As employers begin recalling their workers, the topic of mandatory vaccinations has seemingly taken center stage. Of course, employers have a duty to provide a safe working environment to their employees. However, employers also have a countervailing duty to engage in a good-faith interactive process to accommodate the disabilities or sincerely held religious beliefs of their employees.

There are certain persons who suffer from disabilities that do not permit them to be vaccinated. While the ADA permits employers to have a “qualification standard” that employees do not pose a direct threat to the health or safety of individuals in the workplace, if this standard tends to screen out disabled employees, the employer must show that there is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In order to make this showing, the employer must first engage in a good-faith interactive process with the employee to accommodate the disability.  Because the use of teleworking became more prevalent during the pandemic, continued telework is likely to be considered a reasonable accommodation for office workers. On the factory floor, the continued use of masks may also serve as a reasonable accommodation under the ADA for these disabled workers.

Because Title VII protects workers from religious discrimination in the workplace, employers should also take care to properly address requests for religious accommodation made by employees who wish to decline the vaccine on the basis of a sincerely held religious belief. The accommodation process here is similar to the process followed under the ADA.

To better assess the risk that unvaccinated members of the workforce may pose in the workplace, an employer is permitted to ask its employees whether they have received the vaccine, as such a question is not considered a “disability-related inquiry.” However, employers should be wary of adopting this route, as the information gleaned must be stored in a file separate from the employee’s regular personnel file, and further inquiries into the reason for receiving or not receiving the vaccine may not be permitted.

The topic of employers requiring vaccines as a condition of employment presents numerous pitfalls. And as with most aspects of the law, navigating it will not be subject to a one-size-fits-all approach. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. If you need assistance with these matters, feel free to consult Stephen E. Imm (513.943.5678) or Matthew S. Okiishi (513.943.6659).

 

Cincinnati homeowners may obtain a Community Reinvestment Area (“CRA”) tax abatement by renovating existing residential structures. This practice is common and reduces tax liability for homeowners who make such renovations. That said, recently, various homeowners with existing CRA Tax Abatements suffered a reduction in their existing CRA Tax Abatement. This issue was as new to us as it may be to you.

To preemptively clear up the foregoing issue for others, this blog post will discuss a background of the CRA Tax Abatement Program for existing residential structures, the importance of submitting the application in a timely manner, and how the Hamilton County Auditor’s Office, which has a duty to make appraisals, and can make such appraisals based on its own preferred method, calculates Tax Abatements.

Background

The CRA Tax Abatement Program is meant to stimulate revitalization, retain residents, and attract new homeowners, in the Cincinnati area. To encourage the foregoing types of behavior, the City of Cincinnati Department of Economic Development provides CRA Tax Abatements to certain homeowners who renovate existing residential structures (e.g., residential homes and residential condos, up to three units). To qualify for a CRA Tax Abatement, the cost of renovations must total at least $2,500.00, or $5,000.00, depending on the number of units in the residential structure. Some renovations, which might increase the marketability of a residential structure, are not contemplated in the cost of renovations (e.g., roofing, windows, gutters, vinyl siding, etc.) Likewise, unrelated improvements and tax on the land itself are not contemplated in the cost of renovations.

To apply for the CRA Tax Abatement Program, applicants will need to submit an application to the City of Cincinnati Department of Economic Development. Applicants who are renovating existing residential structures must pay an application fee of $250.00, which may be paid by check, to the “City of Cincinnati.” Also, applicants will need to submit evidence showing that all permits related to the renovations are closed. Applicants may obtain such evidence here. Finally, applicants will need to submit a document evidencing the costs of the renovations. Such evidence should be in the form of a notarized list indicating (i) the general categories of the work completed; (ii) the date such work was completed; and (iii) the expenses, including costs of labor, associated with each category of work completed.

Timing of the Application

Under the CRA Tax Abatement Program, the Hamilton County Auditor’s Office can set a CRA Tax Abatement Period for, at most, ten years, unless homeowners comply with LEED, LBC, or HERS standards, which are not discussed herein. That said, under the CRA Tax Abatement Program, the applicant cannot apply for the abatement until renovations are complete, and the CRA Tax Abatement is not applied to the residential structure until the application has been submitted.  Despite those rules, the abatement period begins when the renovations are commenced. Furthermore, it might take the City of Cincinnati eight weeks to respond to the application. As such, an applicant should complete their renovations and apply as quickly as possible to avoid missing out on their CRA Tax Abatement period.

