DEBTOR IN BANKRUPTCY MUST HAVE RECENT CREDIT COUNSELING. QUESTIONS? CALL 235-1970

January 25, 2012

When you are involved in the bankruptcy process you are required to have recently completed credit counseling. We you do not follow the rules your case can be dismissed .
On January 20, 2012, Debtor filed a voluntary petition for relief under Chapter 13, and a
“Certificate of Counseling” (Docket # 5), which states that on June 3, 2011, Debtor received “an
individual [or group] briefing that complied with the provisions of 11 U.S.C. §§ 109(h) and
111.”

Debtor is not eligible to be a debtor in this case under 11 U.S.C. § 109(h)(1). That
section provides in relevant part, that
an individual may not be a debtor under this title unless such
individual has, during the 180-day period ending on the date of
filing the petition by such individual, received from an approved
nonprofit budget and credit counseling agency described in section
111(a) an individual or group briefing (including a briefing
conducted by telephone or on the Internet) that outlined the
opportunities for available credit counseling and assisted such
individual in performing a related budget analysis.
Debtor did not receive the required credit counseling briefing during the 180-day period
preceding the date of the filing of her petition. Debtor received the credit counseling briefing 231
days before her petition was filed. Accordingly,
IT IS ORDERED that this case is dismissed.
.
Signed on January 23, 2012,UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: Case No. 12-41245
SABRINA WADE, pro se, Chapter 13 , Judge Thomas J. Tucker


Flint Bankruptcy Lawyer 235-1970

December 26, 2011

A Chapter 13 Bankruptcy sets up a 3 or 5 yr plan to pay certain debts ending with a discharge of remaining unsecured debt like credit cards. A chapter 7 Bankruptcy takes several months and ends with a discharge of your unsecured debt excluding things like taxes and student loans.
If you have Bankruptcy Questioins call Flint Bankruptcy Lawyer Terry R. Bankert 235-1970

BANKRUTPCY Issues: Chapter 13; Whether the bankruptcy court correctly concluded that the debtor has standing to pursue an avoidance action; Debtor’s “derivative” standing to pursue lien avoidance under 11 USC § 544; Countrywide Home Loans v. Dickson (In re Dickson); Realty Portfolio, Inc. v. Hamilton (In re Hamilton)(5th Cir.); Hyundai Translead, Inc. v. Jackson Truck & Trailer Repair, Inc. (In re Trailer Source, Inc.); Adhering to precedent; CSX Transp., Inc. v. McBride; Freedom to seek review in the Court of Appeals; Phar-Mor, Inc. v. McKesson Corp. (In re Phar-Mor, Inc.); Jurisdiction; Midland Asphalt Corp. v. United States; Drown v. National City Bank (In re Ingersoll); Standard of review; International Dairy Foods Ass’n v. Boggs; Perfection of the bank’s lien on debtor’s manufactured home; 11 USC § 541(a)(1); Lyon v. Eiseman (In re Forbes); Butner v. United States; Waiver; Bailey v. Floyd Cnty. Bd. of Educ.

Court: U.S. Bankruptcy Appellate Panel Sixth Circuit
Case Name: In re Barbee
e-Journal Number: 50351
Judge(s): Harris, Boswell, and McIvor

Following the holding in Dickson, the court affirmed the bankruptcy court’s determination that the Chapter 13 debtor had derivative standing to avoid the appellant-Bank’s lien pursuant to § 544. Thus, the court also affirmed the bankruptcy court’s order granting the debtor summary judgment.

DEBTOR TOOK LOAN FROM COUNTRY WIDE HOME LOANS

The relevant facts were undisputed. On 11/15/99, the debtor and G borrowed $75,558.93 from Countrywide Home Loans, repayment of which was secured by the grant of a mortgage lien in favor of Countrywide.

1999 MORTGAGE

The mortgage was dated 11/15/99, and was recorded on 12/1/99. The mortgage encumbered the real property and all improvements and fixtures located on it.

