August 2011

Property Exemptions in Bankruptcy–A Grand Political Compromise

Christina Latta Henry |  | Bankruptcy

The amount of property you get to keep in a bankruptcy is the result of a 200-year-old Constitutional battle of states’ right versus federal power.  The Bankruptcy Code provides for a uniform federal set of property exemptions, but if you live in one of 35 states you cannot use those exemptions. Instead you’re stuck with your state’s separate set of exemptions. Your state has chosen to “opt-out” of the federal exemptions.

If bankruptcy law is federal law, how come states get to do that? Here’s the back story to this legal oddity.

You’ve heard that the idea of bankruptcy was important enough to our country’s founders that they put it into the U.S. Constitution. It’s right near the top, in Article 1. The enumerated powers of Congress include “to establish… uniform Laws on the subject of Bankruptcies throughout the United States.”

But did you know that we did not have a federal bankruptcy law for most of the century after the signing of the Constitution? And that the reason we didn’t is in large part because of the contentious issue of property exemptions?

How so? Throughout the 1800s—way before and long after the Civil War–the country waged a political and economic war between Northeastern bankers and Western and Southern farmers and small merchants. Because of reoccurring devastating financial “panics” throughout the century, the farmers and merchants had good reason to worry about losing their homes and farms to out-of-state creditors. Largely in response to this, the first law exempting property from the collection of debt was adopted in 1839 in the Republic of Texas, and spread quickly through the South and the Midwest during the 1840s and 1850s.

Also in reaction to those severe “panics,” three different federal bankruptcy laws were passed and signed into law during that century. But each resulted from a delicate regional compromise to address the immediate economic turmoil, and all were repealed as soon as the economy improved and the political winds shifted. When the first long-standing law finally passed in 1898, it could only get enough votes by allowing debtors filing bankruptcy to use their state law exemptions. Continue reading →

The “Scourge of Wall Street” Leaves the Obama Administration

Christina Latta Henry |  | Current Events

Elizabeth Warren, called by Newsweek “President Obama’s point person for financial regulation,” has resigned just as the Consumer Financial Protection Bureau which she championed came into existence.  She returns to Harvard Law School where she first made her mark with both scholarly research and books for the public on the increasing economic vulnerabilities of the American middle class.

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

Keep Your Vehicle In Spite of Paying Less Every Month

Christina Latta Henry |  | Chapter 13

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.

Buying Just Enough Time for Your Home with a Chapter 7 Straight Bankruptcy

Christina Latta Henry |  | Chapter 7

What if you are under threat of foreclosure, don’t want to keep your house, but just need a little more time to find another place to live? Or if you just need to finish a pending sale before the scheduled foreclosure happens?

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.

The Great Recession More Than Wipes Out a Quarter-Century of Gains Made by Blacks and Hispanics in Household Wealth

Christina Latta Henry |  | Chapter 7

As bad as the Great Recession has been for Americans in general, minorities have been hit the worst. A report just released on July 26, 2011 by the Pew Research Center’s Social & Demographic Trends project reveals that the gap in median household wealth between whites and each of the two largest minority groups has not only gotten tremendously wide, it’s almost doubled in only four years.

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.