Friday, December 21, 2012

The Mayans were Wrong... Now what?


I woke up this morning, and noticed the sun had, in fact, come up.

Once I had finished a cup of coffee, I realized that my back yard had not been converted into a smoking hole in the ground, nor had my house been swallowed by an earthquake.  The earth appeared to be, for the most part, still here.  A brief check of the news and various social media sites confirmed what I had already suspected...the world did not end on December 21, 2012. 

The news might not be so good for everyone, though.  Over the past year, I had heard anecdotal reports that some people who believed that the Mayans accurately predicted that the end of the world on December 21, 2012 have maxed out credit cards and incurred large amount of debt under the belief that they would not have to repay.  Essentially they were counting on cosmic happenstance to intervene as a sort of galactic loan forgiveness program. 

Wishful thinking, perhaps. 

Then again, the reason others are struggling with debt they cannot afford to pay may be a bit more grounded: the loss of a job, persistent unemployment, medical expenses, foreclosure, poor spending habits, etc.    Whatever the case, Kelsey & Trask, P.C. stands ready to help.  To schedule a consultation with an attorney to address bankruptcy or debt relief, call 508.655.5980. 

We all might as well start off the 14th b’ak’tun with a fresh financial start.


Friday, December 7, 2012

New Figures for Median Family Income Released

It's time for our bi-annual median family income update again. The United States Department of Justice twice per year releases new Median Family income figures for each state and territory. These figures are used to calculate a debtor's eligibility to file for bankruptcy under Chapter 7 of the Bankruptcy Code. If your income is greater than the median income for your state of residence and family size, you many not be able to file a Chapter 7 bankruptcy case.

The Means Test calculation compares your average monthly income (as calculated over the last six (6) months) to the median family income in your state for a household of your size. If your average monthly income is lower than the median family income for your state of residence and family size, then you meet the means test and there is a presumption that you may file for Chapter 7 relief.

The Median Family Income for Massachusetts as of May 1, 2012 were as follows:

Family size 1: $55,185 per year
Family size 2: $66,200 per year
Family size 3: $82,873 per year
Family size 4: $102,194 per year

add an additional $7,500 per year for each additional household member.

These figures went down slightly in each category from these figures.

The Median Family Income for Massachusetts as of November 1, 2012 are as follows:

Family size 1: $54,475 per year
Family size 2: $66,076 per year
Family size 3: $80,822 per year
Family size 4: $101,523 per year

add an additional $7,500 per year for each additional household member.

If your income is greater than the median income for your state of residence and family size, you still might meet part (b) of the means test after taking into consideration certain expenses as defined by the Bankruptcy Code and other deductions, including regular charitable donations (up to 15% of your income), school expenses, payments on 401(k)/IRA loans, and health Insurance. If you are subject to this calculation an attorney can help you perform this task.

Click here to learn more about The Means Test or use our Means Test Calculator.

To have an attorney help you with these calculations call 508.655.5980 to schedule a consultation or e-mail us here.

Tuesday, November 20, 2012

Bankruptcy and Student Loans: Another Infographic

The infographic below provides a summary of the student loan debt problem and the limitations of the current bankruptcy law to resolve that problem.  For a more in depth review of these issues see our previous post: Can bankruptcy help with my student loans?.


Can Claiming Bankruptcy Discharge Student Loan Debt?
From: OnlineColleges.net

Reprinted from OnlineColleges.net.

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.



Wednesday, November 14, 2012

The Housing Crash and Bounce: Infographic

The following infographic provides an overview of the real estate crash in the United States over the last few years, and provides some perspective on how big the ups and downs have been.

  real estate recovery
Riding the Trillion-Dollar Real Estate Recovery Roller Coaster.

Reprinted from RealEstate.com

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Tuesday, November 6, 2012

What to do when you receive a Notice of Bankruptcy? Step 5: Do you need an attorney?

When you receive a Notice of Bankruptcy, you are likely to have a lot of questions.  In this series we have tried to help walk you through how to answer some of those questions, but unfortunately the process is complicated and you may only have more questions now that you know your rights and deadlines.

Because those meetings and deadlines happen, in most cases, in a very short period of time, it's important to get advice and get it quickly if you have questions.  Waiting to determine your next move could result in you waiving certain rights.  And taking action without all the information could be even worse, if you violate the automatic stay for example.

Therefore, if you have any questions at all about the best way to proceed when you receive a Notice of Bankruptcy we recommend consulting with an attorney, even if just for one meeting.

More specifically an attorney should help you be able to:

1.  Determine whether you are a creditor or some other interested party, and in any event what rights you may have to challenge the discharge in those situations.

2.  Determine if any action you are currently taking is in violation of the automatic stay or permissible.

3.  Determine whether a debt owed to you may be non-dischargeable, or whether some of the assets may be available to pay that debt.

4.  Determine whether or not you should file a Proof of Claim, and explain the benefits and consequences.

5.  Determine whether or not you should file an adversary proceeding, and explain the benefits and potential consequences.

6.  Assist you in proving fraud if you believe it exists in your specific case.

7.  Determine the potential cost of making any of these challenges and what you stand to gain.

If you are interested in consulting with one of our attorneys relating to a case in Massachusetts, click here to schedule a consultation.


Wednesday, October 31, 2012

What to do when you receive a Notice of Bankruptcy? Step 4: What is your liability?

In our previous posts in this series you should have already identified why you received the Bankruptcy Notice and what the deadlines are that might apply to you.  In order to determine whether you should take any action related to this Notice, you now need to determine what you may have to lose.

If you are a creditor and you take no action, the debt owed to you may be discharged.  In most cases, there is nothing a creditor can do to prevent the discharge, especially in a no-asset case.  The right of the debtor to file for bankruptcy trumps your right to be paid by the debtor.  However, there are some examples where taking action can result in payment (or at least non-discharge of your debt).  Some examples where you may be able to prevent discharge of your debt, or all debts, is when the debtor committed fraud, when the debtor is trying to exempt property that should not be exempted, or when the debt is secured or otherwise protected from discharge (these are just some examples and is not intended to be an exhaustive list).

In any case where a creditor can prevent discharge, they are usually required to take some action to notify the court of their dispute and enforce their rights.  For example, in the case of fraud, the creditor must file an adversary proceeding challenging the discharge of that debt based on fraud.  In each individual case, you will have to determine if the value of preventing discharge of the debt is greater than the cost of enforcing that right.  In many such cases the creditor may reach settlement with the trustee regarding payment.

There are also situations where a bankruptcy may affect your liability, but there is nothing you can do about it.  For example, many codebtors will be affected by the bankruptcy of the debtor but have little rights to challenge the bankruptcy, because their liability is due to their own agreement with the creditor and they have no separately existing rights against the debtor.  This is often the case when one spouse, or ex-spouse files for bankruptcy.  Bankruptcy can have a major affect on debts owed by both spouses, and therefore property division, but if the divorce agreement doesn't appropriately address this possibility, the non-debtor spouse may have few or no options.  For more information about cosignors or the interplay of divorce and bankruptcy you may want to review these other posts:

I am the primary borrower on a loan and my cosigner has filed for bankruptcy. What should I do to protect myself?

I co-signed a loan and the primary borrower has filed for bankruptcy. What should I do to protect myself?

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #4: Jurisdiction over Your Assets

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #3: Jurisdiction over Your Debts

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #2: Domestic Support Obligations

4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #1: The Automatic Stay

Once you've identified your exposure in a bankruptcy, the last step is to determine if you need help in limiting that exposure.  Should you hire a bankruptcy attorney to help you evaluate your claims? 


Tuesday, October 23, 2012

What to do when you receive a Notice of Bankruptcy? Step 3: Identify Deadlines.

