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2016 Bankruptcy Articles

[Unfair] Debt Collection Practices are the Number One Consumer Complaint

When it comes to complaints lodged with the Consumer Financial Protection Bureau about debt collection, the government agency said attempts to collect debt on money that is not owed were the number one complaint. "Today's report shows that consumers continue to report being harassed about debts they already repaid or debts they do not owe," said CFPB Director Richard Cordray in a press release announcing the results. "The bureau will continue to work to ensure that consumers are not being wrongly pursued by debt collectors." According to the CFPB, over a third of complaints, or 39 percent, focused on debt collection had to do with consumers who said they were contacted about paying back debts they no longer owe, with lots of consumers saying they were never given any documentation to prove they owed the money, even after asking for verification. What's more, the CFPB said consumers also complained their accounts were sent to third-party collectors without getting any notice of the action or the outstanding balance. In some instances, the consumers said their accounts weren't even delinquent before being contacted by a third-party collection agency. "Many consumers complained that they are subject to frequent daily calls by debt collectors both at home and at work, even after informing the collector that contact at work was prohibited by their employer," the CFPB said in the press release.

The three companies the bureau received the most average monthly complaints about are Portfolio Recovery Associates, Inc., Encore Capital Group and ERC. [this article appeared in 12/29/16 Credit & Collection e-newsletter]


Report: More than 100 North American Oil and Gas Producers Have Filed for Bankruptcy since 2015

Since the beginning of 2015, 114 North American oil and gas producers have filed for bankruptcy, involving approximately $74.2 billion in cumulative secured and unsecured debt, according to Haynes and Boone's latest Oil Patch Bankruptcy Monitor. As of Dec. 14, 70 producers have filed bankruptcy so far this year, representing approximately $56.8 billion in cumulative secured and unsecured debt, according to the report. Texas bankruptcy courts remain the leaders in venue, both in terms of the number of E&P filings and cumulative debt. Fifty-one E&P bankruptcies have been filed in Texas, representing approximately $32.5 billion in cumulative secured and unsecured debt. [as reported in 12/29/16 American Bankruptcy Institute e-newsletter]


US Government Will Forgive At Least $108 Billion In Student Loan Debt

Many Americans are struggling to pay back their student loan debts-which are a burden financially as well as mentally. President Barack Obama and his administration are trying to help students out by forgiving some student loan debt, but a new study by the Government Accountability Office found that the program will cost taxpayers far more than expected. The Government Accountability Office's study, which was released today, found that the federal government is on track to forgive at least $108 billion in student loan debt-which is significantly more than previous estimates. According to the Wall Street Journal, this report is the first time the government has projected the entire cost of plans that connect a borrower's payments to their earnings, which are known as Income-Driven Repayment (IDR) plans. The report notes, "While actual costs cannot be known until borrowers repay their loans, GAO found that current IDR plan budget estimates are more than double what was originally expected for loans made in fiscal years 2009 through 2016." Current versions of IDR plans were developed during President George W. Bush's administration, but Obama's administration really expanded the plans, which led to a huge growth in enrollment, according to Time. In the last three years, enrollment has more than tripled to 5.3 million borrowers as of this summer-which is about a quarter of all former students who borrowed directly from the government. [as reported in Credit & Collection e-newsletter of 12/1/16]


New Rule Limits Ability of Student Loan Borrowers to Cancel Federal Loans at Fraudulent Educational Institutions

A new rule finalized on Friday by the Obama administration will cost student debtors who say that their colleges defrauded them some longstanding rights to get their federal loans canceled, while colleges on shaky financial footing dodged a government crackdown, Bloomberg News reported. [from 11/1/16 ABI e-newsletter]


Court Rules CFPB's Structure Is Unconstitutional

After a spate of recent activity which has included introducing long-awaited regulations for payday lenders and prepaid cards and a nearly $200 million fraud settlement from Wells Fargo, the Consumer Financial Protection Bureau must now face a new challenge-more oversight. On Tuesday, a Washington, D.C. circuit court found the structure of the CFPB to be unconstitutional. More specifically, the court took issue with the inability for other arms of the government to review or rebuke the Bureau's judgements or actions and the unilateral power imbued in the CFPB's director-currently Richard Cordray. The judgement states: The Director enjoys significantly more unilateral power than any single member of any other independent agency. By "unilateral power," we mean power that is not checked by the President or by other colleagues.

