“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.

Considering what’s at stake, if you are either a legal or illegal immigrant considering filing bankruptcy, this is definitely an area where you need the advice of both a bankruptcy and an immigration attorney. It’s my job to give my clients advice, but sometimes the most important thing to tell them that they need the additional help of another professional. This is one of those situations.

When you go to meet with each attorney, here are some general principles that can guide your consultation with them:

1. Just as the bankruptcy documents don’t ask you anything about your citizenship status, your naturalization application will not directly ask anything about filing bankruptcy. Bankruptcy is a legally accepted method for dealing with your debt. In fact it may even help you avoid dealing with your financial circumstances in more desperate ways, ways which could jeopardize your immigration prospects.
2. To become a lawful permanent resident or citizen, an immigrant must establish “good moral character.” It is conceivable, although not likely, that your bankruptcy filing could be seen as an issue of moral character. Immigration is considered on a case-by-case basis, so you need to talk with an immigration attorney thoroughly familiar with current practices.
3. If you have been convicted of one of a certain set of crimes, or if you reveal during your bankruptcy proceeding that you committed one of these crimes, these could adversely affect your immigration status. Certain crimes could even result in deportation. Examples include crimes of “moral turpitude” like using credit cards in other people’s names, writing fraudulent checks in more than one state, tax evasion, fraudulent transfers of assets, or providing false information to the federal government (for example, in bankruptcy petitions!).
4. Your citizenship application will ask if “you have ever failed to file a required federal, state or local tax return,” and whether you owe any overdue taxes. Bankruptcy can legally write off some taxes, but there may well be adverse immigration consequences for doing so. This is especially problematic if you have been working and getting paid “under the table,” and not having taxes withheld.
5. If you’re not legally in the U.S., you are definitely exposing yourself to the legal system by filing bankruptcy. False social security numbers—either on the bankruptcy documents themselves or even on prior credit applications—would likely lead to huge problems. In some parts of the country, U.S. Attorneys appear at the Meeting of Creditors to ask about these and other immigration related matters. You are under oath and may find yourself in a very sensitive and dangerous situation.

I’ll address the first of these questions now, and the second one in my next post.

Two benefits of bankruptcy pertain here:

1. The protection of assets from the bankruptcy trustee (and thus from the creditors) through “exemptions.”
2. The granting of a discharge of debts.

Exemptions:
The rules about what property of a debtor is exempt do not directly change with the debtor’s citizenship status, but there are potentially very important indirect effects.

Bankruptcies filed many states use that state’s own set of exemptions. So the federal bankruptcy court has to interpret that state’s definitions of those exemption definitions. Some of those definitions and the court’s interpretations of them can disqualify some immigrants. For example, Florida has a very generous homestead exemption, but In order to qualify for it, a debtor must be a permanent resident of the state with the intent to make the property in question his permanent residence. This residency requirement can be satisfied by a non-citizen only if he or she has gotten permanent resident status—a “green card”—as of the date of the filing of the bankruptcy. In a recent case, the immigrant was in the process of getting his permanent residency and in fact received that status three months after filing bankruptcy, but he was still deemed not to be a permanent resident at the time of his bankruptcy filing and so was denied a homestead exemption.

Discharge:
Again, the rules about what debts can be discharged and which cannot are the same regardless of citizenship. But some non-citizens have debts which were incurred in another country, leading to the question: Can those debts can be discharged in their U.S. bankruptcy case?

It depends.

First, assuming that the creditor is given appropriate notice of the bankruptcy, and the debtor successfully gets a discharge of his or her debts, that creditor will no longer be able to try to collect that foreign in the U.S.

But second, there is a good chance that the U. S. bankruptcy court’s discharge of this debt does not result in the discharge of the debt under the laws of the original country. If so, then that debt can continue to be collected according to the laws of that country, presumably against the debtor’s assets in that country, and perhaps in other countries outside the U. S. This depends on complicated international issues like treaties between the U.S. and that country, and whether they have “comity”—an agreement to respect each other’s laws—specifically in the area of bankruptcy. Otherwise, if the debtor has property outside the U. S., or intends to return to the other country, even just to visit, these issues should be investigated very closely, likely with both your U. S. bankruptcy attorney and one in the other country. In some situations, it even may be necessary to file the appropriate form of bankruptcy in the other country, assuming that exists and the debtor qualifies to do so.

