Solving Credit Report Errors

Credit report errors are annoying and very common. After you deal with your debt issues, it can be very frustrating to have your credit report not accurately reflect your creditworthiness.

Once you start to really look at your credit report, you may be surprised to find the credit report errors sometimes are related to your personal information or debts of someone else entirely.

Alarmed clients often call me to deal with their credit report errors, but this is not a legal matter. Here are the steps to dealing with credit report errors:

Step 1. Look at your free credit reports

Annually, you can access a free copy of your credit report from each of the three major reporting bureaus. Get each report. Compare the reports to see if they all have the same information.

If you find an error circle clearly and contact that credit bureau

Make a copy of your credit report and highlight the error you are disputing.

If an error only appears on one credit bureau’s report, you only need to contact that particular bureau (not all three).

Step 2. Dispute the Error

Write a letter to the relevant credit bureau who is reporting the error. Include documents that you think are helpful, such as the credit report copy with the error circled or statements from the creditor/account where the error is being reported. Visit credit bureau site to see if there is a form available that helps you to dispute the error.

Make sure to keep a copy for your records!

Step 3. Mail your dispute

Send the dispute information via certified mail, return receipt requested. Send a copy to both the credit bureau and the credit issuer at the same time.

You may also want to send a copy of the dispute to the original creditor as well. You may want to send the letters with tracking, so you can confirm when and if it is received.

Include in your envelope:

  • Copy of the dispute letter
  • Copy of your credit report with the error highlighted or circled
  • Copies of any supporting documentation

Step 5. Wait for a response

The credit bureau will look into it, but it may take about 30 days for them to take any action.

What happens if your dispute isn’t fixed?

If the problem is not fixed, try again a second time. May be this time you threaten a Consumer Finance Protection Bureau complaint.

If you need to submit your credit report for a time sensitive loan application, you may want to provide the dispute paperwork with your application, so the lender can see that there is a dispute pending.

 

James Schwitalla Persuades U.S. Supreme Court to Deny Certiorari to the State of Florida

SCOTUS DENIES CERTIORARI

On June 26, 2017, the U.S. Supreme Court denied the State of Florida’s Petition for Certiorari in the case of Fla. Dept. of Rev. v. Gonzalez (U.S. Supreme Court Case No. 16-1013).  This decision brings to an end the 5-year fight Mr Schwitalla has waged for his client.  Attorneys General of 17 other States joined the State of Florida, and filed a Brief in Support of Florida as amici curiae.

SCOTUS PERSUADED BY BRIEF IN OPPOSITION

The Supreme Court reached its decision only after asking Mr. Schwitalla to file a response on behalf of his client.  It then considered Mr. Schwitalla’s 8,485-word Brief in Opposition to Petition for Certirorari.  Mr. Schwitalla persuaded the Supreme Court to decline to hear the case, which sends a clear signal to all creditors that the terms of a confirmed plan are binding upon them as to all issues that were, or could have been, litigated at or before confirmation.  The Supreme Court’s decision is of great interest to Chapter 13 and Chapter 11 attorneys alike, as the State of Florida’s position – rejected by the U.S. Supreme Court – represented an attack on the finality and binding effect of confirmed plans of reorganization.

Kelly Roberts selected as 2017 Florida Super Lawyers Rising Star

The Bankruptcy Law Offices of James Schwitalla, P.A. is pleased to announce that Attorney Kelly Roberts has been selected as a 2017 Rising Star in the area of Bankruptcy by Florida Super Lawyers Magazine for the third year in a row! The Rising Star distinction is a Super Lawyer who is under 40 years old and has been a practicing attorney for less than 10 years.

Florida Super Lawyers Magazine publishes each year a list of outstanding Florida lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Only 2.5% of attorneys from each state earn this distinction. The selection process involves peer nominations and evaluations coupled with independent research by Super Lawyers.

 

NACBA Appellant Award

James Schwitalla receives NACBA Appellate Award

On May 5, 2017, James Schwitalla received the NACBA Appellate Award during the Keynote Luncheon at the 25th Annual Convention of the National Association of Consumer Bankruptcy Attorneys for his win in the Eleventh Circuit for Florida Dept of Revenue v. Gonzalez, 832 F. 3d 1251 (11th Cir. Fla. 2016).

