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June 8, 2009

Linking Healthcare Costs to Bankruptcy -- More Spin Than Truth?

A recent Harvard law school study indicates that health care costs are "behind" roughly 60% of bankruptcy filings. My personal experience gleaned from counseling close to 1,500 bankruptcy debtors since 2005 would suggest a much lower figure, at least under the commonly accepted definition of "behind."  For example, according to my experience, in a typical bankruptcy case the credit card debt load alone comes in around $30,000 whereas the actual medical debt is usually less than $1,000. Does this mean that my clients' medical debt is "behind" their bankruptcies? I wouldn't think so, but add a relatively small portion of the credit card debt that may be pushing their bankruptcies, and the word "behind" becomes somewhat more credible. Still, not counting mortgages, car loans, student loans and tax debts, a large majority of the debt (in my cases at least) has come from purchases and personal loans for living necessities, family vacations, car and home maintenance, "toys" and, not insignificantly, from penalties and interest for late payments and overcharges.

Are my clients healthier than the norm? I don't think so, but almost all of them receive their primary health care through Medicare, Medi-Cal (a state-specific variant of the federal Medicaid program), or employment-related benefit programs. To be sure, some of them have gone without while others have been left with residual debts due to co-payments and the occasional uncovered treatment or prescription -- a relatively insignificant part of their overall debt load. There are, of course, exceptions to this -- an uncovered trip to the emergency room with a $15,000 price tag or the like has provided the bankruptcy filing trigger more than a few times.

So, if I were issuing a report based on my cases, I could honestly say that health care debts have been part of the mix, but I wouldn't want to insinuate that medical costs were the most important factor. Of course, since I only serve California debtors, their experience may be way different than that attributed to bankruptcy debtors in other states -- and the Harvard poll may be perfectly accurate outside of the Golden State.

Still, the timing of the report -- derived as it is from a poll taken some two years earlier -- is suspicious given the fact that the national health care debate is about to begin in Congress. It makes me suspect that the poll is being reported in a manner to serve an agenda -- one that is tilted towards significant health care reform. Simply put, someone is wagging the dog, but don't get me wrong. That's my agenda too. I just wish that polls and the statistics that are drawn from them were not so consistently used to manipulate public opinion in a particular direction rather than to tell "just the facts, ma'am" and let those who read them draw what conclusions they will. Jeez, I know, my naïveté runneth over.
May 15, 2009

Stay Away from Debt Management Plans

In a brief article found on the Debt Law Network, the author notes:

The FTC has found that some organizations that offer debt management plans (DMPs) have deceived and defrauded consumers, and recommends that consumers check their bills to make sure that the organization fulfills its promises. If you are paying through a DMP, contact your creditors and confirm that they have accepted the proposed plan before you send any payments to the organization handling your DMP. Once the creditors have accepted the DMP, it is important to:
  • Make regular, timely payments.
  • Always read your monthly statements promptly to make sure your creditors are getting paid according to your plan.
  • Contact the organization responsible for your DMP if you will be unable to make a scheduled payment, or if you discover that creditors are not being paid.
The article goes on to explain what can happen if you are late with a payment. What it doesn't say as clearly as it might, however, is that your plan will most likely go up in flames if you fall short on your payments. In my humble opinion, you should stay away from debt management plans for this reason alone. But there is more. 

First, as confirmed by the FTC, the company you choose may be a scam. In addition to not delivering on its promises, it may be taking your money under circumstances where it's clear you can't afford the plan. Second, by paying a "middle man" to do something that you could do yourself  (negotiate a payment plan with your creditors), you are wasting precious resources. And third, none of the plans that I've seen are willing to open their books and publish their success/failure ratios. Since I don't know what those ratios are, I can only guess that they would likely scare off future customers and bring the FTC down on them even faster than is already the case.

Perhaps my biggest reason for being so negative about DMPs is that they divert your income from you and your family to the DMP company and your creditors. Assume, for example, that your plan requires you to pay $300 a month for three years, and after the first year you are unable to continue making the payments. During that first year you will have paid $3,600 under your DMP for no good reason. Had you deposited that $3,600 into a savings account, you would be in much better shape to rebuild your finances.

