BANKRUPTCY COURTS PUNISHED SYNERGY LAW AGAIN AND AGAIN. ITS CUSTOMERS KEPT LOSING THEIR HOMES ANYWAY.
By: Zach Despart, Staff writer
Houston Chronicle
Ron and Ann Jones were watching Fox News one night in early 2018 when they saw a commercial that made them sit up. A company called Synergy Law said it could help people modify their home loans.
The couple and their growing family – now at four children — had lived in their New Braunfels home since 2006. But Ron, an Army corporal, had sustained disabling injuries in Iraq, and by the time he saw Synergy’s ad the Joneses were looking for better loan terms.
The company said it could help lower their payments, and the couple signed a contract in March 2018. Synergy advised him to stop paying the mortgage, Ron said, as he’d soon be enjoying more favorable terms anyway. The couple authorized the company to withdraw $550 every month from their account as ongoing payment.
Ron checked in each Friday. But despite the “Law” in Synergy’s name, it was always difficult to speak to an attorney. After about a year, he said, their bank suddenly informed them they were facing imminent foreclosure. Synergy advised the couple to file for bankruptcy protection immediately.
“We hired them to make things better, and it was getting worse,” Ann said.
Synergy provided them a simple form to file with the bankruptcy court. But it turned out to be inadequate and their case soon was tossed. The Joneses were now tens of thousands of dollars behind on their mortgage payments and again staring at foreclosure. Unable to raise the money, last September they lost their home.
There have been housing hustles as long as there have been houses. What makes Synergy unusual, bankruptcy trustees, attorneys, and furious former clients say, is not just an audacious nationwide business model, in which it operated in plain sight. But also how long it has taken government regulators to rein in the company despite the long trail of red flags it planted across the country.
The company’s attorney and part owner, Scott Marinelli, has had his law license suspended in two states. He was banned for five years from consumer loan work in Washington, where he still owes tens of thousands of dollars in fines. Maryland revoked his license to sell insurance. Since 2017, courts in at least a dozen states — including Texas — have issued some form of sanction against him and/or Synergy for harming vulnerable homeowners. Federal judges have ordered the company out of their courts.
Court filings show Synergy became increasingly known among bankruptcy trustees. Yet beyond the piecemeal penalties — some of which were never paid — a fragmented bankruptcy regulatory system meant that after each sanction, it simply continued operating outside those jurisdictions. Court documents say its clients filed 50 bankruptcy cases a month in Texas alone.
“I was just thunderstruck that he’d been operating for as long and as widespread as it was,” said Gwendolyn Kerney, a Chapter 13 trustee in Tennessee.
“Didn’t perform any services — none”
Corporation filings in Washington, D.C. show Synergy Law incorporated in 2016. Dave Maresca is listed as governor. Court documents identified Marinelli as 10 percent owner and the company’s lawyer, billing $325 an hour.
After requesting a written list of questions, Marinelli stopped responding to requests for comment. Maresca’s attorney did not make him available for an interview. In documents filed in a Nassau County, N.Y., lawsuit, Maresca blamed his former partner for the company’s problems. In a Texas case, Marinelli said he was unfairly being singled out when other Synergy Law executives remain “living comfortably in multi-million dollar properties.”
In advertisements and mailings, Synergy promised to help renegotiate loan terms for people struggling with their mortgages. Court filings show it had about 20 marketing employees signing up new clients.
It is unclear how many desperate homeowners Synergy helped with their home loans, which often can be modified without specialized assistance. But according to federal court records in jurisdictions across the country, it was when the company advised clients to file Chapter 13 bankruptcy that many suffered, losing their homes even as the company continued collecting its fees.
Synergy “didn’t perform any services,” said Ernest Garcia, general counsel of the Texas Department of Savings and Mortgage Lending. “None.”
Overseen by federally appointed trustees, Chapter 13 bankruptcy is supposed to help debtors create and manage a repayment plan. Often, it can last years.
It also temporarily halts foreclosure proceedings, and Synergy’s business model “was just stalling,” said Dinorah Gonzalez, a bankruptcy attorney who works with the Chapter 13 trustee in the Southern District of Texas. Debtors were given only skeletal paperwork to file; some said they were even instructed not to respond to correspondence from the judge. The cases were eventually tossed — at which point the company often told clients to file a second and third bankruptcy case.
