Showing posts with label CHAPTER 13. Show all posts
Showing posts with label CHAPTER 13. Show all posts

Tuesday, December 29, 2020

These Student Loans Are Not Covered By DeVos’s Extension Of Relief

 

These Student Loans Are Not Covered By DeVos’s Extension Of Relief


Adam S. Minsky, Esq.

On Friday, Education Secretary Betsy DeVos announced an extension of the moratorium on student loan payments, interest, and collections to January, 31, 2021.

This additional month provides critical relief to millions of student loan borrowers struggling with repayment and averts an imminent “cliff” on December 31, when the relief was originally scheduled to expire. It gives Congress additional time to potentially extend the relief further into 2021 as part of larger stimulus negotiations. And it provides President-Elect Biden, who would be sworn in on January 20, with the opportunity to enact further relief through executive action if necessary.

But not all student loans are covered by DeVos’s extension. Here’s why.

The current moratorium on student loan payments, interest, and collections is a result of the CARES Act — bipartisan legislation that was enacted in March to provide economic relief in response to the COVID-19 pandemic. But the language in the CARES Act limited student loan relief only to government-held federal student loans. This includes federal Direct loans, and a small number of other types of federal loans that were acquired by, or assigned to, the U.S. Department of Education.

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But a large volume of student loans were excluded from the CARES Act’s provisions. Three main categories of loans are excluded:

  • Loans administered by the Family Federal Education Loan (FFEL) program. FFEL loans are federal loans originated by a private lender, but ultimately backed or guaranteed by the federal government. The FFEL program was discontinued in 2010, but there was still many borrowers who are repaying FFEL-program loans.
  • Perkins loans are federal loans originated by colleges and universities. They are neither Direct nor FFEL loans, and are not protected by the CARES Act.
  • Private student loans are purely private with no federal backing, and are issued and administered by banks and other commercial lending entities.

Because DeVos limited the extension of student loan relief to the existing moratorium under the CARES Act, the relief was not expanded to cover these other loan programs.

There is roughly $300 billion in outstanding student loans that are ultimately left out of the relief, according to the Student Borrower Protection Center. Of that, around there is $160 billion in privately-owned FFEL loans, $5 billion in Perkins loans, and $133 billion in private student loans.

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Congressional Democrats have been pushing to expand the CARES Act protections to cover FFEL loans and Perkins loans. Progressive lawmakers have also pushed for broad private student loan forgiveness, as well. The HEROES Act, which passed the House of Representatives on a largely party line vote in May, would have provided for up to $10,000 in private student loan forgiveness for borrowers in economic distress. But so far, these efforts have run into opposition in the Republican-controlled Senate.

A bipartisan group of senators unveiled a new, $900 billion stimulus bill last week designed to revive efforts to reach a compromise on broad economic relief before the end of the year. Included in this proposal is $4 billion dedicated to student loan relief. While this allocation of federal funds could be sufficient to cover an additional extension of the student loan moratorium further into 2021, specific details regarding student debt relief have yet to be disclosed, and it is not yet clear whether the current relief could be expanded to include the other types of student loans.

Wednesday, December 23, 2020

DeVos Extends Student Loan Relief Into 2021: What You Need To Know

 


DeVos Extends Student Loan Relief Into 2021: What You Need To Know


Adam S. Minsky, Esq.

Education Secretary Betsy DeVos has extended an existing moratorium on student loan payments, interest, and collections into 2021. The U.S. Department of Education announced the update in a press release on Friday. Here’s the latest.

For much of 2020, millions of student loan borrowers have not had to repay their federal student loans because of emergency pandemic relief under the CARES Act. This legislation suspended all payments and interest on government-held federal student loans. It also stopped all collections efforts — such was wage garnishments and offsets of Social Security benefits — for borrowers in default on their student loans. The student loan moratorium was originally supposed to end in September, but President Trump subsequently extended that relief to December 31.

Congressional Democrats have been pushing to further extend student loan relief well into 2021 as part of larger stimulus negotiations. House Democrats passed legislation that would push the student loan moratorium’s expiration to September 2021. But the Democratic-controlled House and Republican-led Senate have been at an impasse for months. President Trump suggested over the summer that his administration could further extend the moratorium through executive action, but he had not made any recent public comments to affirm this.

