I often have clients come to me and ask me to help them renegotiate their debts without filing bankruptcy. In many cases I can and do help people reduce the principal amounts they owe to their creditors through direct negotiation. One important thing a lot of people don’t realize, though, is that the IRS treats debt cancellation as taxable income if the debt was not forgiven through the bankruptcy process. If you owe your bank $60,000 and negotiate with them to reduce the principal to $40,000, the bank will send you a Form 1099-C reporting $20,000 of canceled debt, and you will have to report that $20,000 as income and pay taxes accordingly. That can lead to a nasty surprise at tax time!

By contrast, debt that is canceled through bankruptcy is not considered income and you do not have to pay taxes on it. If you’re in a position where you can’t pay your creditors, filing bankruptcy can help you as much as or more than independent debt negotiation, and also provides you with a host of legal protections and benefits that you won’t otherwise get.

Note that debt cancellation is not the same thing as interest rate reduction through credit counseling, which does not have any effect on your taxable income.

For more information, read our article Is Debt Negotiation Right For You? For more about canceled debts and taxes, see IRS Publication 4681: Canceled Debts, Foreclosures, Repossessions, and Abandonments.

With bank seizures of foreclosed homes at record levels, the Obama administration continues to treat bankruptcy court as the proverbial elephant in the room. As this New York Times editorial observes, the administration’s Pollyanna-ish belief in the willingness of banks to voluntarily modify principal balances for homeowners facing foreclosure has led to a standoff between primary and secondary mortgage holders:

Investors, including pension funds and mutual funds, often hold the first mortgages. Banks often hold home-equity loans and other second mortgages. Investors reasonably believe that second liens should be reduced before the primary mortgage is modified, but banks balk at that because it would prompt write-offs they don’t want.

Fortunately, investors are getting tired of this foot-dragging:

Some investors, notably the powerhouse group BlackRock, have called for a special bankruptcy process to resolve the standoff. The court would seek to reduce bankrupt borrowers’ total debt to affordable levels, starting with unsecured debt like credit cards, then undersecured debt, like second mortgages, and then, if necessary, the primary mortgage debt.

Giving bankruptcy judges permission to modify the terms of mortgage loans–isn’t that what we’ve been saying for years? Maybe this time the message will get through to Congress and the administration.

Maybe so, according to Bloomberg (via the P-I‘s real estate blog):

House Financial Services Committee Chairman Barney Frank threatened to revive the mortgage “cram- down” bill that stalled in Congress this year, saying lenders aren’t being aggressive enough in modifying troubled home loans.

Cram-downs let federal judges lengthen terms, cut interest rates and reduce mortgage balances of bankrupt homeowners, even if the lender objects. Congress gave the mortgage industry every legislative tool it requested to allow them to more easily modify loans for those facing foreclosure, and the results have been below expectations, Frank said in a statement today.

“People in the servicing industry and in the broader financial industry must understand that if this last effort to produce significant modifications fails, the argument for reviving the bankruptcy option will be extremely strong, and I think there is a substantial chance that the outcome will be different,” Frank, a Massachusetts Democrat, said.

Great news, if it happens. Meanwhile, last night’s Daily Show brought us the story of one particular man who might want to take advantage of such an option:

When a debtor files for bankruptcy, the very first thing that happens is an automatic stay, which prevents creditors from attempting to collect from you while the bankruptcy process proceeds. Last year, an influential case, In re Meadows, came out of the Sixth Circuit Bankruptcy Appellate Panel saying that a payday lender can cash a post-dated check given to it by a debtor at the time of the loan, even after the debtor has filed bankruptcy. At Seattle Debt Law, we believe this decision is incorrect: cashing such a check should be considered a violation of the automatic stay. The court in that decision found that there was an exception to the automatic stay in a case where a creditor is “negotiating”—cashing—a check.

Our interest in the Meadows decision was piqued a few months ago when one of our Chapter 7 bankruptcy clients was the victim of a payday lender who took the money from her account over a month after we filed the bankruptcy case. We are currently fighting this in the bankruptcy court and hope that our judge will conclude that a post-dated check given in exchange for a payday loan is nothing more than collateral that cannot be seized during the automatic stay. Washington is not in the Sixth Circuit, so we’re hopeful that the judge will not be guided by the Meadows decision and will recognize that the action taken by the payday lender was unlawful. We will keep you up to date and informed on how the case turns out.

