https://www.forbes.com/sites/zackfriedman/2022/01/04/is-student-debt-cancellation-next/

    In Chowdary v. Ozcelebi (In re Ozcelebi), 2021 Bankr. LEXIS 3541, Case no 10-70295, Adv. no 21-7001 (Bankr. S.D. Tex. 29 December 2021) the Court ruled on a motion to dismiss a dischargeability complaint for violations of Fed. R. Civ. P. 8(a)(2), 9(b), and 10(b).  The complaint asserted that the debt to plaintiff should be excepted from discharge under 11 U.S.C. §§523(a)(2)(A), (a)(4), and (a)(6).  The Court described the problem as 'shotgun pleadings', e.g. imprecise complaints that fail to give defendants adequate notice of the claims against them and the grounds upon which each claim rests.1  Allegations of fraud require a party to plead with particularity the who, what, when, where, and how of such fraud.2  Rule 10 Fed. R. Civ. P. requires a party to state its claims in numbered paragraphs, each limited to a single set of circumstances.   The 11th Circuit has identified four types of shotgun pleadings.  The most common is a multiple count complaint where each count adopts the allegations of all preceding counts, causing each to be a combination of the allegations in the preceding counts, resulting in a situation where most counts contain irrelevant factual allegations and legal conclusions.3   The second type of shotgun pleading is a complaint is full of conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.4 The third is a complaint violating Rule 10(b) Fed. R. Civ. P. by failing to separate into a different count each cause of action or claim for relief.5   The last type is a complaint that includes multiple claims against multiple defendants without specifying which defendant is responsible for each act or omission.6   Shotgun pleadings unfairly burden the defendants and the courts by shifting to them the burden of identifying plaintiff's genuine claims and determine which have legal support.     In examining the count 1 of the complaint under 11 U.S.C. 523(a)(2)(A), the Texas bankruptcy court found it violated Rule 9(b) by adopting the allegations of all preceding paragraphs (here seven pages of factual allegations), and Rule 10(b) by failing to separate each claim founded on a separate transaction into its own count.  Such 9(b) violations should only lead to dismissal of a complaint when the incorporation significantly impairs the defendant's ability to determine the ground upon which the claim is being asserted.7  However the court found that it was unable to properly parse out which facts in the complaint actually align with the §523(a)(2)(A) claim.  The plaintiff also pled at least three claims arising from distinct transactions under the subsection entitled '11 U.S.C. §523(a)(2)(A) property obtained by false pretenses, a false representation, and/or actual fraud.'  These include allegations related to obtaining a client list, allegations referencing an incident of theft, and multiple instances of bad faith litigation tactics, all of which appear to be separate transactions or occurrences.   Such lumping of transactions into a single count violates Rule 10(b).  The Court required an amended complaint under Rule 12(e).   In examining the §523(a)(4) count  the court noted that the section requires both fraud or defalcation, but that such fraud or defalcation be committed while the perpetrator was acting in a fiduciary capacity; or alternatively that the defendant's actions constitute embezzlement or larceny.   Fraud theories must meet the heightened standard of Rule 9(b), while defalcation, embezzlement, and larceny theories must meet the standard of Rule 8(a)(2).  The Court found the same defects in this count as in the prior.  Plaintiff incorporated all prior factual allegations as well as all allegations in their §523(a)(2)(A) claim.  They also fail to separate each distinct transaction or occurrence into a different count as required by Rule 10(b).  Given that the fraud theories are subject to different pleading requirements an amended complaint was again required on these counts.  The §523(a)(6) claims had the same problems as the prior counts.  In the absence of a short and plain statement of why the plaintiffs are entitled to relief, the court found that they violate Rules 8(a)(2) and 10(b), and again required an amended complaint under Rule 12(e).1 Fed. R. Civ.P. 8(a)(2)↩2 Benchmark Elecs. v. J.M.Huber Corp., 343 F 3d. 719, 724 (5th Cir. 2003.↩3 Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1324 (11th Cir. 2015).↩4 Id, 792 at 1322.↩5 Id. 792 at 1323 n.13.↩6 Id. at 1323.↩7 Martinez v. Nueces Cty. No. 2:13-CV-178, 2013 U.S. Dist. LEXIS 168223 at *7 (S.D. Tax 2013).↩ Michael BarnettMichael Barnett, PA506 N. Armenia Ave.Tampa, FL 33609-1703813 870-3100https://hillsboroughbankruptcy.com

