Is a short sale better than foreclosure?

The short sale industry has been a huge windfall for real estate agents. Some of them scare people into short sales on their home, even though a short sale usually has no advantages over letting your house go into foreclosure. Why do they do this? Simple, it's the fees. Realtors stand to make up to 6 percent from the short sale of your home. On a $200,000 house, that's a tidy $12,000 for the realtors ($6,000 for the seller's agent, $6,000 for the buyer's agent) . Turns out, that's just about enough incentive to pressure you into a short sale, even when there's no benefit to you. 1. Most short sales are no better for your credit score than foreclosure. Both short sales and foreclosures are major credit events that can have a big impact on your score. But there's no support for the myth that a short sale is easier on your credit than a foreclosure. In fact, FICO, the leading credit-scoring company, says the opposite. If you compare a borrower who goes into foreclosure with a borrower who does a short sale where there is a deficiency balance, the credit impact is the same. If the second mortgage company will agree to wipe out your balance, then yes, the credit hit from a short sale may be softer. But this isn't what usually happens.

2. Your realtor probably can't wipe out your second mortgage, despite what he/she tells you. For people who have second mortgages, short sales can be tricky. Remember, in Minnesota, a second mortgage company can sue you after foreclosure for any remaining balance left on their loan. A lot of times, the second lender will release their lien if they can get a few thousand bucks from the closing of the sale, but won't release your liability on the loan. This benefits the buyer, because they can buy the house without the lien, but it doesn't do anything for you, since the second mortgage company can still ask you for the remaining balance. So there's no benefit for you--you're on the hook for practically the same amount of money as if you had gone into foreclosure.

3. Foreclosure may suck, but it has its advantages, too. Short sale has a big disadvantage over foreclosure that your realtor will probably forget to tell you. If you sell your house, you'll probably have to leave within a month or two. If you just let your house go into foreclosure, you may have between six months and a year to live in your house mortgage-free and rent-free, while the foreclosure runs its course. That's a lot of time to save up some money for whatever comes next--such as a security deposit and moving expenses. If you short sell your home, you'll be giving up this right.

4. Don't get caught by the details. I know, I know. Most realtors are honest. But when it comes to short sales, there are a lot of sleazy operators out there who'll tell you anything to get you to sell. We've heard lots of cases of realtors telling the client one thing, and when they get to closing, the deal is totally different than they were led to believe. If you're thinking of a short sale, you probably need an advocate who's working for you, not for the commission. We represent homeowners in trouble with their mortgages. We also review short sale documents to make sure you're getting the deal you think you are. Give us a call to talk about your situation.

The foreclosure process in Minnesota

The foreclosure process is a mystery to a lot of homeowners. So here's a timeline that explains how foreclosure by advertisement works (as opposed to foreclosure by lawsuit, which is rare, and has a completely different timeline). Keep in mind that your timeline may vary, sometimes by a lot.

Month 0: You miss a payment. The whole process kicks into motion when you can't make payments on your mortgage anymore, or decide not to make payments. At first the mortgage lender might start calling you or writing you letters. The lender might also reach out to see if you need assistance or if you're eligible for a loan modification. At some point you'll receive a default, or "intent to foreclose" letter. But remember that from this point, you still have a lot of time before the foreclosure actually happens.

Month 3: Your case is sent to an attorney. It's usually about three months of missed payments before your file is sent to a foreclosing attorney. It could be less, it could be more. The attorney might take a couple of tries to get you to start making payments again, usually by calling you or writing threatening letters.

Month 4: Service and publication. In foreclosure by advertisement, the lender must serve you with foreclosure papers. The papers will tell you the date of the sheriff sale, which must be at least six weeks in the future. Then the lender has to publish a foreclosure notice in the newspaper for six consecutive weeks. If the lender skips any of these steps, or doesn't complete them correctly, the foreclosure may later be attacked in court.

Month 6: The sheriff's sale. The sheriff's sale is a really important date, for two reasons. First, it is the last date you can bring your mortgage current in order to stop the foreclosure. After the sale, it might not be enough just to pay the lender the amount you're behind.

Second, after the sheriff sale is completed, we can no longer use bankruptcy to help you catch up on your mortgage. If your sheriff's sale is scheduled for 10 a.m. on Monday, and we file your bankruptcy at 9:59, the sale is void. If it's filed at 10:01, we've missed our chance.

Under Minnesota law, a homeowner can also delay a sheriff sale one time for five months, in exchange for a shortened redemption period to five weeks (see below). This must be done between the date the sale is first published and 15 days prior to the sale. The process isn't all that easy, so don't wait until the last minute if you want to postpone your sale.

Month 12: The end of the redemption period. The redemption period is a six month period starting from the date of the sheriff's sale. During the redemption period, you can continue living in your home. By this time, it's too late to get the mortgage current by paying past-due payments, but you can "redeem" the property by paying the entire sheriff's sale amount plus interest and fees anytime before the redemption period expires.

