Will You Put Anyone In a Bankruptcy?

 

Will You Put Anyone in a Bankruptcy?

 

No.  Contrary to how some attorneys practice, I will not put just anyone in a bankruptcy, and I am judicious about who I accept as clients.  When I am considering whether to help a client file for bankruptcy, I consider the following factors:

• Whether the debtor is financially stable if the debt is removed.  To put this another way, if the debtor doesn’t have the bills hanging around his or her neck, can he or she afford the cost of living.  My rationale is that if the debtor cannot afford the cost of living, I am not using the protection of bankruptcy to the fullest extent.  I want to time the bankruptcy so I maximize the amount of debt owed, and I want to really be able to give the debtor a fresh start.  In addition, if the debtor is still living on credit at the time of filing and afterwards, then the debtor could be cited for bankruptcy fraud (incurring debt while planning to file for bankruptcy), and the debtor will be barred from filing for bankruptcy for the next seven years. 
• Whether the debtor has an income that fluctuates wildly.
• Whether the debtor is serious enough to go through with the bankruptcy proceedings to the point of reaching a discharge.
• Whether the debtor has stopped living off of credit.
• Whether the debtor is truthful about his or her assets to me.
• The amount of debt owed to the amount of creditors versus the debtor’s income.
• The amount of debt that is non-dischargeable (such as tax debt, student loans, and domestic support obligations).

When considering to hire an attorney to help you file for bankruptcy, it’s a good idea to make sure the attorney is looking out for your best interest.  I invite you to come into the Gordon Law Group and meet with me to discuss your debt-relief options.

A most unusual gift – peace of mind

I am inspired to write this article today after a meeting I had this past week.  I met with an individual to complete their estate planning documents (will, living will, powers of attorney for assets and health care) and as we were finishing up and thanking them for coming in they said the most wonderful thing- “This was my birthday present!”

When I asked what they meant, they explained that the costs associated with getting the documents prepared had been the birthday present of a close friend.  I was struck by what an unusual gift this was.  Certainly paying for the costs is a gift in and of itself, but the peace of mind that the individual can now have having their estate done is a gift as well.

We all worry about buying gifts- whether they are the right size, right color, or right for the persons’ tastes.  But here is a gift that fits, and will continue to provide the best gift of all – peace of mind.

Document Review – A new annual tradition

In estate planning- wills, trusts, living wills, etc. – we as attorneys often find that it is the most difficult to get our clients to start the discussion about estate planning.  Once we have had the opportunity to sit down to discuss the process and execute the documents it becomes  cathartic; that is, there is a sense of relief that their estate is in order.  Most individuals I find want to have wills in place to protect their estate and to help their families through the probate process.  They want to have their affairs in order.

Now, I am going to propose a new tradition to those that have prepared their estate- an annual review of your estate documents.  I am going to suggest that it be April 15th.  No, I am not trying to associate your estate planning, which should be a painless endeavour with the pains of tax preparation!  What I am suggesting is that since you have your file cabinet open, and are filing your taxes away for safekeeping, you should pull out your will to see that it still protects your estate.

Many changes may have happened during the past year that you may cause you to need to or want to change  your will – sale of your residence or vacation home, sale of specific items that were bequeathed to an individual, birth, adoption, or death of a family member, and the divorce of your spouse.  All of these thing may have an effect on your estate and your intentions when you originally wrote the estate plan.  You may want to read through your documents to make sure that the specific bequests still make sense.  Has a family member had a life-changing event that no longer makes the specific bequest the best idea either from a emotional intent or tax consequence point of view?

Often, minor changes to a will can be completed through the use of a codicil.  If you find that a change needs to be made, please visit with your attorney as to the best course of action.  If multiple changes should be made, perhaps a new will is in order.  Even though a new will may be advised, the process will be much simpler than the first time because you and your attorney have had the preliminary discussions about estate planning.  Now, you are just correcting your estate.

People create wills for a variety of reasons.  One of the biggest is to protect those that they care for.  An annual review of those documents is the best way to make sure that your intentions are fulfilled in the most complete way.  Mark your calendars now!

How do I pay for a bankruptcy?

