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July 2012 Archives

Bank of America is suing a Nashville Chapter 13 Bankruptcy Trustee over Mortgage Payments

As a Waco bankruptcy attorney, I see tons of individual and families who are about to lose their homes to foreclosure. Many of them ask me about the "Show me the Note" defense against foreclosure. The basic idea behind "Show me the Note" is that if the mortgage company cannot produce the actual note that the individual signed when they obtained the mortgage, than the mortgage company does not have a valid lien against the property and the individual just got a free house. Now here in Texas, "Show me the Note" typically is not a valid argument and, therefore, most attorneys will not pursue that line of argument when trying to help save homes from foreclosure. However, in other states, like Tennessee, this argument frequently works. In fact, Henry "Hank" Hildebrand, a Chapter 13 Trustee bankruptcy trustee from Nashville, is using the "Show me the Note" argument to avoid paying monthly mortgage payments for individuals in bankruptcy. Bank of America is fed up and wants to stop this argument, so they are taking a pro-active stance and suing Hildebrand. (see http://www.bizjournals.com/nashville/news/2012/07/26/banking-giant-sues-nashville.html?utm_source=Consider+Chapter+13&utm_campaign=44ea02d871-Monday_Update_0716127_15_2012&utm_medium=email) As stated above, while the "Show me the Note" argument rarely works in Texas, I am interested to watch this case. Hildebrand is arguing that in Bank of America cannot produce the underlying promissory note, then he does not have to pay them. Bank of America is citing to numerous cases in other states like Arizona and Massachusetts courts which recently partially sided with the banks. Meanwhile in Texas, the August foreclosures are scheduled for August 7, 2012 which is next week. If you are at risk of losing your home and need help, don't delay! Call today for a free, no-obligation consultation at 254-633-2876 or email us at [email protected]. Let my family help yours! Photo Credit: bloomsberries

Can I file bankruptcy without my spouse?

As a Central Texas Bankruptcy Lawyer, potential clients frequently ask me if they can file bankruptcy without their spouse. The simple answer is yes, you can file bankruptcy without your spouse. (But see the disclaimer in the next paragraph.) This past month alone I have had four clients who have filed bankruptcy without their spouses. Most clients who file bankruptcy without their spouse do so because they have only been married for a couple of years and the debt is primarily one spouse's debt from before the marriage. It is important to talk to an experienced bankruptcy attorney about the decision to file bankruptcy without your spouse. In my practice, I strongly encourage the non-filing spouse to come to the appointment with me when we file the bankruptcy for numerous reasons listed below. First, even if your spouse does not join you in the bankruptcy, you will need your spouse's cooperation if you are still living together. (This is that disclaimer I mentioned earlier.) The bankruptcy code requires your spouse's earnings to be considered in your bankruptcy as part of the income test. Therefore, most attorneys will require your spouse's proof of income and bank statements for the six months prior to filing bankruptcy. A good attorney will attempt to deduct your spouse's bills from the income test. My experience as a bankruptcy attorney is that it is much easier to accurately complete the bankruptcy documents if both spouses come to the filing appointment. Furthermore, an individual filing bankruptcy must list their assets. Some states like Texas are community property states. Typically in a community property state all property acquired after marriage is assumed to be owned by both spouses. This includes real property like land and houses and personal property like cars, tvs, and clothing. Even if your spouse does not file bankruptcy with you, you must list all property you own including community property in the bankruptcy. It is easier to ensure all property is included in the bankruptcy documents if both spouses are at the filing appointment. Finally, I have found that clients who are filing bankruptcy and their spouses are overwhelmed and confused about the process. I like to have both spouses at the filing appointment, so I can answer any questions about the bankruptcy process for both spouses. Non-filing spouses typically have questions about their credit, vehicles and houses, and the future. The filing appointment is a great time to address those concerns. If you are drowning in debt, there is hope. Email us at [email protected] or call 254-633-2876 today for a free, no-obligation consultation with an experienced Waco bankruptcy attorney. Let my family help yours! Photo Credit:  Lightsurgery

