Written by Craig D. Robins, Esq.
A fascinating article in today’s New York Times illustrated the importance of defending a foreclosure proceeding – there can be a high degree of success. Sometimes it is quite possible to get a foreclosure suit totally dismissed.
The article featured one particular Brooklyn Supreme Court judge, and it explored his philosophy of evaluating the merits of the numerous New York foreclosure proceedings flooding his courtroom.
Courts Review Foreclosure Legal Papers
Judge Arthur M. Schack, who was interviewed for the Times article, discussed the incredible number of foreclosure cases that contain fatal defective errors. The judge, like many New York judges who review foreclosure proceedings, takes a magnifying glass to both the mortgage industry and the foreclosure lawsuit papers that come before him.
When homeowners were refinancing left and right several years ago, sloppiness with mortgage paperwork seemed to reign. So many mortgage papers have been lost, signatures misplaced and documents dated inaccurately that it is often not clear which bank or lender owns the mortgage. These problems often result in fatal defects, which, if brought to the attention of the court, can result in the foreclosure case being kicked out of court.
Foreclosure Defense Attorneys Are Often Necessary to Bring Foreclosure Litigation Defects to the Attention of the Court
Although some judges scrutinize each and every foreclosure lawsuit document, other judges will only review those defects that the homeowner’s foreclosure defense lawyer brings to the attention of the court, underscoring the importance of engaging in foreclosure defense.
Mortgage lenders frequently make mistakes. For those in foreclosure, having an experienced Long Island foreclosure defense attorney, such as those in my firm, review foreclosure lawsuit papers to determine how to best defend foreclosure, can sometimes work to save a home or delay the proceeding.
In a future post I will outline a recent case where I was successful in persuading the court to totally dismiss the foreclosure proceeding. Here is the link to the New York Times article entitled, “A ‘Little Judge’ Who Rejects Foreclosures, Brooklyn Style.”
Related posts:
- Long Island Foreclosure Case Dismissed! Written by Craig D. Robins, Esq. Mortgage Company messes...
- Long Island Has the Highest Foreclosure Rate in New York State Written by Craig D. Robins, Esq. Whatever benefits...
- New York Homeowners in Foreclosure May Get More Time Written by Craig D. Robins, Esq. This past September,...
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Written by Craig D. Robins, Esq.
Written by Craig D. Robins, Esq.
Almost all pensions are protected in bankruptcy proceedings, whether the debtor files here in New York or in any other state
Here’s why: In a 1992 United States Supreme Court case, the court ruled that any pension plan that is “ERISA qualified” is excluded from the bankruptcy estate.
“ERISA” is the Federal Employee Retirement Income Security Act of 1974. Under this act, pension plans, 401-K plans, and other “ERISA-qualified plans” are specifically protected from creditors because of a prohibition from being assigned or alienated.
This means that the pension never even becomes part of the bankruptcy estate. (The bankruptcy estate consists of those assets owned by the debtor which the trustee can go after if the assets are not exempt). When an asset like a pension plan is excluded from the bankruptcy estate, it remains the property of the debtor and the trustee cannot touch it.
Also, since pension plans are not part of the bankruptcy estate, you don’t even have to ascertain whether there is an exemption statute to protect it. It is already protected.
So, simply put, an ERISA-qualified plan cannot be used to satisfy the claims of creditors in a bankruptcy proceeding and should therefore be totally protected.
How can you tell if a pension plan is ERISA-qualified?
Pension plans usually have a pamphlet of information about the plan which contains information about the plan’s tax status. Most employers give a copy of the pamphlet at some point, but if misplaced, additional copies can usually be obtained easily.
The best assurance that a plan is ERISA-qualified is when the plan contains a copy of a favorable ruling letter from the IRS indicating that the IRS has determined that the pension plan is in compliance with the tax code and meets tax qualification requirements. Incidentally, a plan could conceivably be considered tax-qualified even if it has not received a favorable ruling letter from the IRS, and even if it is not in compliance with the tax code, as long as the debtor is not materially responsible for its noncompliance.
One important note: Although the pension plan may be protected, recent contributions, if very large, may not be.
Of course, making sure a pension or retirement account is ERISA-qualified and protected is extremely important. This is one of the many things an experienced bankruptcy attorney should do, and we do this regularly with our Long Island bankruptcy clients.
Written by Craig D. Robins, Esq.
Written by Craig D. Robins, Esq.