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The Department of Education just announced an extension of the student loan moratorium to January, 31, 2021. Citing its authority under the HEROES Act of 2003, the Department said, “Federal student loan borrowers will not be expected to make payments through January of next year, though they will continue to be able to do so and benefit from the 0% interest rate as they pay down principal. Non-payments will continue to count toward the number of payments required under an income-driven repayment plan, a loan rehabilitation agreement, or the Public Service Loan Forgiveness program.”

The additional month of relief for borrowers would avert an imminent “cliff” on December 31 — a potentially disruptive gap after the current relief expires, but before President-Elect Biden is sworn in on January 20, 2021. The resulting uncertainty has led student loan borrowers to scramble to budget for payments, apply for income-driven repayment plans, and consider whether to request hardship deferments or forbearances if they cannot afford their regular payments. Servicers would have started generating reminder notices for student loan bills as early as next week.

“The coronavirus pandemic has presented challenges for many students and borrowers, and this temporary pause in payments will help those who have been impacted," said Secretary DeVos. "The added time also allows Congress to do its job and determine what measures it believes are necessary and appropriate.”

A bipartisan group of senators unveiled a new, $900 billion stimulus bill this week designed to revive efforts to reach a compromise on broad economic relief before the end of the year. Included in this proposal is $4 billion dedicated to student loan relief. While this allocation of federal funds could be sufficient to cover an additional extension of the student loan moratorium further into 2021, specific details regarding student debt relief related to this stimulus proposal have yet to be disclosed.

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Furthermore, after President-Elect Biden is sworn into office on January 20, 2021, he could use executive action to enact additional student loan relief, as well. Consumer rights advocates and progressive Democrats in Congress are pushing Biden to use executive action to enact sweeping student loan relief, including an extended moratorium on payments as well as broad student loan forgiveness. Biden has indicated a willingness to enact some policy changes through aggressive executive action if necessary, but has been largely silent on his position regarding cancelling student debt via executive authority. He has expressed a preference for Congress to take action.

Friday, December 4, 2020

WHAT IS THE PROCESS? - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

 HACKENSACK 

BANKRUPTCY LAWYER


Understanding the bankruptcy process is an important part in determining whether to file for bankruptcy and getting a clear picture of what you are up against over the next several months. The timeline and process associated with filing for bankruptcy in New Jersey will vary depending upon whether you file a Chapter 7 or Chapter 13 case, but the basic process has been laid out below:



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You can help ensure that the bankruptcy process goes as smoothly as possible and that your debt is successfully discharged by working with an experienced New Jersey Bankruptcy attorney.

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Monday, November 23, 2020

CHAPTER 13 BANKRUPTCY - LAWYER IN HACKENSACK NJ (201) 646-3333

 Chapter 13 - Bankruptcy Basics


This chapter of the Bankruptcy Code provides for adjustment of debts of an individual with regular income. Chapter 13 allows a debtor to keep property and pay debts over time, usually three to five years.


Background


A chapter 13 bankruptcy is also called a wage earner's plan. It enables individuals with regular income to develop a plan to repay all or part of their debts. Under this chapter, debtors propose a repayment plan to make installments to creditors over three to five years. If the debtor's current monthly income is less than the applicable state median, the plan will be for three years unless the court approves a longer period "for cause." (1) If the debtor's current monthly income is greater than the applicable state median, the plan generally must be for five years. In no case may a plan provide for payments over a period longer than five years. 11 U.S.C. § 1322(d). During this time the law forbids creditors from starting or continuing collection efforts.

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This chapter discusses six aspects of a chapter 13 proceeding: the advantages of choosing chapter 13, the chapter 13 eligibility requirements, how a chapter 13 proceeding works, making the plan work, and the special chapter 13 discharge.


Advantages of Chapter 13


Chapter 13 offers individuals a number of advantages over liquidation under chapter 7. Perhaps most significantly, chapter 13 offers individuals an opportunity to save their homes from foreclosure. By filing under this chapter, individuals can stop foreclosure proceedings and may cure delinquent mortgage payments over time. Nevertheless, they must still make all mortgage payments that come due during the chapter 13 plan on time. Another advantage of chapter 13 is that it allows individuals to reschedule secured debts (other than a mortgage for their primary residence) and extend them over the life of the chapter 13 plan. Doing this may lower the payments. Chapter 13 also has a special provision that protects third parties who are liable with the debtor on "consumer debts." This provision may protect co-signers. Finally, chapter 13 acts like a consolidation loan under which the individual makes the plan payments to a chapter 13 trustee who then distributes payments to creditors. Individuals will have no direct contact with creditors while under chapter 13 protection.

