“How do we pick ourselves up when Wall St.’s stealing our bootstraps?”

“We are not leaving. Not while the richest 1% own 75% of the USA’s wealth. “

These were some of the hand-written signs at the ongoing “Occupy Wall Street” demonstration in front of and around the New York Stock Exchange as it entered its second week of daily protests. The stated mission of “Occupy Wall Street,”according to its website, is

“to flood into lower Manhattan, set up beds, kitchens, peaceful barricades and occupy Wall Street for a few months. Like our brothers and sisters in Egypt, Greece, Spain and Iceland, we plan to use the revolutionary Arab Spring tactic of mass occupation to restore democracy in America.

“Occupy Wall Street is a leaderless resistance movement with people of many colors, genders and political persuasions. The one thing we all have in common is that We Are The 99% that will no longer tolerate the greed and corruption of the 1%.”

On Saturday, September 24, about 80 people were arrested during the demonstration, mostly for blocking traffic and disorderly conduct, according to the police. The protestors vow to stay for months, camping on the streets and in the parks.

Does this demonstration signify a shift in the mood of the public? A few weeks ago, Great Britain was shocked by several nights of rioting and looking in London and several other cities. Is that going to happen here? During the current “Occupy Wall Street” events, or at some other venue in the future?

The U.S. has been going through a wrenching amount of pain from unemployment, reduced income, and home foreclosures, resulting in an overall massive downshift in expectations. Millions of families have lost large portions of their wealth, in residential real estate and retirement funds. This loss of wealth has been hugely disproportionately felt by Blacks and Hispanics, who in the last four years since the housing crash have lost jsut about all the wealth gains they had made in the previous quarter century.

The unemployment rate for 18-to-24 year olds in general, as of July 2011, was 18.1%, while for Hispanics it was 20.1%, and for Blacks 31.0%. From another, probably more revealing, perspective, “[t]his year, the share of young people [in this age group] who were employed in July was 48.8 percent, the lowest July rate on record for the series, which began in 1948,” according to the U.S. Bureau of Labor Statistics.

From my perspective in the trenches helping clients every day, I’m not at all surprised that some people are feeling like it’s time to “man the barricades.” Seems to me that the youth in particular have been rather quiet, staying in school longer to avoid the job market and to try to position themselves better for it–all the while racking up anxiety-producing levels of student loans. They are living much longer than expected with their parents, probably by the millions. Their frustrations will only increase if the economy does not find room for them.

The signs point to more demonstrations ahead.


Both Chapter 7 and Chapter 13 stop a foreclosure of your home. One or the other COULD be better for you, but which one is it?

Many considerations come into play in deciding whether a Chapter 7 or 13 is better medicine for you.  I could list literally dozens of possible ones. Focusing here just on factors involved in saving your house, there are still lots of advantages and disadvantages to each one. The answer turns on your unique circumstances. Lawyers are sometimes given a bad time for seemingly answering every question with “it depends.” But when it comes to your home and your financial well-being, the fact is that what you want and deserve are what is best for you in your unique circumstances. You don’t want a cookie-cutter answer but rather one that does in fact “depend” on your individual facts and on your personal financial goals.

Let’s assume that after looking at all the other aspects of your financial life, the choice between the two Chapters comes down to how that choice impacts on your house. And let’s also assume that this is a house in distress, where a foreclosure is already scheduled or is just around the corner.

In one sentence, the key difference between Chapter 7 and Chapter 13 is that the first one generally buys you a relatively short time while the second one buys you a much longer time.

So that leaves as the main question whether—in your unique situation—a Chapter 7 would buy you enough time, or if you instead need the much stronger medicine of Chapter 13.

Chapter 13 deservedly has the reputation of being the home-saving chapter of bankruptcy. But every day of the week Chapter 7 bankruptcies are filed which save people’s homes. If you have a sale pending on your house but you’ve run out of time with a scheduled foreclosure; if you have some money coming to cure the arrearage but again have run out of time; if you are very close to getting a mortgage modification approved or are more likely get it approved after discharging you debts in bankruptcy; or if you’ve decided to surrender the house but need a little more time to get into another home—these are possible circumstances where Chapter 7 could well buy you enough time to do what you need to do for your home.

