December 17, 2014

BEWARE OF TELEMARKETING SCHEMES

Thousands of consumers have been deceived through telemarketing schemes designed to sell phony mortgage assistance and debt relief programs to already cash-strapped citizens. In 2012, the FTC filed complaints against several telemarketing companies alleging that they pitched programs that would supposedly help consumers in financial distress pay, reduce or restructure their mortgage and other debts. Among other things, the reported schemes violated the FTC Act, the Commission’s Telemarketing Sales Rule and the Mortgage Assistance Relief Services Rule (MARS Rule) which prohibits mortgage foreclosure rescue and loan modification services from collecting fees until homeowners have a written offer from their lender or servicer that they deem acceptable.

According to the FTC, the FTC’s complaints alleged that in addition to misrepresenting the likelihood that consumers would obtain a mortgage modification, the defendants falsely represented that consumers who did not receive a modification would receive full refunds, falsely represented that they were affiliated with the U.S. government, and falsely claimed to provide legal representation to consumers. Also, in violation of the MARS Rule, the telemarketers allegedly told consumers to stop communicating with their lenders, and failed to make Rule-mandated disclosures intended to ensure that consumers understand transactions with mortgage-assistance relief service providers and their rights under the Rule.

If you are experiencing financial difficulty, you may be tempted to use a debt relief company to help take care of your bills. Often times, settling with your creditors is a good alternative to filing bankruptcy. However, before you hire a company to help with your debts, you should first understand the differences in services that debt relief companies claim to offer, as well as the potential risks involved.

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December 4, 2014

BE TRUTHFUL AND TELL YOUR ATTORNEY EVERYTHING SO YOU DON’T END UP LIKE A REAL HOUSEWIFE OF NEW JERSEY

Filing for bankruptcy is a serious decision for anyone, but is often necessary in order to preserve your family and obtain a fresh start. As part of the process you must list all your assets and detailed financial information on the papers you file. Your attorney guides you through the bewildering paperwork that must be filed to make sure you get your discharge. However, you must be very honest with your attorney and tell him (or her) everything. If you do not list everything or try to hide something, it could result in a criminal bankruptcy conviction and jail time. This is just what happened to a Real Housewife of New Jersey.

Teresa Giudice, the star of “The Real Housewives of New Jersey” was sentenced on October 2, 2014 to 15 months in prison and fined $8000.00 for bankruptcy fraud. When she filed with her husband, they concealed on the bankruptcy papers filed the fact that they owned businesses, had income from rental property, and concealed Teresa Guidice’s income from the Housewives show. At her sentencing, the U.S. District Judge berated her stating,

“I’m not sure you respect this court. I’m not sure you respect the law. On the one hand you are a savvy businesswoman who writes successful cookbooks and markets herself so well. On the other hand you say you didn’t know how to cooperate. It defies logic. In the eyes of the law, it doesn’t matter who you are.”

So what we learn from this is: Always choose an experienced bankruptcy attorney and ALWAYS tell them everything.

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November 3, 2014

BEWARE: BANKRUPTCY CAN BE A POWERFUL TOOL-IF USED CORRECTLY

A Chapter 7 bankruptcy allows consumers overburdened by credit card and medical debt to discharge the debt and get a fresh start in life. In exchange for wiping out the debt the court appoints a trustee who takes certain assets you own and sells them to pay your creditors. However, the trustee cannot take certain property you need for living, e.g. a house you live in with $150,000 equity, a car with $6,000 equity, household goods, computer, retirement benefits and items that do not exceed a certain value, such as wedding rings, watches, bicycles, milk cows, poultry, and life insurance, to mention a few. However, many debtors try to use cut rate attorneys to file bankruptcy, thinking that all lawyers are the same, hoping to save a few dollars in attorney’s fees. Unfortunately, there are lawyers out there who claim to be bankruptcy lawyers who do not know what they are doing and just charge a small fee and then abandon their clients. Here are some disasters I have witnessed in my 36 years of practicing law caused by clients’ lawyers whose cheap fee seemed too good to be true:

1. The client had a car accident lawsuit pending when he filed bankruptcy. His attorney told him it was exempt from the trustee. It was not. The trustee took it over and settled it for $240,000, none of which went to the client.

