Alabama Bankruptcy Blog

I have seen and heard lots of advertising by companies saying they can settle my debts for very little and help me avoid filing bankruptcy. Does this work?

Unfortunately, debt settlement falls under the “if it sounds too good to be true, it is” category.  While I am sure there may be a few success stories from people using these companies, I have yet to personally hear of one.  Instead I have heard many complaints from clients who have wasted thousands of dollars on these “settlement” plans before having to turn to bankruptcy because of lawsuits and garnishments.  The Wall Street Journal has a good article on this subject – Debt-Relief Firms Attract Complaints.

 

The problem is most people cannot afford to pay enough monthly to settle each credit card debt before at least one of the credit card companies file suit, obtains a judgment, and attempts garnishment.  Also, if you can afford to save enough to do this, you could settle your credit card debt on your own without paying the high fees these debt settlement companies charge.

 

Speaking of the fees, remember that even though these companies may call themselves “non-profit” and a few may technically qualify under the tax laws (this is apparently being questioned by the IRS), it does not mean they are a charity.  These companies are clearly making lots of money.  Why else would they be multiplying like rabbits and how else could they be buying all of that advertising?

 

Many people think they are saving their credit by using these debt settlement companies.  If your credit score has not already been significantly lowered before you use one of these companies, it will be by time you finish (which I have yet to see) or drop out.  Settling for less than the amount owed is a negative on your credit report in itself.  Add to that charge offs and judgments from the card companies that are not settled early and your credit score will show tremendous damage.  A bankruptcy’s effect on your credit would be very similar and allow a quicker recovery.

 

A bankruptcy may or may not be the answer for you, but do not buy the hype of these debt settlement companies and fall for their anti-bankruptcy propaganda.  Do your research on these companies by checking with the Better Business Bureau and educate yourself about bankruptcy by getting your free (for Alabama residents) copy of my The Alabama Bankruptcy Book.

 

Richard L. Collins - Attorney at Law practicing extensively in Bankruptcy Law in Alabama - 422 Third Ave SE, Cullman Alabama

Credit Card Company Dirty Tricks

    I have had numerous clients recently whose financial lives have been thrown into chaos because of "dirty tricks" by credit card companies.  These bad acts by the card companies include lowering the credit limit of the card to right at or below the current balance of the card and/or significantly increasing the interest rate (sometimes more than doubling it) and thereby the minimum payment on the card.  What is shocking is that this is often done without prior notice to the cardholder and without the cardholder being in default.

    Often when one credit card company does lowers the credit limit or raises the interest rate, it causes a domino effect and the rest of the cardholders credit cards follow suit.  I have had cardholders who have never missed a payment be forced into bankruptcy because they can no longer afford their monthly payment due to the interest rate increase or dealing with being over the limit on their credit cards.  Smart Money has a recent article on this problem -- How to Blow Your Credit Limit -- Without Spending.

    Unfortunately this nasty practice by the credit card companies is not currently illegal.  If this has happened to you, please email me your story and I will forward it to our state Senators and Congressmen.  Remember, many of these credit card companies that are squeezing their customers are the same companies that begged for and received the "bailout" money from the government that we the people will be paying back through our tax dollars.  What a way to say thanks, huh?

    If you can no longer pay your credit card debt, order my book and/or contact an experienced bankruptcy lawyer immediately.

Richard L. Collins - Attorney at Law practicing extensively in Bankruptcy Law in Alabama - 422 Third Ave SE, Cullman Alabama

New Book: The Alabama Bankruptcy Book

I have redone my book.  It is now The Alabama Bankruptcy Book.  It still has the Bankruptcy Myths from the prior book, but now has about 20 more pages with Answers to Common Bankruptcy Questions.  The best part is that is FREE to Alabama residents with no strings attached.  Now you can get the info you need to see if bankruptcy will work for you without having to see a lawyer first.  If you would like a copy of the book, click on the Contact Me link on the top left side of this page.  No one will call or bother you.