A lot of my bankruptcy clients do not have much money.  Generally, that is a given, and it is the reason they are needing to file for bankruptcy.  However, many of them do not know how they can afford a bankruptcy, and so instead of seeing a lawyer and trying to get some relief, they continue to live in a perpetual state of fear from their bill collectors.  If you know that you are going to be filing for bankruptcy, it is advisable to stop paying credit cards and other similar bills.  It is important to stay current on your house, car, insurance, and utility bills, but the other ones you can let go.  Why?  Isn’t this counter-intuitive?  The answer has a couple of dimensions:  (1)  you need the money to live on (i.e.  eat, keep a roof over your head, get to work); (2) the payments to creditors are usually so small that they only pay a small percentage of the interest; (3) a trustee can pull back payments made to creditors within 90 days of filing for bankruptcy as preferential payments, so the creditor could end up without a payment anyway; (4) you will need the money to pay the bankruptcy attorney.  A wise Chapter 7 bankruptcy attorney knows to get paid in full before filing a bankruptcy case.  This is because otherwise the debt will be discharged in the bankruptcy, and the attorney will not be able to collect on it afterwards.  In addition, the automatic stay will bar any attempts during the bankruptcy of the attorney to collect on the debt.  Always be wary of an attorney who says he or she will let a client pay later — they may not know the law as well as they should.

On a related note, it is very important for a debtor who wants to keep her house and car to be current on those payments.  A secured creditor has no reason to enter into a reaffirmation agreement with the debtor to continue the debt through the bankruptcy for collateral such as a house or car unless the debtor has proven to be trustworthy and reliable with payments.  It is also important to stay current on the insurance for a house and car because that is often a requirement by a creditor when extending credit.  If a debtor lets the insurance lapse, a creditor may have the right to foreclose or repossess on the basis of breach of contract.  Finally, it is important to keep your utilities current because otherwise they will be shut off, and they will only be turned on again when you are current.

Litigation following the flood – The Coming Storm- Nashville Attorney, John Jay Clark, Sr.

As you know, Middle Tennessee was recently hit by what can only be described as the flood of the century. While people in surrounding states may have dealt with this kind of flood in the recent past, this was something we simply were not prepared for. That being said, a big round of applause needs to go out to our local area governmental bodies for responding as they did. More applause needs to go out to the citizens of this great state for standing up and reaching out a helping hand to our neighbors.

Now, the water has all but dried up and we are recovering from the flood.  However, a black cloud is appearing on the herizon; a new type of storm is brewing. That rumbling noise is not the sound of distant thunder, its the sound of a thousand motivated footsteps from the lawyers that are about to descend upon us. WHY?  When there is a disaster, there is litigation. Some of the litigation will be based upon flood damage and whether or not homes were insured as well as many other issues.  Businesses will likely see a rise in litigation in the coming months as many are not able to fill orders, complete projects or fullfill contractual obligations. Some of the things may be covered in your existing contracts.  Others, like the flood itself, were not expected and therefore not adequetly prepared for.

What to do? Well, with everything, preperation is the best offense and defense. Following the flood, many people are reviewing their insurance policies just to make sure they are adequetly covered for future events. This is one of the good effects of an event like this. Businesses need to take a look over their existing contracts and make a plan for emergency preparedness in the future. If you dont have a good lawyer, find one and find one quick. Nothing ruins the flow of your business like a lawsuit. Even if you know good and well you can win, it takes time away from your business and costs money that you may not have at that moment. So, my words of advice to you are this: find a experienced lawyer you trust, develop a relationship and take care of what needs to be taken care of. Your business is your life and its important to have a plan.

If you have been or think that you are about to go down the road toward a lawsuit, be it against you or you against someone else, it pays to have someone help you navigate through the process. Contact a competent legal professional to assist you.

Nashville Entertainment Attorney-RIAA Wins in Copyright Infringement Suit Against Limewire

Nashville Entertainment Attorney

In what is sure to be regarded as a landmark decision (if the decision stands) that changes the manner in which people get their music via technology, a Southern District of New York Court granted the music industry’s summary judgment  claim that Lime Group, parent of LimeWire software maker Lime Wire (a p2p file-sharing website), and founder Mark Gorton committed copyright infringement, engaged in unfair competition, and induced copyright infringement.

“The evidence demonstrates that [Lime Wire] optimized LimeWire’s features to ensure that users can download digital recordings, the majority of which are protected by copyright,” the Court stated. “And that [Lime Wire] assisted users in committing infringement.”

Limewire, in addition to many other p2p sites, has long argued that its p2p site offers users many valuable non-fringing uses. The Court rejected this argument based on evidence showing that 98.8% of files actually requested for downloading were, or were highly likely to be, infringing.

Loan Modifications

What is a loan modification? 

