Monday, October 28, 2013
Santiago-Monteverde v. Pereira
As many readers of our Cooler e-mails and blog posts are
aware, one of the hottest current topics in personal bankruptcy is the
treatment of rent–stabilized leases in Chapter 7 personal bankruptcy cases.
Earlier this month, the New York Times had an excellent front page article
entitled “Widow's
Bankruptcy Case Poses Risk to Rent-Stabilized
Tenants.” The case is captioned Santiago-Monteverede v. Pereira and
involves 79 year old Mrs. Mary Veronica Santiago-Monteverede, who has lived in
a two bedroom rent stabilized apartment in the East Village for 50 years and is
paying monthly rent of $703, while the market rate for the unit would be $2,000
to $2,500 per month.
Ms. Santiago-Monteverede filed Chapter 7 bankruptcy to
discharge $23,000 of debt, none of which was owed to her landlord. Her landlord
made an offer to purchase her lease from Chapter 7 Bankruptcy Trustee John S.
Pereira, which he accepted. The sale of
the lease was subsequently challenged by Ms. Santiago-Monteverde’s
attorneys. The U.S. Bankruptcy
Court for the Southern District of New York and the U.S. District Court for
the Southern District of New York both ruled in favor of the Bankruptcy
Trustee, and the case is now pending before the 2nd Circuit Court of Appeals, where oral
arguments were held on September 23rd.
This is the first Chapter 7 personal bankruptcy rent–stabilized
case to reach the 2nd Circuit Court of Appeals. Please keep monitoring our
Cooler e-mails and blog, and when
the 2nd Circuit Court of Appeals issues a decision and order, we will report on
it. Again, debtors who live in apartments with rent–stabilized leases need to
proceed with extreme caution in deciding whether to file for bankruptcy. Jim
Monday, October 21, 2013
NYT: Widow’s Bankruptcy Case Poses Risk to Rent-Stabilized Tenants
By MIREYA NAVARRO
After her husband died, Mary Veronica Santiago fell behind on her bills, and the creditors began to call.
So two years ago, she took refuge in bankruptcy, hoping to have her
debts wiped away. But far from providing a fresh start and peace of
mind, the Chapter 7 filing thrust Mrs. Santiago, 79, who lives in the
East Village, into the center of a case that bankruptcy lawyers say
poses a major risk to her and the millions of other New Yorkers who live
in rent-stabilized apartments.
The issue, pending before the United States Court of Appeals for the
Second Circuit, is whether a rent-stabilized lease can be treated as an
asset in a personal bankruptcy, just like a car or a piece of land, and
used to pay off creditors.
The trustee overseeing Mrs. Santiago’s bankruptcy thinks so. If that
position is upheld, bankruptcy lawyers who are closely monitoring the
case say it would make it easier for landlords to evict rent-stabilized
tenants if they file for bankruptcy, even when, like Mrs. Santiago, they
pay their rent. At a time when housing affordability and income
inequality have been driving the debate in the mayoral race, the
bankruptcy case could add another element of uncertainty to New York City’s efforts to preserve housing for people with low incomes.
Mrs. Santiago has lived for 50 years in a two-bedroom apartment near
Tompkins Square Park, in a neighborhood where unregulated apartments
rent for thousands more a month than Mrs. Santiago’s rent of $703. Her
main income is a Social Security
check and, under normal bankruptcy proceedings, her lawyers said, she
would have avoided repaying the $23,000 she owes because she had no
assets.
“I got scared,” she said, noting that her creditors “threatened that they were going to take me to court.”
But as her case was nearing conclusion, her landlord stepped in with an
offer to buy her rent-stabilized lease and produce the funds to pay off
her debt. (Mrs. Santiago’s landlord is not among her creditors, but he
was notified of the bankruptcy as a matter of course.) The bankruptcy
trustee in charge of marshaling her assets accepted the offer, and that
decision, challenged by Mrs. Santiago’s lawyers, has been upheld by both
a bankruptcy court and a Federal District Court.
In New York City, there were 11,500 individual bankruptcy filings in the
12 months ending June 30, federal bankruptcy court figures show. How
many of them involved people with rent-stabilized leases is not tracked
by the court.
Rent stabilization laws, a defining element of New York real estate for
decades, limit rent increases and allow automatic lease renewals and
even survivor’s rights to tenants. In recent years, rent-stabilized
leases have been deemed assets in some bankruptcy proceedings.
