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Credit Counseling Requirements for Bankruptcy

By | Bankruptcy | No Comments

What are the Credit Counseling Courses?

Before you can be eligible to file for chapter 7 or chapter 13 bankruptcy, you must complete two separate counseling courses. To prove that you properly completed the course you must receive a certificate of completion.

In 2005 Congress changed the bankruptcy laws to make credit counseling and debtor education courses mandatory to receive a bankruptcy discharge. §109(h) provides that a debtor will no longer be eligible to file under either chapter 7 or chapter 13 unless within 180 days prior to filing the debtor received an “individual or group briefing” from a nonprofit budget and credit counseling agency approved by the United States trustee or bankruptcy administrator.

The Purpose of the Pre-filing Credit Counseling Course

The intended purpose of the credit counseling course is to help you determine whether bankruptcy is right for your situation. The counseling agency helps you prepare a budget based on your income and expenses and then will review with you your options for repaying the debt. In most cases, the agency confirms that bankruptcy is your best option but not always. However, even if the agency doesn’t suggest bankruptcy you’re not required to adhere to their decision. The law only requires that you complete the counseling not follow their suggestion.

Credit Counseling Costs

There are many agencies that are approved by the United States trustee or bankruptcy administrator and the cost can vary greatly, from approximately $15.00 to $50.00. Two (2) courses are required the second course is usually slightly cheaper than the first one.

Debtor Education Course

This is the second course and is required to be completed after filing your case but within 45 days of your 341(a) meeting with the trustee. If you don’t complete this second course, the trustee will not approve your discharge. The purpose of this course is to educate the debtor to make more sound financial decisions in the future to prevent you from becoming insolvent yet again. Once this course is completed you must file it with the bankruptcy court.

Ways to Complete the Courses

There are a couple different ways to complete these courses. The first and easiest way is to complete it online, the next is to complete it over the phone, and the final way is in person in a group setting. The in-person courses are usually much more expensive due to covering the cost for the instructor. After each course you will receive a certificate of completion. You should forward this certificate to your attorney for filing with the court.

Conclusion

Although, the courses are two more hoops to jump through to obtain your bankruptcy discharge, it is necessary, and usually doesn’t take longer than 90 mins to complete. All in all, it is painless and you can learn some helpful tips for life after bankruptcy. If you have any further questions, please contact our office.

What Documents Do I Need To File For Chapter 7 Bankruptcy?

By | Bankruptcy | No Comments

A quick google search can provide an overwhelming amount of information about Chapter 7 Bankruptcy.  Although it is important to do your research do not be overwhelmed by the amount of information available on the internet.  Like a lot of information online, not all of it is correct and, in most cases regarding legal issues, the information might not pertain to your specific situation.  For example, what is true for someone living in Texas could be very different for someone living in New York; even if their legal issue is the same.

In order to properly prepare your Bankruptcy Petition (which is filed with the Court) our bankruptcy attorneys will request documents from you that will assist us in completely understanding your financial situation.  At Balmer Black, our Bankruptcy Attorneys will assist a bankruptcy client with completing our client specific Bankruptcy Questionnaire.  This questionnaire is used internally to provide our firm with detailed financial information so that our attorneys can properly prepare your Bankruptcy Petition for filing.

In addition to the questionnaire, there are specific documents that are required as part of your Bankruptcy both by our office and the Bankruptcy Trustee (The Trustee is appointed to oversee your Bankruptcy Case).  And, it is important to note that every Trustee is different and may require different documents.  For example, one Trustee may require three months of bank statements while a another Trustee will request four months of statements.

In order to give you an overview of the most common documents requested in conjunction with a Chapter 7 Bankruptcy, our attorneys have complied a list of the most commonly requested documents in New York:

1) Proof of income for the last 3 months, if applicable.

If you or your spouse did not work for the entire 60-day pre-petition period, then an Affidavit will be prepared for you or your spouse to sign, explaining that there was no income for a certain period of time.

2) Federal and State income tax returns for the two previous years.

3) Credit Counseling Certificate.

4) Additional Documentation that may be requested:

–   Deeds to houses/land

–   Purchase contracts for mobile homes

–   Titles to vehicles

–   Proof of insurance for houses/vehicles

–   Proof of values of land/houses (tax assessments/appraisals)

–   UCC1 documents that place liens on personal property (e.g. furniture, 4 wheeler etc.)

