Tag: Miami bankruptcy attorney

Bankruptcy Law, Student Loans, Timothy Kingcade Posts

Arrest Made in the Latest Student Loan Debt Relief Scam

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The head of a well-known alleged student loan debt relief scam is now being forced to account for his actions. Brandon Frere, the CEO of Ameritech and two other companies is accused of engaging in scams in the student debt relief business. He was arrested last week at the San Francisco International Airport.

When he was arrested, he was on his way to Cancun, Mexico, and had $3,900 cash on him, as well as five blank checks from his business, two blank checks from his personal bank account, 10 credit cards, gift cards and his Social Security card.

The claims against Frere are numerous. He is accused of withdrawing money that the company was holding in escrow for its customers, meaning the money belonged to the customers and not to the company. He is also accused of transferring millions of dollars from the company into his personal account and spending this money on cars, travel and other luxury items.

Days before Frere tried to leave the country, a judge granted a motion for preliminary injunction filed by the Federal Trade Commission (FTC). The same day that Frere booked his Cancun ticket, he withdrew $400,000 from accounts that were associated with his companies. Of that amount, $179,000 was transferred to his personal account. The remainder was transferred to family members and lawyers. Prosecutors estimate that Frere’s companies collected somewhere up to $28 million from student loan borrowers over four years.

It is estimated that student loan debt is a staggering $1.5 trillion, held by 44 million borrowers. It is also estimated that somewhere around 40 percent of all student loan borrowers will default on their obligations at some point in time.

These types of scams are not unique. In fact, many of these companies exist, taking advantage of student loan borrowers who are in an extremely difficult situation and are desperate for relief. It is extremely important that a student loan borrower does his or her research before choosing a repayment plan or relief option. Many times, borrowers make simple mistakes, like trusting a company they should not otherwise trust, that only hurts them in the end.

Once they had the borrower’s money, the company would continue to charge the borrowers monthly fees, ranging from $49 to $99. The borrowers were under the impression that the company was making their payments to their loans, but these payments were not being made, leaving these accounts unpaid and in default.

Another illegal practice that Frere and others were accused of was encouraging their company representatives to push customers to exaggerate the size of their families to receive more favorable student loan terms.

The FTC and various state attorneys general have been hard at work on cracking down on these types of scams and illegal collection practices. The FTC claimed that Ameritech would lure student loan borrowers with mailings promising the borrowers that they were prequalified for debt-relief. The company collected fees ranging between $600 to $800 to prepare and submit documents on behalf of the borrowers who were interested in government repayment and forgiveness programs. The problem with this is that there are free services provided by the U.S. Dept. of Education that offer the same.

Click here to read more.

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.

 

Bankruptcy Law, Credit, Credit Card Debt, Debt Relief, Timothy Kingcade Posts

IRS Will Pay Tax Refunds During Government Shutdown

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The government shutdown has taxpayers nervous about what it will mean for their tax refund.  However, a statement made today by the acting director of the White House Office of Management and Budget, Russel Vought, said the Internal Revenue Service (IRS) will issue refunds even during the government shutdown.

It had been speculated that the IRS would accept tax returns, but refunds would be delayed until the government was fully functioning again. This situation is exactly what happened during previous shutdown contingency plans. However, the administration assured taxpayers that would not be the case this time around.  It is a decision that may reduce political pressure on Congress and President Trump to reach a deal to reopen the federal government.

Last tax season, the average tax refund was estimated at $2,899.  If you are struggling with debt, a tax refund can be your ticket to a fresh financial start and pay for the costs of bankruptcy.

Data from the Administrative Office of the U.S. Courts shows that Chapter 7 bankruptcy filings in March were 26 to 34 percent higher during March, and 15 to 25 percent higher during April from 2013 through 2016.

How do you know if bankruptcy is right for you? Consumers should strongly consider Chapter 7 if any of the following are true:

  • Problem debts, such as credit cards, medical bills or other high-interest loans, account for more than 50 percent of your annual income;
  • You are using credit to pay for everyday expenses;
  • Your credit cards are maxed out with no end in sight;
  • Your wages are being garnished;
  • You are being sued by debt collectors;
  • You are in danger of losing your home.