Indeed, other than the President, the Director of the CFPB is the single most powerful official in the entire United States Government, at least when measured in terms of unilateral power. The court then goes on to proclaim that the director of the CFPB is given more power and autonomy than the speaker of the house, senate majority leader, or even a Supreme Court justice. [as reported in credit and collection e-newsletter of 10/13/16]


Prudential: Housing Debt Causing Problems for Retirees

Prudential Financial released a white paper saying that Americans are carrying higher levels of debt as they head into retirement, raising the specter of financial headaches in their old age, National Mortgage News reported yesterday. Much of that debt Americans are taking with them into retirement is housing debt, Prudential noted on Tuesday in a white paper based on data from the Center for Retirement Research at Boston College.

Citing Federal Reserve data, Prudential reported that median home values for those 65 to 74 years old increased 76 percent, while housing debt skyrocketed 393 percent. Another factor contributing to Americans' willingness to retire with debt is the change in income, as today both parties in a couple can collect Social Security since more households have dual incomes. "The increased debt means the monthly payments will eat away at their Social Security checks and the situation for many could become especially difficult for couples when one of them passes away," Perlin said. [as reported in American Bankruptcy Institute e-newsletter of 9/22/16]


August Business Bankruptcy Filings Increase 28 Percent from 2015

Total U.S. commercial bankruptcy filings increased 28 percent in August 2016 over August of last year. August is the tenth consecutive month with a year-over-year increase in commercial filings [as reported in American Bankruptcy Institute e-newsletter of 9/13/16]


Credit Card Debt In Second Quarter Sets Record

Consumers went on a credit card spending spree in the second quarter of the year, adding a record $34.4 billion in new debt. Personal finance website WalletHub said it was the largest second quarter build-up since the government starting tracking the statistic in 1986. Credit card debt isn't terrible, as long as it's paid off. But the WalletHub study turned up a few other data points that the authors suggest mean the big increase in debt could be real trouble. In all of 2015, consumers added $71 billion to their credit card balances, the most since 2007, just before the start of the Great Recession. Making matters worse, in the first quarter of this year, consumers paid off just $27.5 billion of their credit card balance - the smallest amount since 2008. Put another way, they paid off $27.5 billion from January through March, then turned around and added $34.4 billion in April through June. Here's another way to put it in context: in just three months of the year consumers racked up 48% of 2015's total increase and nearly 100% of 2012's increase in credit card debt. [as reported in the 9/13/16 Credit & Collection e-newsletter]


Southern California Man Pleads Guilty to Owning Fake Law Firms That Promised to Help Struggling Homeowners

The Office of US Attorney for the Central District of California, reported in its "Watchdog" Newsletter, Volume 45, 8/15/16, the following:

Southern California Man Pleads Guilty to Owning Fake Law Firms That Promised to Help Struggling Homeowners

More Than 1,500 Victims Defrauded Out of $9 Million

CALIFORNIA-(ENEWSPF)-August 9, 2016. The Department of Justice announced that an Orange County, California, man pleaded guilty in U.S. District Court in Santa Ana, California, for his role as the owner and operator of a multi-million dollar fraudulent mortgage modification scheme that posed as a successful law firm to defraud struggling homeowners.

Bryan D'Antonio, 50, of Brea, California, pleaded guilty before U.S. District Court Judge David O. Carter for the Central District of California to one count of conspiracy to commit mail and wire fraud for his role as owner and operator of Rodis Law Group (RLG) and America's Law Group (ALG). His sentencing is on Jan. 30, 2017.

"At the height of the mortgage crisis, this defendant, a convicted felon who was prohibited from any business engaged in telemarketing, created two fake law firms that promised struggling homeowners assistance saving their homes and modifying their mortgages," said Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department's Civil Division. "Despite the many promises, these were telemarketing sales operations that took homeowners' money and provided no meaningful assistance."

"D'Antonio preyed on vulnerable victims - struggling homeowners," said U.S. Attorney Eileen M. Decker of the Central District of California. "Pretending to offer legal assistance to their victims, D'Antonio and his cohorts actually offered nothing but false hopes and empty promises. Now, he will be held accountable in federal court for the damage he has caused so many victims."