The conference took place in Orlando at the Walt Disney World Dolphin Hotel.  The awards were presented by Matt Lewis, Senior Columnist for the Daily Beast and author of “Too Dumb to Fail.”

The Eleventh Circuit case is now pending certiorari to the U.S. Supreme Court this term. The case will be argued by Schwitalla if the case is granted certiorari.

#NACBA25

Income Based Student Loan Programs

When student loan payments in repayment become too much for your monthly budget, income based student loan programs are there to help make the payments more affordable.  These income based repayment options adjust your payment to a percentage of your discretionary income, the income difference between the household’s adjusted gross income and 150% of the poverty line.

These programs include:

  1. PAYE PLAN- Pay as you Earn Plan. This income based repayment program is also for Federal Direct Loans and requires that you be a new borrower as of October 2007 with a loan disbursement on or after October 2011. After a showing of “partial financial hardship“, a calculation showing that your standard repayment exceeds a payment based on 10% of your adjusted gross income less 150% of the poverty line. After 20 years of payments, any unpaid amounts will be forgiven. The forgiveness amount will be imputed as income by the IRS, so the there may be a few payments to the IRS after the forgiveness.
  2. REPAYE PLAN-Revised Pay as you Earn. This more generous version of the PAYE program was launched by the Department of Education in 2015. The program is available to all borrowers with Federal Direct Loans, not just new borrowers under the definition provided in the PAYE plan.
  3. IBR PLAN- Income-Based Repayment.  This program looks at your income and family size every year to adjust the payment through a re-certification where a new application is submitted each year.
  4. ICR PLAN- Income-Contingent Repayment.  This income based repayment program is only available for Federal Direct Loans. Be careful with this program because sometimes the income contingent payment could calculate to higher than the standard repayment monthly payment!

To find out whether your loans qualify for one of these programs and more detailed information about these programs, visit studentaid.ed.gov.

 

Tax Debt

IRS Tax Lien & Your Florida Homestead

It is long thought that your Florida Homestead protections under the Florida Constitution render your home untouchable to creditors. This is true for the most part, but there are exceptions, such as IRS tax liens.

The Internal Revenue Service (IRS) is given enhanced creditor powers to collected on amounts owed. These powers allow for the IRS to levy or liens. A levy is a legal seizure of property, such as a garnishment of a paycheck, bank account, seizure of a vehicle, real estate or other personal property.

An IRS tax lien is claiming the secured rights to the collateral. What happens is the IRS will file a Notice of Tax Lien when a tax bill goes unpaid. This gives notice to other creditors of its claim to the property. This IRS tax lien is something that most clients become alarmed about when they go to refinance, sell, or modify the mortgage on their home and find that they are prohibited from doing so because of the lien. There are ways to move forward with the sale/refinance closing, however you will need to provide documentation to the IRS and give some assurance to the IRS that the loan or sale will aide you in paying your outstanding IRS Tax bill.

Difference between a Levy and a IRS Tax Lien

IRS Tax Levy

  • Taking of property
  • No public recording
  • No negative reporting to credit

IRS Tax Lien

  • No taking of property
  • Asserting legal claim/ security interest in property
  • Public Records recording of Notice of Federal Tax Lien
  • Negative reporting on credit report

Will the IRS Sell my Homestead to Satisfy an IRS Tax Lien?

The technical answer is yes. Under IRS section 6334, the IRS can take principal residences to satisfy tax debts over $5,000. The IRS is given super creditor powers to access just about every asset a person owns. I have had clients where their retirement accounts were levied upon (cleaned out) to satisfy a personal income tax debt.  However, the real answer is that the IRS will not likely take anyone’s home when it is so much easier to take bank accounts, garnish wages and access other property. For the IRS to forcibly take a Florida resident’s home, the IRS is required to get approval by a District Court judge or magistrate.

