by Carol Lawson Esq | Jun 2, 2019 | Bankruptcy, Consumer Credit
Above means income debtors are required to use Form B-22C (Chapter 13 Calculation of Your Disposable Income which is part of a 2 part test) which effective December 1, 2015, will be Form B122C-2. Unlike trustee fees, there is no deduction for attorney fees being paid in the plan on the form. §1325(b)(1)(B) provides that a Chapter 13 plan should “provide that all of the debtor’s projected disposable income … will be applied to make payments to unsecured creditors under the plan.” 11 U.S.C. § 1325(b)(1)(B).
Section 1325(b)(1)(B) of the Bankruptcy Code provides in pertinent part that, if a trustee or an unsecured creditor objects to confirmation of a debtor’s Chapter 13 plan, the plan can be confirmed by the court only if it provides to pay the creditors in full or proposes that “all of the debtor’s projected disposable income … will be applied to make payments to unsecured creditors under the plan.” 11 U.S.C. § 1325(b)(1)(B). Section 1325(b)(2) then defines “disposable income” as current monthly income received by the debtor less amounts “reasonably necessary to be expended.” See 11 U.S.C. § 1325(b)(1)(B).
Trustees across the country have been using this provision to object to Chapter 13 Plan fees for Debtor’s attorneys through the plan. In re Hemker, No. 15-90023, 2015 WL 5262080 (Bankr. C.D. Ill. Sept. 8, 2015), the trustee argued that the amount shown from the B22C form must only go to general unsecured creditors, excluding any attorneys fees to be paid in the plan. Further, Debtors’ attorney fees are excluded from the calculation under 11 U.S.C. § 707(b)(2)(A)(ii)(III), and thus the Debtors should not be allowed to use their disposable income to pay their attorney fees. The Trustee based this argument on Ransom. The Court rejected this argument as making an unfair treatment between a below income debtor, who was allowed to pay attorney fees through the plan and an above income debtor who could not. A debtor’s attorney who has not taken a security interest in the debtor’s property is an unsecured creditor who may be paid from disposable income.
Apparently, this case is part of a nationwide trend to make bankruptcy filings more difficult for the Debtor and their counsel. On October 6, 2015, the American Bar Institute held a Webinar “BAPCPA at 10”. Attorney Caralyce M. Lassner of Acclaim Legal Services PLLC, Warren, Mich., one of the panelists, said in practice BAPCPA has been like using a backhoe to fix a crack in your sidewalk. Lassner stated how impossible it is to confirm a chapter 13 Plan without major concessions from the debtors or creditors. She also cited two cases in the Eastern District of Michigan which attacked Debtor’s attorney fees.
In re Craig Maike, 15-20218-DOB (EDMI), Docket 25 (9/3/15)
In re Hammon, 2015 WL 4462179 (Bankr ED MI 7/21/15)
Professor Lois R. Lupica of the University of Maine School of Law said empirical studies have found no evidence of widespread abuse among consumer debtors. In fact, Lupica said that under BAPCPA the cost of access to the bankruptcy system has increased significantly, which is keeping the poorest debtors from being able to file.
In the Middle District of Florida the Chapter 13 Trustees have interpreted Harris that when a chapter 13 is dismissed or converted, the check for the balance paid in less their fees, goes to debtor c/o attorney for refund, however, no attorney fees or adequate protection is paid after dismissal/conversion by the trustee. The attorney must then try and get the debtor to pay the balance of their fees due under the retainer agreement. ( If the Debtor refiles bankruptcy within a year- would the trustee treat our fees as a preference? )
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Apr 2, 2019 | Bankruptcy, Consumer Credit
It’s that time of the year you dread. Lucky it only comes once a year! Doing your taxes can be overwhelming, but it is a necessary evil. Even if you are going to owe money and can’t pay, make sure you file your taxes on time without an extension. Most taxes that are filed on time without an extension and are over 3 years old are dischargeable in your bankruptcy, failing to file on time no could affect you in the future.
