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Monday, May 07, 2007

Student Loans - Mostly Nondischargable

as printed in the Sun Times:

Students and loans: 'Til death do us part

May 6, 2007

BY DAVE NEWBART Staff Reporter dnewbart@suntimes.com

They liken it to a financial death sentence.

They can't get a car loan, a home mortgage or any other type of loan. They've lost jobs and even spouses over it.

They are so humiliated they don't want any of their friends or family to know.

And for most, there is no way out.

They are former students trapped under the weight of student loans. The same vehicle that allowed them to get a college education has left many graduates buried in debt with no reasonable way to climb out.

Some students who never graduate are stuck paying off loans without the earning power of a degree -- an estimated additional $1 million in lifetime earnings.

And some students who finish can't afford the monthly payments. Others lose jobs and can't catch back up. Then they get turned down by employers who increasingly check credit records before hiring.

Some say they would make small monthly payments to show good faith -- only to see their balances continue to grow and to receive harassing phone calls from collectors.

To be sure, most borrowers pay on time; default rates are at an all-time low.

But for those who run into trouble, changes in federal laws -- including many in the last decade -- have made student loans among the hardest debts to discharge. They've also made the loans among the most lucrative for private lenders, who face little risk -- because the government backs the loans -- but reap the benefits when balances balloon.

Some borrowers say they accept reasonable interest, but they believe the fees and penalties -- which over time can double or triple the loan balances -- are unfair.

Interest rate over 18%
Many of the students awash in debt say that they were blinded by the promise a college degree holds and unprepared to take on high levels of debt at such a young age.

Connie Martin's son signed up for cooking school in Chicago in 2002 at age 25. To pay for it, he borrowed $73,000, mostly in private loans from Sallie Mae, the largest student lender, at 18?250-134?/' percent interest.

"He didn't know what the interest rate was. ... He just wanted to go to school," said Martin, of Sycamore.

His first payment was $1,100 a month, his entire monthly salary at a downtown eatery where he went to work after graduation.

"I don't understand how they can lend a kid that kind of money with no credit history, who never owned anything, with no co-signers," said his mother, who only learned of the situation after the bills started to pile up.

Sallie Mae officials said they no longer offer such high-interest loans, and have offered students a chance to refinance at a lower rate if certain conditions are met. "We recognize it's high," spokeswoman Martha Holler said.

Martin's son declined to comment. His balance has since grown to $98,000.

'It's like indentured servitude'
Greg Treece, of Downstate Mattoon, now wishes he never enrolled in Washington University's Occupational Therapy program. "Choosing an expensive private school and borrowing the money to go there is the single greatest mistake I have ever made," he said.

Treece took out $84,000 in loans. Six months after he got out of the St. Louis school, his monthly payment was more than half his take-home pay for his first job in Chicago. He later lost his job. With compounding interest, his loan quickly skyrocketed. At times he seriously wished he could go to jail in exchange for wiping out the debt.

With a new job, he's managed to pay $60,000, but his balance remains at $111,000 because of fees, penalties and interest. "It's like indentured servitude," he said.

For those who default, lenders can truly play hardball, often employing no-scruples private collection firms that call borrowers as often as 10 times a day.

Shirley, an Ivy League-educated lawyer, lost her job in Chicago in the late 1980s. She pleaded for reduced payments from a collector working for the Illinois Student Assistance Commission -- but was denied.

"I said you are driving me to bankruptcy," she recalled. "They wouldn't budge."

In bankruptcy court ISAC claimed she owed $78,000, which included $13,000 for collection costs, 20 percent of the total debt. Nearly all of the debt was eventually erased, according to court records.

Because that was before the recent law changes, she should have been clear.

Loan chief admits 'mistakes'
But several years later, the collectors began calling again -- first from ISAC and then from the U.S. Education Department. They claimed the bill was now over $100,000.

"It was as though they were above the law," she said. She eventually went to court again and proved she no longer owed the money, but her husband left her in the process. She asked that her real name not be used out of fear of retaliation.