Calculation of the Abatement

The Hamilton County Auditor’s Office recently started calculating CRA Tax Abatements under the “Percentage Method.” Under the Percentage Method, the Hamilton County Auditor’s Office determines a homeowner’s CRA Tax Abatement amount by dividing the contributed value of all the improvements, at the time construction began, by the value of the home without improvements. The purpose of the Percentage Method is to provide homeowners with a percentage that remains consistent, despite changes in home values.

Before the Percentage Method, the Hamilton County Auditor’s Office calculated CRA Tax Abatements under the “Beginning Value Method.” Under the Beginning Value Method, the Hamilton County Auditor’s Office determined a homeowner’s CRA Tax Abatement amount by subtracting the value of the home without improvements from the contributed value of all the improvements, at the time construction began. The Beginning Value Method created an issue where homeowners were unable to truly appreciate the value of their CRA Tax Abatement, because, when their property value increased, the value of their abatements did not, leaving them with little tax liability savings.

Due to the foregoing issue, the Hamilton County Auditor’s Office reacted by creating the Percentage Method. Despite its best intentions, the Hamilton County Auditor’s Office did not provide for grandfather clause for the various homeowners, with CRA Tax Abatements, who were content with their CRA Tax Abatement Valuation. This gave rise to the issue first described in this blog post, which the Finney Law Firm resolved for similarly situated homeowners. So, if you are a similarly situated homeowner and need professional guidance on how to remedy such issue, call the Finney Law Firm, today!

Are you looking for guidance on how to deal with oppressive debt? You may be thinking that you need a big-time law office to protect you and your assets. That may be the case in some legal situations, but when it comes to a consumer bankruptcy, you need a local bankruptcy attorney to handle your case.

If you are looking for information on the bankruptcy process you need a Northern Kentucky, Dayton, or Cincinnati bankruptcy attorney. Local attorneys will have the ability to provide more accurate legal advice regarding the nuances of bankruptcy laws and how the Bankruptcy Court in your district applies those laws. It is possible for a bankruptcy debtor to file without representation, but bankruptcy can be a difficult legal area to navigate. You should never assume that your case is an easy one.

When other avenues have failed to solve your financial problems, credit card debt continues to grow, you have creditors harassing you, wage garnishment has been ordered or you are facing foreclosure or repossession, it may be time to find out about the different types of bankruptcy. For more information visit our bankruptcy practice page.

The Bankruptcy Code allows debtors who qualify to file a bankruptcy case. Typical consumer debtors may be eligible for filing chapter 7, chapter 13, or chapter 11 in some circumstances.

Chapter 7

Chapter 7 bankruptcy is a liquidation. The trustee in the case is responsible for determining what assets the debtor has, whether there is any equity above and beyond what the debtor can protect through state or federal bankruptcy exemptions and collecting and distributing the proceeds to creditors who file a proof of claim. Most chapter 7 bankruptcies do not result in a distribution to creditors. This is usually due to a thorough investigation by debtor counsel prior in preparation of the bankruptcy case.

A chapter 7 debtor must qualify to file based on their income. The income received in the six months prior to filing is averaged to determine if the debtor is above or below the median income for their state and household size. If the debtor is above the median income there is an additional calculation called the “means test” that considers necessary expenses of the debtor. If, after the necessary expenses are deducted from the income, there is enough money left to pay a reasonable percentage to unsecured creditors, the debtor will not qualify for chapter 7.

Whether there is a distribution by the trustee or not, the chapter 7 will result in a discharge of certain debts. Credit card, medical, deficiency balances after surrender of secured collateral, some tax debts are examples of debts that may be discharged.  However, there are some obligations that cannot be discharged. Domestic support obligations, property settlements through divorce, recent tax debt and student loans are types of debt that may not be discharged in chapter 7.

A chapter 7 has limited benefit if a debtor is trying to keep a home or vehicle that is in default. Depending on the circumstances a debtor will delay a foreclosure while trying to work out a loan modification with the mortgage company. In the case of a default on a car loan it may be possible to “redeem” a vehicle for the value of the vehicle rather than what is owed. However, this may require a replacement loan or lump sum of cash.

Chapter 13

A chapter 13 bankruptcy is a repayment plan, or a “wage earner’s plan”. There are many reasons a debtor will choose to file a chapter 13 instead of a chapter 7. If the debtor’s income is too high and there is disposable income left over after calculating income and necessary expenses the court will find the debtor ineligible for a chapter 7 and require a payback of a percentage of the debt over a three-to-five-year period.

If the debtor has assets, they would lose in chapter 7, and therefore a chapter 13 is an avenue to keep those assets while paying back at least the value of the non-exempt asset over the life of the plan. The debtor must pay the greater of the value of the non-exempt equity or the disposable income, whichever is higher.