Of course, you will still have to deal with your debt in some way. My way is bankruptcy. If you are guided by a morality that compels you to repay your debt, file under Chapter 13 and throw as much money as you can into your Chapter 13 plan. If you, like many, feel justified in getting a fresh start within several months rather than several years under a Chapter 13, file under Chapter 7. Unlike Chapter 13, you can probably handle your own Chapter 7 bankruptcy without a lawyer, which means that for several hundred dollars you can be rid of your credit card debt no matter how much you owe.

"But," I hear you say, "my credit will be ruined if I file bankruptcy." Yes it will, at least for a while, but your credit may likely already be in the tank. More importantly, in the new economy, we will all be required to live within our means. If you are able to save every penny you would use to pay off all or a major percentage of your credit card debt yourself rather than under a DMP, your savings account will be large enough to replace the financial cushion that good credit provides.

To learn more about debt management plans and how to avoid scams, see Nolo's article Debt Management Plans.

March 4, 2009

Cars in Chapter 7 Bankruptcy -- What Happens?

People often ask me about how Chapter 7 bankruptcy will affect their ability to keep their car. If you aren't making payments on a car, then it's just a matter of using whatever exemptions are available to keep it, just like any other asset. However, if you are making payments on your car, it's not so simple. As part of your bankruptcy you must decide how you want handle the note. You do this by filing an official form called the Statement of Intention (SOI) with your other bankruptcy papers as well as mailing a separate copy of the SOI to your lender. I go into more detail on this in a new article on Nolo's website: What Happens to Your Car in Chapter 7 Bankruptcy?
February 3, 2009

Why People Don't File Bankruptcy Sooner: It's the Attorney Fees, Stupid

In a January 24th New York Times article entitled "Bankruptcy as a Step to Solvency," "Your Money" writer M.P Dunleavey quotes several bankruptcy "stars" (including Elizabeth Warren and Katherine Porter) about why people wait so long to file for bankruptcy. They point out that people suffer for an unreasonably long time under oppressive debt loads and that in many cases filing bankruptcy would restore already-trashed credit sooner than trying to rebuild the credit by avoiding bankruptcy in the first place.

All fine and good. I agree. People should file sooner rather than later, and their credit score should not hold the sway that it does. But the reason why people wait is not primarily because of credit concerns. People aren't stupid. They know their credit is in the toilet. So what's the real reason? It's primarily because attorney fees roughly doubled as a result of the 2005 changes, now in the neighborhood of $1500 and $2000 for the most basic Chapter 7 bankruptcies. In a word, bankruptcy attorneys have become unaffordable.  

This would be tragic but for the fact that there is seldom a good reason to use an attorney in a consumer Chapter 7 case. The procedures are almost exclusively administrative -- that is, there is no appearance before a judge, or any advocacy involved. The forms are all (with very few exceptions) pre-printed in plain English, intended for the bankruptcy filer's use and easily available in fillable format on the official U.S. Courts website. There are good plain English guides available, including How to File For Chapter 7 Bankruptcy written by this blog's authors, now in its 15th edition. There are plenty of bankruptcy attorneys afoot who are more than happy to provide pre-bankruptcy counseling for little or no money for people who want to check in with a professional.

What's tragic is that people think they have to have attorney representation. This belief stems in part from the fact that articles such as the one in the Times continually misrepresent the nature of Chapter 7 bankruptcy. For example, the article states: "Because bankruptcy is so complex, and because bankruptcy laws underwent a major overhaul in 2005, many people are not only wary of filing, but also confused about their options and what the possible outcomes are." People may be confused but the assertion that the confusion is justified by the complexity of the subject is flat out wrong in most cases. Yet, the exception becomes the rule, and anyone reading this article believes they can't handle their own bankruptcy. The bankruptcy bar can only smile at this intentional or unintentional piece of attorney marketing propaganda.