The Bankruptcy Code does not limit who may file based on citizenship status. It states that “only a person that resides or has a domicile, a place of business, or property in the United States… may be a debtor… .”  The “person” is simply defined to include an “individual” (as well as a “partnership and corporation”). The point is that there is no requirement about needing to be a citizen, or even to being legally in the country. So everyone, citizen or non-citizens, legal or illegal, can file bankruptcy.

But the person must meet one of the above categories of who may be a “debtor.”

One often used category is to have a “domicile,” meaning simply being physically present in one location with the intention of making that place the person’s present home. Generally the longer the person has been in one place and the more he or she has put down roots—such as getting a state drivers license—the easier to show intent to establish a domicile.

Having any meaningful amount of property, such as bank or other financial accounts, or a vehicle, would itself likely be sufficient to qualify as a debtor.

Any other requirements? The bankruptcy filing documents ask for a Social Security number, but there is nothing in the Bankruptcy Code which requires that. If the person filing bankruptcy has a legal Social Security number appropriately issued by the Social Security Administration, it should be used. Otherwise, the person should get an Individual Taxpayer Identification Number (“ITIN”) from the IRS, and use that. The “IRS issues ITINs to foreign nationals and others who have federal tax reporting or filing requirements and do not qualify for SSNs.”

Anything else? In most places, the bankruptcy filer will also need to show proof of identity at the so-called Meeting of Creditors, to allow the bankruptcy to verify that the person present there answering the questions under oath is a real person and the one who filed the bankruptcy documents. This aims to prevent identity scams. Proof of identity generally requires two things: 1) a document showing your SSN or ITIN—such as the original Social Security card it that’s available, or some other paper received from the government or from an employer showing the number; plus 2) some form of photo identification—such as a driver’s license or passport.

So is that it? Well, yes, with these conditions met the non-citizen can file for bankruptcy. But two big questions remain that just can’t get swept under the rug:

1. Would a non-citizen potentially have problems qualifying for any of the benefits of bankruptcy, such as getting a “discharge” (legal write-off) of the debts, or claiming property exemptions in order to keep the property?
2. Does filing the bankruptcy harm a legal non-citizen’s efforts to become a citizen, or does it increase an illegal immigrant’s risk of deportation?  

Sorry for keeping you in suspense, but I’ve covered enough for one day and so l’ll address have to these important questions in my next two blogs.

She is universally seen as the brainchild of the Consumer Financial Protection Bureau (“CFPB”), one of the most contentious parts of last year’s landmark financial reform law.  Her advocacy for the CFPB and for vigorous financial regulatory oversight overall made her too controversial to be approved by Congress to lead the agency. She had worked for the last year as an Assistant to the President tasked with gearing up that agency, and left that role at the end of July after the President nominated one of her chief deputies to head CFPB instead of her.

Here are some of Ms. Warren’s own statements so you can judge for yourself whether you agree or disagree with her:

The consumer bureau’s mission is straightforward — make prices clear, make risks clear, so consumers can compare one product to two or three others. … . Fine print is great for those who want to hide something, but not good for families who want to know what they’re getting into.

Los Angeles Times

(In response to Senator Mitch McConnell’s demand that the CFPB be made “more accountable and transparent to the American people”):

Oh, excuse me? Accountable? He wants this agency to be more accountable to the banks. He wants us to have a funding stream that will give the banks lobbying power over this agency. And the second thing he wants with this five-person board, he wants bankers running this place.

New York Magazine

It is impossible to buy a toaster that has a one-in-five chance of bursting into flames and burning down your house. But it is possible to refinance an existing home with a mortgage that has the same one-in-five chance of putting the family out on the street–and the mortgage won’t even carry a disclosure of that fact to the homeowner.

Bloomberg

The notion that we need to ask the permission of the big banks about which approach to use [for fixing the economy] is just wrong. Who’s asking the American family which provisions are OK with them? I understand that we need to get the economy back on an even keel, and destroying large financial institutions isn’t going to do that, but neither is destroying the American middle class. We need to be asking, what are the best tools to repair the economy? Not, what are the tools most acceptable to the big banks?

Newsweek

This is America’s middle class. We’ve hacked at it and pulled at it and chipped at it for 30 years now, and now there’s no more to do. We fix this problem going forward, or the game really is over.

