Americans now owe more on student loans than on credit cards, reports the Federal Reserve Bank of New York. Students are borrowing twice what they did a decade ago after adjusting for inflation, the College Board reports. Taxpayers and other lenders have little risk of losing money on the loans, unlike mortgages made during the real estate bubble. Congress has given the lenders, the government included, broad collection powers, including the fact that student debt cannot be shed in bankruptcy.

Count on paying your student loans

Many of our clients owe tens of thousands of dollars in student loans, either for their own education or their children’s, and this debt can be a real and crushing financial burden.

Most people understand that student loans are generally not dischargeable in a bankruptcy case.  Section 523(a)(8) of the Bankruptcy Code provides that student loan debts (including private student loans) are not dischargeable in a bankruptcy case unless the debtor can show that repaying the debt would impose an undue hardship on the debtor and the debtor’s dependents.  As my law partner Rick often says, if you’re deaf, blind, and missing all four limbs, you’ve got a 50/50 shot at proving undue hardship under this section.

Misleading information on discharging student loans

Interestingly, we’ve had perhaps five calls this fall and winter, from student loan obligors looking for an attorney to file a bankruptcy case and pursue a discharge of their student loan obligations.  Each one of them has cited research that they’ve done on the Internet that leaves them with the misimpression that an attorney should be able to discharge their student loan debts easily and cheaply.  Suffice it to say that we’ve not taken on this representation.

Here are several other posts we’ve written on student loans and bankruptcy.

Since you will have to pay your student loans at some point, a bankruptcy consultation with a qualified bankruptcy attorney can be extremely helpful.

Related posts:

1. Will Bankruptcy Prevent Me from Getting a Student Loan? Clients often ask us whether filing a bankruptcy case will...
2. Student Loans and Bankruptcy’s Automatic Stay This week the LA Times reported that 40% of student loan...
3. Student Loans and Bankruptcy On April 15 of this year The Private Student Loan...
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Just this morning, I e-mailed back and forth with a client who wants and needs to wait until this fall to file his bankruptcy case.  He said that he’s getting constant calls from bill collectors at work, which is obviously never good.  We discussed his right to mail a letter to his creditors, instructing them not to contact him by telephone.  The Federal Trade Commission has an excellent page advising of this right, and how to exercise it, step-by-step; it also answers many other frequently asked questions about the federal Fair Debt Collection Practices Act.

Yes, you can find templates for cease and desist letters online.  Use such templates at your discretion–this is not legal advice. 

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We see situations where people whose incomes have been cut will forego paying the second mortgage while staying current with the first. When they are able to resume payments on the second mortgage balance but the mortgage company is unwilling to modify their mortgage so that they can catch up on the missed payments, Chapter 13 is a court-supervised way to accomplish the goal.

(Mortgages are actually called “deeds of trust” in North Carolina, but we’ll use the term mortgages here.)

We have dealt using Chapter 13 to help homeowners catch up on missed mortgage payments (first and second mortgage payments) in other posts.

Three options in Chapter 13 for a second mortgage

There are three options for a second mortgage in a Chapter 13, where the debtor is current on the first mortgage:

1. Get caught up on the second mortgage through bankruptcy plan payments. The second mortgage arrearage, as of the date of the filing of the bankruptcy petition, is paid back in full through the plan payments, over time.

Chapter 13 cases typically involve proposing a plan to pay back creditors over sixty monthly payments (five years); a debtor can propose a plan to pay what’s owed as of the date of the bankruptcy filing back, in sixty monthly installments. At the same time, the debtor must make each current mortgage payment.

For example, if a Chapter 13 case is filed on October 1, 2011, and as of that date, the borrower is past due on a total of $12,000.00 in second mortgage payments, then the debtor can, through a Chapter 13 bankruptcy case, pay the $12,000.00 back over sixty months, but must at the same time pay each and every month all mortgage payments (first and second). Thus, in October, the debtor must pay his or her October 2011 first and second mortgage payment PLUS the Chapter 13 payment, a portion of which goes to paying the pre-petition second mortgage arrearage. This goes on for sixty months (the life of the Chapter 13 case).