A loan modification is an adjustment to your existing loan in order to make it a more affordable loan- the goal is allow you to stay in your home and not lose your home to foreclosure.  It is important to understand that loan modifications are not for everyone and they are not guaranteed.  There are many different programs offered through banks and through the government through the American Recovery Act.

Since the enactment of the American Recovery Act, there have been several different versions, and consequently many different requirements and limitations on loan modifications.  It is important to keep up to date on the changes.  The best way to do that is to either visit with your credit counselor or your attorney.

Your attorney or counselor will be able to assist you with your application process.  There are numerous forms that will need to be filled out and some will feel quite intrusive.  Please keep in mind that you are providing the information (annual income, loss of employment, current value of home, etc.) so that your lender will be able to calculate a new monthly payment on your loan.  Your lender may be able to write down the principal on your home in light of your loss of income and a depreciation in your home’s value as compared to the amount you owe.

Be patient- the application process will take time.  It may take six months or more to finish the process.  Once your loan modification is approved, you will be placed on a temporary payment plan.  YOU MUST comply with the new terms for the required number of months in order to move into a new permanent payment structure.  If you miss a payment during this time, you will lose the ability to have a loan modification.

If you are in a position that making payments is becoming a challenge, I would encourage you to visit with your attorney or counselor now and find out what options may be available to you.  I know that it is difficult to talk about financial problems and most individuals would like to pretend that things will get better, but I encourage you to get guidance in preparation of changes in finances now rather than later.

Medical Debt effect on bankruptcy

The bills incurred for medical expenses almost always place a strain on families – this is certainly true when the economy is in a decline.  The stresses that families go through when medical bills are incurred can be devastating.  However there are solutions that can and should be explored to alleviate these stresses. 

Recently, I was interviewed by Aaron Solomon of Channel 4 News (WSMV) to discuss the effects of debt and possible alternatives.  Please take a look at the video at the link below.

 http://www.wsmv.com/video/23313122/?taf=nash

90 Day Moratorium on Foreclosures

Recently, you may have read in the newspaper or heard on the radio that because we are in a flood damaged area that has been declared a disaster area that there is a ninety day moratorium, or temporary pause, in the foreclosure process.

It is important that people understand that this applies only to houses that are directly affected by the flood and not to anyone within the affected county. This means that your house was damaged or destroyed by the flood.

If your house was not damaged by the flood and it is in the foreclosure process or about to enter the foreclosure process you still need to take immediate steps to resolve the issue with your mortgagee/lender either directly or through the use of an attorney or credit counselor.

If your home was not directly damaged by the flood, but you suffered economic loss that has an impact your ability to pay your mortgage you may be able to qualify for the same ninety day moratorium. This will be handled on a case by case basis and you will need to provide evidence of your economic loss and need for the moratorium to apply to your mortgage as well.

Nashville Flood – Legal Help – John Jay Clark, Sr.

During the aftermath of the Nashville Flood, there are some things that you may forget to do that could have serious negative reprecusions on you later. So, the following is a non-exclusive list of a few things that you should do to make sure that you are protected.

If you recieve child support checks, social security checks or any other type of payment or government benefit on a regular basis and you have been displaced by the storm and/or the flood, you need to contact the agency and let them know where you have relocated, even if it is just a temporary move. Unfortunatly, these bad times breed some bad people and you do not want to lose your money to someone that just happens to find a mail box filled with mail becuase you are absent from your house.

Make sure you file an insurance claim even if you do not think that you are covered. Many federal programs require you to do this before you can qualify for aid.

Find your important legal documents. If they are lost or damaged beyond recovery, contact the appropriate businesses or agencies to get copies sent to you. While an important document is often defined by the person who has it, there are some documents that are essential for you to find or replace.

• The title to your car
• The Deed to your home
• Your drivers license
• Your Social Security Card
• Your Birth Certificate
• Medical records
• Shot and/or immunization records
• Stock and Bond Certificates
• Original Wills and/or powers of attorney or other legal documents (if these have been lost or destroyed they will need to be re-drafted and executed by a competent legal professional)
• Financial Records
• Tax Records
• Military discharge records
• Federal Employment Records
• Immigration Documentation
• Medicare Cards
• TennCare/Medicaid documents

This is certainly not an all intensive list but is intended to be a starting point. If you need legal assistance through this trying time do not hesitate to call upon us at the Gordon Law Group. We are ready and able to assist you with getting past this disaster. While no one ever wants to go through a disaster like the one that took place in Nashville, take this time to make sure that all of your affiars are in order.

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