If you receive a Notice of Bankruptcy, it will contain certain deadlines and meeting dates.  The sample below shows where some of those deadlines will appear:


These dates are important because they limit what you can and cannot do in a case, and if you miss any of these deadlines you may have given up your rights to make certain objections or claims.  You should read the Notice carefully to make sure you understand all of the information contained therein.  To highlight some of these limits we have indicated them with red arrows in the sample Notice above.

Some of the important dates and limitations that appear on the Notice are as follows, in descending order as they appear on the Notice:

The date of filing:  This is the date that the debtors case was filed with the court and some of the other dates will depend on this date.

The meeting of creditors:  This is the date that the Section 341 Meeting of Creditors is first scheduled to take place.  The Creditor's Meeting is scheduled about 30 to 45 days after the bankruptcy petition is filed. At least seven days before this meeting, the debtor is required to provide to the trustee and any creditor requesting it a copy of their most recently filed tax returns and proof of income for the most recent 90-day period. The court-appointed Chapter 7 trustee will preside over this meeting. At the meeting, which the debtor is required to attend, the debtor will be asked to testify under oath as to the accuracy of the statements in the petition. Creditors have a right to attend this meeting and ask questions, though they are not required to.

Deadline to object to discharge or to challenge the dischargeability of certain debts:  
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 the petition or schedules, such objection must be raised within 60 days after the first scheduled §341(a) Meeting of Creditors.  If you do not raise such an objection in a timely manner you risk waiving that right and having any such debt discharged.

Deadline to object to exemptions:  Certain property claimed by the debtor to be exempt (not reachable by creditors), may be claimed as exempt in error.  If that is the case, then that property might be used to pay creditors.  Once the §341(a) Meeting is concluded, creditors only have 30 days to object to these exemptions after which the trustee may (and likely will) release all of this exempted property back to the debtor.

Deadline for financial management course:  The debtor must take a financial management course within 60 days after the first scheduled §341(a) Meeting of Creditors, and if they don't they might not receive their discharge.

Automatic Stay: Immediately upon the filing date, an automatic stay prevents creditors from taking certain actions against the debtor.  If you violate the automatic stay you may be subject to sanctions and fines by the bankruptcy court.  You should ensure that you do not take any action against the debtor after the filing date without consulting with a bankruptcy attorney to ensure that you are not violating the automatic stay.

There may be other deadlines in cases that are different from the Chapter 7 no asset case in our example.  For example, in a case with assets there will also be a deadline for filing a Proof of Claim.    To ensure that you know all of the deadlines and meeting dates read your Notice carefully.

Once you understand what your deadlines are, the next step is to identify: What is your exposure to liability if the debtor receives their discharge?


Wednesday, October 17, 2012

What to do when you receive a Notice of Bankruptcy? Step 2: Are you a creditor?

If you receive a Notice of Bankruptcy you need to determine why you received the Notice. You might be a creditor, an interested party, or a codebtor.  Creditors are not the only ones who receive a bankruptcy notice, and even if you're not a creditor you may have an interest in what happens in this bankruptcy case.

The Notice will not tell you why you received it.  A sample notice, shown below, doesn't have your name anywhere on it.  It does, however, have the name of the debtor and the case number.  These two pieces of information should help you determine whether you are a creditor or some other interested party.



The Debtor, whose name is listed on our sample notice above as Sample Debtor, is the person who has asked the bankruptcy court for relief with their debts.  If you are aware of a debt that the debtor owes you then you are a creditor and you should review the other information within that Notice.  As a creditor you have certain rights that may include filing a Proof of Claim and attending the Meeting of Creditors.

If you're not sure if the debtor owes you money, then you might be a creditor or you might be something else, such as a contingent creditor, a co-debtor, or simply an interested party.  To determine why you received this Notice, you must look at the schedules.  The Bankruptcy court documents are public record and may be reviewed at the court or online if you have a Pacer access account.  If you need help accessing these files any bankruptcy attorney will have an online account access and be able to look up the case file online.

Once you have access to the file, you will want to review the Bankruptcy Petition and Schedules to figure out where your name appears.  If you are a creditor then your debt should be listed in one of the Schedules of Creditors.

If you are not a creditor you may still have an interest in the bankruptcy proceedings for some other reason.  For example a codebtor (someone who is also responsible for a debt that the debtor owes) could be left being wholly responsible for a debt if the debtor is discharged of that debt.  You might be a codebtor if you cosigned for a loan for the debtor, or if they cosigned for a loan that you took out, or if you borrowed money together for any reason (such as co-owners of a house with a mortgage).  Codebtors are listed on the Schedule of Codebtors.

If you are not a codebtor or a creditor then your name may still appear somewhere else in the schedules, identifying why you received the Notice.  For example, you may receive a Notice of Bankruptcy if you have a lease or other contract with the debtor, even if they are not behind on their payments.  Reading all of the schedules carefully should help you discover why you received the notice, whether you are a creditor, codebtor or some other interested party.

Once you identify why you received the Notice, you can begin to evaluate what type of action you should take.  For example the Notice tells creditors what many of their rights and obligations may be.  The next step, therefore, is to identify: What are the important dates and deadlines I should keep in mind?

Thursday, October 11, 2012

What to do when you receive a Notice of Bankruptcy? Step 1: Identify the Chapter

If you receive a Notice of Bankruptcy, like the samples shown below, the first step is to identify what chapter the debtor is requesting relief under.  There are multiple types of bankruptcy and each has different rules and requirements.

The title of the Notice identifies the Chapter that the bankruptcy is filed under.  Below we have included samples from the two most common bankruptcies:

A Chapter 7 Notice for a no-asset case:





A Chapter 13 Notice for a payment plan case:





As you can see the title of the Notice identifies whether it is a Chapter 7 or Chapter 13 case.  The notices differ as well in terms of the instructions they may provide because of the differences in these types of cases.  Below we explain a little more about why the type of case matters.  If you would like more information about bankruptcy visit our website.

The most common types of bankruptcy that you will encounter are Chapter 7, 11 and 13.

Chapter 7 Bankruptcy sometimes referred to as "liquidation", is designed for debtors in financial difficulty who do not have the ability to pay their existing debts. Chapter 7 is available to both individuals and businesses. Under Chapter 7 the debtor may claim certain property as exempt under the governing law. A trustee may have the right to take possession of and sell the remaining property that is not exempt and use the sale proceeds to pay your creditors. After liquidation of these non-exempt assets, all remaining qualified debts are then discharged and the creditors are out of luck.

Chapter 11 Bankruptcy sometimes referred to as "reorganization", is designed for debtors in financial difficulty who may have the ability to pay their existing debts in part. Chapter 11 is available to both individuals and businesses, though is more typical for businesses. Under Chapter 11 the debtor must propose a plan that results in more payments to debtors than they would get under a liquidation. The plan must be approved by a council of creditors.

Chapter 13 Bankruptcy involves the repayment of all or part of the debts of an individual with regular income. Chapter 13 is designed for individuals with regular income who desire to pay their debts in installments over a period of time. Debtors are only eligible for Chapter 13 if your debts do not exceed certain dollar amounts set forth in the Bankruptcy Code. Under Chapter 13, the debtor must file with the Bankruptcy Court a plan to repay their creditors all or part of the money they owe, using future earnings. The period allowed by the court to repay the debts may be three (3) to five (5) years. The court must approve the plan before it can take effect.

Our next post will address the following step for identifying what you should do with this notice after you have identified the type of bankruptcy: Are you actually a creditor, or did you receive the Notice for some other reason? 