Now, for the first time, a federal appeals court is being asked to weigh
in. The widow’s lawyers argue that a rent-stabilized lease is a public
assistance benefit, just like Social Security or disability payments,
and should be exempt from the bankruptcy estate. Treating it like an
asset, the lawyers said in court documents, undermines the intent of
rent-stabilization laws in New York designed to protect tenants deemed
in need of assistance with housing.
“This is not what bankruptcy is about,” said Kathleen G. Cully, one of
Mrs. Santiago two pro bono lawyers. “What’s next? Are they going to
start going after food stamps?”
The case, Mary Veronica Santiago-Monteverde v. John S. Pereira, has
drawn the interest of bankruptcy experts and legal aid lawyers who see
it as a threat to the housing stability of many low-income New Yorkers.
Mrs. Santiago’s case was argued before the appeals court last month by
Ronald J. Mann, a law professor at Columbia University and a bankruptcy
specialist who has argued cases before the United States Supreme Court.
New York’s unique rent laws and expensive real estate market make a
rent-stabilized lease particularly prized. In New York City, 44 percent
of the rental units are rent-stabilized and an additional 2 percent are
governed by the more restrictive rent-control regulations, according to
figures from the Furman Center for Real Estate and Urban Policy
at New York University. At least 2.2 million people live in more than a
million rent-regulated units in the city, the center said.
Legal aid lawyers who are also watching the Santiago case say the rent
laws are essential to help maintain affordable housing in the city — the
median income for rent-stabilized tenants is $37,000, compared with
$52,260 for market-rate tenants, figures from the city’s Housing and Vacancy Survey
show. Some bankruptcy lawyers say they are advising clients with
rent-stabilized leases not to file for Chapter 7 bankruptcy or risk
being left homeless.
“It’s an unfair money-grab,” said David B. Shaev, the New York state chairman of the National Association of Consumer Bankruptcy Attorneys. “To remove this foundation, this safety net, it’s unconscionable.”
The trustee in Mrs. Santiago’s case, Mr. Pereira, has an obligation to
marshal all assets to get her debt paid, said his lawyer, J. David
Dantzler Jr. (The trustees,
who are not government employees, receive a commission on the assets
they are able to gather.) He said that New York law did not intend for
leases to be exempt from bankruptcy estates and that any change to that
effect should be left up to the state’s lawmakers.
“This is about a fear of what could happen in the future to other
tenants in rent-stabilization apartments,” he said. “Our view is that
that’s a question for the New York Legislature, not the courts.”
But no one should think that bankruptcy is a painless process, he said.
“If you file for bankruptcy, there are consequences.”
The trustee in Mrs. Santiago’s case has proposed an arrangement in which
the landlord would pay her debt, pay the trustee and his lawyer, and
allow Mrs. Santiago to live out her years in her apartment at a similar
rent under a non-rent-stabilized lease “with no succession rights” that
could otherwise have allowed her to pass the apartment on to her
50-year-old son, a personal trainer who lives with her and helps support
her.
Her lawyers opposed the proposal.
In the realm of consumer bankruptcies, Mrs. Santiago’s is small. She
owes mostly credit card companies, she said in an interview. But after
her husband, Hector Santiago, died in 2011 she could not keep up with
the payments.
The couple moved into their ground-floor apartment in a five-story brick
building on East Seventh Street in 1963. Mr. Santiago was the
superintendent of their building and of several others in the
neighborhood.
The landlord is a limited-liability company whose owner, James V.
Guarino, referred questions to his lawyer. The lawyer, Lawrence M.
Gottlieb, said in an e-mail that the company “has no intentions of
selling the lease or dispossessing Ms. Santiago or renting out the unit
for market rent.”
At home, in the cluttered apartment where her family has celebrated
weddings, birthdays and holidays, and where her ill husband died at age
80, Mrs. Santiago said she regretted filing for bankruptcy. Her lawyers
have reassured her that she has a good chance of prevailing, but first
thing every morning, Mrs. Santiago said, she checks her front door for
an eviction notice.
“I’m afraid to find a white paper on my door,” she said with her head down, tearing up as she tugged at the edges of her plastic-covered chair.
Copyright 2013 The New York Times Company. All rights reserved.
Monday, October 14, 2013
NYT: Patients Mired in Costly Credit From Doctors
By JESSICA SILVER-GREENBERG
The dentist set to work, tapping and probing, then put down his tools
and delivered the news. His patient, Patricia Gannon, needed a partial
denture. The cost: more than $5,700.
