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BANKRUPTCY JUDGES & FEDERAL POWER

BANKRUPTCY JUDGES: THE “FEDERAL” JUDGES WHO ARE NOT “FEDERAL” JUDGES.

BANKRUPTCY JUDGES & FEDERAL POWER

BANKRUPTCY JUDGES & FEDERAL POWER:  The domain of bankruptcy was allotted to the federal government by the constitution itself where it says, “The Congress shall have Power To…establish…uniform Laws on the subject of Bankruptcies throughout the United States…. .”   This clause eventually led to the creation of the current federal bankruptcy system in 1978.   Federal bankruptcy judges were appointed to the bench in every District throughout the United States.  These federal judges, however, were not given the same power as full “Article III” judges (or the power of a regular federal judge to hear all federal and state matters-at least within the confines of their jurisdiction).

Certainly, a bankruptcy judge can hear ALL matters that pertain to bankruptcy, correct?  The answer to that question would surprisingly be NO at least according to the ruling of the famous Stern v. Marshall bankruptcy case which involved the famous (now deceased) Anna Nicole Smith.  This ruling greatly limited (and confused) federal judges’ ability to try cases that involved any State Court matters.  The jurisdiction of federal bankruptcy judges was limited to any dispute that “stems from the bankruptcy itself.”

Therefore, even if a matter is fully relevant, related, and essential to proper administration of a bankruptcy case, a federal bankruptcy judge may have no jurisdiction or authority over the matter.   If a state or federal court matter exists and it “does not stem from the bankruptcy itself,” the federal bankruptcy judge may have no power to decide on such matters.    Even a consent to jurisdiction for such a matter may not give the bankruptcy judge sufficient authority to decide such a matter.   Well, at least until very recently.

In Wellness International Network vs.  Sharif, the Supreme Court of the United States recently has given bankruptcy judges new authority to make final judgments on bankruptcy disputes that contain state issues.  If the parties consent to the jurisdiction, this new ruling appears to give federal bankruptcy courts full jurisdiction over such matters.   Federal Bankruptcy court can now serve as a useful and all-inclusive venue for deciding complex bankruptcy-related matters in one place.

Although Bankruptcy Judges are still not full “Article III” Federal Judges, the Supreme Court’s new holding greatly increases bankruptcy judges’ power to take care of bankruptcy disputes.   Most parties would naturally assume (or at least prefer) that all disputes related to bankruptcy can be determined in one place: bankruptcy court.   Now, with the consent of parties, it appears that all bankruptcy-related matters can be determined in one place: by the Federal Bankruptcy Judge.

~Indianapolis Bankruptcy Attorney John F. Bymaster

Timeshares and Bankruptcy

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Timeshares can frequently be handled according to your preference in bankruptcy: you can either KEEP them or even better for many people  . . . YOU CAN GET RID OF THEM.    A discussion of timeshares and bankruptcy should probably be broken down into three topics: 1) How to retain timeshares in bankruptcy, 2) How to surrender timeshare responsibilities in bankruptcy, and 3) How to recognize timeshares too valuable to retain in bankruptcy.

How to Retain a Timeshare in Bankruptcy

Many times the value of a timeshare is either too insignificant to administer in bankruptcy or your State’s bankruptcy exemptions will protect it in bankruptcy.   Because your timeshare may fit within this value range, it may be possible to retain your timeshare even though you are filing for bankruptcy.

In order to retain a timeshare in bankruptcy in Indiana, we first check to see how much similar time shares sell for.   Many times there is either a very low-price-fetching or NO market for many timeshares.   Other times timeshares may value in very low such as for $1000-$3000 for the timeshare right.  Timeshares in this range will be protected many times by Indiana’s “tangible property and OTHER REAL ESTATE” bankruptcy exemption.   Therefore, if this exemption is properly taken and the Trustee “abandons” your time share, you usually can keep your time share property.   Remember, ALL regular fees and ongoing maintenance amounts must continued to be paid if you plan on retaining the timeshare.

How to Surrender Timeshare Responsibilities in Bankruptcy

To many of our clients, keeping a time share through bankruptcy is the LEAST concern on their mind.   Most of our clients would prefer to GET RID OF THE TIMESHARE property.   They can no longer afford the fee and maintenance on the property.   What sounded great during the timeshare presentation has now become a nightmare.   Fortunately, timeshare responsibilities can be fully surrendered in bankruptcy.

Because bankruptcy can discharge debt and reject contracts, timeshare debt and ongoing contract responsibilities can be FULLY eliminated through a bankruptcy filing.  To surrender a timeshare, you need to file bankruptcy, list the timeshare creditor, and clearly state your intention to surrender in the Statement of Intention section of the filing.  You may also be requested to “deed” back the property to the timeshare company at some point.

How to Recognize Time Shares that are Too Valuable to Retain in Bankruptcy

Although it is very rare, some timeshares are too valuable to retain in bankruptcy.   Most time shares only can generate some $2000-$3000 or less in value in an open market because they simply possess too little rights with too many ongoing fees – these type of timeshares can almost always be retained during bankruptcy.  But, as in every area in real estate, some timeshare situations can be vastly different than the industry “norm.”  Timeshares, in theory, