Month: April 2021

You’ve been served

in Bankruptcy

Ding Dong…..the doorbell rings.

There’s a Sheriff’s deputy at the door.   

I’m not here to arrest you sir, you’ve committed no criminal act….but you’ve been served.

Served with suit papers.

Now what? Well, read ahead and let’s see what we need to do now. 

Look around

1. Look at the top:  At the top of the suit there will parties listed. It’s generally right below the name of the court from which the complaint originates.  The Plaintiff is the entity who is suing you:  they have a reason to seek the court’s help.

Do you recognize the name at the top? Are they a known creditor?   If you don’t know the name, does the complaint explain why the plaintiff is trying to sue you or what claim they seek?

2.  Look for validation:  At the end of the complaint there may be an attachment that seeks to validate the claim.  It’s generally a sworn statement that explains the right of the plaintiff to seek damages against you.  

3.  Check the Calendar: Once you’re served with a suit, there is a set amount of time you have to respond,  generally around 30 days. However, most complaints will have a date for a hearing so it could be longer but it won’t be after that date. 

4.  Timeliness:  There’s a statute of limitations in Georgia. On many debts, the statute is 4 years from the last activity on the account.  If it’s been more than four years since you either paid or charged on a credit card, you likely win the suit by filing an answer. Some debts though, like tax debt or mortgage debts, can last longer than 4 years.

5.  Check the prayer:  No, this isn’t church but the plaintiff will add what’s known as the prayer to the suit. The prayer is at the end of the complaint but it may not be the last page of the complaint.  Look to see what the plaintiff wants (that’s what the prayer is) and see how much money could be tied up in this.  Also check to see if they’re alleging fraud. If they are, it can have long standing repercussions. 

How to fight back

Once you’ve moved through these five steps, you need to decide what you will actually do. 

Nothing

This is a bad idea. If you do nothing it will likely result in a default judgement against you.  If your creditor wins a default judgement the court will assume you owe the money and they will enter a judgement against you.  

A judgment entitles the creditor to use the government to get its money.  In the Georgia, it means the creditor can take money from bank accounts, file a judgment lien, and garnish wages.

A judgment is enforceable for 10 years and can be renewed in Georgia.

File an answer

If you file an answer, it at least shows the creditor that they’ll have to prove their case.  If you have a good defense strategy you could actually win. 

There are resources out there for people to use if they want to fight a lawsuit without hiring a lawyer.   But as the Stephens County Court website says: ” Judges cannot make exceptions for litigants without attorneys. You could lose your case if you do not follow the correct procedures.  Know the rules!”

If you are going to be your own lawyer, you have to what a lawyer knows.

Filing an answer gives you options and sometimes you can negotiate a settlement (if you actually have the resources).  Chances are though…If you couldn’t pay it then, how will you afford it now. 

Find an ACTUAL debt solution

You are getting sued and like it or not, this probably isn’t the only creditor out there looking to recover.  This lawsuit should be a red flag. 

  • Is this suit just the beginning of a trend?
  • How many creditors are in line to serve you with suit papers?
  • Will you actually ever get out of debt with this piecemeal approach?

 

The long and short of it is, it’s time to seek help. It’s time to see a bankruptcy attorney.  Even if you don’t expect to file a bankruptcy case, we can often go over what’s happening in your situation and give you an honest and frank assessment. 

But don’t forget. You’ve been served. Mark your calendar: you have a limited time to take action before you end up with a judgement against you.  It’s a lot easier to get your finances cleaned up before you have a judgement against you. 

Give us a call.  We’re here to help. 

Return on Investment

in Bankruptcy

Return on Investment

What if I told you you could get a return on investment of more than 2,000% in just 4 months? 

Don’t worry, I’m not a snake oil salesman and I’m definitely not the Wolf of Jefferson Street.  I’m a bankruptcy attorney and what I’m telling you is absolutely true.  

See, I calculated the average cost of a Chapter 7 Bankruptcy in my office which is somewhere between $1,500 and $2,500 dollars.  I then took the average amount of debt that we discharge, which is right around $50,000.  Then I looked at the average amount of time it takes for a Chapter 7 to run from start to finish.  When I ran the numbers, I got a return on investment of 2,602.70%. That’s a number Warren Buffett or Jeff Bezos would jump all over.  In fact, outside of winning the lottery or striking it rich at a casino, there’s no faster legal way to get that kind of return on investment anywhere. 

SHORT-TERM BENEFITS OF CHAPTER 7

The biggest benefit of bankruptcy is that you can stop paying any creditor that you wish to discharge.  No more credit card or medical bills. No more garnishments. None. Zero. 

Think about how much better your monthly budget would be if you could shave off hundreds or even thousands of dollars worth of bill payments.  

The day you file bankruptcy, the automatic stay goes into effect.  That stops all collections against you dead in their tracks. .

This means that unless it’s a car loan (and you want to keep the car) or a mortgage (and you want to keep the house) you don’t have to make another payment to any of your creditors. 

LONG-TERM BENEFITS OF CHAPTER 7

A Chapter 7 means that within 4-6 months, all your unsecured debt will be wiped out.  This will immediately increase your credit score.  Don’t believe me, ask the CFPB. 

Car loans, mortgage loans and home equity loans are secured by the property, and if you want to keep them, you’ll have to keep making payments.  

If you don’t want to keep them, you typically get somewhere between 3-6 months in that property before the bank repossesses it. You get to keep it that long without making a payment.  That’s a good deal. 

All in all, the benefits of filing a Chapter 7 are incredible.  

