Tuesday, November 21, 2017

New York Times: When Unpaid Student Loan Bills Mean You Can No Longer Work

By JESSICA SILVER-GREENBERG, STACY COWLEY and NATALIE KITROEFF

Fall behind on your student loan payments, lose your job.

Few people realize that the loans they take out to pay for their education could
eventually derail their careers. But in 19 states, government agencies can seize stateissued
professional licenses from residents who default on their educational debts.

Another state, South Dakota, suspends driver’s licenses, making it nearly impossible
for people to get to work.

As debt levels rise, creditors are taking increasingly tough actions to chase
people who fall behind on student loans. Going after professional licenses stands out
as especially punitive.

Firefighters, nurses, teachers, lawyers, massage therapists, barbers,
psychologists and real estate brokers have all had their credentials suspended or
revoked.

Determining the number of people who have lost their licenses is impossible
because many state agencies and licensing boards don’t track the information. Public
records requests by The New York Times identified at least 8,700 cases in which
licenses were taken away or put at risk of suspension in recent years, although that
tally almost certainly understates the true number.

Shannon Otto, who lives in Nashville, can pinpoint the moment that she realized she
wanted to be a nurse. She was 16, shadowing her aunt who worked in an emergency
room. She gaped as a doctor used a hand crank to drill a hole into a patient’s skull.
She wanted to be part of the action.

It took years of school and thousands of dollars of loans, but she eventually
landed her dream job, in Tennessee, a state facing a shortage of nurses.
Then, after working for more than a decade, she started having epileptic
seizures. They arrived without warning, in terrifying gusts. She couldn’t care for
herself, let alone anyone else. Unable to work, she defaulted on her student loans.

Ms. Otto eventually got her seizures under control, and prepared to go back to
work and resume payments on her debt. But Tennessee’s Board of Nursing
suspended her license after she defaulted. To get the license back, she said, she
would have to pay more than $1,500. She couldn’t.

“I absolutely loved my job, and it seems unbelievable that I can’t do it anymore,”
Ms. Otto said.

With student debt levels soaring — the loans are now the largest source of
household debt outside of mortgages — so are defaults. Lenders have always pursued
delinquent borrowers: by filing lawsuits, garnishing their wages, putting liens on
their property and seizing tax refunds. Blocking licenses is a more aggressive
weapon, and states are using it on behalf of themselves and the federal government.

Proponents of the little-known state licensing laws say they are in taxpayers’
interest. Many student loans are backed by guarantees by the state or federal
government, which foot the bills if borrowers default. Faced with losing their
licenses, the reasoning goes, debtors will find the money.

But critics from both parties say the laws shove some borrowers off a financial
cliff.

Tennessee is one of the most aggressive states at revoking licenses, the records
show. From 2012 to 2017, officials reported more than 5,400 people to professional
licensing agencies. Many — nobody knows how many — lost their licenses. Some,
like Ms. Otto, lost their careers.

“It’s an attention-getter,” said Peter Abernathy, chief aid and compliance officer
for the Tennessee Student Assistance Corporation, a state-run commission that is
responsible for enforcing the law. “They made a promise to the federal government
that they would repay these funds. This is the last resort to get them back into
payment.”

In Louisiana, the nursing board notified 87 nurses last year that their student
loans were in default and that their licenses would not be renewed until they became
current on their payments.

Eighty-four paid their debts. The three who did not are now unable to work in
the field, according to a report published by the nursing board.

“It’s like shooting yourself in the foot, to take away the only way for these people
to get back on track,” said Daniel Zolnikov, a Republican state representative in
Montana.

People who don’t pay their loans back are punished “with credit scores
dropping, being traced by collection agencies, just having liens,” he said. “The free
market has a solution to this already. What is the state doing with this hammer?”

In 2015, Mr. Zolnikov co-sponsored a bill with Representative Moffie Funk, a
Democrat, that stopped Montana from revoking licenses for people with unpaid
student debt — a rare instance of bipartisanship.

The government’s interest in compelling student borrowers to pay back their
debts has its roots in a policy adopted more than 50 years ago.