–   Proof of any child support obligations

–   Retirement plan/loan information (monthly payments & proof deductions)

–   Life insurance documents

The above list is meant to provide you with a basic, general overview of what documents may be required as part of your Chapter 7 Bankruptcy.  Every Trustee and case is very different so in order to determine what documents you will need to file Bankruptcy you can contact one of Balmer Black’s experienced bankruptcy attorneys today to discuss your situation.

As always, you can contact our office by visiting the following link https://balmerblack.com/contact/

We look forward to hearing from you!

You Have Decided That You Need a Will, Now What?

By | Wills & Trusts | No Comments

First off, it is a good idea to contact an attorney in your jurisdiction to help you throughout the process of drafting and executing a Will; especially since laws are very specific as to what a Will must contain and how it must be executed to be valid. Below we will discuss a few appointments that you will have to make when preparing your Estate Plan and Will.

Executor:  Generally, the Executor of the estate or the Executor of the Will is the one in charge. What does that mean? Basically, the Executor is in charge of probating your Will, thus carrying out the transfer of assets and in some cases ensuring legal guardianship passes (if the deceased has minor children).  The Executor’s job is to make sure that what is contained in your Will is carried out.  In most cases, the Executor will hire an attorney to assist with the probate process.

Guardian:  In short, your Guardian will be responsible for your minor children.  As a practical matter, if you and your spouse are executing a Will it would be wise to appoint the same guardian in order to avoid any potential disputes down the road.

Trustee: If you and your attorney decide that you should set up a Trust then you will also need to appoint a Trustee. The Trustee is responsible for overseeing the Trust and owes a fiduciary duty to both the Trust and the benefices of the Trust.

Conclusion

In our practice we find that often times choosing who to appoint as Executor, Trustee, and Guardian can be difficult for our clients and rightfully so.  It is an important decision that you should discuss in detail with your attorney as part of your estate plan.  The process of drafting and executing a Will is much more in-depth and this article is only meant to provide you with just a few things to consider before executing your Will.  Moreover, the most important take away, is that regardless of your situation it is a good idea to speak to an attorney to see how a Will can help protect your wishes and family.

Lisa M. Sassone Joins Balmer Black

By | Uncategorized | No Comments

Balmer Black is pleased to announce the addition of Lisa M. Sassone, Esq. to its New Jersey office.

Ms. Sassone spent more than nine years as counsel for a variety of non-profit organizations that provided civil legal services. During that time, she handled hundreds of cases per year, primarily family law cases, cases involving domestic violence, and disability matters. She has assisted numerous families in resolving disputes, obtaining protection for survivors of domestic violence, and assisting disabled children and adults obtain disability benefits which they were wrongfully denied. She also handled landlord tenant cases, public entitlement matters, and other civil legal matters.

Ms. Sassone is a graduate of the University at Buffalo Law School. During law school, Lisa was the 2005 Recipient of the Kaplan and Reynolds Public Interest Fellowship, which allowed her to intern with a non-profit organization in Buffalo, New York where she worked on the Grandparents Rights Project. This experience shaped her interest in working with families and children. During her final year of law school Lisa worked handling public entitlement cases under a student practice order.

On a personal note, Lisa takes great pride in being the first member of her family to attend college and has a special interest in working with families, children, and the disabled. Lisa is excited to return to her home state of New Jersey and is licensed to practice law in New Jersey, New York, and North Carolina.

 

 

I received a Wage Garnishment Notice, what do I do?

By | Consumer Credit | No Comments

Wage garnishment is a result of legal involuntarily collection used by many creditors in New York. If your wages are being garnished, it can be a shock to most people. In New York creditors with a valid judgment can, via a Marshall take up to 10% of your gross income right out of your paycheck. More often than not, people don’t realize how this can happen.

In New York, for a creditor to involuntarily collect on a debt, there has to be a valid civil court judgment. For a creditor to obtain a judgment they must file a suit against the Defendant, usually this suit is filed where the Defendant resides. Once the suit is filed then the Plaintiff (party suing the Defendant) must serve the Defendant with a Summons & Complaint within 120 days of filing the case. Once properly served the Defendant has 20 days or 30 days to respond. If they fail to respond, then the Plaintiff requests the court to grant a default judgment pursuant to the New York Civil Procedure Law.

How Can I be Served?