Written by Craig D. Robins, Esq.
Senior citizens can be prone to debt problems
With fixed incomes and unexpected expenses, senior citizens are at high risk for getting into debt – and they have less time to pick up the pieces.
In my Long Island bankruptcy practice, we are seeing more and more seniors utilizing bankruptcy to deal with their debts.
A recent 
Written by Craig D. Robins, Esq.
Exemption statutes are the laws that enable debtors to keep and protect certain assets. There are set values for most exemptions.
Some of the most important exemption categories can be doubled if a husband and wife file a joint bankruptcy petition in the state of New York.
For example, the homestead exemption in New York is $50,000. If a husband and wife file a joint bankruptcy petition, and they own the house together, they can pool their homestead exemptions for a total of $100,000 of bankruptcy protection.
With jointly-held bank accounts, married debtors filing a joint bankruptcy petition can exempt a total of $5,000, rather than the exemption amount of $2,500 per person.
The exemption for cars, however, cannot be doubled, as the exemption amount is per car, and not per person.
Written by Craig D. Robins, Esq.
As someone who spends a great deal of time writing bankruptcy articles, it is quite upsetting to see so much incorrect and erroneous information about New York bankruptcy law on the Internet. Consumers need to be aware of this.
I frequently do Internet searches on various bankruptcy topics and I am constantly amazed and disappointed at the extremely poor quality of the information on some websites.
There are three main reasons why some online bankruptcy information is bad
1. Various websites are designed for the sole purpose of persuading those who land on their site to “click through” to another sight that advertises on their site. These “click through” sites often manipulate search engines to appear at the top part of a search. In addition, they are run by out-of-state companies who basically make similar websites for each state.
2. Some websites appear to contain data about New York bankruptcy law, but these sites are really owned by out-of-state companies and are designed to steer consumers into providing information about themselves that will be used for “sales leads.” These companies then sell this information to others and promise that a local bankruptcy attorney will contact them. Notice how these sites never give any information about the local bankruptcy attorney.
3. Many websites actually belonging to local New York bankruptcy attorneys have content on them that the attorneys, themselves, do not write. The bankruptcy articles and material is actually written by someone else in a distant part of the country. The New York bankruptcy attorneys who engage in this conduct merely purchase content written by others, and place it on there site, as if they wrote it themselves.
I observed some bad bankruptcy information online today
In the above situations, there are sometimes egregious errors and misstatements. They are not written by a New York bankruptcy lawyer, and the authors do not necessarily have your best interests in mind.
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For example, earlier today I observed a site that indicated that consumers filing bankruptcy in New York can use both the federal exemptions and the state exemptions. This is absolutely not true (you can only use New York State exemptions). I then found another site that provided downright incorrect exemptions for New York bankruptcy cases.
I am proud to say that all of the posts, articles and information on my blog is written by me (or in some cases, by other attorneys in my office or student interns). All information is well-researched and contains a by-line by the author.
After practicing 25 years, most of which I devoted to bankruptcy law, you can rest assured that the information contained in my blog is current, accurate, and hopefully helpful.
Written by Craig D. Robins, Esq.
The United States Trustee Manual has some unusual and interesting provisions buried in its many pages. One concerns bringing your own security guards to the meeting of creditors in Chapter 11 bankruptcy cases. This is somewhat unusual considering that bankruptcy proceedings tend to be non-controversial and non-violent.
Section 3-5.14 of the Manual concerns security at section 341 meetings. It provides that if the debtor believes that there may be security problems at a particular meeting, it should notify the United States Marshal’s Service in advance.
In addition, the provision further states that the debtor may hire security guards to be present at the meeting to deter potential security problems.
I can’t imagine a situation where this would be necessary, but if a Chapter 11 debtor has plenty of enemies, this provision can provide some additional protection.
Written by Craig D. Robins, Esq.
I previously wrote that it is highly unlikely that creditors will show up at the meeting of creditors, which is also known as the section 341 hearing. See 
Bankruptcy debt relief helps many typical consumers, but sometimes celebrities have debt problems also. Last month movie actor Stephen Baldwin, a Massapequa native, filed for bankruptcy after his mortgage company began foreclosure proceedings against him.
A famous sports star also filed bankruptcy last month. Former Major League Baseball All-Star Lenny Dykstra, a fixture of the New York Mets, filed a bankruptcy petition which indicated his debts were between $10 million and $50 million. Dykstra had built a financial empire of various businesses which unfortunately did not work out.
