Posts Tagged: ‘Chapter 7 Miami Bankruptcy’

Student Loan Borrowers Seeing Some Relief from Bankruptcy Judges

July 11, 2018 Posted by kingcade

Student loan borrowers are beginning to see some relief in bankruptcy court when it comes to discharging student loan debt. At the start of 2018, the Department released a statement that it was reviewing student loan bankruptcy laws with respect to how difficult it has been for borrowers to receive a discharge of their student loan debt in bankruptcy. Following this statement, some bankruptcy court judges have lessened the standards borrowers are held to when deciding on whether the loan obligation should be discharged.

Since the statement was made by the Department and subsequent request for comments on the current policy, no updates have been given as to whether the Department would be making official policy changes. In the meantime, bankruptcy court judges seemed to have taken a cue from the Department and are now making rulings to make loan repayment terms easier on borrowers for the meantime.

A recent Wall Street Journal report found that judges were more becoming more lenient when dealing with individuals saddled with student loans. Current college graduates are now entering the workforce with well over six figures in student loan debt. Unless these graduates land a job making an income that is comparable to this debt, these individuals soon find themselves unable to make student loan payments. Bankruptcy is meant to provide individuals drowning in debt with a way out, but the current policy with respect to student loan debt has dictated that this obligation stays with the debtor even after a bankruptcy discharge of all other debts.

The study looked at 50 current and former bankruptcy court judges, reviewing bankruptcy cases where the filer had student loan debt. The study showed that a number of the judges were very sympathetic to the cause of the individuals in front of them who were not able to pay their current student loan debt obligations. In fact, many of them understood the struggle all too well with student loan debt since they may also carry debt from law school, or they may be influenced by the struggles they see with their law clerks finishing or graduating from law school. It is estimated that the average lawyer holds just under $120,000 in student loan debt.

These judges are required to follow the legal standard that a borrower must pass the “undue hardship test,” which has traditionally been a strict standard. It has also been a standard that has never been clearly defined by bankruptcy law and has been applied inconsistently from court to court.

Congress has never given a clear definition for what undue hardship consists of, but many courts have used the “Brunner” test to determine what this means.

The Brunner test requires that the borrower show that he or she has made a good faith effort in repaying the debt, that the financial circumstance is such that the person cannot have a reasonable standard of living if he or she has to repay the debt, and this financial situation is likely to continue in the future.

Even though the judges’ hands may be tied by the legal standard, they may seek other, more creative solutions to help the borrowers ease their burdens. They may not be able to completely cancel the debt in all situations, but they have tried to help alleviate some of that burden. In some cases, however, some of the more sympathetic judges have completely cancelled the borrower’s past due debt obligation.

For borrowers who are struggling with student loan debt, relief options are available.  Many student loan borrowers are unaware that they have rights and repayment options available to them, such as postponement of loan payments, reduction of payments or even a complete discharge of the debt. There are ways to file for bankruptcy with student loan debt.  It is important you contact an experienced Miami bankruptcy attorney who can advise you of all your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

Related Resources:

https://studentloans.net/bankruptcy-judges-taking-it-easy-on-some-student-loan-borrowers/

https://lendedu.com/news/some-judges-push-to-ease-bankruptcy-rules-for-student-loan-debt/

 

Private Debt Collectors a ‘Most Serious Problem’ at the IRS – Here’s what you need to Know

June 25, 2018 Posted by kingcade

The IRS reactivated a program previously instituted where private debt collectors are used to collect upon unpaid taxes owed by individuals with delinquent tax debts. This IRS Private Debt Collection (PDC) program, however, has been identified as a serious problem, according to the National Taxpayer Advocate.

According to a recent report, taxpayers who had debts assigned recently from the IRS to these private debt collection agencies ended up entering into repayment agreements they simply could not afford. Approximately 43 percent of them were earning income well below their allowable living expenses.

The PDC program also ends up costing the U.S. Treasury Department more than it is worth. In fact, experts criticize these programs as the private collection companies are allowed to keep 25 percent of what they end up collecting, which means the programs cost the Treasury more than the money that comes in after all is said and done.

This brings the question to many taxpayers of how they know whether they are likely to be contacted by a PDC. The taxpayers who are normally chosen are those who have IRS debts that are considered by the IRS as an inactive tax receivable. A tax debt is declared “inactive” after the IRS removes it from the active case list due to either lack of resources or the inability to find the individual. If more than a year has passed since the taxpayer had any communication with the IRS for the collection of the over-due tax, the debt will be considered “inactive,” as well.

