Prenda Law Attorney's Case Converted

A Minnesota attorney named Paul Hansmeier was "sort of famous" for being involved in a set of cases often called the Prenda Law cases.  The gist of those cases was that the Prenda Law Firm would threaten to sue person "X" for downloading copyrighted pornography, but would settle the case for a few thousand dollars.

According to that infallible resource, Wikipedia:

In the 2013 civil ruling, Prenda Law, and three named principals, John Steele, Paul Hansmeier, and Paul Duffy, were found to have undertaken vexatious litigation,^{[4]:FOF.5 p.4} identity theft,^{[4]:FOF.9 p.5} misrepresentation and calculated deception (including "fraudulent signature"),^{[4]:FOF.6 p.4, FOF.9–11 p.5, p.6–8} professional misconduct and to have shown moral turpitude.^[4]:p.10 The principals were also deemed to have founded and been the de facto owners and officers of the shell company plaintiff and their alleged "client", created in order to "give an appearance of legitimacy".^{[4]
(accessed by me on Dec. 5, 2015).}

Mr. Hansmeier was ordered to pay a lot of financial sanctions on account of those cases. There are a lot more interesting facts, including that he recently started suing businesses here in Minnesota for violations of disability access laws.  This year he filed a chapter 13 bankruptcy here in Minnesota and promptly ran into a buzzsaw.  The United States Trustee (a part of the Department of Justice) brought a motion to convert his case to a chapter 7.  Their motion says, in part:

For the reasons stated in the motion to convert, the United States Trustee believes that the debtor’s chapter 13 plan cannot be confirmed. Specifically,it appears thatthe proposed plan does not comply with § 1322(a)(1),pays unsecured creditors an amount that is less than the amount that would be paid if the debtor’s estate was liquidated in chapter 7, was not proposed in good faith under 11U.S.C.§1325(a)(3), and the debtor does not have an ability to make payments under 11 U.S.C. § 1325(a)(6). In addition, the petition was not filed in good faith under 11 U.S.C.§1325(a)(7).

This week Judge Kathleen Sanberg granted the motion and converted the case to a chapter 7.  The case will play out in the bankruptcy court (case number 15:42460) and we will see what happens to Mr. Hansmeier. 

New Forms Coming

My staff and I spent an hour today with a webinar about the new and "improved" Official Forms which we will be required to use starting December 1, 2015.

The forms have much of the same information, but they are arranged differently and named differently.  There will be a steep learning curve when we are required to file new cases with these forms.

Some of the changes make sense -- for instance, now that same-sex marriage is legal, the terms are "spouse 1" and "spouse 2".  Some of the changes don't make sense -- for instance, instead of listing the collection agency which is trying to collect for Discover Card immediately after Discover Card, the collection agency gets listed on a different page!

Anyway, these changes are not the end of the world, but expect trustee meetings to take longer for a few months while we get used to these changed forms.

Ask your mom!

On four different times in the last few months, I have come across the following situation.  Fortunately, only one of these was originally my own client;  another person's lawyer was no longer practicing, so I helped that person out, although could not protect all of the value in question;  two other cases are being handled by different lawyers, and I am waiting to  see how those cases are handled.
 
The situation is this:  Mom "adds" her children's names to her house.  She does this by signing and recording a deed, listing herself as a "life tenant" and her children's names as "remaindermen".  What this means is that Mom can use the house as long as she is alive.  When she dies, her interest ends, and the children own the house.

There is a state law problem with this, which is that since 2003, if Mom was getting Medical Assistance, the State of Minnesota will pretend that Mom did not die, and assess a recovery amount against the home, up to the amount that the State paid on Mom's behalf.  The recovery amount is based off a chart published by the Minnesota Department of Human Services, found in Section 0015.58 of the Combined Manual.   The chart says, for example, that if Mom is age 75 when she passes way, that her interest in the house is about 52%. That's bad enough, of course.

But, the bankruptcy problem is this:  If Mom put your name "on the house" before you filed bankruptcy, you had an ownership interest in that house when you filed bankruptcy.  Filing bankruptcy requires you to list all of your assets, not just the ones you feel like listing. When Mom passes away and the family goes to sell the house, the title company will likely do a bankruptcy search against each owner of the house. When the title company finds a bankruptcy against one of the owners of the house (one of Mom's children), the title company for bankruptcy clearance -- basically, proof that you listed the property in your bankruptcy papers and that you claimed it exempt or that the case trustee released the property back to you ("abandoned it").  But if you do not list an asset in your bankruptcy papers, it is never "abandoned" by your bankruptcy trustee and it is never exempted.