Last week, the venerable magazine and publishing phenomenon, Readers Digest, also sought Chapter 11 bankruptcy relief to restructure $2.2 billion in debt.
Celebrity photographer Annie Leibovitz has been rumored to be considering bankruptcy now that a lender is suing her over a $24 million loan.
Written by Craig D. Robins, Esq.
When any bankruptcy petition is filed, a very powerful federal law is immediately triggered called the automatic bankruptcy stay. The stay prohibits any creditors from taking any action to collect a debt, and this includes those harassing and annoying phone calls from bill collectors.
The very minute your petition is filed, the law says that debt collectors can no longer call you. However, it could take a few days for them to receive notice of the filing, the bankruptcy court mails to them.
If creditors call you after the bankruptcy petition is filed, all you need to do is tell them that you filed for bankruptcy relief and give them the chapter (7 or 13), court location and case number.
With our Long Island bankruptcy clients, once they retain us, we authorize them to tell their creditors that they can verify the retention by calling our office. Most creditors, once they know that a customer has retained bankruptcy counsel, will leave them alone for several weeks. Thus, if you retain our firm, a good amount of the collection calls will stop immediately.
Written by Craig D. Robins, Esq.
The meeting of creditors is open to the public and anyone can attend — except one very important person — the bankruptcy judge assigned to the case.
You’d think that the bankruptcy judge might want to know what’s going on in the meeting of creditors, which is the informal hearing conducted by the trustee to examine the debtor. However, bankruptcy judges are barred by law from doing so.
This prohibition didn’t always exist. Our current bankruptcy code went into effect in 1979. Prior to that time, judges were able to attend the meeting of creditors. However, Congress thought it was necessary to prohibit judges from attending the meeting to avoid any bias.
Accordingly, Bankruptcy Code section 341(c) provides that “the court may not preside at, and may not attend, any meeting under this section.”
Although the meeting of creditors is held in the courthouse, it is not a court hearing and the trustee presiding over the meeting is not a judicial officer. Incidentally, in most Chapter 7 consumer cases, the debtor will never even appear before the judge assigned to the case and will never meet their judge.
Written by Craig D. Robins, Esq.
A bankruptcy filing immediately stops bill collectors. The entire process typically lasts three and a half months.
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The first part in any bankruptcy case is preparing the petition and filing it with the bankruptcy court.
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Once a client retains us, it usually takes anywhere from a few days to a few weeks to gather the necessary information, prepare the petition, and have it signed, although in emergencies, this can be done in a day. Prior to filing, the debtor must also take a mandatory 30-minute credit counseling session, which can be done by telephone or on-line.
Once we file the petition, which we do electronically (right from our office into the court’s computer), the protections of the bankruptcy stay go into effect, making it illegal for any creditor to contact the debtor.
About one month after filing, there will be a brief meeting in the Bankruptcy Court called the meeting of creditors. This is when the trustee will ask the debtor questions.
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With most of our Long Island bankruptcy clients, attending the meeting of creditors is basically the end of their obligations in the bankruptcy process, although they also have to do a second, thirty-minute credit counseling session, called debtor education, which is also done over the phone or by computer.
In some cases, however, the trustee will request some additional documents to review, such as bank statements, tax returns or deeds.
Creditors technically have 60 days from the date of the meeting of creditors to file objections to discharge. This is very rare and occurs in far less than one percent of all cases filed. The date which is 60 days after the meeting of creditors is called the “bar date” because creditors are barred from filing any objections after that time.
Once the bar date passes, and assuming the debtor has taken the debtor education course (we have to file a certificate with the court indicating that), then the bankruptcy court clerk’s office will process the final paperwork and issue the order of discharge and close the case.
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In most instances, this usually occurs about three and a half months after the date the bankruptcy petition was filed. At that point, all dischargeable debt (such as credit card debt) has been forever eliminated and the debtor is on his or her way to enjoying their fresh, new financial start.
Written by Craig D. Robins, Esq.
Can Bankruptcy Be a Laughing Matter?
Last week I posted the debut of 
Written by Craig D. Robins, Esq.
From time to time I have a client who expresses guilt about filing for bankruptcy and walking away from their debts. However, they should not feel guilty. The government put the bankruptcy laws in place for good reason.