Admittedly, these are relatively rare situations. The much more common one is that you had lost some income or had emergency expenses, making it impossible to keep up the home mortgage payments. And then you regained that income, but maybe not all of it, and now you owe a whole lot in missed payments, late charges and other fees. No way can you catch up all that in just a few months. Chapter 13 can give you as much as five years to do so. Chapter 13 can also buy you much more time to sell your home, such as to get to a better selling season, or even maybe to allow a kid to finish high school. Chapter 13 can also be much better at dealing with other house-related debts, such as property taxes, second mortgages, and income tax liens. As I said, these choices depend on your unique set of circumstances.

You can build a nice gingerbread house out of cookie-cutters. But when it comes to your home, and you and your family’s well being, get the advice of an experienced attorney. Nothing gives me more satisfaction than helping save a family home. Let me help you make the very best choices about yours.

Both Chapter 7 and Chapter 13 can help you save your home. Which one is better for YOU?

You have almost for sure heard that the filing of a bankruptcy stops a foreclosure. You may have also heard that Chapter 13—the repayment version of bankruptcy—can be a good tool for saving your home in the long run. Both of these are true, but are only the beginning of the story. This blog today tells you more about stopping a foreclosure. My next blog will get into longer term solutions.

The “automatic stay” is the part of the federal bankruptcy law which immediately blocks a foreclosure from happening. The very act of filing your bankruptcy case “operates as a stay,” as a court order stopping “any act to… enforce [any lien] against any property of the debtor…  .”

But what if your bankruptcy case is filed and the mortgage lender or its agent can’t be reached in time so that the foreclosure sale still occurs? Or if there’s some miscommunication between the lender and its agent or attorney, with the same result? Or if the lender just goes ahead and forecloses anyway?

As long as your bankruptcy is in fact filed at the bankruptcy court BEFORE the foreclosure event, then that foreclosure is not legally valid, whether it occurred by mistake or intentionally. (This filing “at the bankruptcy court” is usually actually done electronically from my office, with a date and time-stamped record proving when the court filing took place.)

IF a foreclosure happens by mistake after the filing of your bankruptcy, lenders are usually very cooperative in legally undoing the foreclosure and its documentation. If your lender would fail to undo such a foreclosure after becoming aware of your bankruptcy filing, it would be in ongoing violation of the automatic stay, exposing itself to significant financial penalties. That would be rare.

Does it matter whether your bankruptcy case is a Chapter 7 or Chapter 13 one for purposes of the automatic stay?

No, the automatic stay is the same under both Chapters, and would have the same immediate effect.

On the other hand, how long the protection of the automatic stay lasts can definitely depend on which Chapter you file. That’s because even though you get the same automatic stay, the other tools each Chapter gives you for protecting your home are very different. So your mortgage lender may very well react quite differently depending on the Chapter you file, as well as on what you propose to do about your home and your mortgage within that Chapter. I’ll write about those options  in my next blog.

Does the recent increase in foreclosures signal the long-anticipated surge in defaults of Option ARMs (adjustable-rate mortgages) that were scheduled to reset their interest rates right about now?

That’s a question that came to mind when I noticed the recent uptick in new home foreclosures.

Option ARMs gave borrowers a choice of paying principal and interest, interest-only, or else lower payments covering only a part of the interest and none of the principal. Most people paid on the low end, which increased their principal balances every month. Plus many of them had low “teaser” interest rates. These rates would reset after 5 years, or sooner if the principal balance reached a certain threshold, say 120% of the original amount. People could get more house for less money, but with a greater gamble that house values would continue to rise.

Since $600 billion worth of Option ARMs were made from 2005 through 2007, we are now right in the thick of when they were scheduled to reset. A similar flood of resets among subprime mortgages in 2006 and 2007 likely was a major cause of the “subprime mortgage crisis” which ignited the Great Recession. Around that time lots of smart folks were warning about this huge second wave of mortgage defaults and foreclosures that was to hit now.

But it’s not happening, or at least not nearly with the intensity anticipated. Why not?

1. Because many of these mortgages never got as far as their reset dates. They fell into default as the economy got worse and property values declined. They’ve just been part of the mix of mortgages in the foreclosure pipeline through these last two-three years.