If you are considering filing Chapter 13 bankruptcy or have filed and are having trouble making your Chapter 13 plan payments, Philadelphia bankruptcy lawyer David M. Offen explains what a Chapter 13 hardship discharge is, when you can get a hardship discharge, and what debts a hardship discharge does and does not include. If you are wondering whether you can afford to file chapter 13 bankruptcy or what happens if you suddenly cannot afford your plan payments, call the Law Offices of David M. Offen at (215) 789-4749. We will discuss your options during your free, no-obligation debt consultation. Let us help you file Chapter 13 bankruptcy successfully and get a fresh financial start. Hardship Discharge Definition The bankruptcy court will grant you a Chapter 13 “hardship discharge” when you have not made all of your plan payments yet cannot continue to pay your plan payments due to circumstances beyond your control.  A temporary loss or reduction of income will not suffice. In order to receive a hardship discharge, your income stream must be unavoidably reduced due to something calamitous, such as the loss of ability to work due to an accident or medical problem. Requirements for a Hardship Discharge In order to receive a hardship discharge you must have paid your unsecured creditors at least as much as they would have gotten had you filed Chapter 7, through your Chapter 13 plan. You calculate this amount by assessing the value of your nonexempt assets and adding it up, then distributing each creditor their pro rata share. What are “nonexempt assets?” Nonexempt assets are the assets in excess of those that would have been exempted from your bankruptcy estate had you filed Chapter 7, having met the income limit for filing Chapter 7 bankruptcy. In a Chapter 7, nonexempt assets are sold for the benefit of your unsecured creditors. In Chapter 13, your unsecured creditors are paid at least as much as they would have gotten had you filed Chapter 7, and more if you have more disposable income than that. When You Might Consider a Hardship Discharge You and your attorney should weigh your options carefully if you find that you can no longer afford to pay your Chapter 13 plan payments. If you still have an income stream, you might consider modifying your Chapter 13 plan to reflect a reduction in income, and get a reduced monthly plan payment.  If your circumstances are so dire that even a reduced plan payment is not feasible for you, that is the time to consider requesting a hardship discharge. A Hardship Discharge Won’t Eliminate All Debt A hardship discharge ends your Chapter 13 plan, so your opportunity to catch up with debt such as missed mortgage or car payments, priority tax debts or secured tax debts, or past-due child or spousal support also ends. Once your case closes, those creditors can take collection actions against you. A hardship discharge will not include these types of debts: Secured debts, if you retain the collateralStudent loansGovernment fines and feesIneligible past-due income taxesOther non-dischargeable and priority debts Talk with a Bankruptcy Lawyer If you don’t know whether you can afford to file Chapter 13, or if you filed Chapter 13 and are struggling to make plan payments, call us. We have over 20 years of experience and have filed over 12,000 Bankruptcy cases helping people like you solve their debt problems. Filing Chapter 13 bankruptcy, modifying your Chapter 13 plan, or getting a hardship discharge may be your answer. Call us today to find out. The post Hardship Discharge in Chapter 13 Bankruptcy appeared first on David M. Offen, Attorney at Law.

I’ve been a member of the Better Business Bureau since 2003. The post Named A+ Again this Year By Better Business Bureau by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.