Monday, October 8, 2012

A Step-By-Step for Bankruptcy Creditors: What to do when you receive a Notice of Bankruptcy.

If you receive a Notice of Bankruptcy, like the sample shown below, you should ensure that you know why you received it and what your rights are.  The first step is to read the Notice.  It contains much of the information you need to know, as well as instructions on what to do if you wish to respond.



Receiving a Notice such as this one, likely means that you are a creditor and the debtor is trying not to pay the debt they owe you.  But you may have remedies if you take action and know your rights.

Over the next series of posts we will help you understand the steps you should take when you receive a Notice of Bankruptcy.  The questions you need answered include:

What kind of Bankruptcy is it (most likely options include 7, 11 and 13)?

Are you actually a creditor, or did you receive the Notice for some other reason?

What are the important dates and deadlines I should keep in mind?

What is your exposure to liability if the debtor receives their discharge?

Should you hire a bankruptcy attorney to help you evaluate your claims?

Once you answer these questions you will be prepared to respond to the Notice of Bankruptcy, appropriately.

Wednesday, October 3, 2012

Professional Athletes and Bankruptcy: Symptoms of a bigger problem.

ESPN aired "Broke" last night, a documentary in their 30 for 30 series, which highlighted the financial problems that many professional athletes face.  While it may be difficult to feel bad for people who earn in one game check more than most of us earn in one year, the reality is that the same traps that lead to most consumer bankruptcies are exaggerated by the big paychecks that professional athletes receive at a young age.

The consumer culture of America glorifies spending over saving, and youth are at the greatest risk for falling into that trap.  Spending and creating debt on a larger scale by professional athletes gets out of hand in the same way that those habits bury the average individual.

Even living within your means when you have a job is not enough of a plan to reach the goals of safe retirement and ensure staying out of bankruptcy.  If you don't save as well, you won't have a safety net in the event of injury, unemployment, or other unexpected events.  The reason that bankruptcy is so likely among professional athletes is because injury and retirement at a young age are almost guaranteed in that business.

But you can learn from their mistakes by budgeting realistically, and having a plan for disability and retirement.  Even if you've found yourself in a position to file bankruptcy once, you can learn from that experience and use your fresh start to plan for your goals this time around.

In "Broke", Herman Edwards, a former NFL player and coach, was interviewed.  He speaks at the NFL rookie seminar about the importance of financial planning and in his interview he pointed out that "a goal without a plan is a wish."

So are you wishing, or planning?


Wednesday, September 5, 2012

Can bankruptcy help with my student loans?

Student loans have become a larger and larger portion of the average consumer's debt. As a country, our student loan debt is now higher than consumer spending debt. While consumer spending debt can typically be discharged in a bankruptcy, though, most student loan debt cannot.

As described in this infographic, student loan debt is exempt from many of the protections that consumers have available when it comes to other debts. If that seems unfair to you, then you're not alone. A few of our fellow legal bloggers have written some compelling posts on the necessity of changing the law on bankruptcy when it comes to student loans, and even the president has weighed in in favor of making a change.

However, until the law is changed, the current status is bleak for most. While a Chapter 13 plan can help you structure the payments and potentially stop wage garnishments, it will not reduce the overall debt, and at the end of the plan you may be back in the same position. In a Chapter 7, student loans are considered a non-dischargeable debt unless you can show "undue hardship." In the Brunner case, the U.S. Court of Appeals 2nd Circuit admits that that their is little help in the statute for defining what constitutes an "undue hardship."

The Court in that case required a three-part test to show undue hardship:

"(1) that the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for herself and her dependents if forced to repay the loans;

(2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and

(3) that the debtor has made good faith efforts to repay the loans."

Essentially this means that to discharge the debt you have to show that you can't pay the loan now, you tried to pay the loan, and it is not likely you will be able to pay the loan before you die. Many believe this test limits the benefits of the "undue hardship" clause to the elderly or terminally ill.

For most, the best option may not be bankruptcy at all, at least not to deal with student loan debt. Until and unless the law changes, the Income Based Repayment Plan available through the Department of Education is the only option for reducing the burden of student loans when a partial financial hardship exists.

If you still think this is unfair, tell congress that you want it changed.

The Student Loan Problem (Infographic)

The following infographic provides an overview of the student loan problem in America, how we got here, and why it is getting worse:

Student Loans Scheme.
Infographic by College Scholarships.org

Reprinted from: College Scholarships.org

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Thursday, July 19, 2012

How important is my Credit Score?

Back in June, Attorney Trask spoke on a panel to address some of the public’s concerns regarding divorce, short sales, foreclosures and bankruptcies. The other members of the panel included a financial advisor and a mortgage broker. Of particular concern to the attendees was the harm to someone’s credit that could be caused by bankruptcy, foreclosure, or falling behind on payments on any number of consumer debts an individual may have.

The mortgage broker’s point was stark: “you are your credit score”. The observation garnered some mumbling from the crowd, but the point was clear: In the current economy where the cost of living exceeds an individual’s ability to save for a major (and necessary) purchase like housing, the only practical way for “the 99%” to acquire housing is to rent or purchase with a mortgage from a bank. However your ultimate ability to do so often comes down to a three-digit number maintained by any number of credit reporting bureaus.

A credit bureau is a private business that sells information – nothing more. The information that they sell is data reported to them by your creditors for things such as account and payment history, balances, late payments, and available credit. That information is churned through an algorithm to determine your “creditworthiness” and is expressed as a number. Depending on the agency, the scores can vary, but generally, a FICO credit score ranges between 300 and 850; a VantageScore score ranges from 501-990.

Your credit score is essentially a measure of your financial health that banks and other lenders use these scores to measure eligibility for mortgages, credit cards and a wide variety of other consumer loans. Some landlords check them to screen prospective renters, and some companies check credit reports before hiring a new employee. Low scores or problematic credit histories can mean higher interest rates or rejected applications.

Despite the importance that fair and accurate credit history reporting holds on an individual’s ability to obtain housing, employment, or other consumer loans, the various credit reporting agencies were under fairly lax legislative oversight. The Fair Credit Reporting Act required that all information contained in a report be “accurate”, but did little to specify any procedure to ensure accuracy. The FCRA primarily provides a mechanism to disclose the information contained in the report to a consumer – not to redress inaccuracies in the report itself. A consumer is entitled to a free credit report (but not a free credit score) within 60 days of any adverse action (e.g. being denied credit, or receiving substandard credit terms from a lender) taken as a result of their credit score.

However, there seems to be some change on the horizon.

In addition to the Fair Credit Reporting Act, Under the Wall Street Reform Bill passed on July 22, 2010, a consumer is entitled to receive a free credit score if they are denied a loan or insurance due to their credit score. Also, the newly-created U.S. Consumer Financial Protection Bureau (CFFB) has indicated an intention to provide additional federal oversight of credit reports in an effort to ensure accuracy, and will be able to conduct an investigation of the offending reporting agency in the event of a consumer complaint. These changes were discussed in our previous post as well:  Is the Government Monitoring your Credit Report?



Tuesday, July 17, 2012

Is the Government Monitoring your Credit Report?

Yesterday afternoon, the lead headline at DrudgeReport.com was that the U.S. Government is going to begin Monitoring Credit Reports. It would appear that, in typical Drudge style, the headline sought to create fear and distrust, implying that the government was concerned about who you were borrowing money from. This particular article remained up for only a short time, and was quickly taken down to address the more urgent matter: Democrats plan to use Batman Against Romney

An in-depth review of the Credit Report Article would suggest a more benign use of the new U.S. Consumer Financial Protection Bureau (CFFB). According to CFFB director Richard Cordray, beginning on September 30, 2012, the bureau seeks to extend oversight of the 30 largest credit reporting bureaus, which make up about 94% of the credit reporting industry in the United States. Such oversight would help ensure the accuracy of information contained in the reports, provide redress for individuals who have fallen victim to inaccurately-reported information, and provide “clarification as to what the Fair Credit Reporting Act requires of credit bureaus”.