There’s almost no legal way to gain the kind of return on investment you get through bankruptcy.  With a small investment and the stroke of a judge’s pen, you can find yourself $20,000-50,000 better off.

Social Media and Bankruptcy

in Bankruptcy

Social Media and Bankruptcy

Beware of Social Media

As lawyers, we have a love/hate relationship with social media.  Sure, many of us use social media in our own lives as well as to advertise and inform our current and potential clients.  Social Media and Bankruptcy can occasionally cause problems for our clients. 

We post pictures of vacations, shopping trips, the things we’re proud of and even how we look.  For most of us, this is benign.  We don’t have anything to hide, or so we think.  

We routinely tell people who are planning on going through a divorce to avoid social media.  It helps keep nerves from getting frayed and also helps us not say or do anything that could be misconstrued by our soon to be exes.

Just as you do in a divorce, you should also limit your activity on social media when you file bankruptcy. You may be thinking, “why does it matter what I post” and the truth is, it probably doesn’t…but creditors are getting desperate, and desperate people do desperate things.  

I will use an example here of a very high profile individual who filed for bankruptcy in the not so distant past, Curtis James Jackson III. You might know him better as 50 Cent. 

A Big Blunder

In 2015, Mr. Jackson filed for Chapter 11 bankruptcy protection. Chapter 11 is a type of bankruptcy used for the wealthy and for corporations. Everything seemed to be going well until right in the middle of it all, he posted several photos on a popular social media site. One photo was of a stack of money in his freezer, another had stacks of bills arranged to spell the word “Broke,” and a third one was of him surrounded by a significant amount of cash on a bed. Mr. Jackson said the bills were props but he had stepped in it nonetheless.  

Mr. Jackson claimed that the photos were there for him to maintain a certain image that he needed in order to continue to earn money in his chosen field.  The problem was, it looked to creditors, especially those who weren’t going to get much, that he was trying to hide assets or “live large.” Because of these photos, the judge handling his case called Mr. Jackson to court to testify and to re-evaluate his assets.

In the end, Mr. Jackson was able to repay his debts under Chapter 11 and emerge debt free and fully reorganized.  However, he could have faced a much worse fate if he’d been found to be hiding assets and his little stunt likely caused a great deal more expense than was otherwise necessary in additional attorney fees. 

Avoid Problems All Together

Your creditors likely don’t know you personally. They don’t know that picture you posted at the beach was for a work trip and that time you checked in at the airport on social media was so you could fly to see a sick relative. They don’t realize that the picture of you in the shiny new car was actually a rental you had while your old car was being repaired.  

In other words, just remember, be careful what you put out there.  You never know who is watching and how they’ll take what you’re doing.  To you it was benign and potentially even necessary but to them, it could look like you were trying to hide something…or worse. 

If you have questions about a bankruptcy, don’t hesitate to call us.  We’ve been doing this a while and we’ve seen it all.  Including creditors using social media to hound clients. 

ERISA and Bankruptcy

in Bankruptcy

ERISA

People are often faced with the threat of debt collections.  Debt collectors will call, harass, send threatening letters and even try to sue you to recover debts.  They’ll tell you lies to get your money, and one of the biggest lies that they’ll tell you is that they’ll go after your retirement money. When they do that, you need to remember this name, ERISA. 

Many clients come into our office after draining their retirement accounts (or at least thinking about it) to pay off debts.  They’re usually shocked when I tell them this…

Creditors can not seize qualified retirement accounts to satisfy debts.

ERISA

The Employee Retirement Income Security Act (ERISA) of 1974 protects most employer-sponsored retirement plans. These plans include 401(k) plans, pensions and 403(b) plans. Even if you have accumulated millions of dollars in your retirement account creditors cannot access funds in these ERISA-qualified plans.

Every time I hear about a client being duped, often by some unscrupulous debt collector, into dipping into their retirement accounts to pay off some smarmy creditor it makes my blood boil and breaks my heart.  Especially when those people are close to retirement. 

Call An Attorney First

It’s important to remember that every situation is different.  Sometimes (albeit rarely) it makes sense for someone to use retirement funds to pay creditors.  More often than not though, it’s a terrible idea. 

In order to ensure  you don’t make a $50,000 mistake, you need to talk to an attorney.  That’s why we don’t charge people for initial consultations.  We put our legal expertise to work for you, free of charge.  If you need us, we’re here.  If you don’t, we don’t want to take advantage of you just because you might be in a bad place financially. 

Tax Liability

Here’s another reason why it’s a good idea to talk to an attorney.  Using your retirement funds will often trigger a taxable event.  In order to encourage people to save for retirement, most ERISA plans are tax deferred.  Plainly, that means that you don’t pay tax on that income now, you pay it when you withdraw the money.  If you withdraw it before you’re 59 ½ you’ll even pay a penalty on top of the taxes (unless you have a specific, qualifying emergency). 

If you’re already in a high tax bracket, or close to the next one up, it could trigger a massive tax event for you that would leave you holding the bag for a significant chunk of debt that you’ll owe the IRS as well as the Georgia Department of Revenue. 

Final Thoughts

Use ERISA protections where you can. Many people see their 401k as a piggy bank to satisfy every whim, want and need.  You need to change your thoughts on your ERISA plans.  You need to think of them as the BEST place to stash money for when you need it.  There is perhaps no greater vehicle for the average American to save and save a lot than an ERISA protected account. If you want to build wealth for yourself and your heirs, start here.  If you’re in trouble, call us first, before you make any decisions about what you will or won’t do with your retirement accounts.