February 4, 2012

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Bankruptcy Class Action Settlement Update

February 1, 2012 By

In 2009, a class action lawsuit brought in California challenged credit-reporting bureaus TransUnion, Equifax, and Experian with improperly reporting debts that had been discharged in bankruptcy. The defendants (that is, the credit-reporting bureaus) eventually came to a settlement with the plaintiffs (the people responsible for bringing the suit), to the tune of $45 million.

The court approved the settlement by issuing an Order Granting Final Approval, but on August 12, 2011, the defendants filed a brief challenging that order, in regards to attorney fees and costs of the case. The result of this appeal won’t be known until at least later this year: the deadline for Appellants to file relevant briefs with the court is January 23, 2012, and Appellees have until February 24, 2012.

Will You Get Settlement Money?

The lawsuit was brought because Equifax, Experian, and TransUnion improperly reported debts that had been discharged in bankruptcy on consumers’ credit reports. Rather than noting that these debts were “discharged through bankruptcy,” the credit bureaus noted that they were “120 days late” or that they had been charged off by the credit issuer.

Incorrectly reporting the status of a debt is illegal (which is why the lawsuit was filed), but it also caused a lot of grief for the people affected. When a debt is still reported as active, debt collectors may try to collect on that debt.

The result was that people who had filed for bankruptcy and gone through the entire bankruptcy process precisely to eliminate their debts and stop getting hassled by debt collectors were having to deal with debt collectors anyway (along with the stress of trying to sort out why their credit reports were incorrect).

You are eligible to collect some of the settlement if…

  • You are a member of the “class” represented by this class action case. To be a part of the class, you must have received a Chapter 7 bankruptcy discharge AND had a credit report issued by one of the defendants (i.e. the three credit reporting bureaus) between March 15, 2002 and May 11, 2009 with incorrectly reported discharged debts.
  • You must have submitted a claim form with relevant information no later than November 30, 2009.

If you missed the deadline, however, don’t worry too much. Even though the settlement amount seems large, it will be spread out over so many individuals that it likely won’t result to more than a few dollars per person.

If, however, you’re interested in exploring other legal options regarding errors on your credit report, you may want to consult with a lawyer about the recourse available to you.

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Bankruptcy of Ireland’s Richest Man Heats Up

January 30, 2012 By

A few weeks ago, Sean Quinn, once the richest man in Ireland, filed for bankruptcy protection. But according to sources, his bankruptcy filing has not gone the way he imagined it. First, Quinn (who made billions in construction and real estate ventures and lost it through a bad gamble investing in Anglo-Irish Bank), was not permitted to file his bankruptcy petition in Northern Ireland.

Like many other “bankruptcy tourists” in the Republic of Ireland, Quinn apparently wanted to take advantage of the United Kingdom’s more lenient bankruptcy laws to make his case. He was thwarted, though, just recently, when a court ruled that he had misled the Northern Ireland bankruptcy authorities about the hub from which he conducted most of his business.

Now, filing for bankruptcy in the Republic of Ireland (which is independent of the U.K., unlike Northern Ireland, which is under the U.K.’s aegis), Quinn will have to wait about 12 years before the bankruptcy is cleared from his credit record. In the U.S. Chapter 7 bankruptcy remains on a person’s credit report for 10 years, but its impact diminishes with time.

“A Personal Vendetta”

In a move that does nothing to make him seem more sympathetic, Quinn has now reportedly accused Anglo-Irish Bank of holding a “personal vendetta” against him, and for that reason making his bankruptcy filing more troublesome.

Briefly, Quinn’s history with Anglo-Irish Bank (AIB) is this:

  • During the housing bubble, AIB extended itself beyond its means with ill-advised real estate loans.
  • Convinced the bank would rebound from its troubles, Quinn invested in its stock, gaining as much as a 28 percent stake in the company.
  • In addition to investing in the bank, Quinn also borrowed money to reinvest, putting himself largely at the bank’s mercy, should it collapse.
  • In 2008, AIB was forced to nationalize to avoid complete collapse. The process resulted in eliminating investments Quinn had with the bank worth about €2.8 billion.

