KC - MO/KS Bankruptcy Practice Tips

Exhibits in Western District of Missouri Bankruptcy Court

2009-02-15T10:27:00.000-08:00

The Plaintiff's/Movant exhibits are labeled with numbers.

The Respondent's exhibits are labeled with letters.

Western District Local Rules - go to page 56.

IRS Tax Liens

2008-12-18T14:10:00.000-08:00

IRS Tax Liens Procedure.

Free Research Documents

2008-12-15T18:36:00.000-08:00

Free Federal Document Bulk Resource

Donate your PACER documents here.

Justia - free legal research.

ALT Law - free caselaw.

Public Library of Law by Fastcse.

Rachel Lynn Foley, Kansas City Missouri Bankruptcy Attorney

Adequate Protection Payments in MO 13

2008-04-16T11:39:00.000-07:00

If you are filing a Chapter 13 and you are going to run the ongoing house payments through the Plan, analyze how quickly you think you are going to be confirmed. The Trustee will NOT distribute payments unless and until you are either confirmed or a Motion for Adequate Protection has been approved AND a Proof of Claim has been filed.

So if you are six months down the road and the Plan has not been confirmed and you have not filed a Motion for Adequate Protection you are more than likely going to have to increase your Plan payments because more will be due and owing on the account. Remember the interest and late fees keep accruing until the Trustee releases the funds.

So moral of the story make sure POC is on file within 30 days and hit the creditor up for a joint motion for adequate protection payments so that money can be released straight away.

Rachel Lynn Foley, Kansas City Missouri Bankruptcy Attorney

Airborne Class Action Settlement

2008-03-03T06:20:00.000-08:00

A Settlement has been proposed in a class action lawsuit that alleges that Airborne Health, Inc. (and other defendants) (“Airborne”) falsely advertised certain therapeutic properties, including the ability to cure or prevent the common cold, when marketing products under the Airborne brand name, as listed below. Defendants deny any wrongdoing or illegal conduct but have agreed to settle the litigation. This website provides information on the lawsuit and proposed Settlement. Click here to download the complete Settlement Agreement.

REMEMBER TO LIST THIS AS AN ASSET IF YOUR DEBTOR HAS EVER USED THE PRODUCT.

For more information click here.

What to do when your trustee is a creditor attorney in your case.

2008-02-29T05:56:00.000-08:00

When your trustee happens to be creditor's counsel in the case all you need to do is call them let them know. At that point they will reject the appointment and the clerk will have the case re-assigned. This generally happens in Chapter 7's only. I have not had a case yet where either of the 13 Trustees were a conflict.

Chapter 13 Plan Tips

2008-02-28T12:34:00.000-08:00

CHECKING THE BOXES FOR A MISSOURI CHAPTER 13 PLAN

If you are using the Missouri form plan, be sure to check the boxes. If you don't you will receive an objection to your Plan. Even if you eliminate all choices but the one you want you must check the box. Keep in mind it is not just the trustee that can and will object, creditor's counsel also has objected to not checking the box.

MISSOURI CHAPTER 13 PLAN TYPES

Unless you get a approval from the trustee's office do not mix and match your Plan choices for the treatment of the unsecured creditors. You are either a DIP, Base 36, Base 55, 0% (my personal favorite) or 100%. If you pick more than one it tends to confuse everyone and I doubt it will be approved. Many times I have this great idea at the time of the signing but by the time the 341 rolls around when the trustee or his assistant's ask what was I thinking when I drafted this Plan, my creative moment usually does not make sense anymore and often results in the dreaded "staple page trustee report". Simplicity works especially since there seems to be new practice rules and cases everyday that keeps us on a daily roller coaster. No matter where you practice Bankruptcy, the case law is changing at such a fast pace that your debtor better be prepared to change course on a moment's notice.

Keep the Plans as simple as possible on both sides of the state line. I am attempting to make changes to my Plans that are so simple that any average debtor can understand what it means. Of course they say they understand but than they too forget the very second they leave the office. Currently I am working on a database so when the debtor leaves the office they can log into their case to refresh themselves as to why they are in a 13 and not receiving a discharge as a result of their previous 3 filings in the last 2 years.