2. Surrender the property and discharge the debt that is secured by it.  Sometimes, borrowers either simply cannot afford to pay second mortgage arrearages in a Chapter 13 case (see above) while at the same time remaining current on their mortgages, or decide not to make those payments because the debt exceeds the value of the property (it is “underwater”). These situations often cause a borrower to decide to give up (surrender) the property in a bankruptcy case and discharge the mortgage debts.

Depending on the borrower’s overall financial situation, the borrower may qualify for Chapter 7, discharging the debt and making no payments to the mortgage lender – or, be limited to a Chapter 13, discharging the debt and paying a fraction of what’s owed to the mortgage lender (the payment depends on the debtor’s individual financial circumstances).

The mortgage lenders will eventually foreclose on the surrendered property, and their recovery is limited to (a) the proceeds realized from the foreclosure sale and (b) any payment through the Chapter 13 plan. Because the property is being surrendered as part of the bankruptcy case, the mortgage debts are treated as unsecured (because the house goes through foreclosure) and are paid the same amount as credit cards, medical bills, and other unsecured debt, according to what the plan proposes that unsecured creditors be paid (generally less than 10 cents on the dollar, but the plan payment depends entirely on each borrower’s financial situation).

3. Strip the second mortgage through an adversary proceeding in the Chapter 13 case.   This is a complex subject that my law partner, Rick Mitchell, covered thoroughly in another post.

Evaluating the various ways of dealing with mortgaged real property is too complex for a blog post. This one is designed to give you hope for a solution that is monitored by the federal bankruptcy courts and that your mortgage lenders will probably not tell you about. Call a qualified bankruptcy attorney.

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Does this mean that there is nothing that homeowners can do to try to save their homes?  Unfortunately, in most instances the answer is yes.

However, there is a way that some homeowners can protect their homes by the use of something called lien stripping.

Lien stripping: great option for the few who can qualify

Unfortunately, lien stripping works only in a narrow set of circumstances.  There are three elements that must be present.

• First, there must be a first and second mortgage on the home.  A home equity line of credit (“HELOC”) is one form of second mortgage.
• Second, the value of the home must be such that there is no equity to secure the second mortgage.
• Third, if the homeowner did not have to pay the second mortgage payment, he or she would be able to afford the home.

If these three elements are present the homeowner may file a Chapter 13 bankruptcy reorganization and propose a plan that strips the second mortgage.  Stripping means that the second mortgage is removed as a mortgage lien on the home, and the second mortgage lien debt becomes a general unsecured debt that can be paid pennies on the dollar.

John and Jane Doe strip their lien

An example of lien stripping involves John and Jane Doe.  The Does have a home with a value of $175,000.  They have a first mortgage lien to Number One Lender Bank of $180,000 with a payment of $1,500 per month.  They have a second mortgage lien of $50,000 to HELOC Bank with a payment of $350 per month that is an interest only payment.  The Does can afford the first mortgage payment, but they cannot afford both the first mortgage and second mortgage payments.  In addition, they realize that the property is worth far less than what is owed on it, and since the loan with HELOC Bank is interest only, they are making little if any progress toward creating any equity in the home.

In this situation, the Does can file a Chapter 13 reorganization case and propose to strip HELOC Bank’s second mortgage lien.  The debt owed to HELOC Bank is treated in the plan as a general unsecured creditor along with other general unsecured creditors such as credit cards, medical bills and the like.

The general unsecured creditors are paid based on the financial ability of the Does to make payments and in many instances these payments can be five percent or less of the debt, with no interest, over a period of up to five years.  At the end of the plan, the bankruptcy court will enter an order stating that the HELOC Bank’s second mortgage lien no longer encumbers the Does’ home.

Who cannot use lien stripping

Simply having a second mortgage will not help a number of homeowners.  In order to have the ability to strip a second or third mortgage lien, there must be not one penny of equity securing the second mortgage lien.

In the example above, if we assume that the value of the property is $185,000 with all the other factors remaining the constant, there will be $5,000 in equity securing HELOC Bank, thus the Does cannot strip the lien.

Do not hesitate to attempt lien stripping

Consultation with a qualified bankruptcy attorney is essential for those thinking about lien stripping. If the attorney believes that the property is low enough to allow for lien stripping, it makes sense to proceed since creditors do not have incentive to fight the proceeding. After all, if the creditor prevails, and the debtor afford the payments to keep the home, the creditor can’t get paid anyway. In a closed case the call will go to the debtor.