When a PDC contacts a debtor, they will normally request full payment of the debt from the taxpayer first. If the taxpayer is not able to make full payment immediately, the private collection agency will then offer the person an installment agreement. However, many times, the installment agreements that are offered and later accepted by the taxpayer end up being more than that person can handle.

What Agencies Have IRS Authorization?

Currently, four PDC agencies have been selected by the IRS to operate the private debt collection program. Only these four firms should be contacting taxpayers, and they include:

  • CBE Group in Cedar Falls, Iowa;
  • Conserve in Fairport, New York;
  • Performant in Livermore, California; and
  • Pioneer in Horseheads, New York.

Phone Scams

Phone scams have been on the rise after individuals have reported being contacted via phone by a person who claims to be affiliated with the IRS and receiving demands for immediate payment. The IRS will not call taxpayers to collect on a debt. Rather, any demand for payment from the IRS will be by a letter on official IRS letterhead, called a Notice CP40. The letter will tell the taxpayer that the tax debt has been assigned to a PDC. The PDC will then confirm in a separate letter that the tax case has been assigned to them. In both of these letters, the taxpayer should see a 10-digit identifier number in place of the taxpayer’s Social Security number. The purpose of this number is to allow for two-party authentication between the taxpayer and the PDC.

Other Red Flags 

The IRS has also provided other red flags taxpayers should be aware of when receiving any questionable communication from someone claiming to be from the IRS. These red flags include the following: 

  • PDCs will not ask the taxpayer to pay them for any fees or owed taxes, and they will not accept payments from the taxpayer. Rather, these companies will inform the taxpayer that any payments for these tax debts should be paid by check directly to the IRS or paid online through the IRS website.
  • If a payment is made by check, it should be written payable to the “United States Treasury.” The IRS nor the PDC will take payment in the form of a gift card, prepaid debit card or iTunes gift cards. Scammers have been known to regularly request payment in these forms.
  • If a taxpayer is contacted by a tax collector, the taxpayer should call the IRS to confirm first that the debt has been assigned to a PDC before working with that company.
  • The PDC cannot enforce collection actions against the taxpayer, including issuing a levy or filing a notice of federal tax lien. Instead, they must follow all IRS rules per the Fair Debt Collection Practices Act (FDCPA).

Tax Debts That Cannot Be Assigned

Lastly, the IRS cannot legally assign a tax debt to a PDC in cases where the taxpayer is deceased; the person is under the age of 18-years-old, or to a person in the military who is in a designated combat zone. If someone is the victim of tax-related identity theft, is classified as an innocent spouse and is currently involved in an exam, installment agreement or offer in compromise, he or she is exempt.

Click here to read more on this story.

If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

 

Why Waiting to File Bankruptcy Can Hurt You

June 21, 2018 Posted by kingcade

The decision to file for bankruptcy is never an easy one to make. There are a number of myths surrounding filing for bankruptcy, which can oftentimes lead people to wait.  It often can seem like an admission of personal or financial failure, and for this reason, many filers will hold off on filing for bankruptcy for years, allowing their financial issues to only worsen. In fact, the longer people wait to file for bankruptcy, the more likely they will end up struggling, according to a law review study recently published. By the time the individual files for bankruptcy, their personal life and well-being, as well as their financial situation will be damaged to the point where getting a fresh start can be extremely difficult.

Waiting Can Be Draining

The period of time before an individual files for bankruptcy is often referred to as a “financial sweatbox.” The filers are already under an immense amount of stress, are facing debt collector phone calls and lawsuits and are going without basic necessities to avoid the inevitable: having to file for bankruptcy. This “sweat it out” period can end up lasting for years before the person finally comes to the decision that bankruptcy is best for him or her. A recent Notre Dame Law Review piece titled “Life in the Sweatbox” focused on this period of time, showing how waiting it out can be more damaging than making the leap to file for bankruptcy sooner rather than later.

The study used data from the Consumer Bankruptcy Project, which is a long-term academic research project that focus on people who end up filing for bankruptcy, reviewing the reasons why they file, as well as the consequences. The data includes information from approximately 3,200 bankruptcy cases between the years 2013 and 2016. “Life in the Sweatbox” focuses on 910 of the 3,200 filers.

Of those surveyed, over 66 percent of them were determined to be “long strugglers,” meaning they had been in the sweatbox for over two years. Approximately one-third of them waited five years or more to file for bankruptcy. They reviewed statistics from 2007 which showed that the number of people who were “long strugglers” doubled in numbers.

The problem is the longer the people waited, the worse their financial situation became. Those who waited had half the median assets compared to other debtors who did not wait or did not wait as long. In addition, the median debt-to-income ratio of these long strugglers was over 40 percent higher than other debtors. Approximately 50 percent of the long-term strugglers were facing debt collection lawsuits while only 35 percent of the others were facing them.