2. Something like 20% of the Option ARMs have been modified by mortgage lenders and servicers, many into fixed-rate mortgages. Although mortgage modification efforts overall have been roundly criticized for their ineffectiveness, the lenders recognized their self-interest in avoiding the anticipated Option ARM defaults and so they were proactive with this category of mortgages.

3. Because the economy has been so slow in its rebound, interest rates have stayed extremely low for much longer than most anticipated. As a result the interest rate resets have increased mortgage payments much less than expected. In fact, in some cases mortgage payments have actually gone down.

4. Unlike subprime loans which mostly went to homeowners with shaky credit scores, Option ARMs went to borrowers with average or better credit. Those that have not already defaulted, and who are getting relatively modest payment increases at reset time, tend to be borrowers who can better afford to make the payments.

However, there still are millions of Option ARMs, most of which ARE requiring payment increases when they reset.  A large percentage of ARMs are at least 30 days late. So although the reset impact is not nearly as bad as many anticipated, with the very shaky economy many homeowners with these mortgages, even if they had decent credit a few years ago, are very vulnerable now.

If you have an Option ARM, or any other kind of mortgage, and need advice about your options, please come in to see me.

In August, mortgage lenders started so many home foreclosures that the month-to-month increase was the biggest since August of 2007. For nearly a year the number of foreclosures has been relatively low as lenders have reacted to an explosion of challenges to the legality of their mortgage and foreclosure practices. But this new surge in foreclosure starts may reflect that the lenders think they have worked through these problems.

According to RealtyTrac, mortgage default notices–the first step in the foreclosure process—increased by 33% from July to August.

That increase has to take into consideration that July’s numbers had been relatively low. Not only had the number of foreclosure filings come down modestly—by 4%–from the prior month. They were also down significantly—by 18%–from a year earlier. In fact, July 2011 had the lowest foreclosure activity in 44 months.

Now with this 33% increase in August, the tide seems to be turning. But is it going to turn into a new wave of foreclosures?

That’s impossible to tell. Not only are there countless factors at play here, they shift all the time, reacting to the constantly changing environment.

Just take a look at one of the factors affecting how many foreclosures are filed: the ongoing legal challenges to foreclosures. These challenges are making their way through the court appeals systems. For example, just a couple days ago the Supreme Court of Alabama ruled that the embattled MERS (Mortgage Electronic Registration Systems) has standing to foreclose. That ruling will presumably open the foreclosure spigots in Alabama, because some lenders undoubtedly had held off on foreclosing while awaiting that ruling. Similar dynamics are at play in just about every state.

This means is that foreclosure trends can be very much a local and dynamic affair. This means you need local advice. Day in and day out I constantly deal with mortgage lenders, and help local homeowners make good decisions about their homes. Give me a call so that I can help you, too.

In VERY RARE circumstances, ALL of your creditors can pursue you even if you file bankruptcy. Here’s how to avoid those rare but dangerous circumstances.

In my last blog I listed three special classes of debts for which you can still be pursued in spite of filing bankruptcy. They are exceptions to the automatic stay, the broad protection from creditors that you get immediately when your bankruptcy case is filed.  But in this blog today I’m talking about a circumstance in which the automatic stay does not apply to your case AT ALL, regarding ANY of your creditors. And about another circumstance that you can lose the protection of the automatic stay 30 days after your case is filed. 

Because of the huge importance of the automatic stay, you absolutely want to avoid these circumstances, as rare as they might be.

For anybody who is thinking about filing a bankruptcy and has NOT had a previous bankruptcy case filed in their name in the last year, and then dismissed, you can stop worrying about this. Or if you have already filed a bankruptcy case recently and I’m getting you worried here, stop worrying if you did NOT have a previous bankruptcy case filed in your name, and then dismissed, in the year before your present case was filed.

But, IF you filed TWO OR MORE prior bankruptcies in the year before your new one, AND they were dismissed, the automatic stay does NOT go into effect with the filing of the new case.  The automatic stay CAN go into effect AFTER the case is filed if certain conditions are met.

Or, IF you filed ONE prior bankruptcy in the year before your new one, the automatic stay EXPIRES 30 days after the filing date, unless certain conditions are met before then. 