2. Client lost his house with $110,000 equity. While this would have been exempt under Arizona law, because the client had not lived in Arizona for 2 years, the trustee was allowed to use North Carolina law which only allowed a $20,000 exemption. His attorney did not know this.

3. The client was an accountant who operated out of his LLC. When he filed bankruptcy, the trustee took over the LLC and sold it to an accountant from Minnesota who wanted to live in Arizona where it was warmer. Thus, he lost his business. If his attorney had him operate as a sole proprietor he could have kept his business.

4. The client had $80,000 in a mutual fund that he thought was an IRA. His lawyer never looked at the statement, which clearly said it was not an IRA fund. The trustee took the $80,000.

5. The client was disabled and received $3,400 in benefits from his private disability policy. His lawyer told him these benefits were exempt and filed bankruptcy for him. Disability benefits are only exempt if they are from an employer disability policy, not a private one. The trustee took the benefits and the client never received any more benefits for the rest of this life.

6. The clients owned 2 houses, the big house they lived in and their former residence which they rented. Along with the bankruptcy filing, they planned to downsize and move into the smaller cheaper rental house with $50,000 equity. Their big house had no equity and had payments of $3,000 per month. Their lawyer told them they could file bankruptcy and declare their intention to move into the rental house in 6 months, thereby protecting it from the trustee. Wrong. They filed their bankruptcy and the trustee took their rental house. They had to be living in it on the day the bankruptcy was filed.

Bankruptcy is an important federal right that everyone has. However, as shown above, you need a good bankruptcy attorney to guide and protect you through the bankruptcy. Make sure you do your homework and check out that the attorney you hire is experienced with a good reputation in the community.

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October 21, 2014

Purchase of A New Car Prior to Bankruptcy Filing — Beware the Trustee

One issue which comes up periodically when contemplating the filing of a bankruptcy is whether to purchase a new car prior to filing the case. Most chapter 7 debtors say that they need to purchase a car before the filing of the bankruptcy because they feel their credit will not allow them to purchase a car after the discharge. Most chapter 13 debtors say that they need a new car now, so they can survive the five year chapter 13. Generally, our experience has been that chapter 11 debtors rarely express these concerns. In each case the debtor intends to pay for the vehicle and retain it.

There is an Arizona statute, A.R.S. § 28-2133 which provides for the procedures relating to the recordation of a lien on a vehicle title. Essentially, what the statute means is that a creditor must perfect its security interest within 30 days of a new buyer taking possession of a vehicle, or the security interest may be set aside. The full text of the statute is as follows:

28-2133. Index and filing of liens, encumbrances or instruments; constructive notice

A. The department shall maintain an appropriate index of all liens, encumbrances or title retention instruments filed as provided by this article.

B. The filing and issuance of a new certificate of title as provided in this article is constructive notice to creditors of the owner or to subsequent purchasers of all liens and encumbrances against the vehicle described in the certificate of title, except those that are authorized by law and that are dependent on possession. If the documents referred to in this article are delivered to a registering office or an authorized third party provider of the department within thirty days after the date of their execution, the constructive notice dates from the time of execution. Otherwise, the notice dates from the time of receipt and filing of the documents by the department as shown by its endorsement. For the purposes of this subsection, the time stamp on the documents that is administered by the registering officer or authorized third party provider of the department electronically or otherwise is conclusive as to the time and date of delivery of the documents.

C. The method provided in subsection B of this section for giving constructive notice of a lien or encumbrance on a vehicle required to be titled and registered under section 28-2153 or a mobile home required to be titled under section 28-2063 is exclusive, except for liens dependent on possession. A lien, encumbrance or title retention instrument or document that evidences any of them and that is filed as provided by this article is exempt from the provisions of law that otherwise require or relate to the recording or filing of instruments creating or evidencing title retention or other liens or encumbrances on vehicles of a type subject to registration under this chapter.

