Attorney Susan C. Browning

In Part One of our Ohio Bankruptcy Basics series, we discussed Ohio Chapter 7 Bankruptcy, which can be read at this link. In Part Two of our series, we discussed Ohio Chapter 13 Bankruptcy which can be read at this link.

What is Chapter 11?

Chapter 11 is a reorganization of your debt. There are four types of Chapter 11 cases:

  1. Typical Chapter 11 is filed for a business entity that exceeds the Small Business debt limit or individual Chapter 11 filing that exceeds Chapter 13 debt limits
  2. Small business
  3. The new Small Business Restructuring Act (enacted February 2020) small business filing
  4. Single-asset real estate filing

This blog will focus on the typical individual and business filing variety.

Some reasons for filing a Chapter 11 may include the fact that the debtor is over the Chapter 13 debt limits and does not otherwise qualify to file a Chapter 7; the debtor may be an entity which would not be eligible to file a Chapter 13; or, there may some benefit the debtor may obtain in a Chapter 11 that they cannot get in a Chapter 13 or Chapter 7.

An involuntary bankruptcy can be filed by a debtor’s creditors in certain circumstances.

Filing the petition

A Chapter 11 case begins with filing the petition. The debtor in the case stands in a different position than in a Chapter 13 in that the debtor becomes a debtor in possession, meaning the debtor possesses and administers the assets of the case in a fiduciary capacity. While there is not typically involvement of a Chapter 11 trustee except in certain circumstances, the United States Trustee (“UST”) is heavily involved in the case and receives a fee based on disbursements to creditors. The role of the UST is to make certain that the debtor in possession is performing the required duties. The UST also nominates a creditor’s committee to assist in making sure the debtor in possession is perming its duties properly.

A debtor in possession is expected to close open accounts and transfer funds to new accounts when filing for Chapter 11. In addition, the debtor must procure insurance for the assets of the estate. The debtor in possession must also file monthly reports regarding assets, expenditures, and income. Creditors will tend to be very involved in the Chapter 11 process as compared to the typical Chapter 13.

There will be a meeting of creditors where the debtor in possession is required to lay out the broad strokes of the anticipated plan. This will inform the UST of how the debtor intends to treat the creditors in the Chapter 11 plan.

Disclosure Statement and Chapter 11 Plan

A debtor in possession may file a disclosure statement and Chapter 11 plan. There is no set deadline for filing the disclosure and plan; however, some local practices may vary. In the first 120 days after filing, only the debtor in possession may file a plan and disclosure. After this time, creditors may file a competing plan. This is called an exclusivity period. A hearing on the disclosure statement will be set and the debtor in possession gives notice to the creditors and serves the plan on the UST, SEC, and any creditors who request a copy.

The disclosure statement gives an extremely detailed view of how the debtor got where they are, how they will fund their plan, what will be done with assets, and how much will be paid to creditors and in what manner. It must provide adequate information to allow the creditors to vote on the plan. The plan will classify creditors based on being substantially similar. Debtor may treat similarly situated creditors differently but may not unfairly discriminate against other similarly situated creditors. The disclosure will include a liquidation analysis which tells the creditors, court, and UST what the creditors would likely get in a Chapter 7 liquidation case. The disclosure describes anticipated income and expenses, evaluates collateral, liens and provides appraisals on real and personal property. The disclosure statement is a method to garner support for the plan and encourage creditors to vote for confirmation of the plan by proving its feasibility.

In comparison, the plan is a condensed version of the disclosure statement advising all parties of what is being paid and in what manner with more formal legal terms.

Once the disclosure statement is accepted, the plan may be served on all creditors.

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, strip off liens, as well as cramdown property to its value (except for residential property that is debtor’s primary residence).

Voting and Confirmation

Once the disclosure statement is approved, the debtor may begin to solicit votes from creditors for the plan to be confirmed. The disclosure statement, plan and ballots are sent to the creditors along with a deadline to accept or reject the plan.

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 debtor except that a proof of interest is filed by the holder.

The debtor in possession needs to have at least one accepting impaired class vote in favor of the plan to be confirmed. An impaired class is one that is not being paid pursuant to original contract terms. Only impaired classes may vote. 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.

A confirmation hearing will be held to determine if the plan will be confirmed. The court must determine if the plan was proposed in good faith, is feasible, and satisfies all other 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, transferred property under the plan.

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.

Please look for the next blog four in our 4-part series on the new Subchapter V: Small Business Restructuring Act (“SBRA”) which will be published soon.

If you are struggling financially and would like more information about bankruptcy, please contact Susan Browning, 513.943.6650 at the Finney Law Firm for a FREE CONSULTATION.

 

Attorney Susan Browning

 

This blog addresses the basics of a Chapter 7 bankruptcy filing. It is the first in a four-part series covering Chapter 7, Chapter 13, Chapter 11 and Subchapter V.