Such an overhaul of the regulatory oversight would seem appropriate, given the importance of credit scores in today’s economy. Banks and other lenders use these scores to measure eligibility for mortgages, credit cards and a wide variety of other consumer loans. Some landlords check them to screen prospective renters, and some companies check credit reports before hiring a new employee. Low scores or problematic credit histories can mean higher interest rates or rejected applications.

A more accurate headline for Drudge to use would have been the actual headline: Consumer bureau to police credit reporting bureaus.  Given the immense power the credit bureaus have over your finances based on how they report your information, perhaps this is a good thing (inasmuch as any further government regulation can be a good thing).


Monday, July 9, 2012

US Trustees Release New Figures for Median Family Income


The United States Department of Justice twice per year releases new Median Family income figures for each state and territory.  These figures are used to calculate a debtor's eligibility to file for bankruptcy under Chapter 7 of the Bankruptcy Code. If your income is greater than the median income for your state of residence and family size, in some cases, creditors have the right to file a motion requesting that the Court dismiss your cases under Section 707(b) of the Bankruptcy Code.

It is ultimately up to the Bankruptcy Judge to decide whether the case should be dismissed. However, if your income exceeds the median family income then a presumption arises under part (a) of the Means Test that you do not qualify for a chapter 7 bankruptcy.

The Means Test calculation compares your average monthly income (as calculated over the last six (6) months) to the median family income in your state for a household of your size. If your average monthly income is lower than the median family income for your state of residence and family size, then you meet the means test and there is a presumption that you may file for Chapter 7 relief.

If your income is greater than the median income for your state of residence and family size, you still might meet part (b) of the means test after taking into consideration certain expenses as defined by the Bankruptcy Code and other deductions, including regular charitable donations (up to 15% of your income), school expenses, payments on 401(k)/IRA loans, and health Insurance.  If you are subject to this calculation an attorney can help you perform this task.

The Median Family Income for Massachusetts as of November 1, 2011 were as follows:

Family size 1: $53,496 per year
Family size 2: $64,174 per year
Family size 3: $80,337 per year
Family size 4: $99,067 per year

add an additional $7,500 per year for each additional household member.

These figures went up approximately $2,000 per category per year on May 1, 2012.

The Median Family Income for Massachusetts as of May 1, 2012 are as follows:

Family size 1: $55,185 per year
Family size 2: $66,200 per year
Family size 3: $82,873 per year
Family size 4: $102,194 per year

add an additional $7,500 per year for each additional household member.

Click here to learn more about The Means Test or use our Means Test Calculator.

To have an attorney help you with these calculations call 508.655.5980 to schedule a consultation or e-mail us here.


Friday, June 8, 2012

My creditor has placed a lien on my house. Will the lien be discharged in bankruptcy?

When a debtor files for bankruptcy and receives a discharge, the Order Discharging Debtor will absolve the debtor of all dischargeable debts, and bar creditors from collecting those debts from the debtor in the future.

However, certain creditors can file a lien against property (usually real property) to ensure that their loan is paid. If your creditors have recorded liens against your property, the discharge order will not automatically discharge those liens. In certain cases, it is possible to avoid the lien (i.e., strip off the lien), but your bankruptcy attorney must file a motion to do so. Certain liens are not avoidable, such as liens given with your consent and tax liens) and will remain on the property. The most common example of an unavoidable lien is your typical mortgage.

Most people are familiar with the legal relationship between a borrower and a lender in the context of a mortgage – a bank lends money to someone wishing to purchase a home, and in exchange for the loan and the borrower’s promise to repay the debt, the lender places a lien against the property granting them certain rights, including the right to foreclose if the debtor does not honor the terms of the borrower’s obligation to repay. This arrangement protects the lender by giving them legal recourse against the collateral, so that they can recoup all or a portion of their loan if the borrower fails to pay.

A lien arising out of a mortgage is not avoidable because it is “voluntary”. Here, the borrower allowed the lender to place a lien on his or her property (or pledged some other collateral) in exchange for something of value, such as a loan. Voluntary liens are not avoidable in bankruptcy pursuant to the U.S. Bankruptcy Code. Although the borrower can never pursue the discharged debtor for any deficiency, in order to pass clear title to the property upon sale, the lien must either be paid by the new buyer or discharged (i.e., forgiven) by the lender.

In addition, liens placed against property by government institutions for taxes are not avoidable in bankruptcy.

In certain cases, however, a creditor may have obtained a lien against your property against your will. The most common is a judicial lien, in which a creditor has taken you to Court for an unpaid debt, obtained a judgment in their favor, and requested a sheriff to “execute” that judgment against your property. A copy of the judgment would be recorded in the registry of deeds in your county against your property. As before, even if the underlying debt is discharged in bankruptcy, the lien obtained by the creditor remains in place. The debt does not have to be repaid by virtue of the discharge, but the lien will continue to cloud the title to the property, making a future sale difficult or impossible if the lien is not paid at closing.

11 U.S.C. § 522(f) permits a debtor to remove liens based on a legal judgment of a nonpriority creditor – to the extent the lien encumbers the value of the debtor’s exemption(s) in the property. Put another way, if the value of the debtor’s equity in the property would be exempt even without the encumbering lien, a court, on motion of the debtor, may avoid the lien, effectively stripping it from the title history of the property.

The procedure for avoiding a judicial lien varies from state to state, and must be made by motion to the court. If any of your creditors have obtained a legal judgment against you, and recorded that judgment as a lien against your property, simply filing for bankruptcy isn’t enough. Ensure that your bankruptcy attorney is aware of the existence of the lien, and they will be able to advise you as to whether it can be avoided, and if so, file the appropriate motion with the Court.

Tuesday, June 5, 2012

Learning to Fly and Bankruptcy Exemptions




I would like to lean to fly. Not in a superman sense – in a “small aircraft” sense. As the first step in achieving that goal, this past weekend, I took a flying lesson and had a great time. When I was done, I was mulling over the legal ramifications of aircraft ownership, and as my legal mind started to wander, I pondered how the ownership of an aircraft would be handled in a bankruptcy. While this may not be where your mind would have wandered, consider it an occupational hazard of being a bankruptcy attorney. I don’t want you to get the wrong impression, but when you are a bankruptcy attorney, you sometimes can’t help but look at the world through a proverbial “bankruptcy filter”.

Since not everyone wants, or owns, an airplane, writing an answer to “how would a small aircraft be treated in bankruptcy” might seem somewhat superfluous. In fact, the rest of the people in my office would no sooner get into a small plane as they would shave their head. But what occurred to me is that nearly everyone has their “learning to fly.”

In good financial times, most of us purchase “toys” or other items that support our hobbies, but what happens when the same folks may be facing bankruptcy? If selling the toys and paying the debt is not an option, how are these items treated in bankruptcy? The “toys” could be anything: aircraft, boats, motorcycles, or classic cars. Maybe motors aren’t your thing, but you have a nice collection of high-end computers and electronics. If you spend your Sundays working in a wood shop, woodworking equipment or other tools might be your “toys”.

How are these hobby items treated in bankruptcy?

