Author Archives: Ryan C. Wood

About Ryan C. Wood

Ryan C. Wood is a California attorney practicing primarily in the areas of Bankruptcy Law, Business Law and generally seeking justice for under represented clients in the Bay Area.

Judgment Liens and Filing Bankruptcy

By Ryan C. Wood

One of the main purposes of filing bankruptcy is to obtain the bankruptcy discharge. A discharge of your debts in bankruptcy releases you from personal liability for the payment of the debts. There are certain debts that cannot be discharged in bankruptcy (such as child support obligations, student loans (Undue Hardship Discharge exception), recent tax obligations, etc.). In addition to these nondischargeable debts, if you have any secured liens on your property (such as mortgages or car liens), those liens survive the bankruptcy. If you do not pay for the mortgage or the car, the house or car can be foreclosed or repossessed because you used your house or car as collateral for the debt. What happens if you have a judgment lien prior to the filing of your bankruptcy case? Is this judgment lien enforceable after your bankruptcy case is completed and the order of discharge entered? It depends.

Judgment Liens on Real Property

Judgment liens attached to your real property prior to the filing of your bankruptcy case can be avoided if they impair your exemptions. Your bankruptcy attorney should be able to help you file a motion to avoid the judgment lien if this is the case. This can be done in either a Chapter 7 or Chapter 13 bankruptcy case. If the judgment lien is avoided the lien is extinguished and is not enforceable after your bankruptcy case is completed and the order of discharge entered. If the lien cannot be avoided because it does not impair an exemption and there is sufficient equity in your home then the judgment lien remains even after your bankruptcy case is completed. If you have no equity in your home, you owe more on your mortgage than the house is worth, you can strip off judgment liens when filing a Chapter 13 bankruptcy. Your bankruptcy lawyer can help you file a motion to value the real property and strip off the judgment lien along with other junior liens like second mortgages or equity lines of credit in a Chapter 13 bankruptcy case.

Judgment Liens on Personal Property

If you did not own any real estate at the time you filed your bankruptcy case then whether or not the judgment lien attached to personal property depends on the jurisdiction you live in. If the lien did attach to personal property then you can file a motion to avoid the lien if it impairs your exemptions. If the judgment lien did not attach to any personal property, the lien is extinguished once you receive a discharge of your debt. The judgment lien cannot attach to any property you acquire after your bankruptcy case is closed. If any judgment creditor attempts to collect on the lien it would be a discharge violation and the judgment creditor can be subject to sanctions from the court.

My Title Company Refuses to Close on my After-Acquired House

There have been instances where the title company refuses to close on a new house that is acquired after your bankruptcy case is completed until the judgment lien is satisfied. That is contrary to the bankruptcy laws, especially 11 U.S.C. §524 that states that a discharge in the bankruptcy case voids any judgment and operates as an injunction for any commencement or continuation of any collection activity against the bankruptcy filer. If the title company refuses to close on your house for this reason, you have several different options: (1) explain to your title company or their attorney that their actions violate 11 U.S.C. §524 and are sanctionable, (2) fire your title company because they do not know what they are doing and hire a new title company, (3) file your discharge order in the county where the judgment lien is filed, (4) contact the judgment creditor and have them release the lien, (5) if the judgment creditor tries to place the lien on the after acquired property they can be sanctioned by the court for a discharge violation, or (6) reopen your case to file a motion to avoid the lien. Please be aware that in some jurisdictions the motion to avoid lien will be denied because the bankruptcy filer did not own any property on which the judgment lien had attached before the bankruptcy and therefore there was no lien for the bankruptcy filer to avoid. See in re Hamilton, 286 B.R. 291.

Rapper DMX Files for Chapter 11 Bankruptcy Relief

By Ryan C. Wood

Rapper DMX filed for Chapter 11 bankruptcy relief on Monday, July 29, 2013 in the Southern District of New York. The bankruptcy case number is 13-23254. He filed his bankruptcy case under “Earl Simmons” aka DMX aka Dark Man X. He previously filed a Chapter 13 bankruptcy petition back in August of 2009, but the case was dismissed. He also filed a Chapter 7 bankruptcy petition in December of 2009 but did not receive a discharge of his debt.

According to his filed petition and list of 20 largest creditors he has debts like most other consumers: he has small medical debts, credit card collection and other types of collection activity. He also has multiple judgments filed against him that exceed over $400,000. He owes American Honda Finance a little over $21,000 for an unsecured car loan. His largest debts are his family support obligations: one where he owes more than $1.24 million and another where he owes a little over $84,000.

