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“How many people are in your household,” is one of the first questions you will be asked when speaking with an attorney about filing bankruptcy.
Household Size is an important issue in a bankruptcy. It could determine whether you are eligible to file Chapter 7 or it could determine the monthly payments of your Chapter 13 Plan.
Sometimes determining household size is easy and sometimes it is much more complex. If you are a married couple with no children, you are a household of size two. If you are single and have two minor children that reside in the household, then you are a household of size three. What if you are single but share custody of your two minor children? What if you are married and your adult daughter lives in the house with her two minor children? What if your sister and her boyfriend are residing with you? It quickly becomes easy to see why determining household size can be difficult.
According to In re Robinson, 449 BR 473 (Bankr.E.D.Va, 2011), there are three main ways to calculate household size. First, you can take a very broad approach and state that all persons in the household count towards the household size (aka: the “heads on beds” approach). Second, you can take a very narrow approach and view household size as a reflection of an individual’s tax return, where household size is limited to a spouse and the dependents listed on the tax return. Third, you can view the household as an economic unit and include all persons who factor in the economic unit. This is the approach utilized by the Nebraska Bankruptcy Court in a recent opinion regarding the question of household size.
The economic unit approach to household size provides a workable solution to those real-life situations when members of the household may be sporadically living in the household or when persons connected to our economic livelihood are without official familial titles. The household size becomes a calculation of those persons who factor into the overall economic unit of your home. In order to get the most appropriate household calculation, you can expect your attorney to follow-up the first question above with many more questions about the individuals in your household and their economic impact on you.
If you are thinking about filing bankruptcy and have any questions regarding how your household size may impact you, or any other questions, feel free to give us a call at (402) 718-8865 or click here to send me an email. Burke Smith Law is an Omaha law firm focusing on bankruptcy and other consumer issues. We offer an initial free consultation to help you determine what’s in your best interest.
The Bankruptcy petition requires debtors to disclose all assets. One important asset to be disclosed is an anticipated tax refund.
Many debtors have concerns about whether a Chapter 7 Trustee can take their tax refund. The answer is a qualified yes. The Chapter 7 Trustee is limited in the taking of tax refunds for a couple of reasons.
First, debtors are allowed exemptions regarding their personal property. Exemptions are state or federal allocations of personal property that are off-limits for collection by any creditor and are exempt in bankruptcy from turnover to the Chapter 7 Trustee. The amount of exemption available for protection of a tax refund varies from state-to-state.
Second, the portion of tax refund based on the Earned Income Credit is not subject to turnover to the Chapter 7 Trustee because this credit has an exempt status designated by Congress. Therefore, tax refunds are not always surrendered to the Chapter 7 Trustee.
If you are contemplating filing bankruptcy and spending your tax refund before filing bankruptcy, you should talk with an attorney. Spending a tax refund for regular household purchases is generally not an issue. However, there are many ways to spend your refund that will result in problems during your bankruptcy, such as paying creditors or purchasing non-exempt assets, such as high-end electronics.
Make sure to talk with your attorney regarding the use of any asset prior to filing bankruptcy to be sure you are adhering to the Bankruptcy Code and that all pre-filing actions are properly disclosed in your petition.
The best course of action is to review your case with an experienced bankruptcy attorney if you anticipate a tax refund. It is important to know what will happen with your tax refund during your bankruptcy and to be sure that all assets are properly disclosed on your petition. If you have questions regarding this, please feel free to email me by clicking here or calling me at (402) 718-8865.
The headline says it all: Costly Debt Settlement Schemes Prey on the Most Debt-Burdened Consumers Struggling to Recover From Economic Downturn.
The Better Business Bureau, the New York City Department of Consumer Affairs, the U.S. Government Accountability Office (GAO), the Federal Trade Commission (FTC) as well as 41 state attorneys general have all uncovered substantial evidence of abuses by a wide range of debt settlement companies.
The problem is that the vast majority of debt settlement companies require that you stop making payments on your current debts and therefore default on them. The idea is that you start making payments to the debt settlement company, and they will negotiate a settlement with your creditor. The problem is that when you default on your loan, the creditor very quickly adds penalties and interest to your debt, which increases the amount you owe very quickly.
Not only that, but the creditor also starts to aggressively collect on the debt, often calling debtors at home or at work, as well as filing suit against them in court. The debt settlement company in the vast majority of cases are not able to negotiate a settlement and as a result the debtor is left with more debt, a worse credit score and possible lawsuits filed against them.
Most debt settlement companies also require hefty fees to be paid up front and on an ongoing basis. When the debtor terminates the program, the debt settlement company almost always keeps all the payments made to it as “fees”. Any way you look at it, it is a bad outcome for the consumer.
The National Association of Consumer Bankruptcy Attorneys has released a consumer alert as well as a news release which includes additional information:
It is recommended that consumers steer clear of any companies that
As Ed Boltz, NACBA Board member and incoming NACBA president said: “Many different kinds of services claim to help people with debt problems. The truth is that no single solution works in all cases. Bankruptcy is an option that makes sense for some consumers, but it’s not for everyone. For example, the National Association of Consumer Bankruptcy Attorneys and its individual consumer bankruptcy attorney members do not encourage every person who looks at bankruptcy to enter into it. What makes sense for each consumer will depend on their individual circumstances. We encourage everyone to get the facts and do what makes the most sense in their situation.”
If you have questions about your debt situation or you’re dealing with an aggressive debt collector, please give me a call at (402) 718-8865 or email me by clicking here. I am an Omaha attorney who counsels people regarding their financial situations and can help you determine whether bankruptcy makes sense or not.
The number of lawsuits being filed by debt buyers against people nationally and in Nebraska has been rising steadily over the years. Along with the rise in lawsuits filed has been a huge increase in the profits made by these debt buyers, profits that you don’t have to contribute to.
In most cases, a debt buyer who files suit against someone, has no evidence to support their claim, and if they do have some evidence, it is usually not persuasive or difficult or impossible to introduce into court. Why then are the vast majority of lawsuits filed by debt buyers won by them? How do they reap their huge profits? By counting on the fact that the person sued won’t fight back. By not answering the Complaint filed against you, you are guaranteeing that the debt buyer will win and will be able to go on to collect money against you, perhaps even garnishing your wages.
How do you fight back against this? The answer is simple, file an Answer to the Complaint and demand that the debt buyer prove his case. By demanding that the debt buyer prove that you (1) had an account with a credit card company or other credit provider, (2) that you became delinquent on the account and owe the creditor money, (3) the account was purchased and the debt properly transferred to the debt buyer and (4) demanding that all of this evidence follow the rules of evidence to be properly admitted into court.
While the majority of cases filed by debt buyers would be simple for an attorney to dismiss or beat, it can be challenging for a non-lawyer to use the legal rules and procedures to their advantage. However, if properly motivated (for instance by having a questionable lawsuit filed against you for a large amount of money), many non-lawyers would be able to successfully fight a lawsuit against them.
If you have been sued in Nebraska by a debt buyer and would like to discuss the possible successful defense of your case, give me a call at (402) 718-8865 or contact me be clicking here. I am an Omaha, Douglas County Nebraska attorney who specializes in consumer advocacy, bankruptcy and FDCPA claims.