Like any other asset, the item you seek to protect must be disclosed to the bankruptcy court (along with all other assets) and are subject to acquisition by the trustee if they are not exempt under the Federal or Massachusetts exemptions. There are a number of exemptions that may be used to establish the exemptability of items. Ultimately, the amount of the allowable exemptions may be affected by the debtor’s desire to exempt other personal property, but generally speaking, the following exemptions are available to protect a debtor’s items which do not fall into a specific exemption category (such as jewelry, certain religious articles or motor vehicles, which are discussed later on):

Federal Exemptions:

11 U.S.C. § 522(d)(5): $1,150.00, which is federal catch-all exemption and may be applied to any personal property owned by the debtor;

11 U.S.C. § 522(d)(5): Up to $10,825.00 of unused home equity not already exempted under 11 U.S.C. § 522(d)(1);

11 U.S.C. § 522(d)(6): $2,175.00 for tools and equipment used in business. For this exemption to be applicable to the debtor, the debtor must establish that the items are necessary for the debtor’s trade, employment or business.

Massachusetts Exemptions

A debtor filing for bankruptcy in Massachusetts may elect either the Federal exemptions or the Massachusetts exemptions. Massachusetts exemptions applicable to firearms ownership are as follows:

M.G.L. c. 235 § 34(5): $5,000.00 for tools and equipment used in business. Like the federal exemptions, for this exemption to be applicable to the debtor, the debtor must establish that the items are necessary for the debtor’s trade, employment or business. Therefore, if the items are used in the debtor’s business or money-making efforts, they may be exempt up to $5,000.00, regardless of their less intrinsic value as hobby items to the debtor.

M.G.L. c. 235 § 34(17): Up to $6,000.00, representing the debtor’s aggregate interest in any personal property, not to exceed $1,000 in value, plus up to $5,000 of any unused dollar amount of the aggregate exemptions provided for the exemption of household furnishings, tools of the trade and a motor vehicle.

Special Considerations for Motor Vehicles

In Massachusetts, you can exempt up to $7,500 in equity in one car or other vehicle that you use for personal transportation or to find or maintain employment. If you are 60 years of age or older, or if you are disabled, you can exempt up to $15,000. If you decide to use the federal bankruptcy exemptions, you can exempt up to $3,450 of equity in your motor vehicle. The law does not care if your one primary vehicle is a 2005 Honda Civic, a 2012 Harley-Davidson Dyna Super Glide or a 1969 Yenko Camaro; only the amount of the debtor’s equity in the vehicle matters.

If the item you seek to protect is a registered motor vehicle, but not your primary mode of transportation, some trustees will disallow an exemption claimed under either the federal or Massachusetts “motor vehicle” exemptions. Additionally, although the Massachusetts exemption laws specifically state “automobile”, many trustees will not object to the debtor’s attempt to discharge a motorcycle if it is your primary mode of transpiration.

So, what does this all mean?

It means that the answer to the original question is “it depends”. The ability to exempt hobby items largely turns on the value of the item, and the other expemptions already claimed by the debtor for such necessities as their home, household goods and furnishings, or employment-related tools. In a “perfect storm” of circumstances, you may be able to exempt upwards of $20,000 of equity in your “toys”, but the real value depends on the totality of circumstances in your bankruptcy case.

If you are facing bankruptcy and have personal and other property, such as a home and retirement accounts that you want to ensure is protected through the bankruptcy process, contact Attorney Matthew P. Trask to learn more about how to protect your assets and find your financial freedom.

Thursday, May 31, 2012

I am the primary borrower on a loan and my cosigner has filed for bankruptcy. What should I do to protect myself?

A co-signer is an individual who is promising to repay a loan in the event the primary borrower defaults. In many cases, having a co-signer on a loan may have been necessary to obtain the loan because the primary borrower’s credit rating was insufficient to qualify on their own, and the co-signer stepped in to assist the primary borrower to obtain financing.

As we discussed in our previous post, if the primary borrower defaults (or files bankruptcy), the co-signer will be required to pay the loan back. But what about the reverse situation?

How is the primary borrower affected if the cosigner files for bankruptcy?

Consider the same example: Adam wants to buy a car, but can only qualify for a loan with a co-signer. Betsy agrees to co-sign, but her name is not listed on the title as an owner of the vehicle. This time Betsy files for bankruptcy and obtains a discharge of the car loan. For the sake of simplicity, we will assume that Betsy has no ownership in the vehicle that may be attributed to her by the Trustee.

Adam is still legally obligated to repay the unpaid balance of the loan. However, when Adam pays off the loan, all liens will be released, and the title will be issued in Adam’s name. Most auto financing agreements make no distinction between the “borrower” and “co-borrower” aside from whose name the title will ultimately be issued to. As such, the bankruptcy of a co-borrower is similarly a breach of the terms of the loan, and could result in a default under the terms of the note. As before, the bankruptcy (and discharge) of the co-borrower’s obligation leaves the lender in a position where they can only pursue one individual, not two, in the event the loan is not paid.

This material departure from the original agreed upon terms could be considered a default, and in fact, many auto financing agreements specifically include such a term. However, it has been my experience that the lender will receive a greater financial return by accepting the primary borrower’s monthly payments than they would by repossessing the vehicle and selling it at auction, meaning that the primary borrower will likely keep the vehicle, despite the co-borrower’s bankruptcy.

In the event a co-borrower files for bankruptcy, the best thing that the primary borrower can do is seek to refinance the balance on the car loan, if possible. Many credit unions and some larger banks offer automobile refinancing loans. By refinancing the loan, the primary borrower has effectively paid off the loan securing the vehicle, and negated any circumstances which could trigger a default. If handled properly, and for a qualified borrower, it is often possible to keep payments the same, or even lower payments upon refinancing the car.

A borrower may be tempted to sign a reaffirmation agreement presented by the lender. However, executing the reaffirmation agreement is, in my opinion, not a legal guarantee that the bank will take no further action, nor will it cure any default under the terms of the note upon the co-borrower’s filing for bankruptcy. First, in order to cure the issue of default, at a minimum, the co-borrower filing for bankruptcy would have to sign. A reaffirmation agreement is an agreement arising in the context of a bankruptcy case. Here, the primary borrower is not seeking bankruptcy protection, nor is he electing to “remove” the debt from the discharge order; and therefore the primary borrower, Adam in our example above, has no standing to sign the reaffirmation agreement.

The bankruptcy of a co-borrower should not appear on Adam’s credit report, but because some lenders will automate their reports to credit agencies, there is a reasonable likelihood that the entry may make some indication of bankruptcy. If this happens, the information in the credit report is incorrect. It may be necessary to contact the three credit bureaus (Equifax, Experian, and Trans Union) as well as the lending institution to ensure that this information is correctly reported on the primary borrower’s credit report. Again, refinancing with a new loan is the simplest way to resolve this issue because then the loan will be listed as paid, and the new loan will report positively on a credit report (as long as you continue to pay it on time).

As with the decision to co-sign a loan, the decision to obtain a loan requiring a co-signer comes with significant legal consequences if the co-signer does not honor the terms of the note. Consider the need to take out a loan with a co-signer carefully, and if the co-signer files for bankruptcy , it may be worth your while to reach out to a bankruptcy attorney to better understand your options and obligations regarding the loan.

I co-signed a loan and the primary borrower has filed for bankruptcy. What should I do to protect myself?

A co-signer is an individual who is promising to repay a loan in the event the primary borrower defaults. In many cases, having a co-signer on a loan may have been necessary to obtain the loan because the primary borrower’s credit rating was insufficient to qualify on their own, and the co-signer stepped in to assist the primary borrower to obtain financing without considering the long-term ramifications of that decision.

If the primary borrower defaults (or files bankruptcy), the co-signer will be required to pay the loan back. Additionally, unless the co-signer is also a “co-purchaser”, the co-signer is burdened only with the responsibility of repaying the debt and receives none of the benefit of the loan.