Month 13: Eviction. Eviction is the final step in a foreclosure. After the redemption period has ended, if the lender wants get you out of the house, it must file for an eviction in court. This usually takes about a month to complete. People don't usually like to be evicted, so most people move out of the house on their own sometime after the redemption period ends.

No matter where you are in this process, we can help you determine your options, including litigation and bankruptcy. If you want to talk more about how to prevent foreclosure, call us at (612) 564-4025 or email us.

Building credit after bankruptcy

In an earlier post, we told you about the effect bankruptcy can have on your credit score. People who put in some effort to rebuild their credit after bankruptcy can usually make their score rise a lot faster than people who just wait for their credit to fix itself. here we give you some tips for boosting your credit score after bankruptcy.

Check-up on your credit report

After filing bankruptcy, it's important to make sure that your creditors have wiped your debts clean, or at least noted that the debt was discharged in your case. If old pre-bankruptcy debts come back to haunt you, they can drag down your score. That's why for our clients, we offer a free check-up appointment after a bankruptcy case is finished. We'll look over your credit report to make sure everything that was supposed to be wiped out was wiped out. If any accounts are still showing as active or in collection, we may use the Fair Credit Reporting Act to fix your report.

Secured credit cards

After bankruptcy, you might not be eligible to get a new credit card, or the cards you can get might not be the ones you want (watch out for sky-high rates, and predatory contract terms from the credit cards that solicit recent bankruptcy filers). Secured credit cards work like this: you give the credit card company some money for collateral (say, $500) and they give you a credit limit equal to the amount of collateral. But you use it like a credit card--your charges don't draw down the collateral--the money you deposited just stays on file in case you default on the debt. And unlike a debit card, your on-time payments will help boost your score.

You can get a secured card by comparing cards on bankrate.com. But it might be an even better idea to approach a local bank or credit union that you have a strong relationship with--they might offer low-cost products that are meant to help you without all the tricks and traps.

Eventually, get an unsecured credit card

Often, after a year or so of on-time payments, the secured credit card company will return the collateral money and convert the account into a full-fledged credit card. A few months of on-time payments may also qualify you for more credit. Gas and store credit cards will probably be easiest to get, although they don't have quite the same score-boosting effect as major bank credit cards do. But remember what got you into trouble in the first place--pay off your balances in full every month, and watch out for sleazy credit card practices that might get you back in trouble.

Stay away from credit repair scams

There are services out there that claim they can fix your credit for a fee. But these services aren't worth the hassle. First of all, some of them will commit fraud to by trying to remove negative, but true information from your credit report, which may get you into more trouble in the long run. Also, you can probably do anything they'd do for you on your own without spending the money. In particular, stay away from any service that want money upfront for fixing your credit--this is prohibited by the Credit Repair Organizations Act, a federal law that governs credit-fixing agencies.

If you've filed bankruptcy and want help rebuilding your credit, or just considering bankruptcy and want to know what the impact on your credit will be, give us a call.

Can I be sued for my spouse's debt after divorce?

People going through divorce often wonder what's going to happen to their and their ex's debt. If they haven't resolved it before the divorce, people going through divorce will need to deal with their debt after divorce. In many divorce decrees, debt can be allocated--for example, the husband agrees to take responsibility for the Capital One card, while the wife agrees pay the B of A Visa. Life is good. But here's something that people often forget to tell you. If you were jointly liable on the Capital One card before the divorce, the divorce decree doesn't get you off the hook. Even though a judge ruled that you don't have to pay Capital One, the divorce decree doesn't change your legal obligation to CapOne. If your ex stops paying his monthly payments, the credit card company can still sue you. In addition, they can come after the full amount of the debt, not just half the balance, or just the purchases you made.

This doesn't mean you can't enforce your divorce decree and go after your ex for the money, but if your ex had the money to pay the card, wouldn't he have paid it to Capital One?

If you were wondering why divorce is one of the three biggest causes of bankruptcy (the other two are medical emergency and job loss) this might be a clue. If you're dealing with debt after divorce, going through divorce, or you're being sued for an ex-spouse's debt, give us a call.

Things a debt collector won't tell you

Reader's Digest posted an article last week titled 13 Things a Debt Collector Won't Tell You. It's a fascinating peek inside the world of debt collection and it gives some insight into how debt collectors are trained. Here are some of the most revealing, along with my comments:

• Debt collectors are trained that all consumers are compulsive liars. Let's face it, collecting debt is an unpleasant job, especially if you have a conscience. It's much easier to aggressively push for payment when your training demonizes all consumers as irresponsible liars.

• Debt collectors don't care about why you can't pay because they've heard every hard-luck story there is. There's nothing to be gained from explaining to the collector why you fell behind on paying your bills. Collectors with a conscience don't last long, so chances are that the collector you're dealing with doesn't have one.

• Collectors are trained to get as much personal information as possible. Never tell a collector where you work or where you bank. If you're unable to settle the account, the collector will use this information to garnish your bank account and wages.

