Bankruptcy: Automatic Stay And How It Protects You From Creditors

U.S. Bankruptcy Code imposes something called an automatic stay the moment that a petition for bankruptcy is filed. The automatic stay will usually halt the commencement, enforcement or appeal of actions and judgments against a debtor from the creditors they owe money to that are attempting to collect these debts incurred prior to the bankruptcy petition. In addition, the automatic stay protects property of the bankruptcy estate itself from collection actions and proceedings.

If a creditor violates the automatic stay are voided out. Any violation of the stay may cause the violating party to incur damages for the violation. But, like every complicated law, there are exceptions. A creditor may be permitted to take their collateral if they obtain permission from the court first. They’ll get this by filing a motion for relief from the automatic stay.

After a petition is filed, the court will grant the motion or provide security to the creditor, which ensures that the value of their collateral won’t decrease during the stay. Without the protection of the automatic stay creditors could hypothetically race to the courthouse in order to improve their positions against a debtor. If this happened, and let’s say that a debtor’s business was facing just a temporary crunch, it might not survive a “run” by creditors when their business could otherwise be salvaged. A run may also result in waste and it might be unfair to similar creditors that are owed money too.

There are three kinds of avoidance actions, and all of these attempt to limit the risk of the legal system encouraging the downfall of a financially unstable debtor who hasn’t declared bankruptcy yet. The bankruptcy system will typically reward creditors who continue extending financing to debtors and will discourage creditors from ramping up their debt collection efforts.

Even though these rules seem simple, a few exceptions exist in each category of avoidance action.

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Massachusetts Toughens Rules For Small Claims Collection Lawsuits

The Massachusetts Supreme Judicial Court reported last week that it has modified some of the rules governing the use of small claims courts. The Court said that the changes were constructed specifically to address the load of debt collection cases that are filed in small claims courts.

The rule changes come on the suggestion of the Small Claims Working Group, a panel of legal experts that was convened in 2006 to analyze and improve current small claims practices. In a press release describing the changes, the Supreme Judicial Court noted that While the rules apply to all small claims matters, there will be a major impact on debt collection cases. The changes address many of the affairs labeled by the Working Group in collection cases, and four in particular: increased genuineness of service, incompletely detailed claims, increased analysis of default judgments, and notice to the court when a judgment is paid.

Adam Olshan, an attorney with Law Offices, Howard Lee Schiff, P.C. in Worcester, Mass., agrees that some collection law firms will be affected. This will impact the high-volume collection law firms.

But Olshan, who was on the Working Group representing credit card issuers, noted that most collection law firms ” including his own ” do not make use of small claims courts. If the plaintiff fails to confirm the address, the court may not enter a default judgment if the defendant later fails to appear for trial.

The changes also add enhanced scrutiny to default judgments that are entered. New small claims laws require plaintiffs to send word to the court in writing when a small claims judgment has been paid in full, or be responsible for any reasonable costs incurred by the defendant in later establishing that it was satisfied.

Another requirement is that the magistrate or judge is to analyze the terms of any agreement for judgment with the parties if they are present in court. This makes certain that the court does not order or otherwise endorse any private payment agreement that relies on exempt sources of income. This avoids any arbitrary surprise to the defendant by delaying any levy on the judgment until the defendant has had an opportunity to pay as ordered or to attend a payment hearing.

Rapid Recovery Solution is a credit debt collection agency.

Fake Debt Settlement Schemes To Be On The Lookout For Part Two

In the last article I spoke about potentially shady debt consolidation schemes that you should be on the lookout for. Read on to find out more:….

In the meantime, your creditors are not being paid. Unfortunately, while you are accumulating that payment, you are not paying your bills and you may be delving further and further into debt.Instead of taking this gamble check out a nonprofit credit counseling firm that may charge you only twenty dollars, if anything. Instead of billing the debtor, these counselors will typically get what is called a fair share percentage payment from your creditors after you have been paid.

Finally, and most importantly, DON’T invest your trust in the debt consolidation counselor who tells you that “We will handle everything. You should cease all communication with your creditors.” Even though the fact that the idea of not speaking to creditors and ignoring their mail sounds like a real load off of your back, ultimately, it is your debt and your credit score at hand. Never send in a change of address form directing all creditor mail to a debt settlement company.

It is key to remember that the creditor is the one with whom you signed your contractual agreement. When all of your statements are being sent to the debt settlement company, you relinquish that control. You do not know how much in late fees and interest are being tacked on. You also will not know if your debt has been transferred into collections.

A few final words of wisdom. If you believe that you need debt settlement, try debt management first. Call up your creditors and request suspended payment, reduced interest or any other payment terms that may suit your financial situation in a more favorable light. Even though it might seem like a long shot, or a pain, it is always very important if you are about to miss a payment to call your creditor and say “Listen, I can’t make this month’s payment. I’d like to work something out with you.

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Credit Card Company Model Tested In Current Downturn

Discover Financial Services, facing the demand for added funding while profits are diminishing and credit card charge offs are amplifying, received only a indifferent response from the equity market as a public offering last week of its ordinary shares had to be priced at a 12 percent markdown to the market.

Right now there is a outstanding mass of risk aversion when it comes to credit cards, said Dan North, chief economist at Euler Hermes ACI, a trade credit insurance firm.

The credit scare started last fall. As a result, people have commenced utilizing their credit cards less, meaning less interchange profit from transactions. The credit card firms have also become protective, chiseling credit lines, increasing fees and modifying interest rates from fixed to fluctuating, both in response to the need for more revenue now and to prepare for the restrictions from the Credit Cardholders Bill of Rights, which goes into effect next year.

According to North, Discover cardholders have fragile credit ratings, on a whole, than holders of MasterCards, Visas and American Express cards, though those companies are struggling the same financial challenges.

All of those elements have also made it hard for a new competitor in the market, Revolution Money, a payment platform complete with credit card and money transfer service planed to compete with major card companies Visa, MasterCard, Discover and American Express. Revolution LLC, headed by AOL founder Steve Case, had longed to compete mainly by offering better security through a chip-based card and lower interchange fees to merchants.

A group of niche players that are acquiring more traction now, according to a Scripps Howard News Service report, is peer-to-peer lending (P2P), which effectively avoids traditional financial institutions. P2P lending services bundle pledges from individual investors and offer small loans to other individuals at attractive rates, a model that could evolve into direct competition for credit cards.

Mallory Megan works for a debt collection agency. She also writes stories on business, finance, and collections agencies.