There are several different ways that you can be served with a lawsuit. The first is personal service, this is when the process server confirms your identity as the Defendant and actually hands the papers to you. Personal service is not all that common. The next type of service is called substituted service, where the process server serves another person at your residence or they attempt personal service and then leave the papers at your door in addition to mailing a copy. The process server will then file an Affidavit of Service with the court, in this document the process server attests to the fact that they gave you the papers. The difference between these two types of service is the time in which you have to respond. If you’re served personally then you have 20 days to respond, if your served by any other means, you have 30 days.

If you received a garnishment notice, then the 20 or 30 days have elapsed. Now the creditor has a judgment and has the legal right to collect involuntarily, which can mean wage garnishment. Even if you receive this notice you may have some options. It’s possible that you weren’t served properly. You can’t respond to something you never received, right? You will need to file something with the court called an Order to Show Cause (OTSC).

What is an Order to Show Cause?

In this OTSC you will need to explain why you think the court should vacate or remove the judgment against you. These reasons are:

  • Invalid Personal Jurisdiction (bad service)
    • You must be given the papers correctly. Some examples of bad service are:
      • No one tried to serve you personally;
      • You were served by the person suing you;
      • The papers were served to someone who was not likely to give them to you.
    • If you claim bad service, the court will set what is called a “traverse hearing” where you will have to prove the bad service.
  • Excusable Default
    • That you had a good reason to not respond, such as you were out of town when the papers were delivered, family illness, you couldn’t take off work, etc.

Once your OTSC has been filed with the court, the judge will have to sign off on it and set a hearing date. At this hearing, you will have to explain to the judge or court attorney why you believe the default judgment should be set aside. The decision is up to the individual judge, most judges in New York are debtor friendly and usually grant the OTSC to vacate the default judgment.

Conclusion

If you are not familiar with the legal process, drafting and filing these papers can be a bit overwhelming. It is always best to consult with an attorney that has experience defending these types of cases. The bottom line is, if you are getting garnished, you don’t need to give up.  You still may have options to remove the judgment, and set up voluntary payments which can make things easier on you and your family.

 

The above post was written by Joshua C. Sibenik, Esq.

What is the Meeting of Creditors/341 Hearing?

By | Bankruptcy | No Comments

Part of the process of Bankruptcy is the 341(a) hearing, otherwise known as the meeting of creditors. This is a public meeting that is a requirement set forth in the bankruptcy code and it is necessary to receive your discharge. Essentially, the 341 hearing is a meeting with your appointed trustee during which the creditors can be present and they both have the right to ask you questions. The trustee that is appointed by the bankruptcy court administers the hearing; there will not be a bankruptcy judge present. During this hearing the trustee will ask questions regarding your finances past or present to ensure that your paperwork is accurate and that there hasn’t been any fraud committed.

What is the purpose of this meeting?

The purpose of the meeting is for the trustee to determine if your paperwork is in order and to do some fact-finding regarding your case. Your attorney will appear with you at this hearing. Theoretically, your creditors have the right to be present to challenge the dischargability of their particular debt. Practically speaking however, if your debts are mainly consumer debts the creditors do not actually show up. In 99% of the cases, the creditors do not bother appearing at the 341 hearing.

When is the 341 hearing?

In a chapter 7 case, the 341 hearing is set by the court usually roughly 30 days after your petition has been filed. It can be set as soon as 21 days but no later than 40 days after the filing of your petition. Depending on where your case is filed determines where your meeting will be. For example, if you filed in the Southern District Bankruptcy Court, your hearing will likely be located in New York City.

What should you bring to the Meeting of Creditors?

First and foremost you must bring your social security card and Photo ID (either State Driver’s License, ID, or Passport). These items are to prove that you are actually the named debtor in the petition.  If you do not have these items on your scheduled date, the trustee will not conduct the meeting, you will have to reschedule and return once you have them.  Each trustee may request different items, they will inform your attorney what documents they want to review, if you don’t have an attorney they will inform you directly. Some of these items include:

  • Title to house;
  • Title to any vehicles;
  • Pay stubs or proof of public assistance;
  • Bank statements;
  • Balance of any retirement funds;
  • Tax returns;

Your attorney should provide these items directly to the trustee before the hearing, as well as bring them to the meeting. If for some reason you do not have them, then you will be required to either return at a later date or provide them to the trustee by a certain date so you don’t have to return.

What to expect at the meeting?

