Posts

What (at a minimum) should you expect from your attorney?

What follows is my opinion on what you should expect from your attorney. They are the minimum standards of conduct necessary in order to build trust between an attorney and his client. My view is that you have a right, not just to ask for, but to demand the following:

Attorney John Menszer

Attorney John Menszer

 

His or her attention.

An attorney must listen to you in order to evaluate the facts of your case. He (or she) should pay attention to the details of your story. He should ask you questions in order to get you to focus on the critical facts of your case. He should be able to summarize what you said and feed you back what he heard. On the other hand, in many cases a story contains both legally relevant and legally irrelevant information. You may not be aware of the difference. Don’t be put off if at some point in order to save time your attorney wants to skip over the legally irrelevant parts of your story.

A prompt response to communications.

My thought here is that attorneys should return phone calls the same day, preferably within 3 hours, and emails by the next day at the latest. The premise is what is reasonable. If the attorney is in trial, he may not be able to meet this goal. But, you should feel that your attorney is accessible to your need to communicate with him.

Realism.

Your attorney, like your doctor, should tell you the truth. He should not over-promise, but be realistic about your chances. If you give your case to an attorney who promises the moon, he will likely break that promise. You are hiring an attorney for his knowledge and his judgment. He should tell you what he knows and it is often appropriate that he share with you what he doesn’t know. (But it is OK if he says he has to do legal research in order to find the answer.)

An explanation.

An attorney should be able explain his view of your case up to your ability to absorb the information. Not everyone wants to know the how and why, but for those who do he should be available to explain the issues in your case.

Timeliness.

Your case should progress in a timely manner. Frequently, unforseen complications arise that require an adjustment of the expected time frame. Nevertheless, you should be assured that your case is getting a fair share of your attorney’s attention.
Your best interest in mind.

They say that to a hammer every problem looks like a nail. I’m not sure what that means, exactly. But as a client I want my attorney to have my best interest in mind. It is possible in the legal arena to throw up a lot of sparks that give very little heat. Not e very case benefits by taking extreme measures. Compromise is sometimes better than a win, especially if it comes at a lower cost and in time. The services an attorney delivers should be appropriate to the case and the needs of the client, not just to the size of the client’s pocketbook.

Abuses by Debt Collectors May Result in Adoption of New Rules by the Feds

Debt collectors have attempted to intimidate consumers into paying debts that are prescribed or not owed at all in cases of mistaken identity.

This Way Inside

This Way

If new rules are adopted debt companies would have to more fully document their accounts. Also proposed are requirements that would prevent a collector from contacting a debtor more than 6 times a week. And if a debtor dies the collector would have to wait a month before contacting the survivors.

The Consumer Financial Protection Bureau (CFPB) will begin a lengthy adoption process which may or may not end with the implementation of the rules. It promises to be a very politicized path to adoption. But there is some cause for optimism. Debt collection is the most frequent complaint the CFPB deals with. And the bureau began working with consumer groups and industry leaders three years ago to formulate acceptable compromises regarding these problems.

In Louisiana, an open account, like a credit card debt or a credit at a store, prescribes three years from the date of last activity in the account. LA R.S. Art. 3494 (4). Despite this many creditors pay no attention and attempt to collect on older accounts that are past their prescription date. Consumers are often not aware that they may have a legal defense to collection of a debt.

Another issue arises when a creditor has sued the consumer and obtained a legal judgment to enforce payment a debt. In Louisiana, a money judgment prescribes 10 from its date of signing. LA CC Art. 3501. Obviously, a much longer period than for an open account. Most of these judgments are obtained by default, which is when the consumer doesn’t make an appearance in court to defend the suit. Problems arise when the consumer has not been properly served notice and citation of the lawsuit before the judgment is taken. This even has a name “sewer service”.

Another problem arises when the creditor has insufficient proof of the debt. Consumer debt is often sold and resold at deep discounts to debt collectors. This exacerbates the problem of proof as vital documents are lost or so called robo-affidavits are filed without personal knowledge.

Consumers have been ill served by debt collectors where their lack of knowledge and vulnerability have made them easy prey to unscrupulous or careless operators.

The Dreaded Means Test in Chapter 7 Bankruptcy

The Means Test is the fierce hurdle Chapter 7 bankruptcy filers have to clear to avoid having the Court dismiss or convert their cases. Sound important? It is.When Congress reformed the bankruptcy law it felt that too many people were filing Chapter 7 liquidations, who could otherwise repay their creditors. To understand the complex rules of the Means Test it helps if you keep the lawmaker’s objective in the back of your mind.

JohnMenszer-0732What is income? Income is the current monthly income of the debtor as based historically on the last six months before filing. It includes all sources of income with the exception of social security benefits and tax refunds. It includes gross wages, pensions, sole proprietor income, dividends, unemployment benefits, payments made on behalf of the debtor by others and child support actually received.

If the Debtor’s income is below the median household income for his state and the size of his family, then there is no need to fill out the rest of the Means Test. You can stop there. The presumption of abuse does not apply. It is OK to file a Chapter 7.