…and across the state, too:

In February, more than 2,300 households in Washington state declared bankruptcy, up more than 50 percent from a year ago. The most densely populated counties — King, Pierce and Snohomish — together accounted for 1,138 filings.

Check out the interactive map, too. Puget Sound is in the thick of it.

The cramdown bill passes the House, 234-191. All of our Western Washington representatives voted for the bill except for Dave Reichert, the only Republican in the bunch.

The U.S. House of Representatives is scheduled to vote within the next couple of hours on H.R. 1106, the Helping Families Save Their Homes Act of 2009, which would allow bankruptcy judges to modify the terms of a mortgage to help prevent foreclosures. Please call or fax your representative’s office and tell them you support the bill.

Phone numbers for Seattle-area representatives:

Something I’ve wanted to do for a while is to write a series of posts educating the layperson about the fundamental concepts surrounding bankruptcy, debt, personal finance, and related issues. The law in these areas can be complicated, and most people, if they’re lucky, have never had to deal with it. In these troubling economic times, however, it’s more important than ever that people understand the legal framework dealing with consumer debt and know their rights and responsibilities. To kick off this series, which I’m calling SDL 101, I thought I’d address the topic at the center of my practice:

What Is Bankruptcy?

Bankruptcy is a legal process through which debtors who cannot meet their obligations are allowed to seek a “fresh start,” subject to a myriad of regulations designed to prevent abuse. Far from being a new concept, the roots of bankruptcy can be found as far back as the Book of Deuteronomy, in which God required the Israelites to forgive all debts owed to one another every seven years. In societies without a concept of bankruptcy, the penalties for not paying one’s debts were (and in some cases still are) often quite severe, including debtor’s prison and even slavery, sometimes affecting multiple generations. Perhaps mindful of the debtor’s prisons of mother England, the Founding Fathers wrote bankruptcy protection into the U.S. Constitution: Article I, Section 8 gives Congress the power to enact “uniform laws on the subject of bankruptcies throughout the United States.”

The bankruptcy process is designed to provide the debtor with protection from collection attempts and an opportunity to “start over from scratch,” while still providing creditors with partial or full repayment of debts if possible. When a debtor (an individual or a business) enters bankruptcy, the court appoints a trustee to account for and assess the debtor’s assets and debts, and determines what assets the debtor is entitled to declare as exempt from collection. The debtor’s non-exempt assets, if any, are then sold, and the proceeds go to pay the creditors according to formulas in the law. In some kinds of bankruptcy, the creditors are also entitled to a portion of the debtor’s earnings for a set period of time after the bankruptcy filing. When a debtor successfully completes the bankruptcy process, all dischargeable debts are canceled and the debtor is declared free and clear of any further obligations to repay the discharged debts.

Bankruptcy in the United States is federal: all bankruptcy cases are handled through the federal court system, and the relevant laws apply equally in all states (although state laws can apply when calculating exemptions, as explained below). Bankruptcy law is codified in Title 11 of the United States Code (“11 U.S.C.”). Title 11 currently consists of 9 chapters, which are assigned numbers between 1 and 15 for administrative purposes. Three of these chapters deal with administrative matters like definitions and general provisions. Each of the other 6 chapters creates a set of rules under which petitioners may file for bankruptcy. Of these 6 chapters, the vast majority of bankruptcies in the United States are filed under three: chapter 7, chapter 11, and chapter 13.

• A chapter 7 bankruptcy, also known as straight bankruptcy, is available to both individuals and businesses. A chapter 7 bankruptcy is a liquidation process, which means slightly different things depending on whether an individual or a business is filing for bankruptcy.
  
  When a business files under chapter 7, the business is literally liquidated: it goes out of business permanently. The trustee sells off all of the filer’s assets, and the proceeds go to pay the creditors. At the conclusion of the bankruptcy process, the business no longer exists as a legal entity. (Note, however, that brands and trademarks are considered saleable assets, which often survive the demise of the business that created them. One recent example is Napster, the notorious file-sharing service that declared Chapter 7 bankruptcy in 2002. The Napster name and logo were purchased at the bankruptcy auction by an unrelated company, which operates under them to this day.)
  