It seems like there are more and more professional athletes and movie stars seeking the advice of bankruptcy lawyers to file for relief. The mortgage meltdown took down a number of wealthy athletes the last few years. Child support and unpaid taxes are also issues that celebrities have issues with, especially retired athletes. Once they retire and they do not receive a check each month cash flow tightens up real quick. Too many fancy leased cars and extravagant homes do not help either. Hopefully DMX will bounce back strong as ever from his bankruptcy filing.

Everyone files for bankruptcy to obtain a “fresh start” in their lives. Everyone makes mistakes whether they are financial or otherwise. The key is recognizing those mistakes and doing something about it. Filing for bankruptcy is not a shameful action. Ask any bankruptcy attorney, the need to file bankruptcy can truly happen to anyone. It can happen to someone that was rich and famous and made some bad investment decisions. It can happen to someone that has to support a family of five working a minimum wage job living from paycheck to paycheck. I always tell my clients that it is a business decision they make when their debts exceed their ability to repay them. Everyone has the chance to correct their mistakes and should not be held prisoner by their debts for the rest of their life. Everyone deserves a second chance for a “fresh start.” Once you get rid of the toxic debts you are free to begin again like DMX will be able to.

Amended Tax Returns and Discharging Taxes in Bankruptcy

By Ryan C. Wood

In my previous blog articles I have explained that taxes are dischargeable in bankruptcy if they meet the following requirements: 1) the taxes were due more than 3 years ago, 2) filed more than 2 years ago, 3) assessed more than 240 days ago, 4) filed in good faith, and 5) is not filed fraudulently. What happens if you have to file an amended tax return?

Taxes will become a more common reason for people to file for bankruptcy protection. Bankruptcy lawyers everywhere are seeing more and more people with significant tax debts. Our taxes are not going to decrease anytime soon either.

Everyone makes mistakes sometimes. That is human. Everyone should be allowed to correct those mistakes if possible. If you amend your tax return and you end up owing more money to taxing authorities such as the Internal Revenue Service or the California’s Franchise Tax Board, how does this affect the dischargeability of the taxes owed if you hire a bankruptcy attorney and file for bankruptcy?

If you amend your tax return you may be relieved to know that the amendment of your tax return does not change the filing date of the original return. Your tax return will still be considered to have been filed the first time you filed the tax return. For example: you have filed your 2005 tax returns on April 15, 2006. The IRS contacts you in 2009 to notify you that you have made a mistake on your return and you need to amend your tax returns. You file the amended tax returns on June 15, 2009. You file for bankruptcy on July 1, 2009. The 2005 tax debt should still be dischargeable because you filed the original tax returns more than 2 years prior to the filing of your bankruptcy case.

One thing to note is that if there are additional taxes assessed due to the amended tax return, those additional taxes will be subject to the 240 day assessment rule. For example: you owed $1,000 when you filed your 2005 tax returns on April 15, 2006. When you amended your tax returns on June 15, 2009, an additional $500 was assessed on June 30, 2009. If you filed for bankruptcy on July 1, 2009, the original $1,000 tax debt would still be dischargeable. The additional $500 taxes that were assessed would not be dischargeable yet. If you filed your bankruptcy case on February 26, 2010 or later, the entire $1,500 would be dischargeable. Taxes are complicated. Bankruptcy laws are complicated.

Can I Incur New Debts While in a Chapter 13 Bankruptcy?

By Ryan C. Wood

When you are in an active Chapter 13 bankruptcy case there are limits to what you can or cannot do. You cannot simply continue doing what you would normally do as if you did not file for bankruptcy. There is a Chapter 13 trustee assigned to your case. This trustee is the person that is responsible for administering your Chapter 13 case. If there are certain things that you want or need to do you will need to ask the trustee or the court’s permission depending upon the circumstances and jurisdiction. To make sure you stay on track and not get in trouble with your Chapter 13 bankruptcy trustee, here are some things that bankruptcy attorneys may advise you on.

Buying a New Car

Generally you are allowed to incur new debt for the purchase of a vehicle. If the vehicle you owned at the time the case was filed breaks down or become unreliable you need a new car. Just because you filed for bankruptcy protection does not mean you cannot have reliable transportation to get to and from work and live life. You will need to notify your bankruptcy lawyer and obtain a letter from the trustee’s office providing permission to incur the new debt. This is a jurisdiction to jurisdiction issue though. So your local Chapter 13 Trustee may have different procedures in place.

