold mine if the wrong person happened to overhear me.

So, why share this anecdote?

According to the electronic evidence blog Ride the Lightning, a mid-sized law firm has banned iPhones due to security risks. Whether the iPhone presents a significant data privacy risk (especially in the day and age of M.G.L. 93H) is a topic for another time, but, suffice it to say, the iPhone and other portable electronic devices do have inherent security flaws, such as lack of encryption support or caching of recently-viewed data. Similarly, traditional voice only cell phones can present the types of security risks that turn the tide of litigation and can significantly harm a client's interests or privacy. Still, these devices are indispensable in providing good service to our clients and responding quickly to a need for additional information or to provide a prompt response. Both a voice conversation or misplaced data presents a security risk, but I don't think any of us would advocate the wholesale banning of cell phones from law firms. Rather, a solution (and possibly the best practice) is the common sense utilization of the technology available: Don't talk when others might listen, and don't place data on "losable" technology that you don't want falling into the wrong hands. Is the solution high tech? No. Does it work? Absolutely.

Attorney Trask of Kelsey & Trask, P.C. practices bankruptcy and civil litigation with Kelsey & Trask, P.C., was a cryptologic materials manager in the U.S. Marines and has experience planning and implementing encrypted communications (voice and data) networks. If you have any questions regarding M.G.L. 93H, contact us at (508) 655-5980 or click here.

Friday, December 4, 2009

Meet the Staff of Kelsey & Trask, P.C.

The staff of Kelsey & Trask, P.C. assist our attorneys in bringing quality service and attention to our clients. To learn more about Melissa M. Day, our Administrative Assistant, and Jonathan Eaton, our part-time law clerk, visit our new Staff page.

What Do I Need To File With My Chapter 13 Bankruptcy Petition? Are There Any Deadlines?

The bankruptcy court is very strict regarding deadlines. Often, missing a deadline will result in the dismissal of your Bankruptcy Case. Therefore, it is very important that all documents are filed accurately and on time with the Bankruptcy Court.

No more than 15 days after filing the Chapter 13 petition, you must file all required financial schedules with the court. The Schedules are documents declaring your assets, liabilities, expenses, income, and a statement of your financial affairs, which is very similar to a budget sheet or an explanation of your personal finances. In most cases, these schedules are filed along with your petition. The schedules also set forth to the trustee and bankruptcy court what property is "exempt" (meaning you can retain the property following the conclusion of your case) and what property is "non-exempt", meaning it must be surrendered to the trustee for sale, with the proceeds used to pay any debts.

Within 15 days of filing the Chapter 13 petition, you must file your Chapter 13 repayment plan. The repayment plan is a schedule of how much of your remaining available monthly income (as determined by IRS figures) is available to repay creditors, in what amounts, and in what order. Your Chapter 13 attorney will assist you in preparing your repayment plan, determining the available monthly income, and the proper repayment schedule.

Within 30 days after filing the Chapter 13 Repayment Plan, you must make your first payment as set forth in the plan to the U.S. Trustee. Failing to make the first payment will result in the dismissal of your Chapter 13 petition.

Tuesday, December 1, 2009

Changes to the Massachusetts Local Bankruptcy Rules

Changes to the Massachusetts Local Bankruptcy Rules go into effect today, December 1, 2009.

The signifcant changes regarding time calculation are as follows:

1. A simplifaction of how "days" will be counted for computing all time periods in each set of rules. Now, each and every calendar day, including all intermediate weekend days and holidays will be computed all time periods in the bankruptcy court. Under the old rule, intermediate weekends and holidays were sometimes counted and sometimes not.

2. Most periods shorter than 30 days are changed to multiples of 7 days (7, 14, 21, or 28 days) so that deadlines will usually fall on weekdays. As such, amendments were made to the local [Massachusetts] bankruptcy rules to remain consistent with the new federal rules. Many local rules (especially those governing time or setting deadlines) will have changed. It is important that you review the new rules, which are available at the Massachusetts Bankruptcy Court website here.

3. The current ten day appeal period in bankruptcy court will become a fourteen-day period after December 1, 2009.

In addition, a number of other local rule amendments were adopted to improve practice in the Massachusetts bankruptcy court.