 NYC taxi medallion baron paid for news stories to boost stock price, SEC claimshttps://nypost.com/2021/12/29/nyc-taxi-medallion-baron-paid-for-news-stories-to-boost-stock-price-sec-claims/

Can You Pay Off Chapter 13 Bankruptcy Early? If you are reorganizing your debt using Chapter 13 bankruptcy, or wondering what happens if you do file Chapter 13 bankruptcy but your income increases, or you are suddenly and unexpectedly able to pay off your plan early, this is the article for you. Noted Philadelphia bankruptcy lawyer David M. Offen explains how Chapter 13 works and what happens if your disposable income changes while you are in your Chapter 13 plan. If you are considering filing Chapter 13 bankruptcy, give us a call at (215) 789-4749. Your initial consultation is free of charge, and we will discuss all options available to you in your financial situation. Chapter 13 Bankruptcy Plans People filing Chapter 13 bankruptcy usually do so to catch up with past-due payments or to pay off debts such as: Mortgage arrearsRent arrearsCar loan or car lease arrearsChild support debtSpousal support debtPast-due student loan paymentsNondischargeable income tax debtGovernment fines or feesChapter 13 Bankruptcy attorney fees Chapter 13 debtors make monthly payments to the Chapter 13 Trustee who in turn distributes funds to the debtor’s creditors. When the three- or five-year plan is complete, the debtor is caught up with arrears and their remaining unpaid unsecured debt is discharged.  Filing Chapter 13 forces creditors to accept payments through the plan and stays collection efforts such as wage garnishment, bank account levy, and lawsuits. The length of the plan and the amount the debtor pays in monthly plan payments depend upon how much disposable income the debtor has and how much past-due debt they must pay. What happens if the debtor gets a new job or a significant raise in pay? What happens if the debtor receives an unexpected windfall, such as an inheritance or lottery win? You Usually Can’t Pay Off Chapter 13 Early Creditors & Trustees Usually Won’t Allow It Creditors are bound by a confirmed Chapter 13 plan in that they must accept payments through the plan and refrain from taking action against the debtor for the debt that they owe. If the debtor completes plan payments, creditors must treat the debtor as if they had paid as agreed all along. In return for all of this, creditors are entitled to receive all of the debtor’s disposable income for the length of the plan. If a Chapter 13 debtor’s disposable income increases, they must disclose that to their attorney, the bankruptcy court, and the Chapter 13 Trustee. Why? Because a Chapter 13 debtor’s creditors are entitled to receive more money from the debtor if the debtor’s disposable income increases.  In the case of an increase in disposable income, the debtor’s attorney recalculates the amount of the new monthly plan payment and files a Chapter 13 plan modification with the bankruptcy court. After plan confirmation, the debtor must pay the new amount to the Trustee for the remainder of the modified plan in order to complete the plan and get a discharge of unpaid unsecured debt. If a Chapter 13 debtor does not complete their plan for any reason, they will not receive a discharge of their unpaid unsecured debt unless they are eligible for a hardship discharge or can convert their Chapter 13 to a Chapter 7 bankruptcy. Paying Off Chapter 13 Bankruptcy Paying the Entirety of Your Plan If a Chapter 13 debtor has the means to pay off the plan entirely, in some cases their attorney must notify the court and their creditors. The debtor’s attorney should contact the Trustee’s office, to find out if It is likely that the Chapter 13 Trustee, the creditors, or both will object to plan payoff. Why? Again, under the Bankruptcy Code creditors are entitled to all of the debtor’s disposable income. What if the debtor’s income increases further?  The only time a Chapter 13 debtor can overcome an objection like this is if the creditors receive 100% of what they are owed. This includes unsecured creditors such as credit card lenders. IF the debtor has a windfall that allows them to pay 100% of the debt they owe, the bankruptcy court may allow them to pay off their plan.  Modifying Your Plan If a Chapter 13 debtor’s income increased (or decreased) somewhat, their attorney files a modified plan reflecting the new amount of disposable income available to fund the plan. After confirmation, the debtor pays that new amount, and when the plan is complete, the debtor receives a discharge of the remaining unpaid unsecured debt. Converting to Chapter 7 Bankruptcy If the debtor’s income stream is reduced or lost and the debtor can no longer afford to fund their Chapter 13 plan, the debtor’s attorney files a Notice of Conversion. After the debtor pays a conversion fee, the debtor then completes a Chapter 7 case rather than Chapter 13. This means the Chapter 13 plan is no longer in effect. The debtor does not have to make plan payments, but the debtor also does not realize the benefits of a Chapter 13 plan.  In order to convert a Chapter 13 to Chapter 7, the debtor must pass the Chapter 7 means test.  Hardship Discharge If a Chapter 13 debtor cannot make plan payments for the foreseeable future through no fault of their own, they may be eligible for a hardship discharge if their creditors have received as much as they would have gotten had the debtor filed Chapter 7 and the Trustee seized and sold nonexempt assets.  The following claims must be paid to get a hardship discharge: Administrative claims such as the Chapter 13 Trustee’s administration fee and your attorney fee; Priority claims such as child or spousal support or recent income taxes;  Secured claims such as past-due mortgage or car payments. Benefits to Completing a Chapter 13 Repayment Plan Besides receiving a discharge of unpaid unsecured debt, a Chapter 13 debtor has the power to do the following if they complete their plan payments: Strip off a second mortgage or HELOC as unsecured debt and have it discharged;Cram down a car loan to current retail value, pay it off over the life of the plan at prime plus 1-3% interest; and own the car when the plan is complete;Pay off an end-of-lease balloon payment through the plan and own the car when the plan is complete. Talk with a Bankruptcy Lawyer Chapter 13 bankruptcy is a three- or five-year financial commitment. You may be able to realize your financial goals by filing Chapter 13 bankruptcy, but before you file you should know all of the power and all of the responsibilities that come with it.  Put our over 20 years of experience to work for you. During your free, no-obligation case consultation we will discuss all of your options, including both Chapter 13 and Chapter 7 bankruptcy. Let the Law Office of David M. Offen help you get a fresh financial start. The post Can You Pay Off Chapter 13 Bankruptcy Early? appeared first on David M. Offen, Attorney at Law.