In today’s economic climate, you may find yourself experiencing a financial downturn, whether it stems from the COVID-19 crisis, the current political unrest or is something you have been struggling with for some time. The bills are stacking up, late fees are being assessed, minimum payments are increasing, and you can no longer keep up. In addition, creditors are contacting you constantly and possibly lawsuits are being filed. You need to take some action, but where do you begin? This blog series is designed to give you some preliminary information regarding the different types of bankruptcy. You can stop the harassing phone calls and letters by contacting a bankruptcy attorney at Finney Law Firm.

Part One: Basics of Chapter 7

Chapter 7 bankruptcy can eliminate or “discharge” most, if not all, of your unsecured debt and put you back on the track to financial stability. Although some exceptions exist, generally you can get rid of credit card debt, unsecured loans, medical debt, overdue utility bills, as well as contractual obligations. There are certain debts that cannot be discharged in bankruptcy including recent taxes, student loans and domestic support obligations.

Most importantly, the bankruptcy court puts in place an “automatic stay” that prevents creditors from contacting you or taking any action to collect from you.

Upon filing bankruptcy, you must list all your assets, all your unsecured and secured debts, as well as all your monthly income and expenses.

Chapter 7 bankruptcy is a “liquidation”. As frightening as that term sounds, most clients escape a chapter 7 without any assets being collected and sold. The first step is to assess what assets you own and determine their value. If there is a lien on the property, we would examine if there is any value above and beyond the amount that you owe. This figure would be your equity. Pursuant to state law, certain types of assets are protected or “exempt” up to an allowed amount. If your equity does not exceed that amount, that asset is exempt property and is safe from liquidation.  To the extent the equity exceeds the state law exemption the asset would be nonexempt property and subject to turnover to the bankruptcy trustee

When filing Chapter 7 bankruptcy, a debtor must qualify financially. You must be below a certain income level for your household size as provided by the Census Bureau and IRS . This is calculated using the last six months of income to average your monthly income. Even if you exceed this income level, the court will take into account your necessary and reasonable monthly expenses to determine if the income is offset to the extent that there is very little left over to pay your unsecured creditors.  If your income exceeds your reasonable expenses  you may examine filing a chapter 13 bankruptcy which is a repaint plan over a period of time.

In addition to this preliminary income requirement, there will be an inquiry into your recent financial history. You will disclose certain transactions that have occurred over the last several years. You will provide information including, but not limited to, income, transfers of property, payments made to creditors and family members, and association with any businesses.

How to move forward

If you have made a decision to move forward, I will conduct an initial consultation to determine if you are a candidate for bankruptcy, a follow-up meeting for document and information gathering, as well as an appointment to  review and sign the bankruptcy forms included in the voluntary petition. You will also attend a brief hearing with me by your side in front of a bankruptcy trustee. The trustee’s role is to review your petition to determine if you have any unprotected, non-exempt property to distribute to creditors. If so, the trustee will collect and sell the asset and distribute proceeds to the creditors. If no assets are available for distribution the trustee will note it on the docket. The creditors will then have 60 days to object to discharge of your debts. If no creditors object in that timeframe, you will receive a discharge by mail and the case closes a short time after.

Of course, there are many more facets to Chapter 7, but this covers the topic with very broad strokes. Future blogs will delve deeper into individual issues. Part 2 of this blog series will cover the Basics of Chapter 13 and will be released soon.

Please contact Susan Browning at Finney Law Firm, 513.943.6650, to determine if bankruptcy is the right option for you. Remember, the initial consultation is free.

Attorney Susan Cress Browning

The Coronavirus Aid Relief and Economic Security Act (CARES Act) was enacted on March 27, 2020 in response to the dramatic impact COVID-19 has had on the economy.  In particular, there are several provisions that provide relief for current and future consumer and business bankruptcy debtors.

Stimulus payments are not “income”

The first of these provisions provides that economic impact payments provided to debtors from the government due to COVID-19 is not to be considered income for the purposes of calculating current monthly income or for calculating disposable monthly income for a chapter 13.  These funds will not cause you to be disqualified from Chapter 7 or increase your payback in a Chapter 13.  The practical reason for this is that these are funds that will not be received on a regular basis and therefore should not be considered as regular income for the debtor.

Chapter 13 plans may be modified to extended

Additionally, if you are in a Chapter 13 case that was confirmed prior to enactment of the CARES Act, you may file a motion to modify your bankruptcy plan to extend your plan up to seven years from the date of confirmation.  The debtor must be able to show a “material financial hardship” due to the COVID-19 crisis.  The concern with this provision is, what aid is available for the debtor who has filed but has yet to have their case confirmed?  They are certainly not immune from the financial crisis that has befallen our community.   It is possible that lawmakers will take up this issue, recognizing this limitation will impact many chapter 13 debtors.

New Small Business Reorganization Act

For those businesses who have struggled during this crisis, the CARES Act sought to boost the benefits afforded by the recently enacted Small Business Reorganization Act (SBRA).  The Act increases the debt limits created by the SBRA from $2.725 million to $7.5 million.  This will be a significant boon to those businesses that were previously unable to benefit from the SBRA provisions and have now been affected by the COVID-19 downturn in the economy.