A proposed thorough revision to Rule 6004-1 Sale of Estate Property will clarify the sale procedures for bankruptcy assets.

Amendments to Rule 9013-1 Motions changes the response deadline from ten to fourteen days after service and also enhances the proper use of expedited and emergency motions when necessary.

The new rule amendments will also affect Chapter 13 filings.

Rules 13-8(c) Objection to Confirmation and 13-13(e) Proofs of Claim and Objections now require counsel to confer seven days after the respective objection is filed in order to narrow the areas in dispute and to certify that the conference was held.

The rules also set down new pleading requirements for motions for relief from stay in Chapter 13 cases; with the goal that responses to motions for relief from stay will facilitate quicker identification of legitimate areas of disagreement between the parties.

Lastly, there are a number of new local forms that attorneys should be aware of: the Motion for Relief From Stay - Real Estate Worksheet, Debtor(s)’ Schedule of Disputed Payments in Opposition to Motion for Relief From Stay - Postpetition Transaction History, and the Combined Plan of Reorganization and Disclosure Statement for Small Business Debtor.

All Massachusetts local forms are available through the Massachusetts Bankruptcy Court link here.

Sunday, November 22, 2009

Do I need to be a resident of Massachusetts to file for Bankruptcy in Massachusetts?

You must be a resident of the state in which you intend to file your bankruptcy case for at least 90 days before filing your petition, or if you have not lived in your current residence for 90 days, then in the state in which you last resided (or had your principal place of business or where the majority of your principal assets are located) for a majority of the prior 180 days.

For example, if you moved to Massachusetts less than 90 days ago, you may only file your case in the state where you previously resided (or which had been the principal place of business or has been the location of your principal assets) for a majority of the prior 180 days.

Similarly, if you moved away from Massachusetts less than 90 days ago, but resided in Massachusetts for the majority of last 180 days, then you must file your petition in the Massachusetts bankruptcy court.

Can I file Chapter 7 Bankruptcy Even if I Have Filed Before?

Whether or not you may re-file (and the amount of time that must pass before you may re-file bankruptcy) depends on whether or not you received a discharge under your most recent bankruptcy filing.

If you received a discharge under a Chapter 13 bankruptcy case, then you cannot file for relief under Chapter 7 unless:
  1. Six years have passed since the discharge in the Chapter 13 case; or
  2. You paid at least 70 percent of your allowed unsecured claims in the Chapter 13 case, and your plan was proposed in good faith and represented your best effort to pay.

If you received a discharged under a Chapter 7 bankruptcy case, then you cannot file for relief under Chapter 7 unless eight years have passed since the discharge in the previous Chapter 7 filing.

If you filed a Chapter 7 or Chapter 13 case that was dismissed because you failed to obey court orders or you voluntarily requested a dismissal and did not obtain a discharge, then you cannot file for relief under Chapter 7 unless 180 days have passed since the dismissal of the previous filing.

Thursday, November 19, 2009

Who is Filing for Bankruptcy?


Courtesy of

New Income Based Repayment Program May Reduce Student Loan Payments

Although student loan debt can almost never be discharged trough bankruptcy, a new program which went into effect on July 1, 2009 called Income-Based Repayment (IBR) may provide some relief for those who cannot afford high monthly federal student loan payments.

The U.S. Bankruptcy code at 11 U.S.C. 523(a)(8) specifically deems student loan obligations as “nondischargeable debt” (i.e., debt that cannot be discharged through a bankruptcy filing) absent a showing of “undue hardship”, which, as contemplated by the code, is a nearly impossible standard to prove.

Fortunately, the IBR program may provide some relief. IBR cannot be used to obtain an outright discharge of student loan debt, but it can help borrowers keep their loan payments affordable with payment caps based on income and family size; often capping IBR loan payments at less than 10 percent of their income household income. IBR will also forgive remaining debt, if any, after 25 years of qualifying payments.

IBR is available to federal student loan borrowers in both the Direct and Guaranteed (or FFEL) loan programs, and covers most types of federal loans made directly to students, but not those made to a student’s parent.