 A very informative article about continued Federal Student Loan repayment moratorium titled "4 things student loan borrowers should know about the extended payment pause can be found at https://www.cnbc.com/2021/12/27/4-things-student-loan-borrowers-should-know-about-the-extended-payment-pause-.html

Consider the following hypothetical:Assume that I wrote a story about a restaurant patron from Oklahoma who filed a claim in the case of a Texas restaurant claiming that he got food poisoning from eating a batch of bad French fries. In the course of describing the patron's travails, I state that the patron must have felt like he was living in his own private Idaho hell and then quote the following lyrics from the B-52s:You're livin' in your own Private Idaho. Idaho.You're out of control, the rivers that roll,you fell into the water and down to Idaho.Get out of that state,get out of that state you're in.You better beware.Shortly thereafter, the potato market crashes and an Idaho potato farmer is forced to file Chapter 12. He blames my blog article for his bankruptcy and files an adversary proceeding in Idaho bankruptcy court accusing me of defamation against food (which I think is an actual cause of action in some states). I have seen Idaho on a map before but have never been there. Is there personal jurisdiction? Having just read a recent Fifth Circuit case on personal jurisdiction in a defamation case, I feel pretty good. But does it make a difference that the case I just read concerned personal jurisdiction in a diversity case and the hypothetical case against me would be brought under bankruptcy jurisdiction?  No Personal Jurisdiction to Sue Huffington Post in TexasA recent decision from the Fifth Circuit illustrates the limits on personal jurisdiction for a defamatory web-based publication when the suit is based on diversity. In Case No. 21-20022, Johnson v. TheHuffingtonPost.com, Inc. (5th Cir. 12/23/21). which you can read here, a Texas man filed suit against the Huffington Post in the Southern District of Texas over an article it ran which described the man as a “noted Holocaust denier and white nationalist.”  The District Court dismissed the suit for lack of personal jurisdiction and the Fifth Circuit (in an opinion written by the venerable Jerry E. Smith) affirmed.The plaintiff had alleged that The Huffington Post could be sued in Texas because the offending article was visible on the internet in Texas, the Huffington Post sells an ad-free experience and merchandise to people anywhere, which includes Texas, advertisers from Texas have contacted the Huffington Post to buy ads and The Huffington Post collects data on its readers' locations to enable it to sell ads.The Huffington Post replied it has no physical ties to Texas and that its story did not target Texas or rely on Texas in any way.Judge Smith explained that a plaintiff can only establish personal jurisdiction under Texas law (which applies in a diversity case) "where the defendant has established enough purposeful contacts with the forum and where jurisdiction would comport with 'traditional notions of fair play and substantial justice.'” Opinion, p. 3. He explained that the "fair warning" test applies:Those limits derive from and reflect two sets of values—treating defendants fairly and protecting interstate federalism. Put another way, a defendant must have “fair warning” that his activities may subject him to another state’s jurisdiction. That warning permits the defendant to structure its primary conduct to lessen or avoid exposure to a given State’s courts. The limits on specific jurisdiction also ensure that States with little legitimate interest in a suit cannot wrest that suit from States more affected by the controversy. (cleaned up).Opinion, p. 4.  It is worth noting that this test only applies where the defendant is not physically located in the state. When a person posting information on a website is not located in the forum state and the website is passive, meaning that it posts information that people can see but does not interact with its readers, jurisdiction is not available "full stop." If the website is interactive, then the usual rules for determining jurisdiction apply.  