In 1965, President Lyndon B. Johnson signed the Higher Education Act, which
created financial aid programs for college-bound students. To entice banks to make
student loans, the government offered them insurance: If a borrower defaulted, it
would step in and pick up the tab. The federal government relied on a network of
state agencies to administer the program and pursue delinquent borrowers. (Since
2010, the federal government has directly funded all student loans, instead of relying
on banks.)

By the late 1980s, the government’s losses climbed past $1 billion a year, and
state agencies started experimenting with aggressive collection tactics. Some states
garnished wages. Others put liens on borrowers’ cars and houses. Texas and Illinois
stopped renewing professional licenses of those with unresolved debts.

The federal Department of Education urged other states to act similarly. “Deny
professional licenses to defaulters until they take steps to repayment,” the
department urged in 1990.

Two years ago, South Dakota ordered officials to withhold various licenses from
people who owe the state money. Nearly 1,000 residents are barred from holding
driver’s licenses because of debts owed to state universities, and 1,500 people are
prohibited from getting hunting, fishing and camping permits.

“It’s been quite successful,” said Nathan Sanderson, the director of policy and
operations for Gov. Dennis Daugaard. The state’s debt collection center — which
pursues various debts, including overdue taxes and fines — has brought in $3.3
million since it opened last year. Much of that has flowed back to strapped towns and
counties.

But Jeff Barth, a commissioner in South Dakota’s Minnehaha County, said that
the laws were shortsighted and that it was “better to have people gainfully
employed.”

In a state with little public transit, people who lose their driver’s licenses often
can’t get to work.

“I don’t like people skipping out on their debts,” Mr. Barth said, “but the state is
taking a pound of flesh.”

Mr. Sanderson countered that people did not have to pay off their debt to regain
their licenses — entering into a payment plan was enough.

But those payment plans can be beyond some borrowers’ means.

Tabitha McArdle earned $48,000 when she started out as a teacher in Houston.  A single mother, she couldn’t keep up with her monthly $800 student loan
payments. In March, the Texas Education Agency put her on a list of 390 teachers
whose certifications cannot be renewed until they make steady payments. She now
has no license.

Randi Weingarten, president of the American Federation of Teachers, who has
worked to overturn these laws, called them “tantamount to modern-day debtors’
prison.”

States differ in their rules and enforcement mechanisms. Some, like Tennessee,
carefully track how many borrowers are affected, but others do not keep even
informal tallies.

In Kentucky, the Higher Education Assistance Authority is responsible for
notifying licensing boards when borrowers default. The agency has no master list of
how many people it has reported, according to Melissa F. Justice, a lawyer for the
agency.

But when the agency sends out default notifications, licensing boards take
action. A public records request to the state’s nursing board revealed that the
licenses of at least 308 nurses in Kentucky had been revoked or flagged for review.

In some states, the laws are unused. Hawaii has a broad statute, enacted in
2002, that allows it to suspend vocational licenses if the borrower defaults on a
student loan. But the state’s licensing board has never done so, said William Nhieu, a
spokesman for Hawaii’s Department of Commerce and Consumer Affairs, because
no state or federal student loan agencies have given it the names of delinquent
borrowers.

Officials from Alaska, Iowa, Massachusetts and Washington also said their laws
were not being used. Oklahoma and New Jersey eliminated or defanged their laws
last year, with bipartisan support.

But in places where the laws remain active, they haunt people struggling to pay
back loans.

Debra Curry, a nurse in Georgia, fell behind on her student loan payments when
she took a decade off from work to raise her six children. In 2015, after two years
back on the job, she received a letter saying that her nursing license would be
suspended unless she contacted the state to set up a payment plan.

Ms. Curry, 58, responded to the notice immediately, but state officials
terminated her license anyway — a mistake, she was told. It took a week to get it
reinstated.

“It was traumatic,” Ms. Curry said. She now pays about $1,500 each month to
her creditors, nearly half her paycheck. She said she worried that her debt would
again threaten her ability to work.

“I really do want to pay the loans back,” she said. “How do you think I’m going
to be able to pay it back if I don’t have a job?”

Copyright 2017 The New York Times Company.  All rights reserved.

Wednesday, November 15, 2017

New York Times: Why Companies Like Toys ‘R’ Us Love to Go Bust in Richmond, Va.