It was discussed that the stigma that exists around filing is what keeps people from making that decision to file for bankruptcy. However, bankruptcy laws provide the ability for debtors to get a fresh start. Prolonging the decision to file only allows for assets to be depleted making it even more difficult for the person to get a true fresh start.

When to File for Bankruptcy

If a person’s debts are more than 40 percent of his or her income, it is recommended that he or she reaches out for financial guidance. Also, if the person is using debt to pay for basic necessities or other debts, this is another red flag that perhaps that person is in over his or her head.

A bankruptcy attorney can review what debts are crippling the individual. If they are unsecured consumer debts, including credit cards, personal loans or medical bills, these can all be wiped out in bankruptcy.  Lastly, if the individual is forgoing basic necessities such as food or medical care, it is highly recommended that he or she discuss options with a consumer bankruptcy attorney.

Click here to read more on this story.

If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

 

 

 

 

Judges Would Not Consider Forgiving Student Loan Debt until Now

June 18, 2018 Posted by kingcade

Bankruptcy judges have traditionally refused to forgive student loans as part of the bankruptcy process, no matter how severe the debt may be for the borrower. However, this mindset is slowly beginning to change as some judges are beginning to give some relief to borrowers who are drowning in student loan debt.

According to the Wall Street Journal, more than 50 current and former bankruptcy judges have been reported as being frustrated with the lack of relief they see borrowers receiving when it comes to student loan debt. These individuals come into bankruptcy with six-figure student loan balances but are oftentimes turned away due to lack of resources or the legal ability to help these borrowers.

Once such bankruptcy judge is U.S. Bankruptcy Court Judge John Waites from South Carolina who has expressed the belief that if the law is not going to change, it is up to the courts to offer that help.

It is reported that approximately 45 million individuals carry some form of student loan debt in the United States. The amount of this debt has jumped to $1.4 trillion, and the majority of this debt is backed by the federal government. Student loan debt has surpassed credit cards as the largest source of consumer debt, following mortgages. However, the problem is that most other forms of debt can be liquidated in bankruptcy. For years, the legal standard has made student loan debt essentially untouchable.

The current Presidential Administration is reviewing whether to fight the requests to cancel student loan debt through bankruptcy less aggressively than they have in the past.  However, until that happens, bankruptcy lawyers are noticing that judges are being more lenient when these requests are made in court.

The latest review was done in 2017 and involved judges’ ruling on student loan debt 16 times. Out of these cases, 12 of them ended with the judges preserving the debt with only three canceling. In one case, the borrower was granted partial relief.

Click here to read more on this story.

For borrowers who are struggling with student loan debt, relief options are available.  Many student loan borrowers are unaware that they have rights and repayment options available to them, such as postponement of loan payments, reduction of payments or even a complete discharge of the debt. There are ways to file for bankruptcy with student loan debt.  It is important you contact an experienced Miami bankruptcy attorney who can advise you of all your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.

 

 

 

Miami Bankruptcy Attorney Timothy S. Kingcade Named a Florida Super Lawyer 5 Consecutive Years

June 12, 2018 Posted by kingcade

Managing Shareholder, Timothy S. Kingcade of the Miami-based bankruptcy and foreclosure defense law firm of Kingcade Garcia McMaken has been selected for inclusion in Florida Super Lawyers 2018, in the practice area of consumer bankruptcy. This is the fifth consecutive year Kingcade has been selected to the Florida Super Lawyers list (2014-2018). The prestigious honor is awarded to only five percent of lawyers in the state.

Attorney Kingcade practices exclusively in the field of bankruptcy law, handling Chapter 7 and 13 filings and foreclosure defense cases for the Southern District of Florida.  As an experienced CPA and proven bankruptcy attorney, Timothy Kingcade knows how to help clients take full advantage of their rights under the bankruptcy laws to restart, rebuild and recover.

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement, representing the top 5% of Florida lawyers.  The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.  The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Miami-based Kingcade Garcia McMaken, P.A. was established by managing partner and bankruptcy attorney, Timothy S. Kingcade in 1996. The firm represents clients throughout the State of Florida in Chapter 7 bankruptcy and foreclosure defense cases. The firm is committed to providing personalized service to each and every client, clearly explaining the options according to the unique circumstances of his or her life. The office environment and the service provided are centered on a culture of superior client care for the financially disenfranchised. All partners and associates at Kingcade & Garcia, P.A. specialize in consumer bankruptcy and foreclosure and have dedicated their practices to this area of the law. Additionally, all attorneys and staff members at the firm are bilingual speaking Spanish.