Published Monday, March 15, 2010 @ 6:27 pm

Exacerbated by the recent “Great Recession,” small business owners everywhere are not only facing high employee health care costs and lagging consumer and commercial spending, but also fewer credit options. While loans have always been the lifeblood of the small business, all across our great nation, mom and pop endeavors with even the most solid credit histories face tremendous obstacles in qualifying for much-needed capital.

In a recent McClatchy article entitled “Too small to succeed? Firms still can’t get loans they need,” small businees owners—from California to the Carolinas—share their personal struggles behind the credit crunch.

“Jim Collins, co-owner with his wife Arlene of Quantum Energy Solutions, has been in business in Sacramento, California, since 1974. He has a $50,000 line of credit, backed by the U.S. Small Business Administration, through US Bank, owned by US Bancorp. He has a solid credit history and $30,000 in untapped credit. Yet when Collins approached the bank about borrowing at least $500,000 to expand his 12-employee firm — which retrofits buildings with energy efficient technologies — he was rebuffed, told that his company lacks resources and collateral. US Bancorp declined comment. Collins, 70, can’t get the money he needs to hire five additional workers and ramp up marketing, even as the Obama administration promotes the “green jobs” of the future. ‘The credit crunch is still there. It really impedes our ability to grow,” he said. “I’d put five more people to work tomorrow.’”

Because small business accounts for some 65% of employment in a nation already facing off-the-charts job losses, any squeeze on small firms is a serious matter—with last year’s disconcerting lending figures illustrating just how serious—for the long haul.

According to the Federal Deposit Insurance Corp, the United States economy made 7.4 percent fewer loans in 2009, the largest lending drop since 1942 and marking an estimated $1.5 trillion lending deficit. As McClatchy reports, “corporations are issuing bonds again, and large companies have access to bank loans, but it’s still an uphill climb for the little guy. ‘There’s a big gap in access to credit for small firms now, and it’s a huge problem,’ Karen Mills, the head of the Small Business Administration, told McClatchy. ‘We have a sense that the banks are not back to lending the way that they need to be, going forward.’”

Another victim of the credit crunch—this time on the East Coast—is North Carolina’s Bob Kingery, co-founder of Southern Energy Management in Morrisville, NC. While Kingery’s firm normally makes a good living installing solar photovoltaic panels for businesses throughout the Southeast, “in the past two years, about 15 projects have been scratched or delayed indefinitely as customers scramble for financing options. The tight credit market has tied up about $30 million in business, Kingery calculates.”

Based on last year’s anemic lending figures and the continuing trend of evaporating loans for small business, many mom and pop endeavors are seeking shelter through the benefits of bankruptcy.

The truth remains, if you are no longer able to sustain or expand your business in your current financial situation, filing for bankruptcy may be your best bet. And, in this case, the best move a beleaguered small business owner can make is to consult an experienced bankruptcy attorney who specializes in small business cases. Skilled bankruptcy attorneys like those at The Law Offices of John T. Orcutt can get to work early, navigate any uncertain waters of bankruptcy court and work in your best interests during the duration of your small business bankruptcy. The attorneys at The Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Thursday, March 11, 2010 @ 2:40 pm

Currently unemployed and getting unemployment benefits?
Then, this message is for you.

In this horrible economy, there is no guarantee that you will get another job or…even if you do…when.

And…those life-saving unemployment benefits? They are going to run out and when they do…that’s it.

Imagine the worse…no job…and no more unemployment benefits.

What would (will) you do? Will you look back and wish you had saved some of these benefits for your “rainy day”?

When you are sitting there with no job and no more unemployment benefits…when you are not able to put food on your table or pay your rent or mortgage…or put gas in the car…will you look back and wish you had done something more to make those unemployment benefits stretch a lot further?

Will you look back and kick yourself?

Will you look back and wonder what you were thinking…now that you can’t even pay your essential monthly bills…when you were using those precious unemployment benefits to pay on non-essential items like credit cards and medical bills…especially when you find out that there was something huge you could have done…when you find out that…in these dire straits…in this horrible economy…with no end in sight…you could have filed bankruptcy and gotten rid of all those debts?

Without doubt…you are a good person and good people do their best to pay all their bills. That’s what makes you honest.

But…when it comes down to having made a choose to pay on credit cards and medical bills, rather than having made a choice to save up some of that money to keep a roof over your family…and you ask yourself…in retrospect…which was more important…your creditors or your family…what will be your answer?

Your family of course.

Well…you already lost one or more jobs.

What makes you so sure that you will get another job…or get another soon enough to avert disaster?

And…even if you do get another job…maybe even one as good as you used to have…what says you won’t lose that job too?

The fact is that this economy is the worst that any of us have ever seen and…for as much as we all want to believe otherwise…there is no end in sight.

Quite the contrary! We have all dug ourselves a huge hole and it could well be 10 years before we dig out.

You have a chance here…if you will grab it…to look back and know that you make the tough choice and filed bankruptcy and gotten rid of all those debts…and…more importantly…put yourself in a position to keep some of those precious unemployment benefits in your pocket as a hedge against running out of money before, if and when things pick back up for you and your family.

Think about it. Are you on unemployment? Are you paying out any of this precious…one-time-only…money on credit card debt, medical bills and other “unsecured” debts?

If things don’t work out for you…if things don’t pick up and quickly…won’t you need this money to…make sure that your family survives…no matter how bad things get?

Filing bankruptcy NOW…before your unemployment benefits run out…may be the smartest thing…looking back…you ever did. It could well be the difference between your family surviving…when other families do not.

This is your chance to invest in your future…by making sure you don’t keep dragging along with you debts you know are sucking up money that you may well need to take care of your family.

Do you really want to chance it…by not filing bankruptcy?

Wouldn’t it at least make sense to find out how this whole bankruptcy thing works and what all it could do for you…to take away the guesswork and find out for sure from a lawfirm that does this stuff for a living 24/7/365?

You certainly don’t want to be looking back later, wishing you had taken the time to find out more and thinking “That was dumb.”…or worse.

And the best thing is…you can find out all about bankruptcy and what it can do for your family…for FREE…and at NO-RISK.

Find out answers & options for FREE!

Why? Because we offer a totally FREE ANALYSIS of your entire financial situation.

This means you can come in, sit down, get all the answers, and find out all your options (bankruptcy and othewise)…and do it for FREE. GUARANTEED!

Our 10 EXCLUSIVE GUARANTEES!

And…that’s not all. To make you feel more willing and less hesitant to come see us…know that we offer 10 different GUARANTEES. We just want you to get this valuable information…and to know that you can do so…AT ABSOLUTELY NO-RISK.

Want to find out about our 10 GUARANTEES? (Click Here)

If you know us at all, you know that we are not high-pressure. That’s just not who we are or how we work. The truth is…we don’t need to “sell you” on anything. If you need it…the help and relief the bankruptcy laws provide sells itself.

Trust me on this…when I say “You will be amazed when you find out…not what you have always heard but…how bankruptcy really works”…we’re not kidding and we’re not exaggerating.

The truth is the Bankruptcy Laws are the biggest secret there is…right in plain view.

You see, what happens is that you have heard so much bad about bankruptcy that…if you are like most people…you turn off at the mere mention or thought of filing bankruptcy.

But…even though you don’t know me…do me one favor. Don’t believe it. Don’t believe what you have heard. It does not work at all the way you have been told.

There is a good reason why 1.5 million families filed for bankruptcy last year…and it wasn’t because bankruptcy was so bad. Think about it…Maybe it was because…in reality…bankruptcy was so GOOD.

Maybe filing bankruptcy is right for you…maybe not.

But with a totally FREE ANALYSIS available to you…you have nothing to lose.

So, don’t wait. Call today!

Better yet, call now because every dollar of your hard earned unemployment benefits you spend on bills and debts you could get rid of…is…arguably…a dollar wasted…and a dollar wasted is a dollar no longer there to take care of your family.

During normal business hours…call toll free 1-800-899-1414

The Law Offices of John T. Orcutt
Offices in Raleigh – Durham – Fayetteville – Wilson

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Published Sunday, March 7, 2010 @ 8:10 am

Before you begin the bankruptcy process, it’s important to understand a few helpful hints to make it a more painless process:

(1) Remember: You are not Alone.
Maybe you think of bankruptcy as something for “other people.” But the days of bankruptcy as a means of financial respite for the perpetually poor are no more: everyone from the solidly middle class to formerly wealthy Americans are being forced into bankruptcy more than ever before. Because of steady declines in real estate values, and rises in health care costs, credit card interest and unemployment in all sectors, more than 8% of bankruptcy filings in 2009 came from people who made over $60,000. So, begin by dispensing with any preconceived ideas of bankruptcy in lieu of a successful strategy for setting off on a sound path to personal financial freedom.

(2) Personal Bankruptcy Puts You in Control
While people who drown in debt remain at the mercy of their creditors, bankruptcy can actually be a better way to take control of your financial future. If you file for Chapter 13 bankruptcy, you play an integral role in determining how you’ll pay off your debt, including a trusty payment plan that works for you. Even Chapter 7 bankruptcy can buy precious time to halt creditor harassment, save money and plan your next best fiscal moves.

(3) Bankruptcy Can Be a Key to Better Credit
As counter-intuitive as it may seem, bankruptcy could potentially improve your credit scores in the long run. Obviously, the immediate effect of bankruptcy is a lowering of your credit scores. However, filing can be the better option for your long-term credit than enduring late payments on credit cards for years in an attempt to stave off what is more than likely inevitable: default. Because some 35% of your credit score is based on your payment past, it is vital to your financial future to avoid missed payments and establish new credit as soon, and as much, as possible. Even though bankruptcy stays on your credit report for 7 to 10 years, it does not necessarily follow that your credit score will be low for that entire time. If you take steps to rebuild after your bankruptcy, your FICO score can quickly be restored to where it was prior to your filing.

(4) With Bankruptcy, Timing is, in Fact, Everything
When you’re facing insolvency, timing can be especially important. And that’s also the reason it’s the best time to talk to a qualified bankruptcy lawyer. But just because you’ve consulted a lawyer does not necessary mean that bankruptcy is the next step. While it’s hard to believe, it is sometimes your best move to hold off on your filing until the worst of your financial situation is over. For example, if you are facing impending medical costs, you may want to wait to file until you’ve recovered fully before filing for bankruptcy, simply to avoid accruing more medical expenses during the process. In the alternative, some situations demand that you file sooner than later, such as if your car’s been repossessed and you need it back immediately. As a result, consulting a bankruptcy expert is your best bet to making your bankruptcy work for you.

(5) With Bankruptcy, You Never Have to Go it on Your Own
Bankruptcy isn’t a cakewalk, but you never have to go it alone. In fact, knowing a qualified bankruptcy attorney can also help you conquer your creditors and face your financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future. The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Saturday, March 6, 2010 @ 1:05 pm

While lack of confidence in the recent economic recovery led employers to shed an unanticipated 85,000 jobs in December 2009—even as many long-time unemployed Americans gave up looking for work to keep the unemployment rate held steady at 10 percent—the qualification dates for existing tiers of unemployment benefits were extended for an additional two months.

But that two-month bump in benefits will expire at the end of February 2010, leaving millions of average Americans bewildered and without any money coming in their coffers.  Now, without Congressional action to extend these benefits, this latest look at the state of unemployment means an unprecedented number of jobless workers will lose their benefits and be ineligible to get more by June 2010.

In fact, the National Employment Law Project (NELP) released a new report last week about this very long-term unemployment crisis, revealing that:

“1.2 million jobless workers will become ineligible for federal unemployment benefits in March unless Congress extends the unemployment safety net programs from the American Recovery and Reinvestment Act (ARRA). By June, this number will swell to nearly 5 million unemployed workers nationally who will be left without any jobless benefits….Currently, 5.6 million people are accessing one of the federal extensions (34-53 weeks of Emergency Unemployment Compensation; 13-20 weeks of Extended Benefits, a program normally funded 50 percent by the states).”

Of the nearly 1.2 million workers facing a cut off of benefits in March alone: “380,000 workers will exhaust their 26 weeks of state benefits without accessing the temporary EUC extension program or the permanent federal program of Extended Benefits. Another 814,000 workers will not be eligible to continue receiving EUC past their current tier of benefits.”

“’Congress must swiftly act to maintain the lifeline for millions of jobless Americans caught in the
undertow of record long-term unemployment in this ongoing downturn,’ said Christine Owens, Executive Director of the National Employment Law Project. ‘At the end of last year, Congress wisely agreed that our hardest hit workers and our economy were not yet out of the woods, and reauthorized the jobless benefits and health care subsidies from the ARRA. It is critical for Congress to renew these unemployment provisions through the end of the year before its Presidents Day recess for the millions workers again facing the end of the line—and to avoid missing the boat on this timely and effective economic jolt.’”

Under intense pressure from the public, Congress is currently considering a qualifying unemployment benefits extension period of another three months.  But for many, remaining jobless, even with an added lineup of benefits, is no consolation. As one in 10 Americans remain unable to find work and President Obama has established job creation as his “number one focus” this year, according to some economists, the legislative proposals being seriously discussed in Washington don’t even come close to addressing the problem.

As a result, many are taking things into their own hands to address their financial woes and take back their fiscal freedoms to make a fresh start through bankruptcy.

In fact, knowing a qualified bankruptcy attorney can also help any unemployment person to conquer your creditors and face their financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Friday, March 5, 2010 @ 4:30 pm

Life after bankruptcy is beautiful thing. Your stress levels go down and you become more confident with money. Now that things are back on track, maybe it is time to take a whole-life approach to changing the way you live. For some, it’s a new, but smaller, home; a more economical car; or a strict monthly budget. For others, re-starting your life may include relocating. Boy, that sounds like a big decision, huh?

So if you have a new financial outlook on life and think it’s time to move, where would you go? Thankfully, our friends at Forbes.com have researched a list of the best cities in America for “getting ahead.” Their research was based primarily on areas that have good job growth and income growth and a relatively affordable cost of living. Call U-Haul, because here are some of your options, in no particular order:

Like Winter? Well, if so, point the GPS toward Delaware County, Ohio. The home county of Columbus has a three-year income growth of 11 percent and is the fastest growing county of the state. Forbes tells us it has a wide variety of jobs and a number of grounded, family-oriented neighborhoods that help prop-up a stable workforce.

If you don’t mind the rooting for the Texans over the Cowboys, Fort Bend County, Texas, outside of Houston, realized 10 percent job growth between 2007 and 2008 and added just under 6,000 jobs since the middle of 2007. A large portion of employees can be found working in energy companies but it’s diverse enough for people to find opportunity in education and hospitality. Many members of Forbes’ 400 Best Big Companies reside in Fort Bend County.

Another relocation is near Frank Sinatra’s kind of town. No, not Vegas. Chicago. Outside of where the wind blows is Kendall County, an area that experienced a 90 percent population increase from 2000 to 2008 and as a result, a seven percent jump in income. You can find another attractive option near Chicago in Will County, Ill., which in 2007 and 2008 saw its residents’ income climb by seven percent.

A bit north, you can settle in balmy Carver County, Minnesota where income jumped by five percent for the same two years. Carver is close to Minneapolis, one of the Twin Cities along with St. Paul which are consistently present in many “Best Places to Live” lists.

If the Midwest or Lone Star State do not appeal to you, head just north of the Triangle to Hanover County in Virginia, an area which saw its per capita income also grow by five percent.

Drive by an ever-expanding government, other regions in Virginia that made the list include Loudon and Alexandria Counties. However, even with the income growth, these areas are very expensive in which to live. Thus, their presence on the list is somewhat questionable because for the most part, to get ahead in Alexandria County, you need to already be ahead.

Relocating can be an expensive endeavor. If you are lucky enough to have a new employer cover some costs, then terrific, you are already on your way. The key is to start planning early and do not rush. After all, it’s not like the real estate deals are going anywhere.

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Published Wednesday, March 3, 2010 @ 7:25 pm

If you’re reading this, odds are you’re considering bankruptcy. As such, you have a lot on your plate. Yet, what might make you feel a bit better about being bankruptcy bound is the knowledge that you’re not alone. Millions of average Americans just like you are facing desperate circumstances as they struggle to stay afloat in the wake of this decade’s Great Recession—facing foreclosure, job insecurity, rising costs and, of course, insolvency.

In the series, Our Great Recession 2.0, we’ll delve into some of the more unique stories of this decade’s unprecedented economic downturn, allowing you to see familiar faces and dire places people are going in order to handle the financial meltdown head-on.

In part one of this ongoing series, we meet GM autoworker Michael Hanley.

Hanley, who recently shared his plight with The Huffington Post’s Sharon Cohen, is known to commute 530 miles in a day, from his home in the rolling hills of Wisconsin to his job in Kansas—all to keep a paycheck rolling in. As Cohen reminds us, “It’s one heck of a haul:” more than 1,000 miles roundtrip, 16-plus hours of driving, every week. “I like to say I gave up an eight-minute commute for an eight-hour commute,” he tells Cohen wearily.

Hanley’s commute is representative of not only one man’s tough choices in a tougher job market, it reveals the near-death of the American auto industry as a whole.

After his GM plant shut down a little over a year ago, Hanley could’ve chosen to stay close to home, and his family and search for an autoworker’s salary ($28 an hour) in his Wisconsin county “where more than 40 percent of its manufacturing jobs disappeared from 2006 to 2009.”  Instead the 23-year veteran of the auto industry chose to hang on to a better GM paycheck and his family’s health insurance, following the job to Fairfax, Kansas.

Even before his factory went idle, Hanley took steps to make himself a stronger candidate in a shrinking employment market, getting the college credits he needed to complete his accounting degree. But when Kansas came calling, along with the health insurance to keep his wife on chemotherapy, Hanley “didn’t hesitate. Auto work these days is like playing musical chairs. You grab an opening where you can.”

“There’s no way I could possibly go through one treatment without him having insurance,” Hanley’s wife told HuffPost.

Balancing his family’s financial security at his coveted job and the lonely existence of being away from home is hopefully a temporary sacrifice for Hanley. He plans to commute for an additional 18 months, at which point he turns 50 and hopes there will be a retirement package waiting.

“There are those people who worked there who have lost something they thought would be around forever and provided them with a real good lifestyle,” he adds.

For Hanley, it’s all about riding out his own Great Recession.

If you’ve been driven out of your job and are in serious debt, knowing a qualified bankruptcy attorney can also help you to conquer your creditors and face your financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future beyond our own “Great Recession.”  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Wednesday, March 3, 2010 @ 12:24 pm

Are you angry at banks that are supposedly too big to fail? But you haven’t withdrawn your money because you think your account is too small to matter?

Well, one media matriarch has some alternative advice. 

Started by Arianna Huffington, The Huffington Post is an American news website and aggregator for a host of blogs, columns, stories and moderated comments. The site, through its founder, is now taking a stand against America’s oversized financial institutions—from JP Morgan to Bank of America—and urging you to do the same.

HuffPost’s “Move Your Money” campaign urges you—the bank customer—to withdraw your money out of the big banks and into smaller community-oriented ones.  The reason is simple: a post-recessionary payback of another color. Huffington argues that following their bailout these same big banks have done nothing to help small business or to drive lending to the average American. As a result, the economy can’t thrive nor begin producing the much-needed jobs so many taxpayers—who footed the bill for said bailout—so desperately need. And she’s hoping we’re not going to take it anymore.

And she’s not alone in her gripes with the banking industry.

Robert Johnson of the progressive think tank the Roosevelt Institute helped craft the “Move Your Money” campaign. “All of us collectively do have money and when we move our money, we’re voting with a different currency, and one that businesses pay attention to,” he said to CBS News’s Jim Axelrod.

By entering your zip code into the Move Your Money website, a list of nearby small banks pops up all of which have received a rating of ‘B” or better by independent reviewers.

According to the Independent Community Bankers of America, community banks “focus attention on the needs of local families, businesses, and farmers” and “channel most of their loans to the neighborhoods where their depositors live and work, helping to keep local communities vibrant and growing.”

While many of these smaller banks provide a more personal touch to your banking experience, they too have fallen victim to this decade’s Great Recession, with hundreds closing in the past several years. As such, any movement of money should come with some research that your new, smaller bank has some staying power.

Move Your Money recommends that you stop in and see what they’re about. Talk to an employee to see what services they offer and how they treat you. For some tips and questions to ask visit Solari or see this article from the Dallas Morning News. You can also use FindABetterBank to calculate annual fees based on how you bank (note: their list of banks is incomplete).

If you truly are without any money to move—and your assets, in the bank or otherwise, are less than your debts—your gripe may be with your creditors, which, in many cases, are the same bailed-out banks targeted in the Move Your Money campaign.

Well, you too have the power to take back your money.

In fact, knowing a qualified bankruptcy attorney can help you conquer these creditors and wipe away your debts, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Tuesday, March 2, 2010 @ 11:52 am

As we’re all aware, this decade’s Great Recession has dealt, and continues to deal, a significant blow to the budgets of many American families, leaving millions in debt, underwater in their mortgages, and looking for any means necessary to get back on a financially-healthy course.  Now, we’re finding that tax time is also yielding it’s own set of challenges for some cash-strapped citizens.

In his recent New York Times article, “Paying the Price for Survival Tactics,” Charles Delafuente reports on how the I.R.S. treats many kinds of written-off debts, some distressed home sales, and many emergency withdrawals from retirement accounts as taxable income.

Debt Forgiven By A Lender
In his timely piece, Delafuente introduces the concept of “phantom income:” an amount a lender forgives but for which the debtor still owes tax. In your case, this taxable amount becomes essentially the difference between what the lender would have received from you and what it will receive under your new agreement. As Delafuente explains, “These taxes are imposed even if only the interest rate, not the amount of principal, is reduced. That happens, for example, to consumers who renegotiate credit card debt. A lender is supposed to issue a 1099-C form reporting forgiven debt, but that doesn’t always happen if the principal is not reduced.”

As is normally true in the tax world, there are exceptions to the forgiven-debt rule. Keep in mind, forgiven debt is not taxable income if it is discharged by bankruptcy, or if you are considered insolvent—whereby your liabilities exceed the fair market value of your assets—when the debt is forgiven.

Mortgage Debt
While recent bailout measures enacted to help homeowners generally won’t trigger the forgiven-debt tax on a principal home, “foreclosures, short sales and other loss-of-home scenarios could bring on capital gains tax.” For example, if your home is worth significantly more than a mortgage and is repossessed and sold by the lender, you are entitled to the difference. As Delafuente explains, “The difference is a taxable profit, which will cause a capital gain. Fortunately for the masses, the first $500,000 on gains on a main home for couples ($250,000 for single taxpayers) may be covered by a tax exclusion. Further, nonrecourse mortgages, in which the lender can’t touch any assets other than the property, generally don’t cause such a gain.”

Retirement Withdrawals
Aside from your mortgage, if you withdraw money prematurely from their retirement accounts because of a job loss or a reduction in hours, you will also face extra taxes.  Holders of traditional I.R.A.’s and I.R.A. rollover accounts must pay 10 percent of any amount withdrawn before they reach 59 1/2 as a penalty on top of the traditional taxes on money taken out, which must be paid regardless of your age.

If you have a Roth I.R.A., you’ll face different rules. Your contributions—but not the account earnings—can be withdrawn without penalty after five years.

If you have an employer-sponsored plan, like 401(k)s and 403(b)s, you face yet another set of rules. For you, withdrawals are penalty-free if you left the employer that set up your plan after you turned 55. However, money rolled over to an I.R.A. from a former employer’s plan is subject to the 59 1/2-age rule.

Most 401(k) and 403(b) plans do not allow current employees to make withdrawals; instead they often have loan provisions. But another tax nightmare occurs if you have an outstanding loan and lose your job. In that case, you must repay the loan quickly or have the balance treated as a withdrawal, making it subject to tax and to the 10 percent penalty if you’re under 55, unless an equal-payment plan is used.

But remember, before borrowing from your retirement accounts, one of the best debt forgiveness plans comes from a personal bankruptcy. In these taxing times, a qualified bankruptcy attorney can help you conquer your fears before losing it all.  Specifically, the bankruptcy attorneys at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Tuesday, March 2, 2010 @ 10:09 am

Developed to slow the rate of Chapter 7 bankruptcy filings, the Means Test helps determine whether or not someone qualifies to file Chapter 7, and in a Chapter 13 bankruptcy, to what extent you might be able to pay back some of your creditors. It’s become a very frustrating part of the bankruptcy process because it implies, “Hey, you just don’t want to pay your bills.”  Not only that, it also subjects filers to additional frustration, confusion and widens the gap between citizens and the law in place to protect them.

However, there are ways to overcome the restrictions and complications of the Means Test.  Of course, this is where the insight of an experienced bankruptcy attorney is especially beneficial, as it can take some time and expert handling.

Called “special circumstances,” a judge may grant you permission to file Chapter 7 in spite of failing the Means Test. (Failing, in this context, indicates that you have some ability to pay and that you would have to file under Chapter 13 and pay your monthly disposable income to your unsecured creditors through a Chapter 13 plan.)  If you are a member of the Armed Forces and a call to duty dramatically alters your income and there is no reasonable alternative money source, the results of the Means Test can be rendered non-applicable.

You can also be granted a special circumstance for a sudden, serious illness that will take you out of your job or further damage the economic viability of your family.  Job loss, in some cases, can lead to ability to file under the “special circumstance” exception to means test applicability.  However, the job loss would have to be sudden, proven legitimate (you can’t be found to have provoked it) and the income from that particular job itself would most likely have to had been the reason you failed the test.

There are other ways the results of the Means Test can be put aside. However, it is very important for you to understand that these are actual, legal strategies, not encouraged methods by which to circumvent the court. That’s called fraud, and you’ll be nailed for it.

The means test uses an average of your income over the six months prior to filing your case.  That being said, you have the ability to time your bankruptcy filing according to a period in time when your income will be at its lowest. If you know bankruptcy is on the horizon but can sustain a few months without employment, you can file down the road to ensure your last six months of income fall below the state median, which is a major factor in the Means Test.

Additionally, expert bankruptcy attorneys can advise you on a number of ways that you can reduce the amount you will have to pay through a Chapter 13 plan.  This is what bankruptcy professionals call “means test planning.”  Need health insurance? Purchasing a plan for you and your family before your bankruptcy is a good way to add expenses and reduce income. The code allows you to deduct what you pay for health insurance. The same applies for disability insurance.  Been wanting to put away more for retirement?  You can increase your 401(k) or 403(b) contributions through your employer and take the contributions as a deduction against your six-month average income in the means test.

You may not realize it, and in fact, they may be a reason for your having to file, but your rising mortgage and car payment may contribute to your passing the means test. Or, if you are expecting an increase in any of the interest rates on those loans, considering waiting until they kick-in to file.

The term “household” does not mean family. It means, quite literally, how many your “house holds.”  This means relatives, children who have moved back in after the backpacking trip around Europe and even that weird guy that rents the storage loft in the garage. And since the reform act in 2005 bases the median incomes for the means test on “household” and not family, the size of your household can have a serious impact in your favor.  The more people who live in a house, the higher the threshold of income required to qualify for the means test.

It can be scary thing, the means test. It literally changed the benefits of bankruptcy for thousands and thousands of Americans. If you are worried about it or just have additional questions, don’t hesitate to contact us.  We have helped over 40,000 North Carolina families through the process of bankruptcy and our attorneys know the means test inside and out.  Call The Law Offices of John T. Orcutt to schedule your FREE consultation at 1-800-899-1414.

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Published Monday, March 1, 2010 @ 7:27 am

No one needs to tell you times are tough.

Too often, Americans just like you, already suffering under the intense strain of rising mortgage costs, consistent credit card debt, mounting medical bills, employment woes, and other blights on your bank accounts, are also looking for ways to further trim shrinking household budgets.

And since the lingering financial downturn has affected all socio-economic sectors of the country—even the upper-middle class and wealthiest Americans—dealing with sudden bills or a loss of income can be even more difficult for people used to a certain lifestyle.

So, whether you’re facing extended unemployment, are bankruptcy bound or just trying to salvage your savings, taking a long, hard look at your family’s budget can make a big difference. And even if you haven’t lost your job, in this uncertain economic era it’s important to explore the financial cutbacks you could make in case you were suddenly land unexpectedly aid off.

The good news is, by cutting a few corners, small changes can save you hundreds per month.

Television.
I know, I know. TV is tough to cut. Especially if you rationalize that by watching television you’re staying home and saving money you would normally spend finding entertainment elsewhere. But, if you currently get a lot of channels, you could conceivably drop to a package with fewer bells and whistles (possibly dropping those 50 plus channels that you didn’t watch anyway?). And if you already have a relatively small television setup, consider contacting your provider for negotiations. You’d be amazed at what a satellite or cable company will offer in terms of lower rates when consumers like you threaten to quit them.

Phone and Internet.
Again, negotiating with your provider (or trying to) is always an option. Plus, downgrading your service or eliminating a landline could be all it takes to save you dough for other basic essentials.

Subscriptions.
You can stay informed and save money. If you keep your Internet, why spend more on newspapers, magazines or a book of the month club? The good news is that most reading materials are, at least for now, available for free online.

Fast Food.
That morning latte, breakfast burrito or fast food lunch may seem inexpensive once a day, but those days quickly add up and can become the fastest way to deplete a monthly budget. Consider taking a brown bag and a brewed coffee with you on the go and enjoy the benefits of a better food choices and a fuller wallet.

Groceries.
Not only cut out eating out, but take in the grocery stores many comparable generic brand. Many store-brands are actually produced at the same factories as the name brands—and come at a significant discount.

Clothing.
As a lot of professionals know, dry cleaning can be incredibly expensive. Try to avoid it. But just because your clothes have a little more wear and tear doesn’t meant you can run out and shop for new ones. Resist the prevalent sales permeating the malls in this tough economy—just because it’s a sale doesn’t mean its less expensive than shopping at one.

Not only does planning ahead like this give you an idea of what steps you’ll need to take in case of a financial emergency, it also provides ways to start saving money quickly.

Yet, if cutting corners just isn’t enough to keep you afloat, knowing a qualified bankruptcy attorney can also help you conquer your creditors and face your financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Friday, February 26, 2010 @ 4:19 pm

Everyone—from the halls of Congress to the many channels of media—is paying a ton of attention to those Americans who have lost their homes in the seemingly endless mortgage meltdown. Virtually ignored have been the millions who continue to pay their mortgage every month, even when they really can’t afford to. As a result, most homeowners are losing big on what used to be their biggest investment.

Which begs the question: Is the best solution to stop paying your mortgage?

For homeowners around the country who haven’t skipped their mortgage payments—but are seriously struggling—there are several reasons why homeownership is going less than swimmingly:

You’re Trying to Staying Afloat While You’re Underwater
Many of you are struggling to pay off a mortgage balance that is significantly higher than the value of your home. As a result, selling your home is simply not an option, since you would ultimately have to come up with the difference to settle with your lender.

You’re Drowning in the Deep End of Debt
Many homeowners just like you are spending down their savings, taking cash advances and/or relying on credit cards to buy bare necessities. Why? Because you’re using every actual dime that’s coming in to keep up with your mortgage payments. The result is millions of Americans who are not only underwater on the their mortgages, but who are also drowning in debt.

While staying current on your home commitment is admirable, and very much the American way, it’s also a quick and easy way to drain your savings, retirement, or nest egg, while also accumulating enormous debt, simply to avoid the dreaded “F-word.”

Consider Foreclosure
While it can be scary, this particular “F-word” can be your first, best step to a pair of “F” positives: financial freedom. If you are now hundreds of thousands of dollars underwater and go into foreclosure, your losses are essentially erased. In most cases, your lender can take the house, but not your future earnings with the only real financial consequence being trouble getting a loan for almost a decade (in an era when getting a loan isn’t easy even for those with stellar credit).

Unfortunately, most foreclosure alternatives are simply bad ideas. Let’s take, for example, the short sale. In a short sale, the lender is agreeing to accept less than what is owed to satisfy your loan. Assuming you find a buyer, you will then have run the offer by your lender. Even if they decide to go along with it, you could still be stuck with the deficiency if you’re not careful. That’s not to mention the tax implications of the forgiven debt. Why go through the hassle of a short sale, if it’s just as likely to hurt your credit, and may lead to even more debt.

Another foreclosure alternative, the loan modification, would be an option if lenders were granting permanent modifications. The problem is, most lenders are understaffed, behind on applications, and you’re likely to get lost in the shuffle. As of 9/1/09, over 362,000 loans have been granted a trial modification. Of those trial modifications, only 1,711 have been approved for permanent modifications.

And Then There’s Bankruptcy
If your credit score is going to suffer anyway, why not create a completely clean slate? As a hurting homeowner, knowing a qualified bankruptcy attorney can also help you face your financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Friday, February 26, 2010 @ 7:15 am

For most bankruptcy bound individuals, a discharge of all individual debts is considered the Holy Grail of any bankruptcy filing, yielding a permanent injunction that prevents creditors from collecting on debts. However, any good discussion of debt dischargeability also tackles the primary exceptions to look out for when considering any bankruptcy filing.

Exceptions to the power of a bankruptcy discharge, include:

Certain Tax Obligations
Withholding taxes are not dischargeable in bankruptcy, although you may be able to use a Chapter 13 case to pay these over time (notwithstanding any accrued penalties and interest).  Similarly, sales taxes are not dischargeable, but again, Chapter 13 can establish a payment plan for lessening the load and paying this out over the long haul.

The question of whether your income tax can be discharged ultimately depends on how old the tax debt is and when you filed the tax return.  In order to be dischargeable, your tax debt for the tax year in question must meet the following conditions: the due date for filing your tax return is at least three years ago; your tax return was filed at least two years ago; the tax assessment is at least 240 days old; your tax return was not fraudulent; and you are not guilty of tax evasion.

For example, in a 2009 bankruptcy filing:

• Taxes from 2006-2008 are not dischargeable;
• Taxes from 2004 and before are eligible for review; and
• Taxes from 2005 are potentially dischargeable if the return was filed by the debtor on or before April 15, 2006. If the return was filed under an extension, then the 2005 taxes are not eligible for the following review unless the debtor files after October 15, 2009.

Fraud and Certain Credit Usages Before Filing
Fraud is a valid creditor objection to a bankruptcy discharge. To find fraud, a creditor must prove: (1) a statement made under false pretenses; (2) a material fact; (3) designed to deceive the creditor; (4) that does in fact deceive the creditor; (5) the creditor reasonably relies on the statement; and (6) the creditor suffers actual damages resulting from the reliance.

The general rule here is this: if you’re considering bankruptcy it’s best to avoid maxing out (or in some cases simply using) consumer credit, credit cards, or loans. Bankruptcy law now demands that bankruptcy bound debtors like you do not take cash advances or purchase luxury items on credit 90-days prior to your filing bankruptcy. If you do purchase large or luxury items through these means, creditors may challenge you (and these discharging these debts) in Court if they believe that you have acted in bad faith in using credit excessively.

Domestic Obligations
Alimony, child support and spousal maintenance debts are not dischargeable in either Chapter 7 or Chapter 13 bankruptcy. Additionally, the first prong of bankruptcy, the automatic stay, does not act to stop most collection efforts for these claims. An exception to this exception comes in the second type of domestic asset splitting known as equitable distribution. While equitable distribution—a dividing of martial property as a result of dissolution of the marriage—is no longer dischargeable in a Chapter 7 bankruptcy, the same is not true in Chapter 13. Chapter 13 bankruptcy, in what is called as its “super discharge,” can aid a former spouse having trouble paying their bills to eliminate this type of burden. These issues are complex, and it is important that you speak with a bankruptcy expert if you have these types of issues.

Student Loans
In an effort to protect the education lending industry, and allow student loan money for almost anyone who wants it, Congress has made virtually every advance in connection with education non-dischargeable in bankruptcy. To that end, these loans are non-dischargeable “unless excepting such debt from discharge…would impose an undue hardship on the debtor.” While the definition of “undue hardship” is ultimately to the discretion of your bankruptcy judge, if precedent is any “judge,” this is a high hurdle to surmount. As a result, if you’re considering a bankruptcy filing simply to discharge a large student loan bill, don’t lose hope, it may just be best to wait: the tide appears to be turning in Congress to loosen this exemption as the costs of education skyrocket and more and more Americans face insurmountable educational tabs.