In the 2018 tax filing season, 18.3 million people claimed $12.6 billion in tax refunds within the first week of filing season alone. This “season,” normally begins at the end of January or early February, considering employers are required to mail W-2s by the end of January.

During shutdowns in years past, the IRS had stated that refunds could not be issued during a shutdown due to the agency’s interpretation of the Antideficiency Act. This act governed what type of work was allowable during a shutdown, which normally only included government work that was necessary to protect life and property. Previously, IRS work was not considered one of those categories.

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.

Bankruptcy Law, Timothy Kingcade Posts

How the Government Shutdown will affect Bankruptcy Courts

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The government officially began a partial shutdown on December 21, 2018 as a direct result of Congress not being able to enact an appropriations (spending) bill.  Negotiations between congressional Democrats and the Trump administration over the President’s demands for a border wall so far have not yielded an agreement. The bitter negotiations over funding for the border reached a milestone yesterday, now tying for the third longest on record without any end in sight.

Here is how the partial government shutdown will affect the United States Bankruptcy Court for the Southern District of Florida Operations.

  • Until further notice, the Court will continue operations and remain open during regular business hours in all divisions (Miami, Ft. Lauderdale, and West Palm Beach).
  • The Judiciary receives non-appropriated funding outside of appropriated funding from Congress and can continue its normal operations through January 11, 2019.  However, after this date, if there is not a resolution or a final budget set for fiscal year 2019, it can be expected the bankruptcy court will likely close on January 11, 2019.
  • The court’s case management systems – CM/ECF and ECF/Pacer will remain available, even in the event of a Judiciary shutdown.
  • The Miami Office of the U.S. Trustee is temporarily closed due to a lapse in federal funding.  However, a limited number of staff will be available to perform excepted activities (e.g., oversee appointment of trustees, scheduling of Section 341 meetings, perform activities related to means testing, and handle any emergency or urgent matters).
  • Section 341 meetings of creditors will be conducted as scheduled unless further notified.

Click here to learn more.  For the latest updates regarding the government shutdown and the affects it will have on the bankruptcy courts stay tuned to our blog.

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.

Debt Relief, Student Loans, Timothy Kingcade Posts

How Student Loan Debt is Different From Other Debt

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Debt plagues so many Americans today, but the type of debt varies from person to person. When it comes to debt collections or even bankruptcy, how the debt is treated depends on the type of debt. Student loan debt is one category that is treated differently than other common debt categories involved in bankruptcy.

Student loan debt has doubled since the most recent recession, which presents a major problem for many borrowers who are struggling to repay their loans, so it is extremely important to understand how student loan debt is treated in bankruptcy and collection matters.

Debts normally fall into two different categories: secured and unsecured. Secured debt is “secured” by either another person or an asset purchased, meaning if the consumer defaults on the debt, the lender has recourse to seize the asset.

Unsecured debt is not connected to another person or asset and commonly includes credit cards, personal loans, and medical debt. Student loan debt is also another form of unsecured debt, although it is not treated the same way as other unsecured debt. One major difference is the fact that student loan debt does not go away so easily.

If the borrower fails to pay on a student loan, the lender will likely initiate a collection action, which will result in a judgment against the consumer and likely a garnishment of that person’s wages. The same situation occurs with any other unsecured debt, but the difference is student loan debt is not easily discharged through bankruptcy.

It is possible, but the legal standard that needs to be met for this to be done is quite strict. The borrower will need to prove to the court that a good faith effort has been made to repay the loan, as well as proving undue hardship that is likely to continue if the debt is not discharged. It is not an easy burden of proof, and if the court does not discharge the debt, it will remain with the individual once the bankruptcy is over.

Student loans include both federal and private loans. Those loans that are federal are backed by the federal government and are disbursed by the U.S. Department of Education. On the other hand, private loans are backed by private lending institutions. The difference is critical in that federal student loans are not restricted by a statute of limitation when it comes to collecting on the debt.