D'Antonio was previously convicted of mail and wire fraud and sentenced to four years in federal prison for his participation in a medical billing scheme. He was also subject to a permanent injunction prohibiting him from having any involvement with any business that engaged in telemarketing or misrepresented the services it would provide. As part of his plea hearing today, D'Antonio admitted that he started RLG while he was still on supervised release from his prior conviction. In violation of D'Antonio's permanent injunction, RLG and ALG sold their services through an extensive telemarketing operation and employees routinely misrepresented the services RLG and ALG would provide.

D'Antonio admitted that, between October 2008 and June 2009, he participated in a scheme with Ronald Rodis, Charles Wayne Farris and others to induce homeowners to pay between $3,500 and $5,500 for the services of RLG and its successor entity, ALG. RLG and ALG advertised on radio stations nationwide, urging struggling homeowners to call a toll-free number and stated that the companies consisted of "a team of experienced attorneys" who were "highly skilled in negotiating lower interest rates and even lowering your principal balance." In fact, RLG and ALG were telemarketing operations that never had teams of experienced attorneys. During much of the scheme, Ronald Rodis was the only attorney at RLG.

RLG and ALG telemarketers working for D’Antonio made numerous misrepresentations regarding the companies’ ability to negotiate loan modifications from the homeowners’ mortgage lenders. For example, the telemarketers stated that RLG and ALG had been in business for 11 years when in fact the company had only opened in October 2008. They falsely stated that RLG and ALG routinely obtained positive results for homeowners, including lower monthly payments, reductions in principal balance and lower interest rates. In fact, positive results were rarely achieved for any RLG or ALG clients. Telemarketers also falsely reiterated that homeowners would have a team of attorneys and real estate professionals assigned to their case. The telemarketers did not disclose to homeowners that RLG and ALG were owned and operated by Bryan D’Antonio, a convicted felon who was prohibited from engaging in telemarketing.

In a plea agreement filed in federal court, D’Antonio admitted that the RLG and ALG schemes fraudulently obtained approximately $9 million from more than 1,500 victims.

D’Antonio’s co-defendants, Charles Wayne Farris and Ronald Rodis, both previously pleaded guilty to one count of conspiracy to commit mail and wire fraud.

This case was investigated by the FBI and is being prosecuted by Trial Attorney John W. Burke of the Civil Division’s Consumer Protection Branch and Assistant U.S. Attorney Joseph T. McNally of the Central District of California.

For more information about the Consumer Protection Branch, visit its website at http://www.justice.gov/civil/consumer-protection-branch. For more information about the U.S. Attorney’s Office for the Central District of California, visit its website at https://www.justice.gov/usao-cdca.


Borrowers Default, Collection Suits Pile Up

In August 2008, William Lesinski walked into a Car Credit City in suburban St. Louis and made a decision far more expensive than he ever imagined. Wanting to buy his son a car as a high school graduation gift, Lesinski put $1,750 down and drove off the lot in a 2003 Ford Mustang. The loan for the car was $11,367, and it carried 29 percent annual interest over nearly four years. His son would make the payments, but the loan was in Lesinski’s name. After paying the balance down to a little more than $10,000, his son, who had stopped making insurance payments, wrecked the car, Lesinski said. In 2011, after more than $4,000 in interest had accrued, Car Credit City’s in-house finance arm, General Credit Acceptance, sued Lesinski. Factoring in attorney fees, the court judgment came to more than $15,000. After Lesinski fell behind on a payment plan later, General Credit Acceptance began garnishing a portion of his check from a painting company. It hasn’t stopped since. As of early this month, the company has taken $22,600 of Lesinski’s wages. Because Missouri court judgments can carry the interest from the initial contract, little of that money has gone toward principal. Lesinski assumed the balance was near zero. In fact, he still owes almost $13,000. High-interest car loans for cash-strapped borrowers with bad credit are nothing new. But as the U.S. auto market has come roaring back since the financial crisis, the share of subprime car loans has risen steadily. [as reported in 6/20/16 Credit & Collection e-newsletter]