The meeting will be pretty informal and will likely last anywhere from 5-20 minutes. The trustee will ask certain questions about your financial situation and your paperwork. Usually the questions are pretty standard, but they can vary depending on your situation. Types of questions that the trustee could ask are:

  • Are you the debtor listed in the petition?
  • Why are you filing bankruptcy?
  • Have you listed all your assets in the petition?
  • Whether you have paid any creditors within 3 months of your filing?
  • Have you repaid any friends or relatives in the last year?
  • Does anyone owe you money?
  • Do you have any pending litigation where you are a Plaintiff? (Could you receive any money).
  • How you determined the value of your property listed in the petition?
  • Whether your income is accurate on your schedules and means test?
  • Whether you have dependents?
  • When was the last time you used any credit cards?
  • Whether you owe any child or spousal support?
  • Whether your monthly expenses are necessary and reasonable?

This list does not include everything that the trustee might ask, only some of the questions. If you are not sure how to answer any question that is asked, your attorney may advise you.

Conclusion

Overall, the 341 meeting is nothing to be intimidated by, it is just a part of the process. More often than not it is very brief and most people are surprised with how informal it is. As long as you are being honest with the information that you provide to the Trustee you will have nothing to worry about. Because Bankruptcy can involve complex legal issues, it is always best to consult with an experienced Bankruptcy attorney.

 

 

The above post was written by Joshua C. Sibenik, Esq.

So there has been a Default Judgment entered against you, now what?

By | Consumer Credit | No Comments

First off, you are not alone. In New York City alone there are hundreds of default judgments entered every month. When dealing with a default judgment time is of the essence so you should act fast in order to avoid potential executions; which include wage garnishments, bank levies, placing liens on real estate and vehicles.

The Law: CPLR §3215

In New York, CPLR §3215 is the law that governs default judgments. CPLR §3215(a) states:

When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.

CPLR §3215 is much longer and more complex than what is included above, but for our purposes the above section will work.

How Did This Happen To You?

In order for a default judgment to be entered against you in New York, you must have had a lawsuit filed against you. Once a lawsuit is filed, New York State Law requires that the Plaintiff, the party suing you, serve you with notice of the law suit; either a Summons with Notice or a Summons and Complaint. Once served, New York Law only gives the defendant a limited amount of time to responded, a/k/a appear or answer, the lawsuit. The manner in which you are served will determine how much time you have to respond to the lawsuit. If you are served personally, you have 20 days to respond, but if you are served though substituted service, which is more common, you have 30 days to respond.

Don’t Think That You Were Ever Served With Notice Of The Lawsuit?

It is more common than you would think and we hear this very often when potential clients contact our office. How is this possible? For more information on this topic check out our firm’s blog post: I Was Never Handed the Summons, So How Was I Served?

What Can You Do Now That There Is a Default Judgment Entered Against You?

As mentioned above, time is of the essence because the longer that the default judgment has been entered the more difficult it can be to challenge the default. According to CPLR §317:

…..[A Defendant] may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense………………………………………………………………………………

As you can see above if the default judgment in 5 or more years old it will be extremely difficult, if not impossible, to vacate or remove.

Motion to Vacate a Default Judgment:

Filing a Motion to Vacate a Default Judgment is one way to remove the default. If the Motion is granted the case will be returned to the Court’s calendar; granting you the ability to raise defenses and defend yourself against the Plaintiff. Filing a Motion to Vacate a Default Judgment is complicated and it is in your best interest to contact an attorney to do so.

CPLR § 5015(b)

Under CPLR § 5015(b), parties can stipulate, aka agree, to vacate a default judgment upon consent of each party to the suit. This sounds like a great option, and it some cases, it can be! Although, in our experience, a lot of Plaintiff’s Attorneys will not agree to do so under normal circumstances, but an experienced attorney might be able to negotiate this on your behalf!

Settle the Case

Often times if the lawsuit is a consumer credit case, i.e. the Plaintiff is alleging that you owe money for a credit card, rent, store card, etc. they might be willing to withhold executing on the default judgment if there is a settlement in place. In most cases the settlement would consist of the defendant paying the plaintiff in a lump sum or on a monthly basis. Then, once the settlement terms are satisfied, the plaintiff will inform the court. Negotiating a settlement when a default judgment has been entered can be difficult because the Plaintiff usually believes that they have the upper hand.

Conclusion

Just because you have a default judgment entered against you doesn’t mean that you are out of options, but your time is limited. If you find out that there has been a default judgment entered against you should take action immediately to, hopefully, avoid executions against your assets. An experienced attorney can let you know all your options and help you decide what option is best for your situation.