The benefits of the CARES Act will only be available, per the Sunset provision of the Cares Act, for one year from enactment.  The concern is that this pandemic will have lasting effects that extend well beyond this timeframe and one year will not be long enough to provide a meaningful benefit to bankruptcy debtors.

Health and Economic Recovery Omnibus Emergency Solutions Act

In further efforts to restore our nation’s economic balance, the House passed legislation called the HEROES Act (Health and Economic Recovery Omnibus Emergency Solutions Act).  The goal of this law is to prevent discrimination against bankruptcy debtors who request hardship assistance from creditors, increase debt limits for Chapter 13, and allow debtors additional time to catch up mortgage arrearages in Chapter 13.  This legislation is expected to stall in the Senate.

Conclusion

We will update this once new information becomes available.

Call Finney Law Firm to set a convenient consultation with Susan Browning, 513-797.2857. We now also offer telephone and virtual FREE CONSULTATIONS.

 

Attorney Susan Cress Browning
Finney Law Firm is pleased to announce that Attorney Susan Cress Browning, a veteran consumer bankruptcy attorney, has recently joined our firm and anchors our bankruptcy law group.
Susan has a passion for the practice of consumer law. Her membership in several legal associations have afforded her the opportunity to learn from and educate some of the most respected consumer law practitioners in the country. This invaluable experience, combined with her strong compassion and commitment to her clients, has culminated in Susan’s successful consumer bankruptcy practice.
Susan earned her Juris Doctorate cum laude at Northern Kentucky University’s Salmon P. Chase College of Law in 2002. Her practice includes the filing and management of Chapter 7 and Chapter 13 consumer bankruptcy cases. She is admitted to both Ohio and Kentucky Bars and to both State and Federal Courts.
She will be located in our Mt. Adams office and will meet with clients at either of our office locations. Please contact Susan (513-797-2857) for a free consultation.
Learn more about Susan here.
Attorney Susan Cress Browning

As we are all aware by now, the COVID-19 crisis has had a dramatic impact on the day-to-day workings of our lives.  It has disrupted health, employment, education, childcare, finances, transportation, etc.  So too, the judicial system did not come out unscathed.  Even the United States Supreme Court is relegated to teleconference hearings reportedly with Justice Ginsberg participating from a hospital bed.  Given that in times of economic uncertainty, such as this, many people turn to the Bankruptcy system for a fresh start, what effect will the shutdowns and re-openings have on the bankruptcy system from beginning to end?

In the last month we have seen stay at home/shelter-in-place orders in effect to slow the spread of the Coronavirus.  Many business offices deemed non-essential have been forced to shutter their doors.  At Finney Law Firm we have been considered essential from the start.  We provide a necessary service to our clients and even more so in your time of financial hardship.

Case filing and attending hearings

Understanding the current impracticality, the courts have eased the long-standing requirement that bankruptcy debtors sign their paperwork in the attorney’s office.  Our lead bankruptcy attorney, Susan Cress Browning, will thoroughly review your filing with you to ensure accuracy and understanding of its contents.

However, the Southern District of Ohio Bankruptcy Court has imposed a temporary procedure allowing for remote signing.  See General Order No. 37-2.  Finally, bankruptcy cases require attendance by the debtor at a Meeting of Creditors.  These have traditionally been brief, in-person hearings.  This practice has been temporarily modified to allow for teleconference hearings.  It is expected that the in-person hearings will be revived once the Coronavirus crisis subsides.

Even though the landscape may look different during this troubling time, keep in mind that there is legal help available through Finney Law Firm and access to that assistance is more convenient than ever before.

Providing information and documentation

Once you determine bankruptcy is the right option for you, Ms. Browning will request important information and documentation.  This may be provided in numerous ways.  Our confidential questionnaire can be supplied by mail, email or fax.  It will soon be available directly on our website by simply clicking a link and inputting the data in a confidential platform.  As you gather these documents for review, Ms. Browning and her staff are readily available by phone or email to answer any questions you may have.  Our online questionnaire provides a direct link to email Ms. Browning and her staff as you are filling out the information.  You are not alone during this frightening time.

Contact us

With the current loosening of restrictions, we are available to assess your situation with greater ease and with less strain and discomfort to you, the debtor.  Bankruptcy has traditionally been an in-person, pen-to-paper field of law.  Given the state of our country, we have all had to learn to interact and communicate effectively by virtual means.  As restrictive as this seems, it has effectively created a new avenue for our clients to pursue a bankruptcy filing while carrying on with their daily lives.

At Finney Law Firm, you can participate in a FREE CONSULTATION with Susan Browning by visiting one of our two convenient locations:

  • Eastgate – Finney Law Firm – 4270 Ivy Pointe Blvd Suite 225, Cincinnati, OH 45245
  • Mt. Adams – Finney Law Firm – 1077 Celestial St #10, Cincinnati, OH 45202

We now also offer telephone and virtual FREE CONSULTATIONS.  You can schedule to speak to Susan by phone at a time convenient to you by calling 513.797.2857.  You can also choose to have a virtual meeting through one of the following platforms, Zoom, Google Meet or Microsoft Team Meetings.