  When an individual (or a husband and wife filing jointly) files under chapter 7, the trustee accounts for any exemptions the filer is entitled to before determining what assets, if any, should be auctioned off to pay the creditors. The bankruptcy process isn’t intended to ruin people, so exemptions allow the individual to keep certain assets deemed necessary to lead a normal life: clothing, household goods and furnishings, motor vehicles, and retirement funds are all examples of categories of assets that can be declared exempt up to a certain dollar value. In some cases, exemptions allow filers to avoid foreclosure on their homes. (I’ll talk about exemptions in depth in a future installment). In many cases (so-called “no-asset” cases), the debtor does not have any non-exempt property at all, so the creditors receive nothing.
• A chapter 11 bankruptcy involves reorganization, rather than liquidation. Chapter 11 is primarily used by businesses, although some high-income or high-asset individuals may be required to file under chapter 11 in rare cases. Chapter 11 allows businesses to continue operating during and after the bankruptcy process, although not all chapter 11 filers choose to remain in business. Whereas in a chapter 7 bankruptcy the trustee takes control of the debtor’s assets directly and liquidates them, a chapter 11 filer is allowed to develop its own plan for reorganization and partial or full repayment of creditors, subject to the approval of the trustee. Chapter 11 plans usually involve a portion of earnings going directly to creditors for a period of time after the filing, as determined by the details of the plan.
• A chapter 13 bankruptcy is available to individuals only. Chapter 13 involves reorganization, like chapter 11: rather than undergo asset liquidation, the debtor proposes a plan to fully or partially repay his or her creditors over time, subject to the approval of the bankruptcy trustee. Whereas chapter 7 bankruptcies take place immediately, chapter 13 bankruptcies last for either 3 or 5 years, depending on the financial status of the filer, and typically require the debtor to pay a portion of his or her earnings to the court for disbursement to creditors throughout the term of the bankruptcy. As with the other forms of bankruptcy, individual chapter 13 filers are entitled to claim certain exemptions.

The other forms of bankruptcy are rare. Chapter 9 governs debt restructuring by municipalities. When Orange County, California declared bankruptcy in 1994, it filed under Chapter 9. Chapter 12 is a reorganization chapter that is available only to family farms and commercial fishermen. Chapter 15 was added to the bankruptcy code in 2005 and addresses international bankruptcies.

This is obviously a very cursory and incomplete examination of a very complex topic, and I hope to go into further detail about many of the things discussed above as this series progresses. For now,  you can learn more by consulting some of the following resources:

• Wikipedia article on bankruptcy
• Bankruptcy Basics, published by the United States Bankruptcy Courts
• National Association of Consumer Bankruptcy Attorneys

This is pretty huge:

For the first time since the housing crisis began, a major mortgage lender agreed Thursday that courts should be allowed to order reductions in the principal of “underwater” loans for some troubled borrowers, cracking what had been fierce and unified industry opposition.

The agreement struck between congressional Democrats and Citigroup Inc. would permit bankruptcy judges to change the terms of mortgages as part of court-ordered debt restructuring. Democrats hope to include the provision in the upcoming economic rescue legislation under negotiation between Congress and the incoming Obama administration.

Getting the rest of the lending industry on board with the Durbin cramdown bill won’t be easy, but Citigroup’s support might make it politically more difficult for congressional Republicans to filibuster or otherwise block the legislation, if they’re of a mind to do so.

Sen. Durbin’s bill is S.61, if you’d like to track its progress.

Update: See this post by Tanta at Calculated Risk for a good primer on the cramdown situation.

The One Hundredth Eleventh Congress is starting off on the right foot:

Legislation designed to stem foreclosures by allowing bankruptcy judges to erase some mortgage debt will be introduced by Congressional Democrats on Tuesday, and hopes are high that it will pass after a similar plan failed last year.

Democrats in both the U.S. House of Representatives and Senate plan to introduce the legislation.

If it passes, this legislation will allow bankruptcy judges to rewrite the terms of mortgages held by bankruptcy filers, potentially preventing thousands of people from losing their homes. The bill is being shepherded forward by Rep. Brad Miller (D-N.C.) in the House and Sen. Dick Durbin (D-Ill.) in the Senate. President-elect Obama supported the legislation last year and can be expected to sign the bill if it passes this year.