The article ends with a recommendation by Professor Katherine Porter that a lawyer can help you decide on the best type of bankruptcy to file (Chapter 7 or Chapter 13) and that you can find a lawyer on the website for the National Association of Consumer Bankruptcy Attorneys. And that's where the article ends. Not a word about the fact that over 20% of Chapter 7 bankruptcy filings are accomplished without a lawyer and not a peep about the resources offered by Nolo and other publishers of self-help law books.

By failing to acknowledge the possibility of self-representation and delivering its readers to attorneys they can't afford, the article becomes part of the problem. Ironically, self-representation is the one approach that may produce the very result the article recommends -- that is, get thee into a bankruptcy court sooner rather than later.

December 18, 2008

New Credit Card Rules Will Protect Consumers... Eventually

After years of consumer complaints, congressional hearings, and newspaper accounts of unfair (but not illegal) practices by the credit card industry, federal regulators today (finally!) adopted new rules to protect consumers from such practices. Read about it here, here, and here.

Here are the highlights of what will be illegal as of June 1, 2010:

  1. No interest rate hikes on existing balances. Your interest rate is is locked in at the moment of purchase, and must remain so as long as you keep current on your payments (see below). Once you're 30 days late with a payment, you lose this protection. The interest rate on future purchases, of course, can be whatever rate the bank wants.
  2. No more "Universal Default". This is a biggie. This is where the credit card company raises your rate when you're late paying some other bill (for example, your car payment), and that late payment shows up in your credit report, so they raise your rate based on the so-called "universal default" clause. If your card does this, it can continue to do so for another year and a half and then no more, thanks to the rules passed today.
  3. More time required to pay between the statement date and the due date. In their quest to make payments late, some cards give you as little as 15 days from the statement date to the due date and then you're late. The new rules would require 21 days.
  4. No "Double Cycle" billing. Banks like to use your current and previous monthly balances in computing the finance charge. Under the new rule, banks can't count paid-off balances from prior months in assessing finance charges for the current month.
  5. Payments must be applied fairly. Banks can no longer apply your payments only to the lowest interest rate balances while higher rate balances, like those for cash advances, go unpaid.

All of this may seem like common sense and simple fairness. And it is. But remember, it won't be the law until July 1, 2010.

The litany of things listed here will still be legal until then... so, for banks it's woo hoo! pillage away! git while the gittin' is good and try to hijack the last of poor people's savings to cover the bank's own sorry balance sheets, the product of its own regrettable debt-fueled binges!

Fortunately, there are sites like that let you see which card companies already comply with these fairer practices.

The fact that these regulations are only now being put in place indicates the indifference that federal regulators have felt up to this point in protecting consumers. By giving billions to bankers, we know they care about them. Now they've thrown consumers a bone, too.

But we don't get it for another year and a half.

To learn more about new protections for credit cardholders, see Nolo's article New Credit Card Rules for 2010.

October 21, 2008

Should You Keep Your House?

If foreclosure looms because you've missed some payments or you think you will soon, it's time to face what's probably the toughest question of the whole process: Does it make economic sense to keep throwing money into your house?

If your mortgage debt is significantly more than the value of your home -- which is becoming the norm rather than the exception -- the main question is whether the property's value will bounce back enough to give you at least a little equity in your house in the not too-distant future.


If you owe at least 25% more than the value of your house -- whatever you determine it to be -- the wise economic decision, under the present circumstances, would be to extract as much money as you can from the house now by stopping your mortgage payments and staying in the house payment-free for as long as possible, which can be as long as a year in many states.

How do I know what the market will do in the future? I don't. And I always keep in mind the advice that Mark Twain is reputed to have given a young man: "Buy land, they're not making it anymore." Also, no formula exists that can predict how soon a particular real estate bust will be over. But, while the general history of real estate booms and busts might indicate a fairly speedy recovery, history has never seen a combination of such factors as:

The fact is, there is no guarantee your house will ever recover its original value. As the old saw goes, you don't want to throw good money after bad. If the housing market fails to rebound because of these factors (and others sure to come), every economic sacrifice you make now to keep your house could be for naught if you ultimately lose it.