Yet Gonzalez said Synergy appeared not to have any intention to rework clients’ loans during the respites. Instead, she and others said, its business model was to delay foreclosures as long as possible while clients continued to pay Synergy’s fees instead of their mortgages.
“There was no paperwork or indication that they’d even contacted the lender,” said Dana Wilkinson, a South Carolina bankruptcy attorney who helped one of Synergy’s former clients. As a result, many Synergy clients ended up losing their homes, lawyers and trustees said.
Frank and Jenny Little lived in their dream home in Montana’s Flathead Valley for eight years, sharing it with Jenny’s parents and brother. When Frank lost his job over Christmas 2016, Jenny said, they hired Synergy to help them with their mortgage.
“We were willing to do what we could to save it,” she said. After paying regular fees but hearing nothing for six months, she said Synergy suddenly told them they needed to file for bankruptcy protection to delay foreclosure. The filing was later dismissed as inadequate.
On March 25, 2018, a stranger appeared at their door. “Can I talk to you about the house?” Jenny recalled him saying.
“I said, ‘We have an attorney you can talk to.’ And he said, ‘That won’t be necessary. I already own it.’”
Montana’s Chapter 13 trustee, Robert Drummond, said Synergy was sanctioned $45,000 for the Little case and two others in which Montana residents lost their homes, but settled for about a third of that. “The victims aren’t sophisticated,” he said. “This probably goes on a lot more than we think.”
Added William Mark Bonney, Chapter 13 Trustee for the Eastern District of Oklahoma: “Everybody I’m aware of who used Synergy lost their property.”
“We’re talking millions of dollars”
Court documents say Marinelli led Synergy’s legal operations, although he wasn’t licensed in most states where Synergy did business. His New Jersey license was suspended indefinitely in 2017 for not cooperating with an investigation. His Washington, D.C. license was suspended soon after.
The company claimed it had a network of experienced local attorneys who would help clients with their bankruptcies. That, too, often turned out to be less than advertised, according to court filings. Several local lawyers supposedly working for Synergy were surprised to learn of the affiliation.
“I know nothing about any of these cases,” Mark Anderson, a lawyer whose name appeared on several Synergy bankruptcy filings in Montana, wrote in a 2018 affidavit.
Taken together, “You would think that it would be pretty easy to shut down,” Bonney said. “But I don’t know why nothing seems to have happened. I’m pretty frustrated with the U.S. Trustee system’s inability to shut them down. We’re talking millions of dollars.”
Although bankruptcy courts follow federal law and are overseen by the Washington-based U.S. Trustee Program, part of the Department of Justice, the system is fragmented, not only among types of bankruptcy but also among individual courts. Bankruptcy judges’ orders typically apply only locally, said Gonzalez, the Houston attorney: “Judges only have piecemeal authority.”
Texas Southern District Chapter 13 Trustee David Peake added that communication among trustees tends to be informal, shared in listservs and continuing education conferences. So warnings about unscrupulous companies can be slow to spread, even as the number of victims grows.
After battling Synergy in several cases since 2017, a Kansas judge ordered the company to stop filing its clients’ bankruptcy cases in any federal court — but it continued in other states. Last spring, Bankruptcy Judge Marvin Isgur, of the Southern District of Texas, ordered it to stop filing in Texas. Yet the company later filed two more cases, in the state’s Eastern and Western districts, documents show.
In Louisiana, consumer attorney Samuel Ford began researching Synergy after being contacted by a woman who claimed the company had taken her money without authorization. He quickly found decisions from the many individual courts that had fined or banned Synergy – in Kansas, Oklahoma, Missouri, Virginia, Maryland, Vermont, South Carolina, Georgia and Tennessee, among others.
“But it was strange there wasn’t some big fraud alert,” Ford said. “They were absolutely terrible and hurt so many people. It’s weird they were able to do what they were for so long without being shut down.”
A spokeswoman for the U.S. Trustee’s office in Washington, which has authority to issue system-wide orders, declined to comment, citing ongoing litigation.