By Michael Corkery and Jessica Silver Greenberg

The Toys “R” Us world headquarters are on a sprawling wooded campus next to a
reservoir in Wayne, N.J., on a street that bears the name of the company’s iconic
mascot, Geoffrey the giraffe.

But in September, when Toys “R” Us filed for one of the largest bankruptcies of
the year, it did not go to nearby Newark.

Instead, the toy company followed an increasing number of corporations —
from Gymboree to a major coal company to a Pennsylvania fracking company — that
are choosing to file for bankruptcy in Richmond, Va.

In recent years, Richmond has become the destination wedding spot for failed companies. The United States Bankruptcy Court there offers several features attractive to the executives, bankers and lawyers trying to get an edge in the proceedings.




First, Richmond’s bankruptcy court offers a so-called rocket docket that moves cases along swiftly. Chapter 11 bankruptcy filings can be laborious proceedings that drag on for years. Gymboree’s bankruptcy was completed in less than four months.

Second, the legal record in that court district includes precedents favorable to
companies, like making it easier to walk away from union contracts.

But perhaps one of the biggest draws, according to bankruptcy lawyers and
academics, is the hefty rates lawyers are able to charge there. The New York law firm
representing Toys “R” Us, Kirkland & Ellis, told the judge that its lawyers were
charging as much as $1,745 an hour. That is 25 percent more than the average
highest rate in 10 of the largest bankruptcies this year, according an analysis by The
New York Times.

“The numbers are stratospheric,” said Kevin Barrett, a lawyer at the firm Bailey
Glasser, who represented the State of West Virginia in two coal bankruptcy cases
filed in Richmond.

Companies can file for bankruptcy in a court district where they have an affiliate
— a loophole that allows them to shop for the court they think will provide the best
outcome.

For an affiliate to be incorporated in Virginia, it can use a “registered agent”
with a local address, according to the state. For its bankruptcy filing, state records
show, Toys “R” Us used a Richmond affiliate whose registered agent has an office in
downtown Richmond.

Representatives for Kirkland & Ellis and Toys “R” Us declined to comment for
this article. So did a spokesman for the federal bankruptcy court in Richmond.

It’s not just the lawyers who stand to gain from the Toys “R” Us bankruptcy. The
bankers and other professionals who helped arrange $3.1 billion in new debt to keep
the company operating in bankruptcy will collect $96 million in fees, according to a
court document filed by Toys “R” Us.

Executives at bankrupt companies typically agree to the high fees, bankruptcy
experts say, because they think the cost will have been worth it if the lawyers and
bankers can save their business. Kirkland & Ellis has a long track record of getting
companies back on their feet in bankruptcy.

The two judges in Richmond are also known for their expertise. “The judges understand the complexities of large corporate bankruptcies and can handle cases expeditiously,” said Dion Hayes, a local bankruptcy lawyer.

Still, the huge fees can eat into the money that is left over for small creditors —
typically vendors, suppliers and pensioners.

In the Toys “R” Us case, dozens of suppliers of scooters, rubber duckies and
teething rings could lose millions in the bankruptcy.

Linda Parry Murphy, chief executive of Product Launchers, a distributor for
several small toy suppliers, said her clients were owed about $1.2 million from Toys
“R” Us. She worries that they may recover as little as $120,000.

“For some of these clients it was very devastating,” she said.

Nationally, professional fees for bankruptcies have been increasing about 9.5
percent a year, about four times the rate of inflation, according to Lynn LoPucki, a
bankruptcy professor at the University of California, Los Angeles.

Mr. LoPucki said the higher fees were fueled, in part, by court shopping. Lawyers advising troubled companies tend to gravitate to courts that approve their fees, he said. Judges who balk at high fees see far fewer cases.

“They become pariah courts,” Mr. LoPucki said.

Down the road, creditors in the Toys “R” Us bankruptcy can challenge how
many hours the lawyers bill at the high rates. Another check on the costs is the
United States Trustee Program, which helps oversee the process and can object if the
legal bill seems unreasonable.

The vast majority of companies — more than 76 percent — now file for
bankruptcy in a different state from where they are based, Mr. LoPucki said.
Delaware and New York — which have long been popular bankruptcy
destinations — still see the lion’s share of the filings.

But Richmond is gaining ground. In July, an article in The Virginia Lawyers Weekly declared the city a “bankruptcy haven” and quoted a local lawyer who said the high legal fees charged there would give judges in other courts a “heart attack.”the high legal fees charged there would give judges in other courts a “heart attack.”

Then in September, the court landed the Toys “R” Us bankruptcy.

Toys “R” Us started out in 1948 as a company that sold cribs and strollers out of
the ground floor of a house in Washington, D.C.

It expanded into the world’s leading toy retailer with about 2,000 stores and an
advertising jingle — “I Don’t Want to Grow Up, I’m a Toys ‘R’ Us Kid” — that could
stick in its customers’ heads like glue.

Seeing opportunity in a consolidated toy industry, the private equity investors
Bain Capital and Kohlberg Kravis Roberts and the real estate firm Vornado Realty
Trust bought the company in 2005 and loaded it up with debt that today stands at
$5.3 billion. It was a burden that proved too much to overcome.

Toys “R” Us has dozens of affiliates around the globe employing 64,000 people.

But when it came time to file for bankruptcy, the company opted for Richmond,
where its law firm, Kirkland & Ellis, had success in the past.

The law firm had represented Patriot Coal, a coal miner based in West Virginia
that filed for bankruptcy twice in four years, most recently in Richmond in 2015.

In that case, the most profitable mines went to another coal company backed by
Patriot’s lenders, while the others were closed.

Mr. Barrett, the lawyer who represented the State of West Virginia in that case,
was stunned by the fees.

“I remember five lawyers in one meeting, and I joked that meeting cost
$10,000,” he said.

This year, Kirkland worked on another bankruptcy case in Richmond —
Gymboree, the children’s clothing retailer, based in San Francisco.

Like Toys “R” Us, Gymboree was owned by private equity and was weighed siwn bt debt.

After emerging from bankruptcy in September, the company closed 350 of its
stores across the country, but the retailer is still in business.

The Toys “R” Us bankruptcy case kicked off in September at a packed hearing.
Kirkland & Ellis set the stage by playing the Toys “R” Us theme song for the judge.
The toy company, the lawyer explained, had tried to turn around its business.

But it couldn’t afford to sufficiently spruce up its stores and compete with retailers
like Walmart and Amazon because it had billions of dollars in debt. He emphasized
how Toys “R” Us had brought joy to many children and how the bankruptcy process
would help the company survive.

“We are all Toys ‘R’ Us kids,” he said.

Copyright 2017 The New York Times Company.  All rights reserved.

Tuesday, November 14, 2017

When is a tax return not a tax return?



Here at Shenwick & Associates, we’re often asked about the dischargeability of tax debts, which we’ve covered on our blog here and mostly recently here.  In brief, it’s a very complex topic that depends on the type of tax, the date of tax and other factors.  But the latest wrinkle in the analysis of tax dischargeability comes in the form of a riddle: when is a tax return not a tax return?

As many of you know, in 2005, Congress enacted the first major reform of bankruptcy law in 27 years, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).  In § 523, which governs exceptions to discharge, the following “hanging paragraph” was added to subsection (a): “[f]or purposes of this subsection, the term ‘return’ means a return that satisfies the requirements of applicable nonbankruptcy law (including applicable filing requirements).”  So, the question is, does a late filed tax return count as a tax return for the dischargeablity of a tax debt?

Different courts have come to different conclusions regarding this question.  The first case that held that late filed returns were not returns for the purposes of tax dischargeability was McCoy v. Miss. State Tax Comm’n (In re McCoy), a 2012 case from the Fifth Circuit Court of Appeals.  Other appellate courts, including the Tenth Circuit and the First Circuit issued opinions following McCoy’s reasoning. 

In a recent petition for certiorari to the Supreme Court in Smith v. IRS (In re Smith) (which was denied), the appellant taxpayer explained the deep division of the courts on this issue:

The circuits are actually divided three ways as to whether late-filed returns are “returns” under
§ 523(a)(1)(B). The Eighth Circuit holds that a duly filed return, even if late, is still a “return” and thus permits discharge two years after filing. Other circuits, including the Ninth Circuit below, hold that returns filed after the IRS assesses a tax liability are not “returns” at all, and thus trigger the permanent bar to discharge. Still other circuits have ruled that any belatedness in return filing bars discharge—even if filing occurs before assessment.