Now Quinn owes AIB more than €2 billion. The now-nationalized bank has since received an order from a Dublin bankruptcy court to collect that money from Quinn. During the course of his bankruptcy, he will likely have to pay most or all of what he owes, or surrender assets to compensate the bank.

At present, it seems the bank is legally pursuing collection of the loan, though Quinn maintains that its officers pushed him into making unwise investments that led to the debt in the first place.

If there’s any kind of “lesson” we can take away from this tale of wealth and woe, it’s one of relief: it’s always refreshing to realize that our debts are not quite as overwhelming as they might be.

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JPMorgan Chase Accused of Bankruptcy Fraud in Class Action Suit

January 26, 2012 By

A class action lawsuit being brought against JPMorgan Chase alleges that the bank engaged in fraudulent activity in tens of thousands of bankruptcy cases.

The suit claims that the bank actively deceived many people involved in the bankruptcy process, including Chapter 7, Chapter 13, and Chapter 11 trustees; bankruptcy judges; creditors; creditor attorneys; debtors, debtors in possession, and debtors’ attorneys; and the Office of the United States Trustee.

Among the charges being leveled against Chase are that the bank did the following:

  • Committed fraud, perjury, and intentional misrepresentation in bankruptcy court by producing false title transfer evidence (sources claim that the bank used PhotoShop in some cases) in order to “prove” its stake in thousands of bankruptcy cases.
  • Provided manufactured evidence to willfully deceive those involved in the bankruptcy process about who truly held class members’ non-negotiable promissory notes.

What Is Chase Actually Accused Of?

In plain English, Chase is facing charges of providing false evidence regarding home mortgages in bankruptcy cases. Specifically, the lawsuit alleges that:

  • Chase fabricated documents that recorded its chain of ownership of residential mortgage loans. In order to be able to claim ownership of mortgage debt in bankruptcy court (or any court), a person must have a hard copy of the mortgage’s promissory loan (also called a Master Loan Note, or MLN). Because of electronic mortgage registration systems and securitization of mortgages (two factors that greatly contributed to the expansion and burst of the housing bubble), however, most banks no longer hold paper MLNs.
  • Chase presented falsified documents in bankruptcy court. In order to “prove” that it was the lender to whom a bankruptcy filer owed money, Chase allegedly presented these fabricated documents to bankruptcy courts (because it did not have actual documentation).
  • Chase rewarded lawyers for speedy action. During a bankruptcy case, filers are protected from collection actions like foreclosure by the automatic stay. But creditors can petition the court to lift that stay in order to collect on certain debts. In Chase’s case, the charges claim, the bank rewarded attorneys for producing false documents quickly and convincing the court to lift the stay quickly so that Chase could foreclose or collect money on a bankruptcy filer’s home.

Who Is Affected By the Class Action Suit?

The class named in the suit (Ernest Michael Bakenie v. JPMorgan Chase Bank, N.A., filed in the Central District of California) includes bankruptcy filers who live in California. To find out whether you are a member of the class, you can consult with a bankruptcy lawyer in your area.

Plaintiffs in the suit are seeking damages, restitution, injunctive relief, and disgorgement of profits.

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Dodgers Get Nod from Bankruptcy Judge for Fox Settlement

January 24, 2012 By

The bankruptcy judge overseeing the bankruptcy of the Los Angeles Dodgers has approved an agreement reached between the team and Fox News, meaning that a sale of the team can go forward, according to reports from the Associated Press.

The news was met with relief from the team’s creditors, because quick approval will likely translate to the team’s ability to maximize the value of its bankruptcy estate with a timely sale and fewer legal negotiations than might have otherwise been required. Creditors get paid based on the amount of money available in the bankruptcy estate, so the agreement and court approval seem to be good news for everyone.

