Even if the studies show that reducing working hours per week is beneficial to both for employers and employees, how do we get there? The federal government-meaning your elected officials-will have to pave the way. Similar to the path of the 40 hour work week, and some states like California and Maryland have already proposed this legislation.
The need to limit the working hours per week was a necessity, but why was the 40 hour work week selected as the standard?
The 40 hour work week was signed into law in 1940 as part of The Fair Labor and Standards Act, but should society continue to allow this standard? To understand if the 40 hour work week should remain, we must first discuss the origin of the 40 hour work week, and how we came to accept this standard for the past 70 years.
Reduce, reuse and recycle. We have heard this mantra many times. And the message is clear, continue consuming, and you can consume relatively guilt free, just recycle that old shampoo bottle and it will ultimately become part of someone’s tennis shoe or maybe new kid’s toy. An amazing feat, and what we know now, an amazing lie.
A Chapter 13 plan must meet the requirements of section 1325(a) to be confirmed. 11 U.S.C. § 1329(b)(1). Plan compliance is discussed in section 1325(a)(6). That section states that "the court shall confirm a plan if the debtor will be able to make all payments under the plan and to comply with the plan." 11 U.S.C. § 1325(a)(6).
Student loans continue to be an issue for many Americans. The pending litigation surrounding the loan forgiveness of the Biden Administration is being watched carefully for those that may be eligible for loan forgiveness.
Not all debts in a bankruptcy are treated equally, and some debts can be excepted from the bankruptcy discharge. Under § 523(a)(6), the creditor must demonstrate "willful and malicious injury by the debtor" to another person or their property, and if a creditor can successfully demonstrate a willful and malicious injury by the debtor the creditor’s claim can be excepted from discharge.
Debtors should disclose all assets on the bankruptcy schedules, and failure to do so can result in the denial of discharge. If a debtor discovers or remembers an asset was not properly disclosed on the bankruptcy schedules, even if the asset is discovered years later, the debtor should amend the schedules to properly disclose the asset.
A client may be judicially estopped from asserting a cause of action not disclosed on the bankruptcy schedules or otherwise mentioned in the disclosure statements.
Lack of disclosure in a bankruptcy filing can negatively impact a debtor. Clients will often question why they need to disclose certain information or if it would be better to “hide” certain assets from the court.
The U.S. Supreme Court held that inherited IRAs do not qualify for the section 522(b)(3)(C) exemption.
That opinion makes clear that a beneficiary faces a choice between (1) "rolling over" the IRA, thus making the IRA subject to the tax and bankruptcy rules for traditional and Roth IRAs, or (2) keeping the IRA as an inherited IRA subject to different tax and bankruptcy rules for inherited IRAs.
The primary purpose of filing bankruptcy is to award a fresh start to an honest but unfortunate debtor. Occasionally, a debtor may request the dismissal of their chapter 7 case if the debtor would be worse off if he stayed in the chapter 7 case than if the case were to be dismissed. However, the case cannot simply be dismissed because the debtor is unhappy with the outcome of the chapter 7 case, the debtor needs to have acted in good faith.
Generally, Chapter 7 debtors are entitled to a discharge of their pre-petition debts. However, some debts are excepted from discharge. 11 U.S.C. 523(a). Of those debts that are excepted, some are excepted from discharge as a matter of law, e.g., 11 U.S.C. § 523(a)(5) (domestic support obligations) and Section 523(a)(7) ) (fine, penalty, or forfeiture payable to a governmental unit).
Lack of disclosure in a bankruptcy filing can negatively impact a debtor. Clients will often question why they need to disclose certain information or if it would be better to “hide” certain assets from the court.
Section 541(a)(1) of the Bankruptcy Code provides that, at the commencement of a case, the bankruptcy estate is comprised of "all legal or equitable interests of the debtor in property." 11 U.S.C. § 541(a)(1).
Provided under 26 U.S.C. § 6334, certain property claimed as exempt on the bankruptcy schedules are exempt from IRS liens. The Bankruptcy Code does not require debtors to include the exempted amount in an IRS allowed secured claim.
