Are you tired of receiving phone calls from creditors?   Luckily, there is a way out.  You can stop all creditor phone calls by filing either Chapter 13 or Chapter 7 bankruptcy in Las Vegas, Nevada.  When you file bankruptcy a protective umbrella called the automatic stay is triggered, which protects the debtor against the continuance of any action by any creditor against you or your property.  With the protection of the automatic stay, creditors must stop all collection efforts against you.  Harassing phone calls are included in this category.  Any creditor that ignores the automatic stay subjects themselves to possible sanctions by the bankruptcy court.

I have a client from Las Vegas, Nevada and he told me that a creditor, which was a collection agency, kept calling him at work.  My client responded by telling the creditor to stop calling at work or he will get fired.  The creditor continued to call him at work, and he finally came to see me to discuss bankruptcy.  I told him Chapter 13 and Chapter 7 bankruptcy stops these types of calls.

If a creditor calls one of my client after he filed bankruptcy I always recommend that the debtor give the creditor his case number, the date the case was filed and let the creditor know you have a Las Vegas Bankruptcy Attorney and provide my name.  If this creditor calls again the debtor should ask the creditor for permission to record the conversation so that your Las Vegas Bankruptcy Attorney can use the recording against the creditor when he seeks damages in court for violating the automatic stay that went into effect as soon as your case was filed.

Randy M. Creighton, Esq. Las Vegas Bankruptcy Attorney

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According to new statistics released by RealtTrac the number of foreclosure filings nationally climbed over 4% in the month of August in comparison to July.  A foreclosure filing includes a default notice, notice of trustee sale and the actual sale of the subject property.  Thus, a property will have at least three foreclosure filings before it is officially foreclosed.

Not surprisingly, Nevada continues to hold the dubious honor of having the highest foreclosure rate, a trophy this state has held for 43 consecutive months.  In Nevada one in every 82 housing units received a foreclosure filing in July.  July saw nearly a 7% increase from the previous month in foreclosure filings with a total of 13,727. 

There is some good news though; July 2010 saw a 30 percent decrease in foreclosure filings from July 2009.  Further, July 2010 was the 10th consecutive month that the number of foreclosure filings in Nevada decreased.  These factors are pointing to a stabilization of the housing market.

The reasons for decreased foreclosure filings include many homeowners avoiding foreclosure via either a short sale or bankruptcy.

In a short sale the lender voluntarily agrees to accept less than what is owed on the promissory note.  Further, in some instances, the lender will even forgive any deficiency that may result from the short sale.  A deficiency is the difference between the sale price and the outstanding amount due and owing on the promissory note.  This release of deficiency is especially important in Nevada as Nevada is a recourse state, and without the deficiency release, the lender will have six (6) years from the date of the closing of the short sale to pursue the homeowner for the deficiency.

In a Chapter 7 bankruptcy an individual can erase all of the debt associated with the home as well as any unsecured debt, such as credit cards.

In a Chapter 13 bankruptcy an individual may be able to keep her home while also stripping, or in lay terms, removing the second lien from the property.  Also, in a Chapter 13 all unsecured debt will be extinguished.

Randy M. Creighton is an experienced Las Vegas Bankruptcy attorney and has helped countless individuals decide whether to short sale or file bankruptcy.  If you are contemplating a bankruptcy and/or short sale, he can assist and navigate you through the entire process.

The answer is yes and no.  Yes, a creditor can garnish your paycheck but only after they have gone through the necessary legal steps to do so.

Here is the process a creditor must go through to garnish your wages.  First, the creditor must file a lawsuit against you.  You then have to be served with the lawsuit and you will at that time be able to defend yourself.  If you lose, either after you defend yourself or just don’t file an answer, the creditor will ask the Court and receive a judgment against you.  After the creditor has received the judgment he can petition the Court for a writ of garnishment of your paycheck. The Court generally signs this writ (another word for an Order) when the creditor files it. The Writ of Garnishment is then sent to your employer (and the creditor may or may not know who the employer is).

When the employer gets the writ of garnishment, they are bound by the Court’s Order to withhold money from your paycheck and send it to the creditor. Nevada law protects 75% of your wages in order to leave you enough money for the necessities of life, but needless to say you will be left with very little to survive.

In the end, the wage garnishment process can take months to pan out.  Thus, if a creditor/collection agency has told you that they will garnish tomorrow if you don’t pay today, and you haven’t been served with a lawsuit/there is no judgment existing, then you may have an excellent case to sue the creditor for violations of your state and/or federal debt collection laws.