D. Notwithstanding any other law and except as otherwise provided in this subsection, the failure of a motor vehicle dealer as defined in section 28-4301, a finance company or the department to complete the paperwork within thirty days as prescribed in subsection B of this section shall not result in the loss of the vehicle for either the lienholder or the person who purchased the vehicle. This subsection does not limit or negate the powers of a trustee under 11 United States Code section 547 or any successor statute.

So what, you may ask, has this to do with someone who decides to file for a bankruptcy and buys a car prior to the filing of the case? For a chapter 7, it means that if your new car lienholder DOES NOT properly perfect its lien within 30 days of taking delivery of the vehicle, then the Chapter 7 Trustee can get a court order that 1) voids the lienholder’s lien and 2) allows the Trustees to sell your car. You will get nothing, and no exemption proceeds from this action by the Trustee. The Trustee will use this money to pay a percentage to unsecured creditors who file claims in your chapter 7 case.

For a chapter 13, it means that if your new car lienholder DOES NOT properly perfect its lien within 30 days of taking delivery of the vehicle, then the Chapter 13 Trustee can get a court order that 1) voids the lienholder’s lien and 2) allows the Trustee to divert all the money that you would have paid to the car creditor through the chapter 13 plan to pay general unsecured creditors who file claims. You still get to keep the car in a chapter 13 and at the END of the case you get the title. If you do not finish the chapter 13, then the lien is restored if the case is dismissed. If the case is converted to chapter 7, the lien avoidance will be handled by the chapter 7 Trustee.

Bottom line is that you should seriously consider whether to file a bankruptcy after purchasing a new vehicle. You should definitely check to see if the lienholder has timely (no later than 30 days after delivery) filed its lien with the motor vehicle division. If you choose to file bankruptcy shortly after purchasing a new vehicle, it is extremely important that you contact competent bankruptcy counsel to guide you through the process so that your vehicle is not lost or put at risk of loss without your knowledge.

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September 26, 2014

Bankruptcy Protection For Private Student Loans

Private student loans are currently nearly impossible to discharge in bankruptcy. Legislation proposed by Sen. Tom Harkin (D-Iowa) as part of a larger higher education package would allow private student loans to be discharged in bankruptcy. Reform to the current student loan bankruptcy laws has to be addressed due to the size and scope of the debt amounts current student loan holders have.

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The original motivation for reigning in dischargeability of student loan debt centered around preserving government loans, with proponents of reform painting bleak scenarios about federal educational aid drying up if the discharge status quo carried the day. The first student loan reforms took place in 1976 as an amendment to the Higher Education Act and required that debtors wait five years from the beginning of their repayment period, or demonstrate undue hardship, before their student loans were eligible for discharge in bankruptcy. The five year bar was later extended to seven years and in 1998, the laws were changed so that governmental student loans could never be discharged absent a showing of undue hardship. In 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) made all educational loans, public and private, nondischargeable absent a showing of undue hardship (an impossible standard to meet as interpreted by courts across the country).

With one-in-three students loans considered delinquent and often affecting a student’s ability to make purchases in the future, the bill could offer much-needed reprieve for college students left with mountains of both federal and private student loans. However, the likelihood of the bill moving forward this session is slim, the WSJ reports.

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September 18, 2014

HOMESTEAD EXEMPTION PROCEEDS — BEWARE THE TRUSTEE

One issue which comes up when contemplating the filing of a bankruptcy is the homestead exemption. Normally the issue is fairly straight forward. Arizona’s Homestead Exemption, ARS. 33-1101provides: Homestead exemptions; persons entitled to hold homesteads

A. Any person the age of eighteen or over, married or single, who resides within the state may hold as a homestead exempt from attachment, execution and forced sale, not exceeding one hundred fifty thousand dollars in value, any one of the following:

1. The person's interest in real property in one compact body upon which exists a dwelling house in which the person resides.