I Think That A Business Has Taken Advantage of Me, Is There Anything I Can Do? – New York’s Consumer Protection Laws – N.Y. GBL § 349 & N.Y. GBL § 350

By | Business, Consumer Credit | No Comments

INTRO

If you believe that business has taken advantage of you then you may have a cause of action against that business! New York State, like many others, has enacted laws to protect consumers against predatory and/or deceptive business practices.  In New York, businesses are held to a high standard when dealing with consumers.

THE LAWS

N.Y. GBL § 349

New York General Business Law § 349 aka N.Y. GBL § 349: protects consumers against a business’s deceptive acts and unlawful practices. Section (a) of GBL § 349 states that “Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” Although, the law seems to be pretty straight forward there have been many cases and court opinions defining GBL § 349.

According to Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (N.Y. 2000), In order to prevail on a claim for a Violation of N.Y. G.B.L. § 349, a Plaintiff must establish: (a) that the Defendant’s act was consumer oriented; (b) that the Defendant’s act was misleading, and (c) that the Plaintiff was injured as a result.

N.Y. GBL § 350

New York General Business Law § 350 aka N.Y. GBL § 350 prevents business from using false advertising. GBL § 350 states that: “False advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.” According to GBL § 350  “The term ‘false advertising’ means advertising, including labeling, of a commodity, or of the kind, character terms or conditions of any employment opportunity if such advertising is misleading in a material respect.”

In order to prevail on a claim for a Violation of N.Y. G.B.L. § 350, a Plaintiff must establish: (a) that the Defendant’s advertisement was consumer oriented; (b) that the Defendant’s advertisement was misleading in a material respect; (c) Plaintiff was injured, and; (d) Plaintiff relied on the misleading advertisement.

What Does This Mean For You?

As discussed above New York’s consumer protection laws were enacted to protect consumers and deceitful business practices and false advertising. If you believe that you have fallen victim to such unlawful business practices you could be entitled to damages and attorney’s fees.

Under GBL § 349 the Court may increase the damages if a defendant/business willfully or knowingly violated GBL § 349. Additionally, the Court may award reasonable attorney’s fees to prevailing plaintiff under GBL  § 349(h).

Under GBL § 350 Court may increase the award of damages to an amount up to three times the actual damages up to $10,000, if the defendant/business willfully or knowingly violated the this section. Additionally, the Court may award reasonable attorney’s fees to prevailing plaintiff according to N.Y. GBL § 350(e).

CONCLUSION

New York State takes consumer protection very seriously and if you think that a business has taken advantage of you there are remedies available to you and an experienced attorney can help you determine whether or not you have a cause of action under New York General Business Law § 349 and/or New York General Business Law § 349.

I Was Never Handed the Summons, So How Was I Served?

By | Consumer Credit | No Comments

Potential clients will often contact our office and ask how a lawsuit could be filed against them if they have not been personally served with a Summons. Good Question! Unfortunately, New York Law does not require that the plaintiff, the party suing you, personally hand you the Summons. Notice of a law suit, the Summons and Complaint, can be served several different ways which we will discuss more below.

Personal Service

Personal service upon the defendant is the preferable means of service in New York; although, in our experience, this type of service is rare. It maybe surprising, but New York Law does not require that the plaintiff serve the defendant personally, just someone of suitable age.

CPLR 308 is the governing law regarding Personal Service in New York. In part, CPLR 308 sates:

Personal service upon a natural person shall be made by any of the following methods: by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law.

What this means for you is that it is quite possible that the plaintiff could have served an old address, a family member, a roommate, etc. that never told you about the Summons that they were served with!

Can The Plaintiff Serve You By Leaving A Copy Of The Summons At Your Residence?

The short answer to the above is, YES! If the plaintiff is unable to serve a natural person they can effectuate service via Substituted Service.

In part, CPLR 308 sates:

Where service under paragraphs one and two [which we discussed above] cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope………….

This form of service, commonly referred to as “Nail and Mail” can be the most troubling for our clients because the plaintiff can simply leave a summons at your residence or business; by stuffing it under the door, taping it to the door and we have had cases where the plaintiff left the Summons in the hallway of our clients residence!! Please note that the plaintiff is required to mail an additional copy to the defendant at their last known residence or their actual place of business. Lastly, this type of service is only available after the plaintiff has made several attempts to serve personally.

Conclusion

If you have any reason to believe that you have been named as a defendant in a lawsuit you should take action immediately.  As mentioned above, the plaintiff does not have to serve you personally in order to effectuate proper service under New York Law. And, if you have been served, you only have a limited amount of time to respond to the lawsuit.