bankruptcy

September 22, 2020 By Leo Spanos

New Homestead Exemption Will Have Significant Impact On Bankruptcy Practice In California

With the stroke of a pen, California’s homestead exemption — the amount of equity in one’s primary residence that can be protected from creditors — increased from $75,000, $100,000, or $175,000 (depending on the circumstances) to the greater of $300,000 or “the countywide median sale price of a single family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption,” up to $600,000. Put simply, the exemption increases from up to $175,000 to $600,000, depending on the county. This represents a sea change and will help thousands of homeowners in need of bankruptcy relief avoid having their homes sold by a trustee and used to pay creditors. Governor Gavin Newsom signed Assembly Bill 1885 into law on September 15, 2020.

Countywide statistics on sales can be found on www.zillow.com. Counties with median sale prices over $600,000 include Los Angeles County, San Diego County, San Francisco County, Orange County, Contra Costa County, and Alameda County.

In a Chapter 7 liquidation, a trustee will be appointed and sell any assets with equity exceeding statewide exemptions. Most peoples’ main asset is their house. Prior to the law, if you had debts totaling $100,000 but equity of $500,000 the trustee would sell your house and pay your creditors. This would leave you $400,000 (minus bankruptcy fees and costs) to find new housing. Given California’s real estate market, this would be a tough task. (Why would you file for bankruptcy in this situation? Maybe your wages were being garnished or you were being sued or facing foreclosure.) If you want to keep your home, a better option would be a Chapter 13 reorganization. You would be required, however, to commit to a 3-5 year plan under the supervision of a Chapter 13 trustee and the Bankruptcy Court. About half of Chapter 13 plans are not successfully completed.

Using the above example, the new law allows you to discharge, i.e., cancel, the $100,000 in debt and still keep your house in a Chapter 7 bankruptcy. Since your equity was below $600,000, it can’t be touched by a trustee. If you do not qualify for a Chapter 7 or a Chapter 13 better suits your needs (e.g., behind on your mortgage and facing foreclosure or recent tax debts), you could still likely discharge the majority of your debts – subject to other limitations — under a plan of reorganization because your equity would be protected from creditors.

Given that many Californians are in financial distress despite having significant equity, the new law – which takes effect January 1, 2021– offers much needed relief. If you have questions regarding this or other legal matters, you should consult an experienced attorney who can evaluate your particular situation and provide individualized guidance.

This is just a basic overview and is not legal advice specific to your situation. If you have questions about your rights when it comes to debt and credit, you should speak with an attorney in your area for legal advice. If you live in California or North Dakota and would like to speak with Jen Lee Law regarding your situation, please schedule an appointment.

September 8, 2020 By Leo Spanos

No, The Tenth Circuit Court of Appeals Did Not Say You Can Discharge All Your Student Loans in Bankruptcy

You may have read headlines recently such as “Court Allows Bankruptcy Discharge of $200,000 in Student Loans” and thought now is the time to file bankruptcy and get rid of your student loans. Unfortunately, headlines can be deceiving. In McDaniel v. Navient Solutions, LLC, the Tenth Circuit Court of Appeals affirmed the bankruptcy court’s ruling denying Navient’s motion to dismiss the borrower’s complaint to discharge $200,000 in private loans. The default rule in bankruptcy is that debtors with student loans must show “undue hardship” to discharge student loans; otherwise the borrowers remain liable, even after a bankruptcy discharge that eliminates other debts including credit cards, consumer loans, and medical bills. Showing “undue hardship” entails filing an adversary proceeding in the bankruptcy case; it is a difficult and expensive undertaking and many attorneys won’t even try.

The ruling in McDaniel is significant because it says that private student loan borrowers are not required to show “undue hardship” because private loans are not covered under the applicable Bankruptcy Code Section. The decision, however, should be understood with the following caveats –

The ruling related to a lender’s motion to dismiss the borrower’s complaint; it did not affirm a decision discharging the student loans; the Appellate Court denied the lender’s motion and sent the case back to the bankruptcy court for further litigation; the amount, if any, of the loans actually discharged may be significantly less;
The ruling related to private student loans as opposed to public student loans;
Some of the loans in question do not appear to have been used for tuition (“cost of attendance”); and
The ruling is limited to jurisdictions under the Tenth Circuit Court of Appeals (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, Utah, and parts of Montana and Idaho);

Borrowers seeking to discharge federal student loans – or loans insured or guaranteed by the government — are not affected by this decision and must still show “undue hardship.” That some of the loans in question were not used to pay tuition could also be significant. Had the loans been used exclusively for the cost of attendance, the result may have been different. It also remains to be seen whether other Appellate Courts will adopt the reasoning used by the Tenth Circuit or if Navient will appeal to the United States Supreme Court. If you have questions regarding students loans, you should consult an experienced attorney who can evaluate your particular situation and provide individualized guidance.

June 15, 2020 By Jen Lee

I Didn’t Know You Help With That!

I always say that one of the most frequent sayings I hear is, “I didn’t know…” and it happened again on Friday.

I was reminded this week that people may not realize how we help individuals and business owners with debt and credit strategy (or maybe what that means). A networking partner reached out to me to ask when I would get involved with a business that has not been able to operate due to COVID-19 and had some debt they were worried about how to pay.

Here was my response:

Thanks for your email! I’ve been doing a lot of strategy sessions to look at various options for businesses. We generally are looking at potential personal liability on the debts, what happens if revenue doesn’t come in, and the possibility of settling debts when needed. Also, if there’s a personal guarantee on the lease, that’s something that would need to be planned around.

The session on my website is offered as a COVID-19 Financial Stress Strategy Session (link in my signature).

The networking partner responded that she had no idea that I did these 1-hour sessions and that is a very valuable resource for those needing advice.

This really gets to the heart of getting advice at the time it is needed instead of waiting until it’s too late or trying to book free consultations with various attorneys to piece together advice. Many of our clients do not need expensive legal solutions or a bankruptcy. They just need to make sure they are on the right track and not making more mistakes that will lead to expensive legal solutions or bankruptcy in the future. That’s what our strategy sessions offer. Clients leave with a plan, an outline of options, and a discussion of pros/cons of those options.

So, yes, I help with that!

New Homestead Exemption Will Have Significant Impact On Bankruptcy Practice In California

No, The Tenth Circuit Court of Appeals Did Not Say You Can Discharge All Your Student Loans in Bankruptcy

I Didn’t Know You Help With That!

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