2. The person's interest in one condominium or cooperative in which the person resides.

3. A mobile home in which the person resides.

4. A mobile home in which the person resides plus the land upon which that mobile home is located.

B. Only one homestead exemption may be held by a married couple or a single person under this section. The value as specified in this section refers to the equity of a single person or married couple. If a married couple lived together in a dwelling house, a condominium or cooperative, a mobile home or a mobile home plus land on which the mobile home is located and are then divorced, the total exemption allowed for that residence to either or both persons shall not exceed one hundred fifty thousand dollars in value.

C. The homestead exemption, not exceeding the value provided for in subsection A, automatically attaches to the person's interest in identifiable cash proceeds from the voluntary or involuntary sale of the property. The homestead exemption in identifiable cash proceeds continues for eighteen months after the date of the sale of the property or until the person establishes a new homestead with the proceeds, whichever period is shorter. Only one homestead exemption at a time may be held by a person under this section.

There is no requirement to file any paperwork with the county recorder if you only have one home that you live in. If you have more than one home, you may wish to consider filing a homestead declaration with the county recorder where you live.

Although the homestead exemption appears to be rather straightforward, there are issues which may arise. One of those issues comes up when a debtor sells their home BEFORE filing bankruptcy, or AFTER filing bankruptcy. It is possible to exempt, or hold safe, the proceeds from the sale of one’s homestead, however there are strict requirements that have been developed through case law. A debtor who sells a home should place that money in a special bank account that has ONLY homestead proceeds. No other monies should be co-mingled in the account. To co-mingle could result in a loss of the exemption to the Trustee or to creditors.

A very important rule, which goes to the purpose of the homestead exemption, is that one who sells a home and does segregate the homestead proceeds must use the proceeds to purchase another home within eighteen months after receiving the proceeds. Failure to use the proceeds to purchase another home could result in the loss of the exemption and a trustee’s move to confiscate the funds for the benefit of creditors.

Bottom line is that the homestead exemption is very important and allows one to exempt up to $ 150,000.00 in equity for the purpose of a home. If you choose to sell your home before, or shortly after the filing of a bankruptcy, it is extremely important that you contact competent bankruptcy counsel to guide you through the process so that your homestead proceeds are not put at risk of loss.

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September 3, 2014

WHY WOULD ANYONE FILE A CHAPTER 13 BANKRUPTCY?

As followers of this Blog know, Chapter 7 is the most common type of bankruptcy. This is the bankruptcy that discharges your debts. In exchange for that, a trustee is appointed who liquidates certain assets to pay your debts. However, you get to keep other items, i.e. the trustee cannot take them. These include your home with equity of up to $150,000, your car with equity of up to $6000, most household goods and appliances, a computer, and retirement plans.

A Chapter 13, on the other hand, is a reorganization bankruptcy where you pay your disposable income to the trustee for 3-5 years in order to obtain your discharge. Debts do not necessarily have to be paid in full. Disposable income means the income you have left over after paying your reasonable living expenses such as house payment, food, utilities etc. Paying $1000 per month to play golf would not be a reasonable expense.

When looking at these 2 types of bankruptcies, many clients ask me why someone would ever file a Chapter 13? After all, who would want to make payments for 5 years in a Chapter 13, when there are no payments in a Chapter 7 and you get your discharge in 4-5 months? The answer is that you can accomplish things in a Chapter 13 that you cannot do in a Chapter 7. Here are some of the reasons someone would file a Chapter 13 rather than a Chapter 7.

1) If your income is very high, the bankruptcy code may say you do not qualify for a Chapter 7.

2) A Chapter 13 can pay your taxes in full over 5 years, making IRS take payments that you can afford.

3) A Chapter 13 can stop a house foreclosure and allow you to make up the back payments over time.

4) Many of my self-employed small business clients file Chapter 13 because it allows them to keep their business. In a Chapter 7, it is very likely that the Trustee will take over or shut down your business.

5) In a Chapter 13, the trustee does not take any of your assets, you get to keep them all. I had a client who owned a sand rail. This was not exempt and the trustee would have taken it in a Chapter 7. We filed a Chapter 13 for her and she got to keep it.

6) Divorce debt (but not child support or spousal maintenance) can be discharged in a Chapter13 only. It cannot be discharged in a Chapter 7.