The details of the conditions for imposing or preserving the automatic stay are beyond the scope of this blog. What IS of immediate and absolute importance is that you must tell your attorney—AT the BEGINNING of your INITIAL CONSULTATION—if you have filed ANY prior bankruptcy cases, and especially any recent ones.

Now if you’re wondering who goes around filing multiple bankruptcy cases in one year?—it happens more often than you might think.  It tends to come up two ways: 1) A person files a bankruptcy without an attorney, gets overwhelmed by the process and doesn’t follow through, so the case gets dismissed. 2) Or a person hires an attorney, signs some papers, and the case gets filed, maybe without the person even realizing it, and then gets dismissed because he or she (or the attorney, for shame) doesn’t follow through. In either case, eleven months later they’ve forgotten all about it. Or don’t think it’s important.

The point of these anti-automatic stay rules is to stop “serial bankruptcy filers,” the very, very small minority of folks who filed multiple bankruptcy cases, arguably abusing the bankruptcy process, usually to repeatedly delay a foreclosure or some other creditor action.  But these rules can also seriously penalize innocent people in situations like the ones I just mentioned.

Avoid this happening to you by 1) thinking carefully about whether there is ANY possibility that you filed a prior bankruptcy case within the last year, and 2) then telling your attorney if there’s ANY chance that you did. If so, there’s a good chance the bankruptcy court can be persuaded to impose or retain the automatic stay, but only if your attorney knows about the issue in advance and determines whether your case so qualifies.

You can’t count that filing a bankruptcy will instantaneously stop every act against you by every one of your creditors. Or can you?

Isn’t one of the most important benefits of filing bankruptcy the fact that it puts a screeching halt to all collection efforts of your creditors against you and your property? Yes, and in fact in many cases it does exactly that. This benefit of filing bankruptcy is called the “automatic stay,” because at the moment of the filing of your case a legal injunction automatically goes into effect “staying,” or stopping, most actions by creditors against you. But exactly because the automatic stay is something we count on so much, we better know its exceptions.

Today I’m just going to list some of the most important exceptions. Then in the next couple blogs I will explain in practical terms these and other important aspects of the automatic stay.

So creditors CAN do the following in spite of your bankruptcy filing:

1) A district attorney or other governmental authority can begin or continue a criminal case against you, such as an indictment, a criminal trial, or a sentencing hearing. This includes not just felonies and misdemeanors, but also lesser matters like traffic infractions that you might not think of as “criminal.”

2) Your ex-spouse, or about-to-be ex-spouse, or somebody on his or her behalf, can start or continue a variety of divorce and family court proceedings. These include legal procedures to establish paternity of a child, determine or change the amount of child or spousal support to be paid, settle child custody or visitation issues, address domestic violence disputes, and even dissolve the marriage. (Although a marriage dissolution usually cannot include a determination about how assets or debts would be divided between the spouses.)

3) Specifically about child or spousal support, the person owed ongoing support can continue collecting it. If there is back support owed, then in spite of a Chapter 7 filing, the person who is owed the support can in most cases start or continue collecting it. This includes not only collection through wage withholdings and garnishment of bank accounts, but also through seizure of a tax refund and suspension of a driver’s license, an occupational or professional license, or even a hunting or other recreational license. In contrast, a Chapter 13 filing can stop these aggressive methods of collecting back support.

4) Taxing authorities can start or finish a tax audit, can send you a notice that you owe taxes, can demand you to file your tax returns, can assess your taxes and demand you to pay them, and in some situations can even file tax liens against you and your property.

Notice that each of these exceptions involves a special kind of creditor. As I said, the automatic stay stops actions against you by most creditors. But if you are involved in a court proceeding or collection efforts by the criminal or taxing authorities, or by an ex-spouse, be especially aware of these exceptions.

According to the S&P/Case-Shiller Home Price Indices, home prices are going up all over the country. Do these increases signal that we’ve reached bottom and are heading into a period of sustained price increases?

In my last blog I said that S&P/Case-Shiller 20-metro composite index had risen for the last three reported months in row (that’s April, May & June, because of their reporting lag). I remembered that in the last couple of years we had seen another time or two when the long downhill slide hit a price-rise bump, only to turn back down, and more than lose whatever had been gained.

So I thought it would help to compare this time to the recent prior upturns to see if we can get a clue whether this time will be different.

