Friday, August 10, 2007

What to Look for in an Attorney

Hiring an attorney is difficult for several reasons:


1. You are under stress most of the time when you hire an attorney -- something has gone wrong and you want an attorney to "fix" it.

2. Good attorneys are busy. This is true of every other profession that I know. For example, we schedule my husband's doctor's appointment for route care 1 month before we want to see the doctor.

3. It is hard to tell if the attorney is a good match or not at just one meeting.

So what is a person to do?

Know your goals for the relationship. I try to keep my clients' eyes on their goals for the case. If they hire me for a bankruptcy then they have a reason to be in the case. For example: I am trying to get my clients to think about what they want at the end of the case: it could be to just stop the creditors and/or collectors from calling; or it could be to pay off a car. It helps everyone to know what you want ... if you don't know what you want then you are not likely to get it.

Communication styles matter. You and your attorney must be able to communicate. Don't let the attorney talk over your head. A good attorney will take you step by step through the process of the case. If you don't understand you could make a lot of mistakes. Ask questions! Now please don't call every 5 minutes with a new question ... nor am I suggesting that you ask everyone in the office the same question over and over just to see if you get a different answer. But you need to understand what is going on in your case. It is your life and you need to understand what is going on in your case.

Thursday, August 9, 2007

Stipulated Orders With Drop Dead Clauses

It has been a hard week in the office. I know that money is still tight out there for many people. And don't even get me started on the 6-month mortgage increases that are putting so many houses into foreclosure. How do I know that money is tight? Well, clients have been ringing the phone off the hook begging for just one more chance to save their home from foreclosure. We have been lucky and smart . . . but we have not been able to help everyone. I hate that so much! I got into bankruptcy to help people and I want it to work as much as the clients do ... some times I think that I want it more ... I hate to lose.

This is how it goes: clients are behind in their mortgage payments and on the steps of foreclosure ... so they see us and because they did not wait until the last second to see us they file a Chapter 13 bankruptcy to save their home. We work our behinds off typing up just enough the case to stop the foreclosure ... we make it look too easy I think some times ... because we do it all the time. We call, fax and mail a copy of the bankrutpcy notice to the creditor's attorney ... we have had to have our clients stand on the Courthouse steps and hand the creditor's attorney a copy. And we win for our clients a chance to save their home! Yea!

I tell everyone make your house payments ... you may not get another bite of the apple ... and keep a copy of the payment because you have to prove that you made the payments! So, life goes on and my clients run into a bit a rough spot. Then, the next thing you know I get a motion to lift the stay on the house. We send our clients a copy of the motion and a letter telling them to get on the phone or in the office with proofs of payments and let us know what they want to do. Nine times out of ten, my clients want to keep the house. So, if we can't prove that they are current ... we agree to a 6 month repayment plan for the missed payments due the middle of the month. We try our hardest to not agree to a Drop Dead Clause .... A Drop Dead Clause means if you brake it you lose ... you are dead in the water. But as the Judges are allowing the stays to be lifted if the agreement is not signed ... we are doing more Drop Dead Agreements. Additionally, the Judges are clear, for the most part, that Debtors do not get an endless number of chances. (I have had the Judge tell me that they were sorry that my client was losing their house but ... only so many chances. My Judge did not have to tell me that because I knew that he wanted my client to be able stop their home going into foreclosure... but at some point the creditor has to be able to move forward and sell the property. I have great Judges, who work hard to apply all of the laws fairly.)

Then, life goes on and my clients get behind in their house payments for the 3rd time. I get a letter or notice from the creditor saying that my clients are in default. Because of these drop dead agreements, our clients have 10 days to get current or prove that they are current or the creditor's attorney sends an order to the court lifting the stay. We have only 10 days to file an objection -- and then only if we can show that the order should not have been entered. Or, I have filed a motion to reconsider ... if the facts were good. Last week, we disagreed with the creditor's attorneys to the point that we are sueing the mortgage company and their attorneys. More on that later ... with my client's permission of course.

