You are probably aware that when you file a bankruptcy, an “automatic stay” goes into effect right away, which means that none of your creditors can take any further action against you without first getting the approval of the bankruptcy court. Therefore, if anyone is suing you, that lawsuit has to stop and, if it’s for money damages against you, will most likely be dismissed. Even if you are in the middle of a divorce action, those proceedings are frozen during the pendency of the bankruptcy action, or at least until an order of relief from stay to go forward is granted by the Bankruptcy Court.
Does the Automatic Stay in the Bankruptcy Law Prevent a Landlord from Being Able to Evict the Tenant on a Residential Lease?
January 26, 2018 By Leave a Comment
UPDATE New Ohio Law Goes into Effect 1-18-18 regarding Mugshot Extortion Websites
January 12, 2018 By Leave a Comment
Earlier this year, I posted the following blog entry regarding Ohio House Bill 6, addressed at ending the practice in Ohio of private mugshot or criminal record websites that require the payment of a fee from an individual in order to have his/her mugshot or criminal records from the site.
Fortunately, this Bill was enacted into law and goes into effect on January 18, 2018. The new Ohio Revised Code section 2927.22(B) states “No person engaged in publishing or otherwise disseminating criminal record information (i.e., a booking photograph or the name, address, charges filed, or description of a subject individual who is asserted or implied to have engaged in illegal conduct) through a print or electronic medium shall negligently solicit or accept from a subject individual the payment of a fee or other consideration to remove, correct, modify, or refrain from publishing or otherwise disseminating criminal record information.” Violation of this section is a misdemeanor of the first degree, and each payment solicited or accepted in violation of this section constitutes a separate violation. [Read more…]
The Student Loan Mess: Is There Any Relief in Sight?
December 13, 2017 By Leave a Comment
I am finding that the hottest topic right now among those who work with bankruptcies is the overwhelming amount of student debt that burdens so many people for years and even decades after they’ve left school. Currently, there are few ways that people can try to deal with their student loans when they can’t afford to make their payments, such as teaching or practicing medicine in underserved areas for a certain number of years[1], or income-driven plan arrangements through the U.S. Department of Education. Discharging student loan debt in bankruptcy is not an option unless the debtor’s financial situation is virtually hopeless.
What Can You Do with a Car That the Lender Refuses to Take Back?
November 13, 2017 By Leave a Comment
Many people, when filing bankruptcy, want to give back (surrender) their vehicles to the lender who holds their car loans. The theory is that the lender will take possession and then re-sell the car, and the debtor will get a discharge of that entire debt in the bankruptcy. If a chapter 7 debtor states on his Statement of Intention that he is surrendering the vehicle, then the debt will be wiped out when the bankruptcy is discharged.
The problem arises when the car is worth significantly less than what’s owed to the lender, and therefore the lender refuses to accept the car back. You now have the car, but the lender is holding the title. You can’t sell or trash the car without the title, and — guess what– the lender doesn’t want to give up the title unless you pay what you owe! Neat little game they’ve got going there, isn’t it? What can you now do with the car? Unfortunately, it’s a scenario that’s been playing out frequently over the past few years.
Can Non-Citizens File Bankruptcy?
October 5, 2017 By Leave a Comment
There is a lot of discussion now about whether people from foreign countries who live and work in the United States without seeking citizenship should be entitled to the same rights as citizens. Since these non-citizens are consumers who almost certainly will accumulate debt, they may wonder if they can seek relief from their debts under the bankruptcy laws, or whether that right is specifically limited to people who are citizens.
Actually, the bankruptcy laws allow non-citizens to file. The Bankruptcy Code defines “a debtor” as “a person that resides or has a domicile, place of business, or property in the United States,” without requiring that person be a citizen. Therefore, the right to seek relief under the bankruptcy laws is available to both citizens and non-citizens, so long as they can prove they make their home here.
How Changing the Character of your Assets to Protect Them Can Work Against You
September 28, 2017 By Leave a Comment
An interesting situation came up recently in an online discussion between bankruptcy attorneys. A client had received a workers’ compensation award of several thousand dollars within the past few months. He used it to buy his girlfriend a car, and then filed a chapter 7 bankruptcy to wipe out his creditors.
If the money had remained in his bank account, he could have claimed it as exempt, meaning it would have been protected from claims by the bankruptcy trustee on behalf of his creditors. Workers’ compensation benefits are sheltered from being seized by creditors under both Ohio and federal exemption laws.
However, the workers’ compensation award is not in the bank anymore. He had to identify it, however, on his Statement of Financial Affairs where he was asked 1) what monies he’s received over the past 3 years other than from his employment, 2) what payments he’s made that benefited an “insider”, 3) what gifts of over $600 he has made to any person within the two years before he filed, and/or 4) what transfers of property he’s made. If he fails to disclose that information, his bankruptcy filing will be fraudulent. Therefore, the Trustee is going to see the award he received, and will inquire as to what it was used for. A gift to his girlfriend to purchase a car is not exempt from the reach of the Trustee. Moreover, the attorneys believe, probably rightly, that the car was put into the girlfriend’s name purposefully to protect it from the man’s creditors. [Read more…]
Ohio’s Safe Haven Law
August 24, 2017 By Leave a Comment
It’s hard to witness the current media storm surrounding Brooke Skylar Richardson and not wonder whether she (and/or her family) was aware of Ohio’s Safe Haven Law. In case you are from outside the Southwest Ohio area or live in a vacuum, Richardson is the 18-year-old Carlisle woman who was accused of giving birth to a baby several days after her high school prom, killing it, burning the body and burying it in her backyard. She has been indicted for Aggravated Murder, Involuntary Manslaughter, Endangering Children, Tampering with Evidence, and Abuse of a Corpse. The case is set to go to trial sometime in the next several months.
Second District Court of Appeals Holds that Suppression of Defendant’s Statements to Police was Proper
August 14, 2017 By Leave a Comment
On May 19, 2017, the Second District Court of Appeals issued a decision affirming the Montgomery County Common Pleas Court’s ruling suppressing statements made to a detective at the Huber Heights Police Department.
In the case of State v. Villegas, 2017-Ohio-2887, Villegas was arrested outside a Huber Heights shopping center, having been found in possession of dozens of counterfeit or cloned credit cards in his vehicle. Villegas was taken to the Huber Heights Police Department, where he was placed in a holding cell. Villegas was later taken to an interview room in the detective section of the police department, where a detective read Villegas his Miranda rights using a pre-interview form. Villegas declined to speak to the detective, and he did not initial or sign the form. The detective asked no additional questions, and Villegas did not request an attorney. Villegas was then escorted back to the holding cell.
Ohio Supreme Court finds the Warrantless Search of Student’s Unattended Book Bag did not violate the Fourth Amendment
August 3, 2017 By Leave a Comment
On May 11, 2017, the Ohio Supreme Court issued a decision in State v. Polk, reversing the decisions of the Franklin Court of Common Pleas and the Tenth District Court of Appeals. The facts are as follows: A school bus driver found a book bag that was left on the bus. The driver removed the bag from the bus and turned it over to the school safety officer. The school had an unwritten policy to search unattended book bags to identify the owners and to ensure that there was no contraband contained in the book bags. [Read more…]
Second District Court of Appeals Holds Canine Sniff Invalid
June 7, 2017 By Leave a Comment
On May 5, 2017, the Second District Court of Appeals issued a decision affirming the Darke County Common Pleas Court’s ruling suppressing evidence obtained from a canine sniff of a suspect’s vehicle during a traffic stop.
