Category Archives: Uncategorized

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.

Newly Discovered Creditors

Newly Discovered Creditors

Newly Discovered Creditors – Sometimes, after your bankruptcy case has closed, you discover that you inadvertently left off a creditor on your schedule.  (Newly Discovered Creditors) What happens next?  If your case is still open you can amend your schedules adding the creditor.  But what happens if you don’t discover the creditor until after your bankruptcy closes?  It happens all the time, you lose track of a creditor.  The chances are great that the debt will still be considered discharged.

If your case is a no-asset case (meaning all your property was exempt), the debt is considered discharged unless by leaving out the Creditor , the Creditor lost the opportunity to contest the discharge on the ground that the debt was caused by a fraudulent or embezzling conduct, or by a willful and malicious act (such as assault).  It is generally possible to reopen the bankruptcy and let the bankruptcy Judge rule on whether the debt is, in fact, dischargeable.

If your case is an asset case (meaning some of your property was distributed to the unsecured creditors), the answer is more difficult and you should contact a knowledgeable attorney.  Your nonexempt assets were already distributed to your other unsecured creditors, so the omitted Creditor would be unfairly discriminated against if the debt was discharged.

If you have left off a creditor on your bankruptcy petition, and the newly discovered creditors debt was a large one you may want to discuss with a lawyer re-opening your case.

Newly Discovered Creditors – For more information about Bankruptcy Laws – and what happens if you leave creditors off of your schedules after your case closes, contact the Remboldt Law Firm at 404-348-4081. We offer a Free consultation with an attorney at the Remboldt Law Firm, LLC and an appointment can be scheduled by calling 404-348-4081.  We offer weekend and evening hours as well as payment plans.

Unauthorized Bankruptcy Mortgage Refinancing.

Unauthorized Bankruptcy Mortgage RefinancingConsidering an Unauthorized Bankruptcy Mortgage Refinancing? If you file a bankruptcy, you must get the bankruptcy court’s permission to refinance your mortgage (or enter into any new debts) while your assets are still part of the bankruptcy estate, controlled by the Court and the Trustee to avoid an unauthorized bankruptcy mortgage refinancing.

Here’s some court cases that explain the issues with the unauthorized bankruptcy mortgage refinancing.  The two courts involved are the First Circuit BAP and the Eighth Circuit BAP both addressed unauthorized post-petition refinancing.

In In re Marrero, the lender on the two mortgages obtained stay relief in order to foreclose because the debtor was behind on the mortgages. The Debtor, in order to avert the foreclosure, refinanced the indebtedness without notifying or obtaining authority from the Trustee or the Court. In the process, the lender cancelled the two earlier mortgages, and replaced them with a single new mortgage in its favor.

The Trustee moved the court to avoid the refinanced mortgages.  Affirming the Bankruptcy Court, the BAP held that the Trustee could avoid the new mortgage as an unauthorized post-petition transfer under S549(a). The Court found that the Mortgage Company could not use the good-faith defense of S549(c), since the lender had known about the bankruptcy case. Further, once the new mortgage was avoided by the Court, the property became unencumbered, because the prior mortgages had been released. The Trustee could, therefore, sell the property.

For more information about Bankruptcy and the unauthorized bankruptcy mortgage refinancing  – 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.