Let’s put the current increase in perspective. From March to June of this year the 20-metro composite index has gone up from 137.63 to 141.30, an increase of 3.67 points. (Remember that these numbers measure home prices at a point in time compared to the price pegged at a value of 100 in January 2000.) This 3-month period of increases feels minor compared to the initial 33 consecutive months of decrease in home prices during the initial sustained slide in prices from the July 2006 peak. During that slide the index fell from a high of 206.52 to 139.26, a loss of 67.26 points. That makes our recent 3.67 point uptick seem minor indeed.

Notice that initial slide ended at 139.26, in April 2009, and we’ve just passed through that same price territory this spring, two years later. What’s happened in the meantime?

Two years of comparatively shallow rises and falls in prices leaving us close to where we started at the bottom of that first slide. Two periods of consecutive months of price increases occurred but were not sustained. Six months of increases totaling 6.51 points, turned into 5 months of price decreases, then 4 months of increases totaling 5.55 points, were followed by a tumbling of prices down to 137.63 this last March, lower than the initial low point nearly two years earlier.

Just from looking at this recent history, our three-month, 3.67 point string of consecutive increases does not look very impressive. At 141.30 points in June, we haven’t gotten close even to where the index had climbed to even just last July, 148.98 points.

One positive sign is the geographic breadth of the current upturn. With the sole exception of Las Vegas, home prices in every other one of the 20 metropolitan areas have increased during this current 3-month March –to-June run. Of these 19 areas, 14 of them had increases in every single month, indicating some consistency within each market as well as across the whole country.

But this was all before the debt-ceiling fiasco, the Standard & Poor’s U.S. credit rating downgrade, and steep dives in both the stock market and in consumer confidence.  Sorry to say, the recent signs are not promising for a steady and consistent increase in home prices.

Home prices are edging up. At least according to the latest monthly S&P/Case-Shiller Home Price Index released in late August. It shows that home prices went up in every single one of the 20 metropolitan areas included in this index.

I’ll look more closely at these price increases and tell you about them in my next blog. But today, I got curious—I’ve been hearing about this index for years without knowing what it’s actually measuring. So I dug a little and here’s what I found out.

At 9:00 a.m. Eastern Time on the last Tuesday of every month, Standard & Poor’s Financial Services releases the S&P/Case-Shiller Home Price Indices. It’s actually not a single index, but a group of them measuring “the average change in home prices” on a monthly basis in different geographic markets. There’s a separate index for each of twenty major metropolitan areas, and also these are “aggregated to form two composites–one comprising 10 of the metro areas, the other comprising all 20.”

These indices measure single-family home prices in comparison to what they were in January of the year 2000.  The price of homes as of that date in each of the metropolitan areas was assigned an index value of 100, with increases or decreases each month based on the percent change in value from that base value. So, for example, an index value of 150 at any particular point in time indicates a 50% increase in home values from what they were as of that base January 2000 date.

It helps to know that the indices reflect only changes in price to single-family homes—not condominiums (they have a separate index for that), co-ops, or multi-family homes. Also brand-new homes aren’t included because of the focus on change in price.

A couple timing aspects are worth understanding. When the indices are made public every last Tuesday of the month, they are for the calendar month nearly two months earlier. So the ones released last week are for June. Also, that set of “June” home prices actually is a three-month moving average, so it includes data for April, May, and June. That’s done for certain statistical reasons to make the conclusions less volatile and more reliable, but seem that would also make them less sensitive to changes in value, and somewhat outdated.

I’m not going to go into the methodology used for the indices, except to say that it was developed in the 1980s by two economics professors, Karl E. Case and Robert J. Shiller, and “uses data on properties that have sold at least twice, in order to capture the true appreciated value of each specific sales unit.” If you want to know more, click on “Methodology” to read a 40-page explanation, including multiple pages of calculus formulas, if that’s your thing!

As I said, more on the just-released information in my next blog. But I’ll reward you for reading this far by telling you that the 20-metro composite index has risen for the last three months in row, going up about 3.7% in that time to a current value of 141.30. But considering that four years ago at the top of the real estate bubble this index was at 206.52, we still have a long, long climb ahead. And that’s if we keep going in a positive direction, which by no means is a sure bet.