If however a creditor has gone through the necessary steps and properly obtained a wage garnishment order all is not lost.  Bankruptcy will immediately stop all wage garnishment orders and allow you a fresh start.  So, if you are served with a wage garnishment I highly recommend you seek.

I keep several credit cards, however, I try to never keep a balance to avoid any and all finance charges.  However, many people don’t have the discipline to pay off their credit cards every month and as such fall into credit card debt.  Who knew that a little piece of plastic we call a credit card could cause so much havoc on your finances.

So what types of excuses have we used in order for us to fool ourselves into using that credit card, just once more? Here is a short list of ten common excuses for unplanned charges on our credit cards:

1. There is a bargain you just can’t turn down.

You are at Best Buy and the TV you have always been dreaming of is on sale.  You think to yourself that you are in the right place at the right time.  As you begin to think about whether you can buy the TV and whether it was in your budget a sales person approaches you with the kicker, 0% interest for 12 months.  But you really have to think, do you really need this item now and are you really saving enough to justify this spontaneous purchase?

2. The rewards from credit card purchases are worth it.

I try and only use credit cards that offer bonus points/cash back from certain purchases such as gas and groceries. I have to tell you, it has been working out great. In the end, you have to remember that there is a reason why credit companies offer these types of reward programs because people usually don’t pay off the entire balance and instead rack up significant interest charges. They want your business and your interest, plain and simple.

In order for you to really capitalize on the rewards is to avoid any and all interest charges by paying off your balance each month. If not, you’re falling into the ‘free’ rewards trap.

3. The 0% introductory rate is big help when making big purchases.

Remember that new shiny TV we talked about earlier.  We both know the TV was not in your budget, well at least the sticker price isn’t.  But if you buy the TV interest free for 12 months your payment will only be $125.00 per month.  You think to yourself that TV is now affordable.  Up front, we say we’ll pay off the balance, but in reality, we get sucked into buying even more until the period is over and you’re stuck with massive finance charges.

The same goes for 0% balance transfers. Sure, some people can avoid paying any interest by transferring credit debt from card to card, but if you forget for any period of time and you’re stuck with more high interest debt. Avoid the 0% interest trap!

4. It’s for an emergency!

So you have an emergency fund, or maybe not, but there comes along a purchase, such as a home repair, that you decide might be best to charge it instead of tapping into your emergency fund. You’d like to keep your emergency fund intact and cheat just this once into charging the expense. It’ll only happen once, right?

5. We’ve been good, so time to treat ourselves.

It’s been a long month on the job and you and the wife are just tired of staying home for the weekend.  Instead, lets go to California for the weekend and enjoy the beaches. Maybe you had that eye on the latest iPhone that Apple released. You’ve worked hard for you money and now it’s time to buy something for yourself. By charging it, you almost taking away a little of the guilt since you don’t see the immediate impact of seeing the funds quickly disappear from the bank account.

Just because you think you deserve it, it doesn’t mean that suddenly you are immune to any finance charges on your credit card you may incur.  The $2,500 trip to California will end up costing you $4,000+.  Budget for your vacations and treats for yourself. 

6. I’ll start paying off my debt next month.

Why waste your fun money by starting to pay off your debt, the debt can wait.  But, while the debt waits the interest charges accumulate.  Every so often you can justify a purchase by saying to yourself that you are going to make changes to your budget to have the additional funds to pay down that debt. Months go by and it never happens. You need to have the attitude to start NOW or you may fall victim to the continuous cycle of credit card debt. It’s time to follow through to the promise you made to yourself to achieve your goals of being debt free.

7. I’m going to get a raise soon.

Let’s be honest with ourselves, you are lucky to have a job let alone be expecting a raise and/or bonus.  In today’s economy bonuses and raises are a thing of the past.  Plus, even if you do get that raise in three months you want to be able to enjoy it THEN and not be paying of credit card debt from months ago.  You work hard and you deserve to splurge your bonus and/or raise but WAIT to get it.

8. This is the last time.

You have your plan of not using your credit cards until you pay off the balance. But wait, before that, I just need to make one more additional purchase. One more purchase won’t hurt, right? Hook, line and sinker; you’ve just avoided following through with your plan of paying off your debt. Next time is always the last time until you cut up your cards for good until your debt is gone.

9. The payments are small.

You see the signs everywhere around you. ‘You can have this TV or computer for only $40 month!’ What the sign won’t tell you is that you could be ending up paying 25% for the TV because of all the finance charges you’ve racked up by paying the minimums each month. If you can’t afford it now, you really shouldn’t consider any of the gimics stores try and lure you in with.