When filing bankruptcy, debtors may be tempted to transfer assets in an effort to protect the assets from the bankruptcy estate. However, § 548(a)(a)(A) encompasses transfers made by the debtor within two years of filing the bankruptcy, and such transfers would be fraud if transferred "with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation incurred, indebted . . . ." 11 U.S.C. § 548(a)(1)(A).
The property of the bankruptcy estate cannot be removed from the bankruptcy court’s exclusive jurisdiction except by proceedings in the bankruptcy court. The bankruptcy case filing vests exclusive jurisdiction over the debtor’s property in the bankruptcy court so that it may control the administration of the case.
Not all annuity payments in a bankruptcy will be exempt. For the annuity payment to be exempt in a bankruptcy filing it must be the type described by Congress under exemption § 522(d)(10).
Bankruptcy is designed to give an honest debtor a fresh start. The fresh start is accomplished through the discharge, but a discharge is not a right, but a privilege. While the denial of a discharge is an extreme penalty, inappropriate conduct by a debtor can justify the denial of the discharge.
The student loan debt crisis in America has been a growing issue for years, but recently those suffering from student loan debt received a big win. President Biden announced a forgiveness of some student loan debt for eligible borrowers. Although, for many Americans the amount of the forgiven debt will be just a drop in the bucket in relation to the overall amount of their student loan debt. But what or who can help a struggling debtor with the remaining student loan debt? Can it be discharged in a bankruptcy?
Property of the bankruptcy estate includes all legal or equitable interests of the debtor in property at the time the case is filed. Section 541(b) of the bankruptcy code provides a list of exclusions from property of the bankruptcy estate, and 11 U.S.C. § 522 provides exemptions that apply to property of the bankruptcy estate.
In the current way our society is structured, the rich are exemplified as the model American, no matter how they obtained their wealth: inheritance, lying, cheating, evading taxes and the poor are vilified regardless of how they got there: mental health issues, medical limitations, inadequate and unfair wages, and the poverty trap.
To be an eligible debtor in a Chapter 7 bankruptcy filing in Minneapolis, Minnesota, a debtor must complete a credit counseling course within 180 days prior to the bankruptcy filing. The event that prompts the 180-day period is the filing of a petition for relief, not the completion of the credit counseling.
Once a creditor obtains a judgment against a debtor in order for the creditor to obtain payment from the debtor the creditor will attempt to enforce the judgment. Enforcement of the judgment can be in the form of a bank levy or garnishment but it can also be a lien against the debtor’s real estate.
Not all debts in a bankruptcy are dischargeable. 11 U.S.C. § 523 of the Bankruptcy Code provides exceptions to the dischargeability of some debts. This blog will address the nondischargeability of debts encompassed by Section 523(a)(6).
We live in the historical period known as the information age. Everyone has information right at their fingertip, however, are they receiving the correct information? How do we know the information we are reading online is the best, and most current information. Consider the source of the information: is the information coming from someone’s blog or an academic paper, and cross-reference the sources. It can be an arduous task to complete a thorough search on a topic, but likely necessary if you want the entire truth.
Filing bankruptcy is a court action. The bankruptcy filer will file a petition, and receive a case number, meet with a trustee, and there is a possibility of additional court actions, motions, and ultimately the case will be discharged and closed. But, as a bankruptcy filer you have some responsibilities to the court. Bankruptcy exists for the protection of the debtor and to provide the debtor with relief from their creditors, but there is also an onus on the debtor when filing.
When a bankruptcy is filed the automatic stay is immediate, but not unlimited. The automatic stay typically lasts until the debtors discharge but through the filing of a motion for relief from the stay, a creditor can request permission from the court to continue collection efforts against a debtor. For example, a mortgage company can ask for relief to foreclose on a homestead for non-payment of the mortgage or a vehicle lender can request relief to repossess a vehicle for failure to keep the vehicle properly insured. The creditor must show the court that a reason or a cause exists to lift the automatic stay.
Bankruptcy relief affords debtors with the benefit of the discharge of debts. But the cost of this discharge is: debtor must be honest and truthful in their disclosures to the court. If a debtor does not provide an honest and accurate accounting of assets to the court and creditors they will jeopardize the discharge of their debts.
Lately it has been in vogue to buy into the cryptocurrency world. And when a debtor files bankruptcy any value that the cryptocurrency would have would be considered an asset. But before you jump into the cryptocurrency market you should consider all the risk.