Because of the complexities of bankruptcy law, a qualified bankruptcy attorney is a necessary tool in your financial toolbox to help you conquer your creditors and face your fiscal  fears, yielding the right kinds of debt relief—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Thursday, February 25, 2010 @ 3:09 pm

While many economists argue that the economy is steadily rebounding, whether you’re in a recession or recovery seems to largely depend on where you live, if you have a job, if you can pay your bills, or if you still have your home.

The Huffington Post reported this week that facing an economic meltdown in their personal lives, many formerly middle-class families have had to find “creative ways to cope with the sudden loss of their jobs and homes.” In her article, “Rattlesnake for Breakfast, Wedding rings on Craigslist: Families Cope With Falling Out of the Middle Class,” Laura Bassett describes how the American dream, for many, has turned into a surreal nightmare.

Take Arkansas’s Jeff Falk, 51, for example. After losing his family business selling auto parts, and finding himself no longer able to afford the house he had built for his family, his wife Jill, and their two boys, ages 3 and 8, packed their 40-foot camper and headed to Arizona for the winter.

“Jill found a part-time job waiting tables, and Jeff found occasional work repairing old boats, but they struggled to feed and home-school their young boys. Occasionally, Falk says, he feeds his children rattlesnake that he caught near his camper. While Falk, his wife and his children have managed to stay positive throughout their financial hardships, he says the hardest part of falling out of the middle class is losing the respect of those around him. ‘There are two kinds of people,’ he said. ‘Those that turn and look the other way and don’t even wanna look at you, and those that reach out and help you, and it seems like there’s no in-between.’”

The Falk family isn’t alone. Bassett also found Illinois’s Stephen Mooney.  Laid off in 2008 from a job he had held for 10 years, his severance pay ran out a few, short months later, leaving he and his wife Marianne unable to pay their bills.

“’Our gas was shut off,’” Mooney told HuffPost. ‘We were taking showers with water that we would heat up in the rice cooker and microwave. It was very depressing. Going to a job interview, you may be wearing a shirt and suit, but you don’t feel clean. I looked unkempt all the time, and corporate America’s not an easy place. There were some places where I knew I didn’t have a job as soon as they saw me sitting in the lobby.’ To make matters worse, the Mooneys’ house was recently foreclosed, and they have been asked to leave by March 1. ‘I don’t know how we put all the pieces back together,’ Mooney said. ‘Where do we live? Where does all our stuff go? It’s going to be very strange.’”

As Bassett reports, many families are making similarly difficult decisions just to stay afloat.

Kimberly Rios of Maryland sold her wedding ring on Craigslist last weekend just to cover utility bills.  “‘This is no joke, please be a serious buyer,’ Rios wrote in her ad. ‘It is too cold for us to be without electric and heat so if you have been looking consider my deal.’ She told HuffPost that she sold the ring on Valentine’s Day. She is trying to decide whether to use the money to pay for a few weeks of electricity or to buy a cheap car so that she and her family of six will have a place to go when the foreclosure happens.”

In spite of it all, Rios remains positive about her family’s future: “At least we have each other.”

Unfortunately, in this new era of financial insecurityy, stories like these are common in articles, reports and blogs all across the World Wide Web. Fortunately, no matter how dire your financial situation and how extreme your sacrifice, you can find strength in the numbers of families—all across the country—facing the same tough choices.

Yet, even if major sacrifices just aren’t enough to keep you afloat, knowing a qualified bankruptcy attorney can also help you face your financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Thursday, February 25, 2010 @ 6:05 am

In an era of extreme economic downturns and rising unemployment, having a car at your disposal has never been more necessary for work, job interviews and providing other basic fiscal needs…even as you consider a personal bankruptcy.

Yet, if you’re on the road to bankruptcy, these same economic issues and employment woes can mean you may have fallen behind on your most recent car payments, leaving your precious vehicle as a prime target for repossession by your car’s creditors. And while your bankruptcy filing’s “automatic stay” suspends a creditor’s ability to repossess most assets, you may be wondering what happens when your car is taken prior to your filing.

As with most things in bankruptcy, whether you can get your car back from your creditors largely depends on your ability to act quickly, diligently and with a purpose.

Once your vehicle has been repossessed, it is absolutely vital that you immediately seek the assistance of a qualified bankruptcy attorney, informing the attorney of the status of your car and that you need to file bankruptcy right away. While the repossession was likely caused by an inability to afford your car payment, this first, best step to get your car back through bankruptcy will require that you have enough funds to pay your attorney, the bankruptcy court filing costs, as well as the requisite credit counseling fees.

Another potential challenge, comes in the form of one word: paperwork. As time is of the essence to save your car, you must be able to provide instant information about your current financial situation so that you can file quickly and without any hidden loopholes. Typically, you will have ten days between the date of your car’s repossession to the time that the creditor actually sells the car. As a result, you and your lawyer will need to move fast.

Once you file for bankruptcy, it’s important to note that any further creditor action is stopped by the Bankruptcy Code’s automatic stay.  While the automatic stay also means that the creditor cannot sell the car once you file, it does not assure the return of your vehicle. But take heart: for a pre-petition repossession, most bankruptcy courts have procedures by which a debtor whose car was repossessed may be allowed to get the vehicle back once the bankruptcy case is filed, including the potential that the debtor will be required to pay back possession and storage fees accrued in the interim, provide proof of car insurance, and have money on-hand to pay the various court and repossession fees.  In all cases, though, the process is neither cheap, nor easy: something the bankruptcy bound individual may always want to avoid.

So, to avoid any headaches, hassles or hardships the best rule of thumb is, if you are going to file bankruptcy, do so before your car gets repossessed.  In short, knowing a qualified bankruptcy attorney can also help you not only conquer your creditors and face your financial fears, but also keep a much-needed car, yielding the right kinds of support, information and insights—at a low cost— to keep you moving (literally and figuratively) in your fiscally-viable future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button and let these experts take the wheel to so you can start down the road to your next best financial steps.

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Published Wednesday, February 24, 2010 @ 11:56 am

In his February 20, 2010, article “Millions of Unemployed Face Years Without Jobs,” The New York Times’ Peter S. Goodman paints a dour portrait of what he calls “the new poor” — “people long accustomed to the comforts of middle-class life who are now relying on public assistance for the first time in their lives — potentially for years to come.”

With little good news for the millions of Americans who remain out of work, out of savings and at the end of their unemployment benefits, Goodman points to holes in America’s social safety net, built for short-term gaps between jobs, further strained in an unprecedented economic environment where work may be scarce for years, even as the American economy shows signs of a rebound.

“Every downturn pushes some people out of the middle class before the economy resumes expanding. Most recover. Many prosper. But some economists worry that this time could be different. An unusual constellation of forces — some embedded in the modern-day economy, others unique to this wrenching recession — might make it especially difficult for those out of work to find their way back to their middle-class lives.

Labor experts say the economy needs 100,000 new jobs a month just to absorb entrants to the labor force. With more than 15 million people officially jobless, even a vigorous recovery is likely to leave an enormous number out of work for years.

Some labor experts note that severe economic downturns are generally followed by powerful expansions, suggesting that aggressive hiring will soon resume. But doubts remain about whether such hiring can last long enough to absorb anywhere close to the millions of unemployed.”

Goodman cites a confluence of unfortunate financial factors—products of both our modern economy paired with the recent recession—as the reason it is now so challenging for the unemployed to “find their way back to their middle-class lives.”

First, there’s a scarcity of jobs. Fewer unions to protect full and temporary employees, the export of formerly American factory and white-collar jobs to overseas competitors, and an upsurge of innovation and automation, have all contributed to a smaller U.S. job pool for millions looking for work.

“Additionally, America has fewer protections for its beleaguered workforce. “Some poverty experts say the broader social safety net is not up to cushioning the impact of the worst downturn since the Great Depression,” writes Goodman. “Social services are less extensive than during the last period of double-digit unemployment, in the early 1980s.”

And then there are the millions of American households, that, due to the employment meltdown, have gone from two incomes, to none. Languishing in a “desert of joblessness,” many families, previously able to simply bounce back after a job loss, pay cut, or disability—are now finding themselves using food banks, charitable giving, and facing homelessness.

While recent reports of the nation’s financial future remain nothing short of bleak, the good news remains that through bankruptcy laws, Americans facing unemployment can take their future into their own hands, stop drowning in health care, consumer and mortgage debt, and begin on the road to a more viable financial future.

Even if major sacrifices just aren’t enough to keep you afloat, knowing a qualified bankruptcy attorney can also help you face your financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Tuesday, February 9, 2010 @ 6:39 pm

If you couldn’t tell by the utter onslaught of tax preparation service ads and the sudden presence of temporary cubicles in that once abandoned retail space at the corner of your favorite strip mall, let us be the first to remind you that it’s tax season.

We take interest in this time of year because tax returns can mean one of two things to our readers: more debt or more money. Since we are all about helping you figure out what to do with your debt, we hope this post will educate you regarding what tax season can mean for your financial well-being.

There are number of tax deductions out there that get ignored by a lot of families. Worse yet, they are not even addressed by many of the “come-and-go” tax return preparation services out there. On that note, we encourage you to take caution when deciding who to work with if you are not someone who handles returns on your own. We should also point out that there is good reason to hire someone to help with your tax returns, primarily to alleviate stress and ensure they get done correctly.

That being said, make sure that the person you hire is an actual financial professional, not someone who was just trained to punch data into a computer program. Ask friends or co-workers if they can recommend a reliable Certified Public Accountant that has a tax service. Yes, it will cost you more money, but not that much more.

If you have no choice but to use a temporary tax shop, ask for the most senior member of the team. Many of these operations do have supervisors on staff with actual accounting and tax experience. Remind them that there are countless shops just like theirs that would prefer your business to encourage the top person to give you appropriate attention.

To further ensure you are getting the service you deserve, remind your tax preparer about the most often missed tax deductions. An article on MSNBC.com highlighted seven of them, which do require you to itemize:

• Home ownership deductions can include mortgage interest, property taxes, fees involving the sale of your home and agent commissions.
• In North Carolina, the personal property tax you pay on your car each year can also be a deduction.
• Always hang on to your receipts for charitable donations, even the bags of clothes you gave to Goodwill. When any charity asks you if you want a receipt, say yes.
• Did you know you can deduct mileage expenses if you use your own car in a charitable effort? You can. Go back and write down when you did and even keep receipts for bus trips to the location of your volunteering. Parking fees and other tolls count, too.
• If you had to travel for work, keep track of any dry cleaning and laundering receipts for clothes you needed on behalf of the company. This only counts if you are required to look the part and don’t try it with the torn jeans you wear on the flight.
• Also related to business travel are the costs of shipping materials or paying for your baggage, which many airlines now require. So hang on to those receipts as well.
• Other miscellaneous deductions related to work include costs for faxes, Internet access or hotel phone calls.  You may also be able to deduct moving expenses. Make sure you provide good proof that the costs you incurred are directly related to the available deduction category.

We would hate to see your tax bills become the reason you have to file bankruptcy.   However, if you have been stuck with a large tax bill from the past, or if you anticipate owing taxes that you can’t pay all at once, you should consider bankruptcy as an option to either discharge taxes eligible for discharge or pay certain taxes that can’t be discharged over a period of several years through a Chapter 13 plan.   If you have any questions about how tax bills are handled in Chapter 7 or Chapter 13 bankruptcy, give us a call, we’ll be glad to help.  Call 1-800-899-1414 to schedule a FREE consultation with an experienced bankruptcy attorney at the Law Offices of John T. Orcutt.

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Published Sunday, February 7, 2010 @ 12:54 pm

In the Bad Ideas for the Bankruptcy Bound series, you’ve received an introductory look at the many reasons why it’s never a good idea to hide, or attempt to hide, a bankruptcy filing from your spouse. In later discussions we’ve seen how to avoid many of the pitfalls and pratfalls of filing for personal bankruptcy, including transferring property, using credit and avoiding creditors. Here, we’ll expand on why automatic bill payments from your checking account can lead to a loss of precious control for the bankruptcy bound.

Without a doubt, the ease and convenience of having recurring monthly bill payments paid through an automatic deduction from a checking account has made the time-saving process a no-brainer for many time-stretched citizens.  From car payments to credit card bills, automatic bill pay seems a trusty deduction process that avoids snail mail send outs, freeing up time, and peace of mind, to move on to bigger and better things.

But many argue that “free time” is precisely the problem for many cash-strapped citizens.

While auto pay allows for other things, it also frees up space for financial matters to go unnoticed. Precisely the same logic applies in credit card spending: you pay for items without the immediate financial repercussions, and pressing conclusions, that you’re spending money you don’t have.

Not thinking about fiscal matters is not only the exact opposite thing a cash-strapped person needs to do, but it also leads to a continuous cycle of avoiding the painful, but necessary, lessons of budgeting funds and reacting to changing financial circumstances: precisely the same denial of dire financial straits that put so many in a poor economic condition in the first place.

Like a credit card, having an automatic debit of a car payment, or gym fees, or house note, taken directly from your checking account, deprives you of the ever-important opportunity to think, however briefly, about the quality (and quantity) of your spending.  The auto pay acts like a thief in the night, taking from your precious and limited funds without concern or awareness for your balances. Too many of these “takings” can wreck monthly finances and take away a person’s power to prioritize each precious payment.

As such, in addition to making budgeting difficult, automatic bill payments from your checking account also take control away from the debtor—removing any option to determine when to pay which creditor and how much. This small fact can have a major impact on basic needs as auto pay can give your gym membership payments priority over that of your mortgage or car notes.  Not only that, but depleted accounts can mean substantial upturns in interest when credit card bills come due unexpectedly through the auto pay process.

What’s worse, if you’re considering bankruptcy, automatic bill payments can be especially inconvenient in terms of losing track of who’s getting what. Long story short, auto pay plus bankruptcy can mean you unwittingly pay out to creditors from whom your debts are discharged. For example, once you file for bankruptcy, non-exempt bills currently paid by auto pay will be discharged—either through a bankruptcy discharge of the underlying debt, or through a Chapter 13 plan to pay back debt incrementally.  Untracked auto payments can mean your creditors get payments they don’t deserve—especially if it takes transactional time to cease the automatic  debits.

So whether you’re filing for bankruptcy or not, begin 2010 by taking control of your personal finances. Pay your bills with your checkbook, confronting your debt head-on.  After all, it’s your money—treat it like you own it, and remember to “check” before you “spend.”

If you are considering bankruptcy, knowing a qualified bankruptcy attorney can also help you make the right spending decisions, yielding the right kinds of support, information and insights—at a low cost— for a financially viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Sunday, February 7, 2010 @ 7:43 am

Facing foreclosure.

Escalating medical costs.

High interest credit crunch.

Rising unemployment.

And that’s just January 2010.

While times are admittedly tough for everyone—with the poor getting poorer and even the recently rich and famous falling on hard times—a truly unique phenomenon of the recent global recession and continual economic downturn is how catastrophic it’s been for our country’s middle class, driving many in the majority further and “further from the American Dream” and, in some cases, “directly into poverty.”

As The Huffington Post reported this week in Laura Bassett’s insightful article “Middle Class No More, Families Struggle to Fight off Homelessness,” those in power are not blind to the desperate bind of average Americans: “President Obama, in his remarks to Senate Democrats on [February 3], pointed out that the middle class was hurting even before the recession. ‘Part of the reason people are feeling anxious right now, it’s not just because of this current crisis — they’ve been going through this for 10 years. They’ve been working and not seeing a raise. Their costs have been going up, their spouses going to the workforce — they work as hard as they can. They’re barely keeping their heads above water. They’re trying to figure out how to retire. They’re seeing more and more of their costs on health care dumped in their lap. College tuition skyrockets….They are more and more vulnerable, and they have been for the last decade, treading water.’”

As part of Huff Post’s Bearing Witness 2.0 project, the online aggregator has culled a host of local stories of formerly middle-class folks who are now “struggling to stay afloat.” If you or someone you know is similarly situated, you’re encouraged to e-mail your story.

One such troubling tale is that of construction worker Troy Renault who, along with his wife and five children, has been forced from their 1900 square foot home in Lebanon, Tennesse into a donated 215 square foot trailer nestled in a local campgrounds. The cause of their “slide into homelessness?” Renault lost his job two years ago and the family was forced to make difficult choices. As Renault told Mike Osborne for Voice of America News, “You wind up starting to think to yourself, ‘Okay. Do we go ahead and make the house payment and keep a roof over our head but have no lights and no water, or do you go ahead and keep those utilities on and forego the house payment, and hope that you can get it caught up?’ And it just kept going where it got further and further behind until we wound up losing the home.” Osborne writes: “Tammy Renault says her family is getting a crash course in what it means, socially, to be labeled homeless. ‘It’s being called names. It’s being ridiculed. It’s running into people that have seen you in your highest and are not even speaking to you anymore because they’re too afraid for where you are and don’t know what to say.’

Stories like the Renault’s are made more difficult with the onset of winter, as many former middle class citizens, and now, newly disenfranchised, are forced to make decisions of life or death.  As Steve Neavling reports in the Detroit Free Press, Michigan area middle classers can barely afford heating bills that would keep their families warm in another brutal Midwest winter. “Unemployed and unable to find work, 42-year-old Jim Lowe received a shutoff notice at his home last week and says he’s unable to pay the $174 that’s overdue. ‘It’s definitely a wake-up call,’ Lowe told Neavling. ‘We’re three months behind on all of our bills. I just pray this gets better soon.’ State and local agencies estimate an unprecedented 150,000 metro Detroiters are at risk of having their heat shut off if they don’t receive help paying their bills. The number of people seeking state assistance so far this winter jumped 30% over last year at this time, according to the state Department of Human Services.”

And yet while unemployment, arrears in a mortgage, and other unexpected challenges for members of the middle class may be life-altering, they need not be life-threatening. Bankruptcy provides, in the form of Chapter 13 and Chapter 7,  an undeniable array of options for those with mounting debt and facing foreclosure.

The key is knowing who can help. A qualified bankruptcy attorney can assist proud, but struggling, citizens to conquer their fears of losing it all.  Specifically, the bankruptcy attorneys at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button. We’re here to help.

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Published Tuesday, February 2, 2010 @ 3:29 pm

It’s almost February and ‘tis the season for thinking about tax time—even more so if you find yourself considering the benefits of bankruptcy. So, if you believe bankruptcy is the right option to help you start fresh in 2010, in addition to trying to get your 2009 taxes filed in a timely manner, and wondering whether you can discharge any income tax debt in your bankruptcy filing, you may also be thinking about how you can protect your precious tax refund from creditor claims.

But, just in time to file (for taxes and/or bankruptcy), here are some timely tips for protecting your tax refund:

Alter Your Exemptions
If you’re expecting a larger tax refund in the same year you plan to file for bankruptcy, your first best step is to alter your tax exemptions and allowances in the months prior to a bankruptcy filing. Increasing your exemptions now means you’ll receive more money in your paycheck to use throughout the year and less money in the form of a lump sum tax return. In addition to the benefit of being able to apply that money to necessities throughout the year, that’ll be less money available for creditors to seize at the time of any necessary bankruptcy filing.

Apply for Advanced Earned Income
If you receive what’s known as an “earned income” tax credit you can also head off some bankruptcy issues by providing your employer with a W-5.  This special tax form allows you to receive your earned income credit on a monthly, weekly or quarterly basis. And like the tax refund, this process disburses this money directly to you, keeping your money out of government coffers and potentially out the hands of awaiting creditors.

Know Your Refund
While some can’t wait to file, many people time their bankruptcy for a time following the potential for receiving a non-exempt, but sizeable, sum.  As such, when considering your bankruptcy, it’s important to determine what your refund will be. Depending on whether you’re receiving a generous refund, you may consider holding off on your bankruptcy filing until you have had an opportunity to use the refund on your family’s necessities—spending the money on food, clothing, medical co-pays, car repairs, etc., keeping all receipts as you spend.  In the alternative, if you are planning to file for bankruptcy, do not use your tax refund to pay back relatives or friends, large sums of unsecured debt to any one unsecured creditor, or purchase luxury items, all of which could cause a problem with your bankruptcy filing in terms of creditor claims.

Know the Rules for the State You’re In
Your own state’s laws could mean your refund is partially or fully exempt from creditor claims. As a result, it is essential that you consult with a qualified bankruptcy attorney to review your individual bankruptcy situation in and around tax time. This consultation can assure you’ve attempted to protected your precious tax refund from every imaginable angle.

If you are considering bankruptcy, knowing a qualified bankruptcy attorney can also help you with additional tax decisions, yielding the right kinds of support, information and insights—at a low cost— for a financially viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at http://www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Monday, February 1, 2010 @ 4:46 pm

You may have read on the blog, or elsewhere, that many are calling our current economy a “middle class recession.” This is because the numbers are way up on bankruptcies filed by those who make more than $60,000 per year, up 6.9 percent from 2008. Bankruptcies on the whole are up 36.5 percent from this time last year.

So why does it matter how much money a person makes when filing bankruptcy? Well, because bankruptcy is often considered an escape route for the financially unreliable or worse yet, “something poor people do.” It’s just not true.

Today, bankruptcies are increasing among people in the real estate profession, namely developers and agents. When the housing bubble dissolved, so did the incomes for a lot of American families.

There are different types, or “chapters” of bankruptcy for a reason. Basically, some versions are better suited to different situations. Chapter 7, for example, is typically filed by those who may have lost a job or for some reason may not have regular source of income. It wipes out all debts, but also mandates a person dispose of their “non-exempt assets” as a way to repay creditors to whatever extent possible. If you have equity in property beyond available exemption limitations, you may have a “non-exempt asset”.  Many states’ exemptions, as well as the federal exemptions, provide some measure of protection for everything from your home to retirement accounts. It is not often the case that a family has assets beyond what available exemptions can protect.  Even if available exemptions do not cover all of a person’s property, Chapter 13 provides a way to pay the equity above available exemptions to unsecured creditors, so that a person may keep his property, if he can afford to do so.

For those who are still earning a living or at least have a source of money, Chapter 13 creates a three- to five-year payment plan. Your plan payment will largely consist of secured debt, like your car and mortgage payments. Because the plan payment can include your attorney fees, Chapter 13 is an attractive option if you do not have enough up-front money for Chapter 7 attorney fees.

Maybe you’re giving some thought to a debt-settlement firm instead of bankruptcy. Sure, it’s natural for you to want to negotiate your way out of debt. Unfortunately, many of these companies position themselves as an alternative to bankruptcy that will save your credit. More often, however, these debt settlement companies end up doing far more damage to your credit than if you had simply filed for bankruptcy from the start. Remember, just because you’re in a “debt-settlement” program, your creditors will continue to report your missed payments to the credit bureaus. A bankruptcy, while causing an initial hit to your credit score, will stop the negative reporting and allow you to rebuild your credit score faster.

Bankruptcy is an organized, legal process with pre-defined results. Debt settlement firms function under very little regulation and ask for payments before all the debts are settled, therefore the incentive to settle the debt is not as strong as if they were paid based on results or after everything is taken care of.  Thus, your “debt settlement” is by no means guaranteed.

And one more point on debt settlement agencies: the IRS considers forgiven debt as taxable income. In contrast, debt erased as part of a bankruptcy is not taxable.

Another important point about bankruptcy has to do with timing. It’s key that you don’t file too early or wait too long. Start by simply adding up what you owe and making a simple estimate on what it would take to pay it off yourself. If the discrepancy seems impossible to make up, or would force you to sacrifice your family’s needs just to make a dent in your debt load, then consult an experienced consumer bankruptcy attorney.

On the other hand, don’t wait until the car has been repossessed or the foreclosure notices start arriving. Use your head, remain calm, and speak with an attorney. The bankruptcy concept itself is fairly straightforward.  The process however, requires a good deal of legal expertise.  Engage it wisely.  Take time to understand the basics of filing.

From the Law Offices of John T. Orcutt.  Helping families through bankruptcy since 1995. Call today to set up a free initial debt consultation in one of our 4 convenient office locations. Raleigh, Durham, Fayetteville and Wilson.

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Published Monday, February 1, 2010 @ 4:15 pm

Can your landlord evict you if you declare bankruptcy? That depends on the circumstances. If you’re not behind on your rent, your landlord may never have to know about your bankruptcy. As long as you keep paying your rent, it’s not really his business. A landlord can’t evict you just because you filed for bankruptcy.

If you are behind on your rent, however, the landlord is in a different position. If he’s already completed the proceedings for eviction, the landlord can proceed to evict you, despite the bankruptcy. Some states do not allow you to challenge this procedure. In states where you can challenge it, the proceedings are fairly onerous: you must file a paper stating that state law gives you the right to tenancy if you pay all the back rent, and immediately pay any current rent that is due. Then you have 30 days to pay all the back rent that you owe. If you don’t comply with these regulations, then eviction proceedings can continue. Note, too, that this doesn’t apply in the event that the owner can prove you’ve been doing drugs on his property or damaging it.

If the owner hasn’t yet filed for eviction, you’re in a much stronger position. Once you file for bankruptcy, the court imposes an automatic stay, which prevents the landlord from evicting you. The landlord can, however, apply to the court to lift the stay. In this case, eviction proceedings could begin in 2-4 weeks. You can use that time to look for a new place. Also, remember your rights during this time: the landlord cannot lock you out or remove your property until he gets a court order; he can’t barge in and he can’t threaten you. The sheriff can serve eviction papers, but she can’t arrest you.

If the landlord doesn’t apply to the lift the stay, you will have the length of the bankruptcy proceedings before eviction proceedings resume. Once again, we have the 2005 bankruptcy law to thank for this tilt of the law in favor of the creditor against the debtor. The law specifically allows for a ‘fast track’ proceeding to make evictions easier during bankruptcy.

Note, however, that filing for bankruptcy can still be helpful if you’re behind in your rent. If you owe back rent, that is included as a part of your unsecured debt – to be discharged in a Chapter 7 bankruptcy, or paid out over time or partially or fully discharged in a Chapter 13 filing.  Any rent that comes due after you file for bankruptcy won’t be included in the petition, however, and you will remain responsible for it.

As a final point, there are a few rare cases where your landlord might become involved in your bankruptcy even if you’re current on the rent. If you paid a rent deposit when you moved in, you have to list it as an asset. Unless it’s an extremely large security deposit, however, it’s most likely exempt and the trustee won’t bother with it. In addition, if you’ve filed for Chapter 13 bankruptcy, the trustee will examine your lease. Most likely he will approve it; moving is expensive and it’s not in your creditor’s interest to have you shelling out money to find and move to a new place. You’d only be forced to move in the unlikely event that you’re paying way over market value for your apartment and there are an abundance of cheap places available.

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Published Monday, February 1, 2010 @ 2:14 pm

One thing you may already know about most court proceedings, is that parties usually have the option to represent themselves without the aid of an attorney. This is called appearing ‘Pro Se’, which, in Latin means “for oneself”. In a bankruptcy proceeding, when money is tight, the thought of saving money by cutting out attorneys and their fees can be pretty tempting. But there are many reasons this is a bad idea.

Bankruptcy can be complicated and bankruptcy judges are a picky bunch. They expect that the preparation of the voluntary petition, schedules, or other documents will be done accurately and on time. A bankruptcy attorney can usually prepare the documents in much less time than it would take for you to figure it out on your own. He or she knows what items of personal property should or should not be included on the petition to avoid a dismissal of your case, and how to apply the Means Test to your situation.

Some courts may give pro se applicants some minor concessions or leeway so that the case can be moved along, but they are careful to avoid crossing the threshold of what may arise to the level of the Court doing the job that a litigant – or his or her counsel – should be doing. Also, many different communications are exchanged between a party and the court, the trustees reviewing the petition, as well as the creditors. Your actions, or lack thereof, during this time, can seriously affect the outcome of your petition, and may even lead to the worst outcome- a dismissal of your case.

Normally, when you retain an attorney to handle a bankruptcy, the attorney will contact creditors on your behalf and attempt to stop any embarrassing, annoying, or even harassing debt-collecting activities. Usually this stops the behavior, even though legally, the creditor still has the right to contact you. He or she can also give you advice on seemingly innocuous activities that could negatively impact your case, such as drawing on retirement funds to pay bills.

Then there is the significant issue of knowing the law. Since there are several sets of rules governing bankruptcy proceedings, trying to navigate all the rules at once can get very confusing. All parties to any bankruptcy proceeding must comply with the Local Bankruptcy Rules, the U.S. Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. Failure to do so will result in dismissal of the case or other sanctions. Other important aspects of law can come into play at any time during this process as well, such as statutes of limitations, transfer of assets, or tax issues that can have a big impact on your proceedings as well.

Finally, many bankruptcy proceedings are entangled with other legal issues, such as divorce, civil court action, or foreclosure, which could affect the outcome of your bankruptcy proceeding, and vice versa.

Before deciding to gamble with your future, talk to an experienced bankruptcy attorney about it. You will find the cost well worth it.

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Published Monday, February 1, 2010 @ 10:48 am

The decision to file for bankruptcy is never an easy one, especially where married couples are involved. Spouses must settle issues of dishonesty, mistrust, and frustration–and that’s even before any of the complex steps of collecting necessary documents and filing papers.

But the story for insolvent couples does have a caveat: joint bankruptcy protection. Married debtors can file their cases jointly with one trustee, one filing fee, and one total case. Debtors can bring to the table their joint debts as well as debts they hold only in their name. To be a joint case, the debtors need only be legally married.  And they must be a man and a woman.

Sounds simple right?

Well, for thousands of individuals living in America today, the latter designation raises difficult questions—especially in the growing number of states that recognize same-sex marriage or its legal equivalent (“civil unions”). Yet, as the constitutionality of laws and amendments forbidding marriage equality continue to be litigated across the country, same-sex debtors seeking bankruptcy relief  face even tougher challenges.

Because it is generally accepted that the Defense of Marriage Act (“DOMA”) would preclude the filing of a joint bankruptcy petition by a same sex married couple, these folks face two very different options: (1) make two separate bankruptcy filings, or (2) pursue the right to seek bankruptcy relief as would an opposite-sex married couple. 

While the second option would be a precedent-setting endeavor, fulfilling the true meaning of marriage equality, in reality pursuing this groundbreaking goal is largely antithetical to the larger motivations of most bankruptcy bound individuals, gay or straight: getting out of debt.

In practice, a married same-sex couple will need, more than their heterosexual counterparts, the assistance of a qualified bankruptcy attorney to pull together all of their required financial information;  ensure that it is complete and their disclosures accurate; and research and prepare a case that anticipates a variety of motions attacking the joint filing. Regardless of what “party-in-interest” files the case (as defined by the Bankruptcy Code and common law), the filing will likely be challenged, even before a judge reaches such substantive issues as income, assets, liabilities, and creditors.

In this case, like others for same-sex couples seeking right-giving precedents, while the Bankruptcy Code provides one standard, constitutional arguments will inevitably reveal others that need to be briefed and raised.  Same-sex couples must expect that any decision in their favor will be appealed, perhaps more than once to a US District Court, a Bankruptcy Appellate Panel, a Circuit Court of Appeals, or maybe even the Supreme Court of the United States.  For debtors, this type legal wrangling adds ,ore time, more fees and inevitably more stress to what is undoubtedly an already nerve-racking situation.

As a result, for a married same-sex couple facing the need to file bankruptcy, the next steps can mark a tough decision: file singly or fight the system; seek your family’s financial security or a denigrated group’s fundamental rights; moving forward for your family or moving your family forward.  In the end, changing the current state of the law will take either an act of Congress or one or more very brave and very patient married same-sex couples who find themselves drowning in debt and who–in spite of these debts—also feel empowered to fight the good fight.

The state of marriage equality is not yet where it should be in the United States, and this seriously affects the legal rights of same-sex families.  But until the law changes, same-sex couples need expertise in the handling of their cases.

If you live in North Carolina where same-sex marriage is not legal, but are still considering bankruptcy, the bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Monday, February 1, 2010 @ 10:23 am

If A Wealthy Developer Can Walk Away From The Mother Of All Underwater Mortgages, Why Can’t You?

Rachel Beck, national business columnist for The Associated Press, asked this very question in a recent article upon finding that heavily capitalized developer Tishman Speyer Properties was able to simply “walk away” from 11,232 Manhattan apartments because it couldn’t pay its mortgage, under the guise of “good business,” while at the same time, in the same country, Rick Gilson, a college custodial supervisor in South Dakota, resists walking away from the mortgage on his mobile home, fearing he’ll be considered “a deadbeat.”

As Beck found, “Those two borrowers face the same financial dilemma: Their mortgages far exceed the values of their properties. Yet one gets to walk away without guilt, while the other can’t. Mr. Gilson is scared to dump the mortgage on his mobile home. He owes $31,973, but the home is only worth about $14,000.” “I have 12 years of money put into this property that I will never get out,” said the 50-year-old Gilson. “But I am still paying because this is what I have been told to do. That’s what I think is right.”

As Beck illustrates, up to this point, the focus of the real estate crisis has been on individual Americans facing their own personal mortgage meltdowns. Today, one in four U.S. homeowners (nearly 11 million Americans) are underwater on their mortgages.  While some experts believe it makes sense to walk away if you’re deeply underwater as it’s not necessarily worth it to keep paying a mortgage when they can find comparable rental housing for less, the argument against walkaways is not only a dropping credit score, but that they will wreak economic havoc. Banks will have made more bad loans, will then make fewer loans and home prices will continue to plunge.

Obviously the rules are different, though, for what Beck calls “the walk away of all walk aways.”

That title goes to the 56-building Stuyvesant Town and Peter Cooper Village complex, the largest single-owned residential area in the city. Commercial real-estate firm Tishman and its partner, investment, paid $5.4 billion for the property, hoping to make money by converting rent-regulated apartments into high-priced luxury condos.

Enter the current housing crash and now the property’s value sits squarely at $1.8 billion: a difference not simply underwater, but drowning.  While Tishman has said that it was turning the property back over to creditors to avoid filing for bankruptcy protection, Tishman has failed to restructure $4.4 billion in debt, unable to find another buyer. So, Tishman exits the deal with a mark on its reputation, and yet a conciliatory $33 billion in assets.

Residential homeowners like Rick Gilson don’t have it so easy. With a mobile home that started depreciating the minute he moved in over a decade ago, he rents out the property just to make the payments, living in another home with his wife.

“I get so stressed over this,” Gilson told Beck. “It’s like the elephant in the room and there is nothing you can do about it.”

While the unfair truth is that real-estate tycoons can default on a $4.4 billion mortgage, but dis-similarly-situated individuals can’t walk away from a $31,000 loan, average Americans do have choices.  As homeowners languish waiting for more immediate mortgage help, many are turning to bankruptcy to stop foreclosure and other creditor actions. For reliable bankruptcy advice that you can trust, contact The Law Firm of John T. Orcutt. And to find out more about your bankruptcy options, visit The Law Offices of John T. Orcutt’s “Things to See and Hear” information.

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Published Monday, January 25, 2010 @ 6:57 pm

Ugh. Debt. These days most Americans are sick of hearing the d-word. And who can blame us? Americans are in more debt now than ever before. Avoiding debt seems impossible…there are so many things you can’t even do without credit cards or loans that we now take debt as a matter of course. Despite our negative feelings about debt, Americans want to repay what we owe. In fact, this noble instinct is what keeps some people from filing for bankruptcy when they desperately need to do just that. Not only are people afraid of having a negative impact on their credit scores (which in fact may already be in the basement), they also feel that the right thing to do is pay back debt.

When it is possible, paying back debt is the right thing to do, no doubt about it, but most people who declare bankruptcy don’t end up in a bad situation because they made negligent mistakes or don’t feel like paying; instead, dealing with the curve-balls life throws at us can prevent us from meeting obligations. By the time people opt to declare bankruptcy, they are not unwilling to pay back debt they simply can’t. The thing to remember is that creditors know that and take these factors into account. This is the reason creditors charge higher interest rates when they extend unsecured credit. If bankruptcy is the right decision, you shouldn’t allow misgivings about not paying certain kinds of debts hold you back.