There may also be benefits a debtor could take advantage of in a chapter 13 that they would not have at their disposal in a chapter 7. A debtor in default on a home loan may catch up on the arrearage over the life of the plan while paying the regular monthly payment if their income is sufficient to do so.

If a debtor intends to keep a car subject to a lien the car must be paid off during the plan. If the car was purchased more than 910 days prior to filing the debtor will pay what the car value is at time of filing rather than what they owe. In addition, the interest will be adjusted to what is called “Till” rate which is prime plus a risk factor. The benefit here for some clients could be significant if the debtor had rolled in negative equity in the car loan through a trade in or if the interest rate is high, such as those seen in title loans and buy here pay here lots.

Another benefit of chapter 13 is the dischargeability of property settlement agreements through a divorce decree. In contrast, as domestic support obligations are never dischargeable, arrearages on these obligations, as well as past due tax debt, can be paid off in full during a chapter 13 plan.

Chapter 11

A chapter 11 is what is referred to as a “reorganization’. It is typically thought of a business bankruptcy. The usefulness of the chapter 11 for a consumer debtor is when a debtor does not qualify for a chapter 7 due to high income and does not qualify for chapter 13 because the amount of the filer’s debt is higher than the limit allowed in a chapter 13.

If you are seeking legal advice on what type of bankruptcy is right for you, please contact Finney Law Firm for a free consultation with local Northern Kentucky, Dayton, and Cincinnati bankruptcy lawyer Susan Browning, (513)797-2857.

Insurmountable debt is a stressful life event to handle.  Thankfully, the Federal bankruptcy laws provide an outlet to escape this pressure when other avenues have failed.  Making the decision to begin the bankruptcy process can be an even scarier prospect.  If you have committed to solving your financial problems by filing for bankruptcy it will be useful to know how to be prepared for your first visit with a local bankruptcy attorney.

You will find other helpful blogs on Bankruptcy Basics if you visit our bankruptcy practice page at https://finneylawfirm.com/practice-areas/bankruptcy/.

Consultation

A consultation with a bankruptcy practitioner will be the first step in preparing for your bankruptcy case.  Each attorney will have their own methods for conducting this meeting and the extent to which you will be required to provide documentation ahead of time.  At Finney Law Firm the initial contact is typically a 30 minute free consultation, either in person or by phone, where basic information will be gathered by the attorney regarding income, expenses, unsecured debts and secured debts, and assets.  A basic understanding of these ___ is all that is required during this conversation as the attorney will gather more extensive details and documents after being retained.  However, it can be helpful to obtain a copy of your free credit report before the consultation.  The goal of this meeting is to give the debtor information regarding the types of bankruptcy available and to determine on a basic level if bankruptcy is an option, are there other options, and whether the debtor qualifies to file.  These determinations may change as more information is gathered from the debtor.

Questionnaire and document gathering

Once the practitioner and debtor determine whether to file for chapter 7 bankruptcy or chapter 13 bankruptcy, a questionnaire will be provided to the debtor as well as a list of required documents.  Diligent and thoughtful preparation at this stage is essential to a successful case filing.

Debtors find this process tedious, but the Bankruptcy Code requires a debtor and debtor’s counsel to take these steps to provide as accurate and thorough information as possible.

Income details will include paystubs, profit/loss or proof of other income from the last six months through filing and tax returns for the previous three years.  All income of the debtor, including any side jobs, are included in the bankruptcy filing.  Documents pertaining to any assets owned are gathered by the debtor and provided to the attorney such as bank statements, car titles, security agreements, deeds, mortgages, contracts, leases, insurance policies and appraisals.  All assets are listed in the bankruptcy regardless of whether they are owned free and clear or have a lien attached.  Details regarding financial activity of the debtor are disclosed, including transfers of assets for the last four years (and in some cases ten years), payments of money to family, friends, and creditors over the last year and divorce decrees, to name a few.

Your attorney will need to know where you have resided in the last two to three years prior to filing to determine where you can file and what state or federal exemptions may be used to protect your assets.

If you have not done so already, you or your attorney will obtain a copy of your credit report.  A credit report is rarely a reflection of all your debt. Some creditors do not report to credit reporting agencies.  Additional details, including but not limited to, medical bills, student loans, domestic support obligations (such as child support and alimony), property settlement obligations in a divorce decree, contracts and prior bankruptcy filings must be provided to supplement the credit report.  All debts must be listed in the bankruptcy petition regardless of who it is owed to or whether you intend to continue paying them after bankruptcy.

The last step prior to filing your bankruptcy case is to take an online credit counseling course provided by an accredited agency.  The cost of this course varies by provider but averages around $20.00.  After completion, the provided will send a copy of your certificate to you and your attorney for filing with the petition.