Society needs a way to enable people to hit the reset button and start over when necessary. When a consumer gets overwhelmed by debt, and they are clearly over their head, that’s the time for them to consider bankruptcy as an option for relieving their debt situation.
The concept of bankruptcy began with provisions in the bible which permitted one’s debts to be forgiven every so many years.
Unless someone is abusing the system, the should not feel guilty about filing for bankruptcy.
Written by Craig D. Robins, Esq.
The bankruptcy laws and exemption statutes permit debtors to keep and protect various specified assets in Chapter 7 bankruptcy cases. See 
Written by Craig D. Robins, Esq.
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Every consumer debtor who files for bankruptcy, be it Chapter 7 or Chapter 13, will be examined by the trustee at a hearing called the meeting of creditors. Also known as the section 341 hearing, it is held at the bankruptcy court about a month after the bankruptcy petition is filed.
If you live on Long Island, your hearing will be at the Central Islip Bankruptcy Court. If you live in Brooklyn or Queens, your hearing will be at the Brooklyn Bankruptcy Court.
During the examination, which frequently lasts just a matter of minutes, the trustee will question the debtor in the presence of their attorney. The trustee will ask questions about the debtor’s assets and liabilities, and the reasons why the debtor sought bankruptcy relief.
One key issue for debtors is: How much should you talk, in response to the trustee’s question?
The simple answer is: As little as possible.
Many of the questions the trustee will ask require a simple “yes” or “no” answer, and that’s all you should respond with: “yes” or “no”. Providing any additional information can only get you into trouble by opening up a can of worms that could lead to the trustee to ask even more questions.
If the trustee asks a question that requires that you explain something, you should do so accurately and honestly, but also as simply as possible.
I have seen many debtors, who, being a little nervous, say far too much, and provide additional information that the trustee did not ask for. Remember, only answer the trustee’s question and do not volunteer any other information. As long as you answer the question truthfully, then you’re O.K.
The only exception is if you have a very compelling reason as to why you fell into debt, such as being unable to work because of a serious illness. In such instances, you should talk about your compelling medical issues as much as possible.
Incidentally, assuming you have an experienced bankruptcy attorney who has prepared you for the meeting of creditors as we do, you should not be surprised by the trustee’s questions, as your attorney will have already reviewed them with you.
Written by Craig D. Robins, Esq.
Even though some economists recently suggested that the recession may be abating, such projections weren’t apparent in figures just released showing that personal bankruptcy filings have reached 1.25 million for the one-year period ending June 30, 2008, an increase of 34% over the year before.
As I reported previously, we are on our way to a record high number of filings not seen since the bankruptcy laws were changed in 2005. See 
Written by Craig D. Robins, Esq.
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Although a bankruptcy filing is often the best solution to an unmanageable debt problem, some consumers should not to avail themselves of Chapter 7 bankruptcy relief.
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Here are five types of situations where Chapter 7 bankruptcy may not be a realistic option:
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Too Many Unprotected Assets. When filing for bankruptcy, you can keep and protect certain assets. Some consumers have a significant amount of non-exempt assets that could be forfeited to a bankruptcy trustee. See: 
Written by Craig D. Robins, Esq.
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For lack of a better term, I often have “repeat customers” coming back to see me at my Long Island bankruptcy law offices. It is unfortunate, but consumers who have totally eliminated all of their debts in a bankruptcy filing years ago can sometimes find themselves in debt again — especially in these difficult economic times.
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The other possibility is that they liked bankruptcy so much the first time around, they want to do it again.
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“Can I File Bankruptcy Again?”
This is the question I get from every one of these clients. Fortunately, the answer is YES! However, when the bankruptcy laws were changed in 2005, various waiting periods were imposed. In every case, you can file bankruptcy again; it’s just a question of how long you have to wait.
Four Important Notes About Filing a Second Bankruptcy Case
The first important note you need to know is that the waiting period starts from the date you filed your prior bankruptcy petition and ends on the date you filed your second bankruptcy petition.
The second important note is that you only have to wait if you received a discharge in your prior case. If you did not receive a discharge, you can file immediately. For example, if you filed a Chapter 13 bankruptcy case, and it was dismissed because you were unable to make payments, you do not have to wait at all to re-file a second case (provided, of course, that you meet other necessary criteria — speak to an attorney about this).
The third important note is if your prior case was a Chapter 13 bankruptcy case in which you paid back your unsecured creditors at least 70%, then you do not have to wait at all.