Consider the following example: Adam wants to buy a car, but can only qualify for a loan with a co-signer. Betsy agrees to co-sign, but her name is not listed on the title as an owner of the vehicle. Adam files for bankruptcy, and surrenders (gives back the car to the lender) and obtains a discharge of the car loan. Betsy is still legally obligated to repay the unpaid balance of the loan, but does not get title to the car when she finally finishes paying off the car – which now belongs to the bank.

Being a co-signer can be extremely risky, and if the primary borrower files for bankruptcy, your credit can be affected. However, you can manage the credit damage by doing the following:

1. Determine whether the primary borrower intends to reaffirm the debt in bankruptcy court, (i.e., keep the car and continue paying the loan), or will surrender it back to the lender.

2. If the primary borrower is going to reaffirm the vehicle, ensure that they keep the payments current through bankruptcy, and sign the reaffirmation agreement.

3. If the primary borrower is not intending to reaffirm, or has already lost the vehicle due to repossession, the only way to protect your credit is to repay the loan pursuant to the terms of the agreement

4. Be aware that many loans include an acceleration clause, meaning that if one of the borrowers files bankruptcy, the entire balance of the loan is due. If the lender exercises their right to accelerate the loan, the co-signer may not be able to make regular monthly payments.

Remember, the decision to co-sign a loan is often made out of a desire to help a friend or family member, but it comes with significant legal consequences if they fail to repay. Consider any request to co-sign a loan carefully, and if the primary borrower files for bankruptcy , it may be worth your while to reach out to a bankruptcy attorney to better understand your options and obligations regarding the loan.

Thursday, April 12, 2012

I’m suing someone and they filed for bankruptcy. What happens next?

As we have discussed in previous posts, immediately upon filing a voluntary Petition for Bankruptcy, the protections of the Automatic Stay go into effect to protect the debtor in an active bankruptcy. 11 U.S.C. §362(a) provides that the commencement or continuation of any acts or proceedings against the debtor in an effort to collect or recover any debt is automatically stayed, and any further efforts at collection are prohibited and punishable by law. Pursuant to 11 U.S.C. §362(k), an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.

Therefore, if you are the plaintiff in a civil lawsuit against a debtor in bankruptcy, it is imperative that you immediately cease collection efforts against the debtor, including ensuring the court takes no further action with respect to the case. Debtor’s counsel should file a “Suggestion of Bankruptcy” with the court, which is a notice to the Court that a party to the case is in bankruptcy, and the case may not proceed with respect to them or any claims against them. If the Debtor’s counsel does not file a suggestion of bankruptcy, in order to avoid the penalties of 11 U.S.C. §362(k), you or your attorney should ensure the court is aware that a party to the case has filed for bankruptcy. The Court Clerk or your civil attorney will advise you on the proper way to file such a notice.

Once the case has been stayed (i.e., paused), you must decide if you have grounds to pursue your claims in bankruptcy court, or have a reason why the particular debt is nondischargable by law in bankruptcy. For example, debts which were obtained by false pretenses, or false representations, or actual fraud are not dischargeable, nor are debts owed for fraud or defalcation while acting in a fiduciary capacity, or embezzlement or larceny, among other things. Each of these categories have particular legal requirements in order to prove nondischargability, and in order to prevent the discharge of that debt, you will need to prepare and file an Adversary Proceeding in the Bankruptcy Court.

Procedurally, an Adversary Proceeding is conducted much like a lawsuit in District Court or Superior Court, although the Bankruptcy Court maintains jurisdiction over the resolution of the claims. Removing a case to bankruptcy court can have far-reaching consequences on other aspects of the litigation, and we strongly recommend you consult with an attorney before doing so.

In some situations where your debt is secured or enjoys a legal priority over other debts, and there are assets available in the bankruptcy to pay creditors, it may not be necessary to file an adversarial proceeding, but rather a Proof of Claim. A Proof of Claim is your notice to the court establishing the existence of a debt and the nature of the debt, and will be reviewed by the Trustee and the debtor’s counsel. If funds are available to satisfy your class of debt, you may receive payment (partial or full, depending on the assets obtained from the debtor) from the bankruptcy trustee on behalf of the debtor’s bankruptcy estate.

Regardless, if you are involved in litigation and the opposing party files for bankruptcy, contact Attorney Matthew P. Trask to discuss how the bankruptcy will affect your case and claims moving forward. To fail to assert your rights in the bankruptcy case so could be an extremely costly mistake.


Monday, April 9, 2012

I’m being sued. Can a bankruptcy help?

If you are being sued on a debt collection matter, or other civil matter for which a money judgment can be imposed, filing bankruptcy may give you relief from your creditors. The Automatic Stay halts all existing court proceedings that the debtor is involved in, as well as any collection efforts for the individual's debts, until the bankruptcy proceedings are resolved.

In certain situations, the Automatic Stay might not prevent other court proceedings from continuing, at least in part. For example, in any family law case involving child support and custody, issues involving visitation or current child support are not subject to the Automatic Stay, but issues involving past due child support will be continued until the Automatic Stay is lifted at the end of bankruptcy proceedings.

The Automatic Stay is designed to provide some breathing room for the debtor in bankruptcy and provide the time and logistical ability to reorganize debts (as in a Chapter 11 or Chapter 13), or obtain a discharge (as in a Chapter 7 case). While the long-term resolution of a lawsuit will depend on the type of case, the Automatic Stay will provide some immediate protection for the debtor.

Ultimately, the debtor’s primary concern will be whether the debt or obligation on which the lawsuit is based will be discharged in bankruptcy. Absent fraud or certain other factors, most lawsuits arising out of consumer debts (e.g., lawsuits on unpaid credit cards or mortgage deficiencies following a foreclosure) are dischargeable under Chapter 7, and can be discharged following the successful completion of a Chapter 13 plan. However, the following debts arising under some suits cannot be discharged:

  1. Lawsuits for unpaid taxes, custom duties, or debts to pay taxes or custom duties.
  2. Lawsuits collecting student loan debt.
  3. Lawsuits to collect unpaid spousal or child support.
  4. Lawsuits filed by a spouse, former spouse, or child to enforce a Court Order obtained in a domestic relations proceeding.
  5. Lawsuits where the debt was included in a previous bankruptcy wherein discharge of that particular debt was waived, such as reaffirmed debts.
  6. Lawsuits for debts owed for money, property, services, or refinancing of credit, if obtained by false pretenses, or false representations, or actual fraud.
  7. Lawsuits involving consumer debts for luxury goods obtained within ninety (90) days of the date of filing of the bankruptcy petition.
  8. Lawsuits involving cash advances obtained within seventy (70) days of the date of the filing of the bankruptcy petition.
  9. Lawsuits involving debts owed for fraud or defalcation while acting in a fiduciary capacity, or embezzlement or larceny.
  10. Debts owed for fines, penalties, or forfeitures payable to and for the benefit of governmental entity.
  11. Lawsuits and debts owed for death or personal injury arising from the operation of a motor vehicle, boat, or aircraft while intoxicated by drugs or alcohol.

It is important to understand that the filing of a case will temporarily stop the lawsuit for many of the above claims, even though the actual debt is nondischargable. However, once the protections of the Automatic Stay expire, or the opposing party obtains permission from the Bankruptcy Court to move ahead, the case may proceed, and you may be required to pay any debt arising out of the above types of lawsuits, even after bankruptcy.


Thursday, April 5, 2012

What does it mean if someone listed me in their bankruptcy as a Co-Debtor?

When a joint obligor on a promissory note or other debt files for bankruptcy, the bankruptcy code requires that notice of the bankruptcy case is provided to the creditor and all co-debtors who are also obligated to pay the debt. If you receive notice that a co-borrower or co-debtor on a particular debt has filed for bankruptcy, it means that the debtor is complying with this particular requirement of the statute. In order for any actual or contingent obligation to be dischargable in bankruptcy, the creditor (the individual or business which is owed money by the debtor) must receive notice of the bankruptcy case, and have the right to object to the discharge of the debt, if appropriate legal grounds exist to object.

The reason that the code requires that all co-borrowers receive notice is because whenever there is a joint debt, the individual co-borrowers have “contingent, unliquidated claims” against all the other borrowers. Put another way, if Danny and Alice borrow $5,000.00 jointly, and Danny doesn’t pay , the lender can sue Alice and force her to repay all of the $5,000.00. Alice can then sue Danny and force him to contribute to the payment of the judgment obtained against Alice. However, in the event Danny files for bankruptcy, neither the original lender, nor Alice can sue Danny in an attempt to collect the balance even if the lender seeks to collect against Alice.

In this case, Alice would be best served to speak to a bankruptcy attorney, because she has a very limited time to do what she can to protect her claim, if anything. Alice’s right to collect any money from Danny is very fact specific, and the whole story will determine whether Danny’s “contingent” debt to Alice can similarly be discharged. If you find yourself owing a joint debt with someone who has recently filed for bankruptcy , contact Attorney Matthew P. Trask to discuss your rights and obligations.

To read more about co-debtors and bankruptcy, see our post What happens to my Cosigner if I file for Bankruptcy.


Thursday, March 15, 2012

How are Charitable Contributions treated in a Bankruptcy?

The Bankruptcy Court will evaluate any regular charitable contributions made by a debtor who is also seeking the protection of the bankruptcy court.  The code seeks to strike a balance between maximizing the amount of funds available to pay the creditor's debts, and also to enable the debtor to engage in reasonable charitable giving.  This means that the Court can reject this portion of a debtor's budget in certain circumstances.

Often this issue is raised in Chapter 13 cases where the debtor is claiming a regular expense paid directly to a religious institution (e.g. "tithing"), but can also arise in the context of other regular charitable giving.

The bankruptcy code makes clear that a court “is not supposed to engage in a separate analysis to determine whether charitable contributions up to fifteen percent are reasonably necessary for the debtor’s maintenance and support.” See Drummond v. Cavanagh (In re Cananagh), 250 B.R. 107, 112 (B.A.P. 9th Cir. 2000).  Despite the plain meaning of the statute, some courts have interpreted the code to subject charitable contributions to two limitations. First, that the amount of the contribution cannot exceed 15 percent of the debtor’s gross income, and, second, that the amount of the contribution itself is reasonable. See In re Buxton, 228 B.R. 606, 609 (Bankr. W.D. La. 1999).

The statute requires a three step test to determine if a charitable contribution may be excluded from a debtor’s disposable income and therefore available to pay creditors.


  • First, the contribution must be a “charitable contribution” as defined by 11 U.S.C. § 548(d)(3)
  • Second, the contribution must be made to a “qualified religious or charitable entity or organization” as defined by 11 U.S.C. § 548(d)(4)
  • Third, the contributions must not exceed 15 percent of the debtor’s gross income for the year in which the contributions are made.


Therefore, provided a debtor's charitable contributions are to a qualified charitable entity and do not exceed fifteen percent of the debtor's income, such contributions are presumed reasonable. 

However, a New York bankruptcy court judge, Judge Robert E. Littlefield Jr., has made an exception to this test.  He has determined that in certain circumstances, a debtor's contributions may be determined to be unreasonable, particularly if the debtor's income falls under the IRS median income for the debtor's relevant jurisdiction. Judge Littlefield noted that according to the statute, if a person's income is less than the state's median income the IRS standards don't apply.  The reason for this distinction is because the allowance for reasonable charitable contributions is provided under the IRS standards; and because the IRS standards for income deductions only apply in cases where the debtor's income exceeds the IRS median family income.

So, if you regularly contribute to a charitable organization, and are considering bankruptcy, be sure to discuss those contributions with your bankruptcy attorney beforehand, in order to avoid objection by the bankruptcy trustee.

For more information about bankruptcy contact Attorney Trask or call 508.655.5980.

Also, if reading this post put you in a charitable mood we invite you to donate to the One-Mission Buzz-Off, which is a charity to benefit Children's Hospital Boston and the vital programs and services they provide to help kids beat cancer.  In support of this charity Attorney Kelsey will GO BALD on June 3, 2012 at their annual Buzz-Off.


Wednesday, February 29, 2012

Can a Guardian or Conservator File for Bankruptcy on Behalf of the Protected Person?


A guardian is responsible for managing the personal affairs of another individual such as living arrangements and health care. A guardian does not have authority to manage the assets of that individual, unless that individual does not have any assets aside from monthly income. If this individual has significant debts, it might be in the that individual's best financial interest to file for bankruptcy, and the guardian would be able to file for bankruptcy on their behalf.

If the protected person has assets, an appointed conservator would be the only individual with authority to file for bankruptcy on the protected person's behalf, as the one charged with managing the individual's property and business affairs. A conservator is bound by the standards of care under the Prudent Investor Act, and if this standard is met and bankruptcy is appropriate, a conservator would be able to file for bankruptcy on behalf of the protected person.

Be aware, however, if the protected person owes a debt to the guardian or conservator, there is a potential conflict of interest that could arise in the context of either a bankruptcy petition, or the probate and family court. Further, guardians and conservators are required to file annual reports with the probate and family court, and filing for bankruptcy on behalf of the protected person would likely be met with scrutiny by a judge.

All of this assumes, of course, that the protected person is eligible for bankruptcy. To see if you or someone you care about are eligible for a Chapter 7 bankruptcy, check out our Means Test Calculator.

Should you have questions about your options under the United States Bankruptcy Code, contact Attorney Matthew P. Trask for an initial consultation.

Should you have any questions about guardianship or conservatorshipcontact Attorney Jonathan R. Eaton, or call 508.655.5980 to schedule an initial consultation.


Thursday, February 16, 2012

Are my Firearms protected from my Creditors in a Bankruptcy case?

It’s no secret that Kelsey & Trask, P.C. is a Second Amendment friendly law firm. While most of our firearms practice is dedicated to licensing and firearms law compliance issues, firearms and Second Amendment issues come up in many of our other practice areas as well.

Firearms are often a good investment; they hold their value well, do not depreciate significantly, and for certain items, can appreciate significantly in value, particularly for Curio & Relic items and other historical firearms. Many firearms owners do not keep these items purely for their investment potential, but rather for personal protection or because their employment requirements requires them to keep and maintain a firearm.  In either instance, whether or not you can keep your firearms if you file for bankruptcy is an important question.

How are firearms treated in bankruptcy?

Like any other asset, firearms must be disclosed to the bankruptcy court and are subject to acquisition by the trustee if they are not exempt under the Federal or Massachusetts exemptions. There are a number of exemptions that may be used to establish the exemptability of firearms. Ultimately, the amount of the allowable exemptions may be affected by the debtor’s desire to exempt other personal property, but generally speaking, the following exemptions are available to protect a debtor’s firearms:

Federal Exemptions:

11 U.S.C. § 522(d)(5): $1,150.00, which is federal catch-all exemption and may be applied to any personal property owned by the debtor;

11 U.S.C. § 522(d)(5): Up to $10,825.00 of unused home equity not already exempted under 11 U.S.C. § 522(d)(1);

11 U.S.C. § 522(d)(6): $2,175.00 for tools and equipment used in business. For this exemption to be applicable to the debtor, the debtor must establish that the items are necessary for the debtor’s trade, employment or business.