10. It’s only for a small purchase.

You have that time where you don’t have enough cash on you, so you are forced to use your card. Time after time, the small charges will be adding up. If you already had a balance on your card to begin with, you are fighting the uphill battle again by becoming debt free. You don’t want that $6 lunch to turn into a $7 lunch month after month. Try and use cash for small purchases as much as possible, especially if there is no gain in making the credit card purchase.

In the end, credit card debt can do nothing but bad for your financial health.  While the rewards are enticing the risk is too great.  What excuses have you used in order for us to fool ourselves into using that credit card?  Please share!

As I have previously discussed, rarely does a loan modification include a principal reduction.  The typical loan modification only deals with the first mortgage and will only reduce the monthly payment on not the total amount due and owing.  For most Las Vegans this does not make sense because why keep paying on as asset that is completely upside down.

As such, many people turn to Chapter 13 bankruptcy to modify their loans AND reduce the principal balance. In Chapter 13 bankruptcy you can eliminate your second mortgage completely while bringing any missed payments on your first mortgage current over a three or five year period.  In bankruptcy, removing the second lien on a property is called “lien stripping.”  You can lien strip only if the value of your house is LESS than what you owe on your first mortgage.

So, say the value of your home is $175,000 with have a first mortgage of $200,000 and a second mortgage of $150,000, in a Chapter 13 bankruptcy you completely eliminate the second mortgage and only pay on the first mortgage.  Thus, in Chapter 13 bankruptcy you were able to reduce the principal amount of your home by $150,000!!!

Chapter 13 bankruptcy has many other benefits and is some cases can save your home.  If you would like to speak with a qualified bankruptcy attorney who can help you decide if bankruptcy is right for you, and if so, whether Chapter 7 or Chapter 13 bankruptcy is right for you, please contact us.

As a Las Vegan who practices in the areas of bankruptcy and short sales, I understand and appreciate the non-stop barrage of commercials and advertisements from people and companies promising the moon, and more when it comes to loan modifications.  However, with a little bit of research and good old elbow grease you can cut through the junk and find out what is reality.

The majority of loan modifications do not include a principal reduction.  I will repeat in bold. The majority of loan modifications do not include a principal reduction.  If this is your goal, while not impossible, I would prepare for David v. Goliath.

The reality is that the majority of loan modifications come in three different forms: (1) Lender reduces your interest rate to no lower than 2%; (2) Lender increases the term of your loan to thirty (30) or sometimes forty (40) years from the date you sign the agreement; and (3) the Lender MAY forebear on a portion of the principal, or in layman terms the Lender will not charge interest on a portion of your loan but you will owe whatever the forebear amount is at the time you sell the house or at the end of the term of the new loan.  In some cases a Lender may blend these tools to modify your loan.

The goal of any loan modification is to reduce the amount due and owing on the home plus any costs relating to taxes, HOA and insurance to an amount of 31% of your gross income OR to an amount that is affordable to you.

So say for example you have gross income of $6,500/month and your mortgage plus taxes, insurance and HOA is $2,500 month, at an interest rate of 6.25%.  Further, the outstanding principal balance of your loan is $400,000.  In this situation, the Lender must reduce your monthly mortgage payment plus taxes, insurance and HOA to $2,015 ($6,500 X 31%). So, say taxes, insurance and HOA equal $300/month.  Thus, the Lender must be able to change the terms of your loan so that a payment on the principal amount of $400,000 will equal $1,805.  Here, this can be accomplished if the Lender reduces your interest to 3.5% and changes the term length of your loan to be thirty (30) years from today. 

A successful modification is not always the outcome.  Say in the above example the homeowner’s gross income was only $4,200.  As such, the Lender must reduce your monthly mortgage payment plus taxes, insurance and HOA to $1,302($4,200 X 31%).  Again, the taxes, insurance and HOA equal $300/months.  Thus, in this example the Lender must be able to change the terms of your loan so that a payment on the principal amount of $400,000 will equal $1,002.  This is simply not possible without either a principal reduction or forbearance on the principal of the outstanding due and owing and Lenders are very reluctant at allowing either of these options.

All is not lost, Chapter 13 bankruptcy may also be able to reduce or eliminate many of your other debts, INCLUDING eliminating your second lien on your house, freeing up funds to pay your mortgage. This is something that no loan modification can do for you. Chapter 13 can stop a foreclosure and give you up to five years to catch up on the missed payments. Many homeowners are able to catch up their missed payments if they are given the time to do so. Loan modification directly with your mortgage company will normally give a matter of months, not years, to spread out the missed payments.