So, now, when this comes to light years after your bankruptcy, you must reopen the case.  There is a fee for that paid to the Clerk of Court.  Then there are likely attorneys fees to be paid.  Then you must try to claim your interest in the house as exempt.  But the value now may be much more than it was worth back when your filed bankruptcy.  So you may not be able to claim all of your interest in the  house as exempt.  Which may mean that the trustee gets cut in for a piece of the action now, even though you could have protected the entire interest if you had listed it when you filed!

So the moral of the story is:  Ask Mom if she has done any estate planning and if she has put any assets into your name.  If you know before you filed bankruptcy, you can have a plan.  If you don't know, you may be caught by surprise and may lose part (or all) of an asset that you could have protected if you had known about it.  

It may be embarrassing to ask Mom now, but a little embarrassment now can protect thousands of dollars of equity in the future.

Lien Stripping Still Possible Despite Supreme Court Case

You may have seen this headline in today's news:

"Supreme Court says homeowners underwater on loans can't void second mortgage in bankruptcy"

HOWEVER, this decision was issued in a Chapter 7 case.  The case is entitled: Bank of America N. A. v.. Caulkett, and was issued June 1, 2015.

The Supreme Court syllabus (synopis) says:

A debtor in a Chapter 7 bankruptcy proceeding may not void a junior mortgage lien under §506(d) when the debt owed on a senior mortgage lien exceeds the current value of the collateral if the creditor’s claim is both secured by a lien and allowed under §502 of theBankruptcy Code. 
 
The Minnesota Bankruptcy Judges have never, as far a I know, allowed a person to strip an underwater second mortgage in a chapter 7.  

However, the rules of the game in Chapter 13 are different.  The courts have been allowing persons in a chapter 13 to strip a second mortgage, and since the Caulkett case was not a chapter 13, it is my hope and belief that lien stripping is still available in a chapter 13 case.

Pending legislation

     People who have to file bankruptcy often have judgments against them from before their bankruptcy case was filed.  Bankruptcy discharges the personal obligation, but  does not remove the judgment from the state court recrods.
     Minn. Stat. 548.181 provides a simple mechanism to remove pre-bankruptcy judgments from the state court records.  The statute states that there is a $5 fee payable to the court administrator for each judgment.
     Unfortunately, in the last year or so court administration has been requiring the payment of a full filing fee -- $324.00 in Stearns County -- to discharge judgments.  The theory is that the application to discharge judgment is the "first paper filed in an action", and that you must pay the full filing fee in order to "file the first paper in an action".
     There is a bill in the Minnesota Legislature that would change this result, by providing that "This paragraph does not apply to the filing of 1.17 an Application for Discharge of Judgment. An Application for Discharge of Judgment filed by a party shall not be considered a first paper filed in an action."
     The bill in the House is called HF 652;  the companion bill in the Senate is called SF 999.
     I hope our legislators will pass this bill this Spring.

Lien Stripping Case At Supreme Court

The United States Supreme Court may give us an answer to the following question:  If you have a home with a first mortgage that exceeds the value of the home, can you use a Chapter 7 bankruptcy to "strip off" a second mortgage?

Most of the judicial circuits around the country do not permit this in a Chapter 7, although most cases DO permit a person to do this in a Chapter 13 payment plan bankruptcy.

The case pending at the US Supreme Court is entitled "Bank of America, N.A., v. Caulkett" and comes out of the 11th Circuit.

The Caulkett case is linked with another case, Bank of America N.A., v. Toledo-Cardona. 



The Caulkett case is 13-1421.  The Toledo- Cardona case is No. 14-163.

This link should lead you to the 11th Circuit decision in the Caulkett case:

 https://cases.justia.com/federal/appellate-courts/ca11/14-10803/14-10803-2014-05-21.pdf 

The decisions are very brief, and basically hold that the 11th Circuit cases of McNeal and Folendore hold that this can be done in a Chapter 7.  Those case are: Folendore v. U.S.Small Bus. Admin., 862 F.2d 1537, 1538-39 (11th Cir. 1989) and McNeal v. GMAC Mortg., LLC, 735 F.3d 1263, 1265–66 (11th Cir. 2012) (percuriam).

This does not sound all that exciting, until you realize that being able to strip an underwater second mortgage in a Chapter 7 would tremendously help homeowners in that situation.  Many people could handle their first mortgage payments, but cannot pay both their first mortgage and their second mortgage.

The decision will be big news in the bankruptcy world when it is announced.  I will certainly post when the decision comes out.