This is why the plaintiff stressed the ways that the Huffington Post interacted with people in Texas.However, just interacting is not enough. The Court must examine "whether the virtual contacts that give rise to the plaintiff’s suit arise from the defendant’s purposeful targeting of the forum state." Opinion, p. 5. Thus, in another case, an article about the California activities of a California man which was drawn from California sources resulting in harm in California, purposefully targeted the state of California allowing for personal jurisdiction there. However, in the HuffingtonPost case, "(t)he story said nothing about Texas, nor did it rely on sources based in Texas or recount conduct that occurred in Texas." Therefore, jurisdiction was not present.Under my hypothetical, personal jurisdiction would almost certain be absent if I was sued in U.S. District Court based on diversity jurisdiction. First, this website is not very interactive. Years ago, the Blogger platform shut down the comments feature. I email links to my articles to a list of people I hope will read these posts, but none of them are in Idaho. Readers of the blog can look up my email address and write me back, but they can't do that on the blog itself. The hypothetical blog post had little contact with Idaho other than using lyricis from a song I like to talk about the plight of an Oklahoman who got sick in a restaurant in Texas. The fact that the article supposedly had an impact on an Idaho potato farmer should not be sufficient to convey personal jurisdiction in Idaho. Personal Jurisdiction in Bankruptcy CourtBut what if the suit was brough in the U.S. Bankruptcy Court for the District of Idaho based on bankruptcy jurisdiction? As I will show in a moment, the answer would almost certainly be yes. The topic of personal jurisdiction does not come up very often in Bankruptcy Court, but I found a handful of cases which illustrate how it works.  The first difference between in personam jurisdiction in bankruptcy and in personam jurisdiction in diversity cases is that in bankruptcy court, jurisdiction is based on contacts with the United States rather than an individual state. After the 1996 Amendments, courts have recognized in federal question cases that no inquiry into a defendant's "minimum contacts" with the forum state is needed to exercise jurisdiction pursuant to Bankruptcy Rule 7004; rather, only a federal "minimum contacts" test is required, whereby the Fifth Amendment's Due Process Clause limits a bankruptcy court's exercise of personal jurisdiction over a defendant. Enron Corp. v. Arora (In re Enron Corp.), 316 B.R. 434, 444 (Bankr. S.D. N.Y. 2004). This is so because of the interaction of Fed.R.Bankr.P. 7004(d) and (f) which state:(d) Nationwide Service of Process. The summons and complaint and all other process except a subpoena may be served anywhere in the United States.(f) Personal Jurisdiction. If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service in accordance with this rule or the subdivisions of Rule 4 F.R.Civ.P. made applicable by these rules is effective to establish personal jurisdiction over the person of any defendant with respect to a case under the Code or a civil proceeding arising under the Code, or arising in or related to a case under the Code.Rule 7004(f) states that personal jurisdiction is established by serving the summons while Rule 7004(d) allows nationwide service of process. There is a two-part test for in personam jurisdiction in bankruptcy court.A challenge to a federal court's in personam jurisdiction may consist of two components. First, a court may focus upon a defendant's amenability to personal service of the complaint: i.e., whether the procedural requirement of service of the summons has been satisfied.  The second component concerns the constitutional authority of the federal forum to enforce the procedure by which service has been or will be perfected. (cleaned up).Anheuser Busch v. Pacques (In re Pacques), 277 B.R. 615, 624 (Bankr. E. D. Pa. 2000).  