Posted by Kevin on January 13, 2011 under Bankruptcy Blog | 
I was called as a witness in a foreclosure case. The issue, however, dealt with a surrender of a condominium in a Chapter 13. In the Ch 13 Plan official form, a debtor can either continue paying a secured lender (mortgage holder) every month outside the plan and pay the arrearages through the plan; modify the claim by, for example, changing the interest rate; or surrendering the property.
But what does “surrender” mean? Well, to the dismay of many landowners, it does not mean that the lender becomes the owner of the property upon surrender. What has happened many times is that a debtor moves out of the house that he no longer can afford. He expects the lender to take over. But the lender does not take over the property. The debtor may file papers with the bankruptcy court to force the lender to take over the property. But, absent unusual circumstances, the debtor loses this application.
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Posted by Kevin on January 6, 2011 under Bankruptcy Blog |
The quick answer is NO. But, it can keep you from being hired if it is a private sector job.
In prior blogs, we talked about the court structure. New Jersey is in the 3d Circuit. The 3d Circuit just came down with a ruling concerning whether a private employer violated the law by refusing to hire the debtor. The case originated in Pennsylvania. But the ruling applies to NJ.
Section 525 of the Bankruptcy Code covers this situation. When the Bankruptcy Code was amended in 1978, Section 525 only dealt with “governmental units”. It stated that a governmental unit may not deny employment to, terminate the employment of or discriminate with respect to employment of a person who is or has been a debtor.
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Posted by Kevin on January 4, 2011 under Bankruptcy Blog |
Yesterday, I gave you an overview of the court system. Today, I want to tell you how a case moves through the system.
Most Chapter 7 debtors never see the inside of a court room. That is because their cases are handled administratively by the Clerk and the Trustee. If that happens in your case, be thankful. It means that everything went all right and you got your discharge.
If a creditor challenges a claim or the trustee challenges your right to a discharge or an exemption, you may find yourself in the court system.
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Posted by Kevin on January 3, 2011 under Bankruptcy Blog |
In this blog, I write about the bankruptcy law. The “law” is contained in the statute, court rules and case law. In case law, the courts apply the statute and rules.
The Bankruptcy Court is part of the federal court system. Federal courts are established by the Constitution of the United States. The Supreme Court, the Circuit Courts of Appeal and the District Court are called Article III courts since they were set up under Article III of the Constitution. Bankruptcy Courts were based on Article I, however. In 1978, there was a major change in the bankruptcy statute. One of the major changes was to bring bankruptcy judges under Article III. This meant that they served for life under good behavior and their salaries could not be reduced. It also gave them the powers of a federal district judge in shaping orders. Bankruptcy jurisdiction was still with the District Court which was an Article III Court but was required to be exercised by the Bankruptcy Court.
The Supreme Court knocked that down. Bankruptcy Judges went back to being Article I judges with a 14 year term of office. The District Court had the choice of referring bankruptcy issues to the bankruptcy courts or keeping jurisdiction. All District Courts have opted to refer jurisdiction to the bankruptcy courts. On a constitutional and perhaps academic level, this is a big change, but to the average person who files, it is of little or no consequence. You still file your Petition with the Bankruptcy Court.
In New Jersey, there is one “district” for the entire state. California has numerous districts. Although there is one district, the court has offices and is in session in 3 locations: Newark, Trenton and Camden. For example, if you reside in Bergen, Passaic or Hudson counties, your case is assigned to Newark. If you reside in Monmouth, Ocean or Mercer, your case is assigned to Trenton. If you reside in Cape May or Camden, your case is assigned to Camden.