What many people don’t even consider is that declaring bankruptcy can actually help you pay back debts. Consider this example: Say you are considerably behind on payments that are secured by your home or your car. In such a situation, filing for Chapter 13 bankruptcy can allow you to reach a compromise between what is feasible and what your creditors expect. In a Chapter 13 bankruptcy, a repayment plan could save your home from foreclosure by allowing you to catch up on back payments. Similarly, a Chapter 13 repayment plan can allow you to catch up on back payments for your car, helping you to avoid losing your vehicle to repossession. In both situations, the creditor is receiving payments for the credit they have extended, and you are working with a plan you can actually meet. This also applies to debts that you would not be able to discharge in a bankruptcy, such as child support payments and back taxes owed to the IRS. A Chapter 13 plan can help you make up for missed payments in the past while easing the pressure of being hassled and worried about never catching up. Eventually, with a good Chapter 13 plan, you are more likely to succeed in getting current on all your required payments.

A strategically timed bankruptcy can also help you in those situations where you may be able to pay off all your debts by selling assets, but you simply need more time. With aggressive creditors hassling you constantly, you may end up selling assets for less than they are worth, just to do so more quickly or to avoid penalties. This could land you with debts still to be paid and no assets to boot. A typical example is if your home is foreclosed on. Your home is not likely to sell for what it is actually worth if it goes through foreclosure. This means that you will no longer owe the mortgage company, but you will also lose the value in your home, if any, that exceeded the value of the mortgage. By declaring bankruptcy and forestalling foreclosure, you reap the actual benefit of your investment and potentially pay back everyone you owe.

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Published Monday, January 25, 2010 @ 6:33 pm

It’s tax season. Which means that for most people, it’s time to realize just how much we give to Uncle Sam every year. For some, the prospect of a refund provides a glimmer of hope that some new money is coming in soon to pay off debts.

Just a quick little note on your tax dollars before we get into the meat of this post: it is actually better to owe just a little bit of money after filing because that means that you have used more of our your own money throughout the year instead of giving it all to the government. Sure, a nice windfall come April is a nice thing. But keep in mind that it’s your money—you’re just getting it later. And, when it comes to investing, “money now” is always better than “money later.”

Because it’s tax season, we thought it important to discuss how taxes and personal bankruptcy can relate to one another. It is possible to use bankruptcy as a way to get rid of large, outstanding tax obligations but it’s not as easy as discharging a few grand in credit card debt.

Chapter 13 bankruptcy in most cases requires you to pay back what’s owed within your monthly payment plan and Chapter 7 rarely allows for the complete expulsion of your tax debts. (If you’re not sure of the differences between Chapters 13 and 7, simply do a search on our blog for each.)

There are, however, some precedents set for removing tax obligations as part of a bankruptcy. Although we encourage you to understand that it is a complicated process and the results are not always what you may be hoping for.

(Understand this post is only scratching the surface. Only in person can we provide a full breakdown of taxes and bankruptcy.)

One reason tax debt and bankruptcy tend to get tangled is that past due taxes can fall into all three categories of debt type: Dischargeable, Nondischargebale priority debts, and Nondischargeable priority debts.

Provided you filed your taxes on time, legally and provide no evidence of tax evasion other than legitimately being unable to pay, you can discharge tax debt in Chapter 7 and 13. Still, what’s owed must be more than three years late and assessed more than 240 days before you file. That means that you were officially declared late and in debt that many days before you filed. This ensures the IRS that you are not declaring just to get rid of a recent tax debt.

BUT (you knew there was one), that 240 day window starts only after the last extension expires, not when the original debt was assessed. Other impediments to that three year time-frame include a 90-day addition if a previous bankruptcy case of yours was still open while you were assessed the tax debt; the addition of any time the IRS was prevented from collecting as a result of a court ordered due process hearing plus an additional 90 days; and any time that a debt assistance professional formally asked the IRS to temporarily halt collection efforts.

Basically, any effort you make to delay the collection of tax debt, even if perfectly legal, counts against your ability to discharge tax debt in a bankruptcy.

The key to bankruptcy and taxes, like all things in life really, is to be completely honest and upfront. Any attempt to hide or even coyly plead ignorance will be considered an attempt to obscure or defraud the court and even worse, the IRS. Not being able to pay your taxes, especially after a mid-year job loss, is a common thing. Don’t make it worse.

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Published Monday, January 25, 2010 @ 8:41 am

Part of understanding bankruptcy is knowing who the professionals are that you will meet and deal with along the way. From your attorney to even your creditors, it helps provide a solid foundation of comfort to actually understand the role of those who are playing a role in your financial future.

One of those individuals is the case Trustee, the most prominent member of the bankruptcy process. And, the involvement you have with the case trustee depends on which chapter of bankruptcy you are filing.

As you may know, the 2 main “chapters” are 7 and 13. Well over 95% of all bankruptcy cases filed are filed under Chapter 7 or Chapter 13.

Let’s start by talking about the Chapter 7 trustee.

In every district in the country, there are 1 or more attorneys who have been appointed to act as a Chapter 7 Trustee. These Trustees are also sometimes called panel Trustees. When you file a Chapter 7 bankruptcy, one of these panel Trustees is assigned to your case.

The best way to think of this person is as an intermediary between you and the Court, an attorney whose job it is to make sure you have told the truth, the truth and nothing but the truth, to make sure that you have disclosed everything you are legally obligated to disclose, and to find and sell any ‘assets above exemptions’.

Fortunately, in our experience, in about 98% of Chapter 7 cases filed, there are no ‘assets above exemptions’ to sell. What does this mean for you? Just that if you file Chapter 7, there is very little chance you will lose any property you don’t want to lose.

As long as you have told the truth, disclosed everything, cooperate, and have no assets that cannot be protected by available ‘exemptions’, your contact with the Trustee should be a positive one.

However, the best approach is to assume that the Trustee assigned to your case is not your friend, so that you stay cautious and alert.

In most cases, you are first introduced to the trustee at your 341 meeting, also known as the “Meeting of Creditors”. Technically speaking, this meeting is held to provide your creditor an opportunity (in most cases, one last opportunity) to ask you questions. However, most of the time, none of the creditors show up, and then, it’s just you, your attorney and the Trustee. At this meeting the Trustee will ask you questions necessary to get to know you and your case better and necessary for the Trustee to carry out his or her duties. (There a number of posts here on the blog about this meeting. Take a look.)

Let’s say you are unlucky enough that your case falls in the approximately 2% of cases with more assets than can be protected. In this case, it is important that you understand that it is the Trustee’s duty to sell or dispose of those assets ‘above exemptions’, and to then distribute the proceeds to your creditors. Basically, anything not considered exempt property must be seized and sold by the trustee.

The type and amount of exemptions are, for the most part, set by the law of the State where you live. There are exceptions. Being set by State law, exemptions vary greatly. However, since in 98% of bankruptcy cases filed, there are no assets not covered by available exemptions, the exemptions statutes are, for the most part, fairly generous. However, make no assumptions in this regard. Always, always seek the help of an experienced, full time bankruptcy attorney. Such an attorney will be an expert in what exemptions are available in your State and how best to apply them. Such an attorney will also be able to tell you what is not protected.

The Chapter 7 Trustee is also responsible for tracking down any gifts you made just before filing, whether or not they were made in an attempt to hide assets or not. For example, if your nephew got a few thousand from you for his birthday the week before you filed bankruptcy, rest assured that your Trustee will be looking to get this money back. And, it’s not even safe to pay back relatives or friends prior to filing. These people are generally considered “insiders”, and, subject to certain exceptions, paying back insiders during the 12 months before filing bankruptcy is a “no no”, which will result in your Trustee being forced to try to get the money back.

Chapter 7 trustees are paid by a commission based on the amount of money they recover, so it stands to reason they’ll work hard to find and sell what property they can.

Now, let’s talk about Chapter 13.

The Chapter 13 Trustee, aka the Standing Trustee, is also first introduced to you at the 341 meeting. However, their role is more about ensuring your income is sufficient to pay your monthly Chapter 13 plan payment and that your proposed Chapter 13 plan is properly calculated. Assuming all goes well, it is then this Trustee’s job to collect from you your plan payment and to distribute it to your creditors.

Like the Panel Trustee, the Standing Trustee is paid a commission. However, unlike a Chapter 7 Trustee, the Chapter 13 Trustee gets his commission not from what he takes and sells, but rather out of the money you send in each month. Chapter 13 Trustees do not sell things. That’s just not his job.

The best way to think of your Chapter 13 Trustee is as the Chief Financial Officer in charge of your Chapter 13 plan. He runs the business of your Chapter 13 case. He figures out what is needed, and then accounts for and distributes the money you send in each month.

Your relationship with your Chapter 13 Trustee will be vastly different than the one you would have with a Chapter 7 Trustee. Chapter 7 Trustees live, for lack of a better way of saying it, for what they can “kill and eat”. Chapter 13 Trustee do not. Chapter 13 Trustees live off a percentage of what you send in each month. The Chapter 13 Trustee only succeeds in getting paid, if you succeed in making your payments. Therefore, as a general rule, Chapter 13 Trustees, at least those who recognize, so to speak, which “side their bread is buttered”, will go everything in their power to help you make a go of it in Chapter 13.

In most cases, as long as you make your required Chapter 13 plan payment, you can think of the Chapter 13 Trustee as more of a friend than adversary. He or she still has to do the job, but doing the job includes doing the best that can be done to make sure you do yours and that you get the full benefit of bankruptcy, all the way to the desired “discharge”.

If all of this is confusing and scary, we understand. Bankruptcy law is complicated and complex, to say the least. Need an expert? In North Carolina, there are many, good, experienced bankruptcy attorneys.

One is the Law Offices of John T. Orcutt, serving 30 counties in middle and eastern North Carolina. John Orcutt offers a Free initial consultation at 4 different locations: Raleigh, Durham, Fayetteville and Wilson. Call toll free to 1-800-899-1414 or visit his website for tons of info on bankruptcy: www.billsbillsb.com .

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Published Sunday, January 24, 2010 @ 6:51 pm

The United States has always been a nation of givers. Despite the recession and high unemployment, approximately 80% of Americans continued to give to religious and/or secular charities. This trend has continued in earnest following the recent catastrophe in Haiti. A new survey released by Zogby Interactive found that 64% of Ameircan adults have given or intend to give to relief efforts to aid to the earthquake-ravaged nation. The survey, released on Martin Luther King Jr. Day, found that 33% of respondents have already made a donation.

Perhaps you’re worried that declaring bankruptcy means you cannot donate. But, in fact, bankruptcy laws protect both debtors’ rights to give back. And now for those affected by the recession or for those bankruptcy bound, there’s even more reason to give back to Haiti.

As The Huffington Post reported on January 22, Taxpayers will now be able to write off charitable donations made by the end of February to Haitian relief efforts when they file their 2009 taxes under a bill President Barack Obama signed Friday. Under current law, donors would have to wait until they file their 2010 returns next year to take the deductions. The measure received final approval from Congress on January 21.

The hope is to encourage more donations.  And now is your chance to answer that call.

According to President Obama and Charity Navigator, an independent evaluator working to “advance a more efficient and responsive philanthropic marketplace,” listed below are prominent relief organizations, all of which are in dire need of donations specifically for Haitian relief efforts.

The American Red Cross has a full-time staff in Haiti, providing ongoing HIV/AIDS prevention and disaster preparedness programs. The Red Cross has already pledged an initial $200,000 to assist communities impacted by the earthquake. They seek additional donations to continue providing food, water, temporary shelter, medical services and emotional support.

Clinton Bush Haiti Fund is the unprecedented collaboration effort at the request of President Obama partnering former Presidents George W. Bush and Bill Clinton to help the Haitian people reclaim their country and rebuild their lives through donations of basic needs– food, water, shelter, and first-aid supplies.

Direct Relief International is a U.S.-based organization that provides medical assistance to impoverished nations. Direct Relief has committed up to $1 million to aid emergency response efforts, including medicine, supplies and food.

Doctors Without Borders is currently on the ground in Haiti continuing their mission as an international medical humanitarian organization working to assist people whose survival is threatened by this catastrophe.

Operation USA operates in Haiti, and is sending additional medical aid, water-purification supplies and food supplements to the hard-hit nation.

Convoy of Hope has established a command center just outside of Haiti’s capital where it is distributing food, water and supplies to the victims of the earthquake.

Oxfam America uses advocacy and education to aid areas in need of assistance. Oxfam is coordinating international aid groups to bring emergency water and sanitation services to Haiti.

Partners in Health has launched the Stand With Haiti campaign, bringing modern medical care to this nation and other countries around the world. Partners in Health has worked in Haiti for nearly 25 years and, since the earthquake, continues to provide medical assistance.

The Salvation Army is mobilizing personnel and supplies to assist in the relief effort in Haiti. The Salvation Army has already dedicated $850,000 in direct aid to the country; further donations can be made online or by calling 1-800-SAL-ARMY. The Salvation Army is also collecting $5 dollar donations by text. Mobile phone users in the United States can text the word HAITI to 52000.

UNICEF saw its offices in Port-au-Prince suffer heavy damages in the earthquake, but is ready to provide relief, deploying essential aid such as safe water, sanitation supplies, therapeutic foods, temporary shelter materials and medical supplies– all to assist in recovery efforts.

World Vision has worked in Haiti for 30 years, and is seeking donations to provide victims with food, water, blankets and tents.

Yele Haiti is entertainer Wyclef Jean’s own charitable organization and has established an online donation site to help victims of the earthquake. Through Jean’s Twitter account, the Haitian native also asks his fans to lend a hand, by making a $5 donation by texting YELE to 501 501.

Want to find out more about how the bankruptcy laws protects givers, givers who may end up needing help themselves? Check it out with the Law Offices of John T. Orcutt. In North Carolina, call for a totally FREE consultation. Call toll free to 1-800-899-1414 or visit their website at www.billsbills.com.

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Published Sunday, January 24, 2010 @ 10:36 am

It’s almost February and ‘tis the season for thinking about tax time—even more so if you find yourself considering the benefits of bankruptcy. So, if you believe you’re bankruptcy bound in 2010, in addition to trying to get your 2009 taxes filed in a timely manner, you may also be wondering whether you can discharge any income tax debt in your bankruptcy filing.

Well, it’s also time for insolvent taxpayers to take heart. When filing for bankruptcy a qualified attorney will compile a list of all of your debts, including credit cards, medical bills, car loans, mortgage debts, lawsuits and even information about stuff that you think you may owe, but for which creditors have yet to come calling.  In this long list of potential debts and inferences of insolvency, the lawyer will also require information about your taxes, including any federal income taxes you may owe, along with income tax due to your state or to any other state where you may have lived.

This comprehensive look at your debts, including your tax debt, is a good thing.  You are not only required by the Bankruptcy Code to include income tax debt in the common Chapter 7 or Chapter 13 case, but also because, in some cases, your tax debt can be minimized or completely eliminated by bankruptcy.

The question of whether your income tax can indeed be discharged by filing for bankruptcy ultimately depends on how old the tax debt is and when you filed that tax return.  In order to be dischargeable, your tax debt for the tax year in question must meet the following conditions:

• The due date for filing your tax return is at least three years ago.
• Your tax return was filed at least two years ago.
• The tax assessment is at least 240 days old.
• Your tax return was not fraudulent.
• You are not guilty of tax evasion.

For example, say you filed your 2005 tax return showing $6000 in outstanding debt on April 7, 2006.   On April 16, 2009, (three years later) that $6000 became dischargeable, meaning the tax debt could be eliminated in a Chapter 7 filing and treated as just regular old dischargable, unsecured debt in Chapter 13 bankruptcy. If, on the other hand, you did not file your 2005 return on time, waiting until December 15, 2009 to do so, your tax debt would not be dischargeable as of today (January 16, 2010) because fewer than two years had passed since you filed your return. In this case, you would simply have to wait to file bankruptcy until at least December 16, 2011.

Not surprisingly, the rules about discharging tax debt in bankruptcy can be confusing. For instance, only “income” taxes can be discharged in bankruptcy, whereas employee withholding (form 940 and 941) and sales taxes cannot.

Also…tax returns filed on your behalf by the IRS do not count for purposes of discharging tax debt.

And…tax debt that is secured by a tax lien may be dischargeable, but may still need to be paid to the extent that the lien is secured by the things you own. 

As a result, if you’re considering bankruptcy in 2010 and are concerned about the tax implications, including when to file, whether you can keep your tax refund, whether your tax debt is dischargeable, and any other factors in your personal circumstances that might require consideration, it’s important to speak with an experienced bankruptcy attorney who can competently guide you on the right path to the best result.

The bankruptcy lawyers at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Saturday, January 23, 2010 @ 7:15 am

You know your creditors: those nice folks who give you something you want — goods, services, or money — in exchange for your promise to pay them back at a later date.  In practical terms, a creditor can be a credit card company, a bank, a hospital, your local dentist, or any person or company to whom you owe a debt.

But, in these unfriendly economic times, [exactly] what happens when you can’t or won’t pay back that debt? What should you do when your creditors come calling? Can you keep creditors at bay or are you bankruptcy bound? Conquer your fears of dealing with your debt and remember the bankruptcy basics necessary to keep you from a creditor crunch.

Remember: Filing a Lawsuit Against a Debtor is not a Creditor’s First Choice
Keep in mind, creditors normally don’t want a lawsuit any more than you do. In fact, a creditor will not normally file a lawsuit against you until after many months and sometimes years of pursuing you for non-payment. Plus, creditors know that even if they file a lawsuit, it can be quickly neutralized by your bankruptcy filing—dispensing with your unsecured, and in some cases, even secured debt.

To Answer or Not to Answer
When you fail to respond to a creditor’s lawsuit, the creditor will gain a default judgment. This judgment will give the creditor the right to take certain collection actions against you, which could include seizing your bank accounts or garnishing your wages. In the alternative, if you respond to a creditor’s lawsuit—providing an “answer”—it can buy you precious time to secure more savings or take an excellent opportunity to file Chapter 7 or Chapter 13 bankruptcy.

The Consequences of Judgment Day
A judgment is a judicial order that, if it is not obeyed, will invoke legal consequences.  In extreme cases, a failure to pay a judgment filed on behalf of your creditors could result in a bench warrant issued by the court for your arrest. Keep in mind, only bankruptcy can help you avoid this type of judgment.

Settling What Constitutes A Settlement
Creditors file lawsuits because they simply want some kind of payment and, in the process, are often willing to settle for a lesser amount for repayment. Yet, while creditors want these types of settlements, it’s important to make sure your settlement offers are in writing.  Additionally, you should also be wary of so-called “debt settlement” firms who claim they can settle your debts for pennies on the dollar. Remember: you don’t need a firm to settle your debts…creditors filing lawsuits often offer settlement amounts; but the forgiven debt may be taxable. In the end, keep in mind that debts settled or discharged in bankruptcy are not taxable.

Worried About Wage Garnishment?
As mentioned, any creditor who wins a judgment against you can also garnish your wages or seize your bank accounts.  Only bankruptcy can stop your wages garnishment or a bank seizure order to raid your valuable accounts.  If a creditor seizes your wages or accounts after you file bankruptcy, you do have legal recourse and it’s even possible to get those assets back.

Knowing a qualified bankruptcy attorney can also help you conquer your creditors and face your financial fears, yielding the right kinds of support, information and insights—at a low cost— for a viable and secure future.  The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Thursday, January 21, 2010 @ 11:50 am

The latest chapter in the Obama administration’s attempts to make lenders modify mortgages is to send SWAT teams – no, I’m not kidding, really, SWAT teams – into the call centers of major lenders to try to ensure that they follow the proper procedures and actually modify loans. Seriously, wouldn’t it be a whole lot easier just to pass cramdown and allow bankruptcy judges to modify mortgages than to try to sweet talk, bribe or otherwise convince bankers to do it on their own?

Because they’re not. Making Homes Affordable, the program implemented by the government last May, is designed to encourage banks to modify the loans of homeowners who are having trouble making mortgage payments. Mortgage companies are reluctant to do that, however: they make more money in interest and fees when a mortgage goes into foreclosure, than they make from the government when they successfully modify it. The government had hoped to have 3-4 million mortgages modified by the end of last year. As of mid December, the count was at 750,000 – the vast majority of those were still in the trial stages.

The news reports of lenders dragging their feet are backed up with anecdotal evidence from homeowners, who report that they call the lenders over and over, file and refile the same documents, and then call back, only to be told that no one knows anything about their case. Lenders counter that people don’t send them the requested documents. Really? Desperate homeowner, one last shot at keeping their home, and they can’t be bothered to fax some papers? The lender argument is a little hard to believe.

Hence, the SWAT teams. These are teams of three people, sent into the call centers of the seven largest loan servicers to make sure that the bank representatives are giving accurate information, filing forms properly, etc. Experts are not impressed – many say the initiative is unlikely to work. Some have called for putting permanent government observers in the call centers. They note that private insurers already have their people inside the call center, to help prevent the loans they’ve insured from going into foreclosure.

Unfortunately, neither temporary nor permanent government observers in the call centers seems likely to work. This is another initiative – like the ‘foreclosure hall of shame’ that was supposed to embarrass the lenders into modifying loans – that the banks will evade and ignore until the administration acknowledges it isn’t working and moves on to something else. The fact is, lenders aren’t going to modify substantial numbers of mortgages until they are forced to. Unless an initiative like cramdown is passed, which takes the decision to modify or not and how much out of the bank’s hands and gives it to a neutral party, foreclosures will continue to rise.

Fortunately, homeowners finding it difficult to pay their mortgage may have another option to save their home: bankruptcy. Your bankruptcy attorney will return your phone calls, keep your files organized, and not make you fax documents four or five times. In addition, he or she will help you map out a plan that will lead you to financial freedom. The Obama administration may sincerely want to help homeowners. But as long as they expect bankers to do it out of the kindness of their hearts, you’re probable better off filing for bankruptcy.

Brought to you by the Law Offices of John T. Orcutt. Providing North Carolina homeowners real foreclosure relief since 1995. Is your lender not working with you? Call today and find out how a bankruptcy can save your home. 1-800-899-1414. Convenient offices in Raleigh, Durham, Fayetteville, and Wilson.

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Published Thursday, January 21, 2010 @ 7:45 am

According to a January 8 article in the Huffington Post, lack of confidence in the recent economic recovery led employers to shed an unanticipated 85,000 jobs in December 2009—even as the unemployment rate held steady at 10 percent.  While it may seem strange that unemployment rates flatlined as American jobs continue to disappear, the explanation is even more disconcerting; in truth, the rate would have been higher if more people had been looking for work instead of ending their search because they can’t find jobs.

As the Huffington Post reported: “The sharp drop in the work force – 661,000 fewer people – showed that more of the jobless are giving up. Once people stop looking for jobs, they’re no longer counted among the unemployed. When discouraged workers and part-time workers who would prefer full-time jobs are included, the so-called “underemployment” rate in December rose to 17.3 percent, from 17.2 percent in November. That’s just below a revised figure of 17.4 percent in October, the highest on records dating from 1994.”

Many had hoped the latest Labor report would support the premise that the economy had actually begun to rebound, gaining jobs for the first time in two years.  As such, the divide between the have nots and notions from economic “experts” continues to grow as Main Street unemployment once again negatively contrasted Wall Street perceptions of economic improvement. “One word sums it up: Disappointment,” Jonathan Basile, an economist at Credit Suisse told Huffington Post. The drop in the labor force, Basile said, “tells me that Main Street doesn’t believe there’s a recovery yet, because they’re not out looking for jobs yet.”

As it is, the unemployment rate holds steady at 10%.

In terms of job creation, the bar is now a bit lower for a “happier new year.” Friday’s report caps a 2009 considered another terrible year for U.S. workers. The economy has lost more than 7.2 million jobs since the recession’s beginnings in December 2007. And while layoffs have slowed, they have hardly ended, with December’s numbers providing another staggering reminder.

“The economy is in a rough situation,” Labor Secretary Hilda Solis acknowledged in an interview with The Associated Press. She said she thinks companies are reluctant to ramp up hiring because they’re waiting to see what new stimulative steps the government will take to provide relief.

In an attempt to offset these negative numbers, President Obama has presented $2.3 billion in tax credits that Congress has already approved to create 17,000 green jobs.  Meanwhile, Congress is considering a “jobs bill” that would contribute $174 billion in unemployment benefits. Our nation’s leaders understand that if jobs remain scarce, consumer confidence and spending will continue to flag, slowing the economic recovery.

While recent reports of the nation’s financial future remain nothing short of bleak, the good news remains that through bankruptcy laws, borrowers facing unemployment can take their future into their own hands, stop drowning in health care, consumer and mortgage debt, and begin on the road to a more viable financial future.

Every week bankruptcy attorneys continue to meet with dozens of Americans in financial distress due to employment woes.  Each time those who have encountered job misfortune come into law offices feeling hopeless and at the end of their rope, perceiving no alternatives to their continuing fiscal problems.  Almost every time, however, it seems more and more when these same clients leave these offices, they finally feel some sense of relief for the first time since the job recession started; they are reassured that the bankruptcy laws and the bankruptcy system offers them the possibility of a new start— at an affordable cost—and with it a financially viable and secure future. In short, bankruptcy relief ends worry and stress for many jobless Americans living on the financial brink.

For reliable bankruptcy advice that you can trust, contact The Law Firm of John T. Orcutt. And to find out more about your bankruptcy options, visit The Law Offices of John T. Orcutt’s “Things to See and Hear” information.

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Published Tuesday, January 19, 2010 @ 3:02 pm

So you’re drowning in debt and desperate for a way out. A friend or relative asks if you’ve considered a 401k loan. “They’re quick, simple to qualify for, and here’s the best part: you’re paying the interest to yourself.” Sounds like a brilliant solution, right? Why pay 25% interest to a credit card company when you could be paying 6% interest to yourself?

Stop. You want to think long and hard before you take out a 401k loan, especially if you’re already in debt.
Fayetteville debt relief,
The most important thing to know is that, in bankruptcy, your retirement savings – 401k accounts, pensions, 403b accounts, traditional IRAs, Roth IRAs and even plans for small business owners and the self employed – are protected from your creditors. That bears repeating. If you declare bankruptcy, you keep all the money in your retirement accounts.

If you’ve taken the money out in the form of the loan, however, your creditors can take that money.

Moreover, failure to pay back a 401k loan comes with serious drawbacks. If you lose or change jobs, you have to pay back the entire sum within 60 days. If you’re unable to make payments on the loan – or the lump payment in the case of changing jobs – you’re required to pay all taxes on the outstanding money, plus a 10% penalty.

In addition, recent court cases have determined that because you’re paying the money to your own account, a 401k loan cannot count as debt, and is not part of the Means Test. This means that you could be tipped into a Chapter 13 plan even if you’re spending significant amounts of money repaying a 401k loan. If you’ve already borrowed the money, though, don’t despair. It’s true that it might bump you into filing Chapter 13 rather than Chapter 7. However, while the Means Test is very similar to the disposable income formula in a Chapter 13 bankruptcy, there’s one important difference and that’s the 401k. You’re allowed to both contribute to your 401k in a Chapter 13 plan, and to repay your 401k loan, and take both as a deduction on the means test. This means your plan payment may actually be lowered if you are making a 401k repayment.

There may be times when 401k loans aren’t a terrible idea, even if you’re facing bankruptcy. It might make sense, for example, to take out the loan in order to catch up with mortgage payments before you file bankruptcy. But this is a situation where you should really discuss the pros and cons of your actions with a bankruptcy attorney before undertaking the loan. One important rule of thumb: it doesn’t make sense to take the loan out to repay unsecured debt, debt that will most likely simply be dismissed in bankruptcy.

One final note: not every 401k plan permits loans for any reason. Some plans restrict them to specific purposes, such as first time home loans, medical expenses, college tuition or mortgage payments. Before even considering this option, you need to make sure it’s available to you.

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Published Tuesday, January 19, 2010 @ 2:56 pm

No doubt in the last several years you’ve heard the phrase “Too Big to Fail” more than once. This oft-used phrase refers to the regulatory idea that many of the largest and most interconnected businesses are, in fact, so large that a government cannot allow them to fail because their failure would have a disastrous effect not only on the business itself, or even the larger industry, but also to the greater economy.

Early in the economic meltdown and late in 2008, General Motors Co. was considered just such a company. And given their huge presence in the U.S. economy, bankruptcy appeared unthinkable. Yet the unthinkable became inevitable in June 2009 as GM finally filed for Chapter 11 after years of losses and market share declines capped by a dramatic plunge in sales.

In Michael McKee’s Bloomberg article, “GM’s Long Decline May Make Bankruptcy ‘Irrelevant’ to Economy” of the car company’s “failure” he wrote:

“General Motors Corp. once mattered so much to the U.S. economy that a two-month strike in 1970 helped trigger a 4.2 percent drop in gross domestic product for the fourth quarter, as national auto production fell 82 percent.

Then, GM accounted for about half the cars and light trucks sold in the country. Now, GM controls just 20 percent of the market, and analysts say its bankruptcy filing will barely register in the broader economy.

GM’s drawn-out restructuring, an increase in U.S. manufacturing by foreign carmakers and the recession-induced decline in auto sales all have meant more to the economy than today’s legal filing.

“Bankruptcy now is irrelevant in terms of the economic consequence of what’s happening to GM,” said Mark Zandi, chief economist at Moody’s Economy.com in West Chester, Pennsylvania. “Either way, it’s going to be a shadow of what it was, in terms of jobs and income.”

GM has been reducing payrolls for three decades. Its U.S. employment peaked in 1979 at 618,365, when it was the nation’s largest private employer and auto manufacturing accounted for 4.1 percent of GDP. At the end of this year’s first quarter, autos were 1.5 percent of the economy, and GM had 88,000 U.S. workers.”

But as unthinkable as it was last year to let GM go bust, and how “irrelevant” bankruptcy seemed at the time as a viable solution, GM has taken a surprising post-bankruptcy turn.

In short, it was too big. It failed. Nothing bad happened. And now it’s back again.

That’s right, after an aggressive bankruptcy-inspired restructuring and reorganizing, GM, even amid weak car sales, is talking about making a profit this year. According to this week’s Wall Street Journal, General Motors Co. will make money in 2010, its chairman said, “a bold and surprising forecast for a business that exited bankruptcy proceedings just last summer and hasn’t turned an annual profit since 2004.” “My prediction is we will be” profitable in 2010, Edward E. Whitacre Jr. told reporters at GM’s Detroit headquarters, a sign of rising confidence that also sets a tough benchmark for the still-struggling car maker’s employees. “Do we have obstacles in the way? Yes. But we have a good management team and a good plan in place.”

The moral of the story?  Bankruptcy works.

Now in addition to convincing Tim Geithner, Larry Summers, and Ben Bernanke that it’s okay to let financial firms sink into insolvency—for a restructured and reorganized future—the way small banks and businesses do every week under Chapter 11,  it’s also essential to understand that bankruptcy can work for you…and isn’t a failure… but the possible key to a stronger and more productive financial future.

For more information on getting back on your feet like GM through bankruptcy visit the experienced bankruptcy lawyers of The Law Offices of John T. Orcutt.

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Published Tuesday, January 19, 2010 @ 11:23 am

In the Preventing Foreclosure series, you’ve received an introductory look at how to stay in your home, either through bankruptcy proceedings or via negotiations with your mortgage lender, with later discussions specifically devoted to how Chapter 13 or Chapter 7 bankruptcy proceedings can force creditors to end their collection activities and delay a foreclosure sale.

In Part II of this six-part series, we elaborated on the ins and out of working with your mortgage lender, including timelines, terms, and trends, including forbearance, mortgage modification, loan reinstatement, and the short sale. Here, we’ll expand on the process behind the real estate concept of a  “short sale,” including the ins and outs of this option for homeowners seeking to avoid foreclosure and settle with their lender.

Part V – The Short Sale

If you’re one of many mortgage holders in arrears due to a recent job loss, extended unemployment, medical costs, divorce, or just an adjustable rate mortgage that’s on the rise, you may be facing foreclosure. But, foreclosure can ruin your credit and make it impossible to acquire a new home, leaving you without your biggest and best asset in an uncertain economic climate.

You may have heard of one alternative to foreclosure: the short sale. A short sale occurs when the outstanding loan against your home is greater than what the property can be sold for. For some homeowners, this may be a viable solution. However, for many, it’s just a false glimmer of hope that may leave the homeowner worse off than before the short sale. Here’s a brief overview of the necessary steps of a short sale:

Verify Your Property Value
If you’re using a real estate agent, they’ll provide you with an estimate of market value. If you are selling the property yourself, do your own homework, assessing the market in your area for a proper property price.

Calculate the Costs
Add up all the costs of selling your property, including the closing costs. If you are selling the property on your own, a real estate attorney can help.

Assess the Amount Owed
Determine the amount owed against the property, including all loans, minus the total amount owing against the property from the estimated proceeds of the sale—ultimately a negative number.

Locate Your Lender
Contact your mortgage lender or lenders for their particular short sale procedures. Some lenders are willing to work with you by reducing the amount owed or making other arrangements.

Sell the property
If your lender agrees to a short sale, the next step is hiring a real estate agent—one willing to work for a smaller commission. At the same time, you’ll also need to scale back your own spending as another sign of good faith to your lender. Once a buyer is secured, you can then sell the house for a loss, and, with the lender’s permission, they agree to call it even, with no damage to your credit or ability to procure a new home in the future.

Review the Risks
In addition to the potential that your lender will deny you a short sale, the short sale process does have consequences. Your lender may not be willing to eat the loss, leaving you on the hook for the difference. Make sure they are willing to give you complete forgiveness of the debt, and that they will not hold you personally liable for the difference between what the property sells for and what you owe. Get this in writing. Even if your lender does absorb the loss, the IRS may treat this difference as taxable income, leaving you with a significant chunk to cover come tax time.

As a result, the best alternative is, of course, keeping your home—either by restructuring or reinstating the loan.  Your best bet is contacting a bankruptcy attorney as soon as you start feeling pinched to make the mortgage payment. Chances are you have other unsecured debt that can be eliminated, freeing up more money to pay your mortgage. If you have two mortgages and your home is now worth less than what you owe on the first, a bankruptcy can get rid of the 2nd. That’s right, you may be able to eliminate your 2nd mortgage.

In Part VI, we’ll conclude the Preventing Foreclosure series with a broader look at your bankruptcy options.  And, as always, to learn more about your options, contact the experts at The Law Offices of John T. Orcutt.

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Published Monday, January 18, 2010 @ 6:48 pm

In 2005, Congressional changes to the Bankruptcy Code made bankruptcy filing more cumbersome by requiring quite a bit more red tape, leading to a significant drop in filings the following year (2006). But, as a result of the economic downturn, during the past three years, bankruptcy filings have risen back to the levels seen before Congress’ 2005 bankruptcy overhaul.

In fact, despite notions that the economy improved last year, 2009 appears to have been a devastating year for the finances of American people—and businesses—beleaguered by an unending stream of bad economic news.

According to an Associated Press report on January 4, 2010, U.S. consumers and businesses are filing for bankruptcy at a pace that made 2009 a year with the seventh most filings on record, garnering more than 1.4 million bankruptcy petitions. This record number represented a staggering increase of 32 percent from 2008.

These statistics, gathered by the National Bankruptcy Research Center (NBRC), measure consumer and business filings from December through November. December 2009 filings are not included in the total. Of the 1.43 million bankruptcies in 2009, 116,000 were recorded in December 2009, up 22 percent from the same month the year prior—a sign that bankruptcies aren’t exactly slowing down.

Another sign of a continuing wave of insolvency is that recent, recession-driven bankruptcies have occurred in mini waves of their own, beginning nearly two years ago with a run of adjustable-rate mortgage (ARM)-related filings; followed closely with an upsurge of filings from the newly unemployed; and finally, and more recently, with findings that wealthy individuals and business owners are now succumbing to the economic effect of lower incomes and shrinking home values.

The increase includes a significant upturn in 2009 Chapter 7 (liquidation) filings, which increased by more than 42 percent compared to this time last year. Conversely, Chapter 13 filings have increased at only 12 percent. The steady decline in Chapter 13 filings, stands in direct contrast with the strong push by Congress in its 2005 bankruptcy legislation to encourage bankrupt consumers to choose Chapter 13—with its focus on creditor repayment—rather than Chapter 7. The figures seem to yield not only a failure in the policies and goals of the Congressional overhaul, but consumers desire to wipe their financial slate clean, and quickly, in lieu of holding on to, for example, their home, or other non-exempt possessions.