In my last blog I gave you the first five of ten big ways that Chapter 13 allows you to keep your home.  Here are the other five.

 

6. If you need to sell your home, Chapter 13 usually gives you much more time to do so than a Chapter 7 case. More time means more market exposure, which usually means selling at a better price. That’s especially true if you are otherwise forced to sell during a slower time of the year, or are trying to sell on a short sale (where the house is worth less than the debt against it). If you are behind on your mortgage payments and in danger of a foreclosure, a Chapter 7 case will usually only buy you an extra three months, and sometimes even less if the creditor is aggressive. Often the only way to stop the foreclosure is by paying the entire arrearage of payments, interest, late charges, foreclosure fees and attorney fees in a lump sum, often totaling tens of thousands of dollars. In contrast, in a Chapter 13 case you can usually maintain the status quo and stay in the house by resuming regular monthly mortgage payments and making meaningful progress towards paying the arrearage. If there is sufficient equity in the property, most or even all the arrearage can often be paid from the proceeds of the anticipated sale, reducing what needs to be paid monthly before then.

7. If you are behind on your child or spousal support obligations, Chapter 7 does nothing to stop collection efforts against you on those obligations, including against your home. Support obligations in most cases turn into liens against the real estate you own, including your home, often giving your ex-spouse the ability to force the sale of your home to pay the support arrearage. On the other hand, Chapter 13 does stop most collection efforts during your case as to any support arrearage which existed as of the time your bankruptcy is filed.  Your Plan must show how you are going to pay that arrearage before your case is completed, and you must stay current on those Plan obligations. But as long as you do, any support lien cannot be enforced against your home. At the end of your Chapter 13 case, you will have paid off the support arrearages, so the lien will be released, with no further risk to your home. (Important: Chapter 13 does NOT stop collection against any new support that you fail to pay after the filing date, so you must stay current on any such new obligations.)

8. In our last blog, I showed how Chapter 13 is usually the better option when dealing with an income tax lien against your home. There I used the situation in which the lien is on a tax debt that cannot be discharged—written off—in bankruptcy. But if the tax upon which the tax lien has been recorded can be discharged—because it is old enough and meets the other conditions for a dischargeable tax debt—dealing with the lien against your home in this situation is also better under Chapter 13. Depending on the amount of equity you have in your home and other possible factors, the IRS or other taxing authority may well not release the tax lien even after the underlying tax debt is discharged in a Chapter 7 case. In a Chapter 13 case, in contrast, there is an established mechanism for determining the value of that lien, and for paying it, so that at the completion of your case the tax debt is discharged and its lien is satisfied.

9. If you have fallen behind on property taxes, Chapter 13 is often the better way to deal with them. Usually, being current on property taxes is a condition of your mortgage, giving your mortgage lender an additional independent reason to foreclose if you are not. (This assumes you are not set up to pay the taxes through the “escrow” portion of your mortgage payment, but rather directly to the property tax authority.)  By showing in your Chapter 13 Plan how you are curing your property tax arrearage—even if it takes years to do so—your mortgage lender is no longer able to say you are in breach of your mortgage and justify foreclosing on that basis.

10. Saving the most obvious for last, people often file Chapter 13 to prevent a Chapter 7 trustee from taking assets that are worth more than the applicable exemptions. And that applies to your home as much as anything. If you have more equity in your home than the homestead exemption allows, you risk losing your home in a Chapter 7 case. That risk is aggravated these days because the highly irregular housing market makes property appraisals difficult to predict accurately. Chapter 7 trustees have a great deal of discretion, and predicting how aggressive yours will be is made even more difficult because in most places there is no way of knowing which trustee will be assigned to your case. In contrast, usually all Chapter 13s in a region are assigned to the single local “standing trustee.” So we are familiar with his or her inclinations. Even more important, Chapter 13 provides a much more predictable procedure for determining the value of a home, and a mechanism to protect the value of the home in excess of the homestead, if any.

In a nutshell, Chapter 13 provides quite a number of tools to help you keep your home. Simply said, it gives you more control over the situation. It is definitely not the automatic answer just because you have a home in distress, because Chapter 13 certainly has its limitations. But it is often a powerful option that you should discuss carefully with your attorney.