Filing and Post-filing

After all documents are gathered and payment is made in full to your attorney (the bankruptcy court requires attorneys to be paid in full prior to filing), the bankruptcy petition is prepared, thoroughly reviewed by debtor and attorney together, and signed by both.

If the debtor is filing a repayment plan under chapter 13, this will undergo the same process.  A payment plan provides the trustee, the Court, and the creditors with details regarding the percentage of repayment to unsecured creditors, treatment of secured creditors and collateral securing those debts, intention to continue or discontinue leases and other contracts and the debtor’s proposed monthly payment.

The petition (and payment plan, if applicable) is filed electronically, a trustee will be appointed, and a date is set to have a hearing called a “341 Meeting of Creditors”.  At this point, these hearing are being held telephonically due to the pandemic.  Although it is uncertain, this procedure is likely to continue.

Many documents provided to your attorney will be given to the trustee for review prior to the hearing.  After verifying your identity through social security card and picture identification, the trustee questions the debtor on the record regarding the information provided in the petition.  These hearings are generally not lengthy and are streamlined in the questioning.  Your bankruptcy attorney will prepare you for the questions and attend the hearing with you.

A chapter 13 will have an additional hearing to determine whether a proposed chapter 13 plan is confirmed by the court.  These hearings are usually not attended by the attorney and debtor unless concerns and objections to the plan have not been resolved prior to the hearing.

The creditors in your case have sixty days after your bankruptcy filing to object to discharge of the debt you owe to them.  If no objections are filed in this time period, a discharge will be issued on all dischargeable debts in a chapter 7.  In a chapter 13 a discharge is not issued until all payments have been made under the proposed and confirmed plan.

If you are ready to begin your journey to financial stability, contact Susan Browning at Finney Law Firm, 513.797.2857, for a FREE consultation.

Today’s Canton Repository reports here on our latest lawsuit against the Stark County Board of Elections‘ planned purchase of Dominion Voting Systems voting machines. The contract was procured through illegal closed meetings — in executive sessions called for an improper purpose under Ohio law.

Finney Law Firm has a long history of successfully prosecuting cases involving violations of Ohio’s Open Meetings laws as part of our broad public interest law practice, including the notorious Gang of Five case involving members of Cincinnati City Council.

Contact Chris Finney (513.943.6655) for assistance with your Ohio Open Meetings issues.

Despite recent improvement in the economy the circumstances of the last year have taken their toll on the financial stability of American households.  Many are unable to manage their finances as they did before.  Bankruptcy may be an option for those individuals dealing with overwhelming debt.  This blog will explain the ways in a Chapter 13 bankruptcy may be a benefit. This type of bankruptcy is also called a “wage earner’s plan” as it requires some type of regular income to make the monthly payment over the life of the plan.

For further information regarding bankruptcy please visit our bankruptcy practice page at https://finneylawfirm.com/practice-areas/bankruptcy/.

Preparation for filing Bankruptcy

Debtors who seek the protection of the bankruptcy court must begin by providing information regarding unsecured debts, secured debts, income, expenses, and assets to their attorney in order to obtain proper legal advice on what chapter of bankruptcy is appropriate for them.  In addition, this information is necessary to fill out the required bankruptcy forms.  Your attorney will provide a list of documents to gather including but not limited to car titles, security agreements, life insurance policies, bills, tax returns, pay stubs, proof of other income, bank statements, and deeds and mortgages.  This is the most difficult part of filing bankruptcy as it can be time consuming and frustrating.  It is also the most important part of filing if you want proper legal advice regarding your financial situation and suitability to file bankruptcy.

Chapter 7 is what most debtors would prefer to file due to the lower attorney fees and shorter amount of time the case is active.  However, chapter 7 is not a solution for every debtor.

Chapter 13 is a repayment plan where the debtor pays a certain percentage back over a three to five year period.  This chapter is beneficial for debtors who have too much income to file a Chapter 7, debtors who may lose assets that are not protected by state or federal exemptions, or there may be some benefit the debtor can obtain by filing a Chapter 13 instead of a Chapter 7.

A credit report will be helpful when meeting with a bankruptcy attorney.  Anyone can pull a copy of their credit report for free once a year at www.annualcreditreport.com.  Even though this is not always a complete list of your creditors it will be a good place to begin.  The debtor will then supplement with bills and in some cases their memory of what they owe.

After an attorney reviews your information and documents, a determination will made as to what chapter is advisable to file, if any.

What will follow is further updating of documents and information, and a final meeting to review, refine and sign the bankruptcy documents before filing with the Bankruptcy Court.