Call Finney Law Firm to set a convenient consultation with Susan Browning, 513-797.2857.

 

Attorney Susan Cress Browning

During this unprecedented age of Covid-19 you may be experiencing life changes like never before.  With quarantines, business shutdowns, layoffs, furloughs, as well as a downturn in self-employment opportunities, financial hardship is rampant.  Managing your debt may prove to be a struggle right now and it is extremely important to know what options may be available to you to guide you through this difficult period. 

Whether you find yourself unable to pay your mortgage, make rent, stay current on a car payment, make minimum credit card or medical bill payments or keep up with student loans, the suggestions below may help you to buy some time in order to make plans for the long term.  Please keep in mind that each lender, collection agency or creditor will have different guidelines on whether and how they will offer some reprieve in this time of crisis. 

Have you lost your job?   

Please contact the Ohio Department of Jobs and Family Services to determine if you qualify for unemployment compensation.  The government is offering additional compensation to those who qualify.  Make certain you get detailed information on how to apply and how often.  Information regarding unemployment insurance is available at here  or call Ohio Department of Jobs and Family Services at (877)644-6562.   

Ohioans who are unemployed as a result of the coronavirus (COVID-19) pandemic but who don’t qualify for regular unemployment benefits can begin pre-registering for Pandemic Unemployment Assistance (PUA), a new federal program that covers many more categories of workers, the Ohio Department of Jobs and Family Services (ODJFS) has announced. To pre-register for PUA benefits, Ohioans should visit here and click on “Get Started Now.” The benefit amount will be similar to traditional unemployment benefits, plus an additional $600 per week through July 25. The pre-registration tool will allow individuals to get in line early and pre-register their account, so that as soon as the agency has the technical ability to process their claims in May, they can log in and complete their paperwork. For those eligible, PUA benefits will be retroactive to the date they qualified, as early as February 2. The program will provide up to 39 weeks of benefits to many who historically have not qualified for unemployment benefits, such as self-employed workers, 1099 tax filers, part-time workers, and those who lack sufficient work history.  Anyone with questions should call (833) 604-0774. 

For additional family assistance please contact Ohio Department of Jobs and Family Services here. 

 Are you the owner of a small business? 

If you are the owner of small business you may qualify for government assistance through the CARES Act (Coronavirus Aid, Relief, and Economic Security Act): please visit these sites for assistance: here and here and learn more about the Paycheck Protection Program here

Do you qualify to receive the stimulus payment from the federal government? 

Read here.

Are you Struggling to make monthly payments? 

Small Business loans are offering assistance whereby the Small Business Administration will make your payment for a period of time.  These payments may not require repayment. Read here.

 

Contact your mortgage or automobile lender by phone or on their website if you are unable to make your regular payments.  Some lenders are offering programs to lower or skip payments that, most often, will be repaid at a later date.  Pay close attention to the terms of these agreements.  Be sure you understand how the missed payments will be caught up.  If your mortgage lender is not participating in such a program, it may benefit you to apply for a mortgage modification program.  Contact your lender by phone or visit their website for guidance on this application process. 

Are you a veteran? 

Please visit the following Veteran’s Administration website to get answers to your questions regarding benefits here.  

Do you need to discuss your debt problems with an attorney? 

If you find yourself unable to work cooperatively with your creditors it may be time to discuss your situation with a bankruptcy/debt relief attorney.  Please contact Finney Law Firm to schedule a FREE CONSULTATION with attorney Susan Browning (513.797-2857) today.  Susan offers flexible scheduling as well as phone and virtual consultations.  Finney Law Firm maintains two convenient locations in Cincinnati: Eastgate and Mt. Adams. 

Attorney Casey A. Taylor

We’ve all heard of bankruptcy being used as a shield to protect against creditors’ attempts at debt collection. However, in the practice of law especially, the automatic stay is no longer an issue reserved for those who file bankruptcy, nor does it exist solely within the confines of the bankruptcy courts. Sure, the bankruptcy court generally governs matters involving the “stay” but, particularly in our increasingly adversarial society, these issues tend to bleed over into other legal proceedings as well, such that every litigator (and perhaps every litigant) should be apprised of the ways in which the automatic stay could impact them and their claims.

The bankruptcy petition triggers the automatic stay – imaginary armor that then cloaks the debtor (the person who files bankruptcy), halting all collection efforts by creditors (those seeking to collect money from the debtor).  Uponfiling bankruptcy, a debtor is immediately protected by the automatic stay which prohibits, among other things, “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case. . . .” 11 U.S.C. § 362(a)(6). The automatic stay imposes on creditors an affirmative dutyof compliance. Sternberg v. Johnston, 595 F.3d 937, 943 (9th Cir. 2010).