“We’re homeless at the moment”
Synergy may have continued operating under the radar if it weren’t for Marinelli conducting some outside business. In June 2017 he purchased a real estate abstract company in a small town in eastern Pennsylvania, said Eric Kerchner, chief detective for Monroe County.
Marinelli was arrested a year later for an array of offenses, including not paying closing fees from real estate sales and bouncing checks. He also was alleged to have forged documents in several real estate sales – and, according to local court filings, continued even after being arrested and released on bond. Eventually, he served four months in jail.
All that was too late to alert the Joneses, of New Braunfels. “We’re homeless at the moment, mostly staying with family,” Ron Jones said.
In March 2019, the couple contacted the Texas Department of Savings and Mortgage Lending, which issued a cease and desist order and fined Marinelli $25,000. But “I don’t think we’re ever going to get the money,” said Garcia, the agency’s lawyer.
That’s because six months ago Synergy itself filed for Chapter 7 bankruptcy. The full breadth of the company’s damage is still unknown. The filing lists more than 500 clients — nearly 60 from Texas — seeking reimbursement or other payment from the company, said Marc Albert, trustee on the case. But “at this point there’s not much, if any money in the company.”
Meanwhile, old clients who call Synergy’s phone number are being directed to a new company called Themis Law. According to corporate filings, it was founded last June by Maresca, Synergy’s previous owner, and a Florida attorney, Sam Babb III. In a short interview, Babb said his company has nothing to do with Synergy and he had no contact information for Maresca.
June 2019
Thank you Daniel Opperman
Bankruptcy Judge
Flint, Michigan
It is with pleasure I write this thank you to Judge Opperman for his tenure in the Flint Bankruptcy Court. As a practitioner in his golden years, I have seen many judicial styles. Judge Opperman’s style is a pattern for excellence. His years in Flint will be spoken of glowingly as long as any of the current practitioners can draw a breath.
His qualities are well known and observable to all but some need to be mentioned in print so they won’t be forgotten as they may not be so obvious to everyone. Due to my office’s close and constant contact with the court we are probably in a better position to observe and comment than the casual or even regular practitioner.
For example, his court and office are well managed with highly competent and well mentored staff. This was very important in light of the fact that Judge Opperman was in Flint as well as in Bay City. He is very diligent in attendance to Court business. His rulings were rendered with due dispatch and decisiveness. The rulings were clear, consistent and appropriately rendered. Each case was weighed on its own facts with no prejudged bias.
Judge Opperman has a kind personality. One would be very welcoming to find him as a new neighbor, brother-in-law or committee member. He is considerate of all who appear before him and he reaches out beyond the courtroom to assist in seminars, local as well as state and beyond. He attended and assisted Genesee County Bar Association Bankruptcy Committee events where attendance did not justify a person of his stature. He is polite to all who appear before him and he is absolutely even-tempered and very attentive to actions in the courtroom. Frankly, I thought his patience was extraordinary when he permitted some attorneys to argue repetitiously and redundantly. Most judges would have encouraged a summary to expedite the hearing. Instead, Judge Opperman allowed continuation apparently with the hope that something new would be expressed.
Judge Opperman has insight and knowledge well beyond the requirements of his office. For example, he appreciates the problems of the disadvantaged. He could empathize with the downtrodden who suffered from urban blight, poor employment options and unmentionable water. Also, as a lawyer, he knows and applies the rules governing his cases. He stays abreast of law changes provided by the courts or legislatures. He exhibits the highest integrity. He rules without any debtor/creditor bias, no ethnic, gender, racial or other conduct unfitting to the Court.
The standards he set will be marked in the Flint judicial history forever and we are fortunate to have experienced his tenure.
We are sad to see him depart. There are two aspects to his departure that are favorable. First, he isn’t really going away. He will be easy to find in the bankruptcy court in Bay City. We will also see him at various seminars and events. Second, we are energized and very encouraged by the recent appointment of Judge Joel Applebaum as the new Flint Bankruptcy Judge. He will emulate and possibly improve on the high standards set by Judge Opperman. We welcome him and wish him a long and fruitful experience in Flint.
