Monday, March 31, 2008

Foreclosure Machine Thrives on Woes

By GRETCHEN MORGENSON and JONATHAN D. GLATER
Published: March 30, 2008

Nobody wins when a home enters foreclosure — neither the borrower, who is evicted, nor the lender, who takes a loss when the home is resold. That’s the conventional wisdom, anyway.

James and Tracy Edwards, with their children, Jennifer and Ryan, say they have had problems with fees charged by Countrywide.

The reality is very different. Behind the scenes in these dramas, a small army of law firms and default servicing companies, who represent mortgage lenders, have been raking in mounting profits. These little-known firms assess legal fees and a host of other charges, calculate what the borrowers owe and draw up the documents required to remove them from their homes.

As the subprime mortgage crisis has spread, the volume of the business has soared, and firms that handle loan defaults have been the primary beneficiaries. Law firms, paid by the number of motions filed in foreclosure cases, have sometimes issued a flurry of claims without regard for the requirements of bankruptcy law, several judges say.

Much as Wall Street’s mortgage securitization machinery helped to fuel questionable lending across the United States, default, or foreclosure, servicing operations have been compounding the woes of troubled borrowers. Court documents say that some of the largest firms in the industry have repeatedly submitted erroneous affidavits when moving to seize homes and levied improper fees that make it harder for homeowners to get back on track with payments. Consumer lawyers call these operations “foreclosure mills.”

“They get paid by the volume and speed with which they process these foreclosures,” said Mal Maynard, director of the Financial Protection Law Center, a nonprofit firm in Wilmington, N.C.

John and Robin Atchley of Waleska, Ga., have experienced dubious foreclosure practices at first hand. Twice during a four-month period in 2006, the Atchleys were almost forced from their home when Countrywide Home Loans, part of Countrywide Financial, and the law firm representing it said they were delinquent on their mortgage. Countrywide’s lawyers withdrew their motions to seize the Atchleys’ home only after the couple proved them wrong in court.

The possibility that some lenders and their representatives are running roughshod over borrowers is of increasing concern to bankruptcy judges overseeing Chapter 13 cases across the country. The United States Trustee Program, a unit of the Justice Department that oversees the integrity of the nation’s bankruptcy courts, is bringing cases against lenders that it says are abusing the bankruptcy system.

Joel B. Rosenthal, a United States bankruptcy judge in the Western District of Massachusetts, wrote in a case last year involving Wells Fargo Bank that rising foreclosures were resulting in greater numbers of lenders that “in their rush to foreclose, haphazardly fail to comply with even the most basic legal requirements of the bankruptcy system.”

Law firms and default servicing operations that process large numbers of cases have made it harder for borrowers to design repayment plans, or workouts, consumer lawyers say. “As I talk to people around the country, they all unanimously state that the foreclosure mills are impediments to loan workouts,” Mr. Maynard said.

Last month, almost 225,000 properties in the United States were in some stage of foreclosure, up nearly 60 percent from the period a year earlier, according to RealtyTrac, an online foreclosure research firm and marketplace.

These proceedings generate considerable revenue for the firms involved: eviction and appraisal charges, late fees, title search costs, recording fees, certified mailing costs, document retrieval fees, and legal fees. The borrower, already in financial distress, is billed for these often burdensome costs. While much of the revenue goes to the law firms hired by lenders, some is kept by the servicers of the loans.

Fidelity National Default Solutions, a unit of Fidelity National Information Services of Jacksonville, Fla., is one of the biggest foreclosure service companies. It assists 19 of the top 25 residential mortgage servicers and 14 of the top 25 subprime loan servicers.

Citing “accelerating demand” for foreclosure services last year, Fidelity generated operating income of $443 million in its lender processing unit, a 13.3 percent increase over 2006. By contrast, the increase from 2005 to 2006 was just 1 percent. The firm is not associated with Fidelity Investments.

Law firms representing lenders are also big beneficiaries of the foreclosure surge. These include Barrett Burke Wilson Castle Daffin & Frappier, a 38-lawyer firm in Houston; McCalla, Raymer, Padrick, Cobb, Nichols & Clark, a 37-member firm in Atlanta that is a designated counsel to Fannie Mae; and the Shapiro Attorneys Network, a nationwide group of 24 firms.

While these private firms do not disclose their revenues, Wesley W. Steen, chief bankruptcy judge for the Southern District of Texas, recently estimated that Barrett Burke generated between $9.7 million and $11.6 million a year in its practice. Another judge estimated last year that the firm generated $125,000 every two weeks — or $3.3 million a year — filing motions that start the process of seizing borrowers’ homes.

Court records from 2007 indicate that McCalla, Raymer generated $10.4 million a year on its work for Countrywide alone. In 2005, some McCalla, Raymer employees left the firm and created MR Default Services, an entity that provides foreclosure services; it is now called Prommis Solutions.