The Chapter 13 can be a powerful tool to allow you reorganize your finances and should never be overlooked when one considers their bankruptcy options. That is why we offer a free 1.5 hour consultation so we can explain the bankruptcy process to you, look at your individual situation, and advise you of all of your options, both bankruptcy and non-bankruptcy. You will then have the necessary information needed so you can make the appropriate informed decision on what is right for you.

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August 22, 2014

“So What?” TAX REFUNDS AND CASES UNDER CHAPTER 7 & 13

During our initial bankruptcy consultation we go out of our way to advise potential clients that they will likely be required to turnover income tax refunds to their bankruptcy trustee. Many potential clients choose to delay the filing of their bankruptcy until they have filed tax returns, and received and spent tax refunds. Clients who retain our firm are again reminded of the requirement to turnover tax refunds to the Trustee.

However, sometimes the case is filed and the client collects and spends the tax refunds without consulting counsel. The usual explanation is “I am bankrupt, I needed the money for... insert a compelling, important reason.” When the requirement is again brought to the client’s attention we sometimes hear “So what? What can the trustee do about it?” This is an important question, and the answer is of critical importance.

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CHAPTER 7 TRUSTEE:
If a debtor refuses or fails to turnover a required tax refund (or required portion thereof) to the chapter 7 Trustee, the Trustee can file a motion with the court seeking to prevent the discharge of the debtor’s debts. If a discharge of debts has already been ordered, the chapter 7 Trustee may seek to have the discharge order revoked (set-aside). If the discharge order is revoked, the debtor can then be pursued by her/his creditors as if no bankruptcy had been filed.

CHAPTER 13 TRUSTEE:
If a debtor refuses or fails to turnover tax refunds in a chapter 13 case, the chapter 13 Trustee may prevent the entry of a discharge order or seek to have the discharge order revoked. If the debtor has not completed the regular monthly plan payments, the debtor may seek, through counsel, to have the turnover of the refunds waived. It is very important to acknowledge that there must be a very compelling, documented reason for the waiver. The Trustee and/ or the Judge will consider the circumstances and make a decision. The debtor will then have to comply or the chapter 13 case may be dismissed.

Potential bankruptcy filers should be aware of the requirement to turn over tax refunds to the trustee and prepare their affairs accordingly.

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July 22, 2014

NINTH CIRCUIT BAP PROTECTS BUSINESS OWNERS

The Ninth Circuit Bankruptcy Appellate Panel recently made a ruling that will protect business owners in bankruptcy from what has long been an injustice. The Court ruled in Sachan v. Huh, 2014 WL 936803 that debts that are the result of an agent or employee’s fraud can be discharged unless the debtor participated in the fraud. Here is why this ruling is important.

I filed a bankruptcy case some years ago for a client who owned 3 convenience stores in Kingman, Arizona. Unfortunately, the bad economy forced him to file bankruptcy due to the large business debts regarding the stores. Normally in a Chapter 7 bankruptcy he would have received a discharge of all of his debts, which would have allowed the client and his family a fresh start. But in this case there was a problem.

In bankruptcy, fraud debts cannot be discharged. This makes sense, as bankruptcy is set up for the poor but unfortunate debtor who incurs debts that he honestly cannot pay. If the debtor has debts obtained through fraud (Ponzi schemes, lying on loan applications, stealing money from his employer), he should not be able to escape these debts in bankruptcy. This is what happened to my debtor in his case. He had a manager who ran one of the stores. Unbeknownst to my client, the manager was ripping off the gasoline company. The manager would order gas for the pumps, divert the gas after delivery to his own personal tanks so he could sell it himself, and then the manager failed to pay the gas company. The manager then skipped town, leaving my client with an unpaid $100,000 bill to the gasoline company.

Clearly, the manager scammed the gasoline company. My client knew nothing about this. When he filed bankruptcy, however, the gasoline company argued to the judge that even though my client had no participation in the scam, he was automatically guilty of fraud, because he was the employer and the fraud of his employee (the manager) counted has his fraud. The bankruptcy judge thought this was unfair, but said he had no choice but to rule against my client, because the law at that time said that the fraud of an employee or agent is always imputed to the principal (owner of the business). Now, thanks to the Sachan case, this legal precedent has been overruled and my business clients can get the fresh start in bankruptcy they deserve without being saddled with the frauds of their employees.