The problem we usually see is when there is sufficient equity in the home to prevent lien stripping while at the same time, the homeowner cannot pay the first mortgage. This is truly cause for a bankruptcy consultation.

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If you are facing a foreclosure by your homeowners association, or are substantially behind on HOA dues and have concerns about how to resolve this, you are not alone and a bankruptcy filing may be a viable solution. A story in The Charlotte Observer last fall reported

The issue reaches far in North Carolina, with about half of the homes and condominiums in the state falling under the purview of such associations, according to the Homeowners Association of North Carolina, a for-profit group.

“A person can lose their home for being $100 behind or $200 behind,” said Victor Boone, head of the Raleigh office of Legal Aid, a nonprofit agency that offers representation and legal advice for the poor in civil legal matters.

A Charlotte case where a bankruptcy attorney successfully intervened

I have had two cases recently in which people needed help because of foreclosure cases filed by their homeowners associations.  While HOAs have long had the right to foreclose in North Carolina, these two situations have been unusual for me because it is far more common for the mortgage company to foreclose first.

In one case, the homeowner was current on her mortgage with a history of paying in full and on time.  However, she had a long-running dispute with her HOA over what she believed to be improper fines, and as a result had not paid the HOA any monthly dues or anything else for many months.  The HOA filed a foreclosure case, demanding payment of the fines, the fees, interest, court costs and attorney’s fees.

We were able to persuade the HOA that the fines were improper, and they were waived, leaving only the unpaid dues (and related interest, court costs and attorney’s fees).  However, the homeowner was unable to come up with the lump sum payoff required by the HOA to dismiss the foreclosure.  The foreclosure sale was conducted, and the HOA was the only one that bid on the property, buying it for less than $10,000.00.  The property was easily worth at least $75,000.00.   The sale became final and the HOA took ownership of the property by foreclosure deed.  Unless the HOA was paid in full, or was willing to allow the borrower to pay it back over time, the HOA could have the homeowner evicted.  Scary stuff.

File a bankruptcy case before the foreclosure sale becomes final?

The HOA used the foreclosures as a way to force the owners to pay up.  It often works, and that’s why they do it.  The only alternative to save the property, without negotiating with the HOA, is to file a bankruptcy case before the foreclosure sale becomes final.

If you are facing a foreclosure by your HOA, or are substantially behind on HOA dues and have concerns about how to resolve this, contact a qualified bankruptcy attorney.

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photo by carlos.a.martinez via Flickr

We’ve given this list to people who have no ability to pay for medical services but don’t qualify for Medicaid. Despite promises from health care reform legislation, many provisions of which will not be enacted for a few years, people need help gaining access to medical care NOW.

Although medical bills are very often part of a bankruptcy estate, there is no such thing as a “medical bankruptcy.”  When you file for bankruptcy protection, your medical creditors are in your filing alongside all the others, including credit cards, vehicles, real estate, business loans you guaranteed, etc.

Chances are that medical debt is part of a bigger picture

That said, medical bills are often a factor in the decision to file for bankruptcy protection. A Harvard Law and Business School study showed than 90% of medically related bankruptcies were caused by high medical bills directly or medical costs that were so high the family was forced to mortgage their home.

What if you could take care of your medical debt?  Would you be able to pay the rest of your bills?

If so, here are a couple of tips we found online for negotiating your medical bills:

Don’t take your hospital bill as gospel. Billing departments make errors. Let’s look at the case of Ron and Marilyn Hess, of Homer, Alaska. The couple was saddled with a $10,000 hospital bill following Marilyn’s $45,000 appendectomy. The couple, thinking their insurance should have paid for the entire procedure, asked for an itemized bill. They looked at every line and found procedures that weren’t performed. It took 18 months and the help of a health-care advocate, but Ron and Marilyn triumphed. They didn’t have to pay a dime [source: MSNBC].

Billing errors are very common. A doctor may request a procedure or a medication, than cancel it. Yet, the treatment still shows up on the bill. There might be a misplaced decimal point, or an extra zero, which can add hundreds and even thousands of dollars to your bill. Check the dates, too. You might not have been in the hospital or doctor’s office on the day the procedure was allegedly completed [source: Brody]. And unfortunately, there are unscrupulous health care providers out to defraud you and the insurance company. The National Health Care Anti-Fraud Association estimates that $68 billion — or 3 percent of all health-care spending — is fraudulent [source: Consumer Reports].