What are expenses? While the income calculation is based on the personal circumstances of the debtor, the expense calculation begins with figures published by the IRS, which are national standards. The IRS has determined allowances for food, clothing, housing expenses, transportation and medical expenses based on family size for different areas of the country. These national standards are adjusted for remaining debt payments on houses and vehicles, payroll taxes, education expenses for minors (but only within strict limits), court ordered support payments, mandatory retirement payments, necessary and provable healthcare payments that exceed the national standards and past-due priority claims, like taxes and child support.

What is the amount proportional to the debtor’s total unsecured debt? In determining abuse Congress looked to how much a debtor could repay every month and also to what percentage of his total unsecured debt he could repay in the maximum of 60 months of a Chapter 13 bankruptcy. Then Congress indexed these figures for inflation.*

As of the writing of this blog*, if a debtor’s Means Tested income minus expenses is less than $130.37 per month, there is no abuse and the debtor can go on and file a Chapter 7. If a debtor’s Means Tested income minus expenses is greater than $207.92 per month, there is always a presumption of abuse and the debtor should consider filing a Chapter 13 or not at all, unless there are special circumstances like the Debtor took a lower paying job during the 6 months prior to filing. If the debtor’s Means Tested income minus expenses falls between these figures, then it is necessary to look to the total of the unsecured debts. If the Means Tested net income shows the debtor can repay more than 25% of these debts in 60 months then abuse will be presumed and the debtor had better consider filing a Chapter 13 or not at all. If the ratio of monthly net income times 60 months to unsecured debts is 25% or less of the debts, then Congress deemed this to be a negligible amount and it is OK to file a Chapter 7.

The Means Test is dreaded not only because it prevents certain people from filing a Chapter 7 bankruptcy, but because it is such a darned hard test to take.

Are my income taxes dischargeable in a bankruptcy?

Income tax issues in bankruptcy are a can of worms.  In only limited cases are taxes or tax penalties dischargeable in bankruptcy.  The primary issue is timing and a separate analysis must be done for eachCanWorms- year’s taxes, interest and penalties.

In bankruptcy each tax debt or claim will fall into one or more of the following categories:

1)  Allowed secured claims include taxes, interest and penalties for which the IRS has filed a lien.  To the extent that the lien is not under-secured, they are probably not dischargeable.  However, in a Chapter 7 the penalties for late payment may be.

2)  Unsecured priority claims are usually paid in full in a Chapter 13, including interest but not penalties.  But the interest does not continue to accrue once the Chapter 13 is filed.  They are not dischargeable in a Chapter 7.

3)  Unsecured claims that are dischargeable in a Chapter 13 or a Chapter 7.  To qualify the tax return must have been filed on time, or in some cases if late must have been filed more than 2 years before filing bankruptcy.  It must have been more than 3 years since the tax return was due before filing the bankruptcy.  Also, the IRS must have notified the debtor of the taxes due (the assessment date) more than 240 days before filing.

Taxes are never dischageable if a return has not been filed, if a fraudulent return was filed or if the debtor willfully attempted to evade paying the tax.

The analysis of each year’s taxes begins with requesting a transcript from the IRS.  The debtor should file a Form 4506-T  Request for Transcript with the IRS (available on their website http://www.irs.gov/Forms-&-Pubs) for each year that may be dischargeable.  The transcript will show if the return was filed on time, or if it was late when it was filed, if the return was due within 3 years of filing bankruptcy and if the taxes were assessed within 240 days of filing bankruptcy.  Short take is that the tax return has to have been filed and the taxes have to be old.  Tax debts are the most frequently nondischargeable debts in bankruptcy.

Why do Chapter 13 bankruptcies fail?

JohnMenszer-9365A successful Chapter 13 bankruptcy concludes with the completion of the payments and the discharge of the debts. Less than half of Chapter 13’s end this way. Why?

The most common reason for failure is that the debtor falls behind on his or her payments to the trustee. As a rule of thumb, after there have been three missed payments the Chapter 13 trustee will set a hearing date on a Motion to Dismiss for non-payment.

The best insurance against missing payments is having them made automatically. Your attorney can set up a wage order for you. With a wage order your payments are taken out of your paychecks. If you get paid bi-monthly, half will be taken out of each check. A newer option is to have the funds deducted from your bank account, then verified by a company who charges a small fee to send the payments to the trustee.

Having a Motion to Dismiss filed against you isin’t the end of the world. You will still have a chance to catch up by the hearing date. Or, if you can only partially pay up your attorney may be able to ask for a continuance. Sometimes debtors, for sickness or other reasons, fall so far behind on their payments that their best option is to let the bankruptcy be dismissed and have their attorney re-file another Chapter 13.

Another reason for cases to fail concerns outside payments. Outside payments are made directly to a secured creditor, like on a house or a car. They are for installments that mature after the date of the filing of the bankruptcy. If you fail to make these installments, even just one month, the creditor on your house or car may set a hearing date on a Motion for Relief of Stay. If you can’t catch up by the hearing date, again your attorney may be able to work something out.

The moral of this is that if you can see that your bankruptcy is running into trouble call your attorney right away, in advance, before a Motion is filed against you.