Filing chapter 13

When filing a petition with the Bankruptcy Court, whether it is a Chapter 7 bankruptcy or a Chapter 13 bankruptcy, the court imposes an automatic stay that prevents creditors from collecting from the bankruptcy debtor.  This is usually the point where the debtor feels a great deal of relief as their phone stops ringing and collection attempts have ceased.

If a debtor files a Chapter 13, a repayment plan will also be filed.  This plan details how unsecured creditors will be treated during the course of the Chapter 13.   Some creditors have a priority over others and will be treated differently than non-priority unsecured creditors.  This includes child support and alimony which must be brought current and taxes which must be paid in full through the plan. In addition, it will propose how to treat secured obligations such as car loans and mortgages.

Unsecured debts such as medical bills and credit card debts will be paid pennies on the dollar with the balance being discharged at the end of the plan.  Unfortunately, student loans will be paid pennies on the dollar as well but, as of now, are not discharged at the end of the plan.

The calculation of how much these creditors will be paid depends on the debtor’s disposable income after calculating monthly income and reasonable monthly expenses.  If the debtor has assets with equity that was not protected by exemptions, the debtor must pay back the greater of the disposable income or the amount necessary to pay back the unprotected equity.

Some benefits of filing a Chapter 13 include catching up on a mortgage in default, cramming the principal owed on a car loan down to the value of the car rather than what you owe (if purchased more than 910 days prior to filing) and possibly reducing the applicable interest rate.  Even though child support and alimony obligations are never discharged in bankruptcy, property settlements are dischargeable in a Chapter 13, not in Chapter 7.

After calculating what will be paid to unsecured creditors, mortgages, mortgage arrearages, car loans, taxes, and/or domestic support obligations a monthly payment will be proposed.

After filing Chapter 13

After filing a Chapter 13, a bankruptcy trustee will be appointed and a 341 Meeting of Creditors will be scheduled.  This meeting allows the trustee and creditors to ask questions of debtor and debtor counsel regarding the petition and the plan.  These meetings are currently being held telephonically due to the pandemic but that may change in the future.  The debtor must make the first monthly payment within thirty days of filing the petition and continue monthly thereafter.

If the trustee or creditors have concerns about the plan provisions the debtor is given time to amend the plan.  If the plan is accepted without any objections it is presented to the court for approval.  In the alternative if there are outstanding objections to the plan it will be brought before the Bankruptcy Court at a confirmation hearing to make a determination whether it will be approved.

Once the plan is confirmed, the debtor continues with payments for the remainder of the plan period and updates their attorney, the trustee, and the court of changes to their financial situation.

A further benefit of Chapter 13 bankruptcy is that it may be dismissed at any point by the debtor, whereas, a Chapter 7 may only be dismissed with court approval.

Discharge

At the end of the plan period, if all payments have been made, the debtor receives a discharge of unsecured debt, other than student loans, a mortgage in default should be current, and car loans included in the plan will be paid in full.

If you would like a free consultation with a seasoned bankruptcy attorney, contact Susan Browning at Finney Law Firm, (513) 797-2857.  Our firm provides service to Cincinnati, Northern Kentucky and the Dayton areas.  As a convenience to our clients, bankruptcy consultations can be held by phone.

There is a significant new development in Ohio property tax challenges directly and narrowly resulting from valuation reduction arising from the COVID-19 pandemic allowing such challenges this year.

As we discussed in a blog entry here, because of the unique timing of real property valuations versus billing, Ohio property owners impacted by COVID-19 rent reductions and closures really could not bring successful COVID-related valuation challenges before Boards of Revision in 2021.

To exacerbate that problem, Hamilton, Clermont, Butler and Montgomery Counties had the first year of the tax triennial in 2020 (for challenges in 2021). Therefore, if a property owner attempted a COVID valuation challenge in 2021 and lost, a property owner would be stuck with a bad (high) valuation for three years (tax years 2020, 2021 and 2022, billed and payable in 2021, 2022 and 2023).

This placed owners of certain properties in significant financial straits: Owners of apartment buildings near a university where student-based occupancy plunged or downtown when nearby office buildings cleared out, owners of large office buildings that could not rent because of COVID-related vacancies, owners of hotels and motels and other properties in the travel and hospitality industry, owners of restaurant properties and owners of malls and retail strip centers.

That all changed two weeks ago when Governor DeWine signed into law S.B. 57 which adds a second challenge period in 2021 narrowly targeted to COVID-related property valuation reduction (i.e., not that of general market conditions).