In addition, federal loans have certain protections that private loans do not and offer different types of repayment plans in the event the borrower’s life circumstances change. For the most part, federal loan repayment terms are around ten years, but they can be extended or graduated or even income-based in terms of repayment. Additionally, some federal loans offer forgiveness programs.

Private student loans are oftentimes a last resort when it comes to financing education. However, many students max out their federal lending and have no choice but to supplement with private options given the cost of education.

It is currently estimated that somewhere around 40 percent of all student loan borrowers will default at some point on their student loans. Many different mistakes can be made when it comes to student loan repayment. If you believe you qualify for student loan debt relief, speak with an experienced bankruptcy attorney about your options.

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.

Credit Card Debt, Debt Relief, Timothy Kingcade Posts

How to Free Yourself from Holiday Debt

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On average shoppers spent approximately $1,007 this holiday season.  The retail trade association expected shoppers to spend between $717.5 billion and $720.9 in November and December, which is up over 4 percent from 2017’s total of $687.87 billion.  While shopping for the holidays can be exciting, the post-holiday period can be stressful. If you ended up overspending this holiday, we have some tips to help you get out of debt – FAST.

Review your financial situation.

You cannot eliminate debt without having a clear picture of where you stand financially.  Make sure you compile all receipts and documents related to your holiday expenditures.  Aside from the gifts, do not forget to include food and costs related to holiday entertaining. Many people who end up with high credit card bills at the end of the holiday season say they never planned on spending as much as they did. If you do not plan your expenses ahead of time, it can be easy to end up purchasing way more than you originally intended. Planning can go a long way in lowering your holiday spending costs.

Come up with a plan.

Write down all your debt amounts along with the interest rates.  Focus on the higher-interest rate debts first and consider paying more than the minimum to eliminate the debt faster. We offer some important tips for eliminating credit card debt. Some utilize the snowball method whereby they focus all their efforts in paying a higher interest card down, focusing on one card at a time. Another method is through the “island” approach where the consumer has two credit cards: one which is paid in full every month and the other card, which is a promotional no-interest or low-interest rate for big purchases, allowing the person to finance those large purchases over time.

Sell what you do not need.

With all the sales going on over the holidays, it can be easy to over buy. Most of these items either end up in the garage or saved for next year. Check through your closets and look for those unnecessary gifts and items you bought during the holiday that you can sell.  Also, consignment is a great way to get some extra cash post-holiday.  Everything from clothes you no longer wear, to baby toys, baby clothes and accessories- many of these stores are eager to give you cash for the same.

Pay More than the Minimum.

Consumers traditionally take approximately four months or more to pay off debt incurred during the holiday season. Many times, they are only able to make minimum monthly payments, which can prolong their ability to pay off the debt in full. Minimum payments often result in the person only paying the interest incurred that month, and if the cardholder is spending on top of the balance already owed, the debt can balloon quickly.

Get help.

Credit card debt is a major problem for many Americans. The ability to conveniently shop and pay the balance later has led to many people living in a cycle of debt, especially after spending over the holidays. The credit card system is designed for consumers to lose.

Credit card debt is one of the most common problems facing those with serious financial issues. With skyrocketing interest rates, unreasonable fees, harassing debt collection calls, penalties and never-ending minimum payments that do not even make a dent in your actual debt, the people we work with frequently point to credit card debt as among their most troubling financial issues.

At Kingcade Garcia McMaken, the number one piece of advice we give to our clients, family members and friends when dealing with creditors is to be honest.  If you are unable to afford payment- tell them that, never make a promise to pay and never give a creditor your bank account number or credit card information.

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.

 

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

Mistakes to Avoid Before Filing for Bankruptcy

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Making the decision to file for bankruptcy is never an easy one. Once you decide to file for bankruptcy, it is important that you avoid making mistakes that could impact your case or jeopardize your debts from being discharged.  Here are the top bankruptcy mistakes you should avoid before filing.