For years, consumer lawyers say, bankruptcy courts routinely approved these firms’ claims and fees. Now, as the foreclosure tsunami threatens millions of families, the firms’ practices are coming under scrutiny.

And none too soon, consumer lawyers say, because most foreclosures are uncontested by borrowers, who generally rely on what the lender or its representative says is owed, including hefty fees assessed during the foreclosure process. In Georgia, for example, a borrower can watch his home go up for auction on the courthouse steps after just 40 days in foreclosure, leaving relatively little chance to question fees that his lender has levied.

A recent analysis of 1,733 foreclosures across the country by Katherine M. Porter, associate professor of law at the University of Iowa, showed that questionable fees were added to borrowers’ bills in almost half the loans.

Specific cases inching through the courts support the notion that figures supplied by lenders are often incorrect. Lawyers representing clients who have filed for Chapter 13 bankruptcy, the program intended to help them keep their homes, say it is especially distressing when these numbers are used to evict borrowers.

“If the debtor wants accurate information in a bankruptcy case on her mortgage, she has got to work hard to find that out,” said Howard D. Rothbloom, a lawyer in Marietta, Ga., who represents borrowers. That work, usually done by a lawyer, is costly.

Mr. Rothbloom represents the Atchleys, who almost lost their home in early 2006 when legal representatives of their loan servicer, Countrywide, incorrectly told the court that the Atchleys were 60 days delinquent in Chapter 13 plan payments two times over four months. Borrowers can lose their homes if they fail to make such payments.

After the Atchleys supplied proof that they had made their payments on both occasions, Countrywide withdrew its motions to begin foreclosure. But the company also levied $2,793 in fees on the Atchleys’ loan that it did not explain, court documents said. “Every paycheck went to what they said we owed,” Robin Atchley said. “And every statement we got, the payoff was $179,000 and it never went down. I really think they took advantage of us.”

The Atchleys, who have four children, sold the house and now rent. Mrs. Atchley said they lost more than $23,000 in equity in the home because of fees levied by Countrywide.

The United States Trustee sued Countrywide last month in the Atchley case, saying its pattern of conduct was an abuse of the bankruptcy system. Countrywide said that it could not comment on pending litigation and that privacy concerns prevented it from discussing specific borrowers.

A generation ago, home foreclosures were a local business, lawyers say. If a borrower got into trouble, the lender who made the loan was often a nearby bank that held on to the mortgage. That bank would hire a local lawyer to try to work with the borrower; foreclosure proceedings were a last resort.

Now foreclosures are farmed out to third-party processors who hire local counsel to litigate. Lenders negotiate flat-fee arrangements to try to keep legal bills down.

An unfortunate result, according to several judges, is a drive to increase revenue by filing more motions. Jeff Bohm, a bankruptcy judge in Texas who oversaw a case between William Allen Parsley, a borrower in Willis, Tex., and legal representatives for Countrywide, said the flat-fee structure “has fostered a corrosive ‘assembly line’ culture of practicing law.” Both McCalla, Raymer and Barrett Burke represented Countrywide in the matter.

Gee Aldridge, managing partner at McCalla, Raymer, called the Parsley case unique. “It is the goal of every single one of my clients to do whatever they can do to keep borrowers in their homes,” he said. Officials at Barrett Burke did not return phone calls seeking comment.

In a statement, Countrywide said it recognized the importance of the efficient functioning of the bankruptcy system. It said that servicing loans for borrowers in bankruptcy was complex, but that it had improved its procedures, hired new employees and was “aggressively exploring additional technology solutions to ensure that we are servicing loans in a manner consistent with applicable guidelines and policies.”

The September 2006 issue of The Summit, an in-house promotional publication of Fidelity National Foreclosure Solutions, another unit of Fidelity, trumpeted the efficiency of its 18-member “document execution team.” Set up “like a production line,” the publication said, the team executes 1,000 documents a day, on average.

Other judges are cracking down on some foreclosure practices. In 2006, Morris Stern, the federal bankruptcy judge overseeing a matter involving Jenny Rivera, a borrower in Lodi, N.J., issued a $125,000 sanction against the Shapiro & Diaz firm, which is a part of the Shapiro Attorneys Network. The judge found that Shapiro & Diaz had filed 250 motions seeking permission to seize homes using pre-signed certifications of default executed by an employee who had not worked at the firm for more than a year.

In testimony before the judge, a Shapiro & Diaz employee said that the firm used the pre-signed documents beginning in 2000 and that they were attached to “95 percent” of the firm’s motions seeking permission to seize a borrower’s home. Individuals making such filings are supposed to attest to their accuracy. Judge Stern called Shapiro & Diaz’s use of these documents “the blithe implementation of a renegade practice.”

Nelson Diaz, a partner at the firm, did not return a phone call seeking comment.

Butler & Hosch, a law firm in Orlando, Fla., that is employed by Fannie Mae, has also been the subject of penalties. Last year, a judge sanctioned the firm $33,500 for filing 67 faulty motions to remove borrowers from their homes. A spokesman for the firm declined to comment.

