The 10th Circuit Court of Appeals, in the case of Miller vs. Deutsche Bank National Trust (opens PDF), requires mortgage loan servicers to prove possession of the mortgage note in order to have proper standing to file a Motion for Relief From Stay in bankruptcy court. A Motion for Relief from Stay is a required pleading in bankruptcy court if a secured creditor wants to proceed with foreclosure or repossession, notwithstanding the bankruptcy. The issue in Miller was whether Deutsche Bank was the proper moving party. The court held that there was no evidence in the record sufficient to show that Deutsche Bank was a proper party to bring the Motion for Relief from Stay, and by implication, not a proper party to foreclose on the Miler’s mortgage. (more…)
10th Circuit Requires Proof of Note for Foreclosure.
February 3rd, 2012 by Matt BerkusConsidering Bankruptcy, The “High Road” Ends At A Cliff!
January 29th, 2012 by Matt BerkusIn many a consultation I have heard, and I am sure if you are considering bankruptcy, you might have said this to yourself at some point…
“I want to do the right thing and pay my bills.”
“I want to take the high road and not file bankruptcy.”
Or some variation on the moral objection to bankruptcy.
Can You Pay Student Loans in Chapter 13 Bankruptcy?
December 18th, 2011 by Matt BerkusBut for a showing of undue hardship, student loans are non-dischargeable in bankruptcy; outside of bankruptcy, there are few options for a struggling debtor to find relief from crushing student loan debt. Moreover, student loan debt has no special status in bankruptcy; you cannot “just choose” to pay your student loans ahead of other unsecured debt (e.g. credit cards).
So, what is a struggling debtor to do? Chapter 13 bankruptcy may provide relief to a the student loan debtor under certain circumstances: the chapter 13 can stop collection and garnishment activity, and eliminate other debt problems such as credit card debts and stop a foreclosure; but the debtor will usually emerge from chapter 13 bankruptcy still needing to pay on student loans. (more…)
The Biggest Mistake You Don’t Know You Are Making During Financial Crisis!
December 16th, 2011 by Matt BerkusI can’t tell you how many times I have heard this story from a prospective client:
I ask: “Do you have any retirement accounts or 401(k)?”
Response: “No, we liquidated those to stay afloat.”
I feel sad when I hear that because I know that if he had the courage to visit the office 6 months ago or a year ago when his finances started going south, he would be out of debt and still have that money. Too many debtors are sacrificing their future and treating their 401(k) or IRA as a piggy bank instead of a retirement fund. (more…)
Am I Too Young To File Bankruptcy?
December 15th, 2011 by Matt BerkusAlthough not common, we are seeing more and more twenty-something’s in need of bankruptcy relief. A concern that is sometimes voiced is whether the client is too young to file bankruptcy. I don’t mean in a legal sense—anyone of legal-adult age may file bankruptcy (in fact, even someone under the legal-adult age can file bankruptcy with a representative) —but in a practical sense the client often feels like they should stick it out and see if they can solve their financial challenges without bankruptcy. They think by filing bankruptcy so young, that they are somehow doubly cursed or won’t be able to have the American Dream of home ownership. Such thinking is folly! (more…)
NOT a Good Idea to Transfer Student Loans to Credit Cards
November 19th, 2011 by Matt BerkusAs the looming crisis of student loan debt nears, some enterprising debtors are no doubt getting desperate. Student loan debtors are being hounded by collection agencies night and day, tax refunds are being intercepted, and wage garnishments are inevitable. So some enterprising debtors are getting the idea to transfer their student loan debt to credit cards with the idea of either getting a better deal on interest or later discharging that debt in bankruptcy. Don’t do it! (more…)
Matt Berkus, Cited As Authority On E-how!
November 18th, 2011 by Matt BerkusOkay, this post is obviously self serving, but it is interesting to see how my content has filtered through the World Wide Web. Here is a list of articles at e-how.com where my articles have been cited as an authority. (more…)
Mortgage After Bankruptcy, A Success Story!
November 5th, 2011 by Matt BerkusAs much as you try to tell people that there is life and credit after bankruptcy, there is always doubt, but here is short success story I found. (more…)