In fact, states with high foreclosure rates are leading the way in bankruptcies as well; again, signaling the housing crisis, adjustable mortgages, and a loss of home equity, as primary factors in many Americans’ decision to file. According to the NBRC, nationwide, filings to date amount to almost 11,500 filings per million households with the highest filing rates in Nevada (two-and-half times the national average), followed by Tennessee, Georgia, Alabama, and Indiana (with one and a half times the national average).

Is the housing market, job market, or a combination of factors hitting you and your household hard? If so, the numbers above show you’re not alone. In fact, there’s strength in these numbers—knowing a qualified bankruptcy attorney has helped many weed through the bankruptcy laws and the bankruptcy system, yielding the possibility of a new start— at a low cost— for a financially viable and secure future.

The bankruptcy experts at the Law Offices of John T. Orcutt offer a totally FREE debt consultation and now, more than ever, it’s time to take them up on their offer. Just call toll free to 1-800-899-1414, or during the off hours, you can make your own appointment right online at www.billsbills.com. Simply click on the yellow “FREE Consultation Now” button.

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Published Thursday, January 14, 2010 @ 9:30 am

More than 1.4 million Americans filed for bankruptcy in 2009; surprisingly, a large number of filers were over the age of 65. Senior citizens were traditionally less likely to file bankruptcy for a number of reasons. Until recently, for example, senior citizens held less credit card debt than younger people. They have less time to repair their credit rating after a bankruptcy as well, and may feel that the perceived harmful effects of bankruptcy will haunt them forever. Considering that many myths about bankruptcy are deep-rooted, older Americans may be more likely to hold strong feelings associating bankruptcy with shame and failure.

Nonetheless, bankruptcies among the plus 65 set continue to grow. Between 1991 and 2007, bankruptcy filings among Americans 65 and older went up 125 percent; for those between ages 75 and 84 they increased an astonishing 433 percent. The recession that began at the end of 2007 has hit seniors particularly hard. The crash of the stock market meant that many seniors wound up having far less money to see them through retirement than they had hoped. While younger workers have a couple of decades to rebuild their portfolios and 401k accounts, older Americans, who need to use that money now, do not. Furthermore, many older Americans live on a fixed income – social security payments or pension payments – and they have few options to increase that income. With a national unemployment rate hovering around 10%, jobs are difficult to find for anyone. Given that many companies have a bias – legal or not – against hiring older workers, senior citizens often find it difficult to get work.

While seniors once had a reputation for eschewing credit cards and paying with cash, in recent years, credit card companies have been aggressively marketing to senior citizens. Most doctors and pharmacies now take credit cards for prescriptions and co-pays; many strapped seniors have no choice but to put those purchases on credit. The average senior now has slightly more credit cards debt than his or her younger counterparts.

The good news is that bankruptcy offers seniors the same protections it offers all Americans: a chance to keep your home. Freedom from the incessant calls of creditors. If you’re on a fixed income, chances are good that you will qualify for a Chapter 7 bankruptcy, which will simply discharge your unsecured debt.

Why waste your golden years worrying about credit card debt? See a bankruptcy attorney today, and determine the best course for you, to bring you to financial freedom.

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Published Sunday, January 10, 2010 @ 9:08 am

Before filing for bankruptcy protection, it is well worth your time to seek out alternatives. Here are a few you for you to consider:

You know what budgeting is, but maybe you haven’t given it serious thought.  If you are finding yourself squeezed every month as you try to make payments to your creditors, it is possible that some creativity and sacrifice can give you enough breathing room to build and execute an escape plan. Check with your employer to see if the company offers an Employee Assistance Program with financial counseling services, as they can provide guidance about possible options. If some budgeting and perhaps very judicious borrowing could help you pay back your debts within 3 years while allowing you to live relatively comfortable, budgeting could be a good alternative for you.

What does judicious borrowing mean, exactly? Well, for one thing, it means no more loans from predatory outfits like payday loan stores, and it may also  mean no more borrowing from credit cards and banks–these ostensibly legitimate outfits can be as exploitative as anyone.  If you can borrow the money from a family member, or perhaps receive a low interest loan from a credit union or other borrower friendly institution, a loan can give budgeting the necessary punch to make it effective.

There are downsides, however; borrowing money to get your way out of debt is a little like a sale that promises you will save money by spending–  a contradiction in terms. The point of borrowing to get out of debt is to replace your existing debt with lower overall payments and/or monthly payments. If you aren’t saving money, borrowing more is just asking for trouble!

You may not be in a position to do the kind of borrowing that can be labeled judicious; if you are considering bankruptcy, chances are good that your credit is hurting, and low credit makes for bad loans–or no loans at all.  Borrowing from family has downsides, too: what if you become unable to repay the debt, for whatever reason? Financial problems can drive families apart, so it is important to tread carefully.

Another alternative is selling assets. If you have valuable assets, it is possible that filing for bankruptcy could cause you to lose those assets  anyway ( but this does not, of course, include your personal home or car, which bankruptcy can help you save.)  In that case, selling assets might be a good idea. On the other hand, this is just like the judicious borrowing example given above; how likely is it that you have valuable assets sitting around if you are in enough financial trouble to seek bankruptcy protection? Watch out for third party security interests in your assets; some assets may not be sale-able while someone else  (say, a lender) has an interest in the asset, so be sure to check any agreements concerning that asset before you proceed.

Budgeting can also receive a boost from restructuring of your debt; if you are able to refinance your house, transfer credit card balances or seek out other methods, you  may be able free up enough cash in your lowered payments to pay back the principals on your debts. This solution also comes with downsides and caveats, however: you may not be eligible to restructure any of your debts (especially now that banks are being so tightfisted over lending), and sometimes restructuring debt sounds a lot better  than it turns out to be: transferring balances to take advantage of lower interest rates can end up backfiring if you are unable to pay before the grace period ends and if the regular interest rate is higher than the one you gave up. Refinancing can sometimes result in lower payments and less money paid overall, but those savings sometimes end up being passed to third parties in the form of fees or commissions.

As you can see, alternatives are out there, but the drawbacks, caveats and requirements mean that no one solution will act like a miracle cure. Give equal consideration to all your options–including filing for bankruptcy protection.

So…why settle for an alternative? Stuck with what seems like a mountain of bills you cannot pay or get a handle on? Maybe the best ‘alternative’ is to just look into filing bankruptcy. The truth is: It does so much more for so much less that everything else. The fact is that, had the bankruptcy laws not already been on the books, the creditor lobby would surely block their creation. Bankruptcy is just that good. You should check it out and you have nothing to lose. Many bankruptcy attorneys offer a totally FREE initial consultation, just for this purpose. In North Carolina, so does the Law Offices of John T. Orcutt. Just call toll free to 1-800-899-1414 or visit their website at www.billsbills.com . They have offices in Raleigh, Durham, Fayetteville and Wilson.

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Published Thursday, January 7, 2010 @ 12:27 pm

Are you putting off declaring bankruptcy because you’re afraid you’ll never be able to rent an apartment again? Have you heard horror stories from friends or relatives about how they got turned down for a rental because of their bad credit? Relax. Having a bankruptcy on your credit report won’t prevent you from finding a great place to live.

It’s true that some places – particularly apartment complexes – do check your credit, and do accept or deny your application based on the results. If you have your heart set on living in a place like this, do yourself a favor: call them up beforehand, and ask what their requirements are. Be specific. Ask if they refuse to rent to anyone with a bankruptcy on their record. Find out your credit scores in advance, and ask the apartment manager if your scores sound like they’re in the right range. If not, you’ve just saved yourself the $40-50 application fee. If the manager says, “well, they’re a little low,” offer to bring documentation showing your reliability: pay stubs from work, bank statements, savings accounts, rental history, letters of recommendation. Some apartment complexes will rent to people with lower credit for an additional deposit.

Remember, too, not every apartment owner will check credit. Many individual owners don’t do a credit check. Even those who do are likely to listen to your story about what happened, and why you declared bankruptcy. Be brief but honest; most importantly, explain how your situation has changed. Make sure they understand that the bankruptcy means you owe less (or no) money now, and are therefore better placed to make the rental payments. Again, bring documents to support your story. You can also point out that since a person can’t declare bankruptcy for another seven years, you are actually, in some ways, a better risk than someone who hasn’t declared bankruptcy – if you stop making payments, they could take you to court and you wouldn’t be able to discharge those debts. Be careful with this argument though: although it’s both true and valid, some landlords might consider the fact that you’re bringing up the possibility of not paying rent as a bad sign.

Another suggestion is to look for places to rent that are less strict. Some rentals will advertise: no credit check required. Check out apartments that are offering specials: one month free if you rent by June 1st, for example, or no deposit required. Generally, this indicates a place with low occupancy, and owners who can’t afford to be quite as picky.

Finally, once you get established in a new apartment, do everything you can to maintain the path to financial stability you started by declaring bankruptcy. Take steps to rebuild your credit. Begin to establish a nest egg so that you have some savings in case of emergencies. Most importantly, pay your rent on time every month. If you need to rent another place in the future, having a solid record of making monthly payments could be invaluable.

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Published Wednesday, January 6, 2010 @ 8:20 pm

Throughout the Chapter 12 Bankruptcy series we’ve explored how bankruptcy bound family farmers and fishermen can reap the many rewards and special rights provided by a Chapter 12 filing. This series included an introduction to the concept of Chapter 12, along with additional benefits drifting from this protection; a detailed look at how this process works for farming and fishing families; and what you can expect at a Chapter 12 hearing—from the earliest bankruptcy petition to the negotiated repayment plan. In the conclusion of this four-part series, we share the specifics behind, and results of, this type of bankruptcy discharge, along with an understanding of Chapter 12 debt relief exemptions, and the ins and outs behind what is known as the Chapter 12 “hardship discharge.”

Under Chapter 12 bankruptcy laws, if you were initially defined under the Bankruptcy Code as a family farmer or fisherman at filing, you can receive a debt discharge after completing all necessary payments under your court-sanctioned Chapter 12 repayment plan. In some cases, in order to ensure this discharge, you must also certify that all domestic support obligations due prior to making this certification have been paid.

The effect of the Chapter 12 bankruptcy discharge involves releasing you from all debts provided for by the repayment plan, with a few exceptions. This means that your farm or fishery’s financial slate is clean, and any creditors  (whether priority, secured, or unsecured), who were provided for in full or in part under your repayment plan may no longer start or continue any legal action against you to collect any discharged debt obligations.

There are a few exceptions to the Chapter 12 bankruptcy discharge. According to the Bankruptcy Code, certain categories of debts not discharged in Chapter 12 proceedings include: “debts stemming from domestic support such as alimony and child support; money obtained through filing false financial statements; debts for willful and malicious injury to person or property; debts from fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny, and any debts for death or personal injury caused by the debtor’s operation of a motor vehicle while the debtor was intoxicated.”

Your Chapter 12 plan usually lasts three to five years and normally provides for full repayment of all priority claims. Any debts that are not discharged will need to be paid in full under your individual repayment plan. Because an added benefit of Chapter 12 bankruptcy is that payments to secured creditors can sometimes continue longer than the three-to-five-year period plan, these debts are therefore not discharged until fully paid.

Another benefit of Chapter 12 bankruptcy is the “hardship discharge.” The court may grant you a “hardship discharge” even if you’ve failed to complete all of the payments under your repayment plan. This type of discharge is available when your failure to complete payments under your individual repayment plan is due to circumstances beyond the debtor’s control and through no fault of the debtor, such as injury or illness that prevents you from keeping an income. In some cases, the Chapter 12 hardship discharge falls under many of the rules and limitations applied in Chapter 7 bankruptcy cases.

During the complex Chapter 12 process, primarily used to bail out working families who are, in this savage economy, beleaguered and bankruptcy bound, it’s always helpful to seek the assistance of a qualified bankruptcy lawyer. While the Law Offices of John T. Orcutt do not file for Chapter 12 relief, we will evaluate your unique financial situation and refer you to a Chapter 12 bankruptcy expert if needed. Call today to set up your free initial consultation. 1-800-899-1414.

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Published Tuesday, January 5, 2010 @ 1:52 pm

Foreclosure is a common precursor to bankruptcy. More often than necessary, it happens before a family really knows where to turn for help.

Worse yet, those who lose their home in foreclosure continue to spiral into debt and end up filing bankruptcy long after it could have been used to help save their home in addition to relieving them from the agony of overwhelming monthly credit card bills and other debts. Fortunately for many citizens of North Carolina, a foreclosure prevention program has become a model for the nation and to date has assisted more than 2,500 of us from having to give back the property we worked so hard to obtain.

Called the State Home Foreclosure Prevention Project, this unique effort provides those worried about making their mortgage payment a hot line that provides advice, counseling and insight on how to work with your home’s mortgage lender to avoid having to surrender your deed back to the bank. While it certainly cannot help everyone who calls, two out of every three families needing help are getting it. And, more than 5,000 additional mortgages are still being re-negotiated.

It was originally created to assist those victimized by the sub-prime loan mortgage crisis but has since been expanded to help homeowners who have traditional loans but may be struggling with their house payment as a result of other debt forms or unemployment.

It should be noted that this program is not a debt or credit counseling service. It is designed specifically for those affected by the swath of spiking mortgage rates that resulted in the systemic plague of foreclosures nationwide, decimating the national real estate market and bolstering our economic demise.

Similar federal programs, such as the Making Home Affordable plan rolled-out last year, have not met expectations. North Carolina has managed, proportionally, to create an impact. The state banking commission has estimated that the total number of mortgages saved to date has stopped $218 million in property value and mortgage holder losses. Should those families currently working with the program be saved, the totals could more than double that number.

Yet, there remain a number of pain points in the state’s efforts to stave off foreclosures. Chris Kukla, a high level government affairs adviser at the Center for Responsible Lending, stated that a number of mortgage counseling companies and other private organizations are doing a “horrible job” in loan reorganization. Whether it be not hiring enough people to answer call-in questions or simply not understanding the paperwork process and related legalities, many of the efforts that have erupted on to the market at the height of the recession are too profit driven to provide real service.

The importance of this program to those considering bankruptcy is that it can help you alleviate one of your largest monthly financial headaches. Understand of course, that it does not eliminate your mortgage, but simply re-aligns it in a more reasonable payment plan. With this added stability, a troubled homeowner could arrive at a less pressure-driven decision to file bankruptcy and feel more confident in the outcome.

Remaining in one’s home is one of the most important factors for someone who files for bankruptcy protection, despite the fact that the majority of those who file do just that — stay in their homes. It seems that over the years, perhaps since the 2005 changes to the bankruptcy law, or maybe as a result of today’s hyper-sensitivity to the housing crisis, the fear of foreclosure has permeated the mindset of everyone facing financial trouble. Between programs like the State Home Foreclosure Prevention Project and the expertise of the bankruptcy attorneys at the Law Offices of John T. Orcutt, you have more than enough ways by which to remain safe and sound at home.

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Published Tuesday, January 5, 2010 @ 11:46 am

America is a nation of givers. Despite the recession and high unemployment, approximately 80% of Americans continued to give to religious and/or secular charities. Many people who’ve lost their jobs or accumulated large amounts of debt nonetheless continue to struggle to donate to churches and causes they believe in. Perhaps you’re worried that declaring bankruptcy would put an end to your ability to donate. Or perhaps, even worse, you’re afraid that the bankruptcy trustee would be able to recover any gifts you’ve made to your church in the past year.

In fact, bankruptcy laws protect both debtors’ rights to donate and religious charities’ rights to keep donated money. Debtors taking the ‘means test’ to determine whether or not they can file chapter 7, can allocate as much of their income to charity as desired- so long as the charitable giving is in line with past practices, and not merely a strategy to pass the means test. Similarly, Chapter 13 filers can use charitable contributions to reduce their disposable monthly income, and more importantly, reduce their monthly plan payment.

It’s true that a series of bankruptcy cases had surprising and sometimes contradictory findings after the passage of the 2005 bankruptcy act. One prominent case in New York, in 2006, for example, found that Chapter 13 filers could not tithe or make any other donations until they had paid off their credit card debt. However, Congress quickly passed the Religious Liberty and Charitable Donation Clarification Act of 2006, which clarified that Americans filing Chapter 13 do have the right to make charitable donations. It built on another act of Congress, the Religious Liberty and Charitable Donation Act of 1998.

Prior to the 1998 act, bankruptcy trustees frequently sued for the return of charitable gifts. Some trustees argued that charitable deductions to churches were donated without any ‘reasonably equivalent value’ being given in return. Therefore, they should fall into the category of fraudulent transfers – payments made to one person or creditor that are more than what they owe, or what they’re valued for, thus shortchanging everybody else. Bankruptcy attorneys argued no, that in fact the donor does receive something of value in exchange for the donation: preaching, teaching, spiritual instruction, etc. The trustees countered that the donor would receive those things whether or not they gave money. Many bankruptcy courts allowed the trustees to recover the money – which caused great hardship for some charities, who had already spent that money. However, the 1998 act clarified that gifts up to 15% of the donor’s income in the year before bankruptcy are not recoverable. In addition, gifts of more than 15% may be exempt if the debtor can show that these are consistent with their past practices. If you have given 20% of your income to your church every year for the past five years, for instance, the church would be able to keep the entire 20%.

Do note, however that bankruptcy courts can still consider these donations fraud if they look like a deliberate attempt to not pay your creditors. The courts will look at timing, the amount of the payments, and the circumstances surrounding your gifts. So if you’re an avowed atheist who hasn’t been to church in ten years, and you suddenly decide to donate 15% of your income to the Church of the Fallen Brethren the day before you declare bankruptcy – watch out. The court will most likely consider that fraud.

However, if you’ve been consistently donating to your church over the years, declaring bankruptcy shouldn’t hinder your ability to give them your financial support. In fact, bankruptcy could protect this support, and make it easier for you to give to an organization that really matters to you.

Think you may need to consider filing bankruptcy…or know someone who may need to. Keep the Law Offices of John T. Orcutt in mind, a North Carolina bankruptcy law firm offering a totally FREE and confidential initial consultation, with offices in Raleigh, Durham, Fayetteville and Wilson. Just call toll free to 1-800-899-1414 or visit their website at www.billsbills.com for tons of information about every aspect of bankruptcy and bankruptcy law.

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Published Monday, January 4, 2010 @ 12:08 pm

In states like North Carolina—composed largely of rural areas dotted with farmland and abutting the ripe fishing grounds of the Atlantic—Chapter 12 bankruptcy can be exceptionally helpful to working farming and fishing families who might otherwise be bankruptcy bound.

In part one of the four-part series, entitled Chapter 12 Bankruptcy, we introduced the concept of Chapter 12, provided a brief overview of the special rights related to this protection, and shared who (or in some cases, “what”) qualifies as a family farm or family fisherman under the Bankruptcy Code. In this section, we’ll discuss how a Chapter 12 bankruptcy works, from initial petition filing to debt repayment planning.

If you qualify under the Bankruptcy Code’s broad definitions of a “family fisherman” or “family farmer,” a Chapter 12 case begins by filing a petition with the bankruptcy court where you live or the location of the “principal place of business” for your corporation or partnership. A qualifying husband and wife “family farmer” or “commercial family fisherman” may file. Unless the court orders otherwise, the petition includes a statement of your assets and liabilities; current income and expenditures; current business contracts and leases; and a general statement of your financial affairs.  In order to satisfy all of these petition requirements, you’ll need to gather a list of all creditors and the amounts and nature of their claims; the source, amount, and frequency of your income; a list of all of your property; and a detailed list of your monthly farming/fishing expenses, as well as living expenses, including food, shelter, utilities, transportation, feed, fertilizer, etc. In order to completely evaluate your household’s financial position, married individuals must gather this information for each spouse regardless of whether they are filing a joint petition, separate individual petitions, or even if only one spouse is filing.

Upon filing for Chapter 12, you must pay a filing fee and a miscellaneous administrative fee with the clerk of court. With the court’s permission, and with specific deadlines, these fees may be paid in installments. Failure to pay these fees may result in dismissal of your case.

Filing the petition under Chapter 12 provides an automatic stay that stops most collection actions against you or your property. Under the automatic stay protection (a protection that exists under all forms of bankruptcy), any creditors—public or private—are not allowed to call you or send you collection letters. During the proceeding, they cannot continue any legal action against you, foreclose on your home, or repossess your car and other assets. And–even if a garnishment order has been issued–the automatic stay stops garnishment of your wages. Additionally, a Chapter 12 filing has the added benefit of protecting co-debtors (those liable with the debtor) from eager creditors seeking collection of consumer debts incurred by a personal, family, or household purpose.

When you file for Chapter 12 bankruptcy, an impartial trustee is appointed to evaluate the case and serve as an agent, for collecting your payments and making distributions to your creditors. Following your filing, the Chapter 12 trustee will hold a “meeting of creditors” at which you will discuss your financial affairs and the proposed terms of your repayment plan. From this meeting, parties typically resolve problems and repayment schedules. Afterwards, you, your trustee, and interested creditors attend a hearing confirming your personal Chapter 12 repayment plan.

Whether your bankruptcy is simple or complex, you’ll need an expert attorney to navigate the waters. Contact the experienced attorneys at The Law Offices of John T. Orcutt. Please note that while the Law Offices of John T. Orcutt does not file under Chapter 12, our office can evaluate your personal financial situation and refer your case to an experienced Chapter 12 practitioner if needed. Call us today: 1-800-899-1414.

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Published Monday, January 4, 2010 @ 7:58 am

Did you find yourself standing around at the stroke of midnight on New Year’s night, hard pressed to think of something, anything, that, in the current economy, you could resolve to do when all you currently think about is money? Whether you were in Times Square or a tiny gathering, you probably weren’t alone. Millions of Americans facing foreclosure of their homes, looming unemployment, mounting consumer and health care debt, and other tenuous financial situations during this still unfolding financial downturn are also struggling to start anew despite facing insolvency. Well, in addition to shedding those pounds and quitting those unhealthy vices, get ready to start your latest (and greatest) resolution with four steps to get yourself on the road to financial fitness in 2010.

Act Now and Assess Your Finances
Figuring out your financial future is sometimes as easy as understanding where you stand today in your day-to-day fiscal life. Are you currently unemployed or feel as though you could lose your job soon? As such, do you have enough money for you debts and everyday expenses?  Are you a homeowner facing foreclosure? Do you have substantial healthcare bills or an ongoing medical condition? Do you have multiple credit card balances or mounting business expenses? Have you recently filed for bankruptcy? What other financial circumstances are you facing? The answers to these questions and others can supply the necessary starting points for charting your next solvent steps.

Put Together a Financial Plan
Financial planning doesn’t necessarily mean hiring someone else to assess your portfolio. It can start by simply tracking your personal spending for a month, while keeping in mind your desire to pay down any debt (consumer, mortgage, or otherwise), reduce expenses, increase your income or discharge debt in bankruptcy.  Once you establish a system you’re comfortable with, you can more closely keep track of your current financial situation, including how much money you may be wasting on unnecessary items and interest and how much savings you can accumulate under a new, leaner budget.

Save Up for the Unexpected
If you’re facing unemployment, increased interest on credit cards or mortgages, or high medical costs, personal savings can provide a much-needed security blanket for tough economic times. To avoid hefty hardships from expected bills, start with a target savings of at least three months of income.  This necessary nest egg can be a lifesaver in these uncertain economic times and provide much-needed peace of mind.

Consider a Clean Slate Through Bankruptcy
Once your plan is in place, you may come to the conclusion that that you don’t have enough money to cover your many monthly expenses, pay mounting debts or save for your financial future. At that point, you may want to consider bankruptcy. A bankruptcy filing can discharge debt and allow you to save for your next steps, including a new home, your child’s college fund, and a pleasant retirement.  In fact, every year bankruptcy attorneys meet with hundreds of people in financial distress.  Each time those who have encountered misfortune, bad judgment, or business failure walk into law offices feeling hopeless and at the end of their rope, perceiving no alternatives to their continuing fiscal problems.  Almost every time, however, it seems more and more when these same clients leave these offices, they feel hope, relief and even, resolved, often for the first time in months or years—resolved that the bankruptcy laws and system offers them the possibility of a new start— at a tolerable cost—and with it a financially viable and secure future. In short, on a personal level, bankruptcy relief ends worry and stress of living on the financial brink…a resolution we can all appreciate.

If you’re bankruptcy bound, learn more by visiting The Law Offices of John T. Orcutt’s “Things to See and Hear” information.

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Published Friday, January 1, 2010 @ 5:20 pm

When many people think about bankruptcy, what normally comes to mind is what is represented in Chapters 7 and 13 of the Bankruptcy Code. In Chapter 7, you can discharge all of your debts and, in return, may lose non-exempt assets. Under Chapter 13, you may hold on to your assets, such as their home, but devote income in the near future to repaying your outstanding debts. Under both forms of bankruptcy, there are limitations to what you can do to modify your debts.

However, in states like North Carolina—composed largely of rural areas dotted with thousands of acres of farmland and abutting the ripe fishing grounds of the Atlantic—the lesser known Chapter 12 bankruptcy can be exceptionally helpful to working families who might otherwise be bankruptcy bound. Under the Bankruptcy Code, these protected groups have special rights, not found in the more common areas of Bankruptcy law.

In the special four-part series, entitled “Chapter 12 Bankruptcy,” we’ll introduce the concept of Chapter 12 along with the special rights related to this protection, as well as examine specifically how this process works for farming and fishing families, what you can expect at a Chapter 12 hearing, and the results of this type of bankruptcy discharge.

As mentioned, family farmers and family fishermen have special rights within the safe harbors of the Bankruptcy Code. For instance, a Chapter 12 bankruptcy can be attractive to qualifying parties, because, under this type of protection, creditors cannot file an involuntary bankruptcy petition against a family farmer or fisherman to recover even some of their money.  Additionally, under a Chapter 12 case the debtor is allowed to modify the mortgage lien on a farmer’s home or fisherman’s residence, important to not only stop foreclosure but also modify the terms of the loan.

But, first and foremost, it’s important to understand who (or what) constitutes a family farmer or fisherman.

According to the Bankruptcy Code, a family farmer is:

• a person or married couple (or, in some cases a corporation owned or controlled by a single family) engaged in a farming operation with debts not more than $3,237,000;
• no less than half of these debts (except for the residence) come from the farming operation for either the current year or each of the past two years; and
• the family farmer must be involved in “farm operations” which is a rather broad term. To be eligible for chapter 12, the family farmer must have a regular income, sufficiently stable to be able to make regular monthly payments during the term of the Chapter 12 plan.

Similarly, a family fisherman is:

• a person or married couple (or in some cases) a corporation owned or controlled by a single family) engaged in a commercial fishing operation with debts not more than $1,642,500;
• at least 8% of these debts (except for the residence) stem from the fishing operation for either the current year or each of the past two years; and
• the commercial fisherman must be involved in “commercial fishing operations,” also a broad term. To be eligible for chapter 12, the family fisherman must have a regular income sufficiently stable to be able to make regular monthly payments during the term of the bankruptcy plan.

While North Carolina has many urban areas, plenty of family farms and fisheries still exist throughout the state.  If you are struggling with mounting debts, and believe that bankruptcy may be your lifeline, visit the experienced attorneys of The Law Offices of John T. Orcutt online.

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Published Monday, December 28, 2009 @ 7:10 am

The New Year is a few days away. And without doubt, millions of Americans will welcome 2010 with grand hope, desperate to put 2009 far behind them, the year the Great Recession took hold of our collars and shook us into submission. Unfortunately, many Americans will greet the end of the 2000’s first decade still in debt and financially directionless.

But that doesn’t have to be the case.

Bankruptcy, despite all you may think you know about it, can make 2010 the year you really start over, the year things become as you make them, the year you regain control.

The federal government is reporting that with 2009’s end, so goes the worst national economic era to strike the 50 states in decades. Much of this optimism, unfortunately, has failed to provide security. The talus is simply too loose, the slope too steep and the edge too precipitous for Americans to feel confident in the footholds being provided. Unemployment continues to shroud our workforce in a cloak of despair and frustration. All the positives can be too easily brushed off as temporary, government-designed band-aids that do nothing for long-term care and instead will soon peel off, exposing our credit card cuts and sub-prime avulsions to additional economic bacteria.

However, treatments are plentiful. And bankruptcy is one of them.

The bankruptcy process, when handled by a competent, established attorney, is a very respectable way to handle the stress and prevent the longstanding financial damage that un-attended-to debt can do to a family.

Most people who give thought to bankruptcy quickly brush it off as an escapist’s tool; something the irresponsible do to cover their mistakes. Well, if you were to start asking around, it would take little time for you to uncover that most of those who have filed for protection are professional, educated and careful with their money. You will also find that things like sudden unemployment, medical bills and emergency life expenses do not discriminate. They affect everyone and if we were universally prepared for those types of setbacks, we wouldn’t need the bankruptcy code.

Back in 1934, the U.S. Supreme Court established the need for a federal measure that could assist the honest debtor in repairing their economic wherewithal. That same year, an opinion was written on the matter that said:”(Bankruptcy) gives the honest but unfortunate debtor … a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.”

A few years ago, the lending industry powered a major revision to the bankruptcy code called The Bankruptcy Abuse Prevention and Consumer Protection Act. Despite its title, it was designed to make filing bankruptcy more difficult. It was meant to perpetuate the stigmas and make people less tolerant of those who have to file.

The law changes included the “Means Test,” which was designed to qualify a person for Chapter 7. If you made too much money, suddenly you are not eligible to file under the same guidelines as others. The questionable constitutionality aside, the law served to make the bankruptcy code that much more tedious and frustrating for people. Without question, it prompted many people to avoid filing altogether and made the protection of our established laws that much more difficult to obtain. But don’t buy into the myths or the hype. For 99.9% of you, bankruptcy is still a valid option. And the Law Offices of John T. Orcutt know how to make the new bankruptcy laws work for you!

If you want 2010 to ring in on a positive note, don’t do what you did in 2009. Let facts drive your decisions, not misappropriated stigmas and half-truths. It’s your New Year, give yourself a reason to make it a happy one.

In North Carolina, contact the Law Offices of John T. Orcutt. 1-800-899-1414.

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Published Sunday, December 27, 2009 @ 5:31 pm

If the present economic environment wasn’t Scrooge enough, just in time for the holidays, it appears the Obama Administration’s Making Home Affordable foreclosure prevention plan has failed to meet its goal of helping millions of Americans avoid foreclosure.

In fact, according to a recent Treasury Department report, 27 percent of the 650,000 homeowners taking part in the mortgage modification program are now delinquent on their mortgage payments.  Reflecting the mortgage industry’s aversion to permanently modify mortgages, of that number, only 1,711 participating homeowners attempting to avoid foreclosure have been able to convert their modifications to permanent status. Homeowners facing foreclosure and needing help to secure a loan modification were encouraged to visit http://www.makinghomeaffordable.gov.

Crunching these paltry numbers translates into even more disturbing results for many seeking good news about federal mortgage relief and a way to save their homes.  According to Shahien Nasiripour’s recent report in The Huffington Post, results of the President’s $75 billion foreclosure program mean that, for example, out of every 100 homeowners who came to JPMorgan Chase for modification assistance under Making Home Affordable, just 15 have or will likely receive a permanent payment reduction. So, what happened to the other 85? Nasiripour says:

“for every 100 trial plans initiated from April through September 2009 under the Home Affordable Modification Program:

• 29 borrowers did not make all required payments under their trial plan;
• 20 borrowers did not submit all documents required for underwriting;
• 31 borrowers submitted all required documents but the documents did not meet HAMP underwriting standards, due to such things as missing signatures or nonstandard formats;
• 4 borrowers were or are likely to be rejected for undisclosed reasons;
• 1 borrower will not or is not likely to get their payment lowered.”

This Huff Post data comes from the prepared remarks bank officials planned to make before the House Financial Services Committee. The testimony was posted on the committee’s website.

To date, critics say the response of legislators and the Treasury Department to this dire news has been sorely inadequate. While several weeks ago mortgage lenders were threatened with losing access to precious incentives if they didn’t increase permanent mortgage modifications, with millions of homeowners facing foreclosure, failing banks still received billions in bailout money with no real implications for not helping the same struggling borrowers, and by extension communities, avoid the negative impact of foreclosure.  While the Treasury Department has recently extended the modification program, this system on its own appears to have provided few long-term solutions to this continuing housing crisis.

To help homeowners avoid foreclosure in the long-term, industry insiders and other commentators insist legislators will need to force banks to modify mortgages in ways that are affordable over the long-term. Since many the rising numbers of unemployed homeowners are unable to pay their mortgage even with unemployment insurance benefits, one suggested change would be to allow unemployed homeowners a mortgage deferment while they’re looking for work.

Homeowners who are having difficulty making their mortgages may be considering filing for Chapter 7 or 13 bankruptcy protection. Another option for legislators is giving the bankruptcy courts the power to modify these same underwater mortgages during Chapter 7 and Chapter 13 bankruptcy.

As American homeowners languish waiting for more immediate mortgage help, many are turning to bankruptcy to stop foreclosure and other creditor actions. For reliable bankruptcy advice that you can trust, contact The Law Firm of John T. Orcutt. And to find out more about your bankruptcy options, visit The Law Offices of John T. Orcutt’s “Things to See and Hear” information.

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Published Wednesday, December 23, 2009 @ 5:49 pm

Even in these tough economic times, everyone wants their family and friends to have a nice holiday—full of fun, frivolity and festive giving. And, even if you find yourself among the millions considering bankruptcy in the New Year, you may believe, now more than ever, that it’s open [holiday] season to shop for pricey presents using problem credit cards. In fact, many Americans do charge up expensive tabs in the months preceding the Christmas season when anticipating a bankruptcy—hoping to secure some great gifts prior to wiping away these same debts, along with many others, in January or February.

However, it’s never been more important to avoid a holiday spending binge when seeking this fresh financial start. While prudence alone should speak to some of the reasons to avoid abusing bankruptcy for seasonal gains, the Bankruptcy Code itself addresses the issue of this type of credit card debt as well. Section 523(a)(2) exempts from discharge, any debt that was obtained if an individual made material and false representations about his financial condition (i.e. lies on the credit application). Section 523(a)(2)(C) provides that:

1. consumer debts owed to a single creditor and aggregating more than $500 for luxury goods or services (luxury goods defined as goods or services reasonably not necessary for the support or maintenance of the debtor or a dependent of the debtor) incurred by an individual debtor on or within 90 days before the order for relief under this title are presumed to be nondischargeable; and

2. cash advances aggregating more than $750 that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 70 days before the order for relief under this title, are presumed to be nondischargeable;

Section 523(a)(2)(a) excepts from discharge money, property or services incurred by false pretenses, a false representation, or actual fraud (i.e. incurring debt that you knew or should have known that you would not be able to repay).

In layman’s terms, this translates into a stern warning against unnecessary, binge spending in the months leading up to your bankruptcy. As a result, if you do decide to charge up hundreds or thousands of dollars in charges in November or December and then try to discharge that debt in January or February, credit card lenders have three viable arguments they can use to object to discharging your debt in a bankruptcy case. This type of “discharge litigation” not only risks hefty exemptions from your debt relief, but it is also costly to defend, adding more expensive fuel to the insolvency fire.

What can be even more expensive is how these holiday spending sprees can create potential delays in your bankruptcy filing. Often, a bankruptcy attorney will advise clients in the New Year who reveal large Christmas credit card statements, to wait four to six months at a minimum before filing for bankruptcy—during which time you must continue to make regular payments on your new, larger holiday balances.

If you are already in debt, credit card or otherwise, or facing a loss of income, it’s essential to fight the urge to use plastic to purchase that big screen television, new game console, latest toy or anything else you can’t afford. And, if you’re bankruptcy bound, but must spend during this holiday season, as an alternative to credit, try carrying cash, checks or debit cards. As a result of using the money you actually have, you may make more thoughtful purchases and spend less this season, and, in the end, spend less time digging yourself out of post-holiday season debt and its inevitable barriers to bankruptcy.