2009 THE COUNTYWIDE NOTE ASSIGNED TO BANK

On 10/22/09, the note and mortgage were assigned to the Bank. The debtor and G used the proceeds of the loan to acquire the real property. Located on the property is the debtor and G’s manufactured home.
DOUBLE WIDE TRAILER TURNED INTOI AN ACTUAL HOUSE

In the record was a letter from a loan officer to Countrywide as to the debtor’s loan from Countrywide advising that “[i]n 1997, this double wide mobile home was gutted and rebuild (sic) as an actual house.”
THE DEBTOR DID NOT GET A SEPARATE TITLE
The debtor and G did not acquire a separate title to the manufactured home and the record was unclear as to whether a certificate of title was ever issued for the manufactured home.
DEBTOR FILES FOR CHAPTER 13
On 11/11/09, the debtor filed a petition for relief under Chapter 13. The debtor later filed his adversary complaint, asserting that as a hypothetical lien creditor, he has superior title to the manufactured home located on the property, and that any interest the Bank has in the home was avoidable pursuant to § 544 because the Bank failed to perfect its lien on the manufactured home pursuant to Kentucky law.

The Bank asserted, inter alia, that the debtor did not have standing to bring the avoidance action. Citing Dickson, the bankruptcy court held that the debtor had derivative standing to pursue the lien avoidance under § 544. The Bank argued that the debtor lacked standing to bring the avoidance action because a debtor cannot be granted derivative standing to exercise the trustee’s strong arm powers as to consensual liens.

The debtor asserted that he had derivative standing to pursue lien avoidance under § 544 pursuant to the decision in Dickson. While acknowledging the holding in Dickson, the Bank argued that the debtor lacked standing to pursue avoidance of the lien based on the plain language of the Bankruptcy Code and the reasoning of courts which have found that a Chapter 13 debtor lacks standing to exercise the trustee’s avoidance powers. When the Bank filed its brief in this appeal, an appeal of the decision in Dickson was pending before the Sixth Circuit Court of Appeals. Thus, the court issued an order holding this appeal in abeyance pending a decision in Dickson. The Sixth Circuit issued a decision in Dickson on 8/26/11. However, the Court of Appeals never reached the issue of derivative standing. Instead, the Sixth Circuit held that the transfer at issue in Dickson was involuntary, so that the debtor had direct, statutory standing to seek avoidance of the creditor’s lien. “Without deciding whether a later panel must always follow the precedent of a prior panel,” the court saw no reason in this case to break with the principles of stare decisis and thus, followed the holding in Dickson. “Adhering to precedent promotes uniformity of case law” in the Circuit and “the goals of ‘stability’ and ‘predictability’ that the doctrine of statutory stare decisis aims to ensure.” The court noted that the Bank was free to seek review of its decision in the Court of Appeals, which is not bound by decisions of Bankruptcy Appellate Panels.


FLINT BANKRUPTCY AND DIVORCE SUPPORT

March 30, 2011

IN YOUR FLINT DIVORCE most orders and proceeding will continue. Contact Flint divorce/bankruptcy attorney Terry Bankert if you have questions. The automatic stay that stops collection actions against you , and the phone calls, when you file for bankruptcy will nnot stop in the following .

In what are called domestic proceedings the following are continued.

A. The setting and collection of current child support and alimony.

B. The collection of back child support and alimony from property that is not in the bankruptcy estate.

C.The determination of child custody and visitation.

D.A lawsuit to establish paternity.

E. An action to modify child support and alimony.

F.Proceedings to protect a spouse or a child from domestic violence.

G.Witholding of income to collect child support.

H.reporting of overdue support to credit bureaus.

I.The interception of tax refunds to pay back child support.

J. Witholding, suspension, or restriction of drivers license and professional license as leverage to collect child support.