While the bankruptcy of a professional baseball team may seem as if it’s worlds away from most people’s individual debt struggles, the Dodgers’ bankruptcy drama actually provides a great jumping-off point to clarify some key elements of the process of personal bankruptcy.

What the Dodgers Can Teach You about Personal Bankruptcy

Avoid the mistakes that led this baseball franchise into bankruptcy court, and you’ll improve your own odds at financial success.

  • Don’t live off future earnings. One major reason the Dodgers were pushed into bankruptcy was because the team’s owner, Frank McCourt, was counting on the renewal of a TV deal from Fox Sports to pay salaries in the coming year. When Major League Baseball’s commissioner rejected the contract Fox offered, McCourt was left with few choices other than to file for bankruptcy and lose control of the team—which is what the commissioner wanted in the first place (see the next list item).
  • Dicey accounting won’t hold up in the long term. One reason MLB’s commissioner pushed the Dodgers into bankruptcy was because McCourt was allegedly using team money for non-team (i.e. personal) expenses. It seems McCourt frittered away as much as $180 million that didn’t belong to him, which led higher-ups in the league to target him for removal.
  • Sometimes, you are your own best asset (in a good way!). The Dodgers are working on finding a new TV deal, which will partly finance their team expenses next season. Because enough people want to watch the Dodgers, the team should be able to emerge successfully from bankruptcy protection—and the same is true of most individuals! If you have the drive and determination to eliminate your debt and prove yourself to be a good credit risk, creditors, employers, and others will eventually see that and you’ll be able to recover after bankruptcy. Bids to purchase the Dodgers were due on January 23, and already a number of possible buyers have reportedly expressed interest in the team.
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NY Mets Taking First Step Toward Bankruptcy?

January 12, 2012 By

In a statement released last week, the New York Mets (i.e. the city’s non-Yankees baseball team) announced that it was enlisting the help of a financial firm known as a “turnaround specialist and bankruptcy consultant,” as the New York Times puts it.

In 2010, the company helped oversee the bankruptcy filing of the Texas Rangers. But while the Mets are reportedly facing some pretty serious debt burdens (including $400 million owed to several banks and $25 million owed to Major League Baseball), the team has not given any other public or official indication that it is considering a bankruptcy filing. Still, the consultation with the bankruptcy-focused firm suggests that the team is certainly considering court protection.

So what can individuals learn from the Mets’ maneuvers? Primarily that the bankruptcy process should begin long before an individual actually files his or her bankruptcy petition with the court. For most individuals, the bankruptcy process really begins during the information-gathering period.

Talk with the Right People Before Choosing Bankruptcy

Like the Mets, those considering personal bankruptcy can and should consult with knowledgeable sources before deciding whether or not to file a petition with the bankruptcy court. Individuals have a few choices about whom to speak to:

  • A credit counselor: Many credit counseling organizations provide free or low-cost financial evaluations for consumers in need of guidance about whether or not to file for bankruptcy. Credit counselors run by community groups often charge little or nothing for leading consumers through a non-bankruptcy debt elimination process. And if you do decide to seek bankruptcy protection, the court requires a pre-filing credit counseling session anyway.
  • A bankruptcy lawyer: Most bankruptcy lawyers offer free initial consultations during which they can help clients determine whether filing for bankruptcy makes sense financially. After that consultation, the client can move forward with bankruptcy or a bankruptcy alternative confident that his or her decision will work in his or her own best interest.
  • An accountant: Those who work with an accountant or tax preparer regularly may find consulting with this person useful as part of the bankruptcy-consideration process. Small business owners may be best served by an accountant’s opinion.

The Importance of A Well-Informed Bankruptcy Decision

Filing for bankruptcy is a major financial step in anyone’s life, and should not be undertaken lightly. Further, waiting until the last possible minute to file for bankruptcy can have detrimental effects on an individual’s or family’s finances.

By starting the bankruptcy process well ahead of actually filing a bankruptcy petition, individuals set themselves up for a less stressful (and potentially more successful) bankruptcy process. For many Americans struggling with debt burdens, consulting a financial or bankruptcy professional is the first step in making a decision about bankruptcy.

