By Michael O'Leary | Published August 31, 2018 | Posted in Bankruptcy | Tagged Tags: debt collection, FDCPA, Henson v. Santander Consumer USA, Supreme Court | Comments Off on A Debt Collector By Any Other Name
A Debt Collector By Any Other Name
In Tepper v. Amos Financial, LLC, No. 17-2851 (3d Cir. August 7, 2018), the court distinguished the Supreme Court’s restrictive decision in Henson v. Santander Consumer USA, Inc., and held that the defendant, a company whose principal business is the acquisition and collection of debts is a “debt collector” under the Fair Debt Collection Practices Read More
Read MoreWhen You Get Sued For Post-Filing Debt in 13
The automatic stay of Bankruptcy Code section 362(a)(1) prohibits: “The commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action of proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the Read More
Read MoreIncome Tax Debt Can Extend Trustee’s Time to Set Aside Asset Transfers
It is generally true in a New York bankruptcy case that the Chapter 7 Trustee has a “look back” period of six years prior to the bankruptcy filing to examine asset transfers and commence litigation to set aside any that are deemed to be fraudulent transfers. This is because the Bankruptcy Code allows a Chapter Read More
Read MoreHAMP Sunset Date is December 30, 2016
The Treasury’s Home Affordable Modification Program, known as HAMP, will sunset on December 30, 2016. HAMP, put in place early in the Great Recession, provides two separate avenues for a homeowner with a qualified mortgage dated prior to January 1, 2009 that is in default or at imminent risk of default to seek a mortgage Read More
Read MoreOpening a Checking Account After Bankruptcy
Debtors sometimes are unable to open a checking account after receiving their bankruptcy Discharge. These debtors typically had a troubled history with their bank, generally involving fraud, bounced checks or excessive overdraft activity, resulting in this negative information being reported to a check reporting company known as Chex Systems. Such negative information remains in this Read More
Read MoreMortgage Modifications Before, During and After Bankruptcy
Any exploration of this topic requires an understanding of reaffirmation agreements. Under New York bankruptcy law (In re Boodrow) a debtor does not have to sign a Reaffirmation Agreement for a mortgage on real estate. This is a good thing (especially when dealing with second or third mortgages), since a signed Reaffirmation Agreement causes you Read More
Read MoreSurrendering Your House in Chapter 7 Bankruptcy
Many clients “surrender” their house as part of their Chapter 7 bankruptcy and assume that said act will allow them to put their homeowner’s “experience” totally in their rear view mirror. Unfortunately, in the context of dealing with secured debt (such as mortgages or car loans) in bankruptcy, the term “surrender”does not mean what many Read More
Read MoreYour Health Savings Account Might Not Be Exempt
A debtor’s funds held in a Health Savings Account (“HSA”) or Flexible Spending Account (“FSA”) do not appear to be exempt under either New York state exemption law or Section 522 of the Bankruptcy Code. This means that a debtor with a Health Savings Account or Flexible Spending Account might find the funds liquidated by Read More
Read MoreMust Spouses File Bankruptcy Jointly?
One spouse can file for bankruptcy without the other joining in the process, or even consenting to it. There are many instances where a couple would only want only one spouse to file. If one spouse has all the debt, but all of the assets are in the name of the other spouse, only the Read More
Read MoreYour IRA Might Not Be Exempt
Your IRA Might Not Be Exempt Beginning with In re Daley, 459 BR 270 (Bkcy. EDTenn., 2011), some recent bankruptcy decisions have created doubt as to whether Individual Retirement Accounts (“IRA’s) created by major brokerage firms such as Merrill Lynch and Charles Schwab are exempt from the liquidation efforts of a Chapter 7 Trustee. For Read More
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