If you have questions see  Http://www.nojokebeingbroke.com

or call 235-1970
TOPIC BANKRUPTCY:EASTERN DISTRICT OF MICHIGAN BANKRUPTCY COURT. BANKRUPTCY FLINT ,ATTORNEY POSTING BY Flint Bankruptcy Lawyer Terry R. Bankert 810-235-1970.[Comments of Flint Bankruptcy lawyer Terry R. Bankert ,810-235-1970 ,in bracket or CAP headlines. If you have bankruptcy questions call today-810-235-1970 this article presented in a SEO format see, http://www.nojoketobebroke.com ]


CAN YOU KEEP INSURANCE PROCEEDS IN BANKRUPTCY?

March 28, 2011

CAN YOU KEEP PROCEEDS FROM INSURANCE IF YOU ARE IN BANKRUPTCY?

TOPIC BANKRUPTCY:EASTERN DISTRICT OF MICHIGAN BANKRUPTCY COURT. BANKRUPTCY FLINT ,ATTORNEY POSTING BY Flint Bankruptcy Lawyer Terry R. Bankert 810-235-1970.[Comments of Flint Bankruptcy lawyer Terry R. Bankert ,810-235-1970 ,in bracket or CAP headlines. If you have bankruptcy questions call today-810-235-1970 this article presented in a SEO format see, www.nojoketobebroke.com  ]

source___________________________________/
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION – DETROIT
In re: Pauline Marie Darr, Case No. 09-63229
Chapter 7,Debtor. Hon. Walter Shapero, Signed on March 24, 2011
_______ ___________________________/

OPINION ON DEBTOR’S MOTION TO RETAIN INSURANCE PROCEEDS
The matter before the Court is Debtor’s Motion to Retain Insurance Proceeds (Docket
No. 86). For the reasons set forth in this opinion, Debtor’s Motion is denied.

BACKGROUND-BANKRUPTCY FILED 07-27-09 CHAPTER 13
Pauline Darr (“Debtor”) filed her Chapter 13 petition on July 27, 2009. She filed her
Chapter 13 Plan on August 11, 2009 and the Order Confirming Plan was entered on December
22, 2009 (Docket No. 47).

DEBTOR ASKED TO KEEP MOLD DAMAGE CLAIM TO HER HOME
On July 19, 2010, Debtor filed a Motion to Retain Insurance
Proceeds to Repair Residence (Docket No. 60), seeking permission to retain the proceeds of an insurance claim covering her residence, totaling $2,750.38, which arose out of remediation of
 old and water damage.

CHECK MADE OUT TO DEBTOR, DEBTORS SIGNIFICANT OTHER AND MORTGAGEE

The proceeds emanated from a check issued by the entity adjusting the
claim, which was delivered to the Debtor and was made payable to Debtor, her significant other, and the mortgagee of her manufactured home residence, Green Tree Serving, LLC (“Green
Tree”).

MORTGAGEE JUST WANTED TO KN OW THE MONEY WOULD BE SPENT WISELY

Green Tree responded to Debtor’s Motion, seeking a method by which they could be assured that the repairs would be timely made and that the disbursement of funds could be monitored.
ALL PARTIES AGREE TO A PROCESS

A hearing was set and eventually the parties stipulated to the entry of an Order Regarding Insurance Check (Docket No. 68), dated August 12, 2010, which essentially provided for the following:
(1) The check would be endorsed by the payees and the check’s proceeds would be
deposited in Debtor’s attorney’s trust account, with the funds to be disbursed therefrom as further provided in the order.
(2) Debtor would produce to her attorney and Green Tree certain documentation regarding the claim, including the adjustor’s itemized statement of the damages and a contractor’s estimate to remediate the damage. Incident to receipt of such, the
attorney would issue a check to the Debtor for 50% of the proceeds.
(3) Debtor was to have the repairs completed within thirty (30) calendar days of receipt of those funds, following which she was to produce proofs and certification of completion. If Green Tree found such to be satisfactory, the remaining 50% of the proceeds would be released to the Debtor.
DEBTOR HAD LEFT THE HOME