Foreclosures in Waco, Texas Area on the Rise

The Waco Tribune-Herald had an article this week about foreclosure trends in McLennan County. It noted that the number of homes in the foreclosure process in Waco and the surrounding areas in May 2012 is up from May last year. The article noted that foreclosures, which had slowed at the end of last year, have started back up again. The article speculates that foreclosures are up from the end of last year in Waco, Texas and nationwide "because the government intervention and prevention efforts have slowed, and lenders are catching up and pushing through foreclosures that were on hold," said Daren Blomquist, a spokesman for California based RealtyTrac. That is what I heard all the time in my bankruptcy office. People who are trying to modify their home loans and work with mortgage companies who are now set for foreclosure and don't know what to do. They spend months sending documents and falling further behind until finally they have a letter with a foreclosure date. More and more each month coming in to save their homes. I have previously blogged about what your options are if you are behind on your mortgage payments. (see http://thekehllawfirm.com/if-behind-on-your-mortgage-payments-your-best-options/) If you are one of the many families at risk of losing your home to foreclosure, don't delay! Talk to experienced staff today who can work with you to determine the best option for you. Call 254-633-2876 or email me at [email protected] for a FREE, no-obligation consultation before you lose your home!   Photo Credit: The-Lane-Team

Foreclosure Scams: Caveat Emptor (Let the Buyer Beware)

With foreclosures back on the rise here in Waco, Texas and nationwide, people are becoming desperate to save their homes. As a bankruptcy attorney, I hear so many stories of individuals and families who paid money to companies who were foreclosure scams. Hundreds and thousands of dollars. The Federal Trade Commission discusses how to protect yourself against foreclosure scams. (See http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre42.shtm.) Here are some examples of stories I have heard in the past month from Central Texas families: --I hired a company which promised a modification as long as I paid them $700.00 a month. They drafted their $700.00 directly out of my bank account and told me not to make a mortgage payment. When I told them I received a letter that I was set for foreclosure, they told me not to worry because they were getting a modification. Two days before the foreclosure date, they told me that I would not get a modification and I would lose my home to foreclosure, so maybe I should contact an attorney about filing for bankruptcy to save my home. --I hired an attorney recommended from my mortgage company's website to help me modify my home loan. I thought this attorney who help me because my mortgage company appeared to recommend them. They charged me almost $3,000.00 up front and additional monthly payments that were drafted out of my bank account. Now my home is set for foreclosure and my modification has been denied. However, the attorney is still drafting money even though his office told me that I will not receive a modification and I will be losing my home. --I hired a company who stop my foreclosure for a few thousands of dollars. I was reassured that my home was safe and not to worry about the foreclosure date. After the foreclosure date passed, I received an eviction notice in the mail. I called the company and they told me not to worry because my attorney was stopping the eviction. Then the sheriff came out and told me that my home had been foreclosed on and I had to move immediately as he put my stuff out on the street. After much heartache, I learned that the company had referred by case to an attorney who never accepted it and now my home is gone and I can't get my home or my money back. Here are the facts. No one can guarantee that they can save your home forever. No one can guarantee a modification. You need to investigate any one you hire to help you save your home even me. I had a client recently ask me to prove I was legitimate since there are so many foreclosure scams out there. I was proud of her for asking. I am an attorney licensed in the state of Texas. Anyone can look up my license at the state bar's website and use the Find a Lawyer feature (see http://www.texasbar.com/AM/Template.cfm?Section=Do_You_Need_a_Lawyer_) to see if my license is in good standing and if any sanctions have been taken against me. I assure you that I am a lawyer in good standing and I have never been sanctioned. I make it very clear to potential clients that I can never guarantee a modification. Modifications are voluntarily programs and difficult to achieve. While I have managed to help some clients obtain home modifications, I am very clear with clients that I cannot always modify a home loan. There are some clients who are not good candidates for home modifications or bankruptcy and sometimes I have to make the extremely difficult decision to advice the potential client to let the home go just like I did this past week. While I truly hate to see someone lose their home, I would rather be honest with them up front than take their home when I don't think I can help. I can use bankruptcy to stop a foreclosure sale that is set and then work with you to see what repayment plans might be available in a Chapter 13 bankruptcy if modification is not an option for you. I can try to help you modify your home loan. I received a modification paperwork for a client last week, but I do not always manage to modify home loans. I am very open with clients about what their options are and where we go from here. I work with clients to make a roadmap to try to save the home and get them back on track. And, truthfully, that is all anyone can promise you. Just to work with you and do their best to get you back on track. Please be careful if you are talking to someone who guarantees they can save your home. If you are set for foreclosure, time is of the essence. Call 254-633-2876 or email me at [email protected] today for a free, no-obligation consultation. Let my family help yours!   Photo Credit: BasicGov