In Minnesota, the creation of a statutory exemption from claims of creditors for real estate used as a homestead is authorized by Article I, Sec. 12 of the State Constitution. Minn. Stat. Chap. 510 sets forth the homestead exemption. It begins with a definition that reads, in pertinent part:
Section 362 provides that a bankruptcy petition "operates as a stay, applicable to all entities" and "generally prohibits attempts to collect prepetition debts against the debtor or the debtor's property or attempts to enforce liens and other interests against property of the bankruptcy estate”
When filing for bankruptcy your attorney will ask you to value and disclose all your assets on the bankruptcy petition. The importance of an accurate, complete and honest disclosure of assets cannot be emphasized enough. Disclosures are required as to the nature, value, and disposal of assets. Knowingly and fraudulently undervaluing assets or nondisclosure of assets can equate to the intent necessary for the denial of discharge under 11 U.S.C. Section 727. The intent requisite to preclude a discharge must be an actual fraudulent intent as distinguished from constructive intent. Actual intent such as to hinder a creditor may be inferred from the debtor's actions, like intentional undervaluing of assets or omitting assets.
There have been some headline making US Supreme Court opinions recently. Some decisions you may agree with, and some you may disagree with, but the real question is when and why should the public be concerned with these decisions.
Chapter 13 bankruptcies are repayment plans based on the debtor’s ability to pay. When meeting with your attorney you will discuss your monthly budget: income and expenses, and determine a proposed monthly payment. Once the petition is filed, a creditor’s meeting and confirmation hearing will be scheduled. Prior to the confirmation hearing, the creditors can objection to the confirmation of the plan.
Not everyone is eligible to file a chapter 7 bankruptcy. There are income requirements to filing a chapter 7 and those individuals that do not meet the income requirements, will not be able to file a chapter 7 bankruptcy. But, even those that do meet the eligibility requirements to file a chapter 7, may find the outcome of filing a chapter 7 disagreeable. While chapter 7 filings are effective vehicles for discharging unsecured debt and they are short in duration, there are times when even those eligible for a chapter 7 bankruptcy may choose to file a chapter 13 instead.
The bankruptcy trustee may avoid transfers that the debtor made or incurred within two years before the filing of the bankruptcy petition if such transfer was made with actual intent to hinder, delay, or defraud a creditor or the debtor received less than fair market value for the transfer. The trustee then may recover, for the benefit of the estate, the property transferred or the value of such property.
On the bankruptcy petition you will list all of your assets, and this includes anything owed to you, or potentially owed to you, even if you believe the funds or asset is not collectable. For example, if you lent you neighbor $1,000, but you believe that he is unlikely to pay you, it is still important to list the money owed as an asset in your bankruptcy. If you have a case with non-exempt assets, the bankruptcy estate may have an interest in the funds lent. And depending on the amount of monies owed to you, the bankruptcy estate may pursue you neighbor for the lent funds.
There is a process and procedure for serving defendants and initiating a lawsuit. Plaintiffs do have to follow the correct procedures for proper service. Some individuals are successfully sued and a judgment is awarded to the plaintiff without any knowledge by the defendant. The defendant only becomes aware of the judgment when the creditor begins to enforce the judgment through a bank levy or a garnishment. The question I receive from debtors is: how can they vacate or remove the judgment because they were not properly served with the lawsuit.
Carefully considering when to file your bankruptcy can maximize the benefit you achieve from the filing. There are many factors that may speed-up or delay the need to file.
If a debtor is being represented in a bankruptcy they should allow their bankruptcy attorney to work for them, and the only way their attorney is able to provide adequate representation is if they know all the details about the debtor’s case. If a debtor chooses to omit certain transactions or details then the attorney will not be able to advise appropriately regarding those transactions which could be problematic in the case.
When a creditor has failed to obtain payments from the debtor, the creditor may sell the debt to a debt collector. If the debt collector or creditor is still unable to collect on the debt they may employ a law firm to pursue the debt through a lawsuit. The initial start of the lawsuit begins with notice to the debtor that they are being sued.
Pursuant to 11 U.S.C. § 548(a)(1)(B) the trustee can avoid certain transfers made within two years before the petition filing date.