Ms. Gannon, 78, was staggered. She said she could not afford it. And her insurance
would pay only a small portion. But she was barely out of the chair,
her mouth still sore, when her dentist’s office held out a solution: a
special line of credit to help cover her bill. Before she knew it, Ms.
Gannon recalled, the office manager was taking down her financial
details.
But what seemed like the perfect answer — seemed, in fact, like just
what the doctor ordered — has turned into a quagmire. Her new loan
ensured that the dentist, Dr. Dan A. Knellinger, would be paid in full
upfront. But for Ms. Gannon, the price was steep: an annual interest
rate of about 23 percent, with a 33 percent penalty rate kicking in if
she missed a payment.
She said that Dr. Knellinger’s office subsequently suggested another
form of financing, a medical credit card, to pay for more work. Now, her
minimum monthly dental bill, roughly $214 all told, is eating up a
third of her Social Security check. If she is late, she faces a penalty of about $50.
“I am worried that I will be paying for this until I die,” says Ms.
Gannon, who lives in Dunedin, Fla. Dr. Knellinger, who works out of Palm
Harbor, Fla., did not respond to requests for comment.
In dentists’ and doctors’ offices, hearing aid
centers and pain clinics, American health care is forging a lucrative
alliance with American finance. A growing number of health care
professionals are urging patients to pay for treatment not covered by
their insurance plans with credit cards and lines of credit that can be
arranged quickly in the provider’s office. The cards and loans, which
were first marketed about a decade ago for cosmetic surgery
and other elective procedures, are now proliferating among older
Americans, who often face large out-of-pocket expenses for basic care
that is not covered by Medicare or private insurance.
The American Medical Association and the American Dental Association
have no formal policy on the cards, but some practitioners refuse to use
them, saying they threaten to exploit the traditional relationship
between provider and patient. Doctors, dentists and others have a
financial incentive to recommend the financing because it encourages
patients to opt for procedures and products that they might otherwise
forgo because they are not covered by insurance. It also ensures that
providers are paid upfront — a fact that financial services companies
promote in marketing material to providers.
One of the financing companies, iCare Financial of Atlanta, which offers
financing plans through providers’ offices, asks providers on its Web
site: “How much money are you losing everyday by not offering iCare to
your patients?” Over the last three years, the company’s enrollment has
grown 320 percent. Another company posted a video
online that shows patients suddenly vanishing outside a medical office
because they cannot afford treatment. The company offers a financing
plan as a remedy, with the scene on the video shifting to a smiling
doctor with dollar signs headed toward him.
A review by The New York Times of dozens of customer contracts for
medical cards and lines of credit, as well as of hundreds of court
filings in connection with civil lawsuits brought by state authorities
and others, shows how perilous such financial arrangements can be for
patients — and how advantageous they can be for health care providers.
Many of these cards initially charge no interest for a promotional
period, typically six to 18 months, an attractive feature for people
worried about whether they can afford care. But if the debt is not paid
in full when that time is up, costly rates — usually 25 to 30 percent —
kick in, the review by The Times found. If payments are late, patients
face additional fees and, in most cases, their rates increase
automatically. The higher rates are often retroactive, meaning that they
are applied to patients’ original balances, rather than to the amount
they still owe.
For patients, the financial consequences can be dire.
Ms. Gannon said she was happy with her dental care,
despite the cost, and there was no suggestion that Dr. Knellinger had
done anything wrong. But attorneys general in a several states have
filed lawsuits claiming that other dentists and professionals have
misled patients about the financial terms of the cards, employed
high-pressure sales tactics, overcharged for treatments and billed for
unauthorized work.
The New York attorney general’s office found that health care providers
had pressured patients into getting credit cards from one company,
CareCredit, a unit of General Electric, which gave some providers
discounts based on the volume of transactions. Patients, the
investigation found, were misled about the terms of the credit cards,
and in some instances, duped into believing that they were agreeing to a
payment plan with dental offices when, in fact, they were being pushed
into high-cost credit.
In June, CareCredit reached a pact with Eric T. Schneiderman, the New
York attorney general, to improve protections for consumers, and a
spokeswoman said the company “does not incentivize providers to have
patients open accounts” or give referral fees to providers.
In Ohio, the attorney general has sued the operators of several hearing
aid clinics, claiming that they misled customers about using medical
credit cards to pay for batteries and warranties.
Cameron P. Kmet, a chiropractor in Anchorage, Alaska, said he had
stopped offering medical cards. “One missed payment can really ruin a
patient’s life,” he said. Mr. Kmet now runs a company that administers
payment plans directly between providers and patients, with annual
interest rates around 8 percent.