• The more money the collector brings in, the bigger his bonus. Most collectors are paid a very small salary, plus a commission on the money that they collect. Collectors know that their ability to make ends meet is largely contingent upon how much money they can squeeze out of you. And collectors that consistently fail to meet their monthly collection goals routinely get fired. It's no surprise, then, that this immense pressure causes collectors resort to ruthless and illegal collection tactics.

Car loans in Chapter 13

Clients often want to know what we can do to help them with their car payments in Chapter 13. Often we can make it a whole lot easier for clients to pay their car loans. Here are some of the ways we can help.

1. Pay off the car in Chapter 13. Your car loan must be paid in full during a Chapter 13 Plan, as long as the last car payment falls within the term of the Plan. So if you have 49 months remaining on your loan and your Plan is 60 months long, your Plan must pay off the full balance. If you have 61 months remaining on your car loan, you can opt to continue making your normal car payments directly throughout your case and avoid the Trustee's commission.

2. With older cars, "cram down" the loan to the value of the car. If you bought your car on credit more than 910 days (2.5 years) ago, we look to see if the value of your car is less than the amount of the loan. If your car is underwater, we can reduce the amount of the loan to match the value of the car. This is called cramdown, and it's one of the most powerful remedies you have in bankruptcy..

3. Reduce the interest rate to the Till rate. Regardless of whether you bought your car more than 2.5 years ago, we can generally reduce your interest rate on your car loan to the Till rate (named after a Supreme Court case). The Till rate is generally the prime rate, plus some risk factor. So, the prime rate as of the date of this post is 3.25 percent. Assuming we add a risk factor of one percent, the Till rate is 4.25 percent. Very few borrowers already have interest rates lower than 4.25 percent (and many have them up to the mid-to-high teens), so this is a benefit for almost everyone.

4. Surrender the car. The last option, surrendering the car and wiping out the debt, is attractive if your car is a real beater. If the car isn't worth the remaining loan balance, you can always give it up in Chapter 13 bankruptcy just like you can in a Chapter 7 case.

If you're struggling to make payments on your car loan, give us a call. There may be lots we can do to make your car payment more affordable by filing a Chapter 13 case.

Lien stripping: Removing a second mortgage in Chapter 13

One of the benefits of Chapter 13 bankruptcy over Chapter 7 is flexibility. There are just lots of ways we can help your financial situation in a Chapter 13 that we just don't have the power to do in Chapter 7. One of the big ones is lien stripping--wiping out an underwater second mortgage.

1. What is lien stripping? Lien stripping is a way of removing an underwater second mortgage on a house in Chapter 13. If the house has two mortgages, and the second mortgage is fully unsecured, it may be removed. Here's an example:

- The house is worth $250,000

- The first mortgage balance is $251,000

- The second mortgage balance is $50,000

We can strip the second mortgage because it is completely unsecured.

2. How do I know my second mortgage is fully unsecured? You will most likely need to order an appraisal of your house. But the first step is to look at your property tax appraised value. During the housing boom, tax values used to be lower than the true value of the house. But now that housing prices are depressed, property tax appraisals are routinely higher than the appraised value of the house. If you have questions, we're happy to give you a referral to a licensed real estate appraiser.

3. If I can lien strip, what happens to my second mortgage? Instead of classifying the second mortgage as secured debt, which would need to be paid in full over the life of a Chapter 13 plan, a stripped second mortgage is classified as unsecured debt, meaning that it merely needs to be paid prorated with your other unsecured debt. In most Chapter 13 plans, this money comes out of the same pot that will already be allocated to your other unsecureds, such as credit cards and medical bills, so the second mortgage won't cost you any extra money over the plan. At the end of your plan, if you've made all your payments, the court issues an order that removes the second mortgage lien from your house, and you only have one mortgage to deal with.

4. Does Minnesota law allow lien stripping? Minnesota was the only state that did not allow lien stripping until August 29, 2011. The 8th Circuit Bankruptcy Appellate Panel, an appeals court that oversees Minnesota bankruptcy cases, issued its decision in Fisette v. Keller, allowing lien stripping in Chapter 13 cases filed in Minnesota. Since Fisette, we've stripped plenty of second mortgages. An experienced bankruptcy lawyer can advise you whether your second mortgage can be stripped.

If you want to know more about lien stripping, give us a call.

Can I discharge student loan debt in bankruptcy?

This post describes how to deal with student loan debt in bankruptcy.

One of the only types of debt that can't be discharged in a bankruptcy is a student loan, and even then, there are exceptions. But student loan debt in bankruptcy can be discharged in relatively rare situations of "undue hardship"--where the debtor cannot pay back the student loan and probably won't be able to pay it anytime in the future. Under Minnesota (8th Circuit) caselaw, courts consider: (1) The filer's past, present and future reasonably reliable financial resources; (2) a calculation of the reasonable living expenses of the debtor and his/her dependents; and (3) any other relevant facts surrounding the bankruptcy case.