Filing too quickly

Bankruptcy is an excellent way to wipe out burdensome debt. However, you are limited to how often you can do so. The law places a limit on how often a person can file for bankruptcy. An attorney can advise you if the timing is right for bankruptcy and make sure your assets and income allow you to qualify for Chapter 7 bankruptcy,

Waiting too long to file

It can also be a mistake when someone waits too long to file for bankruptcy. In fact, a recent study revealed some of the downsides of waiting to file for bankruptcy. Many times, it is best to file for bankruptcy quickly in the event the filer wishes to avoid wage garnishment or has a lawsuit pending against them due to outstanding debt. Initiating a bankruptcy proceeding will allow an automatic stay to be issued, which puts an immediate halt to any collections actions that are ongoing at the time of filing. However, if the filer waits too long, once a wage garnishment is issued, he or she will not be able to eliminate that debt, which would not have been the case if he or she had filed before the final judgment was issued.

Incorrect or Inaccurate Information

When filing for bankruptcy, you are swearing under penalties of perjury that all information regarding your assets, income, debt, expenses and financial history is complete and accurate. If you make a mistake, fail to disclose an asset or file incomplete information, the bankruptcy court may dismiss the petition. If the court believes that you knowingly misrepresented anything at all, you could also be subject to criminal penalties, which includes fines even jail time.

Incurring more debt

Some people when they know they are going to be filing bankruptcy, run up additional debt on credit cards or take out loans. If you run up too much debt 70 to 90 days before filing on purchases that are not otherwise considered daily necessities, the creditor for this debt will likely object to a discharge by stating that you incurred this debt without any intention of paying it back in full. This practice is known as “presumptive fraud” and can result in the debt not being discharge.

Hiding assets

Another mistake some filers make before officially starting the bankruptcy process is hiding or moving assets to a friend or family member to keep them from being subject to liquidation. It can be tempting to want to hide an asset that would be subject to liquidation in hopes of keeping it safe, but this is considered bankruptcy fraud and can result in your case being dismissed and even criminal penalties, including fines and jail time.

Incoming assets

If you anticipate receiving a large amount of money or substantial assets in the near future, such as a sizeable inheritance or tax refund, it may be best to hold off on filing for bankruptcy. Once these funds are received, they may not be exempt from liquidation in a bankruptcy case. This money could alternatively be used to pay off creditors or attempt to get out of debt outside of bankruptcy. However, it is best to first consult with an experienced bankruptcy attorney if you believe you will be coming into money and are considering bankruptcy.

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.

Related Resources:

NOLO.com

Debt Relief, Student Loans, Timothy Kingcade Posts

Student Loan Debt Doubles Since the Great Recession

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Student loan debt is at a record high, according to a recent Bloomberg study. It is reported that U.S. student loan debt is at a total $1.465 trillion, and financial analysts believe that this debt figure is so high that it is now raising significant fiscal risks.  

Student loan debt was at $675 billion in June 2009 at the end of the recession, which means the total has doubled since that time. One problem that economists are pointing to involves the fact that more than 90 percent of all student loans are guaranteed by the U.S. Department of Education. In the event another recession hits, resulting in mass unemployment as well as defaults on student loans, the government budget could face a major loss.

Interestingly enough, Bloomberg’s study reported that student loans that were issued to students embarking on college in 2012 have defaulted on their student loans at a faster rate than any other group since the last recession. According to Bloomberg’s analysis, these loans have the highest cumulative loss percentage when compared to other loans, which means that these particular students have had a harder time keeping up with their monthly payments with their current incomes. This group of students could arguably be hit harder than others in the event another financial crisis occurs.

The individuals in this group are between the ages of 24 and 33 and are at a point in their lives when they are just starting out and beginning to establish their careers. They may have struggled with finding a job since unemployment was twice as high when they graduated as it is today. According to Bureau of Labor numbers, graduates in this group took three times longer than graduates today in finding a job following graduation.

Another cause for concern is the rising student loan interest rates. Currently, the interest rate for a direct student loan that was issued on or about July 1, 2018 and before July 1, 2019, has a basis point that is higher than those that were issued before 2012. Average federal student loan interest rates were: 4.81% for undergraduates. 6.38% for graduate students. 7.44% for parents and graduate students taking out PLUS loans.

Student loan debt is a widespread problem in the U.S. More than 2.7 million student loan borrowers have debt amounts in the six figures. Approximately 700,000 borrowers owe more than $200,000. Within this group, borrowers who were between the ages of 25 and 34 owed $489 billion as of the third quarter reported, while those who were between the ages of 35 and 49 years old owed $530 billion total.

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.

 

Bankruptcy Law

Bankruptcy Judge Grants $600 Million Settlement to Former ITT Tech Students

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A major victory was won against for-profit educational institutions that have been accused of predatory lending practices. A federal bankruptcy judge in Indianapolis gave final approval to a $600 million settlement that will affect about 750,000 former students of ITT Technical Institute.

The now-defunct institution was once based in a suburb of Indianapolis, Carmel, Indiana. The school had over 136 campuses in 38 states when it shut down in September 2016. This $600 million settlement cancels all the student loan debt owed to the school.

The agreement specifically deals with student borrowers who attended ITT Tech between the years 2006 and 2016. The settlement also returns $3 million to students who paid payments on their loan to the school after the school’s parent company, ITT Educational declared bankruptcy in 2016.

After the school closed in 2016, students filed claims against ITT Educational and ITT Tech, alleging that they were subject to “systemic unfair and deceptive practices” by the school. The class of students argued that ITT violated consumer protection laws and also were in violation of breach of contract.

This settlement agreement may wipe out the debt that was owed directly to ITT, the issue of federal and private student loans that ITT students took out to pay tuition still exists. Only 33 of the former ITT students have been granted federal student loan cancellation. This number pales in comparison to the 13,000 borrowers who are unable to pay their student loan debt and have applied for cancellation.

However, despite this fact, proponents of student loan reform practices praise the settlement and believe that it has done more for students who fell prey to the predatory tactics of for-profit schools like ITT Tech.

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.

 

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

IRS Found to Have Willfully Violated Bankruptcy Discharge, Ordered to Pay $175,000 in Damages

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The Internal Revenue Service (IRS) has been found to have violated a bankruptcy discharge according to a recent decision by the First Circuit Court of Appeals. Despite the IRS’s argument that it acted under a good faith belief that it had the right to continue to collect debts that were otherwise discharged in a bankruptcy.

The matter was decided in the case of Internal Revenue Service v. Murphy, 65 Bankr.Ct.Dec. 195 (2018). In this case, Murphy had received a bankruptcy discharge in 2006. However, despite this discharge, the IRS still attempted to collect on the debt on the belief that his tax obligations were not discharged under 11 U.S.C. § 523(a)(1)(C). This code section allows an exception to discharge for any tax if the “debtor made a fraudulent return or willfully attempted to in any manner to evade or defeat such tax.”

Murphy fought back under Section 7433(e) of the Internal Revenue Code, which allows the individual filing bankruptcy to petition the bankruptcy court to recover damages against the U.S. when the IRS has willfully violated the automatic stay or the final bankruptcy discharge.

In its defense, the IRS argued that that Murphy filed a fraudulent tax return to evade or defeat a tax, they had a right to try to collect on the debt from that debtor.

The lower court found that the IRS failed to file an objection prior to the bankruptcy discharge, both before or appropriately after the order was entered. The IRS continued trying to collect on the debt. It got so severe as the IRS levying insurance companies that did prior business with Murphy. In response, Murphy pursued a proceeding in bankruptcy court to get an official declaration from the court that the taxes were discharged in the original order.

Even though the IRS insisted that they were pursuing the debt in good faith because of tax evasion by Murphy, they never actually submitted evidence of evasion. The bankruptcy court granted a judgment for Murphy in 2010, declaring that his debts were, in fact, discharged. Even after this order, the IRS did not appeal this ruling. Instead, they continued to try to collect on the debt.