This book will dispel many myths and answer many questions regarding bankruptcy such as:

• The effects of the Bankruptcy Reform Act (HINT -- Bankruptcy still works)
• What happens to your stuff
• How to save your house or car from foreclosure or repossession?
• How to stop lawsuits, garnishments, and collection calls and letters?
• How you can still file and keep your property under the “new” laws?
• How you can still get credit after you have filed bankruptcy?
• How to wipe out credit card debt, medical bills and other debt?

 Don't believe the myths.  Educate yourself and don't let debt keep you down.

Will a bankruptcy stop a garnishment that is already being deducted from my paycheck?

YES.  I have been getting a lot of questions about garnishments lately.  Both Chapter 7 and Chapter 13 bankruptcy filings will stop garnishments.  This is accomplished in a two step process.  First, we must file your bankruptcy with the bankruptcy court and thereby obtain a case number for your bankruptcy. 

 

Second, in the Court which issued the garnishment (normally your county’s Small Claims Court, District Court, or Circuit Court) we file a Motion to Quash Writ of Garnishment.  In this motion we ask the Court that issued the garnishment to enter an order stopping the garnishment and to return to you any money the Court is holding or receives in the future from the garnishment.  This means that if we can catch it in time, we may be able to get some of your money back.

 

Having said this, I would strongly recommend filing a bankruptcy prior to a garnishment going into effect.  I say this only because I know a garnishment taking 25% of your wages is not going to leave much to live on, much less enough to save to pay for a bankruptcy.

 

Please note that a bankruptcy will not stop a garnishment or income withholding order related to child support.

 

Richard L. Collins - Attorney at Law practicing extensively in Bankruptcy Law in Alabama - 422 Third Ave SE, Cullman Alabama

Do I qualify to file a Chapter 7 bankruptcy in Alabama under the “new” bankruptcy laws?

    Many people have been convinced that the bankruptcy reforms that went into effect in October of 2005 have made it impossible for most people to file Chapter 7 bankruptcies.  Nothing could be further from the truth.  Yes, there is now a “Means Test” which was intended to screen out people with “too much income.”  But, in my experience almost everyone whom I have counseled with regarding filing a Chapter 7 bankruptcy who could have filed for Chapter 7 bankruptcy before the 2005 reforms could still file a Chapter 7 bankruptcy after the reforms.  Nationwide studies have confirmed this -- Porter Study Finds Bankruptcy Law Reform Has Hurt the Poor Most and Bankruptcy Reform’s Impact: Where Are All the “Deadbeats”?

 

    How does the “Means Test” work?  First you see if you are over or under the median income for a family of your size in Alabama.  For a quick check click here.  If your household income is under the median income for the same size household in Alabama, then you have passed the “Means Test” and qualify to file a Chapter 7.

    If you are over the median income, it DOES NOT mean you are disqualified from filing a Chapter 7 bankruptcy.  Most people can still file.  There is just more paperwork to do.  With the additional paperwork you are allowed to deduct taxes, housing costs, transportation costs, secured debt payments, medical costs, and many other costs.  After deducting these costs, most people have very little income that could be used to pay unsecured creditors; and therefore, can file a Chapter 7 bankruptcy.

 

    The bottom line is, if you are having financial problems, do not let the “Means Test” scare you away from seeking good legal advice from a qualified bankruptcy attorney.  Despite anything you may have heard, there is a very high chance you can still file a Chapter 7 bankruptcy.  And, if you are one of the few who cannot file a Chapter 7, you can probably file a Chapter 13 bankruptcy and still be protected from creditors.

 

Richard L. Collins - Attorney at Law practicing extensively in Bankruptcy Law in Alabama - 422 Third Ave SE, Cullman Alabama

I have been using a Payday Loan company or Check Cashing store and can no longer pay the fee and I know the check(s) will bounce. Can I file bankruptcy on payday loans or check cashing loans? Can I be charged with a crime or go to jail?