The final important note is that the waiting period does not prevent you from filing again; it just prevents you from getting a discharge. You can still file without waiting — you just do not get the benefit of the discharge. Why would you do this? If the sole purpose of re-filing is to stop foreclosure, you probably do not need to wait several years, as you still get the benefit of the bankruptcy stay in a Chapter 13 case as well as the ability to cure arrears with a payment plan.
The Waiting Periods Are 2, 4, 6 and 8 Years
Two Years
If your prior case was a Chapter 13 bankruptcy case and your new case will be Chapter 13, then the waiting period is only two years.
Four Years
If your prior case was a Chapter 7 bankruptcy case and your new case will be Chapter 13, then the waiting period is four years.
Six Years
If your prior case was a Chapter 13 bankruptcy case and your new case will be Chapter 7, then the waiting period is four years.
Eight Years
If your prior case was a Chapter 7 bankruptcy case and your new case will be Chapter 7, then the waiting period is four years.
Important Note for homeowners in foreclosure: Even if you do not qualify to file again based on the above criteria, you can still file for Chapter 13 if the primary concern is curing mortgage arrears. In this instance, you will not receive a Chapter 13 discharge, but you will be able to cure all of your mortgage arrears and stop foreclosure.
The Above Waiting Periods Can be Tricky, So Get Good Bankruptcy Advice
Since the new bankruptcy laws made repeat filings somewhat complicated, it makes sense to meet with an experienced bankruptcy attorney who can give you the appropriate advice about filing a second bankruptcy.
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These Waiting Periods to Re-File Bankruptcy Apply In Every State
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A number of my blog readers located outside of New York have asked if these guidelines apply in their home state. They do. The waiting periods are the same no matter what state you file in.
For more info about repeat filings, see my full-length post that was published in the Suffolk Lawyer – 
Written by Craig D. Robins, Esq.
Ever since I started practicing bankruptcy law over twenty years ago, I’ve relied on one law book more than any other: 
Written by Craig D. Robins, Esq.
Is Bankruptcy Funny?
New York bankruptcy attorney Steven Horowitz and artist Gideon Kendall, the geniuses behind the comic strip, 
Written by Craig D. Robins, Esq.
Written by Craig D. Robins, Esq.
Newsday calls on Congress to permit bankruptcy cram-down and bankruptcy modification of mortgages
An editorial in today’s Newsday commented that foreclosures on Long Island are still rising, pointing out that voluntary programs are not doing the job, and Congress needs to get more involved with stubborn lenders.
“Underwhelming” was the word Newsday used to describe federal efforts to help homeowners avoid foreclosure.
The problem is that the two major initiatives — “Making Home Affordable” and “Hope for Homeowners” — both rely on lenders to voluntarily modify or refinance loans. However this has not worked, especially on Long Island.
Congress needs to revisit proposed legislation to authorize bankruptcy judges to modify or “cram down” mortgages. See my post, 
Written by Craig D. Robins, Esq.
I recently attended a dinner for an attorneys organization that I am a member of and sat with a bankruptcy judge and two Chapter 7 trustees. During the dinner, we had an interesting discussion over whether trustees should liquidate vehicles that had some, but not too much, non-exempt equity.
This conversation began when the judge asked the trustees why they weren’t going after more cars that appeared to clearly have value over the exemption amount. The trustees explained that from time to time the Office of the U.S. Trustee puts pressure on the trustees to either go after, or not go after, certain non-exempt assets.
Apparently, for a period of time, some trustees were seeking to liquidate vehicles with very little non-exempt value, thereby resulting in a very small distribution for creditors in the bankruptcy estate. The primary beneficiaries of such sales were the trustees, who received commissions and legal fees, rather than the unsecured creditors, who barely received pennies on the dollar. Apparently, this was giving trustees a bad name. One of the trustees said that trustees were being called “money grubbing trustees” and other not-so-nice names for doing so.
This trustee explained that at other times, the U.S. Trustee’s Office actually issued totally opposite directives, calling on trustees to be more vigilant and aggressive.
In the meantime, the judge questioned the fairness to creditors if trustees let such assets go. My trustee colleagues countered with these comments: it is simply not administratively convenient to go after an asset that produces such a small recovery for the estate. Also, some debtors do not have the financial ability to offer any settlement to the trustee. The trustee commented that he never saw so many debtors in a destitute situation.
