Chapter 13 Bankruptcy

If you have a regular income and, after paying off all of your necessary expenses, you have some money left over to pay down your debts, the court will “restructure” your debts over a 5 year payment plan with little or no interest.  The major advantage of this type of bankruptcy is that you will be able to keep all of your assets and will not be forced to liquidate them to satisfy your debts.

100% of secured debt must be paid off or made current during this payment plan. This refers to debts which are secured by a specific piece of property like a car or home. With regard to these secured debts like a mortage, the payment plan will give you time to become current and avoid foreclosure.  These overdue amounts must be fully paid at the end of the five year payment plan.

Non-secured debts, on the other hand, like hospital bills, credit card bills, lawsuit judgments and payday loans will only be paid back over the payment plan period according to how much you can afford to pay. When you complete the payment plan, most unpaid balances of these debts will be discharged by the bankruptcy court.

Over the course of the three to five year plan, you will make the ongoing agreed-upon payments to your creditors and they may not try to collect more than they are entitled to under your Chapter 13 payment plan. Once you complete all payments during the five year period, the court will grant you a “full discharge” of your outstanding balances.

            However, as with Chapter 7 bankruptcy, the discharge will not absolve you of the obligation to pay certain non-secured debts like child or spousal support obligations, most student loans, and many tax obligations.

            You may contact our office for a free consultation with an experienced bankruptcy attorney with regard to whether this or another type of bankruptcy may be appropriate for your situation.

Other related Posts:

• Who Should file for Bankruptcy?
• Which Type of Bankruptcy Should I File?
• Chapter 7
• How Do I Rebuild My Credit After Bankruptcy?

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Chapter 7 Bankruptcy

In order to qualify for Chapter 7 Bankruptcy, you must pass the “means test.” That means that if your income is less than the median income in your county, you qualify to apply for bankruptcy protection. In order to find out if your income is above or below the median income for your area, please contact our office and one of our experienced bankruptcy attorneys can apprise you of where your income falls in the context of the “means test.”  If, however, your income is above the median income for your county, you may still qualify, but additional information that you provide will have to be. 

When one files for Chapter 7 bankruptcy, the court appoints a trustee who will collect and sell (“liquidate”) all non-exempt property and distribute the proceeds to the appropriate creditors. Any remaining dischargable debts will be discharged at the end of the process. 

            The definition of “exempt assets” varies from state to state, but in New York, the following assets are generally exempt from liquidation in Chapter 7 bankruptcy:

• $2,500 in cash and $2,500 in clothing and household furniture, or $50,000 in equity in a home that is located in New York and is the principal residence of the debtor
• a car with up to $2,400 in equity,
• “qualified” retirement plans, such as 401ks and 403b plans,
• IRAs
• up to $600 in work tools
• personal injury compensatory recoveries to up to$7,500 (not including pain and suffering)
• security deposits

Any excess equity in your home or car, above the levels outlined above, must be “cashed out” in order to pay your creditors. It should be noted that certain debts are not dischargable in a bankruptcy proceeding. The following debts are among the most common that generally may not be discharged:

• Child Support
• Spousal Support
• Back Taxes
• Most Student Loans 

Contact our office for bankruptcy filing information and help.Other related posts:

• Who Should File for Bankruptcy?
• Which Type of Bankruptcy Should I File?
• Chapter 13
• How Do I Rebuild My Credit After Bankruptcy?

Picture courtesy of NateBurnsteinlaw.com

Which Type of Bankruptcy Should I File?

Basically, if you have few assets, do not have a regular income or you do not have enough income to meet your basic needs and have something left over to help pay down your debt, then Chapter 7 bankruptcy might make the most sense for you. It will allow you to start fresh as quickly as possible, with the possibility of receiving a discharge of your debt in as little as a few months.

If, however, you have a regular income and can meet you basic living expenses with a little bit left over every month, your goal may be to reorganize your debts to a manageable level in order to pay your way out of debt. In this case, Chapter 13 bankruptcy would probably be the right choice.

In a Chapter 7 bankruptcy, all of your non-exempt property would be sold (“liquidated”), and the proceeds of the sale would be used to pay off a portion of your debts. If you have few assets, this type of bankruptcy may be the best option. For more information on which assets are considered exempt from sale in a bankruptcy proceeding, see the page on Chapter 7 bankruptcy.

If, on the other hand, you have a lot of non-exempt assets, such as a house, or you have regular income, you may have more to lose by having your assets liquidated to satisfy your debts, or a portion of your debts, than you would by creating a payment plan to pay off your debts over several years. In that case, you should probably consider filing for bankruptcy under Chapter 13. 

Contact our office for bankruptcy filing information and help.

Other related articles:

• Who Should File For Bankruptcy?
• Chapter 7
• Chapter 13
• How Do I Rebuild My Credit After Bankruptcy?