The IBR program requires that participants be qualified based on income, and to be eligible, it would take more than 15 percent of your income above 150% of federal poverty level to pay off your loans on a standard 10-year payment plan. IBR uses a sliding scale to determine your adjusted federal loan repayment amounts. If you earn below 150% of the federal poverty level for your family size, your required loan payment will be $0. If you earn more, your loan payment will be capped at 15 percent of your income above that amount. In most cases, that figure works out to less than 10 percent of your total income. A useful calculator to determine your eligibility is available here.

In some situations, your reduced payment under IBR may not cover the interest on your loans. If so, the government will pay that interest on your Subsidized Stafford Loans for your first three years in IBR. After three years and for other loan types, the interest will be added to the total amount you owe. While your debt may grow if your IBR calculated payments are calculated to be lower than the monthly interest, anything you still owe after 25 years of qualifying payments will be forgiven.

While student loan debt remains essentially nondischargeable, the IBR program can be used obtain meaningful relief from individuals seeking to reduce student loan payments to qualified participants.

If you are struggling with student loan debt, mortgage debt, credit card and consumer loan debt, the IBR program can be one part of a comprehensive legal strategy to address and resolve financial problems.

Bankruptcy Blog and other Resources

In addition to providing answers to commonly asked questions on our website, we also try to provide links to other resources where you may find further information. These links include the Court websites, other government websites, and organizations that we either belong to or may have further resources that could be useful to the public.

In addition we will often include in our Twitter accounts, links to blog posts from other blogs that we believe you might find interesting. You can click here to connect with Attorney Trask or Attorney Kelsey on twitter.

One particular resource that you should review if you are considering bankruptcy is the Bankruptcy Law Network, where we often find great blog posts on numerous questions involving bankruptcies. Here are just a few examples:

San Diego: New Ruling Allows Student Loans to be Discharged in Chapter 13!

How Do I Find a Good Deal on a Secured Credit Card?

Do I have to be a citizen to file a bankruptcy case?

How to Value a Car for Chapter 13 Plan “Secured Claim” Purposes

How Long Will My Chapter 7 Take?

What Happens If A Creditor Contacts Me After My Bankruptcy?

“Stealth” Plan Provisions: Confirmation of Chapter 13 Plan Did Not Alter Domestic Support Obligation

What other factors should I consider when deciding when I should file for Bankruptcy?

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Factors regarding the need to obtain an automatic stay will likely be dictated by your creditors, not you. The automatic stay is a useful tool in temporarily stopping foreclosure proceedings brought by your mortgage holder(s), as well as collection efforts, collection calls and lawsuits filed by your creditors, if any. This foreclosure and debt collection process generally takes a few months, not a few days, and the benefit of the automatic stay can create some additional time for the debtor to deal with logistical issues associated with preparing the bankruptcy petition, appraising assets, selling real property or finding new housing, if necessary.

In order to file for bankruptcy under any section of the Bankruptcy code (Chapter 7, 11, or 13), your federal income taxes must be filed up to the current year (2008). Other documents are necessary for preparing the bankruptcy petition and schedules, such as a credit report, current credit card statements, bank statements, and income information. If this information is not immediately available, it will take some time to collect and review. If you believe a bankruptcy filing is on the horizon, your best bet is to contact an attorney for a bankruptcy planning consultation, then begin preparing the information needed to file.

Equally important in deciding when to file is a debtor’s own ability to handle the current situation, balanced against their need to make immediate changes. Some debtors will need time to prepare for relocation to an apartment or smaller home, whereas others will be anxious to take action to save their house or get a fresh start. These factors are unique to each case, and should be discussed with an attorney before filing your bankruptcy petition.

Will my new job affect my Bankruptcy filing?

I have been out of work for some time, my bills have gotten out of hand, and I need to file for Bankruptcy. I may be getting a new job soon. Will my new job affect my Bankruptcy filing?

If a would-be Chapter 7 debtor were to see a significant change in their income before filing a Chapter 7 bankruptcy, there is a risk that the debtor would no longer qualify under the Chapter 7 Means Test, and must file under Chapter 13. While Chapter 13 Bankruptcies are often effective in allowing a debtor to cure mortgage arrearages and keep their house, if the debtor’s intention is to pursue liquidation of all assets (including the house) or does not have real property to protect, your increased income would be required by the U.S. Trustee to fund the Chapter 13 plan, and not be used for other costs/expenses. In this case, a Chapter 7 Petition should be filed before any increase in income.

