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.

Legislation May Allow Private Student Loans to be Discharged in Bankruptcy

By Ryan C. Wood

Student loans are currently non-dischargeable in bankruptcy. What this means is that even if you file for bankruptcy you will still have to pay for your student loans after receiving a discharge in the bankruptcy case. They do not get wiped out along with all your other discharged unsecured debts. This rule applies to both federal subsidized and private student loans. See 11 U.S.C. §523(a)(8).

One form of limited relief from this strict rule is what is called the Brunner Test adopted by some of the circuit courts. This test was taken from Brunner v. New York State Higher Education Services, 831 F.2d 395 (2nd Circuit, 1987). The Brunner Test states that student loans will be dischargeable if (1) you cannot maintain, based on your current income and expenses, a minimal standard of living if you are forced to repay the student loans, (2) these circumstances are likely to continue for a significant portion of the repayment period for the student loans, and (3) you have made good faith efforts to repay the loans. The courts have taken a very strict approach when determining whether the student loans are discharged. This three prong Brunner Test is very hard to pass for most people. It is very frustrating as a bankruptcy lawyer to not be able to provide complete relief for people who really need it. That is includes the burden of educational loan debt they cannot afford.

On February 6, 2013, Tennessee Democratic Representative Steve Cohen introduced H.R. 532 in the House of Representatives. There are currently 29 other Democratic cosponsors for the bill. The bill is called the Private Student Loan Bankruptcy Fairness Act of 2013. This bill will essentially render private student loans dischargeable with all the other unsecured debts such as credit card debt, medical bills, personal loans, and payday loans. There is no need to prove undue hardship. This bill says nothing about the federal student loans though, so they will still be non-dischargeable in bankruptcy even if this bill passes. H.R. 532 will undo the changes that the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 brought. Prior to BAPCPA, private student loans were dischargeable in bankruptcy along with all other general unsecured debts. Only federally subsidized student loans were non-dischargeable at that time.

The Private Student Loan Bankruptcy Fairness Act of 2013 could provide needed debt relief for people with huge student loan debts. Student loan debts are currently out of control and are a burden for many recent graduates that have a lot of debt and cannot find a job. H.R. 532 has currently been referred to the Subcommittee on Regulatory Reform, Commercial and Antitrust Law. If the bill makes it past the committee it will be presented for a vote in the House of Representatives. The House has more Republicans than Democrats so we would need some of these Republicans to vote for the bill in order to pass. If you support this bill I would highly recommend you contact your representatives to vote for the bill. Public pressure goes a long way.

If the Private Student Loan Bankruptcy Fairness Act of 2013 becomes the law of the land and you have a lot of private student loans to discharge, you should immediately contact an experienced bankruptcy attorney to help you discharge those student loans in your area.

Lien Stripping

By Ryan C. Wood

One of the most valuable tools of filing a Chapter 13 bankruptcy case is the ability to strip off a wholly unsecured junior lien from your real property. It does not matter whether it is for your primary residence or an investment property. The relevant factor is the value of the property. If the value of your property is worth less than your first mortgage, then junior mortgages and liens are unsecured and the liens may be stripped off in your Chapter 13 bankruptcy case. The liens have to be completely unsecured in order to be stripped off. If even a small portion of the lien is secured by some value it will not be stripped. Here is an example: First mortgage is $300,000, second mortgage is $100,000, judgment lien of $20,000. If the house is worth $250,000, the second mortgage and judgment lien may be stripped. If the house is worth $401,000, none of the liens may be stripped.

Obviously the ability to strip off unsecured junior liens from the property would help a lot of homeowners if this is available to them. The fair market value of the house is the biggest element in determining whether you can strip off the junior liens from the property. Your bankruptcy attorney may require you to obtain an appraisal of your home before filing the bankruptcy case. In order to strip off the junior liens from the property you need to file a motion (or adversary proceeding depending on the jurisdiction in which you filed your bankruptcy case) with the court to value the property. If the property valued is less than the first mortgage then you will be able to strip off the junior liens. So how does the court value the property? The valuation of the property is determined on a case by case basis.

If there is a huge difference between the home value and the first mortgage (for example, if the house is worth $200,000 and the first mortgage is $300,000) there will most likely not be a debate. However, if the value of the property is fairly close to the amount owed on the first mortgage there may be a debate on both sides as to the value of the property. The junior lien holders will of course allege that the value of the property is higher than the first mortgage and you and your bankruptcy attorney will argue that the value of the property is lower than the first mortgage. The judge will take a look at both sides and base his decision on what evidence is in front of him to determine the value (for example, is the valuation of the property coming from an appraiser. If there was an appraiser, how many years experience does he have in the field, and what area is he most familiar with).