ISAC and the Education Department say they have several programs that allow students to delay payments in hard times or make lower ones based on income. Officials say they try to help borrowers in default get back into good standing, a process known as rehabilitation. Last year, ISAC rehabbed $30 million in defaulted loans, up from $4.4 million in 2002.

Agency director Andy Davis says the agency has to strike a balance between helping borrowers repay and making sure taxpayers aren't left in the lurch.

But he acknowledges his workers "make mistakes" and said he is looking to make changes in some of the outsourcing of collections.

Then there are those with hard luck, who make bad decisions or just simply can't get a break.

Richard and Sheila Friese both have degrees from Southern Illinois University, financed in part on student loans. They were also both discharged from the Navy after suffering injuries while serving stateside. Richard is learning disabled.

They have never been able to find high-paying jobs; now they both use wheelchairs to get around and suffer from ailments including arthritis, constant abdominal pain and chronic fatigue. They're currently fighting with the Veterans Administration over benefits; they also are wrangling with the Social Security Administration.

Collector: 'We will never go away'
They currently have no income to pay off their combined $141,000 loan balance. ISAC has seized $3,200 in tax refunds from Sheila, 37. Richard, 49, avoids the phone after constantly being called by collectors for Sallie Mae -- one of whom he claims called him a "low-life, S.O.B." Holler said Sallie Mae's collectors are trained in fair debt collection practices. "That should not happen," she said.

If this were virtually any other debt, experts say, the couple would be able to discharge some or all of it through bankruptcy. But the Frieses, of Mundelein, are stuck. "Our life has hit a brick wall," Richard said.

Davis said it might make sense for the federal government to "write off'' debt if borrowers -- particularly vets -- have no hope of paying.

Pam, 58, of Dolton, graduated from Downstate SIU-Edwardsville in 1984, but spent time on welfare. She eventually defaulted on her loan after a dispute over the amount of the balance and monthly payments. Her $12,500 in loans has grown to $28,000. Experts say borrowers should continue to make payments during a dispute so the loan doesn't get out of control.

She has gone underground, blocking collectors' calls and running her own business so her wages can't be garnisheed. But when collectors do get through, they have a harsh message. "When they call they say, 'We will never go away until you are dead.'"

UP, UP AND AWAY

Percent of students with loans
1993: less than 50 percent
2004: 66 percent

Average debt for graduating seniors
1993: $9,250
2004: $19,200

Number of graduating seniors with debt over $40,000
1993: 7,000
2004: 78,000

SOURCE: Project on Student Debt

Wednesday, April 25, 2007

Arlington Heights, Illinois Law Office

Greetings. I just wanted to announce that we are now open for business in Arlington Heights, IL. We have a part time weekend office at

Arlington Heights Rd. Ste. 113 Arlington Heights, IL 60005
Map and driving directions

We have struck a deal with Platinum Financial Mortgage Corporation They will be happy to help place you in a mortgage for the home of your dreams.

Our firm handles real estate transactions - from home buyers to commercial property deals.

We have also teamed with a real estate broker company, Lucky Realty Group of Chicago Illinois who has brokers and agents to help you find that home of your dreams or can help you maximize your sales price during this slow real estate market in Chicago.

Feel free to contact us for any of these deals.

Thursday, April 19, 2007

Save Money on Gas

I am here to provide useful tips and tricks to help my clients, and those who can take certain steps to help avoid bankruptcy.


Top 10 Fuel Saving Tips
From Aaron Gold,
Your Guide to Cars.(as posted on About.com)
http://cars.about.com/od/helpforcarbuyers/tp/ag_top_fuelsave.htm

Whether you drive a two-seat hybrid or a three-ton SUV, chances are you can squeeze a bit more distance out of each gallon of fuel. These ten fuel saving tips have served me well over the years, and they can help you improve your car's fuel economy and take some of the sting out of high fuel prices. Most of these tips will give you a very slight increase in miles per gallon (MPG) -- but use several together and the gas mileage improvements will really add up.