So, we when get the notices, we write our clients. We also try to call them. I have to get more email addresses because I think that I will have the staff start writting them. (Problems with being sure that no one else can read it ... more later.) Yesterday, I was about to give up on my client being able to keep the house. As I was leaving to go to court, I asked Tom to get out the Order and look at it to see if there was any hope for our client. Creditors often change law firms, and the new firm may not have read the order carefully to see if the clause was there or not. Well, thank goodness, my client's order was lacking the part requiring them to make the on-going payments or face the drop dead clause ... so our clients dodged the bullet.

For my clients: I hate signing Drop Dead Agreements but I will:

(1) if it is to save your home;
(2) and you tell me that you understand.

But then understand that my hands will likely be tied if you fail to live up to the terms of the agreement. You have agreed in advance to what would/should happen it you don't make the payments on time.

So much for my soap box tonight. Bankruptcy Part II will be posted next week.

Take care,

Susan

Tuesday, August 7, 2007

Bankruptcy Basis in Missouri and Kansas part one

Part One
There are 4 types of bankruptcy that people can file. There are other types – for other entities like rail roads companies can file. But there are only 4 types for people. First, let’s talk about the ones that most of my clients don’t file. Chapter 11 is reorganization; it is not for most people because the retainer for the attorney’s fees is over $10,000. The second type is for farmers. That leaves us with Chapter 7 and Chapter 13. Chapter 7 is liquidation, and Chapter 13 is reorganization.

I file more Chapter 13s than Chapter 7s in my practice because my clients have houses and cars to save and they can do that can do in Chapter 13. Chapter 7 is liquidation, but most people don’t lose anything. Missouri and Kansas both decided to only allow their state’s exemptions and you can’t use the federal exemptions in bankruptcy cases … unless you are not a resident of the state.

Kansas is a great debtor state. Missouri is a creditor state. This makes practice in our border town very interesting. I tell my clients and my staff to walk me through the following questions before I can answer bankruptcy questions. First, is the case Kansas or Missouri? Second, is the case Chapter 7 or Chapter 13? Third, is the case filed? The answers to these questions change my advice.

Why is Kansas a debtor state? Because the exemptions are very good for debtors in Kansas, so it is a good place to be a debtor. The exemption for cars/trucks is $20,000 per car per debtor. Compared with Missouri’s cars/trucks exemption is only $3,000 per debtor per car. In Kansas, the household goods exemption is all of the furniture, clothing, heating fuel that you and your family need for the next year. In Missouri, the household good exemption is $3,000 per debtor. The crazy part is there is no exemption for cash in Kansas. Missouri has a wild card exemption and exemptions for each child under the age of 18 and head of house hold exemption which can be applied to cash, tax refunds or any thing that they want to exempt. Missouri is a creditor state because it is a good place to be a creditor.

This blog is not intended to give anyone legal advice. See an attorney for legal advice in your case.

If you are looking for an attorney in the Kansas City Area, call our office for an appointment at (816-453-2240) or email us at www.bratcherlaw@yahoo.com. We represent Debtors in Chapter 7 and 13s.