Barrett Burke in Texas has come under intense scrutiny by bankruptcy judges. Overseeing a case last year involving James Patrick Allen, a homeowner in Victoria, Tex., Judge Steen examined the firm’s conduct in eight other foreclosure cases and found problems in all of them. In five of the matters, documents show, the firm used inaccurate information about defaults or failed to attach proper documentation when it moved to seize borrowers’ homes. Judge Steen imposed $75,000 in sanctions against Barrett Burke for a pattern of errors in the Allen case.

A former Barrett Burke lawyer, who requested anonymity to avoid possible retaliation from the firm, said, “They’re trying to find a fine line between providing efficient, less costly service to the mortgage companies” and not harming the borrower.

Both he and another former lawyer at the firm said Barrett Burke relied heavily on paralegals and other nonlawyer employees in its foreclosure and bankruptcy practices. For example, they said, paralegals prepared documents to be filed in bankruptcy court, demanding that the court authorize foreclosure on a borrower’s home. Lawyers were supposed to review the documents before they were filed. Both former Barrett lawyers said that with at least 1,000 filings a month, it was hard to keep up with the volume.

This factory-line approach to litigation was one reason he decided to leave the firm, the first lawyer said. “I had questions,” he added, “about whether doing things efficiently was worth whatever the cost was to the consumer.”

James R. and Tracy A. Edwards, who are now living in New Mexico, say they have had problems with questionable fees charged by Countrywide and actions by Barrett Burke. In one month in 2002, when the couple lived in Houston, Countrywide Home Loans withdrew three monthly mortgage payments from their bank account, Mrs. Edwards said, leaving them unable to pay other bills. The family filed for bankruptcy to try to keep their home, cars and other assets.

Filings in the bankruptcy case of the Edwards family show that on at least three occasions, Countrywide’s lawyers at Barrett Burke filed motions contending that the borrowers had fallen behind. The firm subsequently withdrew the motions.

“They kept saying we owed tons and tons of fees on the house,” Mrs. Edwards said. Tired of this battle, the family gave up the Houston house and moved to one in Rio Rancho, N.M., that they had previously rented out.

Countrywide tried to foreclose on that house, too, contending that Mr. and Mrs. Edwards were behind in their payments. Again, Mrs. Edwards said, the culprit was a raft of fees that Countrywide had never told them about — and that were related to their Texas home. Mrs. Edwards says that she and her husband plan to sue Countrywide to block foreclosure on their New Mexico home.

Pamela L. Stewart, president of the Houston Association of Debtor Attorneys, said she has become skeptical of lenders’ claims of fees owed. “I want to see documents that back up where these numbers are coming from,” Ms. Stewart said. “To me, they’re pulled out of the air.”

An inaccurate mortgage payment history supplied by Ameriquest, a mortgage lender that is now defunct, was central to a case last year in federal bankruptcy court in Massachusetts. “Ameriquest is simply unable or unwilling to conform its accounting practices to what is required under the bankruptcy code,” Judge Rosenthal wrote. He awarded the borrower $250,000 in emotional-distress damages and $500,000 in punitive damages.

Fidelity National Information Services has also been sued. A complaint filed on behalf of Ernest and Mattie Harris in federal bankruptcy court in Houston contends that Fidelity receives kickbacks from the lawyers it works with on foreclosure matters.

The case shines some light on the complex relationships between lenders and default servicers and the law firms that represent them. The Harrises’ loan servicer is Saxon Mortgage Services, a Morgan Stanley unit, which signed an agreement with Fidelity National Foreclosure Solutions. Under it, Fidelity was to provide foreclosure and bankruptcy services on loans serviced by Saxon, as well as to manage lawyers acting on Saxon’s behalf. The agreement also specified that Saxon would pay the fees of the lawyers managed by Fidelity.

But Fidelity also struck a second agreement, with an outside law firm, Mann & Stevens in Houston, which spelled out the fees Fidelity was to be paid each time the law firm made filings in a case. Mann & Stevens, which did respond to phone calls, represented Saxon in the Harrises’ bankruptcy proceedings.

According to the complaint, Mann & Stevens billed Saxon $200 for filing an objection to the borrowers’ plan to emerge from bankruptcy. Saxon paid the $200 fee, then charged that amount to the Harrises, according to the complaint. But Mann & Stevens kept only $150, paying the remaining $50 to Fidelity, the complaint said.

This arrangement constitutes improper fee-sharing, the Harrises argued. Texas rules of professional conduct bar fee-sharing between lawyers and nonlawyers because that could motivate them to raise prices — and the Harrises argue that this is why the law firm charged $200 instead of $150. And under these rules, sharing fees with someone who is not a lawyer creates a risk that the financial relationship could affect the judgment of the lawyer, whose duty is to the client. Few exceptions are permitted — like sharing court-awarded fees with a nonprofit organization or keeping a retirement plan for nonlawyer employees of a law firm.