March 2018
An article was recently written for The Bureau of National Affairs, Inc. Bankruptcy Law Reporter indicating debtors are currently struggling longer with their finances before filing for bankruptcy and dealing with negative consequences as a result. The article is based on academic research entitled, “Life in the Sweatbox.” Review the article with a link to the research report below.
Debtors Struggle Longer With Finances Before Bankruptcy
May 2017 The public is certainly aware that the Chapter 13 offices are intensely computerized. We rely on complicated software programs to store, calculate and manage our extensive data. It takes exceptionally talented people to keep our systems running smoothly and safely. In today’s environment, safety is a pervasive issue. We are all aware of massive hacking and data compromising attacks. Our information technology expert, Christine Smith, has selected and monitored a firewall that protects our office from cyber invasion. Her experience in Cyber Security is evident in the article she wrote. It is printed below. Because of her expertise, you can rest assured that our data is safely protected. Furthermore, the website addresses mentioned in her article may personally help protect you and your computer. Cyber Security – who should practice it? Technical Specifications Team Effort In the End… After reading her article, I’m sure you agree that Chris is a dependable expert and our data is well guarded. Thank you Chris. November 2016 November 2016 Bankruptcy Fraud Congress gives debtors broad relief. All they need to do is answer honestly and follow their attorney’s advice. Please note the following article sent to me recently which highlights the conviction of a debtor. Minnesota Man Found Guilty In Theft Scheme Please urge your debtors to be precise and accurate in their responses to your questions. Also, remind them that you can always amend if they forgot an asset in the beginning of their case. Amendments are most effective if filed BEFORE the Trustee’s staff learns of the omission. April 2016 The Importance of Education In 2005, Congress of the United States revamped the bankruptcy code. Among other changes, Congress required that Debtors take a pre-filing credit counseling course and a post filing debtor education course. Among other requirements, the post filing course must be a minimum of two hours and touch on a number of core areas. As soon as the changes came into effect, just like mushrooms after a storm, dozens of commercial companies popped up, each promising to provide Debtor Education for a price. Debtors could take the class in person, online or over the telephone. The process became as fast and simple as modern technology could allow. However, the very speed and convenience of modern technology significantly diluted the intended value. In my opinion, there is no substitute for in person classroom instruction. In early 2005, the Trustee’s office commissioned a study of the demographics of Debtors in Genesee, Shiawassee, Livingston and Lapeer Counties. The report showed that 59% of those surveyed had a college degree or other formal education beyond high school (trade, vocational training or some college), however only 5% of those surveyed had any type of training in personal finance or have ever received any financial counseling. Anecdotally, the Trustee’s staff informally polls each Debtor education class and typically less than 1 in 10 admit to having previously received some sort of financial education. After reviewing this data, I came to the conclusion that there is a serious lack of financial education and as Trustee, I wanted to do my best to remedy this problem. With the belief that in person instruction is superior to any other form of instruction, my staff began devising a debtor education class to fulfill the requirements put in place. Shortly, we had developed a financial education course, applied for and received certification by the United States Trustee as an approved provider. In the morning of each 341 hearing, my office holds an orientation class followed by the financial education class, both at no charge to the Debtors. The purpose of the Orientation class is to answer a number of frequently asked questions that come up during bankruptcy. We have been successfully holding this class for the past ten years. In 2015 there were 827 chapter 13 filings in our district and in 2015 the Trustee’s office issued and filed 559 certificates of completion of financial management. At the conclusion of each class, Debtors are asked to complete a survey about additional topics they believe would benefit them. These surveys have consistently shown that Debtors are interested in learning more about credit scores and budgeting. As a result, the Trustee’s office began offering a series of non-mandatory additional educational classes. The first class is a review of credit. It goes into the components of a credit score and what individuals can do to improve their scores. Second, the Trustee offers a class on budgeting. We share budgeting and savings strategies, tips and tactics. Also offered is a class that goes over common problems post confirmation. This is designed as a companion class the Debtor orientation class and covers many frequently asked questions that happen after confirmation of a chapter 13 case. Finally, we offer a Trustee open forum where Debtors are welcome to bring any questions, comments, complaints