Are You on the List? What Makes a Handgun "Mass Compliant?"

There are two lists in Massachusetts that determine whether a handgun is legal to be sold or transferred by a Massachusetts dealer to a Massachusetts resident.  But one of the lists is apparently a secret.

The First List: the EOPPS Roster:

The “Commonwealth of Massachusetts Executive Office of Public Safety and Security Approved Firearms Roster”, often referred to as “the EOPSS Roster” or the “Approved Firearms Roster” is a list of handguns which have met certain statutory criteria governing the manufacture and sale of handguns to be sold in Massachusetts.  The criteria are tested by Massachusetts approved independent testing laboratories to have satisfactorily completed the testing requirements set forth in M.G.L. c. 140, § 123. The reports resulting from those tests are then reviewed by the Massachusetts Gun Control Advisory Board.

In cases where the Gun Control Advisory Board determined that the firearms “passed” the requirements set forth in Section 123,  the tested handgun was subsequently approved by the Secretary of Public Safety and Security as having complied with the statutory handgun testing provisions of M.G.L. c. 140, § 123.

The EOPSS Roster, therefore, is a list of all firearms which have completed and passed the testing requirements set forth in M.G.L. c. 140 s. 123.

The Second (Secret) List: the Attorney General's Roster:

The EOPSS Roster does not take into consideration the similar-but-not-identical requirements set forth in 940 C.M.R. 16.00, often referred to as the “Attorney General Regulations”.

I don’t know anyone who has ever seen the Attorney General “list” of approved firearms, and many (including myself) believe that no list actually exists.  Rather, firearms manufacturers in Massachusetts are required to “certify their own compliance” with the regulations, and are likely at risk for prosecution by the Attorney General’s office under the guise of a consumer protection action if they don't comply.

The EOPSS Roster and the Attorney General’s Regulations have significant implications for Massachusetts licensed firearms dealers and firearms manufactures, as both sets of rules govern (subject to certain exceptions) what handguns may be sold or transferred by a Massachusetts licensed dealer to a Massachusetts resident.

Our next two posts will review this complicated and potentially contradictory regulatory structure in more depth.

Bankruptcy Filing Fees Increase on June 1, 2014

The Bankruptcy court currently charges $306 in total fees to file for Chapter 7 Bankruptcy, and $281 in total fees for Chapter 13 Bankruptcy.  These fees include the filing fee, administrative fee and a trustee surcharge. A notice was just sent that the Bankruptcy court filing fees are increasing as of June 1, 2014.

After June 1, 2014, the Bankruptcy Court will charge the following fees to file for Chapter 7 Bankruptcy:

Filing Fee of $335.00, plus
Administrative Fee of $46.00, plus
Trustee Surcharge of $15.00
TOTAL FILING FEE: $396.00

After June 1, 2014, the Bankruptcy Court will charge the following fees to file for Chapter 13 Bankruptcy:

Filing Fee of $310.00, plus
Administrative Fee of $46.00, plus
TOTAL CHAPTER 13 FILING FEE: $356.00

Other fees that will also increase on June 1, 2014 are the filing fees for:

• Chapter 9: $1717
• Chapter 11: $1717
• Chapter 12: $275
• Chapter 15: $1717
• Adversary Proceeding: $350

IMPORTANT NOTE: The above fees are in addition to any attorney's fees and/or fees for the preparation of the Bankruptcy Documents, appearance at a Section 341 Creditor's Meeting, or representation in Bankruptcy Court. Any fees for legal services must be agreed to in writing between you and your attorney prior to the commencement of any bankruptcy proceeding.

Is a sealed criminal record considered in applying for a firearms license?

A sealed criminal record in Massachusetts does not mean the record is sealed for all purposes.  While a potential employer would not be able to view a sealed record, there are exceptions.  One example of an exception is for a "legitimate law enforcement purpose."

Even if your criminal record is sealed, an application for a firearms license in Massachusetts is deemed to be a "legitimate law enforcement purpose", and the reviewing agency would be able to see that there is a sealed record.

In addition, if the sealed record were a conviction for a disqualifying crime, you would remain ineligible by statute to obtain a license.  In addition, if the conviction is not an automatic disqualifier, the existence of that sealed record (and police records pertaining thereto) may still be used by the issuing department to address the issue of the applicant's suitability for a LTC.

Can I qualify for a License to Carry if I've been arrested?

In Massachusetts, only certain criminal convictions are deemed to be disqualifications under M.G.L. c. 140 s. 131.  However, if you are arrested or charged with certain crimes, such as assault and battery, the licensing officer in your town may still consider this in determining an applicant's suitability for a license.

Firearms licensing (with respect to the License to Carry Firearms) in Massachusetts utilizes a two-prong test, and grants significant discretion to the chief law enforcement officer as to whether the license will issue.  Although the offence will not disqualify you as a matter of law under s. 131, the existence of the record and the underlying incident may be considered by the chief as evidence of "unsuitability", which could result in the denial of an LTC/A.

Should the license be denied, you may be able to appeal the denial within 90 days to the local district court.  (M.G.L. c. 140 s. 131).

Additionally, depending on the age of the criminal record, and the circumstances of the case, you could consider applying for a Massachusetts Firearm Identification Card.  The FID will only permit you to posses non-high capacity rifles and shotguns (no handguns), but such license must be issued by the chief law enforcement officer if the applicant is not statutorily disqualified from obtaining said FID.  (See M.G.L. c. 140 s. 129B).  