1) Check your air filter
A clean air filter is the key to good fuel economy. A dirty air filter restricts the flow of air into the engine, which harms performance and economy. Air filters are easy to check and change; remove the filter and hold it up to the sun. If you can't see light coming through it, you need a new one. Consider a K&N or similar "permanent" filter which is cleaned rather than changed; they are much less restrictive than throw-away paper filters, plus they're better for the environment.

2) Check your tire pressure
Next to the air fitler, under-inflated tires are one of the most commonly ignored causes of crummy MPG. Buy a reliable tire gauge, check your tires when they are cold (driving the car warms up the tires and the air inside them, increasing the pressure), and keep them properly inflated. Use the inflation pressures shown in the owner's manual or on the data plate in the driver's door jamb.

3) Slow down
As speed increases, fuel economy decreases exponentially. If you(sic) one of the "ten-over on the freeway" set, try driving the speed limit for a few days. You'll save a lot of fuel and your journey won't take much longer. Just be sure you keep to the right, so you won't impede the less-enlightened.

4) Hang with the trucks
Ever notice how, in bad traffic jams, cars seem to constantly speed up and slow down, while trucks tend to roll along at the same leisurely pace? A constant speed keeps shifting to a minimum -- important to those who have to wrangle with those ten-speed truck transmissions -- but it also aids economy, as it takes much more fuel to get a vehicle moving than it does to keep it moving. Rolling with the big rigs saves fuel (and aggravation).

5) Accelerate with care
Jack-rabbit starts are an obvious fuel-waster - but that doesn't mean you should crawl away from every light. If you drive an automatic, accelerate moderately so the transmission can shift up into the higher gears. Stick-shifters should shift early to keep the revs down, but don't lug the engine -- downshift if you need to accelerate. Keep an eye well down the road for potential slowdowns. If you accelerate to speed then have to brake right away, that's wasted fuel.

6) Get back to nature
Consider shutting off the air conditioner, opening the windows and enjoying the breeze. It may be a tad warmer, but at lower speeds you'll save fuel. That said, at higher speeds the A/C may be more efficient than the wind resistance from open windows and sunroof. If I'm going someplace where arriving sweaty and smelly could be a problem, I bring an extra shirt and leave early so I'll have time for a quick change.

7) Back off the bling
New wheels and tires may look cool, and they can certainly improve handling. But if they are wider than the stock tires, chances are they'll create more rolling resistance and decrease fuel economy. If you upgrade your wheels and tires, keep the old ones. I have fancy sport rims and aggressive tires on my own car, but I keep the stock wheels with a good narrower-tread performance tire in the garage. For long road trips, the stock wheels give a smoother ride and better economy.

8) Clean out your car
The more weight your car has to haul, the more gas it needs to do the work. If you're the type who takes a leisurely attitude towards car cleanliness -- and I definitely fall into that group -- periodically go through your car and see what can be tossed out or brought into the house. It doesn't take much to acquire an extra 40 or 50 lbs. of stuff.

9) Out with the new, in with the old
Many people keep their old cars around even after they buy a new one. A spare car, especially if it's an econobox, can be good insurance against temporary spikes in gas prices due to world events. The costs of keeping the car may or may not be less then the fuel saved, but it does allow for more predictability in your budget. My old beater doesn't look like much, but it goes 10 miles further on a gallon of gas than our regular car. For that, I can afford to look bad!

10) Don't drive
Not a popular thing to say on a car site, I know, but the fact is that if you can avoid driving, you'll save gas. Take the train, carpool, and consolidate your shopping trips. Walking or biking is good for your wallet and your health. And before you get in your car, always ask yourself: "Is this trip really necessary?"

Thursday, April 05, 2007

PMSI does not transfer When Original Security Interest Is Terminated and collateral is used for New Financingt by a new debtor

"A Purchase Money Security Interest Is Not Refinanced When the Original Security Interest Is Terminated and New Financing Is Used By a New Debtor to Acquire the Same Collateral"

The case of Lewiston State Bank v. Greenline Equipment, LLC, 147 P.3d 951, 61 UCC Rep. Serv. 2d 195 (Ut. App. 2006), holds that a purchase money security interest (pmsi) does not survive its termination when the same collateral is used by a different debtor to obtain new financing.

