New unhappy decision in chapter 13 cases

 In In re Goetz, 2024 WL 998765 (8th Cir. Mar. 8, 2024), the Eighth Circuit Court of Appeals gave bankruptcy 13 debtors reason to be concerned about conversions from chapter 13 to chapter 7.

On August 19, 2020, the debtor Machele Goetz (“Debtor”) filed a chapter 13 bankruptcy petition and plan. At that time, she owned a residence worth $130,000 and claimed the full $15,000 homestead exemption under Missouri law. The lender held a roughly $107,000 lien against the residence. Liquidation of the residence on the date of the petition would have resulted in no recovery for the bankruptcy estate.

On April 5, 2022, Debtor converted her case from chapter 13 to chapter 7. Between the chapter 13 filing and the date of the conversion order, Debtor’s residence had increased in value by $75,000. Liquidation of the residence on the date of conversion would have resulted in a recovery of roughly $62,000 for the bankruptcy estate. 

The Bankruptcy Court for the Western District of Missouri held that, pursuant to 11 U.S.C. § 348(f)(1)(A) and § 541, the post-petition, pre-conversion increase in equity in Debtor’s residence became property of her converted bankruptcy estate. The Bankruptcy Appellate Panel for the Eighth Circuit affirmed and Debtor appealed.

In affirming, the Eighth Circuit Court of Appeals (“Eighth Circuit”) looked to the text of § 348(f)(1)(A) that states, for a chapter 13 case converted to chapter 7, the “property of the estate in the converted case shall consist of property of the estate, as of the date of filing of the petition, that remains in the possession of or is under the control of the debtor on the date of conversion.” The  Eighth Circuit held that the post-petition, pre-conversion increase in Debtor’s equity was property of the converted estate, as proceeds “from property of the estate” under § 541(a)(6), and Debtor had effective control of the equity because she still possessed her residence on the date of conversion. 

In Minnesota, the state homestead exemption is significantly higher than the Missouri homestead exemption. As such, for a case converted from chapter 13 to chapter 7, the Goetz decision may have little impact for a post-petition, pre-conversion increase in equity in a debtor’s residence protected by the Minnesota homestead exemption; however, the decision could impact a post-petition, pre-conversion increase in equity in non-exempt property of the estate. 

What paperwork is needed to file bankruptcy?

Before I can file a bankruptcy, I need an amazing/annoying amount of paperwork.  WE CAN MEET AND TALK BEFORE YOU BRING ALL OF THIS, but I will eventually need the following to prepare the case:

Paystubs covering the seven months before we meet

A record of non-paystub income by month for the seven months before we meet (for example, Social Security, VA payments, side jobs)

Tax return for the tax year just ended (when prepared)

Tax return for the prior tax year 

Bank statements for each account for the last six months 

Divorce decree, if applicable

Address and phone number of DSO (support or alimony) obligee if applicable

Legal description of any land you own or are buying or have an interest in (copy of deed)

Mortgage statement for any mortgage against your land.

Appraisal, if you have one

Credit Counseling certificate if already done

Copies of titles for car/boat/etc.

Bills (or copies of bills)

A monthly budget showing how you spend your money (but not deducting payments on credit cards we are going to get rid of )

Monthly car loan statement or coupon book (if applicable)

Most recent 401K / 403(B) / IRA statements  

A statement showing any life insurance policies that have cash surrender value

Driver's license or other government picture identification

Social Security card, or W-2 or 1099 with your full Social Security number on it

If  you are being sued, a copy of the complaint.

Even if you have lost or don't have some of these items, there's often a way to get the information. 

Getting this information helps both of us to understand your financial situation and make some plans about what to do.

Again, we can discuss your situation in general terms without all of the above, but it is more productive to have it in hand when we meet.

Feel free to call me at:  320-252-44373

Who will know about my bankruptcy?

 People often ask me who will know about their bankruptcy filing.

Just like most court proceedings, a bankruptcy filing is technically "public information".  However, being public information does not mean that it is "publicized".

When we filing bankruptcy, we put together what amounts to a mailing list and file that with the court.  The court system then sends a notice by mail or electronically to those who are listed on the mailing list.  And the credit bureaus (Experian, Transunion, Equifax) will pick up the filing and include it in a credit report (for up to ten years after filing). 

If you look at the "legal notices" section of your local newspaper, you will see mortgage foreclosures, and probate notices and certificates of assumed name, among other notices.  Those are there because a statute requires that information to be  published at the expense of the person or company placing the notice.  But no one pays the newspaper to publish a bankruptcy notice, so those notices are NOT published in the local paper. If you look in the notices of, for instance, the Sauk Rapids Herald, you will not see any bankruptcy notices.

On Mondays the Star Tribune and Pioneer Press publish a list of bankruptcies, but the list is only for those who look like businesses.  For instance "Doug Peterson, d/b/a Doug's Auto Body" might be listed.  But it is very unlikely that the Star Tribute and Pioneer Press would list just "Doug Peterson".  There are specialist newspapers, such as Finance and Commerce, in the Metro area, that list bankruptcies.  And for some reason the Duluth News Tribune seems to publish filing information for cases which are filed in Duluth.  But other than those, I am not aware of any Minnesota newspaper that publishes bankruptcy notices. 