U.S. Oil Industry Bankruptcy Wave Nears Size of Telecom Bust

May 5, 2016
American Bankruptcy Institute E-Newsletter

The rout in crude prices is snowballing into one of the biggest avalanches in the history of corporate America, with 59 oil and gas companies now bankrupt after this week's filings for creditor protection by Midstates Petroleum and Ultra Petroleum, Reuters reported yesterday. The number of U.S. energy bankruptcies is closing in on the staggering 68 filings seen during the depths of the telecom bust of 2002 and 2003, according to Reuters data, the law firm Haynes & Boone and bankruptcydata.com. Charles Gibbs, a restructuring partner at Akin Gump in Texas, said that the U.S. oil industry is not even halfway through its wave of bankruptcies. "I think we'll see more filings in the second quarter than in the first quarter," he said. Fifteen oil and gas companies filed for bankruptcy in the first quarter. Some oil producers appear to be holding on, hoping the price of crude stabilizes at a higher level. In February, oil slumped as low as $27 a barrel from peaks above $100 a barrel nearly two years ago. U.S. crude has recovered somewhat, and on Tuesday was trading a little below $44 a barrel. Until recently, banks had been willing to offer leeway to borrowers in the shale sector, but lately some lenders have tightened their purse strings. A widely predicted wave of mergers in the shale space has yet to materialize as oil price volatility makes valuations difficult, and buyers balk at taking on debt loads until target companies exit bankruptcy. [as reported in American Bankruptcy Institute 5/5/16 e-newsletter]


Total April Commercial Bankruptcy Filings Increase 32 Percent and Commercial Chapter 11s Climb 67 Percent

May 4, 2016
American Bankruptcy Institute E-Newsletter

Total U.S. commercial bankruptcy filings increased 32 percent in April 2016 over April of last year, according to data provided by Epiq Systems, Inc. Commercial filings totaled 3,482 in April 2016, up from the April 2015 total of 2,641. April is the sixth consecutive month with a year-over-year increase in commercial filings. [as reported in 5/4/16 American Bankruptcy Institute e-newsletter]


​When Debt Collectors Go After Soldiers

March 25, 2016
CBS News

U.S. service members have a debt problem, but it's not the kind that affects many Americans.

Members of the military and veterans are twice as likely to complain about debt collection as the general population, according to the federal Consumer Finance Protection Bureau. One reason for the slew of complaints may be tied to how debt and problematic credit reports can threaten -- and even end -- a military career.

Click here to read the full article


US Credit Card Debt Hits One Trillion Dollars

March 15, 2016
Credit & Collection e-newsletter

For the first time ever, total credit card debt in the United States is approaching a trillion dollars. Instead of learning painful lessons from the last recession, Americans continue to make the same horrendous financial mistakes over and over again. In fact, U.S. consumers accumulated more new credit card debt during the 4th quarter of 2015 than they did during the years of 2009, 2010 and 2011 combined. That is absolutely insanity, because other than payday loans, credit card debt is just about the worst kind of debt that consumers could possibly go into. Extremely high rates of interest, combined with severe penalties and fees, can choke the financial life out of almost any family in no time at all. These days, most Americans use credit cards for various purposes, and they can be very convenient. And if you pay them off every single month, they don’t become a problem. Unfortunately, a lot of people are not doing this. According to CNBC, total U.S. credit card debt rose by an astounding 71 billion dollars last year alone… Last year, credit card debt in the U.S. surged by approximately $71 billion to $917.7 billion, according to a new study from CardHub.com. The research also found that most of the debt accrued in 2015 came in the fourth quarter, when Americans tacked on more than $52 billion.


American Bankruptcy Institute Report: State and Local Pension Plan Funding Continues to Deteriorate

March 10, 2016
ABI e-newsletter

State and municipal employees' public pension funds have obligations that total, in the aggregate, almost 130 percent of state and local governments' annual budgets, according to a report released yesterday by the Manhattan Institute. On average, the assets available to meet these obligations fall well short of the amount necessary -- by some $1 trillion, even under such plans' own overly rosy growth assumptions. Since 2000, the report has found that such plans, in the aggregate, have gone from fully funded to 74 percent funded. In 2014, 63 percent of plans were less than 80 percent funded -- the level deemed "at risk" for private-employer pension plans under the Pension Protection Act -- and 20 percent were less than 40 percent funded. The report also said that public pension plans have markedly increased the risk profile of their investments. In 1952, public employee defined-benefit plans invested 96 percent of assets in cash and fixed-income investments; that percentage fell to 47 percent in 1992, to 27 percent in 2012, and to less than 19 percent in 2015.