Here are five tips for organizing your self for tax season:
- Know what can be deducted. For Example: Deduct cash, property and stock donations made to a charity. Make sure you have receipts. You can deduct mileage and vehicle expenses for a charitable purpose. You can deduct your medical expenses including mileage for doctors. You can deduct business expenses.
- Get proper documentation. Doctors, pharmacies, child care providers will all provide you a print out of what you spent with them the prior year if you ask. For any single contribution to a charity over $250, you must have a written acknowledgment from the charitable organization. For property valued at more than $5,000, you must have a qualified appraisal.
- Keep limitations in mind. Your cash gifts are generally deductible up to 50 percent of your adjusted gross income. Noncash gifts, such as property or stock owned for more than one year, are generally deductible up to 30 percent. You can carry over any remaining deduction for up to five consecutive years.
- Transfer records to personal budgeting software such as QuickBooks or Quicken. Enter the information from tax-related transactions electronically to stay organized. Doing so will also help you forecast your tax situation to help you gauge whether to give more to maximize tax benefits.
- Involve the professionals. Hiring a CPA or accountant or tax attorney who is up to date on the tax laws to do your taxes is well worth the cost. Just remember you have to provide them the detailed information so they can get you your maximum deductions.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #361, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: carollawsonesq@gmail.com
by Carol Lawson Esq | Dec 28, 2015 | Bankruptcy
As the year comes to a close, some cases from 2015 in Bankruptcy Court should be noted.
§ 330(A) Hibbard v. General Electric Credit Union (In re Hibbard), 2015 Bankr. LEXIS 3885 (Bankr. M.D. Fla. November 13, 2015) (May, B.J.). Trustee’s attorneys’ fees awarded with significant reductions based on lodestar calculation.
§ 507(A)(1) In re Hause, 2015 Bankr. LEXIS 3923 (Bankr. M.D. Fla. November 13, 2015) (Jackson, B.J.). Claim for lump sum payment to debtor’s former spouse owed pursuant to divorce in lieu of alimony was a property settlement not entitled to priority status.
§ 1329(B)(1) In re Ford, 2015 Bankr. LEXIS 3883 (Bankr. M.D. Fla. November 13, 2015) (Funk, B.J.). The debtor could modify the plan when the medical condition resulted in decreased income.
§ 506(A) IN RE TRAVERS, 2015 Bankr. LEXIS 3934 (Bankr. E.D. Ky. November 16, 2015) (Schaaf, B.J.) The wholly unsecured junior lien could be avoided as Sixth Circuit precedent was not affected by the U.S. Supreme Court’s decision in Caulkett; discussing Lane case.
§ 522(D)(10)(D) IN RE ROYSTER, 2015 Bankr. LEXIS 4001 (Bankr. D. Kan. November 23, 2015) (Somers, B.J.)Attorney fees awarded to the debtor in state court divorce proceeding were not exempt.
§ 523(A)(8) JOHNSON V. UNITED STATES DEP’T OF EDUC. (IN RE JOHNSON), 2015 Bankr. LEXIS 4000 (Bankr. N.D. Ala. November 24, 2015) (Mitchell, B.J.)_Discharge of student loan debt denied absent undue hardship.
§ 547(B) DYMARKOWSKI V. SAVAGE (IN RE HADLEY, 2015 Bankr. LEXIS 3983 (Bankr.N.D. Ohio November 23, 2015) (Gustafson, B.J.) Prepetition transfer of motor vehicles to debtor’s attorney as payment of fees was avoidable.
§ 554(C) STURGEON V. HART CNTY. FIN., LLC (IN RE STURGEON), 2015 Bankr. LEXIS 3960 (Bankr. W.D. Ky. November 20, 2015) (Lloyd, B.J.)Bankruptcy court lacked jurisdiction over debtor’s adversary proceeding based on a claim abandoned by the trustee.