“If it’s fee-sharing, and if it doesn’t fall into those categories, it sounds wrong,” said Michael S. Frisch, adjunct professor of law at Georgetown University. Greg Whitworth, president of loan portfolio solutions at Fidelity, defended the arrangement, saying it was not unusual for a company to have an intermediary manage outside law firms on its behalf.

The Harrises contend that the bankruptcy-related fees charged by the law firms managed by Fidelity “are inflated by 25 to 50 percent.” The agreement between Fidelity and the law firm is also hidden, according to their complaint, so a presiding judge sees only the lender and the law firm, not the middleman.

Fidelity said the money it received from the law firm was not a kickback, but payments for services, just as a law firm would pay a copying service to duplicate documents. In response to the complaint, Fidelity asserted in a court filing that the Harrises’ claims were “nothing more than scandalous, hollow rhetoric.”

But the Fidelity fee schedule shows a charge for each action taken by the law firm, not a fee per page or kilobyte. And Fidelity’s contract appears to indemnify Saxon if the arrangement between Fidelity and its law firm runs afoul of conduct rules.

Mr. Whitworth of Fidelity said that the arrangement with Mann & Stevens did not constitute fee sharing, because Fidelity was to be paid by that law firm even if the law firm itself was not paid.

He also said that by helping a servicer manage dozens or even hundreds of law firms, Fidelity lowered the cost of foreclosure or bankruptcy proceedings, to the benefit of the law firm, the servicer and the borrower. “Both parties want us to be in the middle here,” Mr. Whitworth said, referring to law firms and mortgage servicing companies.

The Fidelity contract attached to the complaint also hints at the money each motion generates. Foreclosures earn lawyers fees of $500 or more under the contract; evictions generate about $300. Those fees aren’t enormous if they require a substantial amount of time. But a few thousand such motions a month, executed by lawyers’ employees, translates into many hundreds of thousands of dollars in revenue to the law firm — and the lower the firm’s costs, the greater the profits.

“Congress needs to enact a national foreclosure bill that sets a uniform procedure in every state that provides adequate notice, due process and transparency about fees and charges,” said O. Max Gardner III, a consumer lawyer in Shelby, N.C. “A lot of this stuff is such a maze of numbers and complex organizational structure most lawyers can’t get through it. For the average consumer, it is mission impossible.”

Copyright 2008 The New York Times Company. All rights reserved.

Monday, March 17, 2008

Gift cards and retailer bankruptcies

Several of our clients have recently contacted us about using gift cards from a retailer who has filed for bankruptcy. This issue has been in the news lately with the Chapter 11 filing by The Sharper Image. They had temporarily suspended redeeming gift cards (they are now accepting redemptions in store or over the phone, but not online). Under California law, if a court has ordered The Sharper Image not to redeem gift certificates, the holder of the card is considered an unsecured creditor and can file a Proof of Claim in the case, but the recovery (if any) will be pennies on the dollar. Shenwick & Associates advises its clients to redeem all gift cards immediately.

Virtues of the Short Sale

By ELSA BRENNER

Is it possible for a homeowner who owes $725,000 on a mortgage to sell a house for only $560,000 and still walk away happy, or at least relieved? The answer is yes, if the transaction is a short sale — defined as selling for less than the mortgage owed, in a deal with the lender to forgive the rest of the debt and head off a foreclosure.

A last-ditch option for a homeowner in default, the short sale is increasingly being seen a valuable tool by sellers, buyers, real estate agents and lenders. But it does come with this caveat from real estate agents and lawyers: it is an intricate transaction, often taking many months to complete.

Describing the process as “the lesser of two evils,” Mark Boyland, the president of the Westchester-Putnam Multiple Listing Service and an associate broker at Keller Williams NY Realty, nevertheless emphasized its value as “a way to help out both the homeowner and the bank, and make a bad situation better.”

The case above, involving a four-bedroom ranch in southern Westchester, is typical. The sale price did not cover the entire mortgage but was still high enough for the lender to forgive the remaining balance, said Patti Cunningham, the owner of Cunningham Realty in Hawthorne, who brokered the deal.

The owner had been grappling with the costs of college tuition and a parent’s medical bills, and had refinanced the mortgage loan six times in five years to meet the growing expenses, Ms. Cunningham said.

The owner decided to sell the house, bought in 1999 for $310,000. But the $700,000 that a 46-year-old ranch in good condition might have fetched in a more robust market was not realistic. The house languished, and when bids did come in, they were far below the asking price. Several months later, the seller, who had fallen behind on mortgage payments, was notified that foreclosure proceedings had begun.

Finally, with an offer of $560,000, Phyllis Knight Marcus, a real estate lawyer in Hawthorne, contacted the lender, who eventually agreed to the deal.