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Without Bankruptcy Option, Are Student Loans Predatory?

January 6, 2012 By

A recent article on Forbes.com lashes out against the state of student lending and student debt in the United States. The author makes several salient points regarding the problems surrounding student debt, which cripples many graduates largely because it is very difficult to discharge in bankruptcy.

But what makes a loan “predatory?” The nation conspicuously lacks a legal or official definition for “predatory lending,” but the Forbes article cites many attributes of student loans that suggest they might fall into this category. These include:

  • Student loans do not come with “free-market consumer protections.” Student loans cannot easily be discharged in bankruptcy (compared to other unsecured loans); borrowers do not have the option to restructure their student loans; and these loans come with no real statute of limitations in most cases. Lacking these protections, borrowers are more or less bound for life to repay any money they borrow for their education.
  • The organizations that are meant to oversee student lenders (called “guarantors”) make roughly 60 percent of their revenue from fees and penalties associated with loans that have gone into default. In other words, the groups intended to protect borrowers from lender abuse actually have a financial interest in borrowers not being able to repay their loans as outlined in their loan terms.
  • Student lenders have broader debt collection rights than other types of lenders. This means that they have a better chance of collecting some or all of the money owed to them (including money owed as part of penalties and fees).

Comparing Other Types of Predatory Loans to Student Loans

To refresh your memory about problematic predatory lending that has made headlines in recent months and years in the U.S., here’s a quick outline of how two different types of predatory loans were outed and then blasted by pretty much every consumer advocate in the country.

  • Subprime mortgages: These fueled the housing bubble (and bust), and essentially amounted to lending money to people who had no real chance of repaying it. One of the hallmarks of many subprime mortgages issued was that those in the lending, loan servicing, and investment fields had financial incentives for the loans to fail. In other words, these people stood to make money when borrowers defaulted on their loans, because of late fees and other penalties (sound familiar?).
  • Payday loans: The target of several pieces of legislation in recent years, payday loans are profitable to the lenders exactly because borrowers are not expected to be able to repay them as originally agreed. Payday loans become most lucrative when borrowers must pay late fees and penalties—meaning, of course, that they were designed to extend money to those who did not have a good chance of repaying it.

Congress has made some noise about reforming the student loan industry, but as of now, no real, meaningful changes have been implemented.

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Bankruptcy Courts Turn to Online Chats to Guide Users

January 4, 2012 By

A new trend in the Southwest suggests that the country’s bankruptcy courts are finally taking advantage of technology that many other industries have already adopted: online chat forums. Sources note that bankruptcy courts in Arizona, New Mexico and Nevada have all started dabbling in online contact for court users.

As many other companies have discovered, offering online chat forums provides consumers with a convenient way to get information about the nuts and bolts of bankruptcy law.

Help for Real Estate and Bankruptcy Lawyers

One interesting element of the new trend, according to sources, is that some of the first to take advantage of the online chat forums have been real estate lawyers who have expanded their practices to represent clients interested in filing for bankruptcy.

Likely a result of the implosion of the housing bubble (which hit especially hard in the Southwest), many real estate lawyers have apparently seen bankruptcy proceedings become a much larger part of their clients’ daily needs. This can be attributed to the fact that Chapter 13 bankruptcy can be used as a means of halting or delaying mortgage foreclosure.

But because most real estate lawyers lack the training and experience in bankruptcy laws and bankruptcy court proceedings, they have more questions about navigating the bankruptcy court system than traditional bankruptcy lawyers do, it seems.

Enter the online chat forums.

Online Forums Available to Bankruptcy Filers, Too

In addition to providing pointers to lawyers representing bankruptcy filers, the bankruptcy courts with online chat forums also offer valuable services to individual bankruptcy filers interested in learning more about the process or nitty-gritty details of filing a bankruptcy case.