Harold E. Campbell, Esq.

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November 8, 2013

11 U.S.C. § 523(a) and Debtor’s Prison in the United States of America.

So they taught you in school that there was no debtor’s prison in the great nation of the United States of America, did they? Well, of course, most school children know there’s no debtor’s prison here, but are they correct?

Debtors prisons are as old as humanity. The Bible deals with the idea in Matthew 18:23-35. In this biblical story, servant A is called before his king. Servant A owed a great deal of money to the king. The king ordered that Servant A be sold into slavery, with his wife and children also to be sold, all to pay the debt. Servant A begged and the king showed mercy, cancelling his debt. Later Servant A came across Servant B, who owed a small amount of money to Servant A. A grabbed B by the throat and yelled at him to pay what he owed. B begged A to have mercy and give additional time to pay. A had no compassion and had B thrown into debtor’s prison. As these stories go, A’s fellow servants ratted him out to the king and the king was very, very unhappy with A, calling him wicked and essentially telling him that his soul would burn in the eternal fires.

Debtor’s prison is not a fun place. Essentially, it’s a jail where you are placed until your debt is paid. Since you are in jail, you can’t pay your debt and someone must come to your aid, a benefactor or loved one. None of these in the U.S.A.?

As a bankruptcy attorney, I have been fond of telling people we don’t have debtor’s prison in our country. When I decided to do this article, I did some researched and was appalled to learn that I had been incorrect. Here’s what I learned:

According to the American Civil Liberties Union “Across the country, in the face of mounting budget deficits, states are more aggressively going after poor people who have already served their criminal sentences and jailing them for failing to pay their legal debts. These modern-day debtors' prisons impose devastating human costs, waste taxpayer money and resources, undermine our criminal justice system, are racially skewed, and create a two-tiered system of justice.”

According to the World News Daily,
“The ACLU did a study in 2010 revealing the use of debtors prison practices in five states, Louisiana, Michigan, Ohio, Georgia and Washington. That led to a comprehensive study by the ACLU of Ohio, released just this month, on the widespread practice of jailing people for debt.”

What these articles, and other research, reveal is that the practice of sending people to jail for their past due charge card debt is not happening, but people can be, and are, sent to jail for contempt of court, only to be released upon the payment of certain debts. These include past due child support or alimony (11 U.S.C. § 523(a)(5)); fines, penalties and forfeitures payable to and for the benefit of a governmental unit (11 U.S.C. § 523(a)(7)); and orders of restitution under title 18, United States Code (11 U.S.C. § 523(a)(13)).

These are just some of the things that can wind you up in jail if you fail to pay them, and is not, by any means, an exhaustive list. The trick is usually that you are summoned to appear in court to explain why you have not paid the debt. Upon receipt of the summons you fail to appear, and a bench warrant is put out for your arrest. Typically you are arrested for the failure to appear, but often you are not released until the debt, or a portion of it, is paid. Its fairly common in Arizona, particularly amongst sheriff Joe’s officers, that people are picked up on warrants for failure to appear on child support or alimony issues, now referred to as domestic support obligations.

The rub is that if the debt falls within one of the exceptions to discharge set forth in 11 U.S.C. § 523, you may not be able to prevent a run in with the law by filing for bankruptcy relief. And although the debt might not be dischargeable in a chapter 7 bankruptcy, keep in mind that an excellent bankruptcy attorney may be able to restructure the non-dischargeable debt in a chapter 11, 12 or a chapter 13 plan, and get you protection through the use of the “automatic bankruptcy stay”.

So the next time some smart friend or neighbor tells you that you don’t have anything to worry about “because there is no debtor’s prison in the U.S.A.”, refer them to this blog so they may be educated.