Normally I would not rely on a twenty-year-old decision from a bankruptcy court in another circuit for an important proposition of law. However, in doing the research for this blog, I was not able to easily find much circuit court authority and the Pacques case was consistent with other lower court decisions I found, such as  Weisfelner v. Blavatnik (In re Lyondell Chem. Co.), 543 B.R. 127 (Bankr. S.D. N.Y. 2016); Smith v. Matias (In re IFS Fin. Corp.), 2007 Bankr. LEXIS 3122 (Bankr. S.D. Tex. 2007); Enron Corp. v. Arora (In re Enron Corp.), supra. If a client is paying you to research this point, you might want to dig more deeply, but I think this is pretty solid. Thus, there is both a procedural and a substantive component to in personam jurisdiction. The procedural part is whether the summons was served in accordance with Bankruptcy Rule 7004. Thus, a return of service which shows that the summons was served by first class mail upon the company's registered agent would be sufficient while one that said that the summons was left with the night watchman in the building where the defendant's affiliate had an office would probably not prevail.The substantive component looks at whether it would be consistent with due process for the defendant to be sued in the United States.  This means that there is always in personam jurisdiction over American defendants. In Enron Corp. v. Arora, two former employees who received bonuses contended that they lacked minimum contacts with the State of New York. The Court rejected this argument, finding that minimum contacts with the United States was all that was needed.Courts have found minimum contacts with foreign defendants under a variety of circumstances. In one case, entities that contracted with the debtors signed contracts with a forum selection clause fixing venue in Texas. Smith v. Matias, supra.  In another case, the debtor's shareholder, which was from the Netherlands, was alleged to be the debtor's alter ego and was alleged to have engaged in transactions in the United States. Anheuser Busch v. Pacques, supra. Bankruptcy Court offers additional opportunities for defendants to consent to jurisdiction. A creditor that files a proof of claim consents to the Bankruptcy Court's equitable jurisdiction. Langenkamp v. Culp, 498 U.S. 92 (1990). Filing a claim is also consent to personal jurisdiction in the Bankruptcy Court. In re PNP Holding Corp., 99 F.3d 910 (9th Cir. 1996); United States v. Levoy (In re Levoy), 182 B.R. 827 (9th Cir. BAP 1995). Filing pleadings in a bankruptcy case can constitute consent to personal jurisdiction as well. In re Nakash, 190 B.R. 763, 767-68 (Bankr. S.D.N.Y. 1996). Finally, if a defendant appears in court without asserting lack of personal jurisdiction, he has consented to the court's jurisdiction. (This is different than subject matter jurisdiction which can never be waived).In my hypothetical, there would almost certainly be in personam jurisdiction to sue me in the Bankruptcy Court for the District of Idaho because I am a citizen of the United States and have more than sufficient contacts with the United States. I could argue for a transfer of venue but that would be a difficult case as well. Since I would likely be subject to being sued in Idaho Bankruptcy Court, I hope that I would be able to lodge a compelling hypothetical defense.A Personal NoteCivil Procedure was the first class that I took on the first day of law school and we started with personal jurisdiction. As I tried to get my not yet legally trained mind around International Shoe and Worldwide Volkswagon, I was completely lost. The concepts seemed so esoteric. However, now that I have the benefit of 30+ years of practice, the various doctrines about where a defendant can be sued (personal jurisdiction, venue, removal and remand, abstention and withdrawal of reference) come down to fairness, bright lines and squishy lines. A plaintiff wants to sue in a forum that is convenient to the plaintiff and his lawyers. A defendant does not want to get sued at all, but if sued, would prefer to be sued in a forum that is convenient to the defendant and his lawyers. The different "where to get sued doctrines" provide the court with some guidance as to whether it is permissible to keep a case and if so, whether the court should exercise its discretion to keep the case or toss it. All of the fancy doctrines and multi-part tests that courts use to answer the "where to get sued question" come to three considerations: (i) Is there a bright line rule that says that the court does or does not have authority to hear the case? (ii) Is it horribly unfair to the defendant to be sued in this court? and (iii) Should the court decline the case because there is another court better suited to hear the dispute?  I wish someone had told me that on the first day of law school. 