Foreclosure Radio Ad

We have a new radio ad running on Clear Channel radio stations is Waco.  It is on foreclosure help.     Photo by JMazzolaa

Guest Post on Credit Settlement / Debt Settlement

My name is Stephen Kehl. I am Samantha's paralegal, her computer guy, office manager, her husband and whatever she has for me at the moment.  She keeps me very busy.  She asked me to do a guest blog post on a topic I hear about from potential clients everyday: credit settlement / debt settlement.
 I'm usually the first person that talks to people as they come in for first appointments.  A lot of them have tried credit card settlement.  Here are the most common complaints I hear:
  1. I let a credit card settlement company take drafts from my bank account every month.  They took hundreds or thousands of dollars.  They did nothing to settle my debts.  Now they are gone and so is my money.  They were a scam.
  2. I have been paying a credit card settlement company for about a year now.  So far they have been able to settle with some of the credit cards, but not all of them.  They have been TRYING to settle with the other.  I just received notice that one of the cards they were TRYING to settle with has now filed a lawsuit against me and I have 10 days to answer.
  3. I was able to use a debt settlement company to settle $75,000.00 worth of credit card debt for $30,000.00.  I was so happy until I received $45,000.00 in 1099's that have also been sent to the IRS.  I am going to owe thousands of dollars to the IRS.  What can I do? 
For complaint #1, we have seen a lot more clients that were lured into sending a fake settlement company money.  They may have found the company on the Internet, received mail or seen a TV commercial.  The company may have a local office or they may not.  We have also seen a lot of fake tax settlement companies even law firms.  The IRS very rarely settles.
For complaint #2, the key word is TRYING.  Settlement is optional.  The credit card companies or their collection agencies don't have to.  While the settlement company is TRYING to settle with a credit card company, they aren't making payments.  The money is going into a settlement fund in case they decide to settle or towards other companies that have settled.  That is why you now have been sued by a credit card company that has not been paid 
for many months.
For complaint #3, this is the bad side of debt settlement that the settlement companies tend not to tell their clients or bury in their paperwork.  The credit card companies are required by Federal law to submit a 1099-C for forgiveness of debt for any amount they settle for.  You can read about this on the IRS's website here.  This is to keep the wealthy from using loans to get around the inheritance tax by making loans to their heirs and then forgiving them. If you are settling a large debt, it is like you worked a part-time or full-time job on the side and did not have any withholding for taxes.  The IRS can charge more in interest and penalties than the credit cards themselves.  We have clients that have had to file bankruptcy for IRS debt alone.
These have been my observations in the 2 years that I have been Samantha's paralegal and talking with hundreds of people that have come in for help.  I must legally remind every one that I am just a paralegal and do not have a license to practice law.  Samantha supervises my work, including this post.
If you are drowning in debt, please call the Kehl Law Firm, PC at 254-633-2876 to make a free, no-obligation consultation to learn what your options are. Let my family help yours.
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