New York Times

]]> http://www.seattledebtlaw.com/blog/2011/08/08/the-scourge-of-wall-street-leaves-the-obama-administration/feed/ 0 http://www.seattledebtlaw.com/blog/2011/08/05/keep-your-vehicle-in-spite-of-paying-less-every-month/ http://www.seattledebtlaw.com/blog/2011/08/05/keep-your-vehicle-in-spite-of-paying-less-every-month/#comments Fri, 05 Aug 2011 18:45:01 +0000 Christina Henry http://www.seattledebtlaw.com/blog/?p=297 What if you really need to hang on to your car or truck, but can’t afford the monthly payments? Or if you’ve fallen behind and just can’t catch up?

“Straight bankruptcy”—Chapter 7—won’t help you here. Most of the time, you have to either quickly catch up or you lose the vehicle. And very few vehicle lenders will negotiate about the payment amount in a Chapter 7 case. With rare exceptions, it’s take it or leave it.

BUT, if you meet two conditions, you may have the option to KEEP your car or truck, NOT make up any missed payments, all while LOWERING your monthly payments. This even REDUCES the total amount you must pay before the vehicle is yours free and clear.

The two conditions you must meet:

1. You got your vehicle loan at least two and a half years ago.
2. You owe more on the vehicle than it’s worth.

If so, through a Chapter 13 vehicle loan “cram-down,” we can re-write the terms of that vehicle loan. First, we can reduce the balance down to the fair market value of the vehicle. This can sometimes shave thousands of dollars off the balance. That in itself would reduce the monthly payment. But then also, depending on how many months of payments remained on the vehicle loan compared to the projected length of your Chapter 13 plan, we may be able to stretch out the term of the loan. If so, that would lower the monthly payment even further.

An example will make this clearer. Say you were 4 years into a 6-year vehicle loan (meeting the 2-and-a-half-year condition), with a balance of $11,000 but the vehicle worth only $7,000 (meeting the owe-more-than-it’s-worth condition). Further, say the regular monthly payments were $498, with 24 months of them to go. Under a cram-down rewriting of the loan under a 3-year Chapter 13 Plan, the balance to be repaid would reduced to $7,000, and the term stretched to the 36 months of the Chapter 13 case. So now the monthly payment would be reduced to about $220, less than half the $498 regular monthly payment. Even though in this example it’s taking three years instead of two to pay it off, you’re saving close to $4,000. Plus we’re reducing the monthly payment to something much more affordable.

The difference in the balance on your vehicle loan contract and the reduced amount you would pay through your Chapter 13 plan (the $4,000 or so in the example) would be treated as unsecured debt. It would be lumped in with the rest of your unsecured debts, and would be paid through your Plan at whatever percentage all your unsecured creditors were being paid. This can be a low percentage and sometimes even nothing. It would usually be determined by how much your budget says you can afford after living expenses.

So if your vehicle loan meets the two conditions above, you will likely be able to reduce both your monthly payment and the total amount needed to pay off your vehicle. All without having to cure any previously missed payments, and without risk of repossession as long as you fulfill the terms of your Chapter 13 plan.

Or maybe you don’t want or need the extra benefits of Chapter 13. Or you just want to put it all behind you in a few months instead of going through a 3-to-5 year Chapter 13 Plan. A Chapter 7 “straight” bankruptcy may give you just the right amount of help.

A Chapter 7 case:

• Stops a pending foreclosure sale, at least temporarily. Depending on your situation, and the aggressiveness of the mortgage lender, it may buy you an extra few weeks or an extra few months. Chapter 7 does give you much less control over the situation than a Chapter 13, but the extra time it gives you may be enough in your particular situation.
• It temporarily stops not just foreclosures by your mortgage company, but also by other creditors. This includes foreclosures for unpaid property taxes, homeowner assessments, or judgment lien creditors.
• Prevents, at least briefly, most kinds of liens from attaching to your house, such as income tax liens, or judgment liens by creditors who have sued you and have not yet gotten a judgment.

So if you have a pending sale of a house which has less equity than your allowed homestead exemption, and need to buy enough time to close the sale before the foreclosure or before a new lien eats into your equity, and need to file some kind of bankruptcy to deal with your debts, filing Chapter 7 may be your best option. Or if you have resigned to losing your house but need to postpone the foreclosure to give you time to save money for rental and moving costs, again Chapter 7 could well be the best tool for you.

Because the amount of time a Chapter 7 will gain for you depends a great deal on the facts of your case, the anticipated actions of your creditors, and sometimes the behavior of your Chapter 7 trustee, be sure to discuss this thoroughly with your bankruptcy attorney. Find out if the comparatively modest help a straight bankruptcy provides is enough help for you.