What is a deed in lieu of foreclosure? Can you execute a deed in lieu of foreclosure after Chapter 7 discharge? Is a deed in lieu of foreclosure a good thing or a bad thing? Find out from noted Philadelphia bankruptcy and foreclosure lawyer David M. Offen. If you are facing foreclosure or fear foreclosure is imminent because you have not paid your mortgage, you are not alone. Many homeowners find that through no fault of their own, their mortgages became unaffordable.  Call us at (215) 789-4749 for your free, no-obligation consultation. We have helped thousands of clients solve their financial problems. When we meet we will explain all of your options, including executing a deed in lieu of foreclosure after filing Chapter 7. Deed in Lieu of Foreclosure Definition A “deed in lieu of foreclosure,” also called a “mortgage release” or a “deed in lieu” for short, is a legal document executed by the mortgage lender and the homeowner. The mortgage lender accepts the homeowner’s surrender of the property and promises not to foreclose on the property. Once the mortgage lender and homeowner execute a deed in lieu of foreclosure, the property belongs to the mortgage lender and they may evict the homeowner and sell the property. Often a move-out date is specified so that the property changes hands smoothly, without need for further legal proceedings. The homeowner can also negotiate for a release from future financial responsibility for the property, such as a deficiency judgment. Requirements of a Deed in Lieu of Foreclosure A mortgage lender will not accept a deed in lieu of foreclosure from just any homeowner. The homeowner must show in good faith that they can no longer afford to pay the mortgage. The mortgage lender may require proof of inability to pay, such as: Recent pay stubsRecent filed tax returnsRecent bank statementsAn accounting of monthly expensesA letter explaining why the homeowner can no longer afford to pay the mortgage, called a “hardship letter.” What Constitutes a Hardship Warranting a Deed in Lieu? A “hardship” is a financial setback that is no fault of the homeowner. For example, if the homeowner gets reduced work hours or loses their job, suffers a serious medical condition or injury, gets divorced, or is affected by a natural disaster, they will be able to negotiate a deed in lieu. Once the mortgage lender agrees to a deed in lieu, in most cases the homeowner will sign a grant deed in lieu of foreclosure, which transfers title to the mortgage lender, and an estoppel affidavit. The estoppel affidavit includes all terms of the agreement, including whether the homeowner will be responsible for the deficiency balance on their account following the sale of the property at auction. Benefits of Negotiating a Deed in Lieu of Foreclosure The primary benefit of a deed in lieu is that the property transfers to the mortgage lender in an orderly fashion, without the expense and stress of legal proceedings. Under most circumstances, executing a deed in lieu takes only months while foreclosure proceedings can take years.  While a foreclosure proceedings may delay eviction, eventually the homeowner must leave the property if they cannot pay their mortgage. When negotiating a deed in lieu, the homeowner can ask for a delayed move-out date or a short-term lease of the property. Almost as important, the homeowner can negotiate a release from responsibility for the deficiency balance on their account, and also negotiate the date by which they must vacate the property. Last, a deed in lieu of foreclosure is less damaging to the homeowner’s credit score than a foreclosure. A deed in lieu will remain on a homeowner’s credit report up to four years, while a foreclosure can remain for up to seven years. Drawbacks of a Deed in Lieu of Foreclosure The primary disadvantage of a deed in lieu is that some mortgage lenders will not grant homeowners a release from responsibility for the deficiency balance. Here’s where a Chapter 7 discharge helps. If the homeowner files Chapter 7 bankruptcy and indicates that they wish to surrender the property to the mortgage lender on their Statement of Intention, and the Chapter 7 case concludes successfully, the homeowner is discharged of the deficiency on their account following the sale of the property at auction. This means that the homeowner is not responsible for the deficiency balance on their account regardless of whether the mortgage lender would have released them or not. Following Chapter 7 discharge, a homeowner can avoid foreclosure by letting the mortgage lender know they wish to transfer the property through a deed in lieu. This saves time and money for the mortgage lender, so it is likely they will agree. Another disadvantage is that a homeowner executing a deed in lieu must generally wait three years before obtaining a mortgage, and must be able to show lenders a positive credit history during that time. Bear in mind that there is an income limit to filing Chapter 7 bankruptcy. How a Bankruptcy & Foreclosure Lawyer Helps If you filed Chapter 7 bankruptcy and surrendered the property to the mortgage lender, you do not have to worry about the mortgage lender pursuing you to collect a deficiency balance. However, having some control over when you must leave the property is greatly advantageous to you. Let an experienced bankruptcy and foreclosure lawyer help you deal with real property you cannot afford and get you the best terms possible. David M. Offen has over 20 years’ experience helping people struggling financially and facing foreclosure. He will assess your complete financial situation and advise you as to all possible options, including a deed in lieu, a short sale, or a loan modification, and whether you need a Chapter 7 discharge or a Chapter 13 plan to help you repay mortgage arrears. By filing a Chapter 7 or Chapter 13 Bankruptcy, you can clear other types of debt as well. Call the Law Office of David M. Offen  today to schedule your free, no-obligation consultation. Let us help you get a fresh financial start. The post Deed in Lieu of Foreclosure After Chapter 7 Discharge appeared first on David M. Offen, Attorney at Law.

 https://www.cityandstateny.com/politics/2021/12/will-15-minute-delivery-do-bodegas-what-ride-hailing-apps-did-taxi-industry/360006/