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Published Sunday, December 20, 2009 @ 8:22 am

Creditors around the country probably still secretly wish that Debtor’s Prison still existed so that they could send all the people that do not pay their bills there. Thankfully, the founding fathers had the foresight to do away with such an antiquated notion back when the country was formed and even provide the foundation for the bankruptcy laws that we now have today.

Little do most people know but the founding fathers were not the best at managing their own finances as they were in managing a war for independence. After all, these people did dump thousands upon thousands of dollars in tea into Boston Harbor! Most people are not aware, but the third president of the United States, Thomas Jefferson, was on the verge of bankruptcy for many years.

Luckily our founding fathers had the understanding that financial turmoil could strike any American, usually honest people that made a few too many mistakes or fell on hard times that would have trouble making ends meet and fulfilling their financial obligations. The first law allowing for people to wipe their debts clean was passed in 1800, but the power of business was evident even then and the law was repealed three short years after it was enacted. States tried to follow suit by enacting their own bankruptcy laws, but the Supreme Court quickly put a stop to this exercise.

The first federal law to pass that helped debtors came about in 1833. However, it was not until 1841 that bankruptcy laws became more of a remedy for debtors than creditors. Much like the law in 1800 though, this one was abolished three short years later as well. Another effort lasted a few years longer following the end of the Civil War with the passage of the Bankruptcy Act of 1867; eleven years later business interests once again prevailed as the law was done away with.

The underlying rationale for the repeal of each bankruptcy law was that it should be up to the creditor and/or the court if someone should be able to declare bankruptcy and wipe out their financial obligations. It was not until the late 1890s that the idea that honest people should be allowed a way out from the financial hole of too much debt without the creditors/ courts giving the okay. This unconditional discharge finally became law with the passage of the Bankruptcy Act of 1898.

Creditors undoubtedly still try to get this law overturned. It worked at other times in history so why not? However, in a country founded on the concept of new beginnings the concept of being allowed to escape persecution of a financial nature appears to have become an inherent right.

So when you are pondering the decision to file for bankruptcy keep this in mind: it took nearly a hundred years for that right to be secured; it is yours- use it. Also, if it was good enough for Thomas Jefferson than it is good enough for you too!

If you are in North Carolina, talk to the experienced bankruptcy attorneys at the Law Offices of John T. Orcutt today to discuss how bankruptcy can help you save your family home from foreclosure, decrease your auto payments, and get rid of your burdensome credit card debt once and for all. Call 1-800-899-1414 today to set up your free initial consultation. Convenient offices in Raleigh, Durham, Fayetteville and Wilson.

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Published Sunday, December 20, 2009 @ 6:52 am

Thus far in the Preventing Foreclosure series, you’ve received an introductory look at how to hold on to your home; learned the best ways to work with your mortgage lender; and were provided with a more permanent plan to keep your house through Chapter 13 bankruptcy.

But Chapter 13 isn’t the only option for average Americans struggling with mortgage debt and facing foreclosure. With Part IV of this six-part series, it’s time to get a better understanding of how filing for Chapter 7 bankruptcy can also help protect yourself and prepare you for a stronger financial future.

Part IV – Chapter 7 Bankruptcy

Stop Foreclosure
As is the case with Chapter 13 bankruptcy, the Bankruptcy Code’s automatic stay is a powerful court order that kicks in as soon as you file your bankruptcy papers. In addition to pausing any foreclosure proceedings, the automatic stay will put a stop to all forms of collection by creditors, including, repossessions, garnishment, lawsuits, and harassing phone calls. If you’ve made the decision that you simply can’t afford your mortgage payment, consider a pre-foreclosure Chapter 7. Your unsecured debt will get wiped out, and the bankruptcy will stall the foreclosure, giving you some time to save up some money for your next step.

Protect All of Your Property
Chapter 7 bankruptcy is, in some ways, win-win situation for homeowners facing foreclosure. Chapter 7 dispenses all of your unsecured debts, including credit cards and health care bills. While creditors, in turn, are entitled to proceeds from a sale of some of your valuable assets, in almost every personal Chapter 7 bankruptcy case there is no property sales of any kind. Thanks to Chapter 7 bankruptcy exemptions, most or all of your property is probably fully protected from sale or repossession, including your home and possibly your cars. With the recent passage of new homestead exemption legislation in North Carolina, chances are, all of your property is protected.
Keep in mind, if you own more than one home, vacation properties or a more expensive home (with a value above your state’s maximum amount) you may want to protect these properties by filing Chapter 13 bankruptcy instead—a better option to protect a home for families with more regular or disposable income.

Dispense With Other Homeowner Debts
Chapter 7 bankruptcy may not only cancel all mortgage debt, but also dispenses with additional mortgages and home equity loans. In addition to removing mortgage debt, new tax laws mean you may no longer face tax liability for defaulting on a mortgage or home-improvement loan.

Avoid Dead-End Solutions and Foreclosure Scams
Amid an uncertain economic period full of rising unemployment, high debt loads, plunging housing values and wobbly stock prices, Chapter 7 bankruptcy provides safe and legal solutions to your foreclosure fears and avoids today’s endless array of rescue scams preying on the vulnerability of desperate homeowners.

Sometimes its Better to Just Walk Away
As 2009 comes to an end, more than 3 million foreclosures are predicted, as homeowners are increasingly incapable of paying the mortgage during this brutal recession. Filing for Chapter 7 bankruptcy pending foreclosure can provide a much-needed stopping point for those drowning in homeowner debt—as well as debts related to credit cards, medical bills, and more—and a comparable starting point for a family’s more viable financial future. The lending industry has taken advantage of consumers, driving home prices to unrealistic heights. With home prices collapsing, and many homeowners owing more than their home is worth, it makes better financial sense to walk away. Chapter 7 allows you to do so with a clean slate.

To get the big picture on how Chapter 7 works and how the laws in North Carolina can help you, speak with a professional bankruptcy lawyer at the The Law Offices of John T. Orcutt.

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Published Saturday, December 19, 2009 @ 10:10 am

Back in 2005, credit card companies were convinced – or at least tried hard to convince everyone else – that there was a bankruptcy crisis in the United States. Bankruptcy rates had doubled since 1980, they pointed out. ‘Shopaholics’ were charging everything under the sun and then declaring bankruptcy, forcing the credit card companies to eat their debt. They then had no choice but to pass these expenses on to consumers in the form of higher fees and interest rates.

In 2005, the major banks spent tens of millions of dollars lobbying Congress to make it harder for consumers to declare bankruptcy. Despite protests from lawyers, judges and law professors working in the system, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act. Insiders pointed out that the law was essentially written by the credit card companies; a single law professor and four credit industry lobbyists actually wrote the legislation.

Nearly everyone agrees that the laws made filing for bankruptcy more burdensome for debtors. Perhaps the most pernicious element, and the one the credit card companies fought hardest for, is the means test. The means test looks at your prior six months of income to determine whether you qualify for Chapter 7 bankruptcy. If your income is too high, you may need to increase certain expenses which qualify as deductions (much like tax deductions). If your income is still too high, you may need to file for Chapter 13 bankruptcy, which offers the same relief as a Chapter 7, but requires a payment plan. The Chapter 13 payment plan can last anywhere from 15 months to 5 years, depending on your particular jurisdiction.

A boon for the credit card companies and consumers who pay their debts, right? Well, certainly the credit card companies did well for a while– their profits rose thirty percent between 2005 and 2007. However, the decline in interest rates and fees they promised would accompany this never happened – in fact, interest rates and fees increased over this period. Things got so bad that Congress finally passed another bill last May, this one regulating industry practices: they set limits on credit card fees and interest rates and will require lenders to be transparent in their communications, starting in July of 2010.

More importantly, recent studies suggest that the new bankruptcy law may have contributed to the rise in foreclosures – costing the banks billions of dollars – and to the housing crisis in general. Now that many consumers mistakenly believed that bankruptcy was not an option, in many cases they simply walked away from their homes instead of declaring bankruptcy and continuing to make their mortgage payments. Feeling that they couldn’t make both their mortgage and credit card payments, they may have opted to make neither. As foreclosure rates rose, slumping housing prices feel even further. Neighborhoods with a number of foreclosures went into deep decline. Banks lost money, the country slid into recession.

Does this mean that the bankruptcy law caused all of this? No, of course not. Many factors contributed to the recession, included the derivatives trading on Wall Street, the government trying to finance two wars without raising taxes, etc. However, it is clear that the idea that banks would pass on savings to consumers was unrealistic. It’s also clear that removing consumer options resulted in financial decisions that ultimately hurt the banks as well as consumers. (Other studies argue that stringent bankruptcy laws discourage risk and entrepreneurship; it’s no accident that many countries in the EU are loosening their bankruptcy laws during this recession.) The obvious conclusion is that Congress, and not the banks, should write laws. And that they should listen to the experts – in this case, the lawyers and judges involved in bankruptcy proceedings – instead of lobbyists with an agenda.

The good thing is that, in many jurisdictions, judges have construed the new law in favor of debtors. The means test is not bullet proof, and Chapter 7 is still a viable option for most consumers. And with the rising tide of delinquent mortgages, Chapter 13 bankruptcy remains the best way to save your family’s home. Contact a bankruptcy attorney today and get the truth about bankruptcy. And visit http://www.billsbills.com/truth_bankruptcy_book.php for more of the truth.

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Published Tuesday, December 15, 2009 @ 1:48 pm

In these painful financial times, the toughest bind facing many Americans is financing their well- being. While it’s vital to stay healthy and seek medical help when necessary, with health care costs on the rise and health care reform largely in limbo, the results of putting wellness over wealth can be financially devastating.

As the New York Times reported, (from the November 25, 2009, article “From the Hospital Room to the Bankruptcy Court” by Kevin Sack), many Americans are merely “one accident or illness away” from a “medical bankruptcy.” And while there is no medical bankruptcy per se—rather merely a standard filing that includes the wiping away of medical bills—more and more people are filing for bankruptcy because of these bills with the ubiquitous term “medically bankrupt” having become largely a sign of the economic times. “This has really become the insurance system for the country,” said Susan R. Limor to the New York Times in the same article. Limor is a bankruptcy trustee who calculated that 13 of the 48 Chapter 7 liquidation cases on her docket included medical debts of more than $1,000. Under Chapter 7, a debtor’s assets are liquidated and the proceeds are used to pay creditors; any remaining debts are discharged, and filers are left with a 10-year mark on their credit ratings.  “You can’t believe how many people discharge medical debts,” Limor said. “It’s a kind of trailing indicator of who’s suffering in this economy.”

And those suffering are not alone. According to a recent study from Harvard University, today medical bills make up well over half of all bankruptcy filings (62% in 2007), accounting for the bankruptcies of between 1.5 to 2 million Americans each year. Moreover, of those filing for bankruptcy, three-quarters have medical insurance.  In many cases, this crippling debt is the result of insurance co-pays and deductibles, which can run into the tens of thousands of dollars. Yet, some who file for “medical bankruptcy” do so even with relatively small medical bills because, left to their own devices, many hospitals and medical practices refuse to make arrangements for debt relief or installment plans.

As such, the alternatives to a medical bills-inspired bankruptcy can be worse. Medical debt—from hospitalization to medication—is unsecured with no guarantee available for creditors, like insurance companies, hospitals and doctors, to take back. As a result, without filing medical bankruptcy, health care debts can be tied to the collateral you do own. A hospital or insurance company can also garnish your wages, and even claim a portion of the equity in your home, business or other large assets.

As the New York Times article illustrated, if you’re plagued by medical debts and other related health care costs, Chapter 7 bankruptcy may be the only viable solution for you. Filing for Chapter 7 can eliminate most of your debts, including those arising out of medical expenses—whether they’re billed from your hospital or charged on your credit card.  An experienced attorney can evaluate your precise financial problems—medical or otherwise—and work out how the implications are likely to affect you. You’ll also learn the best ways to most effectively deal with creditors, along with possible solutions to improve your credit scores and credit ratings so that any effects of the bankruptcy might be minimized. The same lawyer can help you file for bankruptcy, as well as represent you in the bankruptcy court. For more information about the benefits of filing for bankruptcy, including alleviating medical debts, visit the experienced attorneys of The Law Offices of John T. Orcutt online.

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Published Friday, December 11, 2009 @ 9:15 am

‘Tis the season for holiday shopping, seasonal spending, and, for some, a reliance on payday lenders to take care of both. In fact, with more Americans stuck at the lower end of the income spectrum due to the economic recession’s trademark job losses, lingering unemployment or other reductions in salary, many are forced to rely regularly on consumer credit to pay for their everyday bills, goods and services.  As a result, payday lending has become a fast-growing financial industry throughout the recession, providing these types of lenders with new, low risk opportunities at the [literal] expense of unwary borrowers who will avoid defaulting on this type debt at all costs—just so they can keep this credit in the an uncertain economic environment. But, borrowers beware. As payday lenders thrive, people falling prey to the endless payday lending cycle are struggling to simply keep up…and for a variety of simple reasons.

Going for Payday Loans Means Going for Broke
Most experts agree, even in a financial meltdown, the fastest way to go broke is through payday loans. Now, if you’re like many Americans, you may be facing the economic crisis head-on, and whether that looks like a missed mortgage payment or hovering health care costs, a payday loan might seem like an easy way to weather the storm. But the opposite is true and the reason is simple: exorbitant interest. With interest rates equaling as much as 400%, payday loans are a recipe for disaster, leaving desperate borrowers unable to repay.

To illustrate, let’s imagine you’ve borrowed $800 from a payday lender in order to pay this month’s mortgage payment as scheduled. A payday lender might then charge you $140 for this $800 loan, due on your subsequent payday. As a result, you now owe $940 (the interest plus the principal) to be paid back in a matter of weeks. If you only pay the interest on this initial loan, as most low income people just trying to keep their heads above the financial tide normally do, over the course of three months, you then owe your payday lender $420—in interest alone.

Pay Day Loans Make You a Slave to the Payday System
Payday lenders are smart. They want you coming back each and every month and therefore prey particularly on less affluent borrowers who can’t or won’t pay off their debts over the short term.  As mentioned, not paying off your loans in full means paying excessive interest for a longer period; and shelling out hundreds in interest over a short period doesn’t leave much room for savings to pay your principal (plus whatever interest has accrued) and break from the payday cycle. No savings, living paycheck to paycheck, with massive interest payments to boot, leads many borrowers down a road to financial ruin.

Payday Loans Can Pave the Way to Bankruptcy
In fact, payday loans can lead directly to bankruptcy. Like any creditors swarming their unpaid debt, delinquent payday loans lead to harassment from payday lenders. Borrowers who use payday loans are particularly susceptible to these types of actions when they find themselves unable to repay. Luckily, North Carolina has outlawed storefront payday lenders. However, internet payday lending continues to be a persistent problem, with some North Carolinians having multiple internet accounts, each directly drafting from the consumer’s checking account.

If you’ve already fallen victim to a payday lending scheme, an experienced bankruptcy attorney can end your cycle of endless spending. To get the big picture on how bankruptcy works and how the laws in North Carolina can help you, speak with an attorney at the The Law Offices of John T. Orcutt.

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Published Wednesday, December 9, 2009 @ 12:28 pm

Filing bankruptcy, among other things, is about getting a new start. Few things can match the sense of relief that follows even the first phone call to our office, let alone the day you know for sure that your bills are gone forever.

For some, starting over may mean leaving behind everything that contributed to your old spending habits, the material goods, the car, even the house, that led you deep into the financial abyss. If that sounds like you, maybe it’s worthwhile to consider a relocation, not just a downsize.

Know that moving is expensive. So yes, you’ll have to save money. That takes time, and yes, more money. But the most important question is, of course, where to move? Thankfully, the folks at Forbes.com have assembled us a list of places that get the Best Bang-For-The-Buck when relocating. Here is how they broke it down:

Forbes examined markets that at one time were considered second to the most popular regions during the boom times. For example, at one time, homes in Orlando and Las Vegas were flying off the lots. Developers went nuts and inventory was quite high. Now? Well, not so much. Home values are depressed and the foreclosure rates are at the top of the list.

Home prices are down 29 percent from 2006, making areas that never really experienced the boom that much more affordable. And, with a solid employment base, consisting of families who have roots in the area, as opposed to transient corporate workers who ship out every couple of years, places like Des Moines, IA and McAllen, TX are nice places for those looking to get a solid re-start.

Don’t want to move that far? Try Greenville, SC or Chattanooga, TN, which made the list at numbers 20 and 8, respectively. Because the boom avoided these areas for the most part, home values stayed relatively even, as did jobs.

If you must know (why else are you reading this post), Omaha, NE was at the top of the list. Forbes researched the 100 largest MSAs (Metropolitan Statistical Area), examining foreclosures as a percentages of home prices; apartment vacancy rates; unemployment figures; three-year job forecast; three-year home price forecast; housing affordability; median real estate taxes and commuting time.

Here is the Top 25 cities that offer you the Most Bang-For-The-Buck:

1. Omaha-Council Bluffs, NE
2. Little Rock-North Little Rock-Conway, AR
3. Jackson, MS
4. Des Moines-West Des Moines, IA
5. Augusta-Richmond County, GA-SC
6. Wichita, KS
7. McAllen-Edinburg-Mission, TX
8. Chattanooga, TN-GA
9. Colorado Springs, CO
10. Ogden-Clearfield, UT
11. Scranton–Wilkes-Barre, PA
12. Columbia, SC
13. Harrisburg-Carlisle, PA
14. Provo-Orem, UT
15. Syracuse, NY
16. Baton Rouge, LA
17. Buffalo-Niagara Falls, NY
18. Palm Bay-Melbourne-Titusville, FL
19. Tulsa, OK
20. Greenville-Mauldin-Easley, SC
21. Raleigh-Cary, NC
22. Pittsburgh, PA
23. Knoxville, TN
24. Louisville-Jefferson County, KY-IN
25. Youngstown-Warren-Boardman, OH-PA

You may note that a number of the cities are from regions away from the coast, as those regions tend to experience serious market growth in a fast-moving economy. You may notice too that there is not one California city in the Top 25. In fact, there is only one in the Top 50.

Cities in the mid-west, west and industrial regions of the east tend to hold a particular attraction to folks looking to find affordable homes and jobs. Many places in the west offer outstanding recreation and service industry jobs as well cities that cater to the younger, live-life-with-less crowd that is continuing to grow in the midst of a Wall Street-driven recession.

Whereever your final destination, remember that http://www.billsbills.com/bankruptcy-blog/ is always as close as your Web browser.

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Published Wednesday, December 9, 2009 @ 11:28 am

Of all the special programs and incentives in place to help struggling Americans during what many have now deemed “The Great Recession,” perhaps the most critical is the often debated but not often publicly discussed “mortgage cram-down” bill.

First introduced last year but shot down in the Senate in favor of the President’s “Making Home Affordable” loan modificationprogram, the cram-down provision would grant bankruptcy judges special authority over the terms of a mortgage during the bankruptcy process. Based on a filer’s situation, the judge could lengthen the payment term, reduce the interest rate or decrease the balance. The judge will have the right to alter the mortgage even in the face of lender rejection.

Given the number of bankruptcies happening today, it is easy to understand why the lending industry lobby has become increasingly active this week, as the legislation will be inserted into a larger, more sweeping economic regulatory plan being put to the House this week.

The cram-down bill has been championed by many Democratic party leaders, namely House Financial Services Committee Chairman Barney Frank. This version of the cram-down bill, which is identical to the previous bill offered in March of this year, is being presented as an amendment by House Judiciary Committee Chairman John Conyers.

Currently, federal judges have some say over mortgages that become part of the bankruptcy picture. Investment properties and vacation homes can have their mortgages altered by a judge.

What makes the cram-down legislation additionally interesting is that at one time judges were able to alter mortgage terms. Guess what changed that measure? You guessed it. The 2005 Bankruptcy Abuse Prevention and Consumer Protection Act.

Defeating the re-institution of this court power will be a major win for the lending industry. They presented a letter to House leaders stating that the cram-down bill would increase foreclosures and bankruptcies because homeowners would envision an easier path to escaping a burdensome mortgage and further destabilize the house market.

In essence, mortgage lenders are offering no stronger an argument than credit card companies do when trying to fight any sort of rule that may allow a consumer some sort of leeway in repaying overdue balances. In this economy, it comes across as quite brash for lenders to accuse consumers of trying to avoid responsibility. Truthfully, homeowners are the ones shouldering the load for the lending industry’s egregious mis-steps.

In its current state, the cram-down proposal would first require borrowers to attempt a loan modification plan, either through their lender or with the help of a third party. This would enable the judge to make a more qualified decision about the sincerity of the homeowner’s efforts and to determine if the plan they sought was qualified under the Making Home Affordable program.

Lenders would be encouraged to voluntarily decrease a borrower’s monthly payment to 31 percent of a borrower’s paycheck, a standard that before the “boom times” was considered the benchmark for approval. Another component includes the provision that a borrower who is able to have a mortgage “crammed down” would have to reimburse the lender in question for a portion of the expenses incurred from the process if the house is sold before the five-year bankruptcy repayment plan is competed.

Things are different now than they were in March. This time, the cram down bill might fit.

If your lender simply won’t work with you, or you’re stuck in an indefinite “trial mod”, call your Congressman today and insist on judicial modification of mortgages. Go to https://writerep.house.gov/writerep/welcome.shtml for your Congressman’s contact information. The mortgage banking industry has been pulling the strings for far too long. It’s time to take the power back.

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Published Monday, December 7, 2009 @ 7:41 pm

While mortgage companies continue to refuse lower payments to borrowers who can no longer afford their loans, millions are facing delinquency, foreclosure and the loss of their homes. But just because you’re facing tough odds doesn’t mean that you can’t plan ahead to minimize the possibility of foreclosure or mitigate the damage if you find yourself moving toward it. Homeowners just like you can take immediate action, armed with the tools necessary to make the best financial decisions for your future.

In this six-part series we’ll explore how you might stay in your home, the ins and outs of working with your mortgage lender, the pros and cons of a short sale, and various bankruptcy options and alternatives pending foreclosure.

Part I – How to Stay In Your Home

Don’t give up on your home without considering your options. Foreclosure can leave you homeless, hurt your credit rating and make it difficult, if not impossible, to buy another house anytime soon. Your best options if you’re having trouble making mortgage payments include:

Negotiating with your lender
When attempting to stay in your home by working with your lender, it’s important to act quickly. As soon as you realize you’re having trouble paying your home loan, and before you’ve missed any payments, contact your mortgage lender. Now, more than ever, lenders are willing to negotiate with their clients, if only to reduce the record numbers of foreclosures they’re dealing with during this lingering recession.

Filing for bankruptcy
What about if you’re already behind on your mortgage payments? Filing for bankruptcy may help you keep your home, or at least get you out from under looming mortgage debt. With a few exceptions, Chapter 13 or Chapter 7 bankruptcy proceedings force creditors to end their collection activities and delay impending foreclosure sales. Each of these bankruptcy options will be explored in part three and four of this series.

When you file for bankruptcy, the foreclosure process is legally stopped (called an “automatic stay”). Foreclosure proceedings cannot be reinstated until your bankruptcy case closes or the lender gets permission by the court to proceed, thereby “lifting the stay” on the foreclosure process. So, if your plan is to stay in your home payment-free, for as long as possible, bankruptcy can delay the foreclosure auction, and your ultimate move-out date, saving you time (and money) to figure out your next move.

Other options include:

Selling your home yourself
If you simply can’t afford the home you own, you still have power to take control of your financial destiny. If your home has appreciated in value since you bought it, you may be able to sell it yourself. Again, contact your lender, who may let you stop making payments, and stay in your home, until the house is sold. If the proceeds from the sale don’t cover your mortgage and related costs, you might be in a short sale situation. A short sale can be a good option in certain circumstances, but in most cases, it’s best to simply surrender your home in a bankruptcy. The short sale option will be discussed a length later in the series.

Giving your deed to the lender
What happens if no one buys your house? Don’t lose hope. Your lender may agree to a “deed in lieu of foreclosure,” taking on the deed and canceling your debt. Like a foreclosure, the bank can then sell your home. A deed in lieu, like a short sale, is unlikely to erase your personal liability. In this regard, bankruptcy is usually a better option.

For more detailed information on how to stay put in your home pending foreclosure or bankruptcy contact The Law Offices of John T. Orcutt.

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Published Saturday, December 5, 2009 @ 3:10 pm

For far too many people in North Carolina, and the country, job loss has been the primary driver of excessive debt. Even those who spend wisely and are conservative with credit can quickly feel the impact of being laid off. Three months of savings may help. But only for three months.

If you are one of the millions of Americans reluctantly contributing to the unemployment rate, it may seem like things are never going to get better. Looking for a job can be a mentally tiring and frustrating endeavor. And if you are facing the additional pressure of mounting debt from credit cards, a mortgage and maybe a couple of car payments, it can be hard to sleep at night. Well hopefully, recent news about positive job growth will help you get some rest. Or not.

According to reports, the number of jobs lost in the month of November has decreased. Payroll processing company ADP stated that companies only cut 169,000 jobs, which signifies the eight consecutive month in which cuts have been less than the previous 30 days.

Employment experts are hopeful that the coming months will continue the trend, but the overall drag on the economy caused by cumulative job losses will continue until 2014. The benchmark for “full employment” is an unemployment rate of 5 percent or less. Given our current conditions, achieving that number looks like a tall order.

We at “Bankruptcy & Your Passage into and out of Debt” do not pretend to be experts on the macro-economic conditions that impact employment, gross domestic product or the price of barley in Argentina. What we are experts on is how bankruptcy can help you. And, for a lot of readers who are out of work, in debt and frozen in financial stress, we understand how reports like this can be frustrating. Minimal positive blips on the job growth radar screen don’t help you navigate a way out of the financial abyss. Without sugar-coating it, we believe this remains a difficult economy in which to make a living.

Compounding the loss of a paycheck for someone out of work is the loss of medical insurance, or at least your ability to afford it. Medical debt is a very large cause of bankruptcy in our country and today’s work conditions are only making it ever more prominent.

In total, companies let go of 1.24 million jobs in 2009, which is almost 18 percent more than in 2008. So what kind of positive should you take from that? We’re not sure, to be honest. That’s what makes employment figures so darn frustrating. While the rate at which jobs are being cut has diminished, the rate of hiring has not increased, suggesting that many jobs simply will not be replaced. This should not be a surprise to anyone, really, given the beyond reasonable rate at which many companies expanded in the last five years.

Truthfully, job reports are becoming ineffective in their ability to communicate any real data to the economic growth equation. In the end, the preservation of one’s economic well-being needs to become insular, self-focused. If bankruptcy is your best option, then ignore the stats and stigmas and screwy metrics. Do what is right for yourself and your family. There is no better barometer for health of the job market than your own situation. You need to act when the time is right for you.

If you’re struggling to keep your head above water, bankruptcy can be just the lifeline you need. Contact the Law Offices of John T. Orcutt today to discuss your options. Call 1-800-899-1414 to discuss your options.

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Published Wednesday, December 2, 2009 @ 4:07 pm

Are medical bills and health care costs making you sick? Join the crowd.

A recent study from the Commonwealth Fund found nearly two-thirds of American adults—an estimated 116 million people—are buckling under the weight of medical bills, going without much-needed care because of cost, are uninsured for a time, or remain underinsured.

As a result, more adults are not only experiencing cost-related delays in getting needed care, but are also struggling to pay unexpected or accumulating medical bills. Currently, forty-one percent of working-age adults, or 72 million people, reported a problem paying their medical bills or had accrued medical debt, up from 34 percent (58 million) in 2005.

Medical debt can take the wind out of anyone’s financial sails. And unfortunately, horror stories are common. Take for example a recent story regaled from the Austin-American Statesman of woman who reconnected with an old high school flame in middle age only to lose him to liver disease a short time later. Struggling to pay his medical bills, she eventually filed for bankruptcy, but not before she lost her home.

Medical bills are a leading cause of financial stress in this country; exacerbated by the fact that most people wait too long before they get help taking a serious inventory of their financial picture. In some cases you can restructure or even settle medical debt before it means losing your savings, your home and a hefty chunk of your financial viability; but you should move fast.

Once your medical bills go to a debt collection agency its much more difficult to negotiate a settlement. If you see that your medical bills are causing you to fall behind on payments for essentials like housing, food and emergency savings, it’s time to seek help from a professional debt counselor.

However, sometimes restructuring or settling medical debt can have a deleterious effect on debtor credit scores, also affecting your ability to obtain home loans or credit cards. An article in the Dallas Morning News shared the story of a man who suffered a heart attack during a lapse in his health insurance. Because of a gap in his insurance, the 59-year-old was hit with medical bills totaling more than $140,000—all of which went to collections when the man could not afford to pay. Eventually, the man was able to pay off his medical debt when the hospital reduced the bill; however, the medical debt’s impact on his credit remained. He paid his debt and his credit score still dropped significantly. Today, he’s having difficulty refinancing his home and is still on the hook for his surgery.

Might bankruptcy have been the better option? Possibly. With millions of Americans suffering from medical debt, much of that debt has gone to collections. Collections action on medical debt remains on a consumer’s credit report for 7 years and many lenders consider the medical debt when determining the consumer’s creditworthiness. And unlike the man from the previous story, most consumers are simply unable to repay medical debt as well as their other mounting financial obligations.

Bankruptcy has the effect of wiping out the obligations to repay unsecured debt, including medical debt, giving the debtor an opportunity for a stress-free financial fresh start. As an added bonus, a creditor might be more willing to lend to a debtor who have discharged his debt obligations in bankruptcy than to a debtor who is still obligated to pay thousands towards medical debt obligations.

For more information regarding the benefits of bankruptcy, visit The Law Offices of John T. Orcutt online.

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Published Wednesday, December 2, 2009 @ 2:52 pm

Have you avoided filing bankruptcy because you’re afraid you’ll lose your home, your automobile, your personal property? You don’t have to be afraid! Bankruptcy laws protect you from becoming homeless, without a car, household goods, your jewelry, or the tools you need to do your job.

When you file a Chapter 7 bankruptcy you are allowed to protect—or, exempt—some or all of your property from being taken away from you. In fact, in lots of cases, bankruptcy exemptions allow you to keep everything you own!

If you’ve lived in North Carolina for at least two years, you can exempt up to $35,000 of the value of your home. What this means is that if you have a home worth $200,000 with a mortgage balance of $165,000, the $18,500 of equity you have in your home is protected! As long as you can keep up with your mortgage payments you can keep your home. Even if you have more than $35,000.00 in equity, you can still protect your property by paying out the value of the non-exempt equity over the course of a Chapter 13 plan. This allows you to discharge your debts AND keep your home.

Similarly, if there is no equity in your car, you will not lose your car! Are you “upside down” on your car loan? Well, as long as you keep making your car payments, you will not lose your car!

But what if you have more than $3,500 equity in your car? What if you have a car worth $4000 that you own outright? Again, in a Chapter 13, you can pay out the difference–$500 in this case—and keep your car!

What else is exempt? Your bankruptcy attorney will help you find all the exemptions you’re entitled to, but here are some of the things you get to keep in a bankruptcy:

• Your furniture, clothes, appliances, books, and other household goods up to a total value of $5,000 for you and an additional $1,000 for each of your dependents. (Up to $4000 total for your dependents.)
• Your other property, up to a total value of $3,500.
• Your professional books and the tools you use for your work or trade, up to $2,000 in total value.
• Your life insurance plan
• Your wheelchair, other mobility aids, your hearing aid, and any other medical equipment prescribed by your doctor
• Your IRA or Roth account
• Your burial plots

What’s not exempt? Anything you’ve purchased in the 90 days before filing bankruptcy. Keep this in mind as you prepare for your bankruptcy filing. We want you keep what you own! Call the Law Offices of John T. Orcutt at 1-800-899-1414 or visit www.billsbills.com.

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Published Tuesday, December 1, 2009 @ 7:35 am

Exacerbated by the recent recession, self-employed or small business owners everywhere are facing fewer credit options, high health care costs, and lagging consumer spending. Those struggling to stay afloat in these tough financial times must ask themselves even tougher questions. Do I have the motivation to continue my business? Could the business prosper if it wasn’t keeping up with old debts? Could my business persevere if it shed equipment, employees or space? Could I sell my business? Could I start another business if I did sell?

If after answering these questions you find you are no longer able to sustain or expand your business in your current financial situation, filing for bankruptcy may be your best bet.

For those business people who no longer have the time, energy or drive to continue their business interests in their current capacity, Chapter 7 bankruptcy liquidates business assets to repay looming debts. A court-appointed agent will sell these assets and pay the proceeds to creditors; beginning with secured creditors first, followed by any unsecured creditors. While this type of bankruptcy normally leads to the demise of the business, it, in turn, provides a quick resolution for individuals and a dependable dissolution for partnerships and corporations.

In the alternative, for business owners seeking solutions to the very problems that led to bankruptcy, Chapter 11 allows for a much-needed financial reorganization. Following a Chapter 11 filing, the court appoints a conservator who, like the agent in the previous example, oversees the business assets to best pay off creditors, while still keeping the business afloat. In short, Chapter 11 stops creditors, allowing the court-appointed conservator to reorganize and optimize business finances for a better future.

The best part for self-employed and small business owners filing Chapter 11 is that they can legally continue operating their business and earning an income as a “debtor in possession,” receiving the benefits of “automatic stay” protection. Debtors in possession are protected from creditor actions such as lawsuits and asset seizures, even if a creditor obtained a judgment before the bankruptcy filing. An added benefit of filing bankruptcy as a debtor in possession is that bankruptcy law allows you to take out more loans that take precedence over all other creditors.

Conversely, like businesspeople filing for Chapter 7, Chapter 11 debtors in possession are bound by specific bankruptcy rules and restrictions, including prohibitions on using encumbered assets as collateral and selling assets without the approval of interested creditors. As a result, the best move a bankruptcy bound small business owner can make is to consult an experienced bankruptcy attorney who specializes in representing small business owners.

While a bankruptcy for your business is sometimes advisable, many small business owners don’t have any assets left and don’t intend to continue the business, or intend to continue under a different name. If so, it may make more sense to simply let the corporation die on its own without a bankruptcy. However, if you’re like most small business owners, you have probably personally guaranteed most, if not all, of your business debt. While a business bankruptcy will effectively hold off creditors from getting to your business, those same creditors can choose to pursue you personally. Whether you are dissolving the business or continuing on, its important to pull your credit report to determine how much of your debt has been personally guaranteed. Your attorney can then advise you how a personal bankruptcy can save you and your family from your business creditors.

Skilled bankruptcy attorneys like those at The Law Offices of John T. Orcutt can get to work early, navigate any uncertain waters of bankruptcy court and work in your best interests during the duration of your business and/or personal bankruptcy. In North Carolina, call 1-800-899-1414 to discuss your situation today. Always a free initial consultation.

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Published Sunday, November 29, 2009 @ 2:48 pm

Americans young and old, hit hard by the recent economic meltdown, are turning to any available income, accounts, or other resources to pay down today’s mounting mortgage debt, crushing credit card rates and high health care costs. One such resource—liquidating a registered retirement account like a 401(k)—might appear to be a quick and easy fix to pay down looming expenses or even to avoid filing for bankruptcy.

In reality however, it’s better to “stay away” from 401(k)s, leaving these and other retirement accounts untouched and intact in times of financial distress—even for those bankruptcy bound.

Why, you ask?

Retirement Accounts Like Your 401(k) Are Exempt From Bankruptcy
First and foremost, it’s important to understand that your 401k is safe—even in bankruptcy. Assuming your registered retirement accounts, such as IRAs, 401(k)s, and pension plans, have not been used to secure loans, they’re considered protected assets. And recent amendments to the Bankruptcy Code have made these exemptions available in all states. In the alternative, cashing out a 401(k) automatically means losing your hard-earned savings, higher taxes, and potential delays in any bankruptcy filing.

Cashing Out a 401(k) Means Paying [More] Out In the Long Run
Using retirement savings to pay creditors can create new debt in the form of income taxes and early withdrawal penalties. In fact, considerably higher taxes are the norm if you cash in valuable retirement assets like your 401(k). This heavily taxed income also cannot be discharged in bankruptcy for years and may prevent other qualifying deductions. As a result, this expensive option creates even more economic troubles for families struggling with already weighty debts and considering the benefits of bankruptcy.