What happened: a secondary loan company (bank B) paid off the loan with the first bank (Bank A) that held the PMSI lien on farming equipment. This in effect satisfied the original loan, releasing the PMSI security interest. Debtors subsequently pledged the collateral to a 3rd company (Bank C), who's lien was perfected. Therefore, the court concluded that Bank C has a priority claim over bank B, since bank B never perfected their new security interest.

What's the short of it? A bank that wants to take over an existing PMSI should satisfy the existing debt and obtain an assignment of the existing lender's security interest for it to survive subsequent liens that may be recorded under the UCC thereafter.

Thursday, March 29, 2007

Save some money!

As a bankruptcy attorney in Chicago, I see many different people come through my office. It amazes me on the amount of money people spend on a day to day basis. Routinely people put down that they spend $500 a month on food, then make a point of putting down $300 'dining out' in addition!! My God! If people learn how to cook, they would save $300-500 a month. While I know that people like to go out with family and friends, but when did dining out turn from a 'special treat' to a 'necessity' ?

Same thing goes with gas and transportation expenses. It seems like some of my clients must drive around the neighborhood every day just to keep the car warm! If people realize what they are really spending on a day to day basis, I bet they would start making some changes to their lifestyles!

Thanks for listening.
Terrance Leeders
Chicago Bankruptcy Attorney

Tuesday, March 27, 2007

Must I list all of my debts in bankruptcy?

Recently, I received an email asking about filing a chapter 7 bankruptcy The writer asks:


"Do I choose which debts I want to include in my bankruptcy or does the trustee do this? I have a bank loan for my truck which I pay on time and I want to keep my truck and keep making payments. Do I have to include this loan in my paperwork for a bankruptcy? What happens if I don't include it?"


Answer: All debts must be listed in the bankruptcy petition. You can select to 'reaffirm' certain debts. Most chapter 7 consumers reaffirm financed items -cars, houses, jewelry, furniture and electronics. You can usually keep the asset by agreeing to keep paying for it. Now, your budget has to show that you can afford the payments, otherwise the judge could request that you prove how you can afford the payments if your budget shows you cannot.

Similarly, you must list all debts in a bankruptcy case, technically even small personal debts, such as the $10 you owe your Aunt Sue should be listed too! Otherwise, it would be bankruptcy fraud if you intentionally omit a creditor from a bankruptcy petition.

Amendments: if you find out that you inadvertently left a debt out of your bankruptcy filing, perhaps an old medical bill from 4 years ago, don't fret. You can always amend to include that bill in your case. If you do not, it will not be discharged under the bankruptcy code under BAPCPA. The court charges a nominal fee to amend to add another debt if you case is still open.

Wednesday, March 21, 2007

Can a spouse file an individual bankruptcy?

I received an email today from a prospective client asking if a spouse could file bankruptcy without her spouse. Excellent question.

Although both spouses are not required to file bankruptcy jointly, the Bankruptcy Code does require both spouses income to be included in the means test analysis for CMI - current monthly income. However, most people 'pass' the means test analysis and can file for Chapter 7 bankruptcy protection. See previous posts for the median income level in Illinois. As for any joint debts between spouses, or family medical debts, the non-filing spouse may still be responsible.

This prospective client also owned real estate joint with her spouse.
As for the home, it would depend on the value of the home, and the balance owed on the mortgage. Each party can exempt $15,000 of equity in Illinois, so unless it has a large amount of equity, then it shouldn't be effected in a Chapter 7.

Now, if their combined income is too high for chapter 7 or if their home has too much equity, a chapter 13 bankruptcy can help, where she could pay back her bills, sometimes as low as 10 cents on the dollar for unsecured debts, depending on her budget.