When filing a personal bankruptcy, you have to choose the bankruptcy chapter that will work best for your situation. Your attorney can help advise you on selecting the appropriate chapter. Although, some debtors are not eligible for filing a chapter 7, and will have to select a chapter 13 filing, others will voluntarily select to file a chapter 13. There are several reasons a debtor may choose a chapter 13 filing over a chapter 7, but once you have decided a chapter 13 is the right choice for you-you will next consider the length of the commitment period.
Before filing bankruptcy many debtors try other means of dealing with their debt. Occasionally debtors will take out additional debt in hopes of consolidating the debt. But for the creditors to provide additional credit to a potentially risky lender they may ask that the debtor obtain a co-signer on the debt. This co-signer will remain liable on the unsecured debt even after the debtor has received a discharge in the bankruptcy.
When you file bankruptcy you are required to list all of your assets on your petition. This includes any real estate you currently have an interest in. What a debtor should also consider is any previous real estate transactions they may have been involved in. This is especially true for recent real estate transactions. A trustee will likely inquire about any recent sales or purchases of real estate. If the property was sold, there will likely be questions about proceeds from the sale and how the funds were spent.
If you have recently sold your home or are planning to sell your home prior to filing bankruptcy there are things to consider and discuss with your bankruptcy attorney regarding any remaining home proceeds from the sale. After the sale of the home, the proceeds should be kept separate from general income: wages, bonuses, pension income, and funds from the sale of other assets. The proceeds from the home sale maybe exemptible, if you qualify to use Minnesota exemptions and the sale of the home was within one year of the bankruptcy filing. (Your attorney can help you determine if you are eligible for Minnesota exemptions). It is important to note that home proceeds are not exemptible infinitely. If the home was sold over a year from the filing of the bankruptcy petition and proceeds remain from the home sale, these funds are not exemptible using the Minnesota homestead exemption.
IRAs are exempt assets in bankruptcy proceedings, and are thus beyond the reach of the debtor’s creditors. The exemption in the Bankruptcy Code is based on the tax-exempt status of the IRA. 11 USC §522(d)(12) provides an exemption to “[r]etirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 408 of the Internal Revenue Code.”
A chapter 7 bankruptcy is a liquidation bankruptcy, consequently non-exempt assets in a chapter 7 bankruptcy are liquidate or debtor may be able to purchase their non-exempt assets back from the bankruptcy estate. In a chapter 7 bankruptcy, the debtor has a limited amount of time to purchase back their non-exempt assets or relinquish the assets to the bankruptcy estate. If a debtor is unable to purchase back their assets from the estate or is unwilling to give up their non-exempts the debtor may consider filing a chapter 13. (Your attorney will let you know which assets in your case are non-exempt).
Occasionally debtors will find themselves in a situation where they are continuously being hounded by creditors. The debts have been sold and resold and many times debtors are not even sure who they owe funds to anymore. Unfortunately, this can make those debtors vulnerable to scams. If a debtor receives a call from an aggressive creditor demanding payment and the creditor is offering a substantial discount the debtor may be tempted to take the deal-even though the debtor does not know the exact source of the debt.
Getting behind on your mortgage payments is not uncommon, but when the amount of the arrears (the amount you owe from the missed payments) is substantial it can be hard to get caught back up with your mortgage payments. There are many reasons people get behind on their payments: temporary job loss, divorce, medical issues. And sometimes working with the mortgage company to make arrangements to repay the missed payments can be daunting and frustrating especially if the mortgage company has already started the foreclosure process.
When you file bankruptcy you are required to list all of your assets on your bankruptcy petition. In fact, you will be required to testify under oath that you have listed all of your assets and any interest you may have in an asset.
Not everyone qualifies to file a chapter 7 bankruptcy. In order to curb perceived abuse, Congress modified the Bankruptcy Code. On April 20, 2005, President Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "Act"). The Act was intended to address certain abuses of the bankruptcy process. Among the abuses identified by Congress was the easy access to chapter 7 liquidation proceedings by consumer debtors who, if required to file under chapter 13, could afford to pay some dividend to their unsecured creditors.