One very important issue when looking at the value of the property is the date of the valuation. The judge would most likely place more weight on an appraisal that was more recent in time than another appraisal. But what exactly is the date that the judges look at to determine the value of the property? This is especially important because the value of property can fluctuate significantly in a short amount of time. Is it the date the petition was filed? The date the motion to value hearing is held? The date that the Chapter 13 plan is confirmed? The date may impact the ability to strip the junior liens especially if property values are on the rise. If the property increased in value to an amount that is higher than the first mortgage after the date the petition was filed and the judge believes that the value of the property should be taken at the time of the motion to value hearing, then the lien strip could be dead in the water. Unfortunately, the Ninth Circuit does not shed any light on what date should be used. Each case is looked at on a case by case basis with the judges look at what the purpose of the valuation is.

What is a Hardship Discharge in a Chapter 13 Bankruptcy and How Do I Qualify?

By Ryan C. Wood

What happens if you are in a Chapter 13 bankruptcy plan and something unexpectedly happens? You are no longer able to pay your Chapter 13 plan payment each month. Does this mean that your case will be dismissed and you will not receive a discharge of your debts? Not necessarily. There are several options for you if this happens. One option is to convert your case to a Chapter 7 (if you qualify) and receive a Chapter 7 discharge of your debts. This will mean paying a conversion fee to the courts and appearing for another meeting of creditors with the Chapter 7 trustee assigned to your case. Another option is to file a motion with the court to obtain a hardship discharge in your current Chapter 13 case. You need to continue to communicate with your bankruptcy lawyers after the Chapter 13 plan is approved/confirmed.

So what is a hardship discharge? Pursuant to 11 U.S.C. §1328(b), your debts may still be discharged if you are unable to continue making payments in your current Chapter 13 plan. You can only obtain a hardship discharge if you meet the following requirements:

(1) Your inability to complete the Chapter 13 plan is due to circumstances that are beyond your control. This may be due to unexpected illness, disability, medical condition, death, loss of job, or other circumstances.
(2) If your Chapter 13 plan payments have already paid your creditors at least what they would have received if you had filed a Chapter 7 bankruptcy. This may be an issue for people that have filed a Chapter 13 bankruptcy because they own assets that are too valuable to protect the full value. If you convert your Chapter 13 to a Chapter 7 bankruptcy the Chapter 7 trustee will want to liquidate unprotected assets and give the proceeds to your creditors. Therefore, if you had a house that had a lot of equity, then you may not meet this requirement.
(3) If a motion to modify your Chapter 13 plan is not practicable or possible. Normally, if you have a temporary illness or decrease in income, your bankruptcy attorney may help you modify your plan to reflect the circumstances. However, if the plan payments are already as low as legally possible in your Chapter 13 plan and you still are not able to modify your plan further, then it may be possible to seek a hardship discharge in your Chapter 13 case.

The hardship discharge will discharge all eligible debts. There are certain debts that will not be dischargeable, including: curing defaults on any secured or unsecured claims, priority tax debt (taxes that were due less than 3 years prior to the filing of your bankruptcy case, filed less than 2 years, or assessed less than 240 days), debts incurred due to misrepresentation or fraud, domestic support obligations, student loans, homeowner association dues that are due after the filing of your bankruptcy case if you are retaining ownership in the property, or for death or personal injury caused by operating a motor vehicle, boat, or aircraft while intoxicated. This is only a partial list of all the exceptions to discharge. For a more complete list, see 11 U.S.C. §523(a).

Chapter 13 cases can be very complicated. It is advisable that you seek the services of an experienced bankruptcy attorney to help you through the process.

What is the Difference Between Secured and Unsecured Debt in Bankruptcy?

By Ryan C. Wood

What is unsecured debt? An unsecured debt is any debt you have that is not secured by collateral. Some examples include credit card debts, medical debts, personal loans, and deficiencies from repossessed vehicles or foreclosed homes. What is secured debt? A secured debt is a debt that is secured by collateral. The collateral may be recovered by the creditor if you default on the payments. The most common types of secured debts are real estate and vehicles. If you do not pay the debt the creditor can take possession of the collateral such as foreclosure of a home or repossession of a vehicle. Once the collateral has been taken to satisfy the debt any deficiency remaining is considered unsecured debt. Other secured debts include debts incurred to finance the purchase of a television or furniture. If you do not make the payments the television or furniture can be repossessed. Make sure you communicate to your bankruptcy attorney whether you have purchased items on credit like television or mattresses that you are still making payments for.