In other words, once you file bankruptcy, your creditors (whether that be the telephone company merely seeking to collect a past-due bill, or someone intending to sue you on a $1 million tort claim) are no longer allowed to take any steps toward recovering that which they think you owe them, in court or otherwise. They cannot call you, they cannot send you a letter threatening action against you if you refuse to pay, they cannot file a lawsuit against you, and they cannot continue to pursue claims that are already pending against you without explicit relief from the bankruptcy court in which your petition is filed. Violating the automatic stay is a very serious offense that often results in an award of damages and attorney’s fees against the violating party.  11 U.S.C. 362(k).

Perhaps you represent a defendant in a contract case, your client filed for bankruptcy (invoking the stay), and the plaintiff’s attorney then serves you with discovery request asking your client to admit that he owes the money sought in the lawsuit. The automatic stay protects your client. Or, maybe you are a passenger who was injured in a car accident, and you are preparing to sue the at-fault driver (a debtor in bankruptcy) for reimbursement of medical expenses. The automatic stay likely prevents you from doing so.

In a practical sense, the affirmative duty of compliance placed on creditors even goes beyond just monitoring their own conduct to ensure that they are not violating the stay – it imposes a duty to police against others, namely courts, violating the stay, as well. This may seem a harsh result, but the Sixth Circuit has explicitly held that creditors cannot sit idly by and allow stay violations occur. See generally Wohleber v. Skurko, 2019 Bankr. LEXIS 653 (6th Cir. March 4, 2019).

In the Wohleber case, the husband-debtor was subjected to a post-petition sentencing hearing arising out of a pre-petition contempt proceeding (i.e., he failed to pay a property settlement previously ordered by a domestic relations court and the hearing was to determine his consequences). At the hearing, the debtor was put in jail until he paid the amount ordered by the domestic relations court (also pre-petition). The husband-debtor later argued that the wife-creditor and her attorney violated the automatic stay by allowing the sentencing to proceed. The bankruptcy court, initially, rejected this argument on the grounds that neither the wife-creditor, nor her attorney took any affirmative action to collect the debt post-petition. However, the Sixth Circuit reversed, holding that the wife-creditor and her attorney had an affirmative duty to “prevent the use of the sentencing hearing and [subsequent confinement] of the [debtor-husband] to coerce payment of the dischargeable property settlement.” Id., at *44.

In sum, the automatic stay is not a concept reserved for bankruptcy courts and the attorneys who practice primarily within it. Instead, it intersects with nearly every area of the law and, frequently, in litigation.  Because the stakes are so high for stay violations and missteps can be costly, it is important that creditors (or potential creditors, or their counsel) are in-tune with what the stay means and the type of conduct it prohibits. It is likewise important for debtors to know their rights so that they can recognize improper conduct if and when it occurs to their detriment.

______________________

For assistance with all of your commercial litigation needs, contact Casey A. Taylor at 513.943.5673 or Bradley M. Gibson at 513.943-6661.

Someone owes you money.

But you have been slow to assign the collection to an attorney for fear of the legal fees and expenses.  This concern certainly is well-founded.

However, Finney Law Firm (a) has the experience, tools and “attitude” to maximize your return from that activity, and (b) is willing to work with you on creative fee relationships, so that the risk and cost of the collection activity does not fall fully on the your shoulders.

The challenge

In every piece of prospective litigation, I attempt to analyze with the client the three components to litigation success: (a) liability (establishing the legal basis the other party owes you money [for example, is the contract clear and the breach easy to establish?]), (b) damages and (c) collectibility.

Collectibility

Let us start at the end: does this target defendant have a pot to pee in?

If you were to get a judgment of any size against him, could we collect from this debtor the sums needed to make the litigation worthwhile form the inception?  Many times the answer is “no.”  If so, you might want to walk away from the matter.

Does the debtor own a house?  A business property?  If so, we can fairly quickly ascertain the mortgage indebtedness versus the value of the property.

Does the debtor own a business?  Car?  Other assets?  Many times debtors structure their lives and their assets in such a way that a creditor really can’t get anything from them — their house in in their wife’s name, and their other assets are well-hidden.

Liability

Ahhh, liability.

The client many times relates to us that liability is “open and shut.”  We file suit and the other side “surely will settle.”

Unfortunately it does not always pan out that way.  Clients frequently don’t understand the facts of their own case, don’t know all the facts, and wear rose-colored glasses about their prospects of success.  Further, even the simplest fact pattern that clearly leads to liability can be time-consuming and laborious in Court to bring to conclusion.

The client needs a realistic understanding of their chances of success and the Court path to a final enforceable judgement.

Damages

And that brings us to the damages calculation.  Defendants, Plaintiffs and Courts all have differing perspectives on how to calculate damages numbers.  And a separate blog entry would have to explore that issue in more depth.  But take, for example, the sale of a house.  Our client is the seller.  The buyer is clearly in breach.  But the seller sixty days later re-sells the house to another buyer for $5,000 more than the buyer in breach agreed to pay.  (And in today’s go-go real estate marketplace, that’s not an uncommon occurrence). What “damages” has the seller sustained from a clear breach of contract?  Other than the time-value of holding the property (taxes, insurance, utilities and maintenance), likely none.