How to avoid Objections to a Bankruptcy Petition.

A significant majority of Chapter 7 Bankruptcy filings are completed without any significant problems to the Debtor or objection by Creditors, provided the Debtor (and their counsel) properly and accurately discloses all necessary information required by the bankruptcy laws. However, the bankruptcy laws provide the grounds for creditors to object to the discharge of debts (meaning you will still owe the debt, even after filing bankruptcy) 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.

So, what are traps to avoid objections to my petition?

Trap 1: New Debts Immediately Prior to Filing

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.

Trap 2: Debtor Dishonesty in Obtaining Debt

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.

Trap 3: Debtor Dishonesty in Filing for Bankruptcy

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.

So, in conclusion, the best advice to consider if you are considering bankruptcy is to stop spending, or at least stop incurring new debt, and ensure you understand and completely disclose your financial history. As in the rest of life, honesty is the best policy.

Can a Mortgage Prevent you from Filing for Bankruptcy?

Individual bankruptcies, typically Chapter 7 or Chapter 13, are limited in certain ways.  For instance, Chapter 7 bankruptcy has income limitations, while Chapter 13 bankruptcy has debt limitations.   Below we will explain how your mortgage could disqualify you from filing Chapter 13 bankruptcy under the debt limitations.

A mortgage is a legal instrument typically securing a debt against real property, such as your residence. In our current real estate market, many homes are underwater. Not in the literal sense.  Figuratively, when a home is described as "underwater" it refers to the mortgages on said home having a value greater than the current fair market value of the home.

When filing a Chapter 13 bankruptcy, a wholly unsecured second mortgage or even the unsecured portion of an under-secured first mortgage should be listed as unsecured debt. Depending on other circumstances you may or not be able to discharge this "unsecured" debt, however that doesn't change the fact that the Court will consider it unsecured.

Why does this matter?

When filing a Chapter 13 bankruptcy, there are debt limits defined by 11 U.S.C. §§ 109(e). Said debt limits were recently raised, effective April 1, 2010. Under the current limits, a Chapter 13 bankruptcy will be dismissed if the debtor has unsecured debt greater than $336,900 and/or secured debt greater than $1,010,650. As of April 1, 2010, those figures rose to $360,475 and $1,081,400 respectively.

Consider the following scenario:
A debtor owns a $600,000 home but has $900,000 in mortgages. The debtor has a car with a lien of $20,000 (secured debt) and credit card (unsecured debt) of $100,000.

If the entire mortgage debt was considered secured then the debtor would be under the debt limits with a total secured debt of $920,000 and a total unsecured debt of $100,000. Unfortunately, because the Court considers the $300,000 of "underwater" mortgages unsecured, the debtor has a total unsecured debt of $400,000, which is above the debt limits. This debtor would, therefore, be ineligible to file for relief under Chapter 13 and be forced to seek other relief (possibly filing for bankruptcy under Chapter 7 or Chapter 11).

This is the exact scenario articulated by a California Court in an unpublished decision: In re Estrada.

Estrada refers to a Ninth Circuit decision: In re Scovis, 249 F.3d 975, 982 (9 th Cir. 2001). In Scovis, the Court stated that a "vast majority of courts, and all circuit courts that have considered the issue, have held that the unsecured portion of undersecured debt is counted as unsecured for 13 § 109(e) eligibility purposes."

It appears that this is also the law in Massachusetts. In re Marrama, 345 B.R. 458, 472 n.23 (Bkrtcy.D.Mass. 2006) In Marrama the court referenced Scovis and noted that the debtors failed to list the unseured portion of an undersecured mortgage as unsecured debt, which would have resulted in a greater unsecured debt.

Don't borrow from Peter to pay Paul, especially if you're planning to file for Bankruptcy!

Borrowing money leading up to a bankruptcy can cause multiple problems.

First, the debt for those funds could be non-dischargeable, meaning you will still owe it after the bankruptcy.  An example of how this could arise, was described in a previous post: Should I Pay My Student Loan with a Credit Card?  Debts such as student loans, certain judgments for personal injury resulting from gross negligence and or drunk driving and debts obtained by fraud cannot be discharged under the bankruptcy code.  If you borrow from another source, such as a credit card, to pay that loan then the new debt will be non-disagreeableness because the funds were obtained with the intention of filing bankruptcy and furthermore, the new loan can be treated the same as the original debt.

This means that even if the credit card company doesn't object to the discharge, they still might be able to pursue you after the discharge, just like a student loan company could (although best practice for the credit card company would be to object prior to the discharge).

Second, if you used these borrowed funds to pay another debt, those funds might be subject to taking by the bankruptcy court as a preference (a debt paid to the disadvantage of other creditors).  If that debt was a non-dischargeable debt, then you may still end up owing that debt after the bankruptcy, and the trustee could use those funds to pay other debts.

Third, and even worse, if the bankruptcy court found that you were attempting to commit a fraud upon the Court by moving this debt, the Court could deny your discharge altogether.

Finally, you could even be subject to criminal liability if the borrowing is determined to be a fraud, meaning you never intended to pay it back.  Fraud is a state crime and bankruptcy fraud is a federal crime.