Why is it important to know the amount of your secured and unsecured debt when filing bankruptcy? There are several reasons. One of the reasons is that your total secured and unsecured debts determine whether you are eligible to be a debtor under Chapter 13 of the bankruptcy code. There are limits on how much secured and unsecured debts you may have. Currently (April 2013), you are not eligible to file a Chapter 13 bankruptcy case if your non-contingent, liquidated secured debt exceeds $1,081,400 or your non-contingent, liquidated unsecured debts exceed $360,475. You therefore need to know exactly how much secured and unsecured debts you have so you know if you are eligible to file a Chapter 13 bankruptcy case. Most bankruptcy lawyers will run your credit to make sure the debts listed in the petition are as accurate as possible, but you may owe money to a business or individual that does not report to the credit bureaus.

Another reason it is important to distinguish between your secured or unsecured debts is that you need to continue making payments on your secured debts if you want to keep the collateral. It does not matter what chapter of bankruptcy you file under. When you file for bankruptcy your underlying debts are discharged, but the debt is still secured to the collateral. If you stop making payments the creditor will have the right to take the collateral back. If you do not want to keep the collateral or if you cannot continue with the payments you can surrender the collateral in your bankruptcy case and the underlying debt may be discharged. Keep in mind, however, that the collateral is still your responsibility until the deed or title is transferred out of your name.

A third reason why it is important to distinguish between secured and unsecured debt is that it may affect your ability to keep your assets. Two examples: (1) In the case of In re Traverse (1st Circuit BAP decision, BAP No. MB12-025, February 4, 2013). In this case the first mortgage was unrecorded and therefore unperfected and unsecured. There was a second lien on the property that was properly recorded. The trustee was able to sell the property right out from under the person filing for bankruptcy for the benefit of the bankruptcy estate and distribute the proceeds to the creditors. If the first mortgage had been properly recorded it would have been a secured debt and the person filing for bankruptcy would have been able to continue living in her home and continue making payments on the home. (2) If you obtain a loan from a private individual to purchase a vehicle and the lender did not properly perfect his or her security interest in the vehicle, that person would be considered an unsecured creditor. If the value of the vehicle is significant enough and you do not have enough exemption room to protect that asset the trustee may potentially liquidate that asset in a Chapter 7 bankruptcy case and distribute the proceeds to the creditors.

Bankruptcy and Secured Debt, In re Welsh and Chapter 13 Bankruptcy

By Ryan C. Wood

A reoccurring issue in Chapter 13 bankruptcy cases is whether you can keep multiple cars, ATVs, or trailers that you are still making payment on. Some of these may be considered “luxury” items, meaning that they are not necessary for you and your family’s maintenance or support. The Ninth Circuit recently decided in the case of In re Welsh (No. 12-60009, 9th Circuit, March 25, 2013) that it would not be considered bad faith to keep making payments on motorcycles, trailers, boats or other motor vehicles and therefore you would be able to keep them. Bankruptcy lawyers can now provide better guidance to clients.

In In re Welsh, Mr. and Mrs. Welsh filed for Chapter 13 bankruptcy. They had income from employment, social security, and a small pension. They were making payments to secured creditors for a house, 3 cars, 2 ATVs, and a trailer. The Trustee objected to the confirmation of the Welshs’ bankruptcy plan based on bad faith for 2 factors: failure to use some of the Social Security Income to pay unsecured creditors and paying secured creditors for what the Trustee deemed to be “luxury” items. The 9th Circuit shot down both of the Trustee’s objections.

Social Security income is excluded from the calculation of income pursuant to 42 U.S.C. §407(a). The Trustee agreed with the fact that the Social Security was correctly excluded from the calculation of income, but he argued that the failure to use any of the Social Security income to pay the unsecured creditors was bad faith. Determining good faith is based on the totality of circumstances. The court stated that Congress enacted the means test to calculate disposable income. Congress explicitly excluded Social Security income from the means test. Therefore, the court was not going to ignore the language Congress enacted and concluded it was not considered bad faith to not using Social Security funds to pay unsecured creditors. Most bankruptcy attorneys have long excluded Social Security funds from the Chapter 13 Statement of Monthly Disposable Income prior to this decision.

The Trustee’s next objection was regarding the payment to secured creditors for what he considered to be “luxury” items. His objection centered around the fact that the secured payments were for luxury items and not considered to be things reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor pursuant to 11 U.S.C. §1325(A)(i). The court responded by saying that §1325 indicates that what is considered to be reasonably necessary is determined by looking at §707(b)(2). §707(b)(2) does not provide any limits on the secured debt deducted from the currently monthly income. Therefore, if Congress had wanted to limit the kind of secured payments you can make in bankruptcy it would have done so. The court concluded that since there are no such limitations on secured payments it was not considered bad faith for the Mr. and Mrs. Welsh to deduct those payments on the means test as long term secured debts.