Blog

Will a Personal Bankruptcy Affect my Small Business if I am Self Employed?

By Jonathan on October 24, 2009

With a sluggish economy, I have met with an increasing number of small business owners who are considering personal bankruptcy to deal with credit card debt and personal loans, but who want to keep their business assets and credits separate. Is this possible.

First, it does make a difference whether the small business is incorporated. If your small business is a proprietorship (i.e. “Tom Smith d/b/a Tom’s Lawncare”) then there is no way to separate personal assets and debts from business assets and debts. In this situation, all debts are “personal” because the proprietorship does not have a separate identity from the individual. All debts would have to be listed – for bankruptcy purposes in this situation, there is no difference between your personal credit card debt that arises from gasoline and grocery purchases and a credit card that you use for business purchases.

Assets of the proprietorship would be considered personal assets – assets that do not fit within the Georgia exemption statute would be at risk.

In a Chapter 7, if you have non-exempt assets you would have to surrender those assets to the trustee or offer to buy the “estate’s interest” from the trustee (usually at a discount from fair market value).

Note that any receivables of the business or any other property with potential resale value (i.e. customer lists, pending contracts) could be claimed as estate assets.

In rare instances a Chapter 7 trustee could object to your small business bankruptcy using an “income suppression” argument. This argument asserts that you should not be eligible for bankruptcy relief because you have intentionally suppressed your income by leaving a highly paid job or intentionally refused to maximize income opportunities.

If you are incorporated, the shares of your business are assets and you may very well be asked to justify a de minimus (i.e. $500) valuation that you put on those shares. I see this issue frequently when clients own service businesses. [Read more…] about Will a Personal Bankruptcy Affect my Small Business if I am Self Employed?

FDCPA Does Not Give Debt Collector the Right to Leave Messages on Your Phone Answering Machine

By Jonathan on October 18, 2009

As you may know, there are both federal and state laws that offer a variety of protections to individuals who are in debt and who are being dunned by debt collectors. The Fair Debt Collection Practices Act offers a variety of protections in cases involving collection agencies (as opposed to the actual creditor). In other words, a credit card company can do and say certain things and remain legal, but if a collection agency does or says the exact same things, those actions would be a violation of the FDCPA and make the collection agency subject to a claim for damages.

Two of the protections provided by the FDCPA include:

a prohibition against communicating with a debtor when the collection agency employee does not identify himself as a debt collector; and
communicating about your debt with third parties

The 11th Circuit Court of Appeals (which provides controlling precedent for Georgia) recently issued an important decision that struck down a somewhat bizarre argument by a debt collector regarding phone messages. This case benefits consumers by clarifying the rules about telephone messages by bill collectors.

The case of Edwards v. Niagara Credit Solutions involved a situation in which the debt collector (Niagara) left “bare bones” messages on a phone answering machine asking Ms. Edwards to call back about an “important matter.”

Niagara argued that its employee did not identify itself as a debt collector because someone other than the debtor might hear the message, thus violating the “third party communications” prohibition. [Read more…] about FDCPA Does Not Give Debt Collector the Right to Leave Messages on Your Phone Answering Machine

Median Income Numbers for Georgia Go DOWN!

By Jonathan on October 13, 2009

For the first time since means testing was instituted in 2005, the median income number in Georgia have gone down. This means that potential Chapter 7 debtors will have a more difficult time avoiding a “presumption of abuse” and the extra cost and hassle of means test calculations. Click to view the current median income table for Georgia.

Here is a comparison table

Current Median Income Numbers Median Income numbers
after November 1, 2009

Family size

1 $40,760 $40,691

2 $54,054 $55,258

3 $61,959 $61,104

4 $71,554 $68,502

Let’s consider how this change affects you if you have a family of 4. If you file by October 31, 2009, you can have household income of $71,554 and still qualify for Chapter 7 without having to qualify under the means test. As of November 1, 2009, if you earn $71,554, the presumption of abuse arises and you must try to qualify by rebutting the presumption using the means test.

If your six month average gross income (April-September) is close to the current median income numbers and you expect the May-October numbers to be similar, it may make sense to try to file prior to November 1 – or at least to discuss this possibility with your lawyer.

Should I File Chapter 13 While I am Receiving Workers’ Compensation?

By Jonathan on October 9, 2009

If you have been hurt on the job in Georgia and rely on weekly wage benefits from workers’ compensation you know that temporary total disability benefits payable per Georgia law will require you to downsize your standard of living. Sometimes the financial strain caused by your loss of a regular paycheck may lead you to consider Chapter 7 or Chapter 13 bankruptcy. What are the implications of pursuing bankruptcy while you are receiving workers’ compensation benefits?