or compliments to be addressed personally by the Trustee. Too often we see ‘frequent filers’ returning to chapter 13 again and again. No Debtor ever filed chapter 13 without serious thought and consideration and it is my hope that Debtors emerge from bankruptcy wiser, more experienced and determined never to file again. Through our education efforts I hope to add to the success rate of Debtors both during their bankruptcy and afterward. Please encourage your clients to attend the financial education class offered by the Trustee and the additional classes as well. If your client has not attended the post filing debtor education class required to receive their discharge, please have them contact Leo Foley at 810.238.4675 [x228} or lfoley@flint13.com to get them scheduled. October 2015 Advantages of Plans that Provide for Trustee Paid Claims Disagreement persists as to whether allowing the debtor to make some payments directly provides any real benefit to the debtor, to the creditors or to the bankruptcy estate and whether the policy that allows a debtor to make payments directly to a creditor actually undermines the goals of the Bankruptcy Code and decreases the likelihood that a debtor will successfully complete a Chapter 13 plan. The Trustee in Flint believes that the goals of debtors, creditors and the bankruptcy estate are significantly advanced when the Trustee disburses on all claims. He believes that the goals of the bankruptcy system are often frustrated when the debtor makes direct payments to their creditors. Bankruptcy Courts who have considered whether or not the debtor may be permitted to be their own disbursement agent consider the following factors: The degree of responsibility of the debtor, as evidenced by his past dealings with creditors; A. The reasons contributing to the debtor’s need for filing a Chapter 13 petition and plan; Consideration of these factors rarely favors preference for direct payments. Whether or not the debtor is delinquent on claims, there are many good reasons for the proposition that all secured claims should be paid by the Trustee and few reasons why direct payments should be allowed. Chief of these reasons is that a Trustee payment system promotes effective supervision and control over the debtor’s plan and over the conduct of the parties. A policy of close supervision, control and an environment where parties enjoy an access to accurate records of disbursement on claims protects the integrity and efficiency of the Bankruptcy System. Also, of great importance is that a system of payments disbursed via the Trustee fosters a protected environment for debtors and encourages the successful completion of a plan with the consistent payments to creditors. The Following are Advantages for Trustee Paid Claims 1. Having all claims disbursed by the Trustee means that there should be more funds on hand in between disbursement cycles and thus a shorter wait times for debtor’s counsel on the payout of attorney fees in any given month of the plan. 2. Making payments to creditors through the Trustee’s office increases the likelihood that the debtor will successfully complete their Chapter 13 plan by reducing or eliminating the risk or impact of events occurring outside the plan. 3. The Trustee’s records make it easier to resolve disputes amongst the parties: a) A debtor’s ability to counter a creditor’s allegation of missed or insufficient payments is enhanced because the Trustee’s independent records make it easier for a debtor to prove payment was made or that it was posted by the creditor to an incorrect account and to obtain credit for misapplied payments. b) Debtor and creditors benefit from clear accounting of Trustee disbursements. When creditors are paid via the Trustee’s office both the debtor and the creditors have access to clear, reliable and independent accounting of the amount and a timeline of those payments. Records of payments made are part of the Trustee’s electronic records. Both debtor and creditors benefit from the fact that these records are accessible online. 4. The debtor may enjoy greater protections of the Automatic Stay: a) In most cases where the plan provides for the direct payment to a creditor, the automatic stay would then be terminated as to that creditor. Whereas, in cases where the Trustee disburses to the creditor, the automatic stay remains in place. Debtor enjoys protection from the automatic stay and more time is allowed to address any default in plan payments that may occur. b) The debtor enjoys pre-confirmation protections from motions to terminate the automatic stay. There is a lower risk of stay lift pre-confirmation even if the payments are coming in slowly or in partial payments as most payments are held until confirmation to be disbursed. 5. Often times after confirmation the debtor defaults to a direct pay creditor, which may then cause that creditor to foreclose on property, or repossess a vehicle – the end result is that after that property is sold, any unsecured deficiency claim would then have to be paid directly by the debtor. When the debtor elects to have creditor paid directly, the unsecured deficiency claims will not be allowed to later become part of the plan. [1] In re Adkins, 425 F.3d 296 (6th Cir. 2005) and [2]In re Parmenter, 527 F.3d 606 (6th Cir. 2008). 