For twenty years up through 2004, the wealth of black and Hispanic households compared to the wealth of white households did not change much. But even then, before the recession, the wealth disparity between racial groups was already astounding huge. In 2004 the median white household’s assets were worth about seven times that of the median Hispanic household’s, and about eleven times that of the median black household’s assets. By late 2009, just four years later and after the official end of the recession, these ratios had virtually doubled, with the white household’s assets being worth fifteen times more than the Hispanic household’s, and nineteen times more than the black household’s.

What is the cause of this massive increase in wealth disparity among these races in such a short time? Simple: depreciated residential housing values. Blacks, and even more so Hispanics, have their wealth disproportionately tied up in their housing:

From 2005 to 2009, the median level of home equity held by Hispanic homeowners declined by half—from $99,983 to $49,145…. A geographic analysis suggests the reason: A disproportionate share of Hispanics live in California, Florida, Nevada and Arizona, which were in the vanguard of the housing real estate market bubble of the 1990s and early 2000s but that have since been among the states experiencing the steepest declines in housing values.

White and black homeowners also saw the median value of their home equity decline during this period, but not by as much as Hispanics. Among white homeowners, the decline was from $115,364 in 2005 to $95,000 in 2009. Among black homeowners, it was from $76,910 in 2005 to $59,000 in 2009.

This Pew Research does not get into what this increased disparity among the races means for our society. I suspect it is part of the broader picture of the overall widening gap between the wealthy and the rest of us. Overall reduced upward mobility strikes at the heart of our national identity. Add to that this racial disparity, and the suddenness with which it has occurred, and we are looking at profound economic shifts with very serious consequences.

This case is truly an extraordinary blend of law and politics:

1. The opinion of the bankruptcy court, In re Balas and Morales, which is virtually always signed by a single bankruptcy judge, was also signed by 19 other bankruptcy judges. This is an almost unheard of emphatic showing of support for a judge’s decision by his colleagues.
2. After the opinion was rendered in mid-June, the United States Trustee filed a notice of appeal of the opinion. The U.S Trustee “is a component of the Department of Justice responsible for overseeing the administration of bankruptcy cases.” It had filed the motion to dismiss the jointly filed bankruptcy case, and then, not surprisingly given the controversial and constitutional nature of the issue, it filed an appeal of the opinion. But then on July 3, barely a week later, it withdrew its appeal. Why would it file an appeal and then dismiss it a short time later?
3. Because the bankruptcy court is merely one battlefield on which the DOMA war is being fought. In a highly controversial move in February, President Obama decided that his Administration would not enforce DOMA. As this article stated:
   

   Only a few times in history has a President decided his Justice Department will not defend an existing federal law. In those rare circumstances, the House of Representatives can step in and have its lawyers defend the law in court.

4. Coincidentally on the day before the Chapter 13 case at issue was filed, the President’s decision was made official with a letter from U. S. Attorney General Eric Holder to the Rep. John Boehner, Speaker of the House of Representative stating:
   

   After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

5. But then why would the U.S. Trustee, an arm of the U.S. Department of Justice, move to dismiss the case in defense of DOMA, and particularly go so far as to file an appeal? I don’t know why it filed the motion to dismiss, but the reason it appealed is a bit more clear. Between the time the bankruptcy case was filed in February and the rendering of the Supreme Court opinion in June, Speaker Boehner set up a “House Bipartisan Legal Advisory Group” (BLAG) to defend DOMA by “tak[ing] legal action on behalf of the House of Representatives.” As the bankruptcy court’s opinion states, “at the last minute [BLAG] orally requested a short continuance of the [scheduled] hearing in order to determine whether to intervene in this case to address the issues” Although this continuance was granted, BLAG did not intervene. The U.S. Trustee apparently filed the appeal because of indications that BLAG wanted to defend the constitutionality of DOMA through this case.
6. So why the change of mind just a few days later about the appeal? In its July 6 motion to dismiss the appeal, the U. S. Trustee’s attorney explained:
   

   The [Department of Justice] has advised the [BLAG] of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA.

   The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged. In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial fora for the resolution of the constitutional question, the United States Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate this appeal.”

   Within days of this, the U.S. Trustee filed motions to dismiss other similar matters in other parts of the country. So, although usually one bankruptcy judge’s opinion on the unconstitutionality of a federal law would only be legally binding in that federal district, in this extraordinary combination of circumstances it looks like this particular opinion is effectively the law of the entire country. Unless the House Bipartisan Legal Advisory Committee changes its mind. Again.