1. How to discharge student loan debt in bankruptcy. To attempt to discharge student loans in bankruptcy, the debtor can file an adversary proceeding, which is a lawsuit-within-a-bankruptcy, against the student loan company. Starting an adversary proceeding is no biggie--there's no court filing fee, and you just file a summons and complaint and send it to the creditor. After that it's pretty much like any other lawsuit.

2. Undue hardship is based on your ability to earn money to pay off your loans.

• - Determining undue hardship has a lot to do with your past and present earning power. The court will look at your job qualifications and earning history. If you have had a long history of low earnings, that might play in favor of discharge.

• - Your ability to earn money in the future is even more important. The court may consider your future job prospects, especially as compared to the size of your loan. If there's no foreseeable way to make a dent in the loan, this will play in favor of discharge.

• - Age may also be a factor. While a fresh-faced 22-year old has an entire life of indentured servitude ahead of him to pay his loans, a 65-year old may be considering retirement and won't have the same long-term earning potential.

• - Disability also plays into the determination. Debtors with disabilities may have less earning potential in some cases. This is evaluated along a spectrum--a permanent and total disability that renders someone completely unable to work may be an easier discharge case, while a partial disability that reduces earning power will probably not be the basis for dischargeability on its own.

3. If there's no money in your budget, there's no money to pay off student loans. The court will look at your monthly income and reasonably monthly expenses, and determine if there's any room for repayment of student loans. If your monthly budget is in the red, this will play in your favor.

The court may also look at your eligibility for various loan repayment programs, such as Income Based Repayment (both for federal loans only). If you can afford to make a reduced payment, that might be a factor against discharge. But even if you can afford a reduced payment, it's not a discharge dealbreaker where the loan will continue to accumulate interest and grow even though you're making payments.

If you're struggling with student loan payments and you think some of the above criteria may apply to you, give us a call.

What are the Minnesota bankruptcy exemptions?

In this post we list the Minnesota bankruptcy exemptions. Post updated January 2018.

In an earlier post we told you about what items were exempt in a Chapter 7 bankruptcy (meaning you get to keep them).  Items that are not exempt may be taken by the trustee to pay your creditors. Although the great majority of Chapter 7 cases are no-asset, meaning that the debtor loses no property, people are often concerned about whether their property is exempt. In Minnesota, you can choose either the Minnesota bankruptcy exemptions or the federal exemptions, depending on which are more advantageous to you. In this post, we compare the two sets of exemptions for some of the most common property items:

Item

Federal exemption

Minnesota exemption

Your home

$23,675

$390,000

Wildcard (any property)

$11,850–$13,100

None

Household goods and clothes

$12,625

$10,350

Jewelry

$1,600

$2,695 (only wedding rings)

Motor vehicle

$3,775

$4,600

Tools of the trade

$2,375

$11,500

Life insurance policy with loan value

$12,625

$9,200

IRA or Roth

$1,283,025

$1,171,150

Personal injury compensation payments

$23,675 (with exceptions)

Unlimited

Social security benefits

Unlimited

Unlimited

Child support

Unlimited

Unlimited

*Some exemptions can be doubled in a joint case, some cannot.

By the way, the exemptions change every so often, so these may not always stay the same. The Minnesota bankruptcy exemptions are complicated, and don't always apply exactly how they would appear to. Consult a bankruptcy attorney to find out whether a particular item of yours would be exempt in a Chapter 7 case.

Five reasons to sue a debt collector who violates the FDCPA

• Up to $1,000 in statutory damages. If you successfully sue a debt collector, the court will award you up to $1,000 in statutory damages. These damages are provided by law as a penalty against a debt collector that violated the FDCPA and you don't have to prove that you suffered any actual harm to be awarded statutory damages. Although there are rare cases where a court awards a consumer less than $1,000, in most cases the consumer is awarded the full $1,000.

• Provable actual damages. If a debt collector's abuse has caused you to cry or lose sleep or if the collector's harassment has affected your relationship with your loved ones or your performance at work, you may be able to recover actual damages. Not every consumer will suffer actual damages due to a collector's conduct, but if you can successfully prove that you've suffered tangible harm, you're entitled to compensation for that suffering.

• A free attorney. Probably the most important remedy under the FDCPA is the fee-shifting provision. This means that if you win your case, the collector has to pay your attorney fees. Because of this, most consumer attorneys will sue a debt collector on a full contingency fee, which means that you don't have to give your lawyer any money up front. Your attorney gets paid by the debt collector or gets a percentage of any out-of-court settlement.

• Your litigation costs are covered. Litigation can be expensive. The costs for filing fees, service fees, deposition transcripts, etc. can quickly add up. But if you win your FDCPA case, the debt collector has to pay all of your court costs.

• Hold the debt collector accountable. When the FDCPA was enacted, Congress gave each individual consumer the right to sue a debt collector for violating the Act. The idea was that consumers and their attorneys would act as "private attorney generals" by holding debt collectors that violate the FDCPA accountable for their conduct through private lawsuits. Debt collectors love to lecture consumers about taking "personal responsibility" for paying their bills. An FDCPA lawsuit is a chance to turn this argument right back around at the debt collector and force them to take responsibility for their illegal debt collection tactics.