Massachusetts Exemptions

A debtor filing for bankruptcy in Massachusetts may elect either the Federal exemptions or the Massachusetts exemptions. Massachusetts exemptions applicable to firearms ownership are as follows:

M.G.L. c. 235 § 34(10): The uniform of an officer or soldier in the militia and the arms and accoutrements required by law to be kept by the officer or soldier is fully exempt under the law. For this exemption to be applicable to the debtor, the debtor must establish that his status as an “officer or soldier” (e.g., a police officer, a National Guard member, or member of the U.S. Military) who, per the requirements of his or her duties, must personally purchase and maintain firearms for the performance of their duties.

M.G.L. c. 235 § 34(5): $5,000.00 for tools and equipment used in business. Like the federal exemptions, for this exemption to be applicable to the debtor, the debtor must establish that the items are necessary for the debtor’s trade, employment or business.

M.G.L. c. 235 § 34(17): Up to $6,000.00, representing the debtor’s aggregate interest in any personal property, not to exceed $1,000 in value, plus up to $5,000 of any unused dollar amount of the aggregate exemptions provided for the exemption of household furnishings, tools of the trade and a motor vehicle.

If you are facing bankruptcy and have personal and other property, such as a home and retirement accounts that you want to ensure is protected through the bankruptcy process, contact Attorney Matthew P. Trask to learn more about how to protect your assets and find your financial freedom.

Monday, February 13, 2012

Credit Counseling Requirements in Bankruptcy

If you are planning to file a Chapter 7 or Chapter 13 bankruptcy, you must complete two court-approved courses:

  1. A court-approved pre-petition credit counseling course no more than 180 days before your bankruptcy filing. 
  2. A court-approved post-petition financial management course must be completed within 45 days after your § 341 Creditor’s Meeting.

If your case is filed without proof of completing the credit counseling course, you must file proof of completion within 15 days, or your case will be dismissed. Failure to take both of these courses in a timely manner will result in the dismissal of your case or the denial of your discharge. However, a debtor may request permission from the court to extend these deadlines if exigent circumstances exist that make it impossible to complete the course by the prescribed deadlines.

Both the credit counseling course and financial management course are offered by a number of agencies and organizations. Courses may be completed on-line, over the telephone, and in person. Costs range from approximately $25.00 to $50.00 per course. Many courses offer significant discounts if you purchase both the pre-petition credit counseling and post-petition financial management courses as a package in one transaction. I advise nearly all of my clients to go this route.

If you are married and filing a joint petition, you and your spouse can take the course together. Many providers offer a joint fee, and will allow you to save on both the cost of having to purchase two separate courses, and the time of having to complete the courses separately.

There are exceptions to the credit counseling and financial management course requirements. If you are disabled, and the nature of your disability prevents you from completing the course, the requirement may be waived with permission of the Bankruptcy Court. Similarly, if the debtor lacks the requisite mental capacity to understand the nature of the information provided in the course, the requirement may be waived. Finally, military debtors in active service in a designated combat zone are not required to complete the course.

A list of Massachusetts approved credit counseling and financial management agencies is provided here.

Thursday, February 9, 2012

Can someone else pay my legal fees for my bankruptcy?


If you are facing financial difficulties, one of the biggest hurdles is coming up with the retainer for your bankruptcy attorney to represent you through the preparation and submission of your bankruptcy case.  For a fortunate few potential clients, they will have family and friends in a position to pay their attorney on their behalf.  Before you accept money from a family member for your bankruptcy, or enlist the help of friends to pay for your attorney, it is important to know the potential pitfalls of doing so.

Under the means test guidelines required to file Chapter 7 bankruptcy, or used to determine the plan commitment period for a Chapter 13 bankruptcy, the court will consider all income received by the debtor in the six months immediately before filing “from all sources”.  This means that if you received money from another source with the intention of filing bankruptcy, the funds you received will be considered income received by the debtor during the applicable income inclusion period. 

Depending on the level of your current income, and the amount of assistance you receive with your legal fee, the additional contribution conceivably may raise your annualized income as calculated for means test purposes above the allowable limits, and disqualify you from filing a Chapter 7 bankruptcy, or require that you repay your creditors with a monthly payment for 5 years instead of only 3. 

Even if the assistance received was not enough to render you ineligible for Chapter 7, it still must be disclosed to the bankruptcy Court, both on the means test form (Official Form B22A) and on the Disclosure of Compensation of Attorney for Debtor.  The Attorney Disclosure is a document filed with the Court and reviewed by the trustee to look at the amount charged by the Attorney to represent you in the case, some specifics about the terms of your representation, and the source of the funds.  If the information provided for the means test does not match the information provided on the Attorney Disclosure, the trustee may seek to dismiss your case, or at the very least, look at your case with an undue level of scrutiny.

Monday, February 6, 2012

The Interplay of the Automatic Stay, Child Support, and Alimony

One of the most significant benefits of filing for bankruptcy is the Automatic Stay. In short, the Automatic Stay halts other existing court proceedings that the individual filing for bankruptcy is involved in, as well as any collection efforts for the individual's debts, until the bankruptcy proceedings are resolved.

In certain situations, the Automatic Stay might not prevent other court proceedings from continuing, at least in part. For example, in any family law case involving child support and custody, issues involving visitation or current child support are not subject to the Automatic Stay, but issues involving past due child support will be continued until the Automatic Stay is lifted at the end of bankruptcy proceedings. It is possible that a judge in this instance will actually not hear any issues at all until the Automatic Stay is lifted, but the circumstances might be such that the issues of visitation or current support need to be addressed in a more timely manner.

It is important to understand that although the Automatic Stay will halt court proceedings, any existing order for current child support or alimony will still accrue. In other words, an individual that is obligated to pay child support or alimony each week will not be relieved of this after a filing for bankruptcy, whether the person filing for bankruptcy is the individual who is supposed to pay the alimony or child support, or the individual who is to receive the alimony or child support. The Automatic Stay should, however, suspend efforts to collect any arrearage.

Additionally, for individuals that file for bankruptcy who are to receive alimony or child support payments and are owed an arrearage, any past due child support or alimony obligations and any current child support or alimony obligations are exempt from the bankruptcy proceedings, meaning that a bankruptcy trustee may not use this support to pay other creditors.

Should you have any questions about family law matters or bankruptcy, contact Attorney Jonathan R. Eaton by calling 508.655.5980 to schedule a one hour initial consultation.

Thursday, February 2, 2012

Why Bring an Attorney to the 341 Meeting?

Each petition under Chapter 7 and Chapter 13 of the United States Bankruptcy Code will have a meeting of creditors, commonly referred to as the "341 Meeting". If you are represented by an attorney at your 341 Meeting, your attorney will sit next to you when your case is called by the trustee. Usually, your attorney will not be required to speak much, as the trustee will ask you questions directly. Although the lion's share of the work that your attorney will put into your case will be prior to your 341 Meeting, there are certainly advantages of your attorney being with you.

Having your attorney there gives you certain advantages over going alone. First and foremost, you are benefiting from the attorney's experience and knowledge as to the intricacies of a complex field of law. Your attorney will know how to treat each of your assets and debts, and what the trustee is looking for, as well as how to fill out your schedules.

Second, an attorney will know how to explain areas where your case might be interpreted against your interests if not properly and carefully explained to the trustee.

Third, your attorney is another set of eyes that can refresh your memory if you forget anything on your schedules. The trustee has the ability to ask about anything that you have filed, and having another person familiar with your case sitting next to you can help if your memory fails you.

To speak with Attorney Matthew Trask about bankruptcy call 508.655.5980 or email us.


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