Collection

So, once you file suit and convince the Judge to sign the entry granting an award of damages against a defendant,  you are “off to the races,”  Right?  Well, not exactly.

We have to first identify assets and income streams.  Does the target own a piece of real property?  A bank account?  A job? Securities accounts?  Do they own a closely-held business?  The Finney Law Firm has gum-shoe and cyber assets and relationships that help us to learn of the income and assets of clients in the collection process.

Tools for enforcement

Our tools to force payment of a legal judgment include:

  • Attaching bank accounts.
  • Garnishing wages.
  • Liening and foreclosing on real property.
  • Seizing and selling personal property such as office furniture and equipment, cars and manufacturing equipment. (This one usually gets their attention and frequently a quick check!)
  • A creditor’s bill to force a third party who owes the deadbeat money to instead pay it to you.  These are very powerful.
  • A receivership to place income-producing assets in the hands of a third party whose job it is to assure you are paid from the income stream of the asset or its liquidation.
  • A Judgment Debtor Examination forces a creditor to tell you — under oath — where they are “hiding” their assets so that you can go and grab them.
  • Use of subpoena power to learn from third parties where assets are being hidden.
  • Working through the intricacies of bankruptcy court to either avoid the collections limitations the Court imposes or maximize the collection through their offices.
  • Involuntary bankruptcy.  It takes three creditors banding together to place a debtor into bankruptcy, but this tools forces all the debtor’s cards on the table and stops them from playing games with assets that should belong to you.
  • Fraudulent transfer actions can un-do illegal transfers of assets to friends and family members.  Most powerfully, the act of the fraudulent transfer to these third parties causes them to become defendants in that new action —  putting them on the hook for the debt, plus punitive damages and attorneys fees — for participating in the scheme.

Creative fee relationships

We are not oblivious to the challenges our clients face of withering legal fees and endless court appearances to collect a small and simple debt.  But at the same time, the tremendous work many times required to get a judgment and pursue it through collection also is known to us.

However, if we are going to recommend that a client proceed with a collections action — which necessarily means the economics should work out positively for the client — we are always willing to engage in a discussion about creative fee relationships (hourly fees, flat fees and contingent fees) to achieve the desired end.

The idea on a contingent fee is the more you collect, the more we make — everyone should be happy if the “ring the bell.”  But on the flip side, it it turns out to be a dry well — and many collection actions that seem promising on the front end turn out to be a dry well on the back end — then we share in the pain.

Conclusion

Collections work can be great fun, outmaneuvering a defendant who knows he owes the debt, but is using his wits — legal and illegal — to prevent you from getting to those assets.

So, let your deadbeats become our firm’s problem and allow us to turn that bad debt into an asset.  Call Chris Finney (513-943-6655) or Julie Gugino (513-943-5669) to learn how we can help you.

As we have grown, the vision of the Finney Law Firm is sharpening for our clients and the public: A broad array of services offered in one firm, each practice area delivered in a quality fashion.

At our core, we are a real estate firm, with experienced transactional attorneys, a title insurance company that insures residential and commercial titles, and commercial litigators who can address virtually every aspect of disputes relating to real estate: Eviction, foreclosure, title disputes, easement disputes, construction disputes and mechanics lien claims, as well as complex real estate litigation.

Beyond that, we offer quality estate planning and probate administration and our transactional team rounds our its services with corporate formation and development, including acquisitions, dispositions and financing.

Isaac T. Heintz, Kevin J. Hopper, and Eli Krafte-Jacobs, along with paralegals Tammy Wilson and Misty L. Winkler, and Richard P. Turner at the title company, lead our transitional team day in and day out.

Our litigators are well-known for our public interest practice — handing legislative and regulatory matters aggressively, confronting government officials who would illegally interfere with their life, their business and their fortune.  Three times we have ascended to the U.S. Supreme Court, and three times we won the relief we sought with 9-0 victories there.   We apply this same sophistication and vigor to commercial litigation, personal injury, wrongful death and medical malpractice matters.

Bradley M. Gibson, Stephen E. Imm, Julie M. Gugino, and Casey A. Taylor along with paralegal Brandy E. Fitch are our quality litigation team.

Finally, we are proud to recently have expanded our litigation services to include labor and employment law with experienced litigator Stephen Imm.

When a client asks “do you do that,” I am proud to respond “yes, and we do it well.  Let me introduce you to …..”

Let us know how we we can help with your business or personal opportunity or challenge.  It is with you in mind that we have assembled this team of quality practitioners.

infographic of the 10 things Finney Law Firm can do for you

10 Things Finney Law Firm Can Do For You

Often times when people think of attorneys they think of lawsuits or criminal charges and as a result that is why they need an attorney. While attorneys are needed to help you deal with lawsuits and criminal matters that is not the end of the list of what an attorney can help you with. To help you get a better idea of how an attorney can help you I have compiled this list of 10 things that Finney Law Firm can do for you. While this list is by no means an all-inclusive list it is designed to show you areas where Finney Law Firm has the expertise to help you work through a matter and save you money or save you from legal headaches in the future.