Not all debts are treated the same in bankruptcy. Unsecured debts are those debts that are not secured by collateral. Of course, secured debt remains secured to the collateral even in bankruptcy, but strictly speaking about unsecured debt-will it all be discharged in the bankruptcy?
A bankruptcy and a divorce are both intensive processes that require a lot of financial disclosures. When trying to determine which process to start first an individual needs to consider their own unique situation.
Yesterday, after I work, I exited the building and started my walk home, like I do every day. But, as I was leaving, I saw a young lady in distress sitting in the corner of the parking ramp. I did not immediately approach her. Part of me was thinking: do not get involved or she was being dramatic or was it even safe for me to approach her.
Banking and financing with one institution is convenient, but there could be unforeseen issues with letting one institution handle all your financing needs. Banking with one institution does seem to be stress-free. You can easily pay all of your loans online and transfer funds easily, and in theory, you are often dealing with the same individuals time after time. But, what you may not have realized is if you have secured loans and unsecured loans with the same institution, the lender may have collateralized your new loans to the same collateral.
During your bankruptcy you will be asked about the likelihood that you may inherit any property or money. Your attorney will likely ask you this question and the trustee will also let you know if you do inherit any funds during the bankruptcy you need to let the trustee’s office know. Why? Because the bankruptcy estate will have an interest in the inherited property.
When a creditor is owed a debt by the bankruptcy filer and the bankruptcy filer is owed a debt from the creditor and consequently creating a mutual obligation, the creditor can setoff the mutual debt. This means, instead of the creditor paying their debt to the bankruptcy filer the creditor can setoff (subtract) that amount from the amount owed to them by the bankruptcy filer.
I have recently started running, actually, I have recently started running again. Running is one of those activities that I do not enjoy. But I make a point to do it because I work in an office and spend most of my day sitting.
Issues with your homeowners association can be stressful. Homeowners associations have the power to place a lien on your property or foreclose. When you get behind in your association fees you are putting your property at risk.
When filing for bankruptcy you will have to disclose any transfers of assets you may have had in the last 2 years prior to filing. Assets include cash assets as well as other assets: vehicles, real estate, furniture, or retirement accounts. And you may be asked about assets transferred in the last six years, if the transfer involved a friend or family member.
Recently, I started watching a new television series call Ted Lasso and I was quite wonderfully surprised. This is a show about positivity, kindness, and thoughtfulness. Even faced with the ugliest of characters, Ted Lasso continues his crusade of positivity.
This is a message we should all embrace. Many times I find myself passively watching some television show and the characters are awful to one another or some reality tv show that displays people at their absolute worst. At best, maybe I get a laugh from it, and at the worst, I walk away with a dampened outlook on human kind.
It is tempting to repay friends and family members, after all, these are the people that were there for you when you were in a bind. So naturally, when you find yourself in a position to finally repay a friend or family member that is exactly what you are going to do. While this seems like the right thing to do, during a bankruptcy, it can lead to a lot of complications.
Under the Internal Revenue Code, the general rule is that the discharge of a debt is a form of gross income. The forgiveness of a debt does sound nice, but it does come with some consequences. For example, if a creditor forgives a debt of $20,000, you would have an additional $20,000 for taxable income. At a conservative tax rate of 15% you would owe an additional $3,000 in federal income taxes for that year.
Schedules A/B of the bankruptcy petition requires the debtor to list and describe all real estate that the debtor has an interest in. This includes: life estates, remainderman interests, interests in mineral rights, and partial interests in real estate.
As a general matter, homestead exemptions are to be liberally construed in favor of the exemption. All presumptions are to be made in favor of preservation and retention of the homestead. This is good news for a bankruptcy filer who wishes to protect/exempt their homestead when filing bankruptcy.
The effect of claiming an exemption is to technically exclude property from the bankruptcy estate.
Recently, I started watching a new television series call Ted Lasso and I was quite wonderfully surprised. This is a show about positivity, kindness, and thoughtfulness. Even faced with the ugliest of characters, Ted Lasso continues his crusade of positivity. This is a message we should all embrace.
Under the Internal Revenue Code, the general rule is that the discharge of a debt is a form of gross income. The forgiveness of a debt does sound nice, but it does come with some consequences.