Here is the quick overview:

  • “Second bite” challenges may be filed with the Auditor only between July 26 and August 25, 2021.
  • “Second bite” challenges must narrowly be tailored to valuation reduction as a result of COVID-19.
  • The target valuation date for “second bite” valuations is October 1, 2020.
  • The “second bite” valuation reduction is retroactive to January 1, 2020 (before the pandemic hit America).
  • The “second bite” valuation reduction will last for the remainder of the triennial (in Hamilton, Clermont, Butler, and Montgomery Counties thru the 2022 tax year, billed and paid in 2023).
  • The bringing, and “win” or “loss,” of a valuation challenge for the “second bite” hearings is in addition to the general challenge filed before March 31, 2021 and does not prejudice non-COVID-related (i.e. general market conditions) challenges in later years.
  • The legal and evidentiary hurdles associated with “second bite” challenges are the same, as we see it, to challenges brought in Ohio, meaning an appraisal (supported by testimony from the appraiser) and presentation by a qualified attorney are strongly recommended.

If you have a “second bite” property that would benefit from a challenge narrowly targeted to COVID-19 economic impact, please quickly contact Chris Finney (513) 943-6655) or Casey Jones (513-943-5673) to allow us to help you secure this tax savings.

Sometimes a client comes to the Finney Law Firm concerned about their neighbor’s rights to an easement over their land leading to the question: who has the duty to maintain and repair the easement? A big concern for these clients is the cost of the maintenance and repair of the easement. These easements tend be associated with driveways and sewer lines. This blog post is designed provide some general background as to what easements are and address the cost concern for individuals in similar situations.

Background on easements

An easement is an interest that may burden another persons’ land. The interest entitles the owner of the easement to use the land in some limited way. The extent of that interest is determined by the process which creates the easement.

There are two kinds of easements, the easement appurtenant, and the easement in gross. The easement appurtenant deal with two pieces of land (e.g., two neighboring parcels) and tend to be conveyed with a sale of the land. The easement in gross deal with one piece of land (e.g., one parcel and another person’ right to use the one parcel) and tend to not be conveyed with a sale of the land.

This blog post deals with easements appurtenant.

Creation

An easement may be created by deed, prescription, or implication from the particular set of facts and circumstances. Likewise, some courts allow for an equitable easement, which is referred to as an easement by estoppel. The owner of the easement’s land is called the dominant estate. The dominant estate benefits from the easement. The burdened land is referend to as the servient estate.

Who maintains and repairs?

Generally, it is the duty of the dominant estate to maintain and repair the easement. Likewise, the dominant estate must make the necessary repairs to prevent the dominant estate from created an annoyance or nuisance to the servient estate.

That said, the servient estate can expressly undertake the duty to maintain and repair the easement. This may be done in many ways (e.g., through a maintenance agreement, a grant in a deed, or operation of law).

What if the servient estate also uses the easement?

The servient estate may also use the land on which the dominant estate enjoys an easement. However, that use must be in a way that is not contrary to the dominant estate’s limited use of the land. When an easement is used jointly by the dominant estate and the servient estate, the cost of maintenance and repair of such easement must be apportioned between the dominant estate and the servient estate, based on relative use.

Conclusion

So, if you have a similar situation to those clients that come to the Finney Law Firm concerned about their neighbor’s rights to an easement over their land and who bears the maintenance and repair costs, then it might be time to call the Finney Law Firm.

 

In the last year, our country has seen layoffs, shutdowns, job loss and shuttered businesses due to the pandemic. The government has provided some assistance by way of stimulus checks, increased unemployment payments, and moratoriums on evictions and foreclosures. This has temporarily eased concerns of those struggling financially and delayed their seeking legal advice for debt relief. It has served to stave off, what is anticipated to be, a flood of bankruptcy filings. Unfortunately, these are temporary solutions to a long-term problem.

As moratoriums end and stimulus checks are spent, debtors are searching for a resolution to their economic woes. This article provides basic information on Chapter 7 Bankruptcy as a possible solution. If you would like more information on consumer bankruptcy, please visit our law firm bankruptcy practice page at https://finneylawfirm.com/practice-areas/bankruptcy.

Types of bankruptcy filings

There are several types of bankruptcy a debtor can file: Chapter 7 (Liquidation), Chapter 9 (Municipalities), Chapter 11 (Business Reorganization), Chapter 12 (Family Farmers), Chapter 13 (Wage Earners), and Chapter 15 (Foreign debtors/ Courts . After almost two decades of being a chapter 7 Bankruptcy Attorney, the clear preference for clients is filing a chapter 7.  The reason for this is that chapter 7 is cheaper and quicker than other types of bankruptcy filings. However, it is not without its risks and downsides.