1.  Real Estate Matters

In many states in the U.S. (Ohio and Kentucky are no exceptions) attorneys are involved in many of the steps of the real estate buying and selling transaction. Often times attorneys are involved behind the scenes in reviewing contracts, legal documents, preparing title opinions and more. In certain states attorney have more hands on involvement in that any closing involving real estate is done by an attorney or under their direct supervision.

Finney Law Firm attorneys can assist individual buyers and sellers in the buying and selling process for both residential and commercial properties. As a real estate buyer you can ask an attorney to look over your offer to purchase a home to make sure it represents your best interests. Sellers may also want to hire an attorney to review any purchase offers and explain to them the requirements they will be bound by if they accept that offer. Some land purchases involve more complicated matters like mineral rights, multiple pieces of land being sold in one package, or liens by having an attorney represent picture of seller disclosure statementyou gives you get extra protection by having the legal considerations addressed by someone trained in those matters.

2.  Business Planning

Are you planning on starting a new business, incorporating an existing business, or changing the corporate structure (i.e. going from an S Corporation to a C Corporation) of your current business? Many activities related to business planning should have an attorney involved in order to make sure everything is done properly. Changing your business status from a sole proprietor to a Limited Liability Company or a corporate form without doing the proper paperwork for taxes will leave you at risk with the federal and local tax authorities. While you may have unintentionally not filed some of the proper tax paperwork that will not stop any associated penalties. By working with a Finney Law Firm attorney you can be assured all your paperwork will be properly prepared and you will be fully informed as to what each document means to you in your business.

By working with an attorney to properly prepare your paperwork you have someone who is familiar with your business and will be ready, willing and able to help you should the need arise. While you can go hire an attorney at a moment’s notice to help out with legal issues, that attorney will not be as familiar with your business as one who has been working with you on an ongoing basis. For more information on the LLC form of a business see LLC see the article Why Do You Need An LLC.

3.  Family Planning/Estate Planning

Marriage

Planning on getting married soon? Do you and your spouse have assets you want to keep separate in case of divorce? While the love and bliss of courtship lead you to think the relationship will last forever things and people do change. If you or your significant other own part of a family business, own your own business, have a large sum of assets from inheritance or from earnings then it is advisable to get a pre-nuptial agreement prior to getting married. A pre-nuptial agreement is a document that can protect assets for both of the people about to be married. Unless properly prepared by an picture of fighting couple for divorce and family lawattorney and taking into account all assets a pre-nuptial agreement may not be worth much in the event of divorce. Therefore pre-marital planning should involve an attorney and the couple about to be wed. In many cases it may be best for each person to have their own attorney look over the pre-nuptial agreement to represent each person’s best interests.

Family

Now if you are married and have kids there are other considerations to take into account. Those considerations mostly revolve around making sure your children and/or spouse are taken care of in the event of your passing. This is where sitting down with an estate planning attorney comes into play. An estate planning attorney will sit down with you and review your assets and your goals for your assets in case of death. This could involve setting up trusts for your spouse and/or children, guardianship arrangements for minor children, living wills, health care power of attorneys and more.

Depending on the amount of assets you have to give to your family and how you want to distribute those assets a trust may be a better option for you. A trust not only preserves your assets for your children it can also make sure you children still get their inheritance in the event your spouse later remarries. Inheritance can get quite complicated so it is best to talk with an estate planning attorney to make sure your assets are distributed the way you want them to be. For more information on wills and guardianship see my article How a Will and Trust Factor Into Your Estate Planning.

4.  Legal Document/Contract Review

Have you been suddenly presented with a legal document with request for signature? Do you know what the document is meant to do and how you may be legally bound if you sign the document? If you don’t know what the language is saying or how it will impact if you sign it then by all means you should be speaking with an attorney to have them look over the document and explain to you what exactly is being asked of you. Common examples of legal documents you may be signing throughout your life include documents related to the purchase and sale of real estate, purchase or sale of a business, non-disclosure agreements for work or other purposes, waiver or release of liability paperwork, settlement documents and more.

Signing any legal document without having full understanding of what sort of obligations you may face is asking for trouble. While the language may not talk in dollars and cents terms you could end up owing plenty of money if you signed a legal document and then failed to do what was required of you under the terms of the document. An attorney will be able to review your legal document document for signatureand give you an opinion on what it is asking for and what risks you face in signing the document. Don’t sign just because the person giving it to you says it is ok, get another opinion before it is too late.

5.  Labor and Employment Law

Do you run a business where you are responsible for the hiring and firing of employees? Want to make sure any terminations or hiring are done correctly and there is minimal risk of you being sued for discrimination? Or maybe you are wanting to setup health plans or retirement plans for your employees and unsure of the way to go about setting up those plans?