Those interested in filing for personal bankruptcy can use the online chat system to:

  • Ask for direction about where to find necessary forms or schedules for filing a bankruptcy case;
  • Clarify parts of the Bankruptcy Code that they cannot decipher for themselves;
  • Learn about deadlines, procedures, and requirements of the bankruptcy court; and
  • Get general information about how bankruptcy works and what they can do to prepare for bankruptcy or recover from a bankruptcy filing.

The Internet as a Bankruptcy Tool

Since the Internet went mainstream, potential bankruptcy filers have used it to research the bankruptcy process and potential effects of filing for bankruptcy on their financial lives. The introduction of a venue where filers can get their questions answered directly marks a natural progression toward more and more consumer-oriented online offerings.

At present, the online chat forums are only available for filers in a few states; however, if their success continues to grow, other areas of the country may introduce similar tools for filers and potential filers.

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Involuntary Bankruptcy: How It Works

December 30, 2011 By

Mamtek, a company based in Moberly, Missouri, is currently facing the potential of a forced Chapter 7 bankruptcy filing by five of its creditors. The situation involves Mamtek, which manufactures an artificial sweetener, and its plans to open a plant in Moberly.

According to sources, the case has unfolded like this:

  • Mamtek planned to build a factory in Moberly. To finance the construction, the city of Moberly issued bonds worth $39 million to the company.
  • Missouri-based UMB Bank reportedly agreed to serve as trustee for the bonds, meaning that it financed the city’s agreement with Mamtek.
  • This fall, Mamtek missed a payment to the city of Moberly, and indicated that it could not afford to complete the half-built factory.
  • Without payments from Mamtek, Moberly indicated that it would default on the bonds, leaving the bank on the hook for tens of millions of dollars.
  • The bank, along with other creditors (mainly construction-related companies) took the case to the court system, urging the bankruptcy judge to force Mamtek into bankruptcy so they could recover their money.

If the judge rules in favor of the creditors, Mamtek will have to sell its assets and distribute the profits among its creditors to compensate them for the money Mamtek owes them. If the judge does not rule for the involuntary Chapter 7 bankruptcy, Mamtek may be able to abandon its building and the creditors could lose a significant portion of their investment.

Involuntary Bankruptcy for Individuals

Involuntary bankruptcy is also possible for individuals – that is, a person’s creditors can theoretically get together and attempt to force a person into bankruptcy in order to recover some of their money.

However, in the case of individuals, forced bankruptcy is fairly rare. This is partly because it requires creditors to act together and agree to request a forced bankruptcy, and partly because most people who need bankruptcy protection often do not have sufficiently valuable assets to make a liquidation and creditor distribution worthwhile.

Further, in order for the involuntary bankruptcy of an individual to be legal, certain conditions must be met:

  • For a single creditor to force involuntary bankruptcy, creditors must be unsecured, fewer than 12 in number, and owed at least $5,000 by the debtor.
  • If a debtor has 12 or more creditors, at least three of them must join together to file the involuntary bankruptcy petition.
  • Creditors can force an individual into Chapter 7 bankruptcy (and possibly Chapter 11), but not into Chapter 13 bankruptcy.
  • Debtors have a chance to answer the involuntary bankruptcy petition in court.

It’s important to know that a creditor’s involuntary bankruptcy petition for a debtor does not guarantee that the court will agree to push the debtor into bankruptcy. If you have received notice that creditors are attempting to force you to file for bankruptcy, it’s a good idea to speak with a bankruptcy lawyer about your options.

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How the MF Global Bankruptcy Is Affecting Charities

December 28, 2011 By

Since MF Global filed for bankruptcy protection at the end of October, much of the media attention has been focused on the scandal of the $1.2 billion in investor money that the firm cannot account for. That money, which reportedly belongs to about 38,000 investors, may have been used for MF Global’s own (questionable) investments in European debt.