Picture courtesy of alsIdaho.com

Who Should File for Bankruptcy?

Generally, if you do not have enough money to pay your other debts after you pay the bills for your necessary expenses each month, you may file for bankruptcy.

Most people who file for bankruptcy are either unemployed, have large medical expenses, have seriously over extended credit, or encounter large unexpected expenses.

In order to qualify for bankruptcy protection, there are several primary prerequisites:

· You must either live, have a place of business, or own property in the United States

· You must not have been granted a Chapter 7 bankruptcy discharge within the last eight (8) years, or, if you have received relief under Chapter 13 of the bankruptcy code, you must have completed your Chapter 13 payment plan.

· You cannot have had a bankruptcy petition dismissed for substantive reasons within the last six months.

· It cannot be “fundamentally unfair” for you to receive relief under Chapter 7 of the bankruptcy code.

After you have filed for bankruptcy, your creditors may no longer contact you. The court will notify all of the creditors listed in your bankruptcy filing that you have filed for bankruptcy. Once they receive notice from the court, usually a couple of weeks after filing, they must stop all collection efforts and you should then be free from collection calls or any other type of collection efforts. If, despite notice of your bankruptcy proceeding, your creditors continue to contact you, they may be liable for court sanctions or your attorney’s fees.

If you are drowning in debt and you feel that you are unable to pay your way out on your own, we can help you make a new start by filing for bankruptcy. Read this article to help you decide which type of bankruptcy is appropriate for your situation.

Contact our office for bankruptcy filing information and help.

Divorce in New York – Video by Attorney Elliot Schlissel

You may view the video above to get information about Mr. Schlissel’s matrimonial practice in the Five Boroughs of New York City, Nassau and Suffolk counites. Our office has been representing matrimonial clients in New York clients for over 30 years. You can get additional information from our matrimonial law site  and by contacting our office.

Personal Injury Representation by Elliot Schlissel – Video

Our office has a significant personal injury practice in New York. Watch the video above for more information about Mr. Schlissel’s aggressive handling of personal injury matters. And as always, please contact our office if you need representation because of injuries that you have sustained.

Do the Police Need a Warrant to Attach a GPS Tracking Device to Your Car? (Updated)

Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.

On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept.  People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).

In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the  Fourth Amendment would not be implicated at all and no warrant would be required.

The trial court and the Appellate Division reasoned that placing the GPS tracking  device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.

During the oral arguments in the Weaver case,  Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.

My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments  as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.

In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.

As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.

Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police.  LINK.

Picture courtesy of consumertracking.com. As always, if you need help with any criminal matter, you are invited to contact our office.

Should New York Be Able To Tax Out-of-State Telecommuters?

Edward Zalinsky, a Tax professor at Cardozo Law School (Yeshiva University’s law school in New York City), wrote an interesting article at the Oxford University Press Blog.

In it, he explained how he sometimes telecommutes from his home in Connecticut to his job in New York City. He did not include the income he made that he felt was attributable the work he performed in Connecticut. He argues that the Due Process and Commerce Clauses of the Constitution prevent New York state from taxing income earned outside of its borders.

He has taken his case all the way to the New York Court of Appeals, but he was not successful. He argues that, especially now, people should be encouraged to telecommute in order to help prevent the spread of Swine Flu.

Here’s the article: Swine Flu, Telecommuting and New York’s Extraterritorial Taxation of Nonresidents’ Incomes

Navigating the Matrimonial/Custodial Jurisdiction Gauntlet in NY Where One Spouse is Out-of-State

As an office with a large matrimonial/family law practice, we often work with both out-of-state clients, as well as in-state clients whose spouse has moved out of state, where custody of the children is an issue. There are a number of laws in New York relating to whether New York has jurisdiction to handle a couple’s divorce, the child custody issues, or both. This article will outline some of the major jurisdictional hoops parties must jump through in order for New York courts to decide a matrimonial/custody case.

Imagine that a couple lives in New York and they have two elementary school children. The couple has marital trouble for a period of time and the wife and children left New York several months ago to live in her home state of Florida. There are several jurisdictional questions to consider before a New York court could handle all aspects of this case.

First, New York’s Long-Arm statute must give it jurisdiction over the out-of-state spouse. CPLR §  302(b) gives New York jurisdiction over a spouse that has moved out of New York when the spouse that is starting the action is domiciled in or is a resident of New York when he starts the case, as long as New York was the “matrimonial domicile” of the couple before they separated.

Next, for New York to have jurisdiction over any matrimonial action,  Domestic Relations Law (“DRL”) § 230 (2) must apply. This statute, in part, requires that the parties must have resided in New York as husband and wife and that either spouse is a resident of the state for at least one year leading up to the commencement of the divorce proceedings.

