Payday Loans will lead you to Bankruptcy!

It's hard to ignore the need for "fast cash". I like many other people, have gone through tough financial times and was in need of temporary relief. But, it is my position that payday loans do more bad then good. Some things you probably don't know about payday loans are the following: (1) the finance amount is almost half as much as what is borrowed, (2) the loans range from $100 to $1,000. (3) There are thousands of payday loan stores (20,000) in the US. (4)Payday loan users are more likely to file for bankruptcy then those who have been turned down for a payday loan.

Other states like New York have taken a hard stance against payday loan collectors. The State of New York has deemed payday type loans to be "usurious". In order words, the interest rates of the pay day loans are so high, New York considers such high interest rates to be unlawful. In Arkansas the attorney general is suing payday lenders who give loans through the internet at interest rates exceeding 500 percent.

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Will Chapter 7 Bankruptcies Increase in Oklahoma?

Over the last several years, bankruptcy filings in Oklahoma have slowly declined. Many bankruptcy experts attribute the decline of the number of bankruptcy filings due to the recent economic recovery from the recession that began in 2007. When the recession began, this caused many unfortunate persons and families having their homes foreclosed. In turn, many individuals and families filed bankruptcy in order to protect their home or to get rid of any excessive debts they incurred as a result of the foreclosure, including any deficiency judgments. The table below shows a steady decline in bankruptcy filings over the last five (5) years (please note that the figures consist primarily of consumer debts under Chapter 7 bankruptcy filings):

Oklahoma Bankruptcy Filings by Year:
2013 2012 2011 2010 2009
8,335* 11,970 13,119 14,980 14,500

*This figure includes only until the end of September 30, 2013

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Repossession of Your Vehicle and its Consequences

Over the last several months, we have received several's e-mails and phone calls from prospective clients ask for their options after his or her car has been repossessed. Unfortunately, the bad news is that we usually cannot help most of our prospective client once his or her car has been repossessed. The reason a bank or other lender is able to repossess your car is because they have a "security interest" on your vehicle. This means that the bank or lender has an interest in your car until it is fully paid off. Under Oklahoma law, a loan company can take your vehicle at any time as long as it does not "breach the peace." This means the loan company can do pretty much everything besides using physical violence and breaking and entering into your house or garage. In the typical situation, the loan company will auction your vehicle as soon as possible and you would be liable for any difference between the price that the car sold for and the amount you still owed on the vehicle (almost always, a vehicle is "upside down" so there will be a deficiency judgment against you.

The majority of the time, people are left with the following two options following repossession: (1) Redeem the vehicle (payoff the entire balance left on the note of the car) or (2) try negotiating with the lender to catch up on payments (however, please keep in mind that the debtor will responsible for any costs associated with the repossession; such as, towing and storage fees. As such, the best option for most people behind on his or her car payments is to take steps BEFORE your care is repossessed.

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Same Sex Marriages and Bankruptcy in Oklahoma

On June 26, 2013, the United States Supreme Court invalidated portions of the Defense of Marriage Act (DOMA) which provides federal benefits to legally married gay couples. United States v. Windsor (2013). The Supreme Court found that prohibiting same sex marriages is a violation of the Fifth Amendment. In doing so, the federal government is now required to recognize legally married gay couples. This may include the right to file "joint" bankruptcy petitions under chapter 7 and 13 under the Bankruptcy Code. In order to be legally married, a couple must be married in a country to recognizes gay marriages or in one of the following states that allow gay marriages: California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire New York, Rhode Island, Vermont, and Washington (with more states to follow).

Under Section 302 of the Bankruptcy Code, for joint cases are "commenced by the filing with the bankruptcy court of a single petition under such chapter by an individual that may be debtor under such chapter and the individual's spouse." However, the legislative history shows that a joint case is a voluntary case between wife and husband. However, with the recent Supreme Court decision finding DOMA unconstitutional, some same sex married couples are able to file joint bankruptcy petitions (in states where same sex marriages are recognized.

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Tax Consequences from Wiping out your Debt (Debt Settlement)

Here at Debt Solutions, we often work with creditors to settle our clients' debts for a much lesser amount than owed. We've settled debts as low as 10% or 25% of the original balance owed. This is good news right?!? The answer is both yes and no. Yes because we've settled the debt for a much lesser amount. However, many individuals are unaware that creditors are required to file a Form 1099-C (Cancellation of Debt) and the debtor's cancellation of debt (COD) income is taxable! For example, Tom owes $10,000 to a credit card company. He manages to settle the debt for $2,500. Unfortunately, the forgiven amount of $7,500 is deemed taxable income for tax purposes.