If someone subscribes to the PACER system they can look up a case, but they have to be a subscriber and they have to pay a fee to do so (if the lookups exceed a certain amount per calendar quarter) and they have to look for your case specifically.

Also, a bankruptcy is in the federal court system, not the state court system.  Nothing will be automatically filed in the courthouse in the county in which you live (St. Cloud for Stearns County, Foley for Benton County, etc.).  So anyone looking in your local courthouse will not learn of your bankruptcy filing from those records, unless there was a specific reason to file a bankruptcy notice in a specific case.

I hope this eases your concern about how public your "public record" would be.

As always, if you have questions, feel free to call me at  320-252-4473.

They filed bankruptcy? (Baseball edition)

We are a little more than halfway through the baseball season.  We can hope the Twins make it to the playoffs AND that they don't have to face the Yankees.

Nowadays major league baseball players make a lot of money.  The minimum salary is $720,000 in 2023;  players like Byron Buxton and Carlos Correa make much, much more.

But baseball players are just people;  and like all people they can, and sometimes do, get into financial difficulty.

The following well-known players have filed bankruptcy:

Tony Gwynn (Padres), chapter 7, 1987

Lenny Dykstra (Mets and Phillies), chapter 11, 2009

Jack Clark (Giants, Cardinals, others), chapter 7, 2018

Gaylord Perry (Giants, seven other teams), chapter 7, 1986

Graig Nettles (Yankees, Twins, four other teams), chapter 11, 1988,

Rollie Fingers (As, Padres, Brewers), chapter 7, 1989

Jose Canseco (As, six other teams), chapter 7, 2012.

I hope you're not in financial trouble.  But if you are, just like the baseball players listed above, bankruptcy may help you through a  tough spot..  Feel free to call me at 320-252-4473.

About credit cards

 Long ago I wrote the following post:  

Clients often ask if they should stop paying their credit card bills before we file their bankruptcy case.

There are at least two issues.  The case to continue payments is that there is an argument that the more "lates" you have on your credit report, the lower your credit score will be. 

The counter argument is that if you need to file bankruptcy, you need to be saving your money to, for instance, catch up your home mortgage payments.  Money paid to the credit card company is gone and you are not going to get it back.

There is another "legal" issue, which is as follows:  Bankruptcy trustees are on the lookout for payments to unsecured creditors which exceed $600 per creditor in the 90 days before the case was filed (one year for 'insiders'-- basically, people who are relatives or close friends.)  The reason is that such a payment may be a "preference".  I usually say that there is nothing immoral, illegal or fattening about a preference, but the point from the trustee's standpoint is that he or she can recover the preferential payments and earn a commission for doing so.

So, you don't get the money back and the company you paid doesn't get to keep the money. Sort of a lose-lose proposition.

So, I think as a general matter, once you have decided that you have to file bankruptcy, stop paying the credit cards.

A related question is whether any of your credit cards will still be usable after your case is filed.  My thought is that you should expect your cards to be closed.  Many card companies subscribe to services such as AACER which every day access the bankruptcy court website to see if Social Security number such-and-such filed bankruptcy that day.  AACER then notifies the card company about that filing so that the card company can match that Social Security number to their account number.  Once they match your Social Security number to their account number, they can close your account.

As usual, there are exceptions to every rule;  be sure to ask about your specific question by calling me at 320-252-4473.

About "living wills"

 A while ago I came across a very short and simple "living will" published by the Twin Cities Medical Society.  "Living will" is an older term;  we call it "advance directive" or "health care directive" now.  

An advance directive is defined as:  Advance directives are legal documents that provide instructions for medical care and only go into effect if you cannot communicate your own wishes.

The Twin Cities Medical Society has now transferred its work on advance directives to a group called "Light the Legacy".  The address for that is https://www.lightthelegacy.org and you can download several versions of the advance directive at that site.  One of the versions is very simple:  You fill in your name, birth date, the name and relationship and phone number of the person you want to talk for yourself;  and then you sign the form and have your signature notarized or witnessed.  The form is literally one side of one sheet of paper, with instructions and suggestions on the back.  There are versions in English, Somali, Vietnamese, Chinese, Hmong, Russian and Spanish

The site includes a longer, eight-page version if you are willing to go into more detail about your wishes and hopes.

If you come to my office I will give you the short form -- free!  

I am also looking into a video version of a health care directive through an organization called Mideo.  Their website is:  https://mideohealth.com/ "Their website says:  MIDEO® is created via a facilitated medical evaluation with a licensed medical provider. From that evaluation a medical prescription for your care is created. It is then recorded and placed in our secure servers. We utilize ID cards called MIDEO ID cards and ask that they be kept with your insurance Cards and drivers license in your wallet or purse. You also receive a MIDEO Magnet for your refrigerator as we often train paramedics to look on the side of your refrigerator for your living will or advance directive."

There is apparently a cost, which may be covered by health insurance or Medicare.

I encourage you to at least have a paper short-form health care directive as part of your planning process.

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