If you answered yes to any of the above questions then you should be talking with a labor and employment law attorney who can prevent you from taking the wrong moves which end up costing you money and more. Having an effective attorney advocate at your side assures you that you can concentrate on working on your business while any legal issues are promptly dealt with for you.

6.  Bankruptcy

Unsure if you can manage paying off your debts? Afraid of losing your house because you are behind on payments? Worried that your debts are impacting your health due to the constant stress? Or maybe health related expenses have hurt you financially. All of the above situations can be resolved through filing for bankruptcy. You will not know if bankruptcy is suitable for your situation until you sit down and discuss your situation with a bankruptcy attorney and learn about what filing for bankruptcy means.

In bankruptcy you are asking a bankruptcy court to set aside your debts under Chapter 7 (not all debts may be discharged) or to reorganize your debts into a more manageable payment plan under Chapter 13. Determining which Chapter will work best for you is a decision to be made in conjunction with a bankruptcy attorney. picture of a wallet in a viceBusinesses as well as individuals are eligible to apply for bankruptcy when they are unable to pay their debts.

7.  Taxes, Taxes and more Taxes

Unaware of what taxes your need to pay for your business? Want to pay less to the Tax Man and let your family inherit more? Own a piece of property that you think you are paying too much taxes for? All of the above are matters that can be addressed by an experienced attorney at Finney Law Firm.

Business planning involves dealing with tax matters and understanding all the tax jurisdictions involved. Not only do you have to consider federal and state taxes but there are also the city, municipality, and possibly county taxes to take into account. Miss any payments to one of these tax collecting entities and your business will be at risk. By sitting down and discussing with an attorney what your business does and where it will be performing its business your attorney can better advise you as to what taxes you need to make sure are paid.

Property tax is another big issue for both residential and commercial land owners. Property tax collectors sometimes base their tax collection rates on the overall health of the real estate market in a region as opposed to your specific piece of land. Maybe you have change in situation that has lowered the value of your property but your property taxes still remain where they were before. An attorney will be able to look at your particular situation and then prepare the proper paperwork to request that your property valuation be looked at in order to get a possible downward adjustment in value thus reducing your property tax payment.

As mentioned in item 3 above a will can help you take care of your family in the event of your passing. Wills along with trusts can also shield your assets from estate taxes that can be charged to your estate. Also known as the “Death Tax”, this tax on your wealth can be minimized depending on the amount of wealth and how you deal with it now. As each individual has their own unique asset situation a consultation with an Estate Planning attorney will help you best decide how much of your assets get caught up in the “Death Tax”.

8.  Litigation

When faced with litigation the last thing you want to do is ignore any requests for information nor do you want to provide answers without the guidance of an attorney in order to save money on legal bills. The answers and the way you answer pre-litigation questions (depositions and/or interrogatories) can make or break a case for you. Therefore it is in your best interest to answer these questions with an attorney present so they can stop you from answering questions you should not be answering. By having an attorney represent you in litigation from the beginning you are bringing along a valuable partner who not only will have knowledge of your case but also have the skills to defend you in a court of law. If an attorney has to be brought in later to a litigation matter it will usually be the case that they will have to spend more time in order to become fully informed of the situation which will cost you more than if you had hired an attorney at the start.

Whether you are being sued for something your business did, something an employee of yours did or you are suing someone who injured you the attorneys at Finney Law Firm have a great depth of picture of gavelbackground and litigation experience to assist you in your litigation matter. Finney Law Firm has successfully litigated cases related to caregiver abuse of children, business transactions, personal injury cases, failure to disclose in residential and commercial real estate matters, contract disputes and more. Finney Law Firm has won a number of cases that have went before the U.S. Supreme Court.

9.  Personal Injury

If you have been injured by someone or someplace where the situation was preventable you may want to discuss your injuries with an attorney. Especially where you have suffered losses due to being unable to go to work, out of pocket medical bills, or other pain and suffering you may be able to be compensated for those losses. A lot of this depends on how the injury occurred and whether or not someone’s negligence leads to your injury. By talking with an attorney you get a better idea of where you stand if you do wish to seek recovery for your injuries.

10.  Criminal Matters

Are you being charged with a crime? Whether that crime is driving while under the influence (DUI), reckless driving, theft or something else having an attorney represent you for the criminal trial is your right. In order to determine the severity of the charges and the amount of jail time or fines you can face you need to speak with an attorney as soon as you are able to. Facing a criminal charge is not picture of prison cellsomething you should try and handle on your own as those who will be prosecuting you are professionally trained. By having a knowledgeable and experienced attorney like those found at Finney Law Firm on your side you can be assured you will be getting the best representation possible.

Do you have any questions about the services above?

Paul Sian is a licensed attorney in the States of Ohio and Michigan.  If you feel you need the services of an attorney or have questions about any of the services named above feel free to contact me at paul@finneylawfirm.com or via phone at 513-943-5668.  Connect with me on Twitter and Facebook.