Earlier this year, in Giacchi v. U.S. (In re Giacchi), the Third Circuit Court of Appeals held that returns filed after the IRS assesses a tax liability are not “returns” for the purpose of tax dischargeability.  Please note that the Second Circuit Court of Appeals (which includes New York) has not yet ruled on this issue.

For more information about the dischargeability of taxes in bankruptcy, please contact Jim Shenwick.

Monday, November 13, 2017

New York Times: Behind the Lucrative Assembly Line of Student Debt Lawsuits

By STACY COWLEY and JESSICA SILVER-GREENBERG

A woman in a suburb of Columbus, Ohio, was sued twice, by two different creditors,
over the same overdue student loan. Another person, in Illinois, was taken to court
over a loan that had already been paid off. And hundreds of borrowers faced lawsuits
over debts so old that they were no longer legally collectible.

The cases all involved the same debt collector: Transworld Systems.
Student loans have soared over the last decade, becoming the largest source of
household debt outside of mortgages. The tide of rising defaults has also turned into
a lucrative business, with companies collecting tens of millions of dollars through
settlements, wage garnishments and other compelled payments.

Transworld Systems has been one of most prolific debt collectors, filing more
than 38,000 lawsuits in the last three years on behalf of a single client, the National
Collegiate Student Loan Trusts. But many of the cases were flawed, as the debt
collector churned out mass-produced documentation based on scant verification,
according to legal filings by a federal regulator and a New York Times analysis of court records from hundreds of cases.

In September, the regulator, the Consumer Financial Protection Bureau,
accused National Collegiate and Transworld, in separate complaints, of using sloppy
and illegal collections methods. Both parties agreed to settle and pay more than $21
million in penalties and refunds.

National Collegiate and Transworld “sued consumers for student loans they
couldn’t prove were owed and filed false and misleading affidavits in courts across
the country,” said Richard Cordray, the consumer bureau’s director.

Most of the nearly $1.5 trillion that Americans owe in student debt is backed by the
federal government. When borrowers fall behind on those loans, the government can
garnish their wages or seize their tax refunds.

Private loans, like those owned by National Collegiate, amount to more than
$100 billion. Those players have to go to court to get what they are owed.

Transworld’s high-volume tactics in such cases are common across the industry,
according to borrowers’ lawyers and lawsuits. Court dockets are choked with faulty
cases. Students have been sued for debts they no longer owed, by companies they
never borrowed from, and by creditors that lacked the legal standing to sue in the
first place, records show.

Alarmed by such problems, judges in Arizona, California, Florida, Louisiana,
New Jersey, New York and other states have quashed hundreds of lawsuits.

“This is robosigning all over again,” said Robyn Smith, a lawyer with the
National Consumer Law Center, a nonprofit advocacy group, referring to the way
that banks, at the height of the mortgage crisis, brought thousands of foreclosure
lawsuits without reviewing the underlying paperwork.

Assembly-Line Reviews

From the outside, the squat, industrial office park in Norcross, Ga., is
unremarkable, just another in a stretch of low-hung buildings along a road dotted with pines.

Inside, Transworld’s litigation machine cranks out the paperwork for thousands
of lawsuits each year against borrowers who have fallen behind on their student
loans.

The process for producing legal filings runs like an assembly line for making
widgets. Transworld employees review 30 or 40 borrower files in a typical day,
according to testimony from Bradley Luke, the company’s senior litigation paralegal,
during a deposition in June.

When an affidavit, a legally binding statement laying out evidence in a case, is
needed, Transworld’s software automatically fills in details like the amount owed,
according to Mr. Luke’s testimony. From there, a document production team
finishes preparing the file, then hands it over to an “affiant” — typically a low-level
employee with no legal training — for a review and signature.

The affiants are a critical link in the litigation chain, swearing in many cases that
they had “personal knowledge of the business records,” according to court records.

But Transworld’s employees did not have personal knowledge, the consumer bureau
said in its complaint against the debt collector.

Other companies had created the records reviewed by Transworld employees.
Those workers, the consumer bureau said, did not know how the data was
maintained and whether it was correct. Even so, employees signed the forms “for
fear of losing their jobs,” according to the bureau’s complaint.