I pointed out the inequity of the New York State exemption statute for vehicles, which, not having been changed in over 25 years, hardly gives consumers any protection at all.
So when a trustee is considering going after a non-exempt asset, the trustee will be guided by comments and directives from the U.S. Trustee that are not made public, comments they receive from the bankruptcy judges, and their own assessment and determination as to whether doing so is feasible and economically worthwhile for the bankruptcy estate.
Written by Craig D. Robins, Esq.
There are essentially three bankruptcy chapters that consumers and businesses will consider: Chapter 7, Chapter 13 and Chapter 11
Chapter 7 Bankruptcy: This is the most common and simplest type of bankruptcy and the one most utilized by consumers. Chapter 7 gives a debtor the opportunity for a fresh new financial start by discharging most debt, such as credit card debt and medical bills. 
Written by Craig D. Robins, Esq.
Several times a month, without fail, clients come running to me to urgently file for bankruptcy relief because they put it off. Why did they come running? A creditor froze their bank account.
When a consumer has significant credit card debts, being sued is almost inevitable — it’s just a question of time. After being sued, it’s also just a question of time before the creditor (or their collection lawfirm to be exact), seeks to enforce the judgment. This often involves issuing a restraining order which freezes all bank accounts.
I wonder why these clients wait until the last minute to file bankruptcy. Some of them had even retained me months before, but then put off finalizing their bankruptcy petition and paperwork.
I suppose to many, bankruptcy is perceived of as an unpleasant experience, and it is human nature to put off unpleasant events. However, most of my clients feel extremely relieved once we do file their petition, and many comment that the proceeding went much smoother and painlessly than they anticipated.
With financial problems, the longer you wait, the worse the problems become. Wage garnishment, repo’s, harassing phone calls, lawsuits and frozen bank accounts all come to an end once a bankruptcy petition is filed.
Written by Craig D. Robins, Esq.
Written by Craig D. Robins, Esq.
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Getting good Long Island bankruptcy legal advice is extremely important
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I can’t tell you how many times a bankruptcy client comes in to meet with me, and after I explain how a bankruptcy filing would work, the client says, “But that’s not how it worked with my Uncle Joey’s case. He gave me special advice and told me what to do.”
Even worse is when a client tries to get away with something improper in bankruptcy court because a friend or relative told them they could.
There is only one person who can give good bankruptcy legal advice and that is a qualified and experienced bankruptcy attorney. Don’t listen to Uncle Joey. Don’t listen to friends or co-workers. What may or may not have happened in their cases has nothing to do with your case. Facts can be different; the law might have changed; circumstances are never identical.
Even well-intentioned friends and relatives can provide bad advice. When it comes to considering bankruptcy relief in a United States Bankruptcy Court, you need to get good, proper and correct bankruptcy legal advice.
Written by Craig D. Robins, Esq.
After hearing so many debtors at the meeting of creditors address their trustee as, “Your Honor,” we need to set the record straight. The trustee is not a judge, nor is the trustee a judicial hearing officer. Do not call the trustee, “Your Honor.”
I usually tell my clients about this in advance of their hearing, but I see so many clients of other attorneys address the trustee with more respect than the trustee deserves.
Only judges should be referred to as, “Your Honor”; not trustees.
Interestingly, many of the trustees do not correct the debtor when so addressed, although some certainly do.
Judges have come a long way to ascend the bench and deservingly warrant a certain degree of respect. Chapter 7 Trustees, on the other hand, are simply bankruptcy attorneys who have sought to be placed on the panel of trustees. There are nine Chapter 7 trustees on Long Island. There are two Chapter 13 trustees. See 
Written by Craig D. Robins, Esq.
Since 2003, the Central Islip Bankruptcy Court has required all Long Island bankruptcy attorneys to file their clients’ bankruptcy petitions electronically — that means by computer over the internet.
Known as Electronic Case Filing, or E.C.F., this has made the filing process extremely efficient. After my client signs his or her bankruptcy petition, one of my paralegals makes an electronic file copy of it (called a PDF copy) which we then send to the bankruptcy court’s computer right from our desk.
Not all attorneys are permitted to file electronically. Attorneys must register with the bankruptcy court and take a seminar that the court offers before being allowed to use this filing system.
With electronic case filing, in an emergency, a bankruptcy petition can be filed in minutes without leaving the office.
Written by Craig D. Robins, Esq.
