About Cynthia J Remboldt

Bankruptcy lawyer in Georgia with an office located in Marietta, Georgia. FREE consultations can be scheduled by calling 404-348-4081.

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Cynthia J Remboldt

About Cynthia J Remboldt

Bankruptcy lawyer in Georgia with an office located in Marietta, Georgia. FREE consultations can be scheduled by calling 404-348-4081.

Means Test Expenses

Means Test ExpensesMeans Test Expenses – Secured Debt Expense.  In a means test, a Chapter 7 debtor may deduct a secured debt expense despite an intent to surrender the collateral for the debt.  The Court found that the reasoning of the Lanning and Ransom decisions simply does not apply to Code § 707(b)(2)(A)(iii), which authorizes the deduction of the “total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the filing of the petition.”  The court agreed with the decisions in In re Walker, 2006 WL 1314125 (Bankr. N.D. Ga. 2006) and In re Hummel, 2007 WL 7142576 (Bankr. N.D. Ga. 2007).  See also In re Rivers, 466 B.R. 558 (Bankr. M.D. Fla. 2012):  In re Sonntag, 2011 WL 3902999 (Bankr. N.D. W. Va. 2011);  In re Ng, 2011 WL 576067 (Bankr. D. Hawaii 2011); In re Grinkmeyer, 456 B.R. 385 (Bankr. S.D. Ind. 2011).  Contra, In re Fredman, 471 B.R. 540 (Bankr. S.D. Ill. 2012)

The means test is used by the bankruptcy court to determine the debtor’s eligibility for a chapter 7 bankruptcy.  A similar test is used in a chapter 13 to determine if the debtor is eligible for a 36 month or 60 month program.  The test is rather complicated.  If you have questions about these tests or the chapter of which you may qualify, you should seek the counsel of an experienced bankruptcy attorney to explore your options.

Means Test Expenses – Secured Debt Expenses.  If you have a question about the chapter 7 or chapter 13 means test expenses, secured debt expenses – or would like to explore how bankruptcy might be just the path to a fresh start – please contact Cynthia Remboldt, at the Remboldt Law Firm, LLC.  FREE consultations are available and can be scheduled by calling 404-348-4081.

Debt Collectors Calling Cell Phones

Debt Collectors Calling Cell PhonesDebt Collectors Calling Cell Phones

“Are your debt collectors calling cell phone numbers?” “Can debt collectors call my cell phone?” The short answer is “sometimes”.

There is a Federal law that restricts using automated dialing machines to collect a debt.

How do you know if a debt collector is using an automated dialing machine to call your cell phone? Usually, if there is a couple of seconds of silence on the line after you pick up the call or the caller leaves a per-recorded message, it may indicate the caller is using a auto-dialer.

Additionally, if you gave the original creditor permission to call your cell phone, then your permission also protects the collection agency or debt buyer from liability for the call. However, if you receive the calls for a debt you never owed, you could not have given the debt collector your “express permission” right?

According to the Federal Communications Commission recent decision,
collection agencies may call consumers who provided their cell phone numbers to the original creditor.

If you did not give your cell phone number to the original creditor or the debt collector, the debt collector violates the Telephone Consumer Protection Act (“TCPA”) every time it calls you on your cell phone by using an auto-dialer.

Debt Collectors Calling Cell Phones:  Debt collectors who violate the TCPA are liable for $ 500 per violation and, if the violation is willful, up to $ 1,500 per call.

If you provided your cell phone number to the debt collector (but not the original creditor) and do not wish to continue to receive collection calls on your cell phone you can send the debt collector a letter via certified mail / return receipt requested stating something like this:

“I hereby revoke my permission, if I mistakenly provided it, for you or anyone else to call me on my cell phone about this account. My cell phone number is [NUMBER XXX-XXX-XXXX]. Do not call me on this number again.”

Since TCPA violations occur when the caller causes a phone to ring, it is important to log all of the calls including the hang-ups.

Additionally, the messages that you receive on your cell phones often violate the Fair Debt Collection Practices Act (“FDCPA”). You should save all of the messages that you receive. The damages allowed by the FDCPA are in addition to any damages available under the TCPA.