For example, if a creditor forgives a debt of $20,000, you would have an additional $20,000 for taxable income. At a conservative tax rate of 15% you would owe an additional $3,000 in federal income taxes for that year.
Everyone knows the old adage, no good deed goes unpunished, and this is also true in bankruptcy. So, while it may be noble to help out a friend or family member, it can also complicate your bankruptcy. Expensive gifts, gifted while you are insolvent can be a point of contention in your bankruptcy, but what about other good deeds: lending money, co-signing on loans, or taking out loans for someone else?
It is tempting to repay friends and family members while before filing a bankruptcy. After all, these are the people that were there for you when you were in a bind. So naturally, when you find yourself in a position to finally repay a friend or family member that is exactly what you are going to do.
Unfortunately, repayments of loans to family members and close friends are considered preferential payments.
When filing a Chapter 13 bankruptcy the number one question by potential clients is: what will be my monthly payment? There are many factors that are considered when determining a chapter 13 payment:
Occasionally clients will tell me that they would only like to file bankruptcy on one or just a few of their creditors. While this is not entirely possible, there are some similar options.
During your bankruptcy you will be asked about the likelihood that you may inherit any property or money. Your attorney will likely ask you this question and the trustee will also let you know if you do inherit any funds during the bankruptcy you need to let the trustee’s office know. Why? Because the bankruptcy estate will have an interest in the inherited property.
Bankruptcy provides an avenue for an individual to address their debt. It can provide a lot of relief. But, not everyone needs to or should file bankruptcy. What happens when only one of the partners in a marriage needs to file bankruptcy? The first question that needs to be addressed is, does the other spouse have any debt where it would make sense for them to file as well.
When you find yourself on the brink of filing bankruptcy, you can do some bankruptcy planning, and you should. When filing a chapter 7 bankruptcy, it is important to remember this is a liquidation bankruptcy, so non-exempt assets and funds will be liquidated to pay your creditors. There are times when bankruptcy filers find themselves with more non-exempt assets than originally expected, and rather than have the assets liquidated in the bankruptcy, they decide to spend, sell or use the asset.
If you file bankruptcy and your spouse does not file with you, your spouse will remain liable on any joint debt. In a chapter 13 bankruptcy filing, priority debts like tax debt must be paid in the plan or through the bankruptcy. This is great news if you want a payment plan for your tax debt. However, the co-debtor on the tax debt is not protected by the automatic stay in a chapter 13 bankruptcy from the taxing authority.
Filing bankruptcy is a court action, so it is public, but most people do not keep tabs on the current bankruptcy filings. However, if you have any shared or joint debt with your ex, the answer is unequivocally yes, they will be notified of the bankruptcy filing because they are a co-debtor.
When you are on the verge of filing bankruptcy it may seem tempting to pay down some secured debts. People fall into the trap of taking exempted funds out of retirement accounts and using those funds to pay down their secured loans. Unfortunately, this type of bankruptcy planning can backfire.
When you file bankruptcy, a chapter 13 or a chapter 7 filing, you will be required to attend a meeting of creditors. The meeting is conducted by the trustee, who is charged with administering the estate. But your creditors can and sometimes do attend this meeting. Very few creditors actually attend the meeting, and most of the time a bankruptcy debtor can expect that no creditors will be present.
Many divorces today are accomplished by a default order and are never litigated. In fact, many individuals draft their own divorce decrees. While this may save you money on a divorce attorney it could end up costing you in your bankruptcy.
When a person neglects or refuses to pay their tax debt, the IRS can obtain a lien on the tax payer’s property. The federal tax lien attaches to every interest in property that the taxpayer has or acquires during the time of the lien in effect. The IRS obtains the perfected security interest in the person’s property by filing a Notice of Federal Tax Lien with the county recorder’s office. The lien remains in effect until it is satisfied or becomes unenforceable by the lapse of time.
When I meet with clients I often hear the phrase, “I am embarrassed I have to file bankruptcy”. The truth of the matter is no one wants to be the position where they are asking for help, but we all find ourselves in that position at some point. We may not all need the same type of help, but at some point everyone has to rely on someone else. There is no shame in needing help. Bankruptcy is a legal way for individuals to get the help they need. There are unforeseen and sometimes foreseen circumstance that individuals can find themselves in that are just insurmountable.
