Marietta Bankruptcy Blog

New "Means Test" figures for any bankruptcy case filed on or after March 15th, 2009.

The U.S. Trustee's office submitted new means test figures for cases filed on or after March 15th of this year.  You can visit the U.S. Trustees website here. The median income for Georgia is as follows:

STATE        1 EARNER        2 PEOPLE        3 PEOPLE        4 PEOPLE*

Georgia        $40,760            $54,054          $61,959            $71,554

* Add $6,900 for each individual in excess of 4.

The old figures for cases filed prior to March 15th looked like this:

STATE        1 EARNER        2 PEOPLE        3 PEOPLE        4 PEOPLE*

Georgia        $39,523          $52,055           $59,668            $68,908

*  Add $6,900 for each individual in excess of 4.

As you can tell, the median income level in Georgia has gone up and thus it becomes a little easier for individuals to file for a chapter 7.  For example, the new figures for a family of four increase the median income by $2,646.  It is kind of surprising that figure of $6,900 for each individual in excess of four was not increased. 

 

House passed the "Cram Down" bill. Bill now moves to the U.S. Senate.

The house passed the mortgage bankruptcy bill by a margin of 234 - 191.  The mortgage bankruptcy bill is now being called the cram down bill in that the bankruptcy judges will be able to lower mortgage payments lengthen mortgages andlower the principal amount owed on certain mortgages.  The bill now moves to the U.S. Senate.  The full article can be found on foxnews.com.

Brian Limbocker

Limbocker Law Firm, LLC
2470 Windy Hill Road SE Suite 300
Marietta, GA 30067

Phone: 770-933-5355 

http://www.limbockerlawfirm.com/

House votes today on the new mortgage bankrutpcy laws

The House is voting today on the new revised plan to allow bankruptcy judges to modify existing mortgages for those in bankruptcy.  It appears that the new laws are only for those in Chapter 13, but it is not certain.  If the proposed law passes, it would make it's way to the senate in a few weeks.  The article can be found on Yahoo News here.   

There has been a lot of opposition to the proposed laws allowing bankruptcy judges to modify a debtor's home mortgage.  It appears, however, that a few things have been agreed upon:

1)  The proposed new laws would be limited only to existing mortgages,

2)  Limited to only those  debtors who sought a loan modification prior to filing their bankruptcy qualify and

3)  Limited to only debtors who can no longer afford their mortgages at the current rate.

On first glance, it appears that those in a chapter 13 prior to the new laws being passed could qualify if they pass the above test.  However, that could be extremely difficult.  The debtor would have to prove to the bankruptcy court that they tried to modify their mortgages prior to filing the bankruptcy and that their mortgage company did not offer them a reasonable loan restructuring deal, consistent to one proposed in President Obama's plan.  Further, the bankruptcy debtor would have to show that they can not afford their mortgage payments.  This could be the trap in that if the bankruptcy debtor is in a chapter 13 and their chapter 13 plan has been confirmed, it would seem as if they couldafford their mortgage, unless the debtor can show that their mortgage is an adjustable mortgage and their payments are about to go up.  Nonetheless, it appears as if the bankruptcy world is about to experience the most significant change since the laws changed back in October of 2005.

Brian Limbocker

Limbocker Law Firm, LLC
2470 Windy Hill Road SE Suite 300
Marietta, GA 30067

Phone: 770-933-5355 

http://www.limbockerlawfirm.com/

Not filing 60 days of pay stubs with the court could result in dismissal of bankrutpcy case

A judge in the Northern District of New York dismissed a debtor's Chapter 7 bankruptcy case for failure to file every pay stub received during the 60 days prior to his bankruptcy case being filed.  The debtor is this particular case filed his bankruptcy case on July 22, 2008.  Section 521(a) of the bankruptcy code states that the debtor shall file with the court "copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition".  Further, section 521(i) states that if the debtor fails to file all of the pay advices within 45 days of filing the petition, the case shall be automatically dismissed.  