Regarding medical credit cards, Mr. Kmet said he had urged providers to
ask themselves “whether this is something that you would recommend to a
family member or friend.” The answer, he said, is usually no.
While medical credit cards resemble other credit cards, there is a
critical difference: they are usually marketed by caregivers to
patients, often at vulnerable times, such as when those patients are in
pain or when their providers have recommended care they cannot readily
afford. In addition to G.E., large banks like Wells Fargo and Citibank,
as well as several specialized financial services companies, offer
credit through practitioners’ offices.
The growth of this form of consumer credit is difficult to quantify
because data on medical credit cards specifically, as opposed to credit
cards generally, is unavailable. But credit cards of all types are
playing a growing role in financing medical care. In 2010, people in the
United States charged about $45 billion in health care costs on credit
cards, according to the consulting firm McKinsey & Company.
“When the economy got worse, our business got better,” said Katie
Kessing, an iCare spokeswoman.
In 2010, a little more than a thousand
dentists offered the iCare finance plan — a program that requires
patients to pay 30 percent down as well as a fee of 15 percent of the
total procedure cost. The number of participating providers has since
risen to 4,200. Russell A. Salton, the chief executive of Access One
MedCard, a credit card company in Charlotte, N.C., said demand for
specialized cards — the MedCard has an annual interest rate of 9.25
percent — is driven by providers interested in removing an “obstacle to
providing valuable care.” The company says the number of hospitals
offering its credit cards has grown about 25 percent a year in recent
years.
While neither national medical or dental associations have formal
policies, ADA Business Enterprises, a profit-making arm of the American
Dental Association that connects dentists and businesses, endorses
G.E.’s CareCredit, whose cards are used by more than seven million
people nationwide.
“Cardholders tell us they like using CareCredit because it gives them
the ability to plan, budget and pay for certain elective health care
procedures over time,” said Cristy Williams, the spokeswoman for
CareCredit. She said the company had improved consumer protections,
going so far as to telephone “senior cardholders with significant first
transactions to confirm their understanding of the program and terms.”
She said roughly 80 percent of patients who opted for the deferred
interest paid off their debts before they were charged any interest. She
and others in the industry said the credit cards and credit lines had
helped patients afford otherwise prohibitively expensive care not paid
for at all, or in its entirety, by insurance providers.
But state authorities and care advocates in California, Florida,
Illinois, Michigan and elsewhere say that older people — many of them
grappling with dwindling savings and mounting debt — are running into
trouble with medical credit cards and loans.
“The cards prey on seniors’ trust,” said Lisa Landau, who heads the
health care unit at the New York attorney general’s office.
Minnesota’s attorney general, Lori Swanson, is investigating the use of
medical credit cards, which she said could come with “hidden tripwires
and other perils.”
Interviews with patients, along with the review of contracts and
lawsuits, show just how significant those perils can be.
Carl Dorsey, 74, recalled his experience at Aspen Dental Management, a
nationwide chain that has come under scrutiny for its practices. Mr.
Dorsey said that after a dentist at Aspen’s office in Seekonk, Mass.,
told him that he needed dentures, at a cost of $2,634, he was urged to
take out a medical credit card. He was charged the full cost upfront,
financial statements reviewed by The Times show. Mr. Dorsey, who made
about $800 a month working as a used-car salesman, in addition to
receiving Social Security, has since fallen behind on his payments. The
lapse set off a penalty interest rate of nearly 30 percent. Mr. Dorsey
said he was being pursued by debt collectors.
“This whole ordeal has been devastating,” said Mr. Dorsey, who along
with other patients is part of a civil lawsuit filed against Aspen in a
federal court in upstate New York. He said he still needed dentures,
noting that the ones he received from Aspen were unusable.
Diane Koi-Thompson said that her father, Harold Koi-Than, did not
realize that he had signed up for a CareCredit card during a dental
visit. She said Mr. Koi-Than, 82, was shocked when a company
representative called his home near Niagara Falls, N.Y., saying he had
missed a payment. “My dad had no idea he had a credit card, let alone
that he was behind on it,” Ms. Koi-Thompson said. She said her father
was upset because he is normally meticulous with his finances and
thought his memory was failing. Mr. Koi-Than, through a family member,
was able to cancel the credit card.
The industry’s growth is being driven by people seeking dental care and
devices like hearing aids, which are not covered by Medicare.
Dental care is a large and expensive gulf, according to Tricia Neuman,
the director of Medicare policy research at the Kaiser Family
Foundation. The new federal health care law, she said, will not change that. “Lack of dental coverage remains a huge concern and expense,” Ms. Neuman said.