Murphy later filed another complaint against the IRS in 2011stating that by the levies the IRS issued in 2009, they were violating the discharge under Section 7433(e). The IRS fought back by saying they were not willfully violating the discharge, insisting that they were acting under the good faith exception. The bankruptcy court found in favor of Murphy, ruling that a willful violation includes the person acting “with knowledge of the discharge,” intending to take an action to collect on a debt the entity or person knows was discharged. The IRS did appeal this decision to Federal district court, who vacated the bankruptcy court decision but agreed with the definition of willful violation.

Eventually, after the case was remanded, the IRS settled the matter out of court in 2017. In the settlement, the IRS agreed to pay Murphy $175,000 in damages, only if it lost an appeal on the question of whether Section 523(a)(1)(C) provides a good faith exception to willful violation under Section 7433(e).

The IRS lost on its bet that the appeal would go in its favor. Instead, the First Circuit ruled that a creditor has willfully violated an automatic stay if it knew of the automatic stay or discharge and took an intentional action that violated the stay or discharge. The court ruled that a good faith belief in a right to property did not matter when determining whether the creditor’s action was willful. The court considered bankruptcy discharge to be equivalent to a violation of the automatic stay.

Looking back at the procedural history, the appeals court did note that the IRS could have but did not file an objection to discharge during the original bankruptcy proceedings. Further, they could have filed an adversary proceeding prior to collection to get an official statement from the court that the debts were not discharged. None of this was done in this case. This is not to say the IRS must appear in every bankruptcy case to have the taxpayer’s debts excepted from discharge. It may wait until the discharge is issued as a defense to collection efforts, but the IRS must prove some evidence and factual basis for their objection.

Click here to read more.

If you or a loved one 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.

 

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

How Filing for Bankruptcy Can Reinstate Your Driver’s License

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Filing for bankruptcy can provide different forms of relief for individuals facing financial crisis. Bankruptcy can help lift the burden that comes with facing collection calls, wage garnishment and related lawsuits, and provide you with a fresh financial start. However, many people are surprised to learn that you have options to have your driver’s license reinstated through bankruptcy.

The Florida Department of Motor Vehicles (DMV) can suspend your driver’s license for a number of different reasons, and one of those reasons for suspension can include debt, although many individuals are not aware of this as a possible consequence.  If your license was suspended due to outstanding debt, it is possible that bankruptcy can help eliminate this debt, allowing your license to be reinstated.

The most common reason for why an individual’s license would be suspended due to debt is if the person was involved in a car accident and either did not have insurance or was under-insured. If he or she was found to be at-fault for the accident and did not have the money to pay for the other person’s injuries or property damages, the at-fault driver could end up losing his or her license, especially if a judgement is entered against them.

The consequences of losing your license can be far reaching. Not having the ability to drive can put you in an even more difficult financial situation, especially if you depend on driving to get to and from work or take your children to school or daycare. If you do not have adequate public transportation available to get you to your job and are not able to rely on the assistance of others, not having a license can result in you losing your job, thus making your financial situation even worse. It can be nearly impossible to make the money to repay the debt, digging that person further into a debt hole.

If your driver’s license has been revoked due to your debt, you can either pay the debt in full, or, if you do not have the funds available, consider filing for bankruptcy. Debts that are associated with car accidents are often considered dischargeable debts and are thus discharged when the bankruptcy case is successfully closed.

As long as you include the car accident and insurance company in your list of debts, you can have your driver’s license reinstated through bankruptcy. However, it is required that your license be eligible for reinstatement. For example, if you were not carrying auto insurance before the accident you will have to show proof of insurance before your license is reinstated.

See what one of our clients has to say about having their license reinstated through bankruptcy and their debt burden lifted…

Posted by Daniel on AVVO.com on December‎ ‎11‎, ‎2018
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Driver License Back – Thanks to the professional work from Timothy Kingcade I enjoy the pleasure to have My Driver’s License back. Now to make money selling cars… Thanks…

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.