How much will my Chapter 13 payments be?

For people behind on their mortgage payments and looking to keep their home, or people who make too much money to file Chapter 7, Chapter 13 can be a good solution. As we described in an earlier post, Chapter 13 involves paying your disposable income to creditors over a three or five-year period. Whatever isn't paid during that period is discharged (wiped out). But to figure out whether this makes sense, the question for many clients is: how much disposable income do I have to pay in my Chapter 13 payments? Here are a few guidelines.

1. Your payment plan is based on your projected disposable income. To figure out your Chapter 13 payment, first we figure out your projected income. Your income over the past six months can a starting point for this calculation, but if you've recently taken a pay cut, or you know you won't be receiving the same amount of overtime, we need to bump your income downward.

2. Next, we subtract all reasonable and necessary expenses. To get from just-plain-income to disposable income, we need to subtract your expenses. Here we look at all the expenses that are necessary to take care of your family's needs, such as food, rent/mortgage, car payment, utilities, etc. We also look at things that you know you will be spending , such as car repairs, home maintenance or dental work. Then we look at things you should be spending on, but haven't because you've been in financial trouble. This can include health insurance and other medical expenses, 401(k), life insurance, etc. If there's something that's not on our list of ordinary expenses, that doesn't mean we can't deduct it, as long as it's reasonable and necessary. Once we count all these expenses, we subtract them from income and we get an idea of your disposable income.

3. Our job is to fight for your way of life. The Trustee evaluates the reasonableness of your expenses, trying to cut them down so that there's extra money for you to pay to your creditors. Our job is to protect the money that is necessary for you to take care of yourself and your family. So we ask for two things: 1) verification of your expenses, so we can prove that you actually need to spend that money; and 2) information on why your expenses are reasonable and necessary. For example, one client had an $800 monthly bill for auto fuel. This seems exorbitant, until we realized that the client drives a gas guzzler and lives 60 miles from where he works. If we can explain to the court why an expense is reasonable, there is a better chance it will be allowed.

4. The plan must pay off certain required debts. Your Chapter 13 payments must be large enough to make certain required payments. For example, if you are trying to get current on a mortgage, your total plan payments must cover the amount of your mortgage arrears. Plan payments also must cover any secured debt (car loans) that end within the plan period. Also, plan payment must cover any priority debt, such as some tax debt or government penalties within the plan period. If the total plan payments are enough to pay all of these required debts over the plan period, your plan can survive.

 5. The plan must be in the "best interests" of your unsecured creditors. If you have unexempt property that you are looking to protect in a Chapter 13, your Chapter 13 payments must be at least the value of your nonexempt property. In other words, in Chapter 13 your unsecured creditors can't receive any less in the plan than they would have received in Chapter 7 if your nonexempt property was liquidated.

These rules can be tricky, and Chapter 13 almost definitely cannot be done without the assistance of an experienced bankruptcy lawyer. Give us a call if you want to run a scenario by us.

A simple test for figuring out whether a debt collector violated the FDCPA

The easiest way, perhaps, to figure out whether a debt collector has run afoul of the FDCPA is to think about the Act broadly. Without getting into specifics, the FDPCA prohibits debt collectors from doing anything that is (1) unfair; (2) untrue; or (3) harassing or abusive. Obviously, the Act lists a number of specific debt collection tactics that fall into these three categories. But the FDCPA also makes it very clear that any debt collection conduct--whether specifically listed in the Act or not--that is unfair, untrue, or harassing and abusive is a FDCPA violation.

So rather than poring over the text of the FDCPA or reading dozens of articles on the internet, just ask yourself this question: did the collector do something that was unfair; untrue; or harassing or abusive? If your answer to this simple question is yes, there's a good chance that the debt collector violated the FDCPA and your next move should be to contact a consumer rights lawyer.

Can I keep some debts out of my bankruptcy?

Bankruptcy clients often wonder whether they can leave off certain debts on their bankruptcy filing. The short answer is "no." The long answer? Also "no." This usually comes up where you have a #1 favorite credit card (triple bonus miles!) or a debt you owe to a friend or family member that you don't want to wipe out. But the rules for unsecured nonpriority debts (credit cards, personal loans, etc.) don't allow you to keep any debts out of your bankruptcy case, and leaving them out on purpose can ruin your case. So here are a couple of things you might need to know:

1. If you owe a balance, we have to list it. You can leave a credit card out of your bankruptcy only if there's no debt owed on the card. If you owe even a dollar-fifty, we have to list in your papers. But chances are, whether there's a balance on the credit card or not, the card issuer will close your account--many credit card companies check your credit report regularly and they'll know if you've filed even if they weren't listed in your bankruptcy.