Debt Collectors Calling Cell Phones – If you are receiving calls from collection agencies on your cell phone, you should contact an experienced phone harassment lawyer who is licensed to practice law in your state.

For more information – contact Cynthia Remboldt, FREE consultations can be scheduled by calling 404-348-4081.

An Equitable Argument by an Unperfected Secured Creditor

An Equitable Argument by an Unperfected Secured CreditorAn Equitable Argument by an Unperfected Secured Creditor.  Has the court ever heard an equitable argument made by an unperfected secured creditor? The answer is yes. Here’s the story.

In a case of very unfortunate timing, a creditor loaned a business $500,000.00 to keep its doors open, took a security interest in the Debtor’s assets to secure the loan, and filed a UCC financing statement five days later to perfect the lien. However, on the day after the loan, and four days prior to perfection of the lien, an involuntary petition was filed against the Debtor. In re Millivision, 474 F.3d 4 (lst Cir. 2007). In this case the creditor argued that the “strong-arm” pro visions of §544 “offended the underlying equitable principles of the Bankruptcy Code by conferring a “windfall” cash infusion…” Further, it was argued that the “relation-back” provision of §5 47(e) (which allows transferees a grace period to perfect a transfer) constitutes “any generally applicable law” under §546(b), which limits the rights of a Trustee to recover under §544. Affirming the lower Courts, the First Circuit rejected the § 547(e) argument, finding that a subsection applicable to prefer entail transfers is not “generally applicable law” for purposes of the strong-arm powers under § 544 (b). The Court then noted that the creditor could have perfected its lien prior to making the loan, and “under long-established principles. Therefore the court found that petitioner’s lack of diligence precludes equity’s operation”. So yes a court has heard an equitable argument by an unperfected secured creditor and lost the argument. If you have a question about your perfected interest, please see a bankruptcy attorney.

For more information about Bankruptcy and Disability Income  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Error in the Debtor’s Name Seriously Misleading

Error in the Debtor's Name Seriously MisleadingIs an error in the debtor name seriously misleading? In what appears to be a national trend, two more recent cases have affirmed that a slight error in the Debtor’s name seriously misleading in the age of computer search logic. Here are the cases.

In re John’s Bean Farm of Homestead, Inc., 378 B.R. 385 (Bkrtcy. S.D. Fla. 2007). the creditor filed a UCC- l financing statement with the Florida Secured Transaction Registry identifying the Debtor as “John Bean Farms, Inc.”, instead of the proper incorporation name, “John’s Bean Farm of Homestead , Inc.” When the Trustee searched the database using the Debtor’s correct name, the search yielded no match. The Trustee found the creditor’s financing statement only after striking “previous command” 60 times. The Trustee objected to the secured claim filed by the creditor, and was awarded summary judgment. The Court held that the initial search page displayed the result of applying Florida’s standard search logic. Further, even if what constituted a search result were more than the initial page display, there would be a reasonable limit to the search. The Court deemed this limit to be no more than one page “previous” and one page “next” from the initial result screen.

In a second case, In re Jim Ross Tires. Inc.. 379 B.R. 670 (Bkrtcy. S.D. Tex. 2007), the Court construed Texas law. The financing statement was filed by the creditor in the Debtor’s correct corporate name. However, it added the Debtor’s trade “or d/b/ a” name, which had expired and not been renewed. Judge Isgur found that the financing statement did not contain a proper statement of the Debtor ‘s name, and left the creditor unperfected. The Court reasoned that only exact matches would be returned from a computer search of the Secretary of State’s database , and including the d/b/ a in a financing statement would
inevitably have resulted in the failure of the financing statement to appear.

If you have questions about the validity of a financing statement an attorney can help you decide if an error in the debtor’s name seriously misleading to the bankruptcy court.

For more information about Bankruptcy and an error in the debtor’s name seriously misleading  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Alimony Dischargeable in Bankruptcy

Alimony Dischargeable in BankruptcyIs Alimony dischargeable in Bankruptcy? It might be, it depends on many factors.

Generally speaking, one of the most significant changes in the bankruptcy code in 2005 (BAPCPA) is that all domestic relations obligations created by a divorce decree or separation agreement are non-dischargeable. The spousal support defined as Domestic Support Obligations are non-dischargeable in every chapter, but non-support obligations under 523 (a)(15) MAY BE dischargable in a Chapter 13 plan.