Credit Cards

You cannot have or use or open any credit cards while you are in an active Chapter 13 bankruptcy. You need to cut up all your credit cards in your possession when you file for bankruptcy. This makes sense since the Chapter 13 trustee would not be able to administer your estate effectively if they are paying your creditors from your Chapter 13 plan payments while you continue to accrue new debt.

Borrow Money

You cannot borrow money from any sources, usually over $600, without permission from the Chapter 13 trustee. In some jurisdictions you need to obtain permission from the bankruptcy court in order to borrow money. You should consult with a bankruptcy lawyer in your area to determine whether you need permission from the Chapter 13 trustee or the bankruptcy judge to borrow money. Here are some examples: refinancing your mortgage, trying to obtain student loans, financing a car, borrowing from your 401k, borrowing funds to make home improvements. There may be many things you need to borrow money for since life continues moving on after you file your bankruptcy case. The important thing is to contact your bankruptcy attorney first before doing anything so that your attorney can advise you on what you need to do.

Selling Your Home

If you need to sell your current home you need permission from the bankruptcy court in order to do so as it is a major asset in your bankruptcy estate. Failure to obtain permission from the court to sell your home may result in having the entire transaction voided.

The above examples are only a portion of the things you cannot do or need permission in order to do while you are in bankruptcy. The best way to ensure you are not inadvertently violating any rules is to consult with your bankruptcy lawyer before doing anything major that involves your finances while you are in bankruptcy.

What Happens to My Children’s Bank Accounts if I File Bankruptcy?

By Ryan C. Wood

Most parents want to be able to provide for their children’s financial future. What happens when you personally file for bankruptcy and have bank accounts in your children’s names? Is the money set aside for your children in danger of being taken by the trustee assigned to your bankruptcy case? The answer is “it depends” upon the type of the account and its purpose. You should speak with your bankruptcy attorney when you are filing for bankruptcy to see how different accounts may affect your bankruptcy estate and how it may affect your children’s accounts.

Bank Accounts in Childs Name

If you open a bank account that is a standard checking or savings account in your child’s name you will have to be an account holder too since the child is not 18 years old yet. Money deposited in these accounts will be considered an asset of your bankruptcy estate if you file for bankruptcy protection.

UTMA Accounts

Once funds are transferred to an UTMA account, the funds are out of your name and belong solely to the child listed as the beneficiary. Since your children are minors and cannot have an account in their name, your name will most likely be listed as the custodian for your children in the account. This does not make the account yours. In fact, the transfers into an UTMA account are irrevocable in nature and cannot be transferred back. The money can be spent for the benefit of your children however. You cannot use the funds in the UTMA account for regular parental obligation expenses, such as food, housing, clothing. You can use the funds for your children such as for their education or educational tools like laptops or computers. UTMA accounts are considered to be an asset for your children so if they are applying for financial aid that needs to be taken into consideration. So what does this mean if you have to file for bankruptcy? Since the UTMA account is not an asset of yours it is not listed in your bankruptcy petition. There may be some issues with the UTMA account if it is determined that the reason you transferred the funds from your account to the UTMA account is to deprive your creditors of those funds. If that is found to be the case the transfers could be voided as a fraudulent transaction and brought back into your bankruptcy estate.

529 Plans

A 529 plan is a college savings plan that allows parents to contribute funds into the account for their children’s educational needs. It is a tax deferred plan and if the account is actually used for educational purposes it is actually tax free. A 529 plan is an asset that usually belongs to the parents. Therefore if the parents file for bankruptcy it is considered an asset of the parents. The funds that have been contributed to the 529 plan more than 2 years ago are protected from creditors in bankruptcy. If the funds were contributed between 1 to 2 years ago, the 529 plan is protected up to $5,000 per beneficiary. If the funds were contributed to the 529 plan less than a year ago it is not protected and is considered an asset of the bankruptcy estate unless you have available exemptions to protect that asset.

It is highly recommended that you tell your bankruptcy lawyer the specifics of the account so they can help you determine how to best protect the account if possible. You should not keep it from them because you think you know that it is not an asset of the bankruptcy estate. Let them determine that for themselves.