“In the end, the seller got out from under,” the lawyer said. “The buyer was happy because he got a bargain, and the bank was pleased to have the situation solved.”

Ms. Marcus is working on five short-sale cases in Westchester County; last year she had none. Mr. Boyland at Keller Williams is similarly negotiating five short sales, versus none a year ago.

“It’s a trend that began last year in response to a troubled market,” he said, “and more and more people finding themselves in an upside-down situation.”

Nationally, defaults on home mortgages reached an all-time high at the end of 2007 as foreclosures surged on adjustable-rate mortgages, the Mortgage Bankers Association, an industry group, reported on March 6.

In Westchester, foreclosure numbers are also on the upswing, said Geoffrey Anderson, the executive director of Westchester Residential Opportunities, a nonprofit housing group in White Plains. In the first nine weeks of the year, there were 515 foreclosure filings in Westchester, Mr. Anderson said, adding, “That’s up significantly from what it was last year, and we’re expecting many more in the coming months” as many more adjustable-rate mortgages reset this spring and summer.

The bulk of the foreclosures are occurring in places like Yonkers, Mount Vernon, New Rochelle and Greenburgh, which have the highest concentrations of low-income residents, Mr. Anderson said. But more affluent communities are far from immune. For example, Mr. Boyland’s short-sale cases are in Pound Ridge, Katonah, Bedford and North Salem.

Still, when compared with foreclosures in other New York area suburbs, Westchester’s are relatively low. For instance, according to ForeclosureDeals.com, a listing service, Westchester has 91 homes in foreclosure, while Nassau County has 186.

As an indicator of how complicated such cases can be, and of how many more are expected, Mr. Boyland is one of a number of professionals taking courses in short sales. He has also hired a specialist as a consultant. “The banks change their guidelines every week,” he said, “so you have to stay on top of things.”

The laws governing such sales are also in flux. For example, a federal law passed late last year exempts sellers from having to pay income tax on the amount forgiven, but only if the house in question is the owner’s primary residence. In previous years, the forgiven debt was considered income, even though the seller received no money.

PropertyShark.com, a real estate data provider, is one of several businesses offering courses. “It’s very important for investors and brokers to understand the distressed-property industry,” said Bill Staniford, the company’s chief executive, “because it looks like we might be dealing with this for years down the road.”

But even though short sales are on the increase, Ms. Cunningham of Cunningham Realty cautioned that sellers should not expect to use them as “a quick way to get out of a bad deal.”

Before a bank agrees to one, she said, the lender first needs to ascertain that “a seller is really at the end of the rope financially, and has tried to utilize his or her own resources first.” A seller seeking a short sale must submit a hardship document outlining what led to the default in payments, along with a detailed lists of expected fees, expenses and commissions, in addition to principal and interest.

But even then, after a price has been determined and the paperwork submitted, many months often go by before a decision is reached by the lender, which retains the right to turn the deal down.

Housing advocates and mortgage counselors caution that a short sale is only one option; some nonprofit groups are helping borrowers work out alternative arrangements with their mortgage holders.

“The short sale is not the only way to go,” said Mr. Anderson at Westchester Residential Opportunities. “We’re not involved in any yet, but as we see that a short sale could benefit a homeowner, we would advocate for that."

Copyright 2008 The New York Times Company

Wednesday, March 12, 2008

March update on real estate and bankruptcy

The New York Times had two articles on Friday, February 29, 2008 that we believe will be of interest to the readers of our blog. The first article indicated that based on comments by President Bush, lobbying by the Mortgage Bankers Association and the opposition of Senate Republicans, the bill proposed by Congressional Democrats to allow bankruptcy judges to modify the terms of first mortgages (i.e. to increase the length of the mortgage and/or to decrease the interest rate on the mortgage) is now dead. However, the Democrats in the House and Senate have indicated that they may renew their efforts to pass this type of legislation in the future.

The second article in the New York Times was titled "Facing Default, Some Abandon Homes to Banks." A copy of that article can be found on our personal bankruptcy website and on our blog. The article deals with an issue of great interest today, which is the abandonment of one's house. Many clients have called us regarding abandoning their house or giving the house back to the bank in lieu of foreclosure or letting the bank foreclose on the house. This scenario generally occurs when the amount of mortgages that encumber the house exceed the value of the house. There are three legal issues regarding this strategy that all clients should be aware of.

The first issue is federal income tax (i.e. relief of indebtedness income). If an individual abandons a house and the mortgage is greater than the fair market value of the property, then theoretically the difference between the mortgage and the value of the collateral would be deemed relief of indebtedness income and would be reported by the banks on a 1099-R to the Internal Revenue Service. However, based on legislation that was passed by the House and Senate and signed into law by President Bush, there is no relief of indebtedness income on the abandonment of real estate during the years of 2007-2009. You can read more about relief of indebtedness income and other recent changes in bankruptcy law in our January 16, 2008 post.