How do we know if alimony is dischargeable in a chapter 13 bankruptcy? The court will consider the substance of the underlying obligations, as well as the relative financial circumstances of the parties at the time of their divorce. To ascertain the intent of the parties and the substance and function of the obligation, a bankruptcy judge may consider any or all of the following factors:

(1) The amount of alimony, if any, awarded by the state court and the adequacy of any such award;
(2) the need for support and the relative income of the parties at the time the divorce decree was entered;
(3) the number and age of children;
(4) the length of the marriage;
(5) whether the obligation terminates on death or remarriage of the former spouse;
(6) whether the obligation is payable over a long period of time;
(7) The age, health, education, and work experience of both parties;
(8) whether the payments were intended as economic security or retirement benefits;
(9) the standard of living established during the marriage.

If your spouse is trying to discharge your alimony you need to see an attorney right away to make sure your rights are protected. Alternatively, if you need to discharge alimony, an experienced attorney can help you determine how the court is likely to view your case.

For more information about Bankruptcy and if alimony dischargeable in bankruptcy   – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Bankruptcy Eligibility for Chapter 7

Bankruptcy Eligibility for Chapter 7Bankruptcy Eligibility – As a bankruptcy attorney, I get this question all the time, who can file a chapter 7 bankruptcy? The answer is everybody with some exceptions, I have made a list of the common reasons that make you not bankruptcy eligible for a chapter 7.

(1) If you have been granted a discharge in a chapter 7 case that was filed within the last eight years.

(2) If you have been granted a discharge in a chapter 13 case that was filed within the last 6 years, unless 70% or more of your unsecured claims were paid off in the chapter 13 case.

(3) If you have obtained court approval of a written waiver of discharge in the previous chapter 7 case.

(4) If you conceal, transfer, or destroy property with the intent to defraud creditors or the trustee in the chapter 7 case.

(5) If you conceal, destroy or falsify records of your financial condition or business transactions.

(6) If you make false statements or claims in the chapter 7 case, or you withhold recorded information from the trustee.

(7) If you fail to satisfactorily explain any loss or deficiency of your assets.

(8) If you refuse to answer questions or obey orders of the bankruptcy court, either in your bankruptcy case or in the bankruptcy case of another person such as a relative, a business associate, or a corporation in which you have a relationship.

(9) A person who, after filing a bankruptcy, fails to complete an instructional course on personal financial management.

(10) A person who has been convicted of bankruptcy fraud.

(11) A person who owes a debt arising from a securities law violation.

If you have question about bankruptcy eligibility for chapter 7 bankruptcy, it is best to contact a bankruptcy attorney who can discuss your situation specifically. There are many exceptions to the bankruptcy eligibility rules, and only an experience bankruptcy attorney can assist you in determining if those exceptions apply to your specific case.

For more information about Bankruptcy – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081.

Student Loans Bankruptcy

Student Loans BankruptcyStudent loans bankruptcy – I am receiving more and more calls about student loans bankruptcy, student loans are becoming more and more troublesome for college graduates as the struggling economy as left fewer jobs for those just graduating from college and graduate school. Additionally, most students graduating college have student loans because of the rising college tuition rates and other costs associated with college such as fees, books, computers, and room and board. However, unlike other unmanageable debt, both government and private student loans are not dischargeable in bankruptcy unless you can prove substantial hardship under the very difficult Brunner test.

The Brunner test requires you to prove a substantial hardship and you need to file a law suit against the lender who made your student loan. In that suit, you must prove:
• If required to repay the loans, you could not maintain a minimal standard of living for yourself and your dependents.
• Circumstances show that this state of affairs is likely to continue for a very long time.
• You have made good faith efforts to repay the loan.

This is a very difficult standard. You may have a better chance to manage your student loans in a chapter 13 bankruptcy. A chapter 13 bankruptcy gives you the opportunity to include your student loans within a Chapter 13 payment plan. Another advantage to a chapter 13 bankruptcy is that you may be allowed to concentrate on paying the student loans by paying relatively little on your other debt.