Working with care providers, financial services companies have rushed to
fill the void. To make medical cards attractive, some companies offer
them without checking patients’ credit histories. The cards can be
arranged in minutes, with no upfront charges. Such features are
attractive selling points.
“Your patient does not require good credit,” First Health Funding of
Salt Lake City, Utah says on its Web site. On the site of another
lender, the words “No Credit Check” flash in bright letters. First
Health Funding did not respond to requests for comment.
Lawyers and others who assist patients say such features make it easy
for people who are already on a weak financial footing to take on new
debt.
“Ultimately, this credit facilitates a bad financial decision that will
haunt a patient because it adds to indebtedness,” said Ellen Cheek, who
runs a legal help line for older people through Bay Area Legal Services
in Tampa, Fla.
Such critics also say that because there are no industrywide standards
for pricing care — costs vary from practice to practice — the cards
could encourage providers to charge more for treatment.
Brian Cohen, the lawyer representing Mr. Dorsey, said the cards enabled
providers to “bill whatever they want for care, regardless of whether
the cost is reasonable.”
State authorities say health care finance in general, and medical credit
cards in particular, are a growing worry. In 2010, Aspen Dental, the
chain where Mr. Dorsey signed up for a card, reached a settlement with
Pennsylvania authorities over claims that, among other things, it had
failed to tell patients that missing a payment would mean the rate would
rocket from zero to nearly 30 percent. A review of court records and
online forums shows hundreds of customer complaints against Aspen, which
is based in Syracuse. A civil case brought on behalf of customers is
pending in a federal court in upstate New York.
Kasey Pickett, a spokeswoman for Aspen, which is fighting the lawsuit,
said the accusations were “entirely without merit.”
Aspen provides mandatory training for office employees who discuss
financing with patients, according to Ms. Pickett. “We know that for
many patients,” she said, “the availability of third-party financing may
be the only way that they are able to afford the care they need.”
Copyright 2013 The New York Times Company. All rights reserved.
Thursday, October 03, 2013
Rent stabilized leases in Chapter 7 bankruptcy (continued)
As many readers of our e-mails and blog are aware, if an individual resides in an apartment with a rent controlled or rent stabilized lease and files for personal bankruptcy under Chapter 7 of the Bankruptcy Code, the trustee assigned to the case can assume, assign and transfer the bankruptcy estate's rights and interests in the lease to the landlord, pursuant to § 365 of the Bankruptcy Code. In other words, if an individual resides in an apartment with a rent controlled or rent stabilized lease and the fair market rent of the apartment is significantly greater than the rent paid by the rent controlled or rent stabilized tenant/debtor, a Chapter 7 bankruptcy trustee can sell the bankruptcy estate's rights and interests in the lease to the landlord and remove the debtor/tenant from the apartment.
A more complicated scenario occurs where a married couple are both signatories on a rent controlled or rent stabilized lease, but only one spouse files for Chapter 7 bankruptcy. Can the Chapter 7 bankruptcy trustee sell the bankruptcy estate's rights and interests in the rent controlled or rent stabilized to the landlord free and clear of the non-filing spouse to the landlord and remove the non-filing spouse from the apartment?
While there are no reported decisions on point in the Southern or Eastern Districts of New York, § 363(h) of the Bankruptcy Code allows a bankruptcy trustee to sell a bankruptcy estate's interest in property and the interest of a non-debtor co-owner in the property as a joint tenant, a tenant in common or a tenant by the entirety, but only if:
1. Partition in kind of the property among the bankruptcy estate and the co-owners is impracticable;
2. The sale of the bankruptcy estate's undivided interest in the property would realize significantly less for the bankruptcy estate than the sale of the property free of the interests of the co-owners;
3. The benefit to the bankruptcy estate of a sale of the property free of the interests of co-owners outweighs the detriment, if any, to the co-owners; and
4. The property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power.
If a Chapter 7 Trustee decided to analyze the assumption, assignment and sale of a rent controlled or rent stabilized lease to which a non-debtor spouse is a party using the §363(h) factors, the lease could be at risk. A better strategy for a couple in this situation, if they want to keep the apartment, is to do an out of court workout with creditors or file for bankruptcy under Chapter 13 of the Bankruptcy Code.
Individuals or couples who are in debt and have a rent controlled or rent stabilized lease need to consult with an experienced personal bankruptcy attorney, such as Jim Shenwick.
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