May 23, 2008

Chapter 7 Bankruptcy Filings on the Rise

An article on Newsweek's website asserts that chapter 7 bankruptcy filings are following an upward trend, with more and more people seeking bankruptcy protection, despite recent changes to the law making it more difficult to file. Readers of this blog will know that I advocate bankruptcy as a way to avoid foreclosure; according to Newsweek, filing bankruptcy to deal with an imminent foreclosure is one of the reasons for the boom:

In some cases struggling homeowners are filing to prevent foreclosure. (A record high 243,353 homes went into foreclosure in April, according to data released on May 14 by RealtyTrac.) Squeezed by rising costs for everyday necessities like gas and groceries and unable to tap into their homes for temporary relief -- declining values have left some people owing more than their homes are worth; it's also more difficult to get home equity lines of credit or loans -- many people have turned to their credit cards "as a last resort," says Robert Lawless, a professor of law at the University of Illinois who follows bankruptcy trends.

While digging the debt hole deeper seems like it might be a good idea in the short term, filing bankruptcy now will help you avoid the costly penalties that credit card companies will saddle you with as your balance goes ever-upward. If you're thinking of filing for chapter 7 bankruptcy, be sure to visit, my co-blogger's website, to try out his free means test calculator. The calculator can quickly tell you whether you qualify for chapter 7 bankruptcy under the changes in the law that went into effect in early 2008.

May 20, 2008

New Foreclosure Area on

istock_000005686837xsmall.jpgAs the credit crisis continues and foreclosures continue to rise, Nolo has gathered the most relevant and helpful articles and tools for anyone facing foreclosure. There, you can find articles by me and my colleagues on everything from reducing the number and amount of mortgages on your home, to tips on how to spot the shady characters who will try and take advantage of you at a most vulnerable moment -- when you're struggling to hang on to your home. And, of course, there are answers to those nagging questions that need to be answered immediately -- like how long you can stay in your home once foreclosure notice has been given.

To find out what the law has to say about these issues and more, check out the brand new Foreclosure area on Soon we'll be adding an article on foreclosure basics and an FAQ with answers to common foreclosure questions.

May 8, 2008

Tips & Tools: Foreclosure

bankruptcy050808.jpg The subprime mortgage and credit crisis shows no sign of waning anytime soon, and if you're one of the millions being foreclosed on, panic may be quickly setting in. But just because a solution seems unreachable doesn't mean that you can't plan ahead to minimize the possibility of foreclosure or mitigate the damage if you find yourself sliding toward it.

Lately, I've been working with my colleagues at Nolo to produce useful materials that will help anyone in any stage of the foreclosure process -- from those struggling with their new jumbo loan repayments to those with an eviction notice already pasted to their front door. Here are a few of the articles I'd recommend to interested readers:

  • My latest article covers the process of reducing your mortgage obligations to help you avoid foreclosure and stay in your home.

  • Similarly, Ilona Bray gives you a rundown of all the ways you might be able to stay in your home and keep foreclosure at bay, as well as what to do if you discover that foreclosure is inevitable.

  • A cautionary article: Don't Lose Your Home to Foreclosure "Rescue" Scammers. Many unscrupulous people are using the mortgage crisis to prey on those going through one of the most difficult times in their lives. This article gives you the tools to recognize those attempting to defraud you, and how to check up on the legitimate rescuers.

  • What happens when your landlord's rental property is being foreclosed upon? Janet Portman provides the information any renter in this situation will need, including warnings about angry, law-breaking landlords and solutions for tenants who find out their new landlord is the bank.