401(k) Liquidation May Provide a Substantial Burden to a Productive Bankruptcy
In terms of burdening your bankruptcy proceedings, liquidating your 401k to pay creditors could mean significant delays in productive bankruptcy results. Any cashed out 401(k) funds will be counted as income and considered when evaluating your economic status pending bankruptcy. Therefore, any withdrawals from 401(k)s should be disclosed to your bankruptcy attorney immediately.

401(k)s Fund Your Future
Just as bankruptcy provides a much-needed stopping point for those drowning in debt, maintaining registered retirement accounts, such as IRAs, 401(k)s, and pension plans—even in tough times—provides a comparable and essential starting point for your family’s viable financial future.

So, before you consider liquidating any retirement accounts, such as IRAs, 401(k)s, and pension plans, talk to the skilled bankruptcy attorneys at The Law Offices of John T. Orcutt.

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Published Wednesday, November 25, 2009 @ 12:12 pm

Should you try to modify your mortgage before filing for bankruptcy? Bankruptcy will stop foreclosure proceedings; a Chapter 13 bankruptcy will allow you to keep your home, and to develop a payment plan to meet your back payment obligations. But it won’t necessarily lower your monthly mortgage payments. Is it worth it to try to modify your mortgage and secure lower payments first?

The evidence is mounting that it’s probably not worth your effort. A recent report shows that although 362,348 loans have been approved for “trial” modifications, only 1,711 of those trial modifications have been made permanent. Assuming you can even get over the first hurdle of being approved for a trial modification, you’re likely to get stuck in “trial mod limbo”. Depending on your lender’s mood on any given day, you could at any point be dropped from your trial modification, worse off than where you started.

But isn’t the program backed by the government It’s true, the government had high hopes for the Making Home Affordable program, designed to help homeowners who are having trouble making their payments. However, mortgage companies have dragged their feet over it; they make more money off fees when a house goes into foreclosure than they do modifying a mortgage. The government may well say you qualify for MHA, and your lender simply refuses to go along.

Faced with a recalcitrant lender, you might turn to foreclosure consultants. While there are legitimate consultants, be wary of scams. Many consultants will simply charge you a fee and never even bother to contact your lender!

You also have to consider whether or not changing the terms of your loan is in your best interest. For example, you may be qualified to refinance under the Hope for Homeowners program (H4H). However, H4H requires upfront fees and additional mortgage insurance; later, when you sell or refinance your house, you will be required to share between 50 and 100 % of the proceeds with the government.

Some lenders might agree to roll your loan into a 40-year fixed mortgage. In this case, you’d pay less per month, but for a much longer period of time. Depending on your loan amount, the additional money could be tens or even hundreds of thousands of dollars. Plus, of course, you will have payments for an extra 10 years, and less equity in the home if you sell before that. Will the difference in monthly payments make that additional debt worth it? It depends on your circumstances, of course, but possibly not. Remember, once you file for Chapter 13, much or all of your unsecured debt may be erased, freeing up more of your income for your mortgage payment.

The earlier you file for Chapter 13 bankruptcy, the more likely you are to save your home. If foreclosure proceedings have advanced enough prior to your filing, you may not be able to afford the Chapter 13 payment that is required to catch you up. If you’re starting to get behind, call a bankruptcy attorney today.

While modification is still receiving a lot of hype in the press, it’s becoming clear that it’s all just hype. . The best way to sort through these options is with the help of a professional bankruptcy attorney. It doesn’t make sense to spend weeks trying to modify your loan, only to find out it resulted in filing for bankruptcy too late.

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Published Tuesday, November 24, 2009 @ 8:40 am

Most people believe that their credit rating will be ruined for the next 8-10 years if they file for bankruptcy. This could not be further from the truth.
Bankruptcy is not a shiny gold star on your credit report, that is for sure, but it is far from a death toll on your credit. In reality, your credit rating is already pretty darn low from all the missed and/ or late payments you have been piling up prior to filing. While I highly doubt any creditors will actually see things this way, filing is actually you showing that you do want to improve and do better for the near and foreseeable future.

Yes, your credit rating will take a hit. Yes, your interest rates will be a bit higher than the norm for a few years, but you are not in a credit purgatory. Once you have filed, you will find that there will be ample opportunity for you to rebuild your credit rating. Do not be surprised if you are flooded with credit card companies offering to help you rebuild your credit. Car dealerships will jump on this bandwagon as well wanting to give you a loan regardless of the fact that you just went through bankruptcy proceedings.

They do so not out of the kindness of their hearts, but out of the greed in them instead. Car dealerships and credit card companies know full well that you have no other option than to take the outrage offer they give you in order to rebuild. You need them; they do not need you. They take advantage of this by hiking up the interest rates and killing you with annual fees.

It can be tempting here to fall back into old habits. If you have yet to get back on solid financial ground than you would probably be better off doing nothing. It takes activity to rebuild your credit rating, but at least you are not doing anymore damage. If you have student loans that are as yet unpaid either start or continue making those payments once your case is discharged. Making installment payments like with a student loan can help rebuild your credit as well.

Bankruptcy is a scary option to consider when you have already been undergoing some tough financial times. The stigma that it carries is enough to keep some people from filing. For others it is the perceived damage that will be incurred on their credit rating. What they fail to realize is that the damage has already been done. Filing bankruptcy cannot do much more than the last year or years of lackluster financial mismanagement have already done.

In fact, bankruptcy will actually be the first step in getting your credit rating back where it needs to be.

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Published Monday, November 23, 2009 @ 6:49 pm

The Associated Press is reporting that the foreclosure crisis will persist well into next year as high unemployment “pushes more people out of homes, pulls down housing prices and raises concerns about the broader economic recovery.”

The latest evidence comes this week in a report from the Mortgage Bankers Association identifying that a rising tide of fixed-rate home loans made to people with good credit are now facing foreclosure, marking a surprising shift from assumptions that only riskier subprime loans are driving the current housing crisis. The report also stated that 14 percent of homeowners with a mortgage were either late on payments or in foreclosure at the end of September 2009, marking another record-high for the ninth straight quarter.

These findings speak to an even more beleaguered housing market than previously thought, bearing the weight of even more home-loan defaults. The main culprit, industry experts say, is rising unemployment, forcing even the most responsible homeowners to fall behind on their mortgages.

As the AP found, many laid-off homeowners might be able to survive on their savings for a while, but “the longer the economic situation stays in place, the less likely they are to hold on,” said Jay Brinkmann, chief economist at the Mortgage Bankers Association.

As Robert L. Borosage, Co-Director of the Campaign for America’s Future, blogged this week, “[o]ne in six workers is unemployed, has given up looking or is forced to work part-time. For young workers aged 16 to 24, unemployment is 19%. For young African Americans, unemployment is at 30%. And as Federal Reserve Chair Ben Bernanke testified yesterday, we’re likely to see — at best — a slow recovery with no new job growth. That exacts a devastating toll in hopes crushed, families stressed, young people stalled, and poverty and hunger spreading.And even if we avoid another downturn, the job picture will get worse. Crippling state deficits — over $260 billion over 2 years — will force layoffs that cost an estimated 900,000 jobs next year if nothing is done.”

As a direct result of this explosion of job losses, this year, more than 3 million foreclosures are predicted, as homeowners are increasingly incapable of paying the mortgage during a brutal recession. As the financial meltdown continues and unemployment surges, the millions that have now slipped into delinquency and foreclosure with only one conceivable way out: bankruptcy.

Homeowners with prime and sub-prime mortgages alike are taking immediate action, arming themselves with basic bankruptcy tools. So, if you’re interested in staying in your home, looking for permanent solutions to foreclosure threats, and ready to quit spending and start saving, there’s never been a better time to consult with a bankruptcy expert. For more information regarding homeowner benefits of bankruptcy filing, visit The Law Offices of John T. Orcutt’s “Things to See and Hear” information.

While recent reports of the nation’s financial future are nothing short of bleak, the good news remains that through bankruptcy laws, homeowners facing foreclosure can take their future into their own hands, stop drowning in mortgage debt, and begin on the road to a more viable financial future.

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Published Wednesday, November 11, 2009 @ 8:49 am

You’ve seen the ads: a circus act of food court commodities are passed around by a mash-up of merchants to the frenetic marching music of patrons efficiently paying for their delicious delicacies with their handy-dandy Visa cards. Like a well-oiled, money-sharing machine, these well-choreographed consumers pay conveniently with a single swipe of credit, serving up little wait in their collective go-go-gadget gaits and emphasizing, with every single swipe, the efficiency and speed of making everyday purchases with a Visa check card over cash or checks. This plastic parade ends abruptly when a lone cash-carrier has the audacity to pull out his greenbacks for one show (and music) stopping dark ages transaction. The record scratches. The cashier looks cranky. And the message is clear: in a world where plastic rules, only a party pooper pays with cash.

More and more, life does take Visa. And Mastercard. And Discovery. And a whole host of other plastic pinch hitters ready to step up to bat when your bank account can’t. This point is not lost on more and more savvy small purchase institutions and organizations. From cabbies to Salvation Army kettles, more and more businesses are getting into the single swipe game, and whether it’s because of convenience or economic circumstances, Americans are taking the bait, at the expense of low credit card balances.

And for those Salvation Army kettles at least, these results are certainly panning out: national Salvation Army surveys show that people give more when they are allowed to donate with credit, sharing 750 percent more when paying with a card.

The science of our single swipe economy supports this trend. Following an examination of the brain and how people feel when they spend, Carnegie Mellon University professor George Loewenstein hypothesized that credit cards take away the pain of spending. From an article summing up Loewenstein’s work in Carnegie Mellon Today it was found that:

“[T]here’s a battle in the brain between immediate pleasure and immediate pain when we’re deciding what to buy. … The subjects in the MRI study weren’t thinking about what benefits they would gain at some later date if they chose not to purchase The Family Guy DVD set now. Rather, they were deciding based on how painful (or not) they thought paying for it would be right now.”

Combining the “feel-good” factor of plastic, the financially-strapped consumer population, and wide-acceptance of credit for cash, this looks like a recipe ripe for a consumer crisis that plays right into the hands of the credit card companies. So what should you do?

Try carrying cash-only.
Foregoing your credit cards for cash and carry—even for a few days—can make a huge impact in the psychology of your spending—bringing back the pain (and the gain) of using only what you have. While we remain disconnected from our spending with plastic, cash-only provides the necessary perspective that leads to healthy budgeting and better buying judgment.

Make room for fewer cards with lower limits.
When you do carry credit, only keep what you need for well-thought-out purchases and emergencies. With fewer cards and lower limits, you’ll rely more on cash, which could help head off budget-breaking impulse buys.

Plan through the pain
If the pain of past spending on plastic is getting you down, Chapter 7 bankruptcy is an option designed to quickly clear credit card debt. Click here for more information about how the bankruptcy experts at The Law Office of John T. Orcutt can help you out of your own personal credit crisis.

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Published Tuesday, November 10, 2009 @ 11:16 am

The number of people filing bankruptcy due to medical bills has been rising every year. A recent study in the American Journal of Medicine shows that more than 62% of people filing for bankruptcy do so at least partly because of medical bills they can’t pay. Many filers have insurance – often they’ve ‘capped out’ their insurance and the insurance company refuses to pay any more bills, leaving them tens or even hundreds of thousands of dollars in debt. In other cases, illness has forced people to lose or leave their jobs, meaning that not only do they have no money coming in to pay their bills, but their insurance coverage has often lapsed as well.

A bill recently introduced in Congress – by Carol Shea-Porter (D-NH) in the House and Sheldon Whitehouse (D-RI) in the Senate – hopes to make filing bankruptcy easier for people in this situation. People who owed either 10% of their income or $10,000, or who had been out of work for more than 4 weeks in the last year due to illness, would qualify as medical debtors. The bill would exempt these filers from the requirement to take credit counseling. More importantly, they would no longer be subject to the means test – all medical debtors would be allowed to file Chapter 7. And the homestead exemption – the amount of equity they could keep in their home after filing bankruptcy – would rise to $250,000 for medical debtors.

Will the Medical Fairness Act pass? It’s hard to say. To some extent, the debate seems to be falling along the same lines as the general health care debate: democrats for, republicans against. At a recent hearing in the Senate, Whitehouse brought in a number of debtors to make the emotional point that they lost everything, including in many cases their homes, due to unavoidable medical bills. Kerry Burns told the tragic story of her son, who died at the age of 4 after a long struggle with cystic fibrosis. She and her husband both took leaves from their jobs. They cashed in their 401K accounts, spent every penny in their bank accounts and had insurance– and all that wasn’t enough to pay their son’s medical bills, which came to over five million dollars.

Republican opponents, particularly Sen. Jeff Sessions (R-AL), seemed unmoved. Sessions seemed more concerned with the plight of the credit card companies, who will likely lose money if more people file Chapter 7. Sessions worried that people would qualify as medical debtors when the ‘real’ reason for their bankruptcy was due to overspending on their credit cards. He called experts who claimed that the study was flawed and the real role of medical bills in bankruptcy is much smaller. Others rebutted both arguments, pointing out that the number of medical debtors may be greater than the study shows, as many people put medical bills on their credit cards.

The Democrats have the votes in both the House and the Senate to pass this bill. But the credit card companies and the medical industrial complex spend an enormous amount of money on lobbyists to protect their interests. The Medical Bankruptcy Fairness Act is a common sense relief for people who’ve incurred enormous bills simply due to their medical problems. Whether or not it passes says more about politics than policy.

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Published Monday, October 26, 2009 @ 10:38 pm

In discussing the issues surrounding the current economy, the term “mortgage meltdown” is now officially as tired a wordplay as assemblages like “From Wall Street to Main Street,” “Where’s my bailout?” and “It’s a crisis of confidence.” Beyond these catchphrases, you might still be wondering: What is really behind this recession?

In a nutshell, big banks created a huge demand for mortgage backed securities. Mortgage securities are basically your mortgage, packaged with a bunch of other people’s mortgages, which are then sold on the open market to investment banks who pay for the package based on the quality of loans included. Good borrowers with good loan applications made up the “Prime” packages, and different variations of the packages existed for other qualities of debt, such as “Alt-A” and “Sub-Prime”, the latter being defined by weak credit scores and little documentation. The packaging allowed investors to pick and choose, depending on how much risk they wanted to take on. This worked well as long as everyone in the game stayed honest.

It turns out, everyone involved was not being honest. As more and more consumers qualified for loans, the securities became watered down. It got to the point that literally anyone with a pulse was being qualified for a home loan. The prime packages were increasingly including “low-doc” and “no-doc” consumers, who had little prospect of being able to afford their mortgages over the long term. However, the investment banks kept buying and selling, re-packaging bad loans for investment banks who were hungry for more securities.

This giant tinder box eventually exploded when all parties realized that what they owned was worth far less than they thought. Adding to the devastation was the trillions of dollars in side bets on the market, termed “credit default swaps”. When the whole thing blew up, everyone needed to be paid. The only problem- the banks simply didn’t have enough money to go around. Lending froze as everyone clung tightly to the dollars that remained. Despite hundreds of billions in government money, banks still aren’t completely out of the woods.

Now that the dust has somewhat settled, many entities who purchased the bad debt are discovering that they can’t even prove ownership. In a New York bankruptcy court earlier this month, a mortgage servicer was unable to prove it serviced the loan or that the parent bank was the legal note holder. Upon formal request to prove their ownership of the note, the servicer, PHH Mortgage alerted the court that US Bank actually owned the loan. The only “proof” which PHH could provide was some vague paperwork by PHH officials, multiple signatures by the same executive (although with different titles each time), documents post-dated from the date of bankruptcy filing and eventually, an admittance of improper fees levied and even less proof they had a right to what was owed. The judge, unable to ascertain whether the debtor’s proposed Chapter 13 plan would be paying the right bank, completely disallowed the bank’s claim. You heard that right–the judge completely eliminated well over $450,000 in mortgage debt! Not only will this person continue to sleep in her house, she’ll be doing so knowing her mortgage payment isn’t due any time soon. Or ever.

Not every case involving a confused lender will result in such a favorable outcome. A lot will depend on the supporting documentation behind the loan, but if you bought or refinanced a home during the boom years, the chances are higher that your note holder might not be able to prove that it owns the debt. In a bankruptcy setting, this is a huge problem for the lender, and a potential windfall for the consumer.

The recent New York case is being looked at as a serious wake-up call for lending institutions: the days of free passes and assembly-line foreclosures are over. If you’re a consumer with a bad loan and bad terms you can’t afford, at the very least a bankruptcy may be an option to catch you up on the missed mortgage payments. Call an experienced bankruptcy attorney today to discuss how bankruptcy can help you save your family home. In North Carolina, call the Law Offices of John T. Orcutt. 1-800-899-1414.

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Published Saturday, October 24, 2009 @ 11:16 am

If you are considering filing for bankruptcy protection but are reluctant to hire an attorney to help you with the process, there might be a couple of explanations. Maybe you are feeling a little bit embarrassed about your situation and are none too eager to spill your troubles to a stranger. This is understandable but it shouldn’t hold you back; a bankruptcy attorney is like a doctor for your financial health, and there is no need to be embarrassed when you talk to a doctor.  If it’s not embarrassment or even sheer inertia holding you back, it’s easy to hazard a guess about another source of worry: attorney’s fees.

When people are ready to file for bankruptcy protection, they are thinking that the last thing they need is to spend more money. Understandable, but you should not let this stop you from seeking the help you need. Remember that the first consultation with most attorneys is often free (always free with the Law Offices of John T. Orcutt), so make sure to look for a reputable firm that offers this opportunity in your area. In a Chapter 13 bankruptcy, the up-front attorney fees are minimal, often less than $200.00. The remainder of the fees are paid through your Chapter 13 plan. If Chapter 7 is advisable, the up-front money will be higher, but your bankruptcy attorney can suggest some ways to come up with the money.

You may have heard about some the more extraordinary bankruptcies, such as the 2008 Lehman Chapter 11 filing. According to filings in a Manhattan bankruptcy court, the once prestigious investment bank, which collapsed in September 2008, paid out $402 million+ to attorneys and advisers in one year as the company struggled through a very complicated Chapter 11 reorganization. As Lehman struggles to pay back creditors, they have had to sell or auction the assets that were once the hallmarks of a prominent (and prominently excessive) bastion of the investment world. Take for example the funds they have raised through the sale of their multiple jets. Lehman’s art collection, comprising more than 280 works, is reported to be next on the chopping block as Lehman grinds through its ultra-complicated bankruptcy.

If you are worried about how much your bankruptcy attorney will charge you to help you unload assets like your old Gulfstream IV jet, who can blame you? That sounds like a pretty complicated filing. If, however, you are one of the millions of Main Street Americans whose personal lives were slammed by the credit crisis, your bankruptcy is likely to be much simpler–and cheaper. Whatever you do, don’t even consider filing without an attorney. The bankruptcy process became infinitely more complex after the 2005 law change, and only an experienced bankruptcy attorney can successfully navigate the many unforeseen obstacles.

In North Carolina, the Law Offices of John T. Orcutt always offer a free initial consultation. Call 1-800-899-1414 today to schedule a free initial consultation today. Or visit www.billsbills.com for more information.

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Published Thursday, October 15, 2009 @ 6:06 am

Getting a pay day loan can be ever so tempting. You think to yourself, I only need a “bridge” until my next paycheck; this is a “short term” solution for a “short term” problem; this is an easy “fix”; I can get help without going through the humiliation of a credit check I’m bound to fail. These are the kinds of messages pay day loan companies relay in their advertising, which also goes a long way to generate the impression in you that these companies–unlike the large, impersonal banks who don’t seem to want your business–are run by people who just want to help you. Don’t fall for it–sometimes nostalgia is for the birds!

If you find yourself constantly relying on payday loans, your financial strategies need a drastic makeover―fast. There is no better example of throwing good money after bad; the first loan transaction with a payday loan company is a huge rip off, and every subsequent one is more of the same.

Payday loans rake in a lot of money even though they are lending to high risk customers. So how do payday loan companies make their money anyway? By counting on you to roll over that loan. The company knows, perhaps better than you, what is likely to happen. You are in financial trouble, obviously. You are short on cash, or you wouldn’t have requested the loan in the first place. So what’s going to change in your financial circumstances between now and your next paycheck? Probably nothing. The only difference will be that part of that paycheck will be gone before you get it. Chances are all too good that soon–even as soon as the very next paycheck–you will need to rely once more on a payday loan. Where does it end?

Let’s look at the math. Say something comes up and you unexpectedly need about $500. You can usually spare about $200 out of your paycheck for incidental expenses, so that leaves you with $300 to make up. So you decide you will borrow the $300. You go to a payday loan store and they ask you for a check, postdated for the date of your next paycheck, for $345. This means you are paying 15% interest for a loan that lasts two weeks, or in other words, the equivalent of a 391% APR! This is bad enough, but you’re probably thinking it’s a one time deal. The problem is that your next paycheck arrives, your expenses are the same as they ever where, only now you have a shortfall of $345. Remember in the original example you only had $200 to spare, so where does that extra $145 come from? Most probably another pay day loan.

Luckily for residents of North Carolina, pay day loan companies formerly operating in the state were shut down thanks to the efforts of the state’s Department of Justice. Now “alternative” lenders must operate under state rules, or look to other states for vulnerable customers. However, the danger is still present. Online payday lenders are increasingly available, and can suck your finances dry before you know it. If you are even considering a payday loan or payday advance, filing for bankruptcy protection may be a better option–a lasting, transformative step that can truly form that bridge between the problems of today and the financial security of your future.

In North Carolina, contact the Law Offices of John T. Orcutt and get debt free today. Call 1-800-899-1414 today or visit www.billsbills.com for more information.

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Published Sunday, October 11, 2009 @ 10:09 pm

We can’t stress enough the value of bankruptcy for those who truly need it. Hey, it’s no secret that our business is to help people correctly file and emerge from bankruptcy with a more positive approach to their finances. The truth is that without dependable legal assistance, many Americans would face a very difficult and extremely creditor-centric bankruptcy process.

Need evidence? Just look at 2005’s Bankruptcy Abuse Prevention and Consumer Protection Act, which was conceptualized and heavily backed by the lending industry to ensure they re-gained an upper hand in bankruptcy court. Despite the prevalence of consumer debt problems, compounded by a faltering economy, many Americans operate under several misconceptions about bankruptcy that can often prevent or at least delay the decision to file. So let’s clear up a few things.

First off, bankruptcy is by no means a haven for unmotivated, blameless folks who simply don’t want to pay their bills anymore. Please.

No one hopes to lose their job. No one plans on having their multi-billion global employer (which provides a healthy, well-deserved salary) make shoddy investments and lay-off thousands of employees within weeks. Today’s bankruptcy cases span all levels of income and “social status” and often stem from factors beyond the control of those who need to exercise its benefits.

More over, medical debt has driven a large portion of today’s bankruptcies. How is being suddenly injured or stricken with a hard-to-fight disease an attempt to escape financial responsibilities? Many people who file for protection today are older than 65 and do so as a result of inescapable hospital bills.

In February 2005 a report was released in Health Affairs, a medical policy journal, that stated bankruptcies related to medical bills increased by 2,200 percent between 1981 and 2001. The majority of the cases in the study involved those who had insurance. Scary.

Truthfully, the idea that a person who files bankruptcy is irresponsible has been perpetuated by many of the same entities responsible for pushing anti-consumer legislature. There are simply too many unknown factors behind bankruptcy to ever assume a person is filing simply to get a free ride.

One would think, especially after the push and passage of the 2005 act, that the lending industry would be quite wary about to whom it extended credit. In other words, if they were so concerned with the number of those not paying them back, why did so many industry players provide avenues of credit, such as subprime mortgages, credit cards or lines of credit, to individuals who clearly demonstrated no ability to pay them back?

There is no hiding the fact that the lending world, as it is doing currently, saw an opportunity to quickly increase profits by providing money to those who did not have any. With steep late charges, interest rate spikes and hidden fees backed by exceptionally aggressive, tobacco industry-like marketing, financial industry leaders knew full well that money brought in from these tactics would far surpass that which would be lost in America’s bankruptcy courts. As evidence, note that since 1997, bankruptcy filings have increased by 17 percent at the same time credit card companies have experienced a more than 160 percent rise in profit.

You tell us who’s winning the credit wars.

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Published Saturday, September 26, 2009 @ 6:17 pm

One of the greatest benefits of filing for bankruptcy protection is that it allows struggling homeowners a second chance to catch up on missed mortgage payments. For many people, the fear of losing a beloved family home is one of the most stressful parts of their struggle with debt. But is your house really worth saving?

If you find yourself living in an “upside down house,”  it may be worthwhile to consider simply letting the house go. “Upside down” refers to a property where you owe more money than the house is worth. Back when the housing  market was still booming, this situation was almost unthinkable, but now that the bubble has burst, short selling―selling a home for less than what is owed―is all too common. Unfortunately, a short sale leads to all kinds of nasty repercussions: Unless your mortgage lender agrees otherwise, you will still be responsible for the difference between the sale price and amount owed. Second, even if your lender agrees to forgive the debt, you’ll still be hit with the tax consequences.

If you’re a homeowner and considering bankruptcy, now is the time to take an objective look at the big financial picture and make some tough choices. Your equity situation is a great place to start this assessment. If you don’t have any equity in the home, holding on to that upside down house can’t even be justified on the basis that home ownership is a good investment. Just a few years ago a house was a sterling investment―but if you’re continuing to sink in negative equity, you don’t own a good investment, just a bunch of debt. And if you are living in an upside down house, how bad is your situation? In other words, how much more money do you owe the bank than the house is worth? If the difference is only a few thousand dollars, it may be OK to hold on to the house if you can really afford the payments. But if the difference is huge, you may want to consider the idea of surrendering the property in bankruptcy.

Second, take a look at your budget. Why did you get behind on your payments? Were you always struggling to make the payments, always one emergency away from getting behind? If getting rid of your credit card debt doesn’t free up enough money to comfortably make the mortgage payment, bankruptcy won’t help you save the home in the long term. If, on the other hand, you got behind because of a temporary drop in income that has since rebounded, bankruptcy can get you back on track with your mortgage and put your in a better financial position by dumping your unsecured debt.

The costs associated with home ownership go beyond the monthly mortgage payments. Can you afford property taxes? Your homeowner’s insurance? Does the house require a lot of maintenance? What are your utility payments like? These are all good questions to consider as you assess whether it makes sense to hold on to your home. Another thing to keep in mind is the structure of the loan. If you were one of the many unfortunate borrowers who signed on to an adjustable rate or interest only loan, your loan terms will never allow you to get ahead.

The good news is that the depressed housing market means that a lot of places that can’t sell are being offered for rent. Renting can be a good solution for someone seeking to rebuild their financial health, especially in the short term. If you are trying to keep your kids at the same school or are reluctant to leave the comforts of a familiar neighborhood, you may be able to find a good rental in the same area as your house.

Make sure to ask your bankruptcy attorney for advice on this issue. Letting a foreclosure proceed unchecked is not a good way of dealing with the situation. If the property sells for less than the outstanding loan balance, you will still owe the difference.. Surrendering the home in bankruptcy shields you by eliminating any personal liability after the foreclosure sale. If you are facing foreclosure now, contact a bankruptcy attorney immediately to ensure that you remain in control. Your attorney can help you assess your financial outlook rationally and help you make the right decision.

From: The Law Offices of John T. Orcutt. We always offer a free initial one on one consultation. Call today to set up your appointment. If you are in North Carolina, call 1-800-899-1414, or visit www.billsbills.com to fill out our free and confidential debt questionnaire.

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Published Wednesday, September 23, 2009 @ 10:41 pm

Say you find yourself struggling with a mountain of debt. Your paycheck seems to be spent before you even get it, as soon as you pay a bill another one arrives, and you’re starting to wonder how much longer you can deal with the stress of unmanageable debt. To make matters worse, you fall behind on your housing payment and your bank threatens you with foreclosure.

So when your phone rings and a professional sounding individual on the other end promises to stop your foreclosure or even modify your mortgage, you see it as a godsend! After all, the government has been promising to help Americans hold on to their homes. A foreclosure assistance agency may even be part of a government effort to help people just like you. As a matter of fact, nothing the “foreclosure assistance agency” says leads you to believe otherwise. Should you take the leap?

Unfortunately, as all too many have learned the hard way, there are no miracle cures when you have serious debt problems. With so many people struggling to hold on to their homes, it comes as little surprise that scammers are taking advantage of vulnerable homeowners at the worst possible time.

So how do these schemes work? In most of these scams, a company will call a homeowner and offer help in stopping a foreclosure. Some companies are little more than a call center, with no attorneys, accountants or loan specialists employed.. The companies demand a fee upfront, sometimes as much as $3000.00. Desperate homeowners will pay the fee, only to discover–often when it is too late–that the company did nothing at all to help them.  Because of this all too common model, one measure the FTC is considering is a ban on up-front fees for mortgage assistance.

Since April, the government has promised to crack down on “foreclosure assistance” outfits posing as government agencies. Now, a recent meeting of the multi-agency taskforce created by the Obama administration to address the problem of mortgage fraud updated the public on the government’s efforts.The FTC brought civil charges against two companies this week that were running foreclosure assistance scams. This brings the number of such cases this year to 22.

One of the worst aspects of this situation is that many of the companies work to create the impression in homeowners that they represent a government agency. The two companies charged this week were doing precisely that, and the government is working hard to crack down on these wrongdoers in particular. It’s your responsibility as an informed consumer to protect yourself. If you are being asked to pay a hefty upfront fee, it’s a good sign that the modification program is a scam. And remember, bankruptcy is always an option if you are behind on your mortgage. A Chapter 13 bankruptcy will catch up your missed payments over a 5 year plan, and eliminate your unsecured debts. Contact a bankruptcy attorney today to find out more. In North Carolina, contact the Law Offices of John T. Orcutt at 1-800-899-1414. Or visit www.billsbills.com to complete our confidential debt questionnaire.

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Published Monday, September 21, 2009 @ 1:49 pm

Many of us now come into marriage with some debts in tow. Some of us also arrive owning some of our own property. Once married, we incur new debts, jointly or separately; for example, one spouse may finance a car under his name, while both spouses may need to list their income together when they borrow for a new home. In addition, you may have credit cards and checking accounts in your own name, and some held jointly.  Sometimes one spouse will have the legal responsibility for credit card debt, but the other spouse, as an authorized user of the account, has the ability to add to it. A spouse may not have the responsibility for a debt, but may contribute to payment from her income. And then there are the difference in state law, which also adds layers: in the nine community property states, both partners own all property equally, while in the non-community property states (or “equitable distribution” states, such as North Carolina), each spouse owns all of his own property and one half of the property held jointly.

As you can see, marriage can definitely complicate matters when it comes to property and debt! For many couples facing an unmanageable amount of debt together, these different factors may complicate the decision to file for bankruptcy However, there’s no need for alarm. If your marriage is suffering from the pressures of debt, bankruptcy can offer the relief to allow your family to focus on the things that really matter. An experienced bankruptcy attorney will be able to assess your situation and advice you on the best strategy for taking care of your debts while saving your property. Based on the kinds of debt and property your couple has, he will be able to help you choose whether to file separately or jointly. And in some situations, he may advise one partner to file and the other partner not to. Let’s look at some of the factors he’ll weigh in making his determination:

If you file together, all of your separately held debts, as well as all of the jointly held debts acquired during the marriage will be discharged. Filing together is also cheaper than filing two separate bankruptcies, and often times the financial troubles of one spouse are tied to those of the other. If only one spouse files, jointly held debts will be discharged only for the spouse who files; the other spouse will still be responsible for the debt.

However, if one spouse holds most of the troublesome debt in her own name, it may make sense for her to file alone. This is especially true if the non-filing spouse has better credit. Preserving one party’s credit can help the filing spouse recover from bankruptcy faster. The non-filing spouse can co-sign on future accounts, allowing the filing spouse a better chance to rebuild post-bankruptcy.

Don’t let these nuances deter you from the most important point: no matter what kind of debt you have and what kind of property you hold, bankruptcy can offer a life-changing opportunity for you and your spouse to put unmanageable debt behind you. Because you want to approach your filing strategically, it’s an excellent idea to contact an experienced bankruptcy attorney to help you and your spouse make the right choice.

In North Carolina, contact the Law Offices of John T. Orcutt at 1-800-899-1414, or visit www.billsbills.com to complete our free and confidential debt questionnaire.

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Published Saturday, September 19, 2009 @ 10:11 am

A thoughtful, measured strategy for your bankruptcy can help you in a number of ways when a divorce seems inevitable or is already underway. A good plan can help ease tension between yourself and your spouse, for example, by reducing fights about who is responsible for this or that bill. Not only is this expensive, aggravating, and likely to sour an already acrimonious process, it may be completely unnecessary. You may find that bankruptcy can get rid of those bills altogether! Thus, there will be no need to assign a bad guy.

If you have already finalized the divorce, bankruptcy is often the best way of getting back on track financially. Chances are, you will emerge from your divorce with a significant amount of secured and unsecured debt. Bankruptcy allows you to let go of those items you can no longer afford with one income. If you simply allow the car to be repossessed, or the mortgage to be foreclosed, you will still be responsible for the deficiency balances after the car or home is sold. This is the worst possible scenario- not only have you lost the car or home, but you’re still on the hook for the underlying debt. Surrendering the home or car in a bankruptcy shields you from any remaining personal liability, and frees you to transition to a new lifestyle.

If you’re still in the preliminary stages of your separation, it may be tempting to postpone thinking about bankruptcy until after the divorce is totally settled; why deal with two stressful legal procedures at once? The answer is that with a good bankruptcy attorney and a good strategy in place, you can make a bankruptcy work for you and your future ex. Even if you and your soon to be ex-spouse disagree on every other issue, try to agree on bankruptcy as the best way to wrap up and dissolve the marital debt. If you are legally separated but not divorced, you can file a joint Chapter 7 petition, receiving your discharge in a matter of months. This can free you to focus on the truly important issues of your divorce, such as custody and visitation. Of course, in some instances, filing and completing the divorce before filing for bankruptcy is the best option, and this is why consulting with an experienced bankruptcy attorney early in the divorce process is important. Only an attorney can assess your unique situation to determine the best strategy.

Both bankruptcy and divorce can be stressful processes, so you should always exercise your power to save yourself aggravation where you can. Don’t make these life events more difficult than they have to be, and remember that only you can take control of your financial future.

The attorneys at the Law Offices of John T. Orcutt have years of experience helping families deal with the financial challenges of a divorce. Call us today for a free initial consultation. 1-800-899-1414.

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Published Thursday, September 17, 2009 @ 7:27 am

Most people understand that wage garnishment is basically what happens when a court order requires your employer to withdraw a portion of your paycheck for the repayment of a debt. If you are already up to your ears in debt and barely able to make ends meet each month, one wage garnishment, be it by the IRS or another entity, can be the straw that breaks the camel’s back.

Although any kind of debt can eventually result in garnishment of wages, the most common types include back child support, unpaid court fines or judgments, defaulted student loans, and the biggie: delinquent taxes owed to the IRS or any state government.

The good news, which may come as a surprise to some, is that tax debts are dischargeable in bankruptcy (within certain parameters).

Just so you know, if a debt is “dischargeable”, that means you can get rid of it permanently by filing bankruptcy; and that means you never have to pay it back.

Six Rules to Discharge Income Tax Debts

If the income tax debt meets all six of these rules, then the income tax debt is dischargeable in Chapter 7 and Chapter 13 bankruptcy cases.

Note: Each of these rules must be applied separately to each year’s tax debt.

1. First, the tax debt must be “income” tax debt. That is, the debt for which you are required to file an IRS 1040 form. Other types of tax debts, for example employer tax withholding and sales taxes, are never dischargeable.

2. The “due date” for filing your income tax return (for the particular tax involved) had to have been at least three years prior to the bankruptcy.

3. The tax return had to be actually filed at least two years prior to the bankruptcy.

4. The tax assessment must have occurred at least 240 days prior to the bankruptcy. “Assessment” basically means the date when the IRS billed you for the tax.