But now, as the end-of-year charity giving season is in its final throes, another kind of fallout from the MF Global bankruptcy is coming to light: its effect on charity donations. According to sources, the country’s eighth-largest bankruptcy is likely to affect charity giving in a number of ways:

  • Individual donors who invested with MF Global and lost money (when the firm misplaced those funds) may be less likely to contribute to charities than they were in recent years. Because many smaller investors lost significant amounts of money (relative to their total net worth), tens of thousands of potential charity donations might have been wiped out by MF Global’s collapse.
  • Corporate charity organized by the CME Group will likely not occur. In years past, sources note, the CME Group kept a trust (called the CME Trust) of $50 million to compensate investors who were unfortunately hooked into (and who lost money by) fraudulent investment schemes. In the past, most of that money got donated to charities at year’s end; this year, however, the entire trust went toward compensation of MF Global investors who lost money.
  • Some charities invested money with MF Global. In addition to the individual clients who lost money, organizations (including nonprofits and charities) put their money with this firm, as it was meant to be a relatively safe investment option. Now the firm’s bankruptcy will translate to a direct loss of funds for charity investors.

Investors & Charitable Grants

It’s no secret that the wealthiest citizens of the U.S. are often the ones behind major charitable grants and donations. But few news sources have discussed the potential effect a major bankruptcy like MF Global’s, which includes debts of more than $39 billion, is likely to have on charitable organizations this year.

What is perhaps even more troubling is that this blow to charities comes during a time when individual donors have cut back on charitable contributions because of unemployment and reduced wages. Naturally, the persistently tough economy also means that more Americans than ever are in need of the support that charitable organizations traditionally offer.

In recent years, the CME Trust donated millions of dollars to Chicago-area educational institutions, including universities, charter schools, and organizations that fund education in the city. Without such donations, those and other groups could face significant financial difficulties in 2012.

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Insider Knowledge of Missing Money in MF Global’s Bankruptcy

December 21, 2011 By

Reports from the Christian Science Monitor indicate that former New Jersey Governor and CEO of MF Global Jon Corzine may have known about the use of client money in a loan to one of the company’s European partners.

The report is just the latest in the saga in MF Global’s bankruptcy case, which it filed on October 31, 2011. At the time of the filing, Corzine allegedly claimed that he had been unaware of the missing customer money until the day before the firm entered bankruptcy protection.

The new information (from sources including an executive from the Chicago Mercantile Exchange (CME)), however, suggests that Corzine might have known about the misuse of client funds much earlier. Given the questionable circumstances surrounding the case, Corzine and others involved could face criminal charges for their involvement in the trades.

Brokerage Firms, Client Money, and Bankruptcy

So what does the disappearance of $1.2 billion in client money mean? Here’s a breakdown of how MF Global operated and what the various facets of its bankruptcy might mean:

  • MF Global, before its bankruptcy filing, was a brokerage firm. It traded client money (as well as its own funds) on CME exchanges.
  • During his tenure as CEO (March 2010 to November 2011), Corzine attempted to convert MF Global into a full investment bank. As such, the company would have been able to engage in more types of financial transactions. As a brokerage firm, MF Global only managed transactions between buyers and sellers of various derivatives. In theory, the company might have been able to pull in greater profits as an investment bank.
  • Legally, brokerage firms and other investment institutions are not permitted to use client money for company expenses. In other words, MF Global could invest its own funds but could not dip into client accounts—for precisely the reason that a bad bet could translate to the disappearance of such money.
  • MF Global apparently broke that rule (and possibly the law), by investing client funds in questionable places.
  • Because of heavy losses linked to investments in European debt, MF Global filed for bankruptcy protection in late October. As its financial standing became a matter of public record, it became clear that the firm lost client money on ill-advised investments.

At present, it isn’t clear how the bankruptcy judge and trustee overseeing the MF Global case will handle the problem of the missing funds. In this situation, clients who invested with MF Global are among the firm’s bankruptcy creditors and as such will lose money if MF Global’s debts are discharged by the bankruptcy court.

The bankruptcy court will rule on how money will change hands regarding this incident. If investigators have reason to believe that insiders at MF Global broke the law (in addition to the rules that regulate brokerage firms), the Justice Department may try Corzine and others in criminal court.

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