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Thursday, November 19, 2020

WHAT SHOULD I EXPECT FROM A BANKRUPTCY ATTORNEY? - ATTORNEY IN NEW JERSEY (201) 646-3333

 


What Should I Expect from a Bankruptcy Attorney?

Bankruptcy, like most legal matters, is a process and the safest route is to have an attorney guide you through the process if you want to succeed.

A good bankruptcy attorney will give you peace of mind if they provide at least these four things:

  • An initial consultation to get an overview of your case
  • Advice on options available, including what type of bankruptcy to file
  • Completed paperwork necessary for filing bankruptcy
  • Representation when the case goes to court

The bankruptcy process begins with a 30-60 minute interview between you and a lawyer. If you are married, both of you should attend so that all questions can be answered honestly and accurately.

Making guesses about how much you owe and who you owe it to is not a good idea. The attorney will want some paperwork that backs up your answers on how many assets you have and how much you owe. Don’t hold anything back if you want an honest and accurate assessment of your situation.

When the attorney has enough documented evidence to evaluate your case, he should offer advice on how to proceed. A good attorney does not always recommend filing bankruptcy. It’s possible your problem could be resolved through less drastic means like debt settlement or maybe even a debt management program.

If your decision is to file bankruptcy, the next thing to expect from an attorney is filing paperwork with the court. Remember that the attorney is there to protect as many of your assets as he/she can, so chime in on what is most important to you.

Then, there is the matter of appearing before a judge. The lawyer should be experienced enough to give judges convincing evidence that you made some mistakes, have learned your lesson and will do much better financially if the judge will give you a second chance. This often is no problem in a Chapter 7 bankruptcy, but can get tricky in Chapter 13 when the lawyer must lay out a plausible payment plan that you can complete in less than five years.

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Do I Need a Bankruptcy Attorney?

Consumers may choose whether to hire an attorney or represent themselves in filing bankruptcy, but as the numbers cited above from the American Bankruptcy Institute clearly demonstrate, hiring an attorney is a huge advantage.

The math on this subject is overwhelming:

  • Only one in 25 consumers using an attorney loses a case when filing Chapter 7. One out of three who files on their own, loses in Chapter 7 cases.
  • Only about one in 50 consumers filing for themselves in Chapter 13, wins a case. Hire a lawyer and your chance for success is better than four-out-of-10.

The reasons are fairly obvious. Bankruptcy is a complex subject. Creditors want to get paid by consumers who say they don’t have the money. Lawyers on both sides are trying to convince judges that their client is right.

If you are not experienced in filing legal documents or arguing your case persuasively, you could lose on ridiculously simple mistakes. An experienced attorney knows what papers must be filed and what deadlines must be met. An experienced attorney knows the judges involved and what arguments they must make to get the result.

That is why hiring an attorney has so much higher a success rate that attempts to file on your own.

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Thursday, October 29, 2020

BANKRUPTCY MISTAKES - BANKRUPTCY LAWYER IN BERGEN COUNTY NJ (201) 646-333

  BANKRUPTCY MISTAKES


Do not make these mistakes.  They can cause your case to be delayed and even cause the judge to deny your discharge.


1. Don’t Pay Back Loans To Relatives Or Business Associates Before Filing Bankruptcy.


People who are thinking of filing for bankruptcy often feel the desire to pay back loans to friends and family before filing the petition. This is understandable, but it is a big mistake. Under bankruptcy law all creditors who are in the same position must be treated equally. Bankruptcy law views your debt to Uncle Bob as just like your debt to Capital One Visa. You can’t pay Uncle Bob first. If certain creditors are paid ahead of others this is called a “preference.” If a preference occurs the bankruptcy trustee can get a court order forcing Uncle Bob to return the money. This is not good for family harmony.
Even worse than a “preference” is a “fraudulent transfer.” If the court finds that money was paid to a relative in a deliberate attempt to hide assets, this can be found to be a fraudulent transfer. This can result in the complete denial of your discharge, and possibly even criminal charges. This is a very serious matter. If you try and hide things from the court you could end up going to jail.