I continue to see more and more clients come in to see me about bankruptcy after being caught up in the payday loan or check cashing trap.  It’s an easy lure – quick easy money with no credit check.  It is easy for consumers to rationalize that they can pay the money back out of their next paycheck and be caught up.  However, far too often the next paycheck is “already spent” as well and you have to “renew” the loan and pay the fee.

 

The cycle of renewing these loans becomes extremely draining on a person’s finances which were assumedly already teetering on the edge.  All it takes is one look at the interest rate on these types of loans to see why.  The average “fees” paid on these loans amount to normally between 400% to 720% annual interest rate.  The cycle also often leads to obtaining these loans at multiple companies in an effort to “borrow from Peter to pay Paul.”  The FTC has issued a Consumer Alert regarding these loans Payday Loans Equal Very Costly Cash.

 

You can file bankruptcy on payday and check cashing loans and these loans are dischargeable.  Do not let these companies convince you otherwise.  I have had clients who have been told “You cannot file bankruptcy because you signed a form saying you wouldn’t.”  This is NOT true (wouldn’t every lender do this if it was). 

 

In addition I have had clients who have been told they would be charged with a crime for writing a bad check.  This again is NOT true.  The crime of writing a bad check is a form of fraud, i.e. saying you have enough money in the bank to cover the check at the time of writing it.  This fraud has to be relied on by the person receiving the check.  In the payday and check cashing loan situation, these companies know the check is not good at the time they accept it; therefore, there is no fraud and there is no crime.

 

Do not let these predatory loans continue to financially and mentally drain you.  Obtaining these types of loans is often a sign of other debt problems as well.  Make an appointment with an experienced and knowledgeable bankruptcy attorney and see about obtaining a fresh start.

 

Richard L. Collins - Attorney at Law practicing extensively in Bankruptcy Law in Alabama - 422 Third Ave SE, Cullman Alabama

These Hard Economic Times Inspire Unique Solutions

If you are having a difficult time with your financial situation, I know it can be extremely depressing, but remember you are not the only one and when of people come together and do not give up, they can do amazing things.  I found a very interesting and inspiring article about how one community has tried to deal with this economic crisis. 

Rev. Joseph Breen of St. Edward Catholic Church in Nashville, TN used his church's resources to create its own "stimulus package" to assist its members who had been hit hard by the economic downturn.  Here is the link to the article Priest Creates Stimulus Plan for His Parish.

While a bankruptcy can clear away debt, it may not be able to help with the day to day needs of your family, such as food and clothing.  This may require you to lean temporarily on friends, family, church or other support groups.

Richard L. Collins - Attorney at Law practicing extensively in Bankruptcy Law in Alabama - 422 Third Ave SE, Cullman Alabama

Can a bankruptcy stop my house from being foreclosed on in Alabama?

Yes.  You may be able to save your house from foreclosure by filing a Chapter 13 bankruptcy.  A Chapter 13 bankruptcy allows you to put your arrearage (the payments you have missed) in your Chapter 13 plan and pay them back over the term of your plan (usually 5 years).  You will have to pay the entire amount of your arrearage back over this period of time.  This in effect “catches up” your mortgage payments, keeping the mortgage company from foreclosing.

Other than allowing you to catch up your back payments the bankruptcy court cannot affect the terms of your mortgage.  Therefore, beginning the month after you file for bankruptcy you will have to begin making your regular monthly mortgage payments. 

This can be difficult since you were already missing payments and now you are to begin making your mortgage payments again plus a payment to the bankruptcy court.  This will require some serious budgeting and discipline, but it will be very important for you to make both of these payments.  While there may be some ways to prevent foreclosure if you miss payments post-petition (i.e. after your bankruptcy has been filed), it will be difficult.  You will also have to maintain your homeowner’s insurance coverage.