But this doesn't mean you should rush to pay off debts on credit cards so you can keep them. Payments made to a creditor in the 90 days before filing are called preferences, and they can be recovered by the trustee and distributed to other creditors. So any money you might pay to a creditor right before filing might end up costing them when they have to defend a preference lawsuit by the trustee. The lesson? You should probably just hold onto your money.

2. Friends and family you owe money to will have to be listed. When we ask a client to list their creditors, people often forget to list friends and family that they've borrowed money from. Or sometimes, they don't want these people to know that they're filing bankruptcy and they leave them off. This is a bad move. If you intentionally leave off a creditor from your filing, you may be denied discharge for withholding information from the bankruptcy court. Also, that stuff I mentioned about preferences a minute ago? Repayments to friends and family may be preferences (meaning the trustee can sue that creditor) if made a full year before filing.

Instead of letting you jeopardize your case, we'll give you pointers on how to have that tough conversation with your mother-in-law where you tell her you're wiping out your debt to her. (Tip 24: Leave the car running for a quick getaway)

3. You can pay back any debt you want after bankruptcy. Your bankruptcy case will wipe out your legal obligation to pay most debts. This means that once your case is filed, the creditor can't take action against you (not even a "pretty please") to collect the debt. However, if you want to pay a debt after your bankruptcy, nobody's going to stop you. It's none of the Bankruptcy Court's business if it's done after your case has ended.

The moral of the story? No secrets allowed if you want to make it through bankruptcy without any problems. Tell your attorney about any of the pitfalls that might be getting in your way and you should sail through bankruptcy smoothly. If you have any questions, just let us know.

Domestic partnership and bankruptcy: An update

UPDATE: As of August 1, 2013, same-sex couples can now file bankruptcy together in Minnesota. In an earlier post, we explained that in Minnesota, same-sex domestic partners cannot file a joint case in bankruptcy, even if they were married in another state. This is still true.

However, in states where same-sex marriage is legal, the pendulum may start to swing the other way. In the Central District of California, 20 of the 24 bankruptcy judges signed onto an opinion ruling that the Defense of Marriage Act is unconstitutional insofar as it prevents same-sex legally-married couples from filing joint bankruptcy petitions.

This is not likely to have an immediate effect outside the Central District of California (Los Angeles and the surrounding area) but if other courts follow suit, it may eventually mean that same-sex couples who were married in a state that recognizes same-sex marriage may file joint petitions in any state.

While this is good news in terms of equal protection, it may be both a blessing and a curse under bankruptcy law. There are advantages to filing jointly, such as the fact that you only have to pay one filing fee to the court. The downside? Under current bankruptcy law, same-sex partners are treated like roommates, so the filing partner does not have to include their non-filing spouse's income on the means test. If partners were treated the same as married couples, then we would need to count the non-filing partner's income on the means test, then subtract amounts that don't go to support the household. It may seem nuanced, but it's kind of a big deal.

Even though the law hasn't changed here in Minnesota, we still stand by our principles. We offer clients in domestic partnerships the same discounted price that we would offer a married couple filing bankruptcy, even though we have to file two separate cases.

Dealing with payday loan collectors

Many of us, if we're lucky, have been living paycheck to paycheck. Sometimes the paychecks don't come soon enough and we're forced to swim with the sharks of the payday loan industry. These loans are terrible for myriad reasons. For instance, the interest rates on these loans can be as high as 900%. No, that is not a typo. NINE HUNDRED PERCENT!!! This extreme interest can make it nearly impossible for struggling people to ever break free from the clutches of a payday lender. The main issue I wanted to touch on today is what can happen in the months and years after you've paid off a payday lender. We're getting a lot of calls lately from people who've received harassing phone calls. The callers claim that the individual owes a debt to a payday lender, though they rarely identify who the lender is. They then proceed to threaten that criminal charges are pending and the only way to avoid jail is to pay up immediately. Or they say they will send someone to the debtor's residence to seize money or goods. Definitely a menacing prospect.

We think most of these calls are flat-out scams. The payday lenders have either sold their customer information to shady third parties or their data has been hacked. The callers often have a lot of information about the individuals, including their addresses and social security numbers. They often use this information to convince people of their legitimacy. They also prey on the fact that people who've used payday lenders in the past know from experience that these debts are difficult to pay off in full and that even a $1 balance can skyrocket quickly.

Whatever you do, don't agree to pay these collectors over the telephone. Do not give them any personal information about yourself or any of your financial accounts. Demand that they tell you the name of the payday lender you allegedly borrowed this debt from and that they put their demand in writing and mail it to you. Also, take notes on the call. Write down the number they've called from and the name the caller gave you (99 times out of 100, this will not be his/her real name). Note whether or not they spoke the phrase, "This call is from a debt collector and is an attempt to collect a debt," and make sure to write down any specific threats the caller made.

As soon as you are off the phone, we recommend contacting a consumer attorney or the state Attorney General's office. If the call is a scam, either should be able to tell you that and advise you on next steps.