2. Don’t Transfer Property Out Of Your Name.


Do not transfer ownership of valuable items to family members or others just before filing bankruptcy. If this is discovered the bankruptcy trustee will seek to reclaim this property and sell it for the benefit of creditors. Such transfers of title are frequently unnecessary anyway, because bankruptcy law often provides protection for your home, car, and other valuable items. As with everything in bankruptcy, the key is to be fully honest, disclose everything, and put your cards on the table.

3. Don’t Drain Your 401k To Try And “Catch Up” On Your Debts.


Most retirement funds are protected in bankruptcy.  You will ordinarily be able to wipe out all your debts and still keep your retirement accounts. It is not a good strategy to withdraw money from those accounts and use it to try and catch up on bills that you can’t pay. Most of the time bankruptcy is still required anyway even after you spend the money from the 401k, and then you will have the same bankruptcy but your retirement account will be gone. Don’t make this common mistake.

4. Don’t Wait To File Bankruptcy Until After A Foreclosure Or Repossession.


People often struggle for years under an impossible debt load until they are forced to take action due to a foreclosure or repossession. But this is a wasteful and painful road to travel when your debts are too heavy to carry. If bankruptcy is going to be necessary, it is almost always better to file it sooner rather than later. There is no benefit to be had by spending thousands of dollars and suffering tremendous stress and anxiety chasing after debts that can never be paid. Under U.S. law you have a right to a second chance and fresh start through bankruptcy. Your family will thank you if you get the information you need as soon as possible. Don’t wait until you are faced with an emergency.

5. On The Other Hand, Don’t Rush Into Bankruptcy When It Is Better To Wait.


Although it is usually better to file bankruptcy at the earliest time, in some situations it can be just as important not to file too soon. For example, if you are pregnant or you can see that certain medical bills are likely to arise in the near future, then it is probably best to hold off on filing. It makes no sense to discharge your credit card debts in bankruptcy and then immediately face crushing and unaffordable long term medical bills.
Remember, you can only file chapter 7 once every eight years.
Another reason to wait before you file is if you are expecting an inheritance or large tax refund. Under bankruptcy law a tax refund is treated like cash and depending on your state exemptions you may not be able to keep it. If you are expecting to receive cash of this nature it might be better to hold off on filing until after you receive the money. You can then use this money to pay down non-dischargeable debts like student loans and child support arrears. That way when the bankruptcy process is complete you will be left with a lighter burden as you move forward.
The point here is that sometimes in bankruptcy, timing is everything. There is nothing improper about using the time factor to your advantage within the boundaries of what is legal under the Bankruptcy Code. People do this all the time in relation to tax matters and no one considers it to be improper. You should check with your bankruptcy attorney to get advice on timing under the particular circumstances of your case.

6. Don’t Use Credit Cards Or Take Cash Advances Right Before Filing.


Once you have seriously considered bankruptcy as an option you should immediately stop the use of all credit cardsBankruptcy law does not allow you to run up credit card charges that you know you will not be able to repay. Credit card use in the months before filing bankruptcy can result in a denial of discharge for some or all of your debts.  It can even result in criminal charges.

7. Don’t Disregard Pending Lawsuits.


Sometimes people assume that if they’re planning to file bankruptcy, they don’t have to respond to or appear in court for pending lawsuits. This is not true.  If lawsuits are allowed to continue before the bankruptcy is filed, this can result in liens against your property. After the petition is filed you will be protected by the “automatic stay,” but until that time be sure not to ignore legal actions take against you.

8. Don’t Keep A Large Amount Of Money In Your Bank Account On The Day You File For Bankruptcy.


If you have more than a minimal amount of money in your bank accounts on the day you file for bankruptcy, the trustee may take it and distribute it to creditors. You should time your bankruptcy filing so that the lowest amount possible is in your bank account the day (and hour) that you file. Keep in mind that you cannot simply withdraw the cash to reduce your account. Rather, you must empty your account, as much as possible, by using it up paying normal living expenses and non-dischargeable debts.
As a related matter, it is a good idea to move your bank account if you have your account with the same bank that issued your loans or credit cards. Once you file bankruptcy that bank has the right to “setoff.” This means that the bank can take the money in your account to cover your loans on the day you file. Therefore, if the bank is your creditor you should move your money to a different bank before filing.