Previous to the entry of that Order, Debtor had (a) vacated the residence, and (b) obtained a repair estimate of $4,506.00 from a contractor; and ©) had received the adjustor’s loss report detailing how the $2,750.38 amount of the check was arrived at. That stated calculation was:
Gross Repair Estimate $ 4,213.22
Less: Policy Deductible _$ 500.00
$ 3,713.22
Less: Recoverable Depreciation _$ 850.48
$ 2,862.74
Less: Non-recoverable Depreciation _$ 112.36
AMOUNT OF CHECK $ 2,750.38
(The subsequent entry of the August 12, 2010 Order also implies that Debtor did not then take issue with the indicated insurance settlement figure)

DEBTOR TO GET $3,600.86 FROM THE CLAIM
What that meant was that (1) the money initially available from the insurance company for remediation was the check proceeds of $2,750.38 and (2) Debtor would also receive the recoverable depreciation of $850.48 on completion. Thus, the total to be ultimately received by
Debtor from the insurer in respect to the claim was to be $3,600.86. Debtor would be required to personally bear whatever, if anything, it cost in addition to that figure to remediate the damage.
Debtor having supplied the required documentation,

DEBTROS ATTORNEY GAVE HIM $1,300

Debtor’s attorney issued a check to Debtor for roughly half of the proceeds, i.e.: about $1,300. Sometime in October 2010, Debtor turned that amount over to the contractor from whom she received the indicated estimate, with the idea that the contractor would then commence the repairs.

DEBTOR TOLD THE CONTRACTOR TO NOT START WORK!.WHODATHUNK

However, the Debtor, for reason, thereafter told the contractor not to start the repair work.
CHAPTER 13 CONVERTED TO A CHAPTER 7

In the meantime, in November 2010, the Debtor’s bankruptcy case was converted to a Chapter 7 case and Green Tree thereafter obtained a lift of the stay in reference to its mortgage on the manufactured home residence.

CONTRACTOR RETURNS MONEY TO DEBTOR

Sometime in December 2010, the contractor returned to Debtor the money she had paid him, less some $300.00 he retained for his time and efforts to date.

DEBTOR GIVES MONEY TO ATTORNEY TRUST ACCOUNT

Debtor then turned that money over to her attorney who deposited it in his trust account, where it now sits together with the remainder of the $2,750.38 the attorney had not previously disbursed. Presumably the amount in that trust account is $2,750.38 less the $300 or so which the contractor did not return to the Debtor.
GREENTREE GETS THE HOUSE BACK
So, the situation is that (A) Green Tree has obtained a lift of the stay with reference to the residence and presumably will exercise its rights under its mortgage and for some time Debtor has not lived there and apparently does not intend to do so;
NO REPAIRS WERE MADE TO THE HOUSE

(B) no repairs were ever made to the residence incident to the loss covered by the insurance check;
THE INSURANCE MONEY IS IN THE ATTORNEYS TRUST ACCOUNT
 (C ) the check/loss proceeds in the indicated amount are being held in Debtor’s attorney’s trust account, subject to this Court’s decision; and
COURT ORDER DID NOT ADDRESS ESCROWED ACCOUNT AMOUNT
(D) the August 17, 2010 Order did not state what would happen to the escrowed funds if the contemplated repairs were in fact not made.
 

DEBTOR ASKED THE COURT TO ALLOW DEBTOR TO KEEP THE MONEY

Debtor seeks to have some or all of those proceeds paid to her, as opposed to having them released to Green Tree, which seeks turnover to it of all of the funds.

DISCUSSION
In the Court’s view, given that the August 17, 2010 Order was not fully effectuated, the proper disposition of the funds must be determined by looking at both the Mortgage and the insurance policy involved.
INSURANCE REQUIRED AND ASSIGNED TO MORTGAGEE
The mortgage documents with regard to Property Insurance clearly
(a) require that the Debtor carry prescribed insurance coverage; and (b) assign to the mortgagee (in this case Green Tree) the proceeds of any insurance coverage on the manufactured home, the same to be applied to repair or restoration, or in lieu thereof, to the remaining unpaid balance due
under the mortgage.