Student Loans Bankruptcy – if you have government student loans, another repayment option available to you is called the Income Based Repayment plan. This is a relatively new program offered by the Department of Education and is only available for government student loans. Information about this repayment plan is available at http://studentaid.ed.gov/PORTALSWebApp/students/english/IBRPlan.jsp. In general your payment for your student loan under an income based repayment plan is based on your actual income and has some other advantages if you work for a non-profit or a government agency.

If you have private student loans there is little that can be done outside a chapter 13 bankruptcy. However, there is a bright glimmer of hope. The House Judiciary Subcommittee on Commercial and Administrative Law took the first steps in reversing language in the 2005 bankruptcy law related to private student loan debt by approving the Private Student Loan Bankruptcy Fairness Act. This legislation will restore fairness in student lending by treating privately issued student loans in bankruptcy the same as other types of private debt. Under the bill, privately issued student loans will once again be dischargeable in bankruptcy.

For more information about Bankruptcy and your Student Loans  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Dischargeable Bankruptcy Debts

Dischargeable Bankruptcy DebtsDischargeable Bankruptcy Debts – All debts of any type or amount, including debts of creditors that are out of state, are dischargeable bankruptcy debts in a chapter 7 bankruptcy except those debts that are by law not dischargeable bankruptcy debts. And, even if the debt is not a dischargeable bankruptcy debt, there are always exceptions to the rule. Following are some of the debts that are not dischargeable bankruptcy debts in a Chapter 7.

(1) Most tax debts, including debts that were incurred to pay federal tax debts (for example if you put your tax debt on a credit card, the credit card debt would not be dischargeable).

(2) Debts for obtaining money, property, services, or creditor by means of false pretenses, fraud, or a false financial statement (and the creditor files an adversarial proceeding against you).

(3) Debts not listed on the bankruptcy petition, unless the creditor knew of the bankruptcy case another way and the creditor had knowledge in time to file a claim.

(4) Debts for fraud, embezzlement, or larceny (and the creditor file an adversarial proceeding against you).

(5) Debts for domestic support obligations, for example, alimony, spousal support, child support, and certain other divorce-related debts, including property settlement debts.

(6) Debts for intentional or malicious injury a person or their property, (and the creditor files an adversarial proceeding against you).

(7) Debts for certain files or penalties.

(8) All types of Student loans debts including both private and government student loans.

If you thinking about filing a Chapter 7 Bankruptcy, and you wish to determine which of your debts are dischargeable bankruptcy debts in a chapter 7, or if an exception to the discharge rules might apply to you, you should discuss the specific circumstances of the debts with a knowledgeable bankruptcy attorney.

For more information about dischargeable bankruptcy debts and a FREE consultations call 404-348-4081 – The Remboldt Law Firm, LLC.

 

Aiding and Abetting Fraudulent Transfers

Aiding and Abetting Fraudulent TransfersAiding and abetting fraudulent transfers. Can a Trustee maintain an action against parties who were directly involved in the implementation of a fraudulent transfer, but were not the recipient of any of the fraudulently transferred property? Would it matter if the involved party were an attorney? It depends on where you are.

Two bankruptcy courts have addressed this issue and made contrary holdings, based on differing state law. In the case of In re Parker, 2009 WL205011 (Bkrtcy. E.D. N.Y.), Judge Eisenberg held that applicable New York law “does not recognize a cause of action against parties for aiding and abetting a fraudulent conveyance because …the parties were neither transferees of the assets nor beneficiaries of the conveyance.” Further, the status of one party as an attorney did not change this finding. The Trustee’s only remedy was avoidance of the transfer and recovery of the transferred property for the bankruptcy estate.

In the case of In re Restaurant Development Group, Inc. 397 B.R. 891 (Bkrtcy.N.D. Ill. 2008), Judge Schmitterer noted that Illinois courts recognize claims for conspiracy against attorneys where there is evidence of participation in a plan with their clients to commit fraud. Though acknowledging that other states, under their version of the Uniform Fraudulent Transfers Act, have not found and do not recognize aiding and abetting claims against non-recipients of fraudulent transfers: The Court found such liability under Illinois law. If you have a question about the liability of aiding and abetting fraudulent transfers you should seek the advice of an experience bankruptcy attorney.

For more information about Bankruptcy and aiding and abetting a fraudulent transfers  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.