The debtor in this particular case should have filed every pay stub he received from May 23 - July 22.  The debtor had until September 5th, 2008 to file all of the required pay stubs.  He filed all of them except the very last one he received on July 17th.  The trustee in the debtor's filed a motion to dismiss for not filing all of the pay stubs.  The court eventually dismissed the debtor's caseeven though the debtor filed the last rrequired pay stub (after 45 days) and the debtor showed the court that all of the pay stubs were exactly the same. 

The above case shows how strict some courts are about following section 521.  The court above found that it has no discretion when dealing with this issue.  If any of the pay stubs are missing, the debtors case is automatically dismissed on the 46th day.

Personal injury claims in bankruptcy - What every attorney and debtor should know!

    When considering whether to file bankruptcy and what bankruptcy lawyer to hire, the following discussion about how bankruptcies can affect personal injury cases is illustrative. Hiring a mill bankruptcy firm can lead you to getting very little personalized advice and if you are not careful you can accidentally destroy any Georgia injury claim that you may have.

    If you have filed a bankruptcy or are considering filing and you have also been injured in an Atlanta car crash, you need to coordinate the efforts of your Atlanta personal injury lawyer with your Atlanta bankruptcy attorney to be very careful so that you don't bar the injury claim through judicial estoppel.

    Judicial estoppel is a poorly understood doctrine that can prevent a bankrupt debtor from proceeding with a personal injury case. Judicial estoppel prevents a debtor from presenting a injury claim which that party failed to disclose to the bankruptcy court.
Chicon v. Carter, 258 Ga. App. 164, 573 SE 2d 413 (2002).  An injury claim is an asset that has value and is part of the bankrupt estate. Byrd v. JRC Towne Lake, Ltd, 225 Ga. App. 506, 484 S.E. 2d 309 (1997).

    Whether an injury claim can be barred by judicial estoppel depends on whether the debtor files Chapter 13 or Chapter 7 and whether the injury occurred before or during the bankruptcy. (if it happened after the bankruptcy was discharged ignore all of this)

Under Chapter 13, a debtor has to disclose the injury claim in the Petition no matter when the asset arose. 11 USC §1306 (a). Under the Bankruptcy Code, in a Chapter 7 or 11 bankruptcy proceeding, the debtor only has to list injury claims arising before the filing of the bankruptcy petition. Period Homes, Ltd. v. Wallick, 275 Ga. 486, 487 (2002); Reagan v. Lynch, 241 Ga. App. 642 (1999); Kittle v. Conagra Poultry Co., 247 Ga. App. 102  (2000);

However, and this is important; if you file a Chapter 7 and sustain a car crash injury after the filing, you must list this asset or in the subsequent personal injury case, the Insurance company for the defendant will file a Motion for Summary Judgment claiming that your injury claim is barred under the doctrine of judicial estoppel. The idea is that it is unfair to tell the Bankruptcy court that you have no assets and then in the other Court to claim that you have have an injury case worth thousands of dollars. You are estopped (fancy lawyer speak for stopped) from taking two contrary positions.

Well, what do I do if I already filed my Chapter 7 and then had a car wreck with an injury claim? If the bankruptcy is still open, then amend your schedule of assets. If the case is discharged already, then you must reopen the bankruptcy and amend.  Rowan v. Green Oil, 257 Ga. App. 774 (2002); Cochran v. Emory University, 251 Ga. App. 737, 555 (2001).

Bankruptcy courts allow amending of the bankruptcy petition to disclose
assets without too much fuss. See In re Daniel, 205 Bankr. 346, 348 (N.D. Ga. 1997),

I hope this discussion has shed some light on the subject and remember to talk with an experienced injury lawyer early in your case or you may find yourself in over your head.

 

This artilce was written by a friend of mine, Chris Simmon.  Chris is a personal injury attorney in the Atlanta area.  Please take  amoment to visit his website here.