My wife and law partner, Jodi Ginsberg, was recently questioned about this subject by a man who she is representing in a Georgia workers’ compensation case. This gentleman had been in a Chapter 13, but his case was dismissed after over 3 years when he got hurt and lost his regular income. Now that his Chapter 13 has been dismissed, one of his creditors has filed suit.

Jodi’s client wants to know if he should refile his Chapter 13 case to avoid having a judgment rendered against him. He is rightly concerned that a judgment creditor could seize his bank account and/or place a lien on his home.

Here is my take on this: while I think that a refiled Chapter 13 could work, I would be very reluctant to pursue this course of action. First, there is the practical question of whether Jodi’s client has enough disposable income to make a Chapter 13 work at all. I have not run the numbers in this case, but it would not surprise me if there is zero or negative cash flow in this prospective debtor’s budget – and a Chapter 13 will not work without some positive cash flow. [Read more…] about Should I File Chapter 13 While I am Receiving Workers’ Compensation?

FBI Warns Against Bankruptcy Fraud

By Jonathan on October 8, 2009

My Bankruptcy Law Network colleague Rachel Foley from Kansas City has written a useful article on the Bankruptcy Law Network blog that brings to light a problem that many debtors (and perhaps many debtors’ attorneys) don’t think about too much – bankruptcy fraud.

In my practice I observe that when they come to meet with me many prospective bankruptcy filers are angry – angry at harassing creditors, angry at their employer for cutting hours or jobs, and angry at some of the rules that apply when one files bankruptcy. Despite what some in Congress may say, no one wants to file bankruptcy and I have met many very nice, reasonable people who feel that they played by the rules and now they are going to have to start all over at age 40, 50 or older.

The net result of this anger sometimes is a sense of “us against them.” Sometimes this manifests itself in an attitude that the debtor will follow the rules mostly but who is going to harm if they don’t reveal a cash payment to a relative or the transfer of an old car to a brother.

As Rachel points out in her fine post, this sort of an attitude can really get you in trouble.

When you sign your name to a bankruptcy petition, you are declaring under oath that the information contained therein is truthful and accurate. If you leave something out intentionally you may not get caught, but, then again you may. The U.S. Trustee and the U.S. Attorney have been known to prosecute debtors to set precedent. [Read more…] about FBI Warns Against Bankruptcy Fraud

Another Debtor Ripped Off by a Foreclosure Scam (Part 2)

By Jonathan on October 4, 2009

Last month, I wrote a post describing a case that was recently heard by one of the judges in the Northern District of Georgia. In this case, a debtor had filed a Chapter 13 the day of a foreclosure. The lender was not aware of the bankruptcy so it went ahead with the foreclosure sale. Like many foreclosure sales in Georgia, the amount of the mortgage was equal to the likely value of the house so there were no bidders at the foreclosure sale. Instead, the lender bid the amount of the mortgage and was, in effect, the winning bidder.

By the end of foreclosure Tuesday, the lender’s law firm had learned of the Chapter 13 filing so the law firm did not “record” the foreclosure deed. Instead, the lender filed a motion to “validate foreclosure” asking the judge to permit the foreclosure to go through thereby divesting the debtor of title.

The debtor painted a very sad picture – he and his wife had four children of their own and a sister and her three children were also living in the home – and they faced homelessness if the foreclosure was allowed to go through. Further, the debtor claimed that he and his wife had been victimized by a “paralegal service” that had prepared emergency “two page” petitions then did nothing more.

The lender’s attorney took a very hard line – between the husband and wife, these debtors had filed 5 previous cases only one of which actually worked for more than a few months. The debtor was trying to scam the system and the court ought not permit such an action. Further, the debtor had used the same paralegal service twice – if they were a ripoff why did he use them a second time?

The judge, who is a compassionate and decent man, was clearly struggling with what to do. I felt that the lender’s attorney took the wrong approach. In my view the debtor and his wife came across more confused than pathologically dishonest. They clearly did not have entirely clean hands when it came to using the bankruptcy process to stop a foreclosure, but I could see that the judge was bothered by the idea that 7 children and two families might end up on the street.

In my previous post I asked what you thought would happen. Here’s what the judge did: [Read more…] about Another Debtor Ripped Off by a Foreclosure Scam (Part 2)