GREENTREE WAS THE INSURED

The insurance policy involved in this case, which covers the loss involved,
among other things, names Green Tree as an insured.

DEBTOR SAYS MONEY CANNOT FIX PROPERTY SO DEBTOR SHOULD KEEP IT

Debtor argues that she should be entitled to all or part of the funds at issue because the
funds are insufficient to fully restore the premises and fully pay for the loss; that she did not have the funds to pay the difference; and that she continued to pay lot rent until the stay was lifted, and that she needs the fund to get back on her feet.

LOOK TO THE POLICY

While all of that might be so, such cannot alter the meaning and purport of the referred to provisions of the mortgage and insurance policy.

It was clear in the first place, whether Debtor fully appreciated it or not, that she was going to have to bear some of the cost herself (unless the contractor agreed to accept the check proceeds as full payment for the entire remediation). Furthermore, as indicated, the stipulated Order
pertaining to the disposition of the funds is silent on what was to happen if the provisions of the order were not carried out and the repairs were never made. That necessarily left the disposition
of the matter to the cited provisions of the relevant documents.

GREENTREE GETS THE PROCEEDS
Accordingly, Green Tree is entitled to all of the funds involved. Green Tree should prepare and present an order which requires the Debtor and Debtor’s attorney to forthwith turn over to it all of such funds. Debtor and Debtor’s attorney do not have any responsibility to turn
over the amounts deducted by the contractor before he returned the remaining balance to the Debtor and she thence turned it over to her attorney, because the Court has concluded the
circumstances do not warrant requiring them to do so.
—END

If you have bankruptcy questions please call Terry R Bankert at 810-235-1970 , email terry@attorneybankert.com

, web page http://www.attorneybankert.com


WHEN IN BANKRUPTCY YOU MUST GET A CREDIT COUNSELING CERTIFICATE BEFORE YOU FILE

March 24, 2011

DID YOU KNOW IF YOU ARE IN BANKRUPTCY you must file a motion for approval of the certification, serve it on all parties, and file a certificate of service.

BANKRUPTCY posting by Bankruptcy lawyer Terry R. Bankert.UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION (DETROIT),In re: Chapter 13,Carlos B. Oxholm, Case No. 11-46348 Debtor. March 15, 2011 Hon. Phillip J. Shefferly

ORDER DENYING DEBTOR’S EX PARTE MOTION FOR
EXTENSION OF TIME TO FILE CREDIT COUNSELING CERTIFICATE

BANKRUPTCY FLINT ,ATTORNEY POSTING BY Flint Bankruptcy Lawyer Terry R. Bankert 810-235-1970.[Comments of Flint Bankruptcy lawyer Terry R.Bankert ,810-235-1970 ,in bracket or CAP headlines. If you have bankruptcy questions call today-trb.810-235-1970]

DEBTOR FILED 03/01/11

On March 9, 2011, the Debtor filed this Chapter 13 case.

MOTION FILED 03/1/2011

On March 11, 2011, the Debtor filed a motion (docket entry no. 8) seeking an extension of time to file a certificate of budget and credit counseling.

DEBTOR SAYS NO CREDIT COUNSELING BEFORE FILING.

The motion does not cite any Bankruptcy Code section or rule, but explains that the Debtor did not obtain budget and credit counseling prior to filing the bankruptcy petition
because of exigent circumstances.

DEBTOR WANTS EXTENSION

The Debtor’s motion requests that the Court grant the Debtor
an extension of time to file the certificate of budget and credit counseling on an ex parte basis.

BANKRUPTCY CODE SAYS YOU CAN ASK

Section 109(h)(3)(A) of the Bankruptcy Code permits a debtor to

[1]obtain a waiver of the requirement of obtaining budget and credit counseling pre-petition,

[2]provided that the debtor files a certification that complies with § 109(h)(3)(A).