But even if one is able to have a matrimonial case heard by a New York court, that fact alone does not necessarily mean that the court will have jurisdiction over matters of custody. It is possible that the jurisdictional requirements for the divorce will be met but that the requirements for custody jurisdiction will not be met, and that some other state will have jurisdiction in a custody proceeding. Vanneck v. Vanneck, 404 N.E.2d 1278, 1280, 1282 (1980).

DRL § 76, enacted to conform  to the Uniform Child Custody Jurisdiction Act (“UCCJA”), only grants New York jurisdiction to make initial child custody decisions when (a) New York is the “home state” of the children involved (see § 75-a(7) for definition) in the six months preceeding the legal proceeding.. Additionally, (b) no other state must have custody jurisdiction according to the definition in (a) above, or, if it does, that it must have declined jurisdiction on the grounds that New York would be a more appropriate forum.

Situations exist where a matrimonial/custody case would be bifurcated, with, for example, the New York Supreme Court handling the divorce and property distribution aspects of the case and Florida courts deciding matters of custody. As one judge put it, such cases “turn[] on the connection between divorce jurisdiction and custody jurisdiction.  At one time the two may have been inseparable; but the P.K.P.A. [Parental Kidnapping Prevention Act], in particular, has placed these issues on different jurisdiction terrain.” Foley v. Foley, 170 Misc.2d 87, 89 (Sup. Ct. Monroe Cty 1996).

Although courts will consider whether they have jurisdiction over the divorce and custody sides of a case separately, how that decision affects the best interests of the children involved will be considered. The hardship inherent in different states handling the divorce and custody issues separately will also be factored into a court’s decision about whether to bifurcate the two issues in the case. Vanneck, supra, at 1280.

If a couple finds itself in a situation where one spouse has lived outside of New York with the children for more than six months and the other spouse still lives in New York, it would seem that there are a couple of options. Based on the statutes mentioned above, the state where the children live would normally have jurisdiction over issues of custody and the couple may elect to litigate the divorce there too if that state’s jurisdictional rules would allow that. This would simplify the process by avoiding a split litigation between states and it would avoid forcing the spouses to hire two lawyers each, one for each state. 

Alternatively, the out-of-state spouse may wish to simply consent to New York’s jurisdiction over issues of custody, but this is not so simple because matters of jurisdiction cannot be waived or stipulated to. Koshetz v. Lamberti, 262 A.D.2d 611 (2d Dept. 1999). However, since a court will make jurisdictional determinations based on the particular facts of a case, the parties may stipulate to certain issues of fact, which the court will use as its basis to find that it has custody jurisdiction. Caroline B. v. Thomas A.B., 16 Misc.3d 1128(A) (N.Y. Fam. Ct., 2007).

For example, if it is somewhat ambiguous whether the wife left New York permanently or simply to get some time away from her husband, the couple may stipulate to the fact that her stay out-of-state was a mere “temporary absence” and will not be credited to establishing “home state” status for the child in that other state. See DRL § 75-a(7). The parties may therefore stipulate to facts upon which the court will make a jurisdictional determination, but they may not stipulate to, waive, or consent to jurisdiction where the facts do not warrant it.

The bottom line is that anyone contemplating divorce, especially in less-than-typical factual situations, has many factors to consider before deciding where and how to proceed. As always, if you need assistance in any matrimonial, custody, child-support, paternity or visitation matter, you are invited to contact our office.

Picture courtesy of foreclosure-support.com.

Are There Any Truly Altruistic Lawyers

Scott H. Greenfield, a criminal defense attorney, just argued a case before New York’s highest court, the Court of Appeals. He was discouraged to find out during oral arguments that even the judges in New York’s highest court do not have much faith in the altruism of lawyers. You can read that interesting post here.

A singer, Tom Paxton, expresses a sentiment similar to those of the judges in the Court of Appeals in his song. One Million Lawyers. Here’s the chorus, just to give you an idea:

In ten years we’re gonna have one million lawyers,
One million lawyers, one million lawyers.
In ten years we’re gonna have one million lawyers.
How much can a poor nation stand?

My Criminal Procedure professor took a poll of the law students in his class to see how many people went to law school in order to do something positive for the world. Almost half of the students indicated that they chose law school because they wanted to accomplish something positive as lawyers, whether that be as prosecutors, defense attorneys, Legal Aide attorneys or some other kind of public service type of law.

Mr. Greenfield also indicated that any attorney, whether or not they work in a practice area that is more openly public service oriented, may be moved to contribute to society by writing simply for the sake of education, intelligent discussion, and spreading knowledge. Some start blogs, write Law Review articles, or write articles for other publications and newspapers.

In any case, it would certainly be an oversimplification to characterize all lawyers as dollar-sign-eyed money fiends.

Picture courtesy of inmagine