Another issue concerning the abandonment of real estate is New York State Debtor and Creditor Law. If an individual abandons or walks away from a mortgage, the bank (mortgagee) can foreclose on the property and under the RPAPL, seek a deficiency judgment against the borrower. If the bank seeks the deficiency judgment and they are successful in obtaining a judgment, under New York law, the judgment will be good for 20 years. When a creditor in New York obtains a judgment, typically there are three remedies used to collect on that judgment. First, they will docket the judgment in a county where the debtor owns real estate; Second, they will attempt wage garnishment-they will use a sheriff or marshal to garnish 10 percent of a debtor's wages or earnings; and Third, they will use the judgment to lien and levy on banking, savings or brokerage accounts which a debtor may have. If a debtor is faced with this situation, they must make themselves "judgment proof," which means they cannot own or take title to any real or personal property. However, a Chapter 7 bankruptcy filing would discharge the judgment under bankruptcy law.

The third issue concerning the abandonment of real estate is one's credit report. Under federal law, an individual who abandons their house and is subject to foreclosure will have this information reported on their credit report for up to 10 years. Additionally, if an individual abandons a house and the creditor obtains a judgment, that individual will not be able to obtain credit until the judgment lapses pursuant to New York State law (20 years), is satisfied or discharged in bankruptcy. Practically, that means that an individual with an open judgment or a tax lien would not be able to buy real estate, or purchase or lease a car.

However, a Chapter 7 personal bankruptcy filing will have the following positive effects for an individual:

1. It will discharge relief of indebtedness income, which would be helpful after 2009.
2. It will discharge judgments; and
3. It will actually make it easier for an individual to obtain credit, because the judgment and other liabilities are "discharged" in bankruptcy and banks know that an individual can only file for Chapter 7 bankruptcy every eight years.

Finally, with respect to credit report issues, a personal bankruptcy is generally no worse on a person's credit report than a judgment or foreclosure. Anyone who has issues concerning the abandonment of real estate should contact Shenwick & Associates for further information.

Monday, March 10, 2008

Too Much Debt? Too Bad

By Jessica Silver-Greenberg and Robert Berner

A major avenue of escape for troubled credit-card borrowers is narrowing. Consumers with onerous debt traditionally have found relief among credit counseling agencies, middlemen who negotiate with lenders to lower interest rates and consolidate balances into a low monthly payment. But banks aren't as willing to cut deals now. "More consumers will end up in bankruptcy," says Travis B. Plunkett, legislative director at the advocacy group Consumer Federation of America.

Nonprofit credit counselors have been around almost since the dawn of the credit-card business more than 50 years ago. Their approach hasn't changed much in that time. Typically, a counselor sets up a so-called debt-management plan that allows a client to pay off a balance over five years. The individual makes a single monthly payment to the group, which in turn sends the money to the various lenders.

Until recently issuers often agreed to ratchet down interest rates permanently, to as low as 0%, for those working with credit counselors. That has been a critical concession, says the industry, since it makes monthly payments more affordable and helps ensure the principal is getting paid down. But now some credit-card companies are balking. Discover Financial Services, (DFS) counselors contend, won't cut rates below 17.9% for clients, while Capital One Financial (COF) is holding firm at 15.9%. At least 5 of the 13 largest issuers are offering smaller breaks on rates than they did five years ago, according to a study by the Consumer Federation of America. Discover won't disclose rate details, saying it makes decisions on a case-by-case basis: "We have a range of rates that we temporarily offer card members depending on their situation," says spokesman Matthew Towson. Capital One didn't return calls for comment.

Some companies are still willing to deal. JPMorgan Chase (JPM) announced a year ago it would cut rates to 0% for consumers who agree to a formal debt-management plan. Bank of America will drop to the low single-digit level or even to 0% in some instances.

Meanwhile, counselors are fretting that they aren't getting paid for their services as they did in the past. The credit counseling agencies historically have collected 15% of the total debt that's paid off. Today banks are forking over less than 8%, notes the National Foundation for Credit Counseling, the umbrella group for 1,500 counselors. That money goes to fund operations, so counselors worry they may have to skimp on services given the cutbacks. "If funding doesn't improve, we will be in serious trouble," says Winchell Dillenbeck, executive director of Consumer Credit Counseling Services of the North Coast in Arcata, Calif.

Why are credit-card companies clamping down? Some analysts suspect issuers are increasingly worried about losses. Card issuers reported $38 billion in bad loans last year. Columbia Law School professor Ronald Mann gives another reason. He says banks have taken a closer look at the data and determined that most individuals will keep paying their debts even if lenders don't lower the rates as they have in the past. "Higher rates maximize the recovery," says Mann.

The counselors see the world differently. In the current credit crunch, more borrowers are turning to their programs. The NFCC worked with 2.7 million individuals last year, a nearly 30% jump from 2006. Without the usual rate breaks, counselors think more people will fall behind on their payments. That could lead to an uptick in bankruptcies. A study by Visa Inc. (V) found that 50% of consumers who dropped out of credit counseling programs declared bankruptcy. Says Dillenbeck: "If we don't have good concessions, we have little power to help people."