February 11, 2008

How To Reduce Your Mortgage Payments While Avoiding Foreclosure

istock_000004045047xsmall.jpg If you're like many homeowners, your home is encumbered with a second or third mortgage (or deed of trust), and perhaps a home equity loan. Numerous articles describe you as using your home like an ATM machine. Having all these secured debts on your home is tantamount to a juggler having too many balls in the air -- at least one must fall, sooner rather than later. If, for one reason or another, you just can't keep up, you may be able to avoid foreclosure if you pay the right loan and either blow off the rest, or at least make reduced payments. In almost every case, the right loan to stay current on will be your first mortgage or deed of trust. While I'm always hesitant to tell people to stop meeting their shelter obligations in full and on time, sometimes it's the only rational thing to do -- as wrong as it may feel to many of you. If reducing the amount you throw at your home every month will let you stay there and keep your ahead above water, at least until you can work out a better solution, I'm all for it. How does this work? When you originally took out the loan to buy your home, you agreed to have the loan (or loans) secured by a mortgage or deed of trust (depending on the state where the property is located). (For the rest of this blog, I will use the term "mortgage" to refer to both mortgages and deeds of trust.) By recording the mortgage in your local land records office, the lender created a lien (legal claim) on the property, which can be enforced by foreclosure if the payment terms of the mortgage document aren't met. As you probably know, in foreclosure the property is sold to make good on the promissory note underlying the mortgage. The main loan you used to buy your home is termed a "first mortgage." Why first? It's almost always recorded first and gets paid first in case of a sale. In the same manner, a second loan secured by the home is a second mortgage. For example, it's common to use a first mortgage to pay 80% of the sale price and get a second mortgage for the additional 20%. And that's not all. In the bubble years, home value appreciation supported additional loans against the home, often in the form of a home equity lines of credit. As with the first mortgage, the lender's primary remedy for a default on these additional loans is foreclosure. For foreclosure to be an effective enforcement remedy there has to be enough equity in the home to pay off the holder of the loan being foreclosed. And if the home is sold in foreclosure, all senior lien holders (in that a first mortage is senior to a second mortgage) have to be paid off first. For that reason, until the last several years, banks wouldn't lend in the absence of good credit and a healthy chunk of equity to secure the loan. In the bubble years, however, many loans were made on the expectation that values would rise fast enough to provide adequate security for the prospective loan, even if there was no measurable equity at the time. Also, liberal (dare I say "dishonest" or "fraudulent"?) appraisals were easy to come by. It's easy to see what happened when the crash came. Not only did homes stop appreciating in value, but the values continue to plummet, erasing whatever equity there may have been at the time of the loan as well as erasing the hope of equity to come. Importantly, then, if in your case one or more of the loans on your home has become unsecured-in-fact -- or never was secured to begin with -- skipping payments won't result in a foreclosure action. Sure you may get sued, but the lender's only remedy is to get a money judgment and put another lien on your home, just in case some equity develops in the future. And lawsuits usually take a long time to develop, giving you the opportunity to raise some money from another source and make up the payments or settle with the lender for less than you owe. Remember, the only reasoning for this strategy is the assumption that you can't afford to remain current on your "mortgage debt." To determine whether the loans on your home are secured or unsecured (as a factual matter), begin with your home's value (be optimistic, but sensible) and subtract the first mortgage. If you hit zero or below, foreclosure is not a viable remedy for the other lenders, since there is no equity left in the home to pay them off. Assume, for example, that your home is worth $400,000. You have a first mortage of $350,000, a second mortgage of $50,000 and home equity line of credit worth $25,000. When you subtract the first and second mortgages from the home's value, you get zero. If you stop making payments on the home equity loan, the lender won't benefit from a foreclosure, since there wouldn't be anything left from the sale after the first and second mortgage holders are paid. Of course, it's not always that simple. Sometimes a second or third mortgage is partly secured and partly unsecured. In that case, a foreclosure by the junior lien holder might recover some of the lien but not all of it. On the other hand, when foreclosure does occur, in most states it wipes out all the junior liens, regardless of the equity in the home. For instance, in the earlier example, if the owner of the first mortgage foreclosed on the loan, the liens held by the holders of the second mortgage and the home equity line of credit would both be extinguished, even though there was still equity (at least theoretically, since foreclosure sales usually accept bids far lower than the perceived market value).

For more information on avoiding foreclosure, see The Foreclosure Survival Guide, by Stephen Elias (Nolo), an essential tool for anyone at risk of foreclosure.