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October 23, 2013

FORECLOSURE SCAM ARTIST GETS 11 YEARS IN FEDERAL PRISON

Here is a good example of why you need a reputable bankruptcy attorney to help when you have financial troubles with your house. A fraud artist who claimed to help distressed homeowners stave off foreclosures has been sentenced to 11 years in Federal prison after he was finally caught in Waterloo, Canada. Here was his scam.

Mr. W would solicit homeowners who were facing foreclosure on their home. He told them that for a fee (usually $700) he could legally delay the foreclosure. After he was paid, he would get a list of people who had filed for bankruptcy in the homeowner’s state. He would then prepare a phony deed that would transfer a fractional share of the homeowner’s home to someone who had filed bankruptcy. After recording the deeds, he would mail them to the bank or lender foreclosing on the house informing them that they were stayed from doing the foreclosure because the owner (the person in bankruptcy who never knew about the phony deed) was in a bankruptcy. The bank would then postpone the foreclosure for several months until it finally figured out in the bankruptcy that the bankrupt really had no interest in the home. When the unwitting debtor in bankruptcy would finally disavow that he owned part of the house, Mr. W would then just pluck another name from the bankruptcy database and start this process all over again. In this manner, he filed fraudulent foreclosure documents on 824 homes, using at least 414 bankruptcies filed in 26 judicial districts. He collected about $1,200,000 from clients during the life of the scheme. Needless to say, the homeowner ended up losing his house in the end. Mr. W. pleaded guilty to bankruptcy fraud and identity theft. He received a sentence of 11 years in prison, was ordered to pay nearly $60,000 in restitution and was ordered to forfeit about $100,000 of property previously seized by law enforcement.

What do we learn from this? If it sounds too good to be true, it probably is. If your home is in financial trouble and in danger of foreclosure, a chapter 13 bankruptcy reorganization can often save your home. You do this by going to see an experienced bankruptcy attorney. You do not go see Mr. W.

At Campbell & Coombs we offer a free consultation to people who are in danger of losing their home to see if a Chapter 13 reorganization can help.

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October 4, 2013

To Trust or Not To Trust- Does a Trust have any effect on your bankruptcy?

One item that is often overlooked by persons considering filing bankruptcy is that handy trust that someone said you had to have years ago. Remember, the “My Family” living trust that you created a few years ago? You might have placed a car, a house, or even a bank account in the trust. Then when you look to file bankruptcy, you have forgotten all about it. Often, this is not caught by the bankruptcy attorney until you begin providing things like bank statements and car titles. It is, however, an important matter for discussion before you chose to file bankruptcy, and then before you chose which chapter to file.

Question 10b. of the Statement of Financial Affairs (among the initial bankruptcy documents filed in any bankruptcy case), requires the debtor to respond to the following: “b. List all property transferred by the debtor within 10 years immediately preceding the commencement of this case to a self-settled trust or similar device of which the debtor is a beneficiary.”

Question 14. of the Statement of Financial Affairs requires the debtor to respond to the following: “Property Held for Another Person. List all property owned by another person that the debtor holds or controls.”

On Schedule B, the debtor is required to list the following assets, which may include an interest in a trust:

19. Equitable or future interests, life estates, and rights or powers exercisable for the benefit of the debtor other than those listed in Schedule A - Real Property.

20. Contingent and noncontingent interests in estate of a decedent, death benefit plan, life insurance policy, or trust.

35. Other personal property of any kind not already listed. Itemize.

You get the point. If you have an interest in any type of trust, it has to be reflected in your bankruptcy documents somewhere. A trust may show up as an asset, or you may simply be a beneficiary of a trust that you have no control over whatsoever.

How can you be effected if you have a Trust? There are different types of Trusts. If yours is a self settled Trust, you may have transferred personal assets to the Trust prior to filing your bankruptcy. This could result in your inability to claim those assets as “exempt”, thus losing them to the trustee. It might result in the Trustee suing the Trust to recover the asset if it was transferred without consideration. Many complications are possible. There may be ways to eliminate some of the problems created when you transfer assets into a Trust pre-bankruptcy, but you will need to speak with an attorney to discuss your particular situation.

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