Stop foreclosure with Chapter 13

Often people come to see us after they've done everything they can to stop foreclosure. Many try to get loan modifications from their lenders, but after lots of runaround, most are denied. For some strange reason, the lender just won't allow the borrower to get out of default and get back to making payments. With a foreclosure sale (often called a sheriff's sale) on the horizon, many people are looking for a way to stop foreclosure and force their lender to accept payments. Chapter 13 reorganization can be a fix in this situation. Here are some of the advantages:

1. The automatic stay will stop foreclosure. The automatic stay protects you from creditors and prevents foreclosure from taking place, even if the bankruptcy case is filed just minutes before the sheriff's sale. If the clock is ticking on your foreclosure sale and you're out of options to stop foreclosure, filing bankruptcy may give you the time you need.

2. You can force a lender to accept overdue payments over time. Chapter 13 involves repaying a portion of your debt over time to stop foreclosure. In a Chapter 13 case, you pay your mortgage arrears back over the life of the plan. To figure out if this is feasible, we do some simple math. We take the overdue amount on the loan (arrears), and divide it over the length of your Chapter 13 plan (three to five years). Let's say your mortgage payment is $1000/mo and you are overdue $10,000 on your mortgage. In a five-year Chapter 13 plan, we would divide the $1,000 arrears by 60 ($166.67). If you can pay your regular mortgage payment plus an extra $166.67 per month (for a total of $1166.67/mo), the lender will have to accept your repayment plan.

3. In some cases, we can "strip" your second mortgage. We can "strip" a second mortgage that is fully underwater. Here's how lien stripping works--if you have two mortgages, and the balance of your first mortgage is more than the current value of your house, then your second mortgage is "unsecured" because there's no equity in the home to back it up. When that's the case, the lien can be removed and the value of the second mortgage is paid pro rata with the rest of your unsecured creditors (medical bills, credit cards, etc.) Because you only pay the unsecured debt you can afford in a Chapter 13, and the remaining debt is wiped out after the plan has ended, this can save you truckloads of money.

Lien stripping be a huge benefit to borrowers over-stressed by two mortgages. If you're facing a sheriff sale and feel like you're out of options to stop foreclosure, give us a call.

Can a debt collector leave messages on my voicemail?

The Fair Debt Collection Practices Act (FDCPA) makes it illegal for a debt collector to communicate with any person other than you or your attorney about your debt. When a debt collector leaves a message on your answering machine (does anyone have these anymore?) or voicemail, it runs the risk that other people will overhear that a debt collector is contacting you. Embarrassing, right? According to FDCPA case law here in Minnesota, if a debt collector leaves a voicemail and mentions that you owe a debt, it may be breaking the law if a third party overhears it. If so, you may be entitled to $1,000 statutory damages plus any actual damages you incurred (such as emotional distress damages for invading of your privacy). The best part? You get your attorney's fees from the debt collector.

Proving your expenses in bankruptcy - sending money to family abroad

Family is important to everyone. We work with a lot of people who moved to the United States specifically because it provided them the opportunity to earn a better living, which in turn allowed them to support family in their native country. Unfortunately, this does not make them immune from the same issues that often cause people to consider bankruptcy (divorce, major medical expense, and job loss). When we file bankruptcy for a client, one of the things we need to demonstrate to the Court is that the expenses our client claims are accurate. This can be tricky when one of their major expenses is sending money back to their home country to support family members (or buying phone cards to call them). People often use wire transfer services such as Western Union to send money to places in Latin America, Eastern Europe, and Africa. Our clients often send their families some amount of money each time they get paid. The wire transfer companies provide a paper receipt, but generally don't keep records by customer (at least that they've seemed willing to release to the customer). When it comes to international phone cards, the buyer doesn't often get a receipt at all.

We know it's easy to toss or misplace receipts, particularly when they aren't for goods you are likely to return. That said, good record keeping is really important, especially if you need to file bankruptcy. We suggest picking up an accordion folder or other organizer and making a habit of placing receipts for all regular expenses in it. We also advise keeping all used phone cards rubber-banded together, separated by month of use, if possible. We can't guarantee that all your expenses will be justifiable to the Court, but having documentation will help us make the best case possible.

If you're in the Minneapolis area and have questions about bankruptcy or any other financial challenge you're facing, please call us anytime. We provide free consultations.

Can a second mortgage company sue after foreclosure?

In the wild heyday of mortgage lending, many people were offered two mortgages when buying a house. The first mortgage was a traditional mortgage for 80 percent of the value of the home. But for borrowers who wanted to buy without a down payment, lenders also offered a second mortgage to cover the down payment and help the borrower avoid having to pay private mortgage insurance (PMI). These were called piggyback loans. Man, did this backfire. When housing prices started to take a dive, the traditional 20 percent of equity borrowers used to have as security in their house wasn't there, since it had been leveraged by the second mortgage. Without this cushion, when a borrower needs to sell his house or can't make the monthly payment, the selling price won't cover the mortgages and so the borrower can't pay them off.