Our country’s bankruptcy system is a necessary safety net according to a story last week in the 
Written by Craig D. Robins, Esq.
Since the bankruptcy laws were changed in 2005, Chapter 7 eligibility is no longer guaranteed. Debtors must demonstrate that they are qualified to file a Chapter 7 petition by showing that they pass the means test.
The means test is a comprehensive, extremely complex series of calculations that the federal government designed to ascertain whether a consumer qualifies for Chapter 7 filing. This is the first item the Office of the United States Trustee will look at when reviewing a new case, and it is usually the first thing a Chapter 7 trustee will look at as well.
Having experienced bankruptcy counsel to prepare the means test may make the difference between passing it or failing it. An experienced bankruptcy attorney will know what expenses and deductions are permissible and where the bankruptcy court stands with interpreting the means test law.
To date, there have been hundreds of bankruptcy court decisions from around the country, written in the past three years, analyzing the 2005 Bankruptcy Amendment Act. These cases state how the law should be applied in ascertaining if a debtor has completed the means test properly. Obviously, it can be critical for bankruptcy counsel to know the current state of the law when analyzing a client’s case.
The attorneys in my firm regularly review the latest bankruptcy court decisions. I have written extensively about many of these cutting edge cases on this blog. When choosing a New York bankruptcy attorney, consider one who has the experience necessary to ensure that the means test is done right.
Written by Craig D. Robins, Esq.
Whether you file for Chapter 7 bankruptcy or Chapter 13, you will have a brief hearing at the bankruptcy court which is called the meeting of creditors.
Also known as the section 341 hearing, this is when the court-appointed trustee will examine you and ask you questions about your case. Even though it is called the meeting of creditors and even though your creditors will receive notice of the meeting, it is highly unlikely that they will show up.
For the most part, credit card companies and creditors who are owed medical debt will not attend, but some creditors are much more likely to appear: a local individual creditor who may have given a personal loan to the debtor, a separated or divorced spouse who is owed maintenance and support, or a business creditor whose account the debtor personally guaranteed.
These types of creditors may show up on their own, or with counsel who is not familiar with bankruptcy procedure, or with very experienced bankruptcy counsel. Sometimes a local creditor will attend because they are unsophisticated and under the mistaken notion that they are required to appear.
Written by Craig D. Robins, Esq.
Several months ago I reported on the legislative efforts in Congress to pass a bill permitting consumer debtors in Chapter 13 cases to be able to cram-down mortgages. See 
Written by Craig D. Robins, Esq.
Consumer debtors who file for Chapter 7 or Chapter 13 bankruptcy in New York, are allowed to keep certain possessions that are “exempt.” Exemptions are statutes which indicate what assets you can keep and protect while eliminating debts in a bankruptcy proceeding.
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Written by Craig D. Robins, Esq.
Chapter 7 bankruptcy is a way out of the credit card trap. It can mean the difference between getting a fresh new financial start or being burdened by credit card payments for 20 years.
It’s a shame, but too many consumers do not understand the ramifications of bad credit card debt.
Credit card companies try to keep consumers in perpetual debt — that’s how they make money. What’s worse is that many people don’t realize the true cost of credit and the vicious cycle of monthly interest payments.
Take this example. A family who already carries a significant balance on their credit cards wants to buy the latest flat panel TV for $3,000. Of course, they charge it. When it comes to paying the credit card bill, they only make the minimum payment. Assuming that the interest rate is about 20%, it will take them about 39 years to pay that purchase off. What TV is worth that?
On the other hand, if they had no pre-existing credit card debt, they might be able to pay off the TV debt within a few months. This underscores the importance of eliminating pre-existing credit card debt.
For those that qualify, filing a Chapter 7 bankruptcy will eliminate all pre-existing credit card debt, thereby greatly enhancing one’s financial integrity and providing a fresh new financial start.
Here’s another example. Let’s take a Long Island family earning a respectable income of $125,000. For various reasons, the husband and wife let $65,000 in credit card debt build up. If they only make the minimum payments, they will still owe almost the entire amount in 20 years, yet they will have paid about $1 million in interest over that period.
If they qualify for Chapter 7 bankruptcy, their choice would be: eliminate all credit card debt and get a fresh new start — or — pay $1 million in interest over the next two decades and still owe a substantial amount.
Certainly, filing Chapter 7 is an option that should be explored and considered.