Copyright (c) 2008 Business Week. All rights reserved.

Look Out For That Lifeline

By Robert Berner and Jessica Silver-Greenberg

Granville Jones knew he was spending beyond his means after he racked up $90,000 largely in credit-card debt—$10,000 more than his annual income. So last summer the Durham (N.C.) pharmacist turned to the Consumer Law Center for help. The firm told Granville that if he withheld payments from creditors, the CLC would have the leverage to negotiate a lump settlement on his debts and cut his balances by half in five years. So Granville stopped paying his bills and instead handed over a monthly sum to the CLC to cover an eventual settlement with creditors as well as the firm's fees. "When you are financially stressed, you hope for miracles," says the 47-year-old, who was current on his bills before reaching out to the law firm.

The miracle never happened. Instead, Jones gets daily calls from collection agencies. One lender has sued him in county court for the $25,000 it's owed. Frustrated, Jones cancelled the program in January. The CLC agreed to refund the $10,744 he paid, but only after Jones filed a complaint with North Carolina's attorney general in February. "All Consumer Law did was leave me hanging," says Jones. The CLC did not return calls for comment.

Jones' predicament is another by-product of the credit crunch. With individuals of all income brackets struggling to pay their bills, many are seeking help from the hundreds of debt-settlement firms that promise to reduce credit-card balances by as much as 70% over several years.

NO-BARGAIN BARGAINING CHIP

Like credit counselors, debt-settlement firms generally collect a single monthly payment from clients. But rather than disbursing the money to credit-card companies to cover the borrowers' bills, they withhold it. The settlement firms then use the money as a bargaining chip in an attempt to negotiate a lump-sum payout with lenders. These programs have proliferated of late as credit-card debt has soared; the typical U.S. household now has more than $7,000 in outstanding balances, up 45% from five years ago.

The booming business has caught the attention of prosecutors and regulators, who say such programs can leave consumers in worse financial shape. Fees for the services run high. And when banks don't agree to settle—if the settlement firm contacts them at all—consumers get hit with late charges and penalized with higher interest rates, leaving borrowers with even more debt than when they started.

Wary of such pitfalls, seven states have already banned settlement activities. Others, such as Iowa, are considering similar rules. Meanwhile, the Federal Trade Commission and attorneys general in six states have recently filed complaints against debt-settlement firms. Four are investigating Hess Kennedy Chartered, an affiliate of the Consumer Law Center, including AGs in North Carolina and Florida, both of which filed civil charges against the Coral Gables (Fla.) firm for allegedly deceptive practices. "There are more of these firms than we can handle," says Norman Googel, an assistant attorney general in West Virginia, which is investigating 15 settlement firms. "They are truly exploiting a group of consumers already in crisis." Hess Kennedy didn't return calls for comment.

The settlement industry defends its services, asserting that its payment plans can be more affordable than traditional credit counselors and provide consumers an alternative to bankruptcy. "Debt settlement is a boot camp for getting out of debt," says Nicolas de Segonzac, president of the trade group Association of Settlement Cos. Says Jenna Keehnen,
executive director of U.S. Organizations for Bankruptcy Alternatives: "In any industry there are bad actors. But for every complaint, there are thousands and thousands of appreciative customers that have gone successfully through the programs."

What many borrowers who sign on don't realize, though, is that fees can run as high as 30% of the total outstanding balance, or $3,000 on $10,000 in debt. It's also often unclear to individuals, say state and federal prosecutors, that the bulk of their initial payments—those made within the first year—go toward fees rather than the settlement. "The programs
typically require financially strapped consumers to pay fees up front, so they make money whether or not any useful services are performed," says Philip Lehman, an assistant attorney general in North Carolina.

Although some consumers have found relief with debt-settlement firms, the programs do not have the same success rate as credit-counseling agencies. Credit counselors, which have long-standing relationships with issuers, work with lenders to lower interest rates and create a monthly payment plan for borrowers. According to the National Foundation for Credit
Counseling, which represents 1,500 counselors in the U.S., 60% of clients complete the plans.

By comparison, North Carolina prosecutor Lehman estimates that 80% of consumers drop out of debt-settlement programs within the first year. And the Federal Trade Commission, which has settled six cases against settlement outfits in the past four years, found that at one of those firms, just 1.4% of the consumers who entered the program finished it and settled with lenders.

Why? One reason is that some banks, including Bank of America (BAC) and Discover Financial Services, (DFS) refuse to negotiate with settlement firms. The programs, issuers say, only add to their pile of bad debt since consumers stop payment. "This is one instance where both creditors and debtors are worse off," says a credit-card executive who declined to be named.

