The details are set:  October 29  5-7:30 p.m.  Computer History Museum, Mt. View

Designed for lawyers new to the bankruptcy practice, this class will focus on the practicalities of the means test.  Who has to take the test?  What is income?  What are the overlooked deductions?

The class is limited to 35 participants and we will leave ample time for questions.  The materials will go through the B-22 line by line with case law and annotations.  There are not always answers, but there are approaches that competent lawyers should be advocating.

I expect to have MCLE credit for the class and snacks.  Whichever rings your chimes, join us.  Expected cost $250 with discounts for those who sign up another new lawyer.

Reserve a spot by emailing cathy@law-full.com.

Once again, a client told me that if she’d known before what she learned in the financial management class required to get her bankruptcy discharge, she probably wouldn’t have needed bankruptcy in the first place.

Pretty strong words, from someone who admitted that she approached the required class with low expectations.

She announced that she intended to get her child and her step children to watch the class as well, so they go out into the financial world well prepared to deal with money and credit.

The bankruptcy “reform” act of 2005 did little good for debtors or bankruptcy law or practice, but debtor education is a winner.

Falling home prices have lead to a surge of strategic defaulters, in real estate columnist Kenneth Harney’s words:  people who abruptly choose to stop making mortgage payments.  These folks have made an economic decision that continuing to pay on a house that is significantly underwater does not make economic sense.

Harney is clearly bothered by this choice by people who appear to be able to make the payments, but elect instead to default and lose the property.  In this and an earlier column, he raises the question of the morality of  elective mortgage default.

I’ve been chewing on that idea:  is there a moral issue when a borrower voluntarily defaults?  The law attaches  consequences to certain promises, such as the promise to repay money borrowed.  If the borrower is capable of repaying but does not, is that a moral failing?  Or is it nothing more than the weighing of the consequences of shunning a legal duty vs. the cost of performing the promise?

I tried thinking about this from the lender’s side of the transaction:  are there any moral obligations that the lender assumes when they make the loan?  Could the lender exercise a legal right (to foreclose, say) and yet violate a moral precept?  (All of this presupposes that corporations have morals, or moral duties, of course.)  Would a lender have a moral obligation to modify a loan in the absence of a legal obligation?

Or, is all that is involved in the mortgage loan transaction the undertaking to expose yourself to certain unpleasant consequences if you default?

It bears more thought.  I routinely ask bankruptcy clients whether it makes sense to continue to pay on mortgages where the loan balance is significantly greater than the property’s value.  I want them to consider the option of walking away in the course of the bankruptcy.

Dismissed and discharged. These two terms are at the opposite ends of the scale of results in bankruptcy, yet they are often confused.

A debtor gets a discharge and is relieved of the legal liability for the dischargeable debts in the bankruptcy case.

A dismissal means the bankruptcy case was terminated short of the discharge.  It could be dismissed at the request of the debtor or upon the motion of the trustee or the court.  But it means that the case has been close without a discharge.

A case in which a discharge is entered will be closed by the court when all the legally necessary steps have been met, such as the trustee’s report.

I am inching closer to presenting a 2 + hour class for attorneys new to bankruptcy on the bankruptcy means test.

My target date is mid October, mid way between my speaking engagement for the Midwest Bankruptcy Institute in Kansas City first of October, and my two presentations at the NACBA Fall Workshop in November.

You’d think I’d tire of hearing myself talk- or would you<g>.

The news is usually a source of ideas for the Soapbox, second only to clients.  The news this month echos all too familiar themes.

• Notices of foreclosure sales must be single handedly supporting my local newspaper, the Mercury News.
• AP and the NYTimes write with amazement that mortgage loan modifications aren’t happening.
• The Mortgage Bankers write letters to the editors opposing a bankruptcy solution to the housing debacle.

Meanwhile, the average income of people through my door  has to have increased $75K a year in the past four months.  Bankruptcy now looks good to people making well over $200,000 a year.

The formerly well to do are following more and more long established small businesses that have hit a wall.

The news tells us the recession is ending;  if that’s so, the casualties will persist long after  the economy is supposedly recovered.

We were exploring the timing of a bankruptcy case, trying to live free in the house to be foreclosed while avoiding a garnishment on the working spouse’s wages.  I was thinking about comparing the cost of a garnishment to the cost of renting a house:  the client was thinking that a wage garnishment was forever!

Not so.  Bankruptcy eliminates the right of any creditor to continue to collect on its debt.  The prohibition requires that the creditor with a wage garnishment instruct the sheriff to cease withholding money from the debtor’s wages.

Further, the debtor may be able to recover from the creditor funds garnished in the 90 days before the bankruptcy case was filed, as a preference.  (My experience is that preference actions over sums this small are seldom economic, however.)

The client was also worried that multiple judgments could result in multiple garnishments at the same time.  Again, not so.  California law permits only one garnishment in place at a time and caps what the garnishing creditor can take from each paycheck at 25% of after tax wages.

The world was a lot less scary place for the client after we found and destroyed another bankruptcy myth.

I saw another facet of the underwater home mortgage when my client was considering whether to cure the mortgage arrears or walk away.  If he cannot hang on to the property until it regains the $85,000 negative, he will not be able to sell the property in the future without the active cooperation of the lender for a short sale.  After our current experiences with lenders and underwater properties, who wants to bank on that?

The homeowner was a single man and the property was a one bedroom one bath condo.  Life wouldn’t have to change much before a 1 and 1 is too small for a married man.  He’s filing bankruptcy now and will take the credit hit and get on the way to a fresh start.

If he elects to keep the condo and cure the arrears, he sets himself up for another possible credit hit when he needs to sell a property still underwater.

My Bankruptcy Law Network colleague Craig Andresen reported on a decision that found large payments on secured debt, including some for boat and RV, were permissible deductions in the means test.  The UST had argued that the debtors were abusing the system if they didn’t stop paying on the secured debt in order to fund a Chapter 13 plan.

Note that the UST’s argument was that the debtors should stop paying on the secured debt in order to pay other creditors, the unsecureds.  What business does the UST have in trying to further the interests of one set of creditors over another?  What makes the unsecured creditors more deserving than the secured creditors?

You wonder how the UST determines when a house payment is excessive, in its view.  Does the title make one all knowing?

In the crazy world of BAPCPA, hurray for a judge who reads the (idiotic] law and applies it as written.

Senator McCain this morning on Meet the Press reprised the Republican view of the approach to stimulus:  tax cuts for small businesses.  I thought about the small businesses I had seen in the past couple of weeks.  Not one of them was paying income taxes, and their expenditure on payroll taxes was small, because they’d cut back on  employees. For the very small business, I don’t  see taxes as the culprit.

Credit card merchant fees are a much bigger piece of the small business expense picture than are taxes for most of my clients.  Each merchant pays a percentage of each credit transaction to the card issuer.   7-Eleven store owners are petitioning  Congress for regulation of the fees charged merchants  by the card issuers .

Everywhere you look you see the impact of credit cards on the economy.  Often it’s suit by American Express that brings a small business owner to my office.  Or the businessman makes a list of their credit card debt and the interest rates after the recent round of increases and realize that they can never pay off the debt at 28% interest.

I’m certainly not an economist and don’t have a Moran Plan for reinvigorating the economy, but the people I see in trouble aren’t there because of their tax burden.