Monday, August 6, 2007

Borrowing Money While in Bankruptcy

First, it is possible to borrow money while you are in Chapter 13. Shocked? Most of my clients are when I first tell them this. Yet, every month we have clients buying new and newer cars/trucks and houses while they are still in bankruptcy. It requires some planning but we do it every month. As a general rule, it is hard to borrow money when you are in your case, but just last week we did some motions for several clients to buy cars/trucks at very good interest rates -- under 8%.
So, how did they do it? First, you have to believe that it is possible. Clients are not bad people or even bad credit risks just because they are in bankruptcy. Many clients just need a little time to get back on their feet. When I was at the CLE in Florida this summer I talked to a mortgage lender who lends to Chapter 13 debtors to help them buy out of their case by refinancing their mortgages. This is not for everyone. But it is the right thing for some people. Check with your attorney (if you are my client schedule an appointment) to see if it is right for you.
To borrow enough money to buy a car/truck are house, in Western District of Missouri and Kansas - Kansas City Bankruptcy Courts we have to have all of the facts for the court -- what they want to buy, how much money is the sales price and how much money is the loan, the interest rate, the monthly payment amount, and the number of months of payments. We put this all in a motion and put the issue before the court. We may ask the Court to rule on the matter without having a hearing. We do this all the time and only a few times do we have to have a hearing.
With my client's permission, I want to tell you about what happened to a client this year. They were in Chapter 13, and they needed to buy a different car/truck. So, they go to the car dealership and pick one out. They tell everyone that they are in bankruptcy and they need to contact their attorney and get permission to borrow. The car dealership tells them at they are wrong. Many of my clients in Missouri get out their trustee's book and see that it says that they need permission and they call us. Good job! My clients call me and they say that man (Mr. Fink, the chapter 13 Trustee( told them at the 341 meeting (meeting of creditors) that they needed to contact their attorney and get an order from the Court. But the car dealerships don't all know anything about bankruptcy. Many of them believe that all my clients need is a note from the Trustee. Well, there is no note to borrow large amounts of funds available from the Trustee's office. (Some amounts may be approved by some Trustees, but not enough to buy a new car or a house.) It takes a court order. We get the Court Orders from a Judge. It requires a motion and maybe a hearing before the court. I have been told by my clients that the car dealerships told them that we were not very good attorneys if we could not get the letter from the Trustee's office to borrow amounts like $10,000. Well, if it could be done we would be doing that. It is faster than drafting the motions and seeking court approval.
Back to my story, in the end the car dealership conceded that they were wrong and it took a court order for my clients to borrow money. This is because the finance companies wanted either an order or a discharge from my clients. So, for all of my clients -- call us and we will work to get you an order to get that new or newer car/truck or a house.

Bye for now,
Susan

Saturday, July 28, 2007

New Web Pages and Lien Stripping

I am working a new web site for our business at http://www।bratcherlaw.biz/.
We had a very exciting week। We filed several adversary cases against mortgage companies, and I see more to be filed in the next few weeks. With my client's permission, I hope to bring you some updates as these cases go forward.

We file several different types of cases against mortgage companies. One of the coolest things about bankruptcy law is that you can lien strip second mortgages if they are whole unsecured. I know you are saying what the heck does that mean.

Let's say that a house is worth $100,000. The first mortgage is for $110,000. Then there is a second mortgage (or in Missouri a deed of trust) for $25,000. Lenders are only secured up to the value of the property. So, in this case the first lender is under secured by $10,000. The value of the property is less than the lien by $10,000. Moreover, the second lender has nothing securing their lien. They are unsecured because the property has no value left over from the first lien. So, in a Chapter 13, we can lien strip the second lender. That means that they are treated as an unsecured creditor. It could mean that the second lender will not be able to collect on the mortgage after the discharge and the Debtors still get to keep the house. They would not even have to pay the lien when they sell the house. How cool is that?

We have a big day tomorrow. So, I better sign off. Oh, Jewel have a wonderful and safe trip! Congratulations to the happy couple! Donna: I hope that the new baby arrived safely! Congratulations to the happy new parents!

Friday, July 27, 2007

Foreclosures

There is nothing like losing your home. After all home ownership is a big American dream. If you receive notice that your home is in foreclosure contact an attorney asap. This past month we have had phone after phone call from people with misinformation about foreclosures. Please don't take legal advice from non-attorneys!

First, in Missouri, foreclosures are easy to do. Moreover, they are very quick. For most deeds of trust (in other states these are often called mortgages), the creditor has to mail the notices certified return receipt requested (is most often required) and publish in the legal newspaper. I have news for my fellow Missouri residences: the creditor does not have to show that the borrower received the letter. They merely have to mail it to the correct address 20 days before the foreclosure. Yes, 20 days! Additionally, real people don't even know about most of the legal newspapers. So, they are unlikely to read it. On the other hand, many of my fellow bankuptcy attorneys write the borrowers to see if they are seeking legal services.