§ 105 KLOEBER V. MONTANARI (IN RE MONTANARI), 2015 Bankr. LEXIS 3682(Bankr. E.D. Tenn. October 29, 2015) (Bauknight, B.J.) Debtor sanctioned for failing to finalize agreed-upon, a binding settlement with creditor and settlement terms were incorporated in the final judgment.
§ 522(B) LOWE V. DEBERRY (IN RE DEBERRY), 2015 Bankr. LEXIS 3694 (Bankr. W.D. Tex. October 28, 2015) (Gargotta, B.J.) Proceeds from the post-petition sale of the exempt homestead were not the property of the estate.
§ 522(P)(1)(A) BRUESS V. DIETZ (IN RE BRUESS), 2015 Bankr. LEXIS 3672 (B.A.P. 8th Cir. October 29, 2015) (Saladino, B.J.) Debtor’s homestead exemption limited where the property was acquired within 1215 days prior to the petition date.
§ 524(A)(2) BEST V. NATIONSTAR MORTG. LLC (IN RE BEST), 2015 Bankr. LEXIS 3722 (B.A.P. 1st. Cir. October 30, 2015) (per curiam) Informational correspondence did not violate the discharge injunction.
§ 541 LEONARD V. WELLS FARGO HOME MORTG. CO. (IN RE LEONARD), 2015 Bankr. LEXIS 3686 (Bankr. N.D. Miss. October 29, 2015) (Ellington, B.J.)_Debtor lacked standing to pursue adversary proceeding based on the prepetition cause of action that was now the property of the estate.
§ 1307(B) IN RE MILLS, 2015 Bankr. LEXIS 3706 (Bankr. D. Kan. October 29, 2015)(Nugent, C.B.J.) Chapter 13 debtor had an absolute right to voluntary dismissal even inlight of alleged bad faith.
§ 1322(B) JORDAHL V. BURRELL (IN RE JORDAHL), 2015 Bankr. LEXIS 3721 (B.A.P. 8th Cir. November 2, 2015) (Schermer, B.J.) Debtor’s plan could not provide for regular payments on student loan debt while paying less on other unsecured non-priority debts.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | Dec 15, 2015 | Bankruptcy
In case you were not aware, ALL of the Bankruptcy Forms were changed on 12/1/15 supposedly to make the process easier. Attached is a cheat sheet of the new forms.
form_number_conversion_chart_2015 (1)
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
by Carol Lawson Esq | May 3, 2015 | Bankruptcy, Consumer Credit
In Donaldson v. LVNV Funding, LLC, Civil Action No. 1:14-cv-01979-LJM-TAB (S.D. Ind. Apr. 7, 2015) and Torres v. Asset Acceptance, LLC, Civil Action No. 2:14-cv-6542-ER (E.D. Pa. Apr. 7, 2015), the debt collectors filed proofs of claim in the plaintiffs’ Chapter 13 bankruptcy cases. The Debtors filed lawsuits under the FDCPA alleging that filing the proofs of claim violated the FDCPA by making false representations of the character, amount, or legal status of the debt, by threatening to take action that cannot legally be taken, by using false representations or deceptive means to collect or attempt to collect the debts, and by using unfair or unconscionable means to collect or attempt to collect the debts. The Southern District of Indiana and the Eastern District of Pennsylvania granted the creditors Motion to Dismiss in both cases, declining to follow the Eleventh Circuit’s decision in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014). The 11th circuit found that the POC violated the Fair Debt Collection Practices Act (“FDCPA” 1257 or “Act”). 15 U.S.C. §§ 1692-1692p (2006).
http://scholar.google.com/scholar_case?case=15631228362360253615&q=Crawford+v.+LVNV+Funding,+LLC,++758+F.3d+1254+(11th+Cir.+2014)&hl=en&as_sdt=40006
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: calh@gate.net