Bottom line, keep the Plans clean and concise. If you are not sure about a Plan than call either Rick Fink, Jan Hamilton or Bill Griffin's office. All three offices will let you know what their preference is and are willing to discuss just about any issue that you wish to raise.

SURRENDERING STUFF IN MISSOURI 13

Keep in mind that if you are surrendering secured "stuff" you can no long surrender in lieu of entire debt. If your Plan is a 0% Plan than it is not a big deal because the ruling in Osborn is NOT forcing you into a different Plan type.

One issue that has been discussed is when the creditor is saying that the vehicle is worth a certain amount than they turn around and sell it for a mere pittance. I predict this will be the next issue to litigate as debtors' attorneys.

For example, Capital One states in the their POC that the 1999 Ford Escort is worth $10,000.00 today and it is fully secured up to that amount. Ms. Debtor on social security cannot afford that vehicle now and surrenders it. Cap One turns around and sells the vehicle at the local auction for $1500 and files a deficiency claim against Ms. Debtor. Chances are she would never need to worry about the deficiency claim because she is a 0% Plan. But stop and think for a moment for those who are a Percentage to the Unsecured Creditors Plan. Is it fair that the creditor claims that they just know that vehicle is secured up to $10,000 but than settles for $1500 when they sell it?

No, I do not know the answer yet but I truly believe that this will become an issue that will need to be brought before the court before it is all is said and done.

BALANCED BUDGET

This is one issue that drives the tees nuts on both sides of the state line. If you are proposing a certain Plan amount your I and J should match to show that your debtor can afford that Plan payment. If I and J results in a negative amount you must propose an outline of how your debtor is going to be able to afford to make this payment during the course of the Plan. It is helpful to also propose a time line of when the changes will take place in order for your debtor to be able to afford the payment.

The balanced budget issue tends to make the 7 trustees a little nutty also. Keep in mind even if the trustee does not raise a negative budget issue in a 7 the Judge might if you are seeking a reaffirmation. Balanced budgets will make your life so much easier as a debtor's counsel.

Kansas is more liberal with the budget issue than the Missouri side, at least in my experience. Either way like everything else in Bankruptcy at the moment the devil is in the details.

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Means Test Tips

2008-02-28T11:57:00.000-08:00

TRANSPORTATION ADJUSTMENT. Per the IRS Manual.

If your vehicle meets the following requirements you may add $200 to your transportation expense on the means test:
    1. Vehicle is older than six (6) years old.
    2. There is more than 75,000 miles on the vehicle.
    3. It is a personal vehicle.
    4. There is nothing owed against the vehicle.

I think one of the best tips I have ever had is from a friend who said: Rachel, stop and ask yourself if I was the trustee on the case what would I want to look at and ask for when reviewing a case? It does not always work but it is great advice just the same. So if you have a car that you wish to take the transportation adjustment on do something that you can prove to the trustee that it qualifies. Remember post BAPCPA we are working with 3 different levels of trustees. 7 vs 13 vs US Trustee. Each one is of a different mind set, wants and needs. Try and produce something that will satisfy anyone who is reviewing the issue.

For the transportation adjustment I recommend a CarMax appraisal and a copy of the title. The title should show the year of the vehicle and that it is free and clear of any liens. The CarMax appraisal shows trade in value and it is a free written report that documents the mileage. Unless it is a Semi I have never really had to prove that the vehicle is personal in nature other than the testimony of the debtor. Although I did have to stand toe to toe with creditor's counsel to show that a Semi was for business and not personal when I was cramming it down. Never a dull moment anymore in the Bankruptcy arena.

WITHHOLDING TAX

Remember that you should be taking the actual tax that should be withheld. This can either go in your favor or against. If your tax withholding is not accurate than your B22 figures will be false and will probably draw an objection from one of the trustees.

You can use on of the links below to estimate the tax due or double check the withholdings:

    IRS Withholding Calculator.
    Withholding Calculator.
    Tax calculator from Bankrate.com.