Secondly, in Missouri, foreclosures are hard to undo. I am not saying that we have not had a few foreclosures set aside ... we have. It is always exciting to win this kind of case as it is a long shot for most cases. I have also lost on setting aside a foreclosure ... in part because even though my client's address was wrong it was close enough for the mailman to testify that he delivered mail to my client's address with the wrong street name often. Additionally, the mailman testified that my client did not take their mail out of the mailbox most of the time. If you recieve a certified letter -- go get it and open it. No one can tell you want is in the letter without someone opening the letter and reading it.

There are things that can be done to stop a Missouri foreclosure before it happens or to help someone redeem the house after the sale. Redeem means to get the house back. However, you can't just wait. One of the ways to stop a foreclosure is to file a bankruptcy. When you file bankruptcy for the first time the automatic stay stops foreclosures. (Different rules apply if it is not your first case, seek legal advice to see these different rules and how they apply in your case.) This stops the foreclosure. The Chapter 13 plan deals with the missing house payments and my clients start down the road to their fresh start.

First, let me say that Kansas has better laws for debtors than Missouri does. Foreclosures take longer as it has to go to Court. Judical foreclosure is the most common manner of foreclosure. Second, the law on redemption is much better. The time to redeem is based on many factors and you need to see an attorney for advice on your case. I won't waste your time spelling all of the rules out.

If you receive notice of a foreclosure, you need to sit down and have a talk with yourself and your family. I suggest that you go though the following questions:
1. Do you want to keep the real estate?
2. Do you owe the money? Have you made payments that are not accounted for by the lender?
3. Do you have an equity in the property? (Do you owe less on it that you could sell it for here and now?)
4. Can you make the on-going monthly payments?
5. Can you get current before the sale?

Before the notice of foreclosure, when you are falling behind in the payments is the time to call the lender and try to work something out. I know many people who have been successful in working out with the lender a plan to make up the missing payments. However, if you fall behind in your work-out deal with the lender ... get to an attorney to see your options.

Bankruptcy is a powerful tool. It can help people get back on their feet after getting behind on their bills. However, it takes a lot of work and time. It can stop a foreclosure but it still takes money to make the monthly house payments. With these new adjustable rate mortgages, many of my clients are forced to let the house go back to the lender.

Wednesday, July 25, 2007

Helpful Links

I wanted to link to www.chfpatients.com because it saved my husband's life. Jon, the host of chfpatients.com, is wonderful. My husband has CHF, and I really didn't know anything about it before I found Jon's cite. Before my husband became ill, he was a fire fighter at a very busy firehouse. Then, he caught was seemed to be a cold and it hung on. He went to the doctor's office 3 times before they found that his heart was enlarged and beating out of sync. My mom pushed me to keep looking for answers and try to understand what the heck was going on with my husband. She knew that I really needed to get my head around what the doctors were really not saying. Without Jon's hard work, I don't know if my husband would be alive today.

Many of my clients are in my office looking for help because someone -- their spouse, their parents or their children are ill. It is the biggest reason people come into my office to try to get control of their financial lives ... because their house is in foreclosure or a law suit or the creditor is coming to pick up their car/truck. Talking to an attorney gives them the information that they need to see what they can do. Some clients have had such a change of circumstances that they have to pick between: cars and houses. More than a few clients have decided to let some of their property go back to the creditor. This is never easy and it requires information.

The other link that we have added is to Angel Food. Please look at it if you need help with your budget. For many people it is the difference between having good food to feed their families and going hungry. It is a God send to everyone that uses it. It can make a difference in your life. Take a look at it. The food is wonderful and the people are very good to work with.

I will be adding the immigration software link in the next few weeks. I have too many cases in process just now to add it this week.

Bye for now,

Susan Bratcher