Keep this in mind when you begin to haggle: Hospitals, doctors, medical labs and other health care providers don’t want to turn your bill over to a collection agency, or write it off completely. It costs them time and money. That’s why it’s in their best interest to agree on a payment plan with you. In negotiating a plan, consider some of these tips that work well, whether you’re paying down your deductible or paying your doctor.

• Decided on a specific time when the bill needs to be paid in full, perhaps in three to six months. It’s important the timeframe be comfortable for you.
• Make sure you can afford the monthly payment.
• Don’t neglect other bills.
• You might need help in paying down your medical debt. If you can, go to the bank and apply for a personal loan or a line of credit. The interest rates will be much cheaper than putting the bill on a credit card.
• Pay your bill each month in a timely manner and stick to the payment plan.
• Make sure you get receipts from the billing department.

Be wary of those who claim they can wipe out your debts without bankruptcy. My partner Rick Mitchell and I always warn about so-called debt-relief or debt-settlement companies, and the Better Business Bureau shares our concerns.

I wrote a two-part series on the trouble with these companies.

The best way to understand your legal rights and remedies is through consulting with a qualified bankruptcy attorney. Yes, even if you do NOT want to file bankruptcy.

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Lincoln said "The man who represents himself has a fool for a client"

Unfortunately for those in financial hardship, filing for bankruptcy protection isn’t free.  Too often, we counsel people who need bankruptcy protection who haven’t saved the money for the court costs or attorney fees. And sometimes, we meet with new clients who may have been able to save a troubled business if they’d just gotten some legal advice earlier rather than later. This is usually because they have tried valiantly to pay their debts at any cost, instead of saving the money for bankruptcy protection or other legal help with their financial problems.

If these folks would have come in for a free bankruptcy counseling session we could have advised them how to conduct their financial affairs in order to best protect themselves, their families, their employees, and their financial future.

Individuals who are truly without financial resources may be eligible for bankruptcy assistance through Legal Aid of North Carolina.

Self-representation in bankruptcy

Corporations and partnerships filing a bankruptcy case must be represented by an attorney while individuals may represent themselves in bankruptcy court.  The US Courts website offers resources and a great deal of caution for those who pursue that path.

It is very important that a bankruptcy case be filed and handled correctly. The rules are very technical, and a misstep may affect a debtor’s rights. For example, a debtor whose case is dismissed for failure to file a required document, such as a credit counseling certificate, may lose the right to file another case or lose protections in a later case, including the benefit of the automatic stay.Bankruptcy has long-term financial and legal consequences – hiring a competent attorney is strongly recommended.  ~US Courts

Cheaper to do it right than to clean it up

Individuals who file for bankruptcy protection without a lawyer do so at their own risk. We have been approached by several individuals who filed their own bankruptcy petition, without a lawyer, only to find that they have gotten themselves into hot water with their bankruptcy trustee or the bankruptcy judge. It is usually cheaper and easier to do things right in the first place than it is to hire an attorney to clean up a mess once it’s been made.

Just as troublesome are the cases in which a pro se (a non-attorney representing him or herself) debtor unwittingly files a bankruptcy case and loses assets.

The risk of bankruptcy fraud

My law partner recently wrote an article on bankruptcy fraud, which is a cautionary tale for those who would like to represent themselves in bankruptcy proceedings.  Here’s what the US Courts has to say on the matter:

Debtors must list all property and debts in their bankruptcy schedules. If a debt is not listed, it is possible the debt will not be discharged. (Lists of the documents [including schedules] that debtors must file are set out on Form B200 (pdf), one of the Director’s Procedural Forms.) The judge can also deny the discharge of all debts if a debtor does something dishonest in connection with the bankruptcy case, such as destroying or hiding property, falsifying records, or lying. Individual bankruptcy cases are randomly audited to determine the accuracy, truthfulness, and completeness of the information that the debtor is required to provide. Please be aware that bankruptcy fraud is a crime.

At Mitchell & Culp, PLLC, you only pay us for an initial bankruptcy counseling session if you hire us to represent you.

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This proposed act becomes effective October 1, 2011, and applies to civil actions filed on or after that date. However, I presume that could change prior to passage. The way it’s drafted, it would not be retroactive – that is, it would not apply to old judgments, only to judgments obtained in cases filed on or after 10/1/11.