Meanwhile, borrowers rack up late fees, over-limit charges, and other penalties for missed payments. Creditors may also pass the debts to collection agencies or sue for damages in court. Those blemishes inflict long-lasting damage on a credit report. All that can leave borrowers not only with more debt, but even worse, can force them into bankruptcy—exactly the situation many were trying to avoid.

Barbara Bautch knows what it's like to be on that slippery slope. Unable to manage the $12,000 tab on two cards, the part-time health-care aide in Silver Bay, Minn., signed up with settlement firm American Financial Services in 2006, forking over $233 a month to the Bakersfield (Calif.) company. After one of the card companies sued, Bautch learned that AFS hadn't contacted either issuer regarding a settlement deal. Between late charges, penalty interest, and attorneys'
fees, her debt now stands at $20,000. AFS did not return calls for comment. Says Bautch: "AFS drove me into bankruptcy, and it was no sweat off its back."

Copyright (c) 2008 Business Week. All rights reserved.

Wednesday, March 05, 2008

Filings for Bankruptcy Up 18% in February

By JENNY ANDERSON
Published: March 5, 2008

Americans filed for bankruptcy in growing numbers in February, buckling under the combined weight of rising energy prices, a weakening housing market and sky-high personal debts.

An average of 3,960 bankruptcy petitions were filed per day nationwide last month, up 18 percent from January and up 28 percent from a year earlier, according to Automated Access to Court Electronic Records, a bankruptcy data and management company.

February was the busiest month for filings since Congress overhauled the bankruptcy law in 2005. Bankruptcy experts said the rise was particularly worrisome because those changes made filing for bankruptcy more complicated and expensive.

“This number of bankruptcies may be under-representative of the true financial distress consumers are feeling because of the steps Congress has taken,” said Jack Williams, a scholar in residence at the American Bankruptcy Institute and a professor at Georgia State University.

The latest figures show the financial pain is spreading from states like California and Florida, which exemplified the housing boom and subsequent bust, to those along the Eastern Seaboard like Maryland, Virginia and Delaware, which were among the 10 states with the largest percentage increase in filings in January and February. “You are seeing a good-size uptick everywhere,” said Mike Bickford, president of Automated Access.

Bankruptcy experts caution, however, that data from just one or two months can be misleading.

“The monthly bankruptcy filing rate has a lot of cyclicality,” Robert M. Lawless, a professor of law at the University of Illinois College of Law, wrote on Tuesday on the widely read bankruptcy blog, Creditslips.org. Some experts, for example, say bankruptcies often seem to rise in February as debts from the holiday season come due. Even so, the trend is definitely upward, Mr. Lawless wrote. States as disparate as Kentucky and Rhode Island joined the top 10 list, and the absolute number of filings rose significantly.

Mr. Williams expects the number of bankruptcies nationwide to reach 1.2 million to 1.4 million this year, up from 826,732 in 2007; Mr. Lawless expects more than one million. (In 2004, the last year with a normalized set of data, 1,597,462 petitions were filed, according to Automated Access.)

The states with the most significant increase in bankruptcy filings during the first two months of 2008 were California, with a 33 percent increase; Maryland, up 29 percent; and Florida, with a 26 percent rise, the data shows. Filings fell in 16 states, including Colorado, Indiana, Ohio, South Dakota, Kansas, and Wyoming.

Proponents of the bankruptcy law argued in 2005 that some consumers were abusing the law, using Chapter 7, or liquidation, to shed credit card debt. The bill, supported by both Republicans and Democrats, “increased the expense for everyone and reduced the protections for everyone,” said Mr. Williams.

Elizabeth Warren, a professor at Harvard Law School and the author of books on bankruptcy, said, “The credit industry did its best to drive up the cost of filing but when families are in enough trouble they will fight their way through the paper thicket and higher attorneys’ fees to get help.”

Ms. Warren says that the increase also reflects changing attitudes about bankruptcy. Many Americans now understand that filing bankruptcy is legal, something many did not appreciate a few years ago. Studies last year showed that one of seven families were dealing with debt collectors, who often encourage families not to file for bankruptcy, she said.

“The word is leaking out that the bankruptcy courts are open for business,” Ms. Warren says.

Record home foreclosures have contributed to the rise in bankruptcies but on their own do not account for the latest increase.

“Rising bankruptcy certainly understates the stress because bankruptcy is not a refuge from foreclosure,” Mark Zandi, chief economist at Moody’s Economy.com, said. Under the current bankruptcy code, the courts cannot alter the terms of first mortgages. Proposed legislation in Congress seeks to change this, but few think it will pass.

This suggests more trouble for the broader economy.

“Everything is going wrong for households,” Mr. Zandi said. “They are struggling with rising unemployment; high debt loads, heavier because of mortgage resets and plunging housing values; soaring gasoline prices; wobbly stock prices. The data suggest bankruptcies will rise measurably through the remainder of the decade.”

Copyright (c) 2008 The New York Times Company. All rights reserved.