6. When the Trustee disburses funds to creditors, the debtor will have fewer payments to make on his own. It is easier and more manageable for the debtor to make one lump sum payment to the Trustee each month instead of an additional monthly payment to the mortgage company, automobile lender, student loan company and others. The chances of plan success are increased because of payments to creditors occurs more regularly. For example, there are inevitably months where the debtor has insufficient income available to make a full mortgage payment, or a car payment while paying for necessary household living expenses. When this happens there is a temptation for the debtor to make full payments to one creditor and partial or no payment at all to other creditors. A creditor receiving direct payment may refuse a payment that is not a full payment amount. In this circumstance, the delinquency is higher than it would be if the Trustee had disbursed the payments. When the Trustee is making disbursements, creditors with secured claims receive priority in payment, so while a debtor’s plan payment may not be in the full amount it may be sufficient to pay all the secured payments in full. Furthermore, secured creditors do not refuse partial payments from the Trustee. Partial payments are credited to the debtor’s account thus reducing the amount of a delinquency. 7. The debtor should not be charged a late fee on Trustee paid claims – (as long as the debtor receives a discharge) 8. The Trustee can establish an escrow account to ensure the payment of non-escrowed real property taxes. In cases where the debtor’s mortgage creditor does not maintain an escrow account for property taxes the debtor must accumulate and budget funds for that purpose. In months where the debtor has less disposable income, there is a substantial risk that the debtor will not set aside sufficient funds for the payment of the property tax, or the debtor may feel tempted to use the funds in the account earmarked for future property taxes for other unrelated expenses leaving the debtor with insufficient funds to pay the property taxes when they become due thereby putting the debtor’s bankruptcy case in jeopardy. If the Trustee escrows for property taxes there will be less of a likelihood that the tax would become delinquent. This will lessen the likelihood the that mortgage lender will advance post-petition property taxes and then subsequently increase the debtor’s ongoing monthly mortgage payment to recover the advance. Property taxes are a large expense which can be difficult for the debtor to budget and manage. Having the Trustee maintain an escrow account for the payment of property taxes is one additional safeguard to ensure successful completion of the Chapter 13 plan. 9. The Trustee encourages all debtors to request that the Chapter 13 Trustee make all disbursements to all creditors within the Chapter 13 plan. This way the Trustee is able to assist the debtor and to help protect the debtor’s discharge. The Trustee in this way helps to protect the debtor from events outside the plan, to insulate the debtor from financial pressures and everyday temptations that can doom a plan into failure and assures the debtor every opportunity to have a successful plan. 10. Far too many debtors are hampering their fresh start and their ability to reorganize by exiting Chapter 13 with debt being exempted from discharge because they are not current on their direct pay secured obligations at the end of the case. This also causes debtor’s counsel to scramble at the end of the case in responding to objections from creditors to the Trustee’s Notice of Completion of Payments. Debtor’s counsel is placed in a difficult position because trying to obtain records and proof payment from a direct pay debtor can be a nightmare. Counsel may also have to attend court hearings trying to resolve the objection and once resolved there might not be funds available to pay debtor’s counsel for the services rendered. 11. When secured debts are paid directly, they are excluded from the Trustee’s estate and are excluded from the formula for the calculation of the Trustee’s fee. The result is that the Trustee fee will rise. The Trustee’s fees are set in direct proportion between the costs of providing Trustee services to the revenue generated by the receipt of the debtor’s plan payments. The Trustee’s costs are set by an annual budget approved by the United States Trustee. Congress set the means by which the Chapter 13 Standing Trustees are compensated and has elected to have the individuals that avail themselves of the system to pay for the service based upon payments received by the Trustee. By diverting payments away from the Trustee, there are fewer payments received and less funds available for the Trustees to perform their statutory duties. However, if all secured claims were paid through the Trustee’s office, the Trustee’s percentage fee would likely decrease. 