Financial Crisis? You are not alone.

Often people who are deep in debt, are more afraid to confront the reality of their situation than anything else. That fear can lead people to do things they never thought they would do: to stop opening their mail, to stop answering the phone for fear of dealing with bill collectors, or even to lie to their family and friends.

It is important to understand that you are not alone. You are not the first person to go through a crisis and there are resources out there to help you.

To read about how even an economic reporter fell into the trap of overusing credit check out this New York Times article:

What will I keep if I file for a Chapter 7 Bankruptcy?

When filing for Bankruptcy certain property of the debtor is exempt from the Bankruptcy estate, which means that it is not subject to being taken by the Trustee and used to pay your debts.

When filing a Bankruptcy as a resident of Massachusetts a debtor can choose to use the exemptions allowed under either State or Federal law, but you must choose one or the other. There are many exemptions that are similar under both schemes, such as the exemption of most qualified retirement plans. A table of the maximum exemptions as of April 14, 2009 in categories where the state and federal exemptions differ significantly can be found here. Please note that these figures are subject to change and you should consult with an attorney to obtain the most current figures and to decide which option you should choose.

UPDATE: The Massachusetts Exemptions have recently changed. For more information read our post on the changes: New Massachusetts Property Exemptions: The Return of 2 Cows, 12 Sheep and 2 Swine.

Wednesday, November 18, 2009

Bankruptcy or Divorce, which should come first?

If I am facing both divorce and bankruptcy, should I file for bankruptcy before, during, or after filing for divorce?

Answer: When a bankruptcy is filed, all lawsuits against the debtor are immediately stayed. If a bankruptcy is filed during a divorce case, the automatic stay applies to the divorce case as well. The divorce Judge may proceed on issues of child support, alimony and custody of children, but may not make any decisions relating to the division of assets and debts without the permission of the bankruptcy court, and any decisions made by the divorce Judge are reviewable by the bankruptcy Judge.
Finishing the divorce action before beginning the bankruptcy filing allows the divorce action to proceed to its natural conclusion without interruption by the bankruptcy court. It is still possible, though, for the Bankruptcy Court to undo the Agreement or Judgment of the Divorce Court if it appears the parties were attempting to defraud creditors (for instance if all of the assets were transferred to the non-debtor spouse rather split equitably). Despite this risk, it is unlikely if the division is equitable that there would be any issue, and both cases would like proceed more smoothly one after the other, rather than simultaneously.

Likewise, there are certain circumstances where it might make more sense to file for bankrutpcy prior to filing the divorce. For instance in a case where both spouses had significant debt, they can file as joint debtors so long as they are still married.

Even if only one of the parties intended to file, there is a recent case which suggests that some of the protections for the debtor extend to the non-debtor spouse (protections that might not apply if the parties are already divorced). For an excellent explanation of this case visit the Bankruptcy Law Network post titled: Actions Taken Against Non-Debtor Spouse Violate Discharge Injunction.

You should consult with an attorney that is familiar with both bankruptcy and divorce law to determine the best course of action in your specific case. The facts of your case, such as the terms of the proposed property settlement or transfers of property under the agreement may be hurtful to your bankruptcy case if you plan on filing for bankruptcy shortly after the conclusion of your divorce matter. Having an attorney that can explain the bankruptcy consequences of your decisions during your divorce will be critical in helping you get your fresh start.

For more information about divorce and family law, check out our family law website and Scaling the Summit: A Family Law Blog.

Tuesday, September 8, 2009

How NOT to Declare Bankruptcy

Declaring Bankruptcy is a time-intensive and technical process involving financial research, preparation of documents and schedules, and attention to detail.

This is NOT how one "Declares Bankruptcy":

If you would like to learn more about the correct way to declare bankruptcy, contact Attorney Matthew Trask or Attorney Justin Kelsey for a one-hour consultation at (508) 655-5980.

(Thanks go to Jonathan Eaton and NBC's "The Office" for providing the inspiration for this Blog).

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