The hasty review process obscured defects. More than 800 cases involved
apparent time travel: In those instances, Transworld employees swore that
borrowers’ loans had been purchased by investors on dates that were months or even
years before the loans were actually made.

Transworld, based in Fort Washington, Pa., said it disagreed with many of the
consumer bureau’s accusations. The company agreed to settle the case, it said in a
statement, to avoid the cost and distraction of litigation.

The company’s review process “accords with all industry best practices and
relevant law,” David Zwick, Transworld’s chief financial officer, said in a statement

Transworld “processes thousands of affidavits, and while our error rate is
exceptionally low, we believe that any mistake is unacceptable,” Mr. Zwick said. “We
will continue to regularly review everything we do in order to ensure the highest
standards of quality control.”

Lisa Kyser, in Pataskala, Ohio, said she got tangled up in one of Transworld’s
mistakes. She took out half a dozen student loans as she juggled her college studies
with full-time jobs, but she thought she had all of them under control.

In June 2016, Ms. Kyser got a summons notifying her that she was being sued
for falling behind on a $12,000 loan made in 2006. Two weeks later, she got a
second summons also seeking payment — to a different creditor, for a different
amount — on the same loan.

“I called the opposing counsel from both firms and said, ‘You can’t both be
right,’” said Emily White, a lawyer in Columbus, Ohio, who represented Ms. Kyser.

The cases lingered for five months, while Ms. Kyser racked up legal fees. In the
end, after her lawyer continually pestered them, the law firms that sued Ms. Kyser —
both working for Transworld — withdrew the cases.

Courts Digging Deeper

The stacks of legal documents Transworld prepared in that Georgia office park
made their way to courts across the country.

Many of the cases sailed through, unchallenged. Borrowers often do not fight
collection lawsuits, which allows the creditor to win by default.

Even when defendants did respond, some judges brushed off their objections. In
Miami, a law firm working for Transworld brought a lawsuit last year against
Antonio Fuentes, seeking payment on a $13,356 student loan. With interest and fees,
Mr. Fuentes now owed $25,322.31, according to the complaint.

Mr. Fuentes, representing himself, admitted that he had taken the loan but disputed the amount he was said to owe. A Transworld employee swore in an affidavit that the tally was correct. The judge sided with Transworld and ordered Mr. Fuentes to pay the full amount.

“The courts are often not sympathetic to these cases,” said N. James Turner, a
lawyer in Orlando, Fla., who represents borrowers. “Many judges take the attitude: ‘I
paid my student loans. You ought to pay yours. Don’t give me this nonsense about
technicalities.’”

But some judges are starting to raise questions about collection cases.

Last year, a California appeals court cast doubt on the company’s affidavits.
Employees of Transword, then known as NCO Financial Systems, were not
“personally familiar” with the records they swore were accurate, the judges wrote,
and therefore could not vouch for them in court. The case was tossed out.

It’s not just debt collectors facing judicial skepticism, but also the creditors
themselves.

A New York judge questioned whether Navient, the nation’s largest owner of
private student loan debt, had a right to collect on some loans at all in the state.

At the center of that decision was Stefanie Gray, who fell behind on $36,000 in
private student loans from Navient, with interest rates as high as 14 percent.
Ms. Gray, 29, said she pleaded with the company for relief, but it would not
budge. “I could barely pay rent, and was on food stamps at the time,” she said.
Unable to keep up with the ballooning debt, she defaulted.

Navient filed four lawsuits against Ms. Gray in 2013. With help from Kevin
Thomas, a lawyer with the New York Legal Assistance Group, a nonprofit
organization that helps low-income residents, she fought back by challenging the
creditor’s standing to sue in New York courts. Navient’s student loan trusts — the
investment vehicles that owned her debt — had not registered to do business in the
state, she claimed in her legal filings.

Judge James d’Auguste of the New York State Supreme Court’s civil division in in Manhattan agreed. He dismissed all four lawsuits, on the grounds that Navient’s trusts did not have standing to pursue the cases.

A justice on the New York State Supreme Court ruled differently last year on a
separate case that raised the same defense. He denied a dismissal motion and said
that the standing of Navient’s trusts to sue should be addressed at trial. The case is
still pending.