In most Minnesota foreclosures, the first mortgage company can only collect whatever it can get from the sale of the house. If the selling price doesn't cover the mortgage and there's still debt owed, it's wiped out by the foreclosure. It's a different story for second mortgages. Under Minnesota law, a second mortgage company can collect a deficiency (the amount owed beyond the balance that's paid off by the foreclosure.) This means many people after foreclosure are still being chased by second mortgage companies for balances somewhere in the tens to hundreds of thousands.

So what do people do when they are in danger of being sued for a deficiency judgment? Here are some ideas:

1. Do short sales work? Sometimes. A short sale is where the lender agrees to sign off on the sale of a house and take a reduced amount on their loan so that they don't have to go through the foreclosure process. We've heard of some short sales where the second mortgage lender accepts some modest amount of cash and agrees not to pursue the borrower for any remaining debt. But these are becoming more infrequent. In other cases, second mortgage lenders are taking the cash and signing off on the sale, but reserving the right to go after the borrower for the difference. Short sales can be risky, and there are lots of sharks in the real estate industry, so we recommend doing this only if you have an attorney you trust looking over the deal.

2. Can I negotiate with the second mortgage lender after the foreclosure? Sure. Considering the huge amount of money some mortgage lenders are collecting on a deficiency, many times they know they don't have a prayer of collecting their money. That's why they might be willing to take a fraction of the amount owed just to get something from you. When mortgage companies are willing to settle, we've seen the best deals when borrowers are willing to pay a settlement in one lump sum rather than lots of smaller payments.

3. Can bankruptcy wipe out a second mortgage? Definitely. Many clients come to us facing tens of thousands of dollars in deficiency judgments, and we're able to discharge these debts in bankruptcy. This is one of the biggest reasons our clients file bankruptcy. A defaulted second mortgage is treated as unsecured, nonpriority debt in bankruptcy, which is pretty much the same as credit card debt. This means we don't generally have any trouble making it go away.

Whether you're facing foreclosure and want to figure out your best option, or if you have already been through foreclosure and you're worried that your second mortgage is going to rise from the dead and come back to haunt you, call us at (612) 564-4025 or email for a free consultation.

The automatic stay in bankruptcy

One of the biggest benefits of bankruptcy is that your filing will stop any debt collection against you. This means no more angry phone calls from debt collectors, no more threatening letters, and any lawsuits against you must stop (including pending foreclosure sales). Under the bankruptcy law, this is called the "automatic stay." There are only a few things you need to know about the automatic stay:

1. The automatic stay begins the moment we file your case. This means that a foreclosure sale at 10:00 doesn't count if you filed your case at 9:59. It also means that a creditor who calls you minutes after your case has been filed has to stop, even if they haven't received notice of your filing yet.

2.  The stay is in effect until the end of your case, unless a creditor has a good reason. In a Chapter 7 bankruptcy, the stay often lasts until your case is closed. In a Chapter 13 bankruptcy, your case may last for three to five years. The automatic stay remains in effect the entire time.

A creditor may make a motion with the court to lift the stay. This usually happens with a secured debt you're not paying--the creditor can ask to have the stay lifted in order to foreclose on a mortgage in default, for example. If a creditor does try to lift your stay, your attorney can advise you on whether it's a good idea to fight the motion and prevent that creditor from being able to collect until the end of your case.

Even though the stay does expire at the end of a Chapter 7 case, that's usually not a problem for the debtor, since the stay is replaced by the discharge injunction. The discharge injunction is similar to the stay--once a debt is discharged in bankruptcy, a creditor can't try to collect it ever again.

3. The automatic stay protects you from all creditors, even ones who will still be able to collect when your bankruptcy is finished. If you have tax debts that are nondischargeable, or unpaid student loans, the automatic stay gives you three to four months of breathing room while you figure out your finances. Even if you're going to owe the debt once the bankruptcy is finished, they can't bother you while the stay is in place.

4. You may be able to recover money damages for stay violations. The Bankruptcy Code is dead serious about protecting debtors from being bothered by creditors after a case has been filed. If you are damaged by any "willful" violation of the automatic stay, you may recover actual damages, including costs and attorney's fees, and, sometimes even punitive damages.

In general, if you're getting collection calls in bankruptcy, we may give them one free pass--we remind the creditor that you filed a case and warn them not to contact you again. If they're brave enough (read: stupid enough) to continue giving you hassle, we can sue them for damages. Any damages that you win are not considered part of the bankruptcy estate and don't need to be turned over to the trustee, meaning they're your down payment toward your fresh start.

If the agency calling you is a third-party debt collector, they may have also violated the Fair Debt Collection Practices Act (FDCPA), which can result in awards of up to $1,000 statutory damages, actual damages and attorneys fees.

If you've filed bankruptcy, notify your attorney any time a creditor contacts you, and be sure to keep a record of what calls you've received and from whom.  If you've been harassed by a creditor after your bankruptcy has been filed, get in touch to discuss your options.