Your decision should be decided knowing all your options. A good attorney can, and will, freely discuss whether workout is a better option for you.

Bucking the national trend, and not in a good way, Las Vegas homes prices fell in May according to Standard & Poor’s monthly S&P/Case-Shiller Home Price Indices report.  Prices in Las Vegas as tracked by the Standard & Poor’s index fell 0.5 percent from April to May, and in May were off 6.5 percent compared to May 2009.

As for the rest of the country, the report said, home prices in May in the 20 markets tracked by the report rose 1.3 percent from April to May and were up 4.6 percent from May 2009. 

“In May, Las Vegas posted a new index low as measured by the current housing cycle, where it peaked in August 2006,” S&P said in today’s report. “The peak-to-trough figure is -56.4 percent, with that market generally returning any gains it had posted since 2000.”

The Las Vegas housing market has taken quite the beating due to the nations second highest unemployment rate, highest per capita rate of foreclosures, failed short sales and highest per capita rate of bankruptcies.

Even more, the Las Vegas housing market will continue to decline due to the expiration of the first time home buyer credit.  “We need to watch where the housing markets will go after these temporary stimuli go away. June’s existing and new home sales and housing starts data do not show much real improvement in those statistics either. It still looks possible that the housing market might bounce along the bottom for the foreseeable future, before showing any real improvement that will filter through to the rest of the economy,” today’s S&P report said.

New Home Affordable Modification Program (“HAMP”) Loan Modification Guidelines Taking Effect June 1, 2010

The federal government provided new HAMP borrower outreach and communication guidelines for foreclosure actions while a borrower is being evaluated under HAMP.  Furthermore, these guidelines provide additional protection for delinquent borrowers who have filed bankruptcy but would otherwise be eligible for HAMP benefits. For a copy of the full disclosure, see Supplemental Directive 10-02.

Here are some of the key highlights from the directive include:

FORECLOSURE

Additional Foreclosure steps are required:

  • The servicer must evaluate the borrower’s eligibility under HAMP and determine that the borrower is ineligible before referring the borrower to foreclosure (or make “reasonable solicitation efforts”).
  • If foreclosure activity has already been initiated, the foreclosure sale cannot occur until after the servicer has determined the borrower is ineligible under HAMP (or make “reasonable solicitation efforts”).
  • The servicer must give the borrower 30 days to respond to HAMP “Non-Approval Notices” in certain circumstances before conducting the foreclosure sale.
  • The servicer must provide the foreclosure attorney certification in writing that the borrower is ineligible for HAMP before conducting the foreclosure sale.

BANKRUPTCY

  • If the borrower in active Chapter 7 or Chapter 13 bankruptcy (or attorney or bankruptcy trustee) requests, the servicer MUST consider the borrower under HAMP and can no longer decline borrower as a “proper exercise of discretion”.
  • If the borrower has been approved on a trial loan modification and files a Chapter 7 or Chapter 13, the servicer MAY NOT deny the borrower for a permanent modification only because of filing bankruptcy.
  • If a delinquent borrower has a discharged Chapter 7 and chose not to reaffirm the first lien mortgage debt is still eligible under HAMP, with the following provision added to the permanent modification agreement: “I was discharged in a Chapter 7 bankruptcy proceeding subsequent to the execution of the Loan Documents. Based on this representation, Lender agrees that I will not have personal liability on the debt pursuant to this Agreement.”

If you are a homeowner struggling to make your mortgage payment or feel like you’re your lender or servicer has not worked with you on a loan modification, call a bankruptcy

Bankruptcy or Credit Counseling?

Credit counseling is a program designed to help those who are in a state of debt and cannot find a solution to their debt problems. They offer services that will allow to devise a plan that is tailored to your specific needs and goals. Credit counseling agencies do not erase your debt. Instead they work with you to budget money so that you can pay off the debt often times by debt consolidation.

Bankruptcy is very different. It will completely clear your debt in most cases and you will no longer be hassled by collection agencies and their attorneys. There are two kinds of bankruptcy; the one that is right for you will depend on your situation. Chapter 7 bankruptcy is a liquidation proceeding. The debtor turns over all non-exempt property to the bankruptcy trustee who then converts it to cash for distribution to the creditors. However, in almost EVERY case, the debt keeps all of his or her property.  The debtor receives a discharge of all dischargeable debts usually within four months. In the vast majority of cases the debtors have no assets that they would lose so Chapter 7 will give that person a relatively quick “fresh start”.