Patricia Nash Christel, a spokeswoman for Navient, declined to comment on
specific cases.

“We pursue litigation as a last resort for a tiny fraction of individuals — less than
1 percent of defaulted private education loan borrowers — and each case is
individually reviewed and prepared,” Ms. Christel said.
 
A Brawl Brews

The consumer bureau’s action against National Collegiate and Transworld was
intended to sideline the aggressive litigators.

Under the settlement terms, National Collegiate would be forbidden from
collecting on the judgments its trusts have already won, or bringing any new cases,
until it had completed an audit of the paperwork underpinning every single one of its
800,000 loans — an expensive and time-consuming slog.

But the deal, struck in September, may be falling apart.

The settlement requires court approval, usually a rubber stamp when both sides
have agreed to the terms. The case was submitted to the United States District Court
in Delaware.

The trusts’ beneficial owner, Donald Uderitz, the founder of Vantage Capital
Group, a private equity firm in Delray Beach, Fla., approved the agreement with the
consumer bureau. Within days of its announcement, though, seven other parties
involved in or working for the trusts, including Transworld, filed motions asking the
court to reject it.

(The separate settlement that Transworld reached with the consumer bureau
Transworld from hiring law firms to file debt collection cases.)

Until the court sorts out the dispute on National Collegiate settlement — which
could take months, if not years — most of the deal is blocked from taking effect. That
means that Transworld can continue bringing new lawsuits for National Collegiate
against borrowers behind on their student loans.

In Ohio, Ms. Kyser’s home state, law firms acting on Transworld’s behalf have
already filed at least 30 new collection cases in the past month.

Copyright 2017 The New York Times Company.

Monday, November 06, 2017

Installment agreements and dischargeability of taxes



Here at Shenwick & Associates, many clients, lawyers and accountants have contacted us regarding the discharge of taxes in bankruptcy filings. Many kinds of “old” state and federal income taxes are dischargeable in bankruptcy. In the case of income taxes, they are dischargeable in Chapter 7 if all the following criteria are met:

1. The tax is for a year for which a tax return is due more than 3 years prior to the filing of the bankruptcy petition;
2. A tax return was filed more than two years prior to the filing of the bankruptcy petition;
3. The tax was assessed more than 240 days prior to filing of the bankruptcy petition;
4. The tax was not due to a fraudulent tax return, nor did the taxpayer attempt to evade or defeat the tax;
5. The tax was not assessable at the time of the filing of the bankruptcy petition; and
6. The tax was unsecured.

However, more recent taxes won’t meet these rules.  In that case, the taxpayer can’t file for bankruptcy to discharge these tax debts, and the taxing authorities will start the collections process.

If a taxpayer fails to pay his or her debt to a taxing authority, a lien is created on all the taxpayer’s current and future property.  The taxing authority may also file a notice of the tax lien to give public notice to other creditors and establish the priority of its claim over other creditors.  If the taxpayer still doesn’t pay his or her tax debt, the taxing authority will send a notice of its intent to levy (seize and sell) the taxpayer’s property to satisfy the tax debt.

However, there’s a way to stop liens and leviesby entering into an installment agreement, which is an agreement with the taxing authority to pay the tax debt within an extended timeframe.  In the case of the IRS, entering into an installment agreement will get the IRS to withdraw a Notice of Federal Tax Lien (unless the agreement provides otherwise).  This notices other creditors that the IRS is abandoning its lien priority.  It doesn’t mean that the tax lien is released or that the taxpayer is no longer liable for the tax debt.  In the case of a levy, entering into an installment agreement will release the levy (if the terms of the agreement don’t allow the levy to continue) and the IRS will return previously levied property (unless the agreement provides otherwise). 

However, note that entering into an installment agreement doesn’t affect or impact the statute of limitations on the taxing authority’s time to collect on the debt!

By entering into AND complying with the terms of an installment agreement, the taxpayer can not only have a notice of lien withdrawn, a levy released  and levied property returned, but can also “age the tax debt so that it meets the criteria for dischargeability”.  Then subsequently the taxpayer can file for bankruptcy to discharge the balance of the tax debt.

For more information about the dischargeability of taxes and the collection process, please contact Jim Shenwick.