9. Don’t Fail To Attend Your Hearing(s).


In most cases, you must attend just one bankruptcy hearing in a chapter 7, and two in a chapter 13. If you don’t attend these hearings, the court could dismiss your bankruptcy.  This would mean that you would lose any legal protection you had from the bankruptcy and you would go back to the same position you were in before filing.

10. Don’t Withhold Information From Your Lawyer.


No one likes to reveal the details of their finances, especially when dealing with a bankruptcy. But it is very important to understand that honesty and full disclosure are absolutely essential. The law is actually on your side in bankruptcy. If you follow the rules, bankruptcy is a powerful tool that can give you a second chance and a fresh start.  But in exchange for that fresh start, bankruptcy law requires that you put all your cards on the table. Your bankruptcy lawyer must be aware of all the facts in order to protect your interests.  Lack of information creates serious risks.
It is also important to remember that you will sign your petition under oath, expressly stating that you have fully disclosed all relevant facts. If you hide facts you can lose assets, have your bankruptcy case dismissed, and even face criminal charges. Your lawyer also may withdraw from your case if you are not completely honest.
Remember, withholding information from your lawyer is never the right choice.  You will never obtain a better result by hiding information, and you will risk the possibility of serious negative consequences.

Tuesday, August 25, 2020

RELIEF FROM STAY IN CHAPTER 13 - ATTORNEY IN HACKENSACK (201)-646-3333

Relief from stay in Chapter 13

ATTORNEY IN HACKENSACK (201)-646-3333


A secured creditor of a debtor in Chapter 13 (except a creditor secured only by a lien on real property used as the debtor's principal residence) faces the prospect of a repayment plan forced upon it if the bankruptcy court confirms the debtor's plan. Confirmation usually follows the filing of a petition by fewer than six months. Thus, unless the secured creditor is concerned about uninsured property having significant value, or unless the secured creditor seriously doubts the likelihood of prompt confirmation of a plan, the expense of seeking relief from stay may not justify the benefit. Moreover, as suggested by In re Radden, it may be difficult for the secured creditor to prevail on a motion seeking relief from stay.

     As in a Chapter 7 case, a secured creditor with a consensual lien on a Chapter 13 debtor's residence will often seek relief from stay in order to foreclose if the debtor is in arrears on mortgage payments and if it appears unlikely that the debtor will be able to fund a plan that both cures arrearages and maintains ongoing mortgage payments.

A bankruptcy petition, once it is filed, immediately operates as an automatic stay, holding in abeyance various forms of creditor action against the debtor. Automatic stay provisions work to protect the debtor against certain actions from the creditor, including: (1) beginning or continuing judicial proceedings against the debtor, (2) actions to obtain debtor's property, (3) actions to create, perfect or enforce a lien against a debtor's property, and (4) set-off of indebtedness owed to the debtor before commencement of the bankruptcy proceeding.

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A court may give a creditor relief from the stay if the creditor can show that the stay does not give the creditor "adequate protection" or if it jeopardizes the creditor's interest in certain property. The court may give relief to the creditor in the form of periodic cash payments or an additional or replacement lien on the property.

Concerned that debtors may exploit some of the advantages of automatic stay provisions, Congress provided some relief to certain creditors, such as those creditors who have a secured interest in a single real estate asset, from the automatic stay in 1994. Congress required such debtors to either file a plan that has a reasonable chance of being accepted within a reasonable amount time or to make to each such secured creditor monthly payments in the amount equal to interest at a current fair market rate on the value of the creditor's real estate.

Also in 2005, Congress added two more exceptions to the automatic stay provisions. These exceptions concern landlords seeking to evict tenants. First, any eviction proceedings in which the landlord obtained a judgment of possession prior to the filing of the bankruptcy petition may be continued. Second, eviction proceedings filed after bankruptcy proceedings are exempt from the automatic stay if they involve evicting the tenant on the basis of using illegal substances or "endangerment" of the property.