5. The tax return was not fraudulent.

6. You are not guilty of tax evasion.

The bottom line is that tons of income tax debt gets relieved as a result of filing bankruptcy.

Caveat: In some situations, you may have to pay back a part of even a discharged debt. For example, where the IRS has filed a “tax lien” for the debt in question, in which case some of your property ends up serving as collateral for the payment of the debt. As a practical matter, however, even though there may be a tax lien on file, that does not mean the IRS will. Certain types of property, like household goods for example, are protected. Certain types of property are not worth enough for the IRS to bother with. And certain types of property are untouchabable by the IRS, as a practical matter, for more or less political reasons. However, if there is a tax lien filed against you, you have to be careful. We suggest you check with a good bankruptcy attorney to find out what, if any, of your property is at risk.

Got a lot of older income tax debt? Got the IRS bugging you and trying to grab your income, your bank account or other stuff? You may be able to do something about it.

The one thing that trumps the IRS is the bankruptcy laws. You may want to check with a good bankruptcy attorney.

In North Carolina, you have one. The Law Offices of John T. Orcutt, with offices conveniently located in Raleigh, Durham, Fayetteville and Wilson. For a totally FREE, initial consultation, call toll free to: 1-800-899-1414.

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Published Wednesday, September 16, 2009 @ 10:06 pm

The four-year anniversary of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) is right around the corner. You might recall all the hype in the months leading up to the enactment of BAPCPA. This was the banking and credit industry’s seventh attempt to get the legislation on the books. They pitched BAPCPA as necessary to curb “rampant abuse” and to restore “personal responsibility and integrity” in the bankruptcy process. With the Bush Administration at the helm of a Congress chock full of conservative lawmakers, the banks and credit card companies finally clinched a large enough sympathetic audience to bring its agenda to life.

BAPCPA called for sweeping changes to the Bankruptcy Code – undoubtedly the most significant overhaul of the Code since it was enacted in 1978. The depth and complexity of the changes caused much confusion, uncertainty, and speculation about what protections would be left for consumers in the new world of consumer bankruptcy practice. This sparked a mad dash to file bankruptcy before the new laws went into effect on October 17, 2005. So what does this new world of bankruptcy practice look like four years after BAPCPA took effect? Did the banking and credit industry get its money’s worth for the billions it spent marketing the legislation?

Well, one thing’s for sure: the new laws did make it more expensive and difficult for consumers to take advantage of the protections that bankruptcy has historically provided. But one of the primary things BAPCPA’s backers hoped to achieve was to force more debtors out of Chapter 7 liquidation and into repayment plans under Chapter 13. The primary mechanism to achieve this goal was a set of eligibility thresholds for Chapter 7 based upon a person’s income – particularly BAPCPA’s now-infamous “means test.” Generally, if your income exceeds the median income for a family of your size in your state, or if your monthly disposable income is more than $100, you’re presumed ineligible for Chapter 7.

BAPCPA’s backers were betting these new rules would sharply reduce the number of Chapter 7 cases, so debtors would ultimately have to pay back more of their debt. But despite the sweeping “reform,” the numbers have remained pretty much the same. Between 1999 and 2004, before BAPCPA was enacted, the average percentage of cases filed under Chapter 13 was 29 percent. Initially, in the first year after BAPCPA, the percentage of Chapter 13 filings rose. But, by this year, the numbers had returned to pre-BAPCPA levels: in fact, during the first seven months of 2009, the average percentage of Chapter 13 cases was actually lower – 27.6 percent.

Here’s another interesting fact: The United States Trustee’s Office reviewed the Chapter 7 filings between October 17, 2005, and June 30, 2006, and determined that 94 percent of the debtors automatically qualified for Chapter 7 under the means test – based upon their income alone. Another 5.4 percent qualified when their expenses were taken into account. That is, 99.4 percent qualified for Chapter 7; only 0.6 percent were presumed abusive filers under BAPCPA’s new rules. This likely explains why the percentages of Chapter 7 and Chapter 13 cases have remained fairly consistent: the vast majority of those who file for Chapter 7 meet the new strict income requirements.

It also appears that BAPCPA credit counseling requirements have had little impact on the number of filings, other than to make the process more expensive and time-consuming. The Government Accounting Office issued a report finding that “by the time most consumers receive credit counseling, their financial situations are dire, leaving them with no viable alternative to bankruptcy.” In addition, the National Federation of Credit Counseling has found that less than four percent of potential filers choose not to file bankruptcy after attending the required counseling.

As far as the overall number of consumer bankruptcy filings, while the total number of filings dropped in the first year after BAPCPA was enacted, they have steadily climbed back to their historic levels. In fact, with the current economic downturn – which kicked in less than two years after BAPCPA came on line – so many people are seeking bankruptcy protection that the filings are beginning to rival the figures we saw during the mad dash to file before BAPCPA was enacted.

Much to the chagrin of those who footed the massive bill to push BAPCPA through Congress, the numbers show that the vast majority of those who need the protection of Chapter 7 will still seek that protection – and qualify for it. The numbers also suggest the backers’ central platform for marketing BAPCPA – that people were routinely abusing Chapter 7 – was groundless, or at least greatly exaggerated.

Bankruptcy is back! – despite the efforts of the banking and credit industry to stifle filings through BAPCPA. With the help of an experienced bankruptcy attorney, you too can use the power of bankruptcy to eliminate debts that have made your life unmanageable.

In North Carolina, contact the Law Offices of John T. Orcutt, with convenient office locations in Raleigh, Durham, Wilson, and Fayetteville. The firm offers a free debt consultation, as well as affordable payment plans for both Chapter 7 and Chapter 13 cases. Call (toll free) 1-800-899-1414 or visit www.billsbills.com for more information.

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Published Friday, September 11, 2009 @ 8:53 am

My parents filed bankruptcy when I was about fourteen. I remember being worried and a little frightened by the word “bankruptcy” and the unknowns surrounding the concept. But I also knew that it was not something my parents were entering into lightly and that every other option had been considered. It was the first time I really took notice of financial issues concerning our family.

They had bought a small business that seemed to be a melding of their passions and the promise of some freedom from the ‘rat race’ and anonymity of employee-hood. While they had a passion for the business, they were not very business savvy, and ended up being taken advantage of by many people they thought were loyal to them.

I wish I could say that my parents’ bankruptcy had no discernible impact on me, a shy, awkward teenager, and my siblings, but that isn’t true. There were big changes in our lives. In most cases, a bankruptcy filing will allow a family to continue living in their home by staving off foreclosure proceedings. But since the house my family lived in was located on land owned by the business, we ended up moving. We changed schools and made new friends. My parents went back to being employees.

Now, before you conclude that this is a sad story and that your kids would be emotionally or socially scarred for life if you filed bankruptcy, I should tell you about all the positive things that came of my parents’ bankruptcy. First, we moved to a nice neighborhood where I met two of my best friends. Before moving, our home had been very isolated and we spend a lot of time alone while our parents worked their business. Afterward, our home was filled with kids from the neighborhood.

Second, while my parents did return to being employees, they found better jobs than before and worked regular hours. When you run a small business, the lines between working and not working are blurred. The business becomes a 24 hour occupation. Third, the constant stress and anxiety that my parents were subjected to from trying to keep a sinking business afloat was gone. The fear, anger, and feelings of despair finally left our home and we were finally able to function like a normal family again.

Aside from the positive benefits bankruptcy affords by removing the financial strain that may be adversely impacting your family, here are a few more things to consider when you are thinking about bankruptcy and kids:

Bank Accounts: If you’ve opened a bank account for your children’s birthday money, gift money from relatives, or money they’ve earned, it’s important to make sure this account is set up correctly. If the account is just under your name or if you’ve drawn money out to pay your own bills, this account could be jeopardized by your bankruptcy filing. Of course, any 529 college savings plans are completely protected under North Carolina exemption laws, and the funds contained in those accounts will not affected by a bankruptcy.

Opening accounts under the Uniform Gifts to Minors Act (UGMA) or the Uniform Transfers to Minors Act (UTMA) can help protect these assets. The idea behind these two methods is that the “giver” remains custodian of these accounts until the minor reaches majority. Once the money is transferred into these custodial accounts, it can’t be taken back. The child is the true owner of the asset, and therefore the money does not come into the bankruptcy estate.

Child Support Payments. Debts resulting from child support will not be discharged by bankruptcy if you or an ex-spouse files for bankruptcy. In a Chapter 7 bankruptcy filing, child support obligations become top priority when assets are being liquidated. In a Chapter 13 bankruptcy filing, child support payments will be structured within the agreed repayment plan.

This bankruptcy protection for children applies whether or not a debtor is behind on support payments. The good news is that ex-spouses may find it easier to fulfill their child support obligations once the bankruptcy alleviates a majority of their other debt burdens.

If you’ve been wondering about whether your child’s future could be jeopardized by bankruptcy, a bankruptcy lawyer can examine all the details and clear any confusion. Remember, your family’s future is dependent on your financial viability. If you are buried beneath a burden of debt, protect your family by filing for bankruptcy.

The attorneys at the Law Offices of John T. Orcutt have helped thousands of families seek debt relief. In North Carolina, call 1-800-899-1414 to schedule a free initial debt consultation today.

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Published Sunday, September 6, 2009 @ 1:18 pm

Now that every bit of information about you is digitized, it is easier than ever to use your own data against you.  Scammers know that flashing a little bit of knowledge can disarm an otherwise savvy consumer, so don’t be fooled into falling for the latest scam just because someone knows your address, details from your purchasing history, or even your social security number.

One new scam to be on the lookout for involves fake rebate checks. Basically, scammers send you a check in the mail for a rebate on an item you may have purchased. It’s possible they may actually know that you purchased the item, but it’s also possible that scammers will stick with popular or “hot” items, the kind of stuff you see advertised on TV and magazines, and snag consumers by counting on coincidence; either that you bought the item or that you were planning to buy it. One such program looks like an official check from the manufacturer, complete with a trademark logo, but it’s actually a ploy to obtain your signature…and therefore your consent to sign up for junk you don’t want at prices you don’t care to spend. If you get a rebate check in the mail, be very careful to read all of the teeny tiny print―annoying, but not more so than having to fight a company to recoup money you’ve been tricked into spending.

And here’s another scam, this one involving fake bill collectors―as if the real thing weren’t bad enough! This particular set of bad guys will call you and pretend to be collecting on a bill, making threats and demanding payments for debts you never owed or don’t owe on any more. Reports about this scam are especially unsettling because the scammers seem to have a lot of information at their disposal on the people they are calling.

So how can you tell if the bill collector is the real thing or another scammer on the take? Scammers will often report that they’re employed for agencies that don’t exist, so if you’re unsure about why someone is calling, request information about the company and the caller, explain that you want to look into the situation and hang up. Afterward, do a little research; if you’re satisfied it’s a real company you can always call the number back. Another warning sign are the kinds of threats scammers make; for example, threatening to send people to jail if they don’t make payments. You can’t be sent to jail over debt, so this particular threat is a dead giveaway. Finally, remember not to be fooled just because the person appears to have information about you; don’t confirm that any of the information is correct, since that may be the objective of the call in the first place. Remember that you have the right to demand written proof of your debt, and you should do so at the first sign of trouble.

You don’t have to take abuse from fake bill collectors, but the real thing are no joke either. Unlike the scammers, legit agencies won’t stop calling you until you do something to end your debt problems for good. If you can barely keep your debts straight, making it easy for scammers to take advantage of your vulnerable state, bankruptcy could be the answer for you.

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Published Thursday, September 3, 2009 @ 9:43 am

The economy is so grim right now it’s hard to see the silver lining, but the good news about markets is that they rarely stand still forever. Even now, economists are slowly and cautiously becoming more optimistic about the situation, and consumers are gradually gaining back confidence. The housing market, for example, posted a quarterly rise in prices for the first time in three years, which may indicate a stirring of recovery. Still, there are a lot of homes out there not worth half what they were recently, and new construction has ground to a halt for the time being. Is there a silver lining in this one for you?

Well, there may be if you are not a homeowner and not looking to become one immediately. With so many properties sitting empty while the market waits for buyers to return, people who are not homeowners can enjoy a renter’s market. Suddenly there are many options for housing–nicer places at must lower prices. In some areas of the country, it is actually cheaper to rent than to buy at the moment.

If you are considering or already preparing to file for bankruptcy protection, you may be worried about your ability to rent a home, since so many landlord applications now require a credit check and/or ask about past bankruptcies. Don’t let such questions dissuade you from pursuing a rental you really like. Because this is a renter’s market, landlords may soften some of these requirements. Most landlords will be more concerned with your payment history with past landlords than whatever happened with your credit cards. If you have a good history with someone, ask him if you can use his name for a reference and offer to provide it for the new landlord when you apply. Other times you may be able to bargain with the landlord by offering to pay a slightly larger security deposit or providing other assurances of payment. Remember that as much as you need a place to live, landlords need tenants to make money from their real estate investments―or in this market, just to minimize losses!

Home ownership has some real advantages, and many people feel that it’s a waste of money to pay rent that will never translate to equity. However, home ownership comes with its own host of troubles, and renting can be a good solution, even if just in the short term. Home ownership is a big step, and you may want to allow yourself some breathing room (and an opportunity to rebuild your credit) before taking the plunge. If so, you might as well take advantage of a renter’s market!

If you already own a home, but are having trouble with the monthly payments, bankruptcy is a great option to get caught up on the missed payments. Unfortunately, some people wait until it’s too late to take advantage of these protections, and by the time they accept that bankruptcy is their best option, it may be too late for bankruptcy to help. That’s why it’s important to contact a bankruptcy attorney early in the process, before your finances are beyond repair. If you have conceded that it not financially feasible to keep your home, bankruptcy acts as a shelter from the after effects of a foreclosure, such as tax liability and deficiency judgments. Further, if foreclosure is imminent, a bankruptcy will stop the foreclosure from proceeding, even if you intend to surrender the property in the foreclosure. This strategy can buy your family some time to transition to a new living arrangement.

These are strange days for homeowners and those considering home ownership. If you have doubts about your future financial viability, it may be best to wait out the recession before plunging into the real estate market. If your income is already stretched to the max by debt payments, consider speaking with a bankruptcy attorney. A properly planned bankruptcy can put you in the best possible position to rebuild your damaged credit and pursue home ownership in the future.

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Published Saturday, August 29, 2009 @ 4:56 pm

Several months ago, in the heart of the recession with no recognizable signs of clotting in America’s collective financial blood loss, the government passed on a bill to allow millions of shaky mortgages to be subject to struggling homeowners’ bankruptcy petitions. Known as the Cramdown Bill, it would have given bankruptcy judges the right to modify, or “cramdown” mortgage terms, such as interest rates and principal balances, as part of the approval of a personal bankruptcy plan. The banking lobby launched a heavy campaign to defeat the cramdown provision, leaving families with limited options to save their homes.

Said Dick Durbin (D-Ill), “After two years of efforts that rely on banks to volunteer to rework mortgages, it is time to admit that the programs that have been put in place thus far to ease the crisis are clearly not working. With a simple change to the bankruptcy code … over 1.8 million families could save their homes in this country between now and the end of 2012, if the Senate could only muster the courage to help them.”

President Obama’s effort, the Making Home Affordable Program, while sound in nature but seriously flawed in execution, calls for a nationwide cooperative effort on the part of banks and the government to jointly reduce the pain of spiking adjustable mortgages through a system of application programs and financial incentives for lending institutions. Problems have arisen in the plan’s adoption because of its lack of marketing, cumbersome paperwork, and a lack of education about its benefits amongst those charged with carrying it out.

Those in 1600 Pennsylvania Avenue stated adamantly that their idea would help up to 4 million families. Yet, only 325,000 mortgages have been subject to approval under the plan and only 160,000 of those modifications are in a three-month trial period to test the families’ ability to afford the new monthly payments.

In the face of the White House’s plan, the number of mortgage modifications are drastically behind the rate at which foreclosures are being filed, a rate which is steadily increasing. Regardless of the evidence of increasing home sales and other signs of recovery, unemployment will remain a serious detriment to our economy’s well being for the foreseeable future. Now, a few congressional leaders believe that integrating cramdown measures into the nation’s recovery effort can replace a number of broken rungs on the ladder out of the economic basement.

Unfortunately, Durbin and a select few Democrats are a minority voice in the din of legislative tirades about universal health care and a slew of other polarizing, societal digressions. More pointedly, Obama has all put stamped out any lingering embers of the cramdown bill that threatened to flare up again.

Sadly, this is not a partisan issue that might be alleviated by some sort of closed-door agreement. Both The White House and Republicans are united against cramdown strategies, citing pressure from the lending industry. In response to Senator Durbin renewed call for reform, lobbying groups such as the Mortgage Bankers Association continue to insist that judicial modification is the wrong path. Meanwhile, President Obama’s mortgage recovery team is blitzing the lending industry with letters of encouragement from all angles in order to cement the plan’s success.

Let’s hope Durbin and his band of Cramdown comrades can kick up enough dust when riding through congressional committee meetings and Beltway saloons to make the rescue of the American mortgage a success. If not, we may all be on economic lock down for another few years.

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Published Friday, August 28, 2009 @ 8:36 am

What if you have money on deposit with a bank, and you owe the bank money for something totally unrelated―what can they do about it? Let’s say a bank had given you a loan at one branch and you’d fallen a bit behind on your payments. Then let’s also say you had money on deposit in a savings account, at another branch, but with the same bank? Can the bank just go into your account and take out what you owe them?

This scenario seems to prompt dueling intuitions; on the one hand, banks seem to be able to do whatever they want, and since they generally draft the contracts they sign with their clients, they definitely command the lion’s share of bargaining power.  On the other hand, something about this power seems wrong, intrusive. Shouldn’t the law protect us by giving us ultimate agency over our funds? Not paying a debt may be wrong, but it should still remain your choice to make, right?

Wrong or not, the bank would be acting legally in going into your accounts to take what you owe them because they have what is called a right of setoff. The bank has the right to “setoff” the debt owed to them with the funds held on deposit. The source for this right can usually be located in two places: first, in the contract you signed when you opened the deposit account; and second, under principles of common law. Essentially, the bank assumes the role of secured creditor when you make the deposit, even if the loan they originally extended to you was unsecured!

Thus, if you have money in any number of accounts, the bank can go rooting in there for a debt they claim you owe them. This includes checking accounts, savings accounts, money market accounts, and certificated of deposit (CDs). Generally speaking, the bank will do this for a debt owed them that is delinquent, where they have made a demand for payment from the debtor. However, the bank is not even required to give you advance notice that they are planning to setoff by deducting from your accounts. This can cause major trouble for you if you have outstanding checks, as the bank can take every penny in your account and then charge you overdraft fees when those outstanding checks finally clear.

Other complications can follow: Imagine that you’ve been waiting for your employer to direct deposit your paycheck, as with every pay period so you can pay your rent or make a payment on your car. If your bank decides to setoff, that money you were expecting will be gone before you even see it.

What if you unwittingly owe money to a bank who also happens to hold some of your money in deposit? Many people don’t realize that the stores that extend them credit for purchases are actually a middleman; the real lender is a bank. In this case, the bank is allowed to seize your funds, even though you were unaware of the peril.

As you can see, setoff gives banks a powerful tool to use against you…as if they needed another one! So what can you do to fight back when your money is at risk?

Unfortunately, even declaring bankruptcy won’t eliminate the bank’s power in this situation. The bank’s right of setoff supersedes the bankruptcy. That’s why it’s very important to change banks prior to filing bankruptcy, if you owe your bank money. Any money owed will then be discharged as a general unsecured debt through your bankruptcy. Speak with an experienced bankruptcy attorney to find out more. In North Carolina, contact the Law Offices of John T. Orcutt at 1-800-899-1414 to set up a free initial debt consultation. Or fill out our online debt questionnaire at www.billsbills.com.

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Published Wednesday, August 12, 2009 @ 9:25 am

Everything is so political today. From health care reform and recession bailouts to the multitude of Web sites, cable news stations and talking heads that cover the debates, there seems to be no escape from the issues that are shaping our country. However, in the thick morass of over-done analysis and futile attempts to put every issue, no matter how minute, into historical context, we have like no other time in history, lost sight of how we ended up where we are today. Not just financially, but socially, mentally and as a country.

Those thoughts made us realize that maybe it’s healthy for us to look back on things from time to time to get a better understanding of why someone may think the way they do or why an organization reacted the way it did to an important social issue. So, why not look back at bankruptcy? What are its roots? How did it come into being?

Read on …

Prior to America’s independence and the formal creation of the United States, colonies handled personal debt differently. There was very little consistency on day-to-day measures but when caught, most colonies would rely on the traditional British rule relative to handling debtors: prison. Yes, debtors prison was a very real thing.

Our country’s founders envisioned new ways of handling those in severe debt. Basically, changing bankruptcy laws was another method of departure from British rule. Understanding that personal debt was a real threat to the American way of life but still under pressure to address its punishment, a bankruptcy clause was added to the Constitution after the Constitutional Convention in 1787. This action prevented some states from creating “debtors’ havens” that would offer widespread protection for those who owed. The importance of this action was that it established bankruptcy into the constitutional vernacular. It made those in power understand the impact debt can have on a country trying to grow.

Eleven years after the ratification of the Constitution in 1800, Congress passed the first national bankruptcy law, the first iteration of what we have today. Still, creditors remained powerful and the law was repealed. States tried creating their own laws to deal with bankruptcy but Supreme Court rulings continued to deny their enactment. On a good note, 1833 saw the official end to debtors’ prisons but honest debtors still faced tough consequences as creditors remained the beneficiaries of bankruptcy laws.

Less than a decade after the first bankruptcy law was passed, Daniel Webster campaigned diligently on behalf of debtors and won over Congress in the passing of the Bankruptcy Act of 1841, which finally enabled debtors to benefit from bankruptcy. Almost, anyway.

Webster’s efforts were shot down three years later under intense political pressure applied by creditors and those in Congress they could influence. (Not a real departure from what happens today, right?) The law in favor of creditors came and went again before and after the Civil War. Finally, as the country was inching toward the turn of the Century, the Bankruptcy Law of 1898 was passed and in it lied the concept of unconditional discharge, which illustrated the collective notion that honest debtors needed a method of relief out from under the approval of others. Thus, modern bankruptcy code was born.

Granted, the law has fluctuated several times through the decades and in 2005, creditors won a seeming victory in the passing of the Bankruptcy Abuse Prevention and Consumer Protection Act (or BAPCPA). The Act made drastic changes to the existing bankruptcy code, with the hope that the new bureaucratic red-tape would decrease bankruptcy filings. However, as bankruptcy courts have sorted through the poorly drafted BAPCPA, they have generally construed the provisions in favor of debtors. For instance, pre-BAPCPA, it was more likely that unsecured creditors would receive a payout in a Chapter 13 bankruptcy. Post-BAPCPA, the majority of Chapter 13 cases pay nothing to unsecured creditors. The new Means Test, a gate-keeping provision to restrict high income earners from filing for Chapter 7, has no effect on the majority of filers. According to numerous studies, only about 20% of bankruptcy filers earn enough income to be subject to the Means Test. Less than 10% “fail” the means test, but these filers are usually still eligible for full discharge in a Chapter 13 bankruptcy.

It’s important to talk with an experienced bankruptcy attorney who thoroughly understands the new law and how to properly apply it to your case. In North Carolina, the attorneys at the Law Offices of John T. Orcutt are BAPCPA experts. Call today to set up a free initial consultation and find out how bankruptcy can work for you. 1-800-899-1414.

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Published Tuesday, August 4, 2009 @ 6:20 am

Sometimes life throws you the unexpected. If you’re living paycheck to paycheck, all it takes is one unanticipated expense to put you on the path to a truly disastrous financial scenario. It’s often the unforeseen emergency expense which starts the ball rolling. Soon you’re 2 or 3 months behind on the car payment, and repossession of your car or foreclosure becomes a very real possibility. That’s why it’s so important to talk to a bankruptcy attorney the moment things start to get out of control.

But even if your debt problems have sneaked up on you and now you’re facing an imminent repossession, a quick bankruptcy filing can put the brakes on the repo man. If your situation is critical, you can file what’s called a bare-bones or skeletal filing with a court to prevent imminent action against you; for example, if your vehicle is being repossessed or you are facing foreclosure, the court will allow you to file an emergency bankruptcy petition.

In a bare-bones filing, the court allows you to file your bankruptcy petition with only a minimum of the required set of documents. After this minimal filing, you will be given a set amount of time to gather the remaining documents. The amount of time can differ, but generally you will have up to 15 days to complete your petition. Once your petition is filed, you enjoy the benefit of the automatic stay, which stops creditors’ collection efforts in their tracks. This allows you to keep the car, stay in your home, and put the creditors back in their place.

The emergency petition should be filed only if absolutely necessary. If you can avoid doing so, it’s probably a good idea to give yourself and your attorney time to carefully file your case. This approach allows you to develop the best bankruptcy plan to help you out of your financial trap and into a fresh start. If you’re facing foreclosure, for example, you will have ample time to contact an attorney before the foreclosure sale. In these cases, don’t wait until the last minute! Car repossessions, on the other hand, can develop much more quickly and often necessitate quick action to prevent irreversible consequences.

If an emergency situation has caused you to get behind on your car or home, talk to an attorney early. An experienced bankruptcy attorney knows how the repossession process works and can best advise you on how to best protect your interests. Don’t wait another second, call today.

Durham bankruptcy. Raleigh bankruptcy. Fayetteville bankruptcy. Wilson bankruptcy.

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Published Sunday, August 2, 2009 @ 10:02 am

You know it and we know it: There’s a lot of stigma behind the word bankruptcy. We’re here to tell you: If you’re considering bankruptcy, there is nothing to be ashamed of and don’t let anyone tell you differently. Bankruptcy has helped millions of families and businesses emerge stronger, especially in tough economic times.

The federal bankruptcy code has long been a carefully negotiated, well-thought out safety net to catch the financial pratfalls so many Americans take on occasion. It’s an outstanding testament to the state of cooperation, foresight and spirit of assistance that characterizes our country. Despite the pervasive stigmas, there is very little collective impact to the nation’s economic well-being as a result of individual bankruptcy filings outside of a number of Americans becoming once again financially stable and viable contributors to society. The collective impact of bankruptcy is a positive.

There is no doubt that America has poor communities. There are people struggling today–and there always will be. But the bankruptcy code helps to significantly prevent more Americans from ending up on the street. And no, that comment is not a stretch. With careful planning, you can emerge from bankruptcy in relatively good shape emotionally and financially.

Think about it for a moment: bankruptcy allows you to keep the things you really need: your home, retirement accounts, life insurance assets, college funds, and even your car. If you have those items intact after a bankruptcy, you remain in far better financial condition than the large population of indebted Americans who never file for bankruptcy. Why keep taking the hits on your credit when bankruptcy can immediately stop the hemorrhaging?

A quick search of the blog will produce a number of posts about life after bankruptcy. There is a reason for that: studies show that, without careful guidance, those who file for bankruptcy can end up in the same situation again in the future. Our goal is to help you before, during and after your bankruptcy so that you emerge from your bankruptcy with a solid financial footing.

It is interesting that people still feel a certain amount of discomfort about the idea of bankruptcy. One should wonder if that sort of stigma wasn’t fostered, or at least perpetuated, by the credit industry. Given the practices of collection agencies and credit card phone reps, it’s easy to understand how miserable they can make a person feel about missing a payment. Despite all of the misinformation you’ve heard from the credit industry about bankruptcy, it is still the best financial safety net for you and your family. If you’re struggling to pay the monthly minimums or getting behind on your mortgage payments, don’t wait another day. Call an experienced bankruptcy attorney and learn about your options. In North Carolina, call the Law Offices of John T. Orcutt at 1-800-899-1414 to set up your free initial debt consultation. Offices conveniently located in Raleigh, Durham, Fayetteville & Wilson.

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Published Saturday, August 1, 2009 @ 7:35 am

The good news is that the California legislature finally passed a budget (including millions of dollars of budget cuts), and, we assume, will no longer be issuing IOU’s to its vendors in lieu of real US dollars. The bad news, is that the state’s financial problems are far from being over and that many of the cuts, not to mention its increasing unemployment rate and mortgage crisis, will affect the quality of people’s lives in the state for many years to come. Unfortunately, more state and local governments around the rest of the country are finding themselves in similar situations: as of February, Illinois was broke, too.

The distress isn’t limited to those government entities with long-held liberal political leanings, either, as many might assume. This week we read that traditionally conservative Arizona is looking to sell off its legislative halls and other public buildings in a sell/leaseback plan designed to raise some quick cash to help close its state shortfall estimated at $3.4 billion. The state is also looking at contracting out the operation of its prison system.

So what happens when state and local governments can’t pay their bills? Are such entities entitled to seek bankruptcy protection from their creditors the way private citizens and businesses are? In 1937, during the Depression, Congress extended bankruptcy protection to municipalities via the addition of Chapter 9 to the Bankruptcy Code.

In contrast, Congress has never extended such protection to the states themselves. Under Chapter 9 the term “municipality” is defined as a “political subdivision or public agency or instrumentality of a State.” The definition is broad enough to include cities, counties, townships, school districts, and public improvement districts. It also includes revenue-producing bodies that provide services that are paid for by users, usually in the form of tolls or other usage fees, such as bridge authorities and highway authorities, and public utilities. But actual states are left without the option of having a court restructure its finances as in a bankruptcy filing; state lawmakers would have to reorganize its spending and debt on their own.

While Chapter 9 allows for a similar process of debt reorganization for municipalities as Chapter 11 does for businesses, it makes no provision for liquidation of the assets of the municipality and distribution of the proceeds to creditors. Such a liquidation or dissolution would violate the Tenth Amendment to the Constitution which reserves to the states of sovereignty over their internal affairs. In fact, due the Tenth Amendment and the Supreme Court’s decisions in cases upholding municipal bankruptcy legislation under Chapter 9, the bankruptcy court generally is not as active in managing a municipal bankruptcy case as it is in corporate reorganizations under chapter 11. The bankruptcy court under Chapter 9 is generally limited to approving the petition (if the debtor is eligible), confirming a debt adjustment plan, and ensuring implementation of the plan.

So while municipalities can reorganize, or “adjust debt”, a state must find creative ways to muddle through. California has been borrowing money just to keep itself running. It has mandated its 238,000 state workers to begin “Furlough Fridays” – unpaid days off on the first and third Friday of every month through June 2010. The furloughs will save the state $1.3 billion over the next 17 months, but will also end up costing the state revenue as those workers pay less tax on smaller incomes. Other than education and debt payments, California has stopped making payments on nearly everything, including state agencies, public safety, payments for state purchases and tax refunds.

The trickle-down effect of stopped payments is busting the budgets of cities and counties across California. Riverside County, located between Los Angeles and San Diego, is seeking the court’s permission to stop providing state mandated services if the county does not receive state funding.

Usually individuals and corporations that find themselves in dire financial traits would first cut off their debt service payments. What if a state decided to keep itself going by not paying back money it has borrowed? Remember, states do not have the option of bankruptcy, and the people it owes money to could go to court to force the state to pay. The consequences of a default would make the state’s financial situation worse. That’s because it would greatly hinder its ability to borrow in the future. States generally survive by borrowing money. And as we are realizing with each passing day, that is a very bad idea.

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Published Friday, July 31, 2009 @ 9:38 am

Bankruptcy is a terrific way to take care of many kinds of debts. But you may have heard that not all debts will be discharged in a bankruptcy. As a result, and depending on the kind of debt you have, you may be worried that declaring bankruptcy would not really help you. What you may not know is how bankruptcy can help you with your debts, even the ones you can’t discharge outright.

Support obligations fall in this category of debt.  They include things like alimony and child support payments. Because these are priority debts, you will not be able to discharge them outright with a Chapter 7 bankruptcy, and, in addition, the automatic stay will not prevent collection efforts on past due support obligation payments.

Nevertheless, a Chapter 7 bankruptcy will help you get caught up and stay caught up on your support payments. First of all, when your unsecured debt is discharged, all the money you were spending on things like credit card payments will be freed for use toward your support obligations.

The protected status of support payments can be a good thing in the event that your case is a Chapter 7 asset case. In this rare kind of case, some of your assets will be liquidated to pay creditors. You probably would rather see the proceeds of your liquidated assets go to something like child support, rather than sending it all to unsecured creditors. In that case, your attorney should file a proof of claim on behalf of the support recipient, and this will ensure that most of the proceeds from the liquidated assets will be put to use toward your support payments.

A Chapter 13 bankruptcy will be even more helpful to you when it comes to past due support payments. Say you are really behind on your alimony payments. Your ex is pestering you all the time about the past due amount and you need some relief.  A Chapter 13 filing will allow you to work these payments into your repayment plan and allow you to catch up over the course of a 3 to 5 year repayment plan. Note that you must be careful to keep up with your ongoing post-petition payments; failing to make the new payments as they become due can put your case in jeopardy. However, with the help the repayment plan, you buy yourself time to manage old debts and therefore keep up with the new ones.

If you’ve been struggling to catch up on your child support payments and alimony, bankruptcy can help you get back on track. Even debts that won’t disappear in a bankruptcy can at least become manageable after a successful bankruptcy. You are probably aware already that unpaid support obligations can have very serious consequences; you could face hefty fines, problems with professional licenses, or even jail time, in addition to some very aggressive collection efforts. Besides all that, many people really want to make good on their support obligations, but their financial circumstances simply don’t allow for it. Because of this, it’s important not to wait until it’s too late to be pro-active about solving your debt problems. Talk to a bankruptcy attorney today before the situation gets out of control.

From the Law Offices of John T. Orcutt. Helping families with real debt solutions since 1995. Call today to set up a free initial debt consultation at one of our convenient office locations in Raleigh, Durham, Fayetteville or Wilson.

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Published Friday, July 24, 2009 @ 3:27 pm

Few of us learned much about balancing a checkbook, let alone managing our finances during high school. And for many years credit card companies have been trolling college campuses for fresh bodies to press into servitude. So it comes as no surprise that so many young adults are overloaded with debt. Young people, in their early to mid 20’s, are finding out how easy it is to get into debt, and how backbreakingly hard it is to get out of it. Add the present economy and virtual impossibility of securing a decent paying job, and you’ve got the recipe for a disillusioned, frustrated, and eventually hopeless generation.

It’s hard to imagine just starting out in life and being ‘in the hole’. Many of these debt-laden young people are still struggling through college, but many have given up on it. The stress of juggling classes, homework, limited job availability, and staving off the debt monster proves to be too much. They end up working two or three low paying jobs just to keep a roof over their heads and to service their debts.

It’s a catch 22: they can’t go back to school because they have to work to keep up their debt payments; but they can’t get ahead on repaying their debts because they can’t go back to school to get a better job and earn more money to be able to pay more than just the minimum payments and the usurious interest and fees added on. That’s no way to live.

Enter the concept of bankruptcy. Bankruptcy could help many of these young people get off the debt treadmill and get on with their lives. Now, bankruptcy will not be able to get any student loans discharged, (unless the person can show ‘undue hardship’), but it could remove the unsecured debt, thereby freeing up money that be used to pay back the student loan debt. Also, the Department of Education has launched a program, passed in 2007, which will reduce student loan payments to a lower percentage of income, or remove them altogether in the case of very low income. Better yet, if the person returns to school, their student loans can be deferred for as long as they remain a full time student.

But what about getting access to more money to pay college tuition and expenses after filing bankruptcy? Many people are under the impression that filing bankruptcy cuts off your ability to borrow money for a very long time. That’s partially true, but unlike most credit, government guaranteed educational loans are not based upon credit history or income. They are called Title IV loans, and they must be extended if you meet the statutory and administrative criteria. As long as there are no other eligibility issues, such as a student loan in default or drug conviction, the government is restricted from discriminating against those who have filed bankruptcy under § 525 of the Bankruptcy code , however, there are limits to the amount of government loans you can receive each year.

Although default on an existing educational loan may effect your ability to get a subsequent loan, the filing of a bankruptcy in itself should not. To be sure, filing bankruptcy will affect your ability to secure loans from private entities. But then again, those opportunities wouldn’t have been available regardless of whether or not bankruptcy was filed because negative reporting on a credit report would have caused the private loan application to be rejected regardless.