How to Get Rid of an IRS Tax Lien

The easiest solution is to pay it. However, it is understandable that sometimes the balance is too large and it is hard to get on a payment plan with the IRS. A chapter 13 bankruptcy can be a good tool for dealing with IRS issues that arise when a business closes or a change in jobs leaves you with a large tax bill and seemingly no options.

Call (305) 278-0811 to schedule a free consultation with one of the bankruptcy attorneys in our office to find out your options.

Got Debt? Miamibankruptcy.net

Help! I can’t afford my Student Loans!

Student Loans are a special kind of unsecured debt. This debt is non-dischargeable in bankruptcy, so while bankruptcy can help you free up funds for the payment of student loans by helping you to get rid of credit cards, repossessions, and old income tax obligations, in most cases it cannot get rid of your student loans. I often tell clients that it is easier to get rid of Uncle Sam (taxes) than it is to get rid of Aunt Sallie (student loans).

But, this does not mean you are stuck. There are things that you can do to help yourself with student loan payments that you cannot afford:

  1. Pick up the Phone.  Call your student loan  provider to see what programs are available to lower your payments or give you temporary relief from the payments. Just remember when you are on the phone to push to get information about all the programs available to you.  Do not just follow the instructions from the representative on the phone.  Servicers, such as Navient, are being sued by the U.S. Government for failure to provide borrowers with information and help.  In these suits, the servicers have claimed that in enrolling borrowers in the programs that were less time consuming and labor intensive for the servicers rather than the best program for the borrower that it was unreasonable for the borrower to expect the student loan servicer to act in the best interest of the borrower.  So be careful and do your homework!
  2. Get your Income Information Together.  An income based repayment plan may be a better option than temporary relief from any payment.  It easy in a fit of financial panic to take the option that frees up the most monthly income for other items needing your attention, but this decision may bite you in the butt later when payments must be made and the balance is quite a bit bigger than you remember.  You must choose which option is the best fit for you.  Which is best for you? The program that gives you the lowest payment or the program that most affordably allows you to pay off the student loan?
  3. Stick to the Plan.  If you default on a plan to repay or modified payment, work to either cure the default or research a new plan that is a better fit.  A good resolution is not a default ruining your credit report and your student loan balance getting larger.
  4. Refinance.  Refinancing part or all of your student loan may be a good solution.  There are a variety of companies that allow for the refinancing of student loans.  Refinancing may make the payment more manageable by extending the terms of repayment and lowering the interest rate.  Some companies allow you to extend the payments out to 25 years.  The downside is that the options for forbearance or deferment may not be available once the loan is refinanced.  There are a variety of websites that provide information about student loan refinance, such as Credible.com, Studentloanhero.com, and Consumeradvocate.org. Once again, make sure to do your research!

 

bankruptcy affect spouse

Will filing bankruptcy affect my non-filing spouse?

I am often asked whether filing bankruptcy affect the non-filing spouse. Simply the answer is yes, the bankruptcy will likely affect your spouse. See below for the descriptions of how your non-filing spouse could be effected.

I am often asked this when consulting with a prospective client where one spouse is in financial trouble and the other non-filing spouse has a good job and little to no debt issue. Often, the situation is that the spouse in the better financial situation does not want the other spouse’s debt issues to impact his/her income or the assets that they hold jointly.

Things to know about filing bankruptcy when you are married:

  1. It is not a requirement that a married couple both file bankruptcy together. You can file your bankruptcy without including your spouse as one of the Debtors in the case, but it will indicate on the bankruptcy filing that you are married and that your spouse did not file.
  2. Your non-filing spouse will have to provide income information. Bankruptcy requires a lot of financial disclosures. The bankruptcy process takes into account the household size, household income and household debts. This information is used in the means test to determine whether a person is eligible to file chapter 7 bankruptcy. Alternatively, in a chapter 13 bankruptcy, the information determines the plan payment amount and the length of the plan (36 or 60 months). This means even though your spouse did not file bankruptcy, the non-filing spouse will have to provide information for the disclosures to be accurate.
  3. The non-filing spouse’s credit should not be effected. Your spouse is not providing his/her social security number, so his/her creditors and/or employment will not be notified of a bankruptcy. However, be warned that joint accounts will show that the obligation was included in a bankruptcy and automatic payments may stop. You may have to pay with good, old fashion checks since the electronic and phone payment options may not be available for the first few months of your bankruptcy.
  4. The trustee will know if you try to hide your non-filing spouse’s income. A federal bankruptcy filing is done under penalty of perjury. In addition to the filing, you will need to provide support documentation and testimony to support your filing information. The trustee will be looking at bank statements, paychecks, tax returns and other financial documentation. Once the trustee finds out that you tried to hide your non-filing spouse’s income, then the trustee will likely get more aggressive because he/she will be wondering what else you were trying to hide.
  5. Household Income is the standard even if you keep everything separate. Unfortunately, even if you are a couple that keeps your finances separate, the bankruptcy process looks at the expenses of the household all coming out of the same pot of income.

To find out details and information about how a bankruptcy filing could affect your spouse in your particular situation, schedule your free consultation (305) 278-0811 with one of the bankruptcy attorneys in our office!

quiet title

Florida Supreme Court decides Bartram Quiet Title Case

On November 3, 2016, the Florida Supreme Court released its Quiet Title decision in Bartram v. U.S. Bank, N.A.  The court affirmed the decision of the Fifth District Court of Appeals. In layman’s terms, the homeowners lost and the lenders won. The court held that the lender could sue based on new defaults that occurred even when the initial defaulted payments and acceleration were past the five-year statute of limitations.

The court rationalized that the dismissal of the foreclosure action returned the parties back to where they were before the acceleration and the foreclosure action was filed. Therefore, if the lender lists the newer defaults on the payments that were not barred by the five-year statute of limitations, the lender can file a new foreclosure and fix the deficiencies of the old foreclosure case that was dismissed.

This means that for a homeowner to win in a quiet title action the note would have to come due (reach its maturity date), then have five years pass in order to render all payments under the loan due and all barred by the statute of limitations. In this situation, the lender would be out of luck because the five-year statute of limitations will have run and there is no possibility for new defaults to restart the clock allowing a lender additional attempts to get the property back if the foreclosure was dismissed.

 

consultation

Initial Bankruptcy Consultation: What to expect

Your initial bankruptcy consultation is your first meeting with a bankruptcy office. In this meeting, you will decide if the firm and bankruptcy attorney are the right fit for you and make you feel comfortable. Additionally, you will be given the information and education to decide if filing bankruptcy is the right choice for you and your family.

It is important to have access to an experienced bankruptcy attorney for this meeting. Not all offices provide access to an attorney for their new client bankruptcy consultations. For our office, your initial consultation will always be with an attorney. We do it this because it is important that you start with a relationship with the person who is going to guide you through the process and give you legal advice. Paraprofessionals and/or a receptionist should not be the one to give you legal advice since it is your attorney that has the training and experience with the court! That being said, you will be working with the staff and other attorney in the office as well because you are hiring the firm, but you should have access to your first point of contact for explanations and guidance along the way.

Attorneys routinely provide a free initial bankruptcy consultation. Our office offers free consultations though there are a few exceptions. The consultation can take a while, but this is because you will have our undivided attention during this time and our attorneys will sit with you until all your questions are answered.

The initial consultation involves discussing your current situation and problems to see if bankruptcy can help. Prospective clients often ask what they should bring to the initial bankruptcy consultation. It is not necessary to bring anything with you to the initial consultation at our office, but it may be helpful to bring information about your current income, expenses, debts and any pending lawsuits. There will be an intake form that needs to be filled out. Think about the bankruptcy consultation as a doctor’s appointment where you are getting a problem checked out. The doctor can’t just tell you what is wrong and how to fix it without you answering a lot of questions and providing information about what is going on with you right now. The bankruptcy consultation is like a doctor’s appointment for your financial situation. The more detailed the information provided to us in the consultation, the better our recommendations will be!

Please call our office (305) 278-0811 to schedule your initial bankruptcy consultation with our office!