Consumer Advocates are Again in 2016 Trying to Get the California Legislature to Pass, and California Governor to Sign into Law, CA SB 308, which is a Bill to Increase the Dollar Amounts of California Homestead Exemptions

March 3, 2016
NACBA

NACBA (National Association of Consumer Bankruptcy Attorneys) reports, on 3/3/16, that already, this year (2016) there is a new push to get SB 308 passed into law. In 2015, California NACBA members helped move the bill through the State Senate and through two committees in the Assembly. Unfortunately, SB 308 did not make it past the general Assembly in 2015. The good news is that we get to start at the same point this year. We just need to get SB 308 through passage on the Assembly floor and signed by the Governor. The amended version of the 2015 SB 308 bill has not changed. The legislation would increase California’s 3-tier state homestead exemption levels to $300k for disabled persons and seniors, $150k for a family unit and $100k for a single individual. It also would make several other important improvements for Californians in financial distress, including elimination of the 6 month reinvestment requirement for homestead sale proceeds.


House Panel Approves Financial Institution Bankruptcy Act

February 16, 2016
Bloomberg BNA

The House Judiciary Committee Feb. 11 approved by a vote of 25–0 the “Financial Institution Bankruptcy Act of 2016,” which would amend the Bankruptcy Code in order to improve the efficient resolution of a financial firm through the bankruptcy process.

Click here to read the full article


Bankruptcy Court Is Not Collection Agency

February 16, 2016
National Law Review

Many a bankruptcy attorney has been approached by an angry client who is owed a large amount from, or has obtained a judgment against another party, but has been frustrated in efforts to collect and wants to “throw them into bankruptcy.” After trying to calm the client down, the attorney will go over the technical requirements for commencing an involuntary bankruptcy case and will undoubtedly carefully explain the financial risks that lie in wait in the event that the putative debtor opposes the bankruptcy and is successful in having it dismissed. Specifically, section 303(j) of the Bankruptcy Code authorizes the bankruptcy court to award against petitioners and in favor of the debtor costs, or reasonable attorney’s fees, if an involuntary petition is dismissed other than on consent of all petitioners and the debtor.

Click here to read the full article


High Risk of Bankruptcy for One-Third of Oil Firms: Deloitte

February 16, 2016
Reuters

Roughly a third of oil producers are at high risk of slipping into bankruptcy this year as low commodity prices crimp their access to cash and ability to cut debt, according to a study by Deloitte, the auditing and consulting firm.

Click here to read the full article


Race Car Driver Arrested In Alleged $2 Billion Payday Lending Empire

February 10, 2016
CNN Money

Race Car Driver Arrested In Alleged $2 Billion Payday Lending Empire

Click here to read the full article



San Bernardino, Calif., Bondholders Reach Repayment Deal

February 5, 2016
American Bankruptcy Institute e-newsletter

The city of San Bernardino, Calif., which has been stuck in bankruptcy for more than three years, has reached a repayment deal with its fiercest courtroom foe: a European bank owed about $52 million worth of municipal bonds, Dow Jones Daily Bankruptcy Review reported on 2/5/16 in theAmerican Bankruptcy Institute e-newsletter.


Mortgage Rates Decline for Fourth Straight Week

Jan 28, 2016
Market Watch

Mortgage rates pushed below the three-month low notched last week, mortgage provider Freddie Mac said Thursday.

The 30-year fixed-rate mortgage averaged 3.79% in the January 28 week, down from 3.81%. The 15-year fixed-rate mortgage averaged 3.07%, down from 3.10%.

Click here to read the full article


Federal Trade Commission Warns Industry Of Broad Meaning Of Debt Collector

January 25, 2016
Credit & Collection e-newsletter

Although the Fair Debt Collection Practices Act (FDCPA) was enacted decades ago, its amorphous scope continues to frustrate the industry. The FTC recently cautioned debt collectors and creditors alike of the surprising breadth of the meaning of “debt collector” and the scope of the FDCPA. The FDCPA defines “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” § 803(6). This broad definition is dampened somewhat by the FDCPA’s exclusions, including creditors who seek to collect their own debts - allowing many creditors to breathe a sigh of relief. However, the FDCPA also includes within debt collector any “creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.” The nuances of this exclusionary language create more litigation than you might expect - a cautionary tale for creditors relying on its ability to collect its own debt free of the risks and requirements imposed by the FDCPA.

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