[3]The Bankruptcy Court for the Eastern District of Michigan has a specific local bankruptcy rule that sets forth the procedure for filing a motion under § 109(h)(3)(A).

CREDIT COUNSELING CERTIFICATION

Local Bankruptcy Rule 1007-6 is entitled “Credit Counseling
Compliance.” Local Bankruptcy Rule 1007-6(a) provides that

[]a debtor filing a certification under § 109(h)(3)(A)

[]must file a motion for approval of the certification, serve it on all parties, and file a certificate of service. Further,

[]the local rule provides that parties in interest have
14 days within which to object to the motion.

[]If no timely response is filed, the certification shall be deemed satisfactory under § 109(h)(3)(A)(iii) without a hearing or further order.

[]The 11-46348-pjs Doc 12 Filed 03/15/11 Entered 03/15/11 14:46:56 motion must be accompanied by a notice that the deadline to file responses is 14 days after
service.

DEBTOR ASKED FOR EX PARTE, NOT ALLOWED IN RULES

The Debtor’s motion in this case seeks relief under § 109(h)(3)(A) of the Bankruptcy Code, but does not comply with L.B.R. 1007-6(a).

RULES SAYS JUDGES CANNOT LOOK EX PARTE

That local rule does not permit the Debtor’s
motion to be considered on an ex parte basis. Accordingly,

DEBTOR REQUES DENIED BUT DOOR LEFT OPEN TO DO IT RIGHT

IT IS HEREBY ORDERED that the Debtor’s motion (docket entry no. 8) for extension of time to file certificate of budget and credit counseling is denied without prejudice to the Debtor’s right to file and serve a motion that complies with L.B.R. 1007-6(a).
–END

If you have bankruptcy question please contact Flint Bankruptcy Attorney Terry r. Bankert P.C. 810-235-1970, http://www.attorneybankert.com

This law firm acts as a debt relief agency by helping you file for bankruptcy.


FLINT BANKRUPTCY LAWYER ON CHAPTER 7 AND CHAPTER 13

March 16, 2011

There are two main types of bankruptcies for citizens:

Bankruptcy in Chapter 7 allows your family to eliminate most unsecured debts ,no lliens,in several months by giving up all “non-exempt” property — if you have any.

In Flint Bankruptcy people in great debt who file for Chapter 7 Bankruptcy, have no available non-exempt property or equity. This means that for many what they own at the beginning of a bankruptcy they keep.Your property may be protected by exemption laws, or pledged to a secured creditor as collateral for a debt, and therefore not available to pay off unsecured creditors.

This type of Flint Bankruptcy is called a “no asset” bankruptcies, and most Chapter 7s are of this type.

Bankruptcy in Chapter 13 takes 3 to 5 years. In exchange for not giving up property, debtor repays a portion of the debts and lives within a strict budget that is watched closely by the Flint bankruptcy court trustee. 50% can’t make the required monthly payments, this causes Chapter 13 bankruptcy to fail and debts will remain (unless debtor converts to a Chapter 7 bankruptcy).

Flint Bankruptcy Chapter 13 is used by debtors who are behind on secured debt payments (e.g., mortgages) and present to the Bankrupcy Judge by way of a Trustee a Chapter 13 plan to catch up on these payments over time.

New to Flint Bankruptcy ,October 2005, is a mathematical formula called the “means test” this establishes an initial determination of the kind of bankruptcy debtor may qualify for: Chapter 7, Chapter 13, or either. This formula takes into account:

•your monthly income
•the amount and kind of your debts, and
•other aspects of your financial situation.
If your annual income is less than the Michigan median income for your household size, then you can file for Chapter 7 or Chapter 13, (assuming you meet other qualifications). If your income is higher than the state median, you must first complete a long list of expense deductions to estimate what your ‘disposable income’ will be over the next five years. The result of this calculation determines whether you can file for Chapter 7, or are left with Chapter 13 as your only option.

If you have additional question contact me through
http://www.attorneybankert.com
or
Terry@attorneybankert.com