What is a Chapter 7 bankruptcy?

Chapter 7 is a “liquidation” bankruptcy. A bankruptcy trustee will examine your income, expenses, assets and debts. In order to qualify, you must be below a certain income level for your household size. If you are not below this threshold, the case may have to be converted to another chapter of bankruptcy. The trustee reviews the assets you own and what they are worth. After the trustee subtracts what you might owe to a secured creditor from the value of the asset, the balance is considered your equity.

State and/or Federal exemptions are available to protect certain necessary assets up to a certain dollar amount. These exemptions are applied to your equity in each asset.  If no equity remains after this calculation, then you are not at risk of the trustee liquidating that asset. If equity does exist after the calculation, the trustee can sell the asset and pay your creditors a percentage of what you owe to them. Most chapter 7 bankruptcy filings do not end in liquidation and are considered “no asset” cases. In the event assets may be liquidated a debtor must be prepared to lose the asset or look at other options such as Chapter 13.

Chapter 7 requirements

Before filing a bankruptcy case a debtor must take a credit counseling course. After the bankruptcy filing a debtor must take financial management course. If you seek the assistance of bankruptcy attorney, you will be tasked with gathering information and documents to assist the attorney in filling out the bankruptcy petition and schedules.  The petition and schedules will include information on all of your income, expenses, assets, and debts. After these documents have been reviewed with the debtor and attorney and filing fees have been paid, the petition will be filed with the bankruptcy court. A trustee will be appointed and a 341 Meeting of Creditors will be scheduled.

Chapter 7 procedures

Roughly six weeks after the filing of the case, the debtor will attend the 341 Meeting of Creditors (currently held telephonically). It is a short hearing where the trustee reviews your petition and clarifies its contents on the record. If you have retained counsel, they will attend this hearing with you. Creditors are allowed to attend this hearing and ask questions of the debtor regarding the debt or any collateral that secures the debt. Following this meeting, the creditors have 60 days to object to your discharge. If no objections are filed, the debtor will receive their discharge a few weeks later.

Chapter 7 outcome

Chapter 7 can discharge many forms of debt such as credit card, medical bills, debt from repossession, foreclosures, and payday loans to name a few. However, student loans, recent taxes and marital support or settlement debts cannot be discharged in a Chapter 7. It is possible to keep a car or home that you own if it is protected under the appropriate exemption and you are current on payments to the secured creditor.

Comparing Chapter 7 to Chapter 13 bankruptcy filings

In comparison to Chapter 7, Chapter 13 bankruptcy is a repayment plan over a period of three to five years. It is intended for debtors who have enough income that they can pay back a percentage of their debts over a period of time, who may have non-exempt assets they could lose in a Chapter 7 liquidation, or who may get some benefit in a Chapter 13 that they cannot get in a Chapter 7.

Conclusion

Filing a bankruptcy is not always the answer or the only answer in some situations, however, if you are seeking a fresh start by filing for bankruptcy, contact bankruptcy lawyer Susan Browning at (513) 797-2857 for a FREE consultation. Our firm boasts practicing lawyers in Cincinnati, Dayton, and Northern Kentucky who can guide you through the bankruptcy court process.

Since the coronavirus pandemic began, our economy has seen a myriad of changes. Due to the shutdowns early on many businesses had to shutter their doors. Some were unable to reopen or continue business operations. The ones that could remain open are saddled with overwhelming debt including overdue mortgages and leases.

With foreclosure and eviction moratoriums coming to an end in many states, it is expected to see more businesses close up shop. However, there may be an answer in the form of bankruptcy.

What is Chapter 11 Bankruptcy?

The Bankruptcy Code allows debtors, whether as individuals or a business, to file a Chapter 11 case to reorganize their debts. Chapter 11 is mostly known as a solution for business debtors. However, it can also be a remedy for individual debtors who have income too high to file a Chapter 7 and are who are above the debt limits for filing a Chapter 13 bankruptcy.

There are several types of Chapter 11 cases including the typical Chapter 11, Small Business Chapter 11, the new Small Business Reorganization Act Chapter 11 (SubChapter V) and a single-asset Chapter 11.

This article will focus on the standard Chapter 11 case.

Filing the Petition

A Chapter 11 bankruptcy case begins with the filing of a bankruptcy petition. This petition will include a listing of the debtor’s secured and unsecured debts, unexpired leases and contracts, income, and expenses, as well as a listing of the debtor’s assets.

This bankruptcy filing creates an automatic stay to protect the debtor from collection by secured and unsecured creditors. Creditors can request relief from stay from the court if cause exists to do so. A hearing will be held to determine whether the request for relief from stay will be granted.