For many young people, filing bankruptcy is a necessary, if unexpected, step toward improving their future. But so is a college education. It is the only long-term solution to their financial woes. And government backed student loans can not be withheld because of a bankruptcy.

If you’re having trouble paying your student loans and other debt, consider bankruptcy as an option. Call the Law Offices of John T. Orcutt today to discuss your options. Offices in Raleigh, Wilson, Fayetteville, and Durham.

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Published Sunday, July 19, 2009 @ 5:13 pm

There are many reasons for filing bankruptcy. From sudden medical expenses to layoffs, We already know medical bills are a substantial reason people file and that even smart consumers have faced serious challenges as a result of uncertain mortgages.

Regardless of your reasons, life after bankruptcy offers you the chance to start in a new direction. So here are some important tips to help you become an economically-conscience consumer.

• Like buying shoes, don’t purchase cable channels unless they are on sale or part of a long-term promotion. Remember that cable companies rely on customers forgetting about the incentive’s termination to lock you into paying the increased rates. Mark your calendar on the day it ends and cancel. More than likely, they’ll continue to offer it to you. Don’t forget about the pay-per-view channels, which allow you to buy only one show or movie at a time.
• Like going to movies? So does most of America, which explains the $100 million opening weekends for just about any half-way decent film. Before even sitting down in your seat, provided a contingent of un-supervised pre-teens haven’t “saved” them for the rest of their sordid lot, it’s easy to spend $25.00 on the ticket and a trough of popcorn. You can see the same thing everyone else does for $5.50 by going on a weekend afternoon and not buying any of what’s lurking behind the counter. Not only will you avoid the calories, matinees are also the best way to avoid the swarms of irksome youth that pay more attention to the next incoming text message than what’s happening on the screen.
• Try to avoid any sort of club that charges a monthly a fee unless you can reasonably justify that your use of its service will cover the fee. Fitness clubs, for example, literally bank on the fact that members will not use the facility. Most gym members cease attendance after six weeks. Instead, check with your employer about wellness discounts or reimbursements, as many companies today offer these incentives to promote employee health (and to avoid paying medical claims). If fitness is important to you, then find a gym that does not require long-term contracts. A good deal of Web sites charge monthly fees as well. Truthfully, there is very little content on the Internet that will not become public in very little time. Premium memberships and site subscriptions are rarely worth it. This goes for magazines, too. Use their respective Web sites for the articles.
• People find a surprising amount of money to be saved by curbing random food purchases. Snacks while getting gas, vending machine walk-bys and quick pit stops can really add up. Prepackaged food is extremely expensive by volume and rarely healthy. Avoid it whenever possible. Try to remind yourself that you paid for the food that’s at home. Just because it’s in your kitchen doesn’t mean it was free. Don’t waste your money or jeopardize your health.

This brief list is only a random selection of ways to save money. Remember though, every little bit helps, especially when you are trying to rebuild your financial wherewithal. There are countless ways to cut back and still live exactly the type of lifestyle that suits you and your family. Give it a shot.

From the Law Offices of John T. Orcutt. Convenient offices in Raleigh, Durham, Fayetteville and Wilson. Call 1-800-899-1414 today to set up your free initial consultation.

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Published Sunday, July 19, 2009 @ 4:08 pm

Gambling, not at all unlike compulsive spending in department stores, can often lead to serious financial pitfalls. Despite the prevalence of gambling addictions in America, debts incurred by too much betting were at one time non-dischargeable in bankruptcy. While the specifics of dischargeability with any type of debt should be explored with a bankruptcy attorney, it is important for you to know that if you count gambling losses as one of your reasons for bankruptcy, the odds are in your favor that it can be discharged.

Bankruptcy research suggests that close to 10 percent of all filings are connected to gambling. If you are already considered a “compulsive” gambler, then you may be one of the 20 percent who eventually file bankruptcy. If that is the case, know that the bankruptcy court is going to view your gambling debts much like it does other debts. That is, was the debt incurred with the intent to repay? For a compulsive gambler, that question is up in the air and where the answer lands depends heavily on how the money to gamble was obtained.

Not surprisingly, credit cards play a role in gambling debt. For those who walk in to a casino with a wallet full of positive cash and leave with it empty, no real debts have been incurred. The problem arises when a person uses a credit card for a cash advance. As you might imagine, the majority of bankruptcy lawsuits relative to gambling involve credit card companies.

Again, like most debt, a judge is going to use other facets of your financial history to determine your intention to repay the credit card company for the cash advance. Prior to filing, your attorney will want to know everything about your gambling habits, including how much of your debt was gambling related, how recent your gambling-related debt was incurred, and whether you reasonably believed you would be able to pay back your creditors. If there is an objection to your bankruptcy discharge, the court will thoroughly examine your gambling history to determine whether you acted with an intent to defraud your creditors.

Las Vegas may still be the world’s gambling mecca but one does not need to go far to find a casino. Whether on a riverboat, Indian reservation or just across our northern border, the opportunities to double down are plentiful. Thus, gambling losses are a common cause of bankruptcy.

Again, it’s important to understand that like the eligibility for discharge of other kinds of debt, a bankruptcy judge is going to weigh a number of factors in your financial history. First and foremost, if gambling is the primary driver of your reason for bankruptcy, it’s possible you have a problem. Your first stop then, should be getting help to put the brakes on your gambling.

Next, contact a good bankruptcy attorney. In North Carolina, call the Law Offices of John T. Orcutt at 1-800-899-1414. We can help you put into perspective your gambling debts and get you on the road to a more healthy financial future. You can bet on it.

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Published Saturday, July 18, 2009 @ 11:56 am

You may have heard that, even if you file for bankruptcy protection, you will not be able to discharge income taxes. This is simply not true. If the taxes are old enough, you may be able to discharge all or most of your tax debt. In many cases, tax liability will not be dischargeable because the debt is too new, as explained below, or because the taxes owed are in one of the categories which cannot be discharged according to the Bankruptcy Code.

As you may have discovered, the government has some powerful means to collect on taxes owed. Apart from taking tax refunds in order to apply them to taxes owed, the government can garnish your wages, place a lien on your assets, or even seize property like your bank accounts, your house, or your car. What’s more, the longer you let past due taxes lie, the harder it will become to pay them back, since the government may continue to add to the debt through interest and penalties. Understanding what past due taxes you will be allowed to discharge through bankruptcy can be tricky, so it is a good idea to speak to a lawyer about past due taxes in order to understand when and how bankruptcy can help you. Basically, you will be allowed to discharge those tax debts that meet certain conditions specified in the bankruptcy code.

The first condition is that the tax must have been due three years before the bankruptcy filing. Taxes for 2007 which were due on April 15, 2008 will satisfy this requirement in a bankruptcy filed on April 15, 2011 or later. But what if you receive an extension on the taxes? In that case, the three year period will date from the extension, not from the original due date. Thus, in the previous example, if you received an extension on your 2007 taxes until April 15, 2009, the taxes would not become eligible for discharge until April 15, 2012.

The second condition is that the tax return must have been filed two years before the filing of your bankruptcy. In reference to this rule, note that if you file an amended return, the two year period begins from the date of that amendment.

Third,  the tax assessment must predate the bankruptcy by 240 days.  Tax assessment is not always straightforward; it will generally depend on the practices of the relevant taxing authority. Generally, for federal taxes, the tax assessment will be around the date you filed the return if you file on time. In order to determine the exact date, you may obtain a copy of your tax transcript.

Another condition is that the tax return you filed must not be fraudulent. Finally, in order for a tax liability to be discharged, you must not be found to have attempted tax evasion.

If your past due taxes meet all these conditions, filing for bankruptcy can act as a powerful tool to tackle a difficult tax liability situation. A bankruptcy lawyer will help you take into account your possibilities for discharging tax liabilities. If you have significant tax debt, don’t rule out bankruptcy. Talk to an experienced bankruptcy attorney today to find out if you can discharge your tax liability once and for all.

If you are in North Carolina and have tax debt, call the Law Offices of John T. Orcutt today to discuss your options. Call 1-800-899-1414 to set up

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Published Friday, July 17, 2009 @ 6:12 am

A Chapter 13 bankruptcy plan is a powerful financial strategy that allows you to systematically repay creditors under a court-approved schedule. It gives the thousands who file bankruptcy under this chapter every year a sense of empowerment, enabling them to satisfy debts and remain financially viable.

Nevertheless, it’s very possible that even with your new start, you can falter along the way. It is not uncommon for an emergency, whether related to health, employment or family, to derail you from the monthly payment plan. If that happens, you do have plan modification options, which include deferring a payment, lowering your monthly payment, requesting a hardship discharge or converting to a Chapter 7 bankruptcy.

Please note that if you are facing a situation like this, contact your attorney as soon as possible. There is a list of legal parameters that coincide with altering your Chapter 13 plan. It’s important to discuss your situation and let your attorney determine the best strategy to deal with it.

First, understand that if you miss a payment to the trustee, the court can dismiss the case, allowing creditors to begin contacting you again. And, you may not be able to file again within 180 days. However, some courts may rule that the inability to make payments does not constitute an intentional attempt to avoid a court order. But it varies, which is why you’ll need the consistent oversight of a bankruptcy attorney.

You can ask the trustee for a suspension of payments. They are often amenable to this in the face of sudden unemployment or medical emergencies. The payments you miss during the suspension are not forgiven, they are simply added on later. However, since a Chapter 13 can’t last for more than 60 months, the suspension may cause you to have to modify the plan.

In a Chapter 13 modification, you will typically see a reduction in near-term payments but an increase as the plan continues. A judge is going to examine your case carefully and make a decision based on what he or she sees as a reasonable amount for the next term of payments. The court will take a renewed look at your income vs. expenses to determine if a modification is in your best interests. A modification also brings up the issue of value of non-exempt property, which was assigned when the first plan was approved. If the value increases, your new payments may very well have to reflect that.

A “hardship discharge” stops the Chapter 13 plan completely and eliminates the remainder of your scheduled payments. This sort of action will require some handiwork on the part of your attorney and you must prove in court that your inability to make payments is out of your control, a modification plan is not feasible and that you have made payments on nonexempt property based on their value on the date of the original petition. Generally speaking, you will need to prove some catastrophic circumstance, such as a massive personal injury, or some other uncontrollable event that has made it impossible for you to continue your Chapter 13 plan.

When a hardship discharge will not work, you can attempt a conversion to a Chapter 7 bankruptcy. One advantage to conversion is that debt incurred after you filed your Chapter 13 can be discharged, which is not possible in a hardship discharge. You need to be wary of how this may look to the court, however. If you attempted to file Chapter 7 first and failed the means test, a judge may see your attempt at conversion as a way to circumvent the law. As you can imagine, most judges will not be very sympathetic to this tactic.

If you’re having trouble with your Chapter 13 plan payment, it’s crucial that you discuss your situation with an attorney as soon as possible to avoid a dismissal. Don’t wait until it’s too late.

From the Law Offices of John T. Orcutt. Helping thousands of North Carolina families every year get back on their feet. Call 1-800-899-1414 to find out how bankruptcy can help you.

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Published Tuesday, July 14, 2009 @ 11:51 pm

There comes a time when you realize bankruptcy is your best option. That moment is not always the easiest to determine but look for it right around the time you decide it’s safe to ride out the financial monsoon. Chances are, if you are chest-deep in the flood waters and still think you can swim to safety, it’s time you hope for a life raft.

It is quite easy for those within your social circle to paint a picture of social disenfranchisement and shame when you tell them that bankruptcy has become a reality. But ignore it. Do you seriously want to further endanger the well-being of your family because of something a not-very-understanding friend believes?

Today, the bankruptcy decision is often rooted in a far broader swath of rationale than it once was. Medical bills, layoffs, mortgage rates and student loans are affecting the middle class like a bad flu. It is no longer 1950. It is monumentally more difficult to support a family of four on a single-salary auto shop job or teacher’s take-home. Houses cost more. Dependable transportation probably requires financing and few companies offer solid health plans. The bottom line is that a reasonably comfortable lifestyle demands a good amount of money. In this economy, that’s not easy to come by.

Industry analysis shows that most families put off filing for bankruptcy much longer than they should. The constant struggles to stay afloat and avoid the stigma do rarely more than simply delay the inevitable while substantially augmenting household stress levels. At that point, the entire family circle is at risk of a meltdown. Additionally, many families lose assets along the way that could have been used to kick-start things after bankruptcy. Thus, it is critical to recognize your situation and own up to it. Perpetual denials of the benefits of bankruptcy only negate the law’s very purpose, which is to stop the feeling of uneasiness, the lack of productivity,and downward slide of your self-confidence. And, it’s about starting over.

Remember too, that bankruptcy is about preservation. It uses the legal system to empower you from losing everything. It can be a powerful tool to keep those essential items, like your home and auto, while shedding your unsecured debt. This puts you in a better financial position to stay current with your mortgage and your car payment.

Maybe you’re recently unemployed. Bankruptcy can put a freeze on the debt collection calls, and let you focus on what is most important: Finding a job and keeping food on the table.

Don’t let this be a time to cash in your retirement. Almost all experts agree that using retirement accounts to pay small amounts on large bills is foolish. Your IRA and 401k are completely protected under bankruptcy law. Don’t waste your future financial security just to make a monthly credit card payment.

Remember, file bankruptcy when you still have something left to protect. Like your family. And your sanity. It’s simply not worth waiting until the bow of the ship is in the water to fire a flare.

In North Carolina, contact the Law Offices of John T. Orcutt to discuss your bankruptcy options. 1-800-899-1414. Free initial debt consultation with offices in Raleigh, Durham, Fayetteville and Wilson.

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Published Monday, July 13, 2009 @ 1:05 pm

Sometimes debt collection can have a humorous side. Usually, it shows itself when the collection is happening to someone else. Schadenfreude aside, here are some collection agent slip-ups that AOL gathered from a number of their users. See if you can’t relate to some of their situations.

• A family who runs a retail business was disputing an invoice that showed they owed double their original order for supplies. Turns out, a sales rep had inadvertently doubled their order. The timing was terrible, as the rep soon after left on maternity leave and the company stated only she could repair the mistake. Regardless, the company sent the bill to collections while the family had thought it was being held for later reconciliation. When a collections agent reached the family’s seven-year-old daughter, the agent told her, in no uncertain terms, …”Because of your daddy, you are not going to be able to live in your house anymore, or have Thanksgiving with your family.” Nice.
• Collections activity was started on a couple whose car payment was only 10 days past due. When the family couldn’t be reached, the agency repeatedly called their daughter in-law, leaving messages with her to call about the late car payment.
• This is a good one relative to credit reports: One AOL user had a credit score of 750. When his wife entered graduate school, their debt to credit ratio increased. Once they reached about 45% after her graduation (when you can begin reducing it), American Express dissolved their $25,000 credit line, which had a zero balance. Thus, their percentage of credit to debt jumped to 60%, thus lowering their credit score substantially. Other creditors soon fell in line and their score dropped yet again.
• Another AOL customer received a phone call about a credit card bill that was delinquent 15 years ago for $300. At that time, the credit card company charged it off, citing it would be a mark on her credit. She accepted that. Well more than a decade later, they’re back, asking for $600 or it will be back on her credit report.
• Beware of “official documents.” One user included a story about a collections company that sent paperwork meant to look as if it was coming from an official city court office. Upon smartly following-up, she learned the court knew nothing of the action against her and had no record of her for anything.
• Here’s one surely driven by the commission structure collection agencies offer their employees for what they collect over the phone: When a woman was late with a credit card payment by more than a month, she admitted her mistake to the phone representative, saying she would hang up and pay it online immediately. The rep responded harshly, saying it could only be paid over the phone. Politely disagreeing, woman proceeded with paying online. This did not sit well with the phone rep, who promptly assigned the woman’s phone number to the collector’s auto-dial system which called every 15 minutes for the next two days.
• This sounds like a Hitchcock tale. When a woman’s ex-husband’s insurance company was slow to pay some medical claims, a collections agency began harassing her because they could not find her husband. Despite not seeing him in eight years, they began to wait outside her house to serve him with papers. One day, while roofing her house, she spotted someone behind a hedgerow with binoculars. The police had no problem putting a stop to the situation.

Do you have any stories like this? Speak with a bankruptcy attorney today. Bankruptcy can stop the collection calls and you may be entitled to damages for harassing creditor conduct.

In North Carolina, call the Law Offices of John T. Orcutt to set up your free initial debt consultation and find out for yourself how to stop the creditors for good. 1-800-899-1414.

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Published Saturday, July 11, 2009 @ 8:07 am

Chapter 11 bankruptcy is in the news a lot these days. Like individuals, more and more large corporations are struggling to weather the current economic downturn. Just think of GM, Chrysler, Lehman Brothers, and the like. Chapter 11 bankruptcy essentially does for corporations what Chapter 13 does for individuals: it allows them to reorganize their debts into an affordable repayment plan.

With all the talk about large corporations, you may think Chapter 11 bankruptcy is reserved just for them. But individuals and small business owners can also file under this chapter. You might be wondering why someone would ever do so. Well, in most cases, it’s because there’s no other choice.

Chapter 7 “liquidation” bankruptcy is a powerful tool for individuals, because it lets you completely wipe out a host of unsecured debts. But you have to satisfy the “means test” to qualify, which means your income can’t exceed a certain level — typically, the median income for a family of your size in your state.

If you can’t satisfy the means test under Chapter 7, or you want to keep certain property that would otherwise be subject to liquidation in a Chapter 7 case, Chapter 13 bankruptcy can be a great alternative. You can reorganize your debts into an affordable repayment plan and, at the end of the plan, the remaining amount on the debts is generally discharged. But there are limits to the amount of debt that can be included in a Chapter 13 plan. The figures change every few years, but right now there is a cap of $336,900 for unsecured debts and $1,010,650 for secured debts. (As of 5/23/09)

These limits don’t pose a problem for most people. For some debtors, though, the ceiling just isn’t high enough. Think of people of high net worth who suffer a major financial blow, or people carrying substantial debts tied to a small business on the verge of collapse. These individuals probably make too much to qualify under Chapter 7 and owe too much to qualify under Chapter 13. While these cases have been historically rare, with the boom-bust economic cycle we’ve experienced over the last several years, this scenario is likely to become more and more common.

This is where Chapter 11 bankruptcy can help. In Chapter 11, the debt limits of Chapter 13 go out the window. There are other advantages too. Unlike under Chapter 13, there is no five-year time limit for the repayment plan. Also, instead of having to make monthly payments like you would under Chapter 13, you can make the payments at different intervals — such as quarterly or biannually — if that would be more convenient. In addition, the court does not appoint a trustee to represent the creditors; the creditors deal directly with you. This can give you a greater degree of control over the process. On the downside, Chapter 11 bankruptcy is generally more complicated – often requiring a lot of time and effort on the debtor’s part — and significantly more costly.

The gist is, if you think you might not qualify for bankruptcy because of too much debt, or too high of income, it is crucial to seek the advice of an experienced bankruptcy attorney before ruling out bankruptcy. It could be that you really do qualify under Chapter 7 or 13 and it’s just a matter of understanding exactly what goes into the calculation when determining your income and your debts.

Call a bankruptcy attorney today to discuss your options. In North Carolina, contact The Law Offices of John T. Orcutt, with convenient office locations in Raleigh, Durham, Fayetteville, and Wilson.

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Published Friday, July 10, 2009 @ 8:10 am

While details of super-sized corporate failures, like GM and Chrysler, are being splashed across front pages of newspapers and websites, grabbing our attention and garnering an inordinate amount of debate, the reality is that the vast majority of commercial bankruptcies are filed by entrepreneurs and small-business owners. The first five months of this year have shown a 52% increase in the total number of commercial bankruptcy filings. On average, during the first six months of 2009, some 350 commercial enterprises file for bankruptcy daily — an increase of 240% from 2006, the first year after the bankruptcy law was changed.

Today’s economic landscape has proven to be especially toxic to small business owners. Factors such as higher gas prices, lower consumer discretionary spending, and the credit squeeze have all put a strain on small businesses. Ironically, the bankruptcies of the very large companies can also contribute to the pain. “When you have the GMs of the world filing for bankruptcy, they are canceling contracts and discharging debts that they owe to their suppliers,” says B. William Ginsler, a bankruptcy lawyer in Portland, Ore. “And those are small businesses that are less solvent than larger corporations.”

The decline of the transportation industry, which includes the auto and airline businesses, has been the biggest trigger in small-business bankruptcy filings, according to new data from an Equifax bankruptcy study. Downturns in the construction, manufacturing and retail industries are also contributing to the increase in filings.

These days, small businesses are working harder than ever to stay viable. But more and more are finding that the economy is an obstacle too onerous to overcome. Many small businesses owe so much money to creditors that there is no future. Bankruptcy is still the only option for many small-business owners who are hanging by a thread.

Bankruptcy doesn’t always necessarily mean that the company must stop operating. In many cases, the business may continue or be sold as a going concern after a Chapter 11 filing. Larger bankrupt companies, such as Six Flags, use Chapter 11 of the Bankruptcy Code to “reorganize” its business and try to become profitable again. Management continues to run the day-to-day business operations but all significant business decisions must be approved by a bankruptcy court. But bankruptcy reorganization under Chapter 11 requires significant time on the part of the owners and managers, and expert legal counsel.

Other small business owners may choose to file for Chapter 7 bankruptcy and shut their businesses for good. Under Chapter 7, a trustee is appointed to “liquidate” (sell) the company’s assets and the money is used to pay off the debt, which may include debts to creditors and investors. Often, a small business owner’s personal finances are so intertwined with those of the business that he would be left open to personal liability under Chapter 7. In fact, in most small business cases, the owner has personally guaranteed most of the business debt. In these cases, it makes more sense to shut the business down and file for personal bankruptcy under Chapter 7 or Chapter 13.

If you are concerned about your business in these tough economic times, it’s time to speak to a bankruptcy attorney. In North Carolina, contact the Law Offices of John T. Orcutt. Call 1-800-899-1414 today.

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Published Wednesday, July 8, 2009 @ 11:11 am

So you’ve had a few mishaps lately in your financial life– like just about everybody else in America. And you’ve been working really hard to keep up the juggling act: spread the minimum amount of money around to the maximum number of creditors to appease them until you finally get a break. But that pesky mortgage payment is mucking up your system. It’s so much larger than the rest of your bills, and, therefore, so much easier to fall behind on. The merciless late fees aren’t helping the matter. Before you know it, you find you’re four months behind and the prospect of ever catching up with the missed payments seems like a pipe dream.

It has become obvious that the juggling act just isn’t working anymore. The pressure by your mortgage company is mounting, and the severity of the situation hits you like a ton of bricks: you will lose your home if you don’t do something.

Since it is a secured debt, a mortgage comes with the risk that the lender will foreclose and actually have you and your family removed from the home. Few people ever imagine this could happen on the happy closing day when they signed that phone-book-sized stack of papers. But now, more than ever, many Americans are learning a lot more about foreclosure than they ever wanted to know.

In general, there are two types of foreclosure: ‘judicial’ and ‘nonjudicial’ foreclosure. A judicial foreclosure begins when the lender files a lawsuit against you. A nonjudicial foreclosure only requires the lender to file documents with the county clerk or another local official and mail copies to you.

After all of the requisite paperwork and notices are filed, a public auction, also known as a ‘foreclosure sale” is held and members of the public have the opportunity to bid on the foreclosed property. Once the sale is complete, the successful bidder can evict the borrower from the premises.

If you are at the precipice of foreclosure and the idea of standing at the curb with your personal belongings strewn around you is not a scenario you ever wish to find yourself in, you may want to look into filing a Chapter 13 bankruptcy. The Bankruptcy Code recognizes the importance of home ownership and the need to protect what is usually a family’s largest and most important asset.

Chapter 13 can help you catch up on back mortgage payments. Immediately after a Chapter 13 filing, the mortgage lender will be stayed (prevented) from foreclosing during the bankruptcy procedure. You may live in the home as the details are worked out and a plan is put in place for you to repay the arrears on your mortgage. The repayment plan includes past due principal and interest, and penalty fees, and usually lasts for a period of five years. The bankruptcy trustee may be able to challenge excessive fees and penalties imposed by lenders. This will put you in a better position to get current on your mortgage and keep your house.

During this time, you must also make the normal mortgage payments that are due, but remember, that Chapter 13 will increase your ability to pay by discharging some or all of your unsecured debt. It is often the unsecured debt– the medical bills, the credit card debt—that was at the root of the homeowner’s failure to keep current on the mortgage payments in the first place.

It is essential to contact a lawyer as soon as possible after foreclosure procedures are threatened. If you do not file a Chapter 13 before the foreclosure sale is imminent, you may also be tagged with additional fees for the foreclosure proceedings on top of everything else. Remember, Chapter 13 will not eliminate your responsibility to pay your lender what you owe under your mortgage contract, but it will give you breathing room to stave off foreclosure and save your home.

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Published Monday, July 6, 2009 @ 11:47 am

Are you hopelessly behind on your mortgage payments and wondering what to do about it? People in your shoes typically do one of three things: (1) try to convince the bank to just take whatever the property can fetch on the market (a “short sale”); (2) just let the bank foreclose; or (3) file bankruptcy.

Many people see filing bankruptcy as the “last-resort” of these alternatives. This is a mistake. Being seriously delinquent on your mortgage carries significant, long term risks that run far deeper than just losing your home. In many cases, filing bankruptcy will actually be the best and most efficient way to manage these risks and get past this difficult episode in your life.

Consider this: if you try to convince the bank to take a short sale or if you simply wait for it to foreclose on the property, you’ll likely have to wait months and months for anything to happen. These days, banks are just sitting on their duffs when it comes to the delinquent mortgages on their books. They’re swamped with past-due accounts and have little incentive to act since they’re just going to take a loss at the end of the day. While the bank sits around doing nothing, you’ll continue to be stuck in a frustrating financial limbo. As the months drag on, the delinquent payments, late fees, and compounded interest will keep growing – along with your sense of desperation – and your credit rating will sink further and further down the tubes.

What’s more, if you go the foreclosure route, the bank may be able to sue you for the remaining balance on the loan after the foreclosure sale. And, even if the bank cancels the debt, the saga may still continue. Canceled debt is normally treated as “income.” While the federal government has amended the federal tax laws to allow people to exclude such debts from their income through 2010, many states have not followed suit. If you live in one of those states, you’ll likely have to pay income tax on the amount of the canceled debt. The same situation applies in the context of a short sale – the debt the bank cancels after the sale is considered taxable income.

Now let’s consider what filing bankruptcy can do for you. If you file under Chapter 13, you could actually save your home. Your missed payments will be spread out over a 5 year repayment period. As long as you continue making your plan payments, the lender can not proceed with foreclosure. And, if you owe more on the home than it’s worth, you may be able wipe out those burdensome second or third loans that make the property “upside down.” While a Chapter 7 bankruptcy can’t stop a foreclosure, the automatic “stay” against collection activity will at least temporarily remove the threat of foreclosure, giving you more time to work out an alternative.

Even more, whether you file under Chapter 7 or Chapter 13, you’ll address all of your outstanding debts – not just your delinquent mortgage. Chances are, you’re dealing with other unmanageable debts – like credit card debt that you’ve been forced to rack up in your efforts to pay the unaffordable mortgage. Bankruptcy can wipe out these debts – for good. It will also protect you against liability for any deficiency on the loan, as well as tax liability for any canceled debt. And, as soon as your case is over, you can start over with a clean slate.

So if you’re dealing with a seriously delinquent mortgage, don’t just wait around hoping the bank will do something. Act now, and take control of the situation. Call a bankruptcy attorney and learn how the bankruptcy laws can help you resolve all of your unmanageable debts. The sooner you file, the sooner you can start rebuilding your credit, and your life.

In North Carolina, contact The Law Offices of John T. Orcutt, with convenient office locations in Raleigh, Durham, Fayetteville, and Wilson. Call (toll free) 1-800-899-1414, to set up a free, confidential debt consultation. Visit www.billsbills.com for more information.

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Published Tuesday, June 30, 2009 @ 4:45 pm

In an ironic twist of fate, a company’s whose claim to fame was helping people “avoid bankruptcy” has invoked bankruptcy protection itself. Debt Relief USA, a credit counseling agency based in Texas, filed Chapter 11 bankruptcy on June 18th. And it shut down all operations. According to its bankruptcy petition, DRU is currently saddled with $5 million in debt and has only $4.65 million in assets. At the same time, the company’s business practices are under investigation by state and federal authorities.

On June 24th, the bankruptcy court converted DRU’s filing to a Chapter 7 case. In other words, the company will be liquidated. Numerous clients who had hired DRU to assist them in resolving their debt problems still have money tied up in the company. DRU’s website simply says clients will receive “information” by mail about their cases. DRU’s attorney has stated the company intends to refund client deposits, subject to the bankruptcy court’s approval.

Unfortunately, getting their money back is just the start of the trouble for the clients that DRU’s bankruptcy has left hanging out to dry. They hired DRU to take of a problem, a serious problem: resolving their unmanageable debts. That won’t happen now. What’s worse, while these desperate folks were waiting around for some results, their financial condition could have only gotten worse: debts would have just kept piling up and creditors would have just continued collection efforts – only deepening their sense of despair.

The unfortunate fate of the displaced DRU clients is a prime example of the trouble with relying upon credit counseling agencies to resolve debt problems. These agencies promise to cut a deal with your creditors. But the industry is rampant with fraudulent, fly-by-the-night operations, who do nothing but take a hefty fee and then disappear. DRU itself is under investigation for questionable practices. And, even if you find a legitimate counseling agency, there’s no guarantee you’ll see any real results.

The counseling agencies may be more schooled in negotiating with creditors, but, at the end of the day, they have no more power than you do: your creditors simply have no obligation to work with them or you. And, if you’re unable to make the payments in the meantime, you can bet the late fees, interest charges, and collection calls will continue. You also need to keep in mind that even if the agency is able to convince your creditors to forgive some or all of the debt, that may be not be the end of the story: forgiven debt is generally considered taxable income.

Ultimately, bankruptcy is the only sure-fire solution to resolving unmanageable debts. Filing bankruptcy forces creditors to stop collection activities, immediately. And, you can wipe out most or all of your unmanageable debts, for good – without worrying about potential tax liability. So, if you’re buried in debt, call a bankruptcy attorney today and learn how you can rid yourself of these burdensome debts once and for all.

In North Carolina, contact The Law Offices of John T. Orcutt, with convenient office locations in Raleigh, Durham, Fayetteville, and Wilson. Call (toll free) 1-800-899-1414, to set up a free, confidential debt consultation. Visit www.billsbills.com for more information.

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Published Tuesday, June 30, 2009 @ 2:15 pm

There are at least three excellent reasons why should be very circumspect about reporting your assets accurately when you file for bankruptcy. The failure to list assets can have a serious impact on your case and your future ability to file. Be careful to advise your bankruptcy attorney of all assets, regardless of how insignificant the asset may seem. Consider these important reasons to accurately list your assets:

First, and perhaps most importantly, inaccurately reporting assets could land you in jail. Since almost everything you turn in in connection with your bankruptcy will bear your signature, fraudulent misrepresentation on these forms is perjury. At a guess, you’re not trying to go to jail, right? Thus, make sure those forms are accurate!

Second, if your bankruptcy trustee catches on to any funny business with your assets, he could ask the court to deny your discharge. This one doesn’t sound much better than jail time: you’ll have a bankruptcy on your record, you’ll lose the ability to declare bankruptcy for the next several years, and you get nothing for your troubles. Remember that a lot of the actions you take in connection to your assets can easily be discovered by a prudent trustee; a fraudulent transfer of title, for example, will probably be on the public record, where anyone, including your trustee or one of your creditors, could look it up. Playing games here is both wrong and foolish.

Third, accurately reporting an asset could actually help you keep it in the end. Remember that legal technicalities can shape the broad strokes of your case, and make those technicalities work for you! Here are a couple of situations in which your accurate reporting of assets can help you keep them:

One scenario involves an asset you claim as exempt. When you claim an asset as exempt and accompany it with an accurate description, the trustee and your creditors only have 30 days following the 341 meeting of the creditors to raise an objection. If they miss this deadline, the property becomes exempt even if the court could have challenged the exemption of that asset by objecting in a timely manner. This one can really turn out in your favor, and it is not a trick, it’s the way bankruptcy is supposed to provide efficient, workable solutions both for creditors and borrowers.

Even if you’re not claiming an asset as exempt, accurately describing it and listing it could help you keep it if your trustee fails to sell it while your case is still open. If this happens, the asset is considered “abandoned,” and it means that when the case closes,  the asset becomes yours once more. This is a great possibility you definitely want to reserve for yourself, but on the other hand, not reporting accurately could really hurt you. If you do not accurately describe an asset, your case could be reopened even years down the line. Imagine getting all the way through the bankruptcy process and beginning to rebuild your life only to have the case barge back into play years down the line. What a headache! Thus, keep this rule of thumb close when you file: make sure you accurately list your assets. Hire a bankruptcy attorney who will assess your total financial situation and advise you on protecting all of your assets.

From: The Law Offices of John T. Orcutt, with convenient office locations in Raleigh, Durham, Fayetteville, and Wilson. Call (toll free) 1-800-899-1414, to set up a free, confidential debt consultation. Visit www.billsbills.com for more information.

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Published Friday, June 26, 2009 @ 9:02 am

The sad fact is, these days nobody is immune to financial troubles. This includes people who have worked hard their entire lives, all the while looking forward to reaping the rewards of their hard work in a restful, stress-free retirement. So what happens to seniors when they run into serious financial trouble? The reality is that wherever there are people in trouble, unsavory parties are out there looking to cash in.  With nowhere else to turn to,  many cash-strapped seniors have become the focus for companies looking to hook clients into signing what are called “reverse mortgages.” It’s true that these arrangements can help some people, and some legitimate lenders do help seniors come to mutually beneficial arrangements.  But because this is regrettably not true across the board, it’s important to understand what a reverse mortgage is and the possible risks, before signing up.

A reverse mortgage allows a borrower to receive a loan secured by equity they own in their home. The loan doesn’t have to be repaid until the borrower moves from the home or dies. In order to qualify for a reverse mortgage, a borrower must generally be at least 62 years old. Essentially, these folks are encouraged to cash in the equity they’ve built up in their homes through long years of payments. A reverse mortgage allows a senior to borrow up to some set amount equal to a percentage of the home’s value that is owned free and clear by the borrower. She then receives regular portions of that amount, without having to make any payments on the loan for the time being.

This sounds like a great deal for some folks, and in fact it may well be for a few. However, nobody should rush into signing a reverse mortgage without considering all other options carefully. It’s true that no payments will be made on the loan for the time being, but the loan will have to be repaid eventually. Once the borrower dies, his heirs may be due for a nasty surprise when the lender on a reverse mortgage shows up to collect on the loan. In addition, it’s easy for borrowers to be taken in by unscrupulous lenders who do not adequately explain costs, fees and other liabilities associated with the mortgage. Also, the funds received from a reverse mortgage can affect benefits a senior is normally entitled to, such as Social Security or Medicaid.

Be sure to work with legitimate lenders. Make sure you avoid predatory lenders who target older folks and their home equity; some of these unscrupulous companies even try to trick seniors with tactics like modeling mailings to look like official government agency correspondence. Make sure you are very clear on all fees and terms before signing anything. For more information on this topic, consult the American Association of Retired People. They have excellent information about these “seductive” loan offers on their website: http://www.aarp.org/money/personal/reverse_mortgages/.

If you are struggling because of medical bills or credit card debt, it may make more sense for you to declare bankruptcy. Before you put your house on the line, it’s imperative to consult with a bankruptcy attorney in order to explore whether this option will offer you a better solution. Remember that declaring bankruptcy will often allow you to keep your home, and you may end up much better off having done so. A reverse mortgage could force you to give up some of the protections afforded by the bankruptcy code should you be forced to declare down the line.

Serving North Carolina residents, John T. Orcutt has helped thousands of seniors get real relief from debt. Call today to set up your free initial consultation. 1-800-899-1414.

Raleigh bankruptcy attorney. Durham bankruptcy attorney. Fayetteville bankruptcy attorney. Wilson bankruptcy attorney.

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