Chapter 13 Bankruptcy is also known as a reorganization bankruptcy. In Chapter 13, the debtors retain ownership and possession of all of their assets, but must allocate their future income to repaying creditors, generally over a period of three to five years. The amount to repay depends on how much is earned, the amount and types of debt owed, and how much property is owned.

So, which is better, bankruptcy or credit counseling?  In almost every case, bankruptcy is the better option because it erases all of your debt with less strain on your credit.

First, what is the amount of credit card debt versus non-credit card debt.  Credit counseling typically only resolves debts surrounding credit cards.  So, say for example you have only $20,000 in credit card debt but a deficiency judgment from a short sale of $250,000 than bankruptcy, which would eliminate both debts, would be a better choice.

Second, credit counseling is not always better for your credit.  In fact, credit counseling is usually WORSE for your credit.  When you enter into a credit counseling you typically stop paying all of your creditors but instead pay only the credit counseling company.  As such, each credit card company begins reporting your account as delinquent because you are not making a payment to them.  This negative report will continue for the life of your credit counseling plan.  So if your credit counseling plan is scheduled for 48 months you will have 48 months of delinquent payments.  As such, you will have bad credit for at least the life of the plan, if not longer.  To the contrary, bankruptcy is an immediate and substantial hit on your credit but you can begin to repair your credit IMMEDIATELY.

Third, even if you begin and are successfully making payments under a credit counseling plan a creditor may still pursue a judgment against you, and even worse, obtain a wage garnishment.  Therefore, if you make 36 successful payments to a credit counseling company a creditor can still ruin such efforts by filing a lawsuit against you which will lead to bankruptcy in the end.  To the contrary, in bankruptcy, with a few exceptions, all debt is eliminated and a creditor cannot pursue for any amount due and owing.

In the end, whether bankruptcy of credit counseling is better for your will depend on your individual facts and as such you should always consult a professional.

Randy M. Creighton, Esq

credit counseling

1.  Your Income Is Below The Median Income For A Family Of Your Size In Nevada

The  first step in figuring out whether you can file for Chapter 7 bankruptcy is to measure your “current monthly income” against the median income for a family of your size in your state (See Nevada median income). Your “current monthly income” is your average income over the last six months before you file. If your income is less than or equal to the median, you can file for Chapter 7 bankruptcy.

2.  If your income is more than the median, however, you must pass “the means test” in order to file for Chapter 7 bankruptcy.

Use a Chapter 7 Means Test Online Calculator

If you’re looking for an easy way to determine your eligibility under the Chapter 7 means test, use our online means test calculator. Once you enter your zip code, the calculator uses the applicable income and expense standards for your state, county, and region to determine your eligibility.

You’ll have to supply some income and expense information, but the calculator will save you the trouble of looking up income and expense figures for your area and doing the math. And, if you decide to file for Chapter7 bankruptcy, you can use these figures on your official paperwork (the calculator closely follows the format of the means test form, Official Form 22A, that you must complete when you file for bankruptcy).

3.  You Have Not Previously Received A Bankruptcy Discharge Within The Past Eight Years

You cannot file for Chapter 7 bankruptcy if you obtained a discharge of your debts in a Chapter 7 bankruptcy case within the last eight years, or a Chapter 13 case within the last six years.

4.  A Previous Bankruptcy Was Not Dismissed Within the Previous 180 Days

You cannot file for Chapter 7 bankruptcy if a previous Chapter 7 or Chapter 13 case was dismissed within the past 180 days because:

  • you violated a court order
  • the court ruled that your filing was fraudulent or constituted an abuse of the bankruptcy system, or
  • you requested the dismissal after a creditor asked for relief from the automatic stay.

5. You Have Not Defrauded Your Creditors

A bankruptcy court may dismiss your case if it thinks you have tried to cheat your creditors or concealed assets so you can keep them for yourself.

Certain activities are red flags to the courts and trustees. If you have engaged in any of them during the past year, your bankruptcy case may be dismissed. These no-nos include:

  • unloading assets to your friends or relatives to hide them from creditors or from the bankruptcy court
  • running up debts for luxury items when you were clearly broke and had no way to pay them off
  • concealing property or money from your spouse during a divorce proceeding, or
  • lying about your income or debts on a credit application.

In addition, you must sign your bankruptcy papers under “penalty of perjury” swearing that everything in them is true. If you deliberately fail to disclose property, omit material information about your financial affairs, or use a false Social Security number (to hide your identity as a prior filer), and the court discovers your action, your case will be dismissed and you may be prosecuted for fraud.

If you have any questions as to whether you can qualify for chapter 7 bankruptcy contact us.

Randy M. Creighton, Esq.

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