To stop the foreclosure your bankruptcy will need to be filed prior to the foreclosure sale.  The 2005 amendments to the bankruptcy laws have made the preparation of bankruptcy petitions much more time consuming.  I would recommend you see an attorney immediately and not later than 1 week prior to the foreclosure sale.

The bottom line is while it may take some cutting back on other expenses, a Chapter 13 bankruptcy can save your house in Alabama from foreclosure.

Do you have questions or comments regarding this topic?  Please email me.

Why can’t I just put my house, car or other property in someone else’s name before I file for bankruptcy?

Because it would be a huge mistake.  The bankruptcy court trustee has the power to avoid such transfers he or she feels were made with the intent to hinder, delay, or defraud creditors.  Under the amended bankruptcy laws the trustee can “look back” at least two years, but may “look back” even longer in some circumstances.  The trustees for the Northern District of Alabama routinely ask about real property transfers in the past ten years.  Do not worry if you have legitimately (that is transferred to a third party and receipt of fair market value) sold a house or vehicle; however, be prepared to present the paperwork for the transaction.

The consequences of getting caught attempting a “fraudulent transfer” can be severe.  The trustee’s avoidance of the transfer itself may cause a debtor many new legal problems; including, but not limited to, issues with the person(s) or entity to which the property was transferred and/or possible criminal charges.  In addition such a transfer may result in a debtor not receiving a discharge in his or her bankruptcy which means no protection from creditors.

So, what do you do if you have too much equity in your real or personal property?  You probably will be able to file a Chapter 13 Bankruptcy.  In a Chapter 13 Bankruptcy you may pay some or all of this equity into the bankruptcy court in affordable monthly payments over a period of time.  While you may have to pay some money into the court, you will still avoid lawsuits, garnishments, repossessions, foreclosures, and have the other protections provided by the bankruptcy laws.

If you have any questions regarding this or other bankruptcy or debt related issues please email me.

A debt collector called me and said “We will garnish your next paycheck.” Can they do this?

      I am continuously amazed at the depths some collectors will go to in order to scare unwary debtors into making payments they cannot afford at the time.  The statement “We will garnish your next paycheck” is probably a lie. 

     In Alabama in order for a creditor to obtain a writ of garnishment against your employer to withhold money from your paycheck, that creditor must have a judgment against you.  In order to have a judgment against you, that creditor must have filed a lawsuit against you and won either after a trial or by default, that is, because you did not file a response.

     Normally when this threat is being made, a lawsuit has yet to be filed.  How do you know if you have been sued?  First, if suit has been filed against you, you should have been served with a Summons and Complaint by either the sheriff’s department of your county or by certified mail.  However, if you cannot be found by the creditor, the creditor may have you served by publication, that is, by running a notice in the newspaper in the county of your last known address.  If you are still unsure, you may call the clerk of court of your county.

What if I have been sued?  See a lawyer immediately.  Depending on which court, Small Claims/District or Circuit, you have either 14 or 30 days respectively from the day you were served to file an answer.  Filing an answer generally denying the allegations in the lawsuit will prevent the creditor from obtaining a default judgment against you and will lead to your case being set for court after a few months.  This will give you time to save money and/or get your bankruptcy filed.

What if I already have a judgment and/or garnishment against me?  If you already have a judgment and/or garnishment against you, I would again suggest you see an attorney immediately.  You may be able to have the judgment set aside or appealed, but only if you act very quickly.  This may also be a good time to take a strong and hard look at bankruptcy.  With a bankruptcy you should be able to discharge the judgment prior to garnishment and stop any garnishment that is already in place.  Upon filing a bankruptcy, you may even be able to have a portion of any money garnished from your check returned to you.

The bottom line is do not let calls from creditors or debt collectors scare you into giving them money you cannot afford to give them.  Many will say anything they think will frighten you.  If a debt collector says anything that worries you, make an appointment with an attorney and see what your rights are.  It’s probably a good time to take a look at your financial situation anyway.

Please email me with any questions regarding the topic of garnisments or any other bankruptcy or debt related topic.