Once the Chapter 11 debtor files the petition they are known as a debtor in possession. The debtor in possession will maintain control and possession of assets and continue operations while under the watchful eye of the United States Trustee and the Bankruptcy Court. At the outset of the case the debtor must close open bank accounts, opening new ones for the bankruptcy process, as well as procure insurance for assets of the estate. The debtor must provide monthly operating reports for the business.  The debtor in possession has many responsibilities similar to that of a trustee including objecting to creditor claims and pursuing preference and fraudulent transfer actions.

A Chapter 11 trustee is not appointed unless there is a cause to do so, such as debtor misconduct or inability to perform the duties of a debtor in possession.

The United States Trustee has an active role in the Chapter 11 process to ensure the debtor in possession performs their duties properly. A fee is paid to the US Trustee quarterly based on distributions to creditors. In addition, the US Trustee nominates a creditor committee to assist in oversight of the debtor in possession and the plan.

A meeting of creditors will be held with the debtor, US Trustee and creditors that choose to participate.  This allows the debtor an opportunity to explain the plan and gives the US Trustee and creditors an opportunity to question the debtor about the petition and plan.

Disclosure Statement and Chapter 11 Plan

Following the filing of the bankruptcy petition, the debtor will file a disclosure statement. The disclosure statement gives the court and creditors background information about the debtor and its business operations, such as income and expenses, debts, and information about debtor’s business model. It is meant to persuade the creditors that the proposed plan will be manageable based on the anticipated future operations of the debtor’s business.

The disclosure statement must provide adequate information for the creditor to develop an informed opinion about the viability of the debtor’s plan. The court must approve the statement.

Once the disclosure statement is approved, a Chapter 11 plan will be filed. The Chapter 11 plan will inform the court and the creditors how the debtor is proposing to classify and treat the creditors’ claims.  Some of the permissive provisions that may be part of the plan include spreading out the terms of repayment, and in many cases much longer than the five years allowed in Chapter 13 cases. Loans can be re-amortized at a lower interest rate, stripped off, or may be crammed down to the value of the secured property (except for residential property that is debtor’s primary residence).

A debtor has the exclusive right to file a plan in the first 120 days after the petition. This period may be extended with approval of the court. At the end of this exclusivity period, competing plans can be submitted by creditors. Creditors must also provide disclosure and submit ballots to creditors.

The plan must be served on the US Trustee, SEC, and any creditors who request a copy along with ballots in an attempt to encourage acceptance of the plan. The debtor has 180 days after filing to gain acceptance of the plan. This time frame may also be extended by the court.

If the debtor changes the amount or terms of a debt owed to a creditor, these creditors are considered “impaired” and may vote on whether they approve of the plan.

Modifications may be made to the plan at any time prior to confirmation. Any previously consenting creditor is deemed to accept the modified plan if no objection is raised.

Voting and Confirmation

For a creditor to vote on the plan, their claim must be scheduled by the debtor or a proof of claim must be filed by the creditor. This same process applies to any equity security holder of the debtor except that a proof of interest is filed by the holder.

Only impaired classes may vote on the plan. An impaired class is one that is not being paid pursuant to original contract terms. Impaired classes do not include administrative claims or priority claims.

A class is deemed to have accepted the plan if more than half of the claimholders accept the plan and the accepting creditors make up at least two-thirds of the total claim dollar amount in that class. At least one impaired class must accept the plan for the plan to be confirmed.

A confirmation hearing will be held by the bankruptcy court to determine if the plan will be confirmed. The court must determine if the plan was proposed in good faith, is feasible, is not likely to result in liquidation and satisfies all other bankruptcy code requirements. The court will take up any objections to confirmation of the plan at the confirmation hearing.

Discharge, Administration, and Final Decree

A discharge in Chapter 11 operates very differently than in Chapter 7 and 13. Confirmation of the plan alters the relationship between creditors and debtor. It places debtor in the position of replacing the old contract obligations owed to creditors with new contract obligations. A discharge is generally received after confirmation unless the debtor is an individual. An individual debtor must complete payments before receiving a discharge. In addition, as is the case in Chapter 7, some debts under the code are non-dischargeable.

Modifications may be made to a plan after confirmation but must meet the guidelines under the bankruptcy code. The case must not be substantially consummated which means debtor has begun payments or transferred property under the plan provisions.

The debtor must administer the case as well as provide reports to the court. Once the case has been fully administered, the debtor will request a final decree from the court.

 

If you or your business are struggling financially and would like more information regarding bankruptcy laws and the bankruptcy process please contact Susan Browning, 513.943.6650 at the Finney Law Firm for a FREE CONSULTATION.