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Pursuant to the new provisions of BACPA, certain restrictions were added to section 362 as to the automatic stay. If the debtor had a case dismissed in a case pending during the year before the bankruptcy case was filed, the automatic stay will expire to a certain extent unless the debtor obtains an order extending it within one month. If the debtor had two cases pending in the year prior to filing, the automatic stay does not go into effect unless the debtor files a motion.

Monday, August 24, 2020

WHAT IS THE AUTOMATIC STAY? - HACKENSACK BANKRUPTCY LAWYER (201)-646-3333

What Is The Automatic Stay?


HACKENSACK BANKRUPTCY 

LAWYER (201)-646-3333



In bankruptcy law, an automatic stay is an automatic injunction that halts actions by creditors, with certain exceptions, to collect debts from a debtor who has declared bankruptcy. Under section 362 of the United States Bankruptcy Code, 11 U.S.C. § 362, the stay begins at the moment the bankruptcy petition is filed. Secured creditors may, however, petition the bankruptcy court for relief from the automatic stay upon a showing of cause. As noted in a Senate Report:

The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors, stopping all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.

Notes of Committee on the Judiciary, Senate Report No. 95-989.

For example: a creditor with a claim that arose before commencement of the bankruptcy case cannot contact the debtor requesting or demanding payment, cannot request from the debtor security for existing unsecured or undersecured debt, cannot initiate a lawsuit against the debtor or pursue litigation activities in a pending lawsuit against the debtor, cannot attempt to enforce a judgment against the debtor and must act to stop enforcement activities that are already in motion (e.g. notify a sheriff to stop a wage garnishment or to refrain from a scheduled execution sale), cannot perfect a lien against property of the estate, cannot repossess collateral that is property of the estate, and cannot initiate or pursue non-judicial or judicial foreclosure against property of the estate.





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This debtor protection is truly automatic. No hearing is held, no judge's signature required. It is invoked simply by the stamp of the bankruptcy clerk's time clock when a petition is presented for filing. Creditors are bound by the automatic stay even before they know of it, but sanctions attend only wilful violations (see Bankr. Code 362(h)).

     There are some exceptions to the automatic stay (see Bankr. Code 362(b)) and the stay does not preclude a creditor from taking action against any entity other than the debtor (e.g. a co-debtor, guarantor, or insurer).

     The automatic stay is temporary. It terminates automatically upon the occurrence of specified events (see Bankr. Code 362(c)). Also, upon an appropriate showing in a noticed hearing in bankruptcy court, creditors may obtain relief from the stay that either annuls, terminates, or modifies the stay, or conditions continuance of the stay upon certain events, such as interim payments by the debtor to the secured creditor (see Bankr. Code 362(d) and Bankr. Code 361). A secured creditor may seek relief from the stay in order to pursue its state law rights against the collateral or may seek relief from the stay as a way to force a debtor to make interim payments to the secured creditor as a condition to the stay remaining in effect. 





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Relief from stay in a consumer Chapter 7


     Creditors secured by liens on personal property do not often seek relief from the automatic stay in a consumer Chapter 7 case.  With respect to much of the collateral securing debt in a consumer Chapter 7 case - - an automobile, household furnishings, or jewelry - - other solutions are common: (1) the debtor continues payments of the secured debt, uninterrupted by the filing of the bankruptcy petition; or, (2) the debtor reaffirms the secured debt and begins making payments under the reaffirmation agreement; or, (3) the debtor redeems collateral from the lien; or, (4) the debtor surrenders the collateral to the secured creditor.  If the debtor does none of the above, the creditor may simply wait until the grant of discharge and then pursue its state law remedies against the collateral.

     A secured creditor of a Chapter 7 debtor is most likely to seek relief from stay and not await automatic termination of the stay in three situations:

     (1) When property of significant value, such as an automobile, is uninsured or is otherwise subject to unacceptable risk;

     (2) When property of significant value, such as an automobile, is depreciating rapidly and the creditor has reason to believe that the debtor will not promptly surrender the collateral, reaffirm the debt secured by the collateral, or redeem the collateral from the lien;

     (3) When the creditor holds a consensual lien on a debtor's residence and the debtor has defaulted on mortgage payments and appears unable to maintain continuing mortgage payments or promptly cure arrearages.