What wage garnishment means to debtors with judgments

While North Carolina has long allowed for wage garnishment for certain special or priority debts (such as unpaid child support and unpaid taxes), allowing ordinary judgment creditors to garnish North Carolina wages would be a significant change in policy.

Given the current political climate, we believe that this bill will pass, resulting in a dramatic increase in North Carolina bankruptcy filings.  Further, if the bill becomes law, it will likely spur credit card companies and other consumer collectors to file lawsuits much more quickly, in hopes of obtaining a judgment and garnishing wages.

Debtors, make haste

If you are concerned about the possibility of an unpaid debt leading to the filing of a lawsuit, now is the time to consult an experienced bankruptcy attorney about your options and your timeframe for those options.

Creditors, mark your place

Conversely, creditors may be well advised to take a wait-and-see approach on this bill, and delay the filing of lawsuits until after passage, so that judgments on them are eligible to be satisfied by wage garnishment.

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Rick and Heather are pleased to be recognized by the 2011 edition of North Carolina Super Lawyers , Rick as a Super Lawyer and Heather as a Rising Star.

Rick is recognized by his peers for excellence in the practice areas of Bankruptcy & Creditor/Debtor Rights (80%), Tax (20%). 2011 marks the fourth consecutive year he has been so honored.

Heather won recognition as a “Rising Star” in the practice areas of Bankruptcy & Creditor/Debtor Rights (50%), Bankruptcy: Consumer (40%), Business Litigation (10%).

“Rick and I are pleased to be included in this elite group of North Carolina attorneys, and hope that it gives clients confidence in our abilities,” said Heather.

Here’s a bit about the SuperLawyers selection criteria

Super Lawyers selects attorneys using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public, i.e., lawyers in private practice and Legal Aid attorneys.

The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.

Candidates are grouped into four firm-size categories. Those with the highest point totals from each category are selected. This means solo and small firm lawyers are compared with other solo and small firm attorneys, and large firm lawyers compete with other large firm lawyers.  Five percent of the total lawyers in the state are selected for inclusion in Super Lawyers.

Here’s a bit about the Rising Stars selection criteria

The selection process for Rising Stars is the same as the Super Lawyers selection process except that: 1) to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for ten years or less; 2) Candidates for Rising Stars do not go through step three above—peer evaluation by practice area. While up to five percent of the lawyers in the state are named to Super Lawyers, no more than 2.5 percent are named to the Rising Stars list.

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More luck than legal basis

Then there’s the story about a Florida woman who’s been fighting (and winning) a 25-year foreclosure battle. Her success is one that some clients bring up when they come in for their preliminary  bankruptcy counseling session.

(The Florida woman) Ms. Campbell has challenged her foreclosure on the grounds that her mortgage was improperly transferred between banks and federal agencies, that lawyers for the bank had waited too long to prosecute the case, that a Florida law shields her from all her creditors, and for dozens of other reasons. Once, she questioned whether there really was a debt at all, saying the lender improperly separated the note from the mortgage contract.

She has managed to stave off the banks partly because several courts have recognized that some of her legal arguments have some merit—however minor. Two foreclosure actions against her, for example, were thrown out because her lender sat on its hands too long after filing a case and lost its window to foreclose.

Can you afford to litigate?

If you’re thinking of  trying Ms. Campbell’s approach, we would NOT encourage you to do so without competent legal counsel. Beware, however, spending your limited funds on a lawyer to litigate your foreclosure. For the price of fighting your foreclosure with an UNCERTAIN outcome, you can probably afford a CERTAIN outcome with bankruptcy protection. After all, if you can’t afford your home, chances are you can’t afford to pay other bills. Bankruptcy protection takes your total financial position into consideration, not just your home. And there’s a chance you can keep your home AND cars after bankruptcy.

As a matter of fact, Ms. Campbell has now filed for bankruptcy protection herself, taking advantage of the automatic stay.

A Harvard law professor recently advised that the robo-signing problems will eventually be worked out — even though there is a freeze in many states. “This is likely to mean delays to most people who are in foreclosure. This is not a silver bullet.”

Don’t play games with your limited finances. Begin with a free bankruptcy counseling session and then make a decision how you will spend your legal budget.

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