Since each case is unique, I encourage consumers to seek an attorney to get a free consultation where the lawyer can examine the case in more detail and provide more specific answers.

Tuesday, March 20, 2007

Substantial Abuse, Bankruptcy Planning & Chapter 7 bankruptcy

What does one have to do, or in this case from Wisconsin, NOT DO, to create substantial abuse ?

RECENT CASES: Feb. 6. 2007

Chapter 7 Debtor who fails to aggressively seek out work before the case is subject to dismissal based on the totality of the circumstances. 'Substantial abuse' is now just 'abuse.'

The court noted: " ... this Court concludes that a debtor who lacks the ability to pay because she has not engaged in a broad employment search, does not wish to work outside her chosen field, does not wish to work within her chosen field outside of southeastern Wisconsin, and takes this position at the expense of her creditors, abuses the provisions of Chapter 7 ..."

The court held, "The court concludes that it must look at the debtor's ability to pay her creditors at the time of the hearing on the motion to dismiss." " . . . it must delve further and find out why the debtor does not have the ability to pay. Finally, the Court concludes that if the debtor's inability to pay creditors is self-imposed, it may consider this fact ... in terms of the totality of the circumstances ..."

In re Richie, 353 B.R. 569 (Bankruptcy.E.D.Wis. 2006)

Therefore, as practitioners, this case is disturbing, as it takes out the element of bankruptcy case planning. What should a bankruptcy attorney advise their client? If a debtor's attorney advises the debtor to stop working, so that the debtor's income would allow them to pass the means test, it sounds like that would open the attorney up to malpractice, as it could get the chapter 7 case dismissed. Very interesting. Therefore, everything you advise a debtor must be very well thought out and planned, knowing that there are these type of pitfalls for the unwary practitioner!

Monday, March 19, 2007

Surrender Vehicle in Chapter 13 - Creditor allowed an unsecured deficiency balance

Northern District of Illinois - Eastern Division Chicago Bankruptcy Judge Squires recently ruled in the chapter 13 case of Linda J. Blanco, 06B 13223, where debtor tried to surrender a vehicle in full satisfaction of the claim owed. Judge Squires

The Court held that "the Debtor may not surrender the collateral in full satisfaction of the debt to the Creditor. The Creditor is entitled to seek its available state law remedies, including its right to an unsecured deficiency claim after liquidation of its collateral."

Judge Squires follows the minority argument in other jurisdictions, but it is also supported by fellow Chicago Bankruptcy Judge Schmetterer. This argument states that that when the collateral is surrendered, "the bankruptcy estate no longer has an interest in the collateral for purposes of § 506." Wherefore, the “hanging paragraph” does not preclude the creditor from claiming an allowed unsecured deficiency claim under § 502.

Judge Squires continued:
"Judge Schmetterer in the Morales case followed Judge Shefferly’s logic in Particka, and he aptly explained the interplay between § 506(a) and § 1325(a)(5)(C):

if a debtor surrenders the vehicle, the interests of parties in the collateral and the impact of § 506 changes. Section 506(a) applies only to “an allowed claim of a creditor secured by a lien on property in which the estate has an interest. . . .” 11 U.S.C. § 506(a). If a confirmed Chapter 13 plan provides for surrender of a vehicle under § 1325(a)(5)(C), the estate no longer has an interest in the vehicle. . . . When . . . . the debtor surrenders the vehicle and the estate no longer has an interest in the property that secures a claim, there is no reason to use the valuation process provided in § 506 to determine the amount of the allowed secured claim. Rather, once the vehicle is surrendered to the creditor pursuant to § 1325(a)(5)(C), the value of the creditor’s secured claim is determined under state law, Illinois U.C.C., 810 ILCS 5/9-610-624. "

Wednesday, March 07, 2007

Giveaway of the Day

Although this is a bankruptcy forum, my clients and visitors can all use a 'freebie' now and then. We'll, I have been using this site for a while now...and they offer some cool things! Check it out!
Terry

Giveaway of the Day

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