The good news is that there are several exceptions to the rule:

  • Bankruptcy - the COD income is exempt from federal taxation under Chapter 7, 13, and 11 bankruptcy.
  • Home Mortgage - any COD income of principal mortgage home mortgage debt that occurred in 2007 through 2013 is exempt. There are several exceptions to this rule so please consult an expert.
  • Insolvency - if a debtor is insolvent (with debts in excess of the fair market value of his or her assets) before debt cancellation occurs, the COD income is exempt.
  • Please note there are several other exceptions to the rule.

Beware of Debt Settlement Schemes!

The National Association of Consumer Bankruptcy Attorneys (NACBA) has issued an alert for consumers in regards to the risky schemes promising debt freedom in a promised period of time. You've probably seen those infomercials on tv or heard them on the radio. NACBA has warned consumers that these schemes often suffer steeper financial loses. Federal and state officials have issued a statement that these debt settlement schemes work in approximately 1 out of 10 cases. Unfortunately, these unweary consumers end up with more red ink than prior to the debt settlement services. The NACBA alert notes the following:

  • There is now across-the-board agreement on the danger that debt settlement schemes pose to consumers.
  • Debt settlement schemes encourage consumers to default on their debts.
  • “Self help” may be the best answer for smaller debt burdens.
  • Nonprofit credit counseling agencies can help, but must be vetted carefully.
  • Bankruptcy will be an option for some consumers.

We recommend that you steer clear of these so-called debt settlement companies. Some common schemes used by these debt settlement companies include promises that unsecured debt can be paid off for pennies on the dollar and telling you to stop making payments or to stop communicating with creditors.

For more information on the NACBA Debt Settlement Alert, please visit http://www.nacba.org/News/ConsumerAlertDebtSettlement.aspx.

Tax Refunds and Bankruptcy

Generally speaking, when a debtor files bankruptcy, the bankruptcy trustee will go after any tax refund already received or may receive in the foreseeable future. Your tax refund is considered property of the estate for bankruptcy purposes. Simply put, your tax refund is treated as one of your assets. In most cases, a sizeable tax refund will be the only asset in the estate so it will be an easy target for the bankruptcy trustee.

There are limited steps debtors can take to protect his or her tax refund. In many cases, debtors use their tax refund to pay for bankruptcy expenses and attorney fees. In general, this is deemed acceptable practice. In fact, in a recent article in USA Today, more than 200,000 bankruptcy filers use their tax refund to pay for bankruptcy filing fees and attorney fees. Many families delay filing bankruptcy until they can afford to pay the costs associates with filing bankruptcy. Please consult with a bankruptcy attorney to determine how to best keep your tax refund.

Often times, there is strategy on when to file bankruptcy. Some attorneys will delay filing bankruptcy if debtors are expecting a refund. In addition to spending refunds on bankruptcy associated fees, debtors are allowed to spend their refund on household necessities. Unfortunately, delaying bankruptcy is not an option to many filers. Often times, debtors file bankruptcy to prevent foreclosure or potential garnishment and must act immediately. As always, please consult with a bankruptcy attorney for the best possible strategy.

Student Loans and Bankruptcy

As a college and law school graduate, I can understand the immense pressures of paying back student loans every month. Sure I can defer my loans for a certain period of time, but eventually Uncle Sam and the other lenders are going to ask for their money. In 2005, Congress passed a law to protect lenders; more specifically, private student loan lenders. The new law make it nearly impossible to discharge student loans in bankruptcy similar to child support payments and criminal fines.

By overly protecting the lenders, Congress has encouraged lenders to give loans to students. In doing so, Congress has undermined the very purpose of chapter 7 bankruptcy by preventing countless debtors from obtaining a "fresh start." Often times, a big portion of many debtor's debts arise from student loans, especially for the younger generation.

The Obama Administration has recently passed certain protections for student loan debts. These protections include income-based repayment and a public service loan forgiveness program. However, there has been no attempts to overturn the laws created in 2005 to allow student loans to be dischargeable in bankruptcy.

At the end of the day, it may be best if students turn to colleges which they can afford without the need for student loans. This is especially true given the ever increasing tuition costs and the fact that your student loans may follow you for life.

Debt Solution Law Center serves clients in the cities of Oklahoma City, Edmond, Moore, Norman, Yukon, Midwest City, Del City, Lawton, Tulsa, Muskogee, El Reno, Purcell, Broken Arrow, Shawnee, and Ardmore, including Oklahoma County, Cleveland County, Canadian County, Pottowatomie County, Lincoln County, McClain County, Grady County, Logan County, and Noble County, Oklahoma.