More often than not I find my debtors under withholding which in turns increase the drop out amount in B22.

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Tax Related Links

2008-02-28T11:42:00.000-08:00

Internal Revenue Site.

Transportation adjustment for the means test.

Form 982 this form will release any 1099 alleged income that was discharged in bankruptcy.

IRS Withholding Calculator.

Withholding Calculator.

Tax calculator from Bankrate.com.

IRS Forms.

Where's my refund?

Free filing for returns.

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Mortgage Issues

2008-02-28T11:20:00.000-08:00

Mortgage Calculators

Home Equity Calculator

Foreclosure Resources

Max Gardner Bankruptcy Bootcamp - excellent resource and well worth your time as a debtors' counsel

Interest Rate Observer

VA

Ginne Mae

HUD Clips

Fannie Mae

FDIC

Freddie Mac

HUD - Main Site

SBA

Consumer Federation

Federal Home Loan Banks

Federal Home Loan Banks - Office of Finance

Federal Housing Finance Board

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Bankruptcy Code Online

2008-02-27T21:24:00.000-08:00

Searchable Bankruptcy Code Online

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US Trustee Info

2008-02-27T21:06:00.000-08:00

Main US Trustee Site

Bankruptcy Articles

US Trustee position on Chapter 13 disposable income

Means Testing

Nationwide Child Support Enforcement Offices

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FORMS

2008-02-27T21:04:00.001-08:00

Various Forms

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Trustee Links

2008-02-27T20:17:00.000-08:00

Paul Lumaghi - Assistant US Trustee Kansas City, MO

Richard Wieland - US Trustee and Joyce Owen Assistant US Trustee Wichita, Kansas

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Richard V. Fink - MO 13 Trustee

William H. Griffin - KCK 13 Trustee

Jan Hamilton - Topeka 13 Trustee
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Gary Barnes - Kansas City, MO Chapter 7 Trustee

Carl R. Clark - Kansas City, KS Chapter 7 Trustee

John Cruciani - Kansas City, MO Chapter 7 Trustee

Jerald Enslein - Kansas City, MO 7 Trustee

Erlene Krigel - Kansas City, MO 7 Trustee

Aunna Peoples - Kansas City, MO Chapter 7 Trustee

Robert A. Pummill - Kansas City, MO Chapter 7 Trustee

Eric C. Rajala - Kansas City, KS 7 Trustee

Steve Rebein - Kansas City, KS 7 Trustee

Christopher Redmond - Kansas City, KS Chapter 7 Trustee

Maureen A. Scully - Kansas City, MO Chapter 7 Trustee

Janice Stanton - Kansas City, MO 7 Trustee

David C. Stover - Kansas City, MO 7 Trustee

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Foreclosure

2008-02-27T17:49:00.000-08:00

Martin, Leigh, Laws & Fritzlen - Foreclosure
Millsap & Singer
South & Associates
Foreclosure Radar
RESPA
Realty Trac - foreclosures nationwide
Reg X
HOEPA Calculator
SEC

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Bankruptcy Practice Blogs

2008-02-27T17:45:00.000-08:00

FBI Mortgage Fraud Update
Bankruptcy Law Network
Debt Law Network
Credit Law Network
Mortgage Law Network
Predatory Lending Blog
Mortgage Fraud Blog
Mortgage Fraud Resources
ABI Bankruptcy Blog Roundup

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Acrobat and Excel Tips

2008-02-27T17:44:00.000-08:00

Acrobat and Excel tips.

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Waiver of Filing Fees

2008-02-27T17:41:00.000-08:00

If you file a case with an application to waive the fee, change the dollar amount on the fee screen to 0.0. This will ensure that you will not be charged the filing fee automatically. The Judge will then either issue an Order waiving the fee or setting your client on an installment payment schedule.

Case Law Updates

2008-02-27T17:38:00.000-08:00

Bankruptcy Caselaw from across the nation.

Findlaw Bankruptcy Court Links

General Caselaw Search Engine