12. Having the Trustee pay claims benefits the greater good. We would all like to keep the costs of filing a bankruptcy case down. When creditors receive their payments via the Trustee, this helps to keep the Trustee’s administrative fee low. In turn, a low Trustee administrative fee benefits the debtors, creditors and debtors’ counsel. We all know explaining a Chapter 13 bankruptcy case to a prospective debtor can be difficult. However, it should be somewhat easier to recommend a bankruptcy case to a prospective debtor with a 5% Trustee Fee as opposed to a 10% Trustee Fee. While the debate goes on, the Trustee believes that the weight of the evidence favors a policy to require the Trustee to make disbursements as to all debts of the debtors. The Trustee is able to fully assist the debtor and to protect the debtors discharge. The Trustee also helps to protect the debtor from events that occur outside of the plan, to insulate the debtor from financial pressures that can doom a plan to failure and assures the debtor every opportunity to have a successful outcome. The Trustee’s services do have a minimal cost, but that cost is rarely borne solely by the debtor or to the debtor’s detriment. Rather, that fee is a shared expense that benefits all debtors and creditors. Opponents of a Trustee paid case believe that they are saving their client money by not paying a trustee fee on direct payments. These opponents are selling their clients short of all the benefits and protection a Chapter 13 provides. In reality the debtors are required to commit all of their disposable income into their Chapter 13 Plan. This pot of money will insure payment to all secured creditors and Trustee fees regardless of the percent paid to the unsecured creditors. -Carl L. Bekofske [1] In re Adkins, 425 F.3d 296 (6th Cir. 2005) The Sixth Circuit Court of Appeals determined that even when debtor’s actions, such as a default, provide cause for lifting the automatic stay the debtor was not permitted to reclassify the deficiency balance resulting from the sale of the underlying repossessed collateral – can’t change the classification of the claim even when collateral is subject to an involuntary lift of stay. [2] In re Parmenter, 527 F.3d 606 (6th Cir. 2008) The Sixth Circuit Court of Appeals determined that § 1329 permits modifications related to the amount and timing of payments, but it does not allow the creation of a new obligation that would trump other claimants. In Parmenter, the terms of the confirmed plan assumed a vehicle lease to be paid directly by the debtors. After confirmation debtors’ defaulted on the lease and creditor obtained lift of stay. Creditor filed an administrative expense claim seeking to be paid via the Trustee. The court held that if creditor wants to obtain any additional relief against the debtors it must do so outside the plan. April 2015 Recently, I assisted a law professor on a project regarding causes of consumer bankruptcy. It resulted in an article in the Maine Law Review, Volume 67, Number 1, written by Daniel A. Austin. It is a very readable article exploring the background, history and dynamics of consumer bankruptcy. The result of his exploration of this field is the conclusion that medical debt is the single largest cause of consumer bankruptcy. This corroborates the study by Professor Elizabeth Warren who wrote on this topic before she became Senator Warren from Massachusetts. I am tempted to recite much of Professor Austin’s article but it is readily available for you (attached below) and is an easy, relatively short read. Nevertheless, I will recite a few facts from his writings: There are many other interesting conclusions reported in this article and again I encourage you to read the entire article below. “Medical Debt as a Cause of Consumer Bankruptcy”– Daniel A. Austin -Carl L. Bekofske January 2015 When I interview a person needing to fill an opening in the Trustee’s office, I like to remind them that this is an ever changing environment: expect new Court rules, statutory changes (State or Federal), new attorneys, new plans and many new procedures. Some procedural changes are caused by our software system “upgrades,” some by staff agreement or easier ways to process our workload and some changes occur just to stay current, e.g. new monitors, printers and other office equipment. In fact, one of my frequently used slogans to staff is, “We need to run fast just to keep up!!” Well, once again a change is upon us. When I first became Trustee in 1984, we deducted the Trustee fee upon receipt of funds in our office. Strangely, that’s what the statute directed. However, the United States Trustee, the agency monitoring Chapter 13 and all bankruptcies, interpreted it to mean “at the time payments are made to creditors.” With newer description, we changed our procedure. I could state more details, but it is sufficient to say that the interpretation has changed back to the original timing of Trustee fee deductions upon receipt. At the beginning of 2015, our computers will be programmed to calculate and deduct Trustee fees upon receipt. This should make no difference to debtors and their attorneys, except in one instance. Note that orders of pre-confirmation conversion and dismissal shall no longer be required to pay a fee of $100.00 to the Trustee. Please review the Notice Regarding Changing the Timing of Taking Trustee Fees which has been disseminated to the public. If there are any questions or comments, please post them to our website blog section or contact our office in your favorite way. Happy, healthy and prosperous New Year to you and yours!! -Carl L. Bekofske
By Christine Smith, System Manager
Articles are published every day to urge us how to protect ourselves from the often silent but potentially crippling cyber-attacks. We are told to make sure we protect our networks using firewalls, security software and installing the endless updates for every form of software used. We need to protect every entry into our network, from our desktops, laptops, cell phones and yes, even printers.
There is the familiar mantra of “backups are a must.” We often forget about the physical control that should be implemented as well. Locking computers when walking away and shutting down or logging out at the end of the day are musts. Only give employees access to what they need to get their work done as opposed to the entire network. Make sure passwords are used, kept private and chanted at regular intervals. If you choose to use Wi-Fi, you are opening yourself up to a broader, harder to protect home base and must secure it with a complex password.
All of the above can be implemented in theory, but if not practiced on a daily basis, your systems will not be safe. In our current atmosphere, it is no longer a question of “if it happens.” It is more like “when it happens,” will you be ready? Will you have a plan that will bring your network back after an attack such as ransomware or a Zero day exploit? Don’t have any idea what these are? Sites like https://www.fireeye.com/current-threats.html can help educate you and give you an idea of what you need to be particularly careful with. The next step is realize that every click of the mouse, whether it be in an email, a word document or a zipped folder, has the potential to bring your network down. Office staff and attorneys alike must be continuously thinking of these possibilities. They should be saying to themselves, “Am I expecting this email? Should it have a zipped folder attached?” Do you allow your staff to check their own email on your computers? Do you allow internet browsing? Are your end users aware of the dangers of doing these things on work equipment?
In the end, after all the firewalls, security software, physical security and end user procedures, your network is only as good as your biggest risk to your network. So educate, practice and demonstrate through personal practices to your staff how to create the safest network possible. Here are some tips as well: https://apps.fcc.gov/edocs_public/attachmatch/DOC-306595A1.pdf
Recently, we have noticed an increasing number of debtors who have failed to properly disclose assets. It is a duty of the Chapter 13 Trustee to forward this information to the U.S. Trustee for review and possible action. Good, clear, penetrating interviews should eliminate mistakes, omissions or fraudulent statements. Most attorneys indicate as a preface to the interview that debtors must sign documents under penalty of perjury in order to file their case. Debtors need to know that this is not a time for poor or selective memories. The penalties are stiff and can cause lasting damage to a debtor’s reputation and in my observation have become more frequent.
It is often the case that the decision to file a Chapter 13 bankruptcy petition is made quickly and out of necessity in an urgent response to imminent foreclosure of the debtor’s home, or by a recent repossession of the family automobile. These assets are rightfully considered to be the key to a family’s financial health and security. But there is significant disagreement as to who should be responsible for making payments on secured debt within a Chapter 13 plan.
B. Any delays that the Trustee might make in remitting the monthly payment to the targeted creditor;
C. Whether the proposed plan modifies the debt;
D. The sophistication of the target creditor;
E. The ability and incentive of the target creditor to monitor payments;
F. Whether the debt is a commercial or consumer debt;
G. The ability of the debtor to reorganize absent direct payments;
H. Whether the payment can be delayed;
I The number of payments proposed to pay the targeted claim;
J. Whether a direct payment under the proposed plan will impair the trustee’s ability to perform his duties;
K. Unique or special circumstances of a particular case;
L. The business acumen of the debtor;
M. The good faith of the debtor;
N. The debtor’s post-filing compliance with statutory and court-imposed duties;
O. The consent, or lack thereof, by the affected creditor to the proposed plan treatment;|
P. The plan treatment of each creditor to which a direct payment is proposed to be made;
Q. The consent or lack thereof by the affected creditor to the proposed plan treatment;
R. The ability of the court and the trustee to monitor future direct payments;
T. The potential burden on the Trustee;
U. The possible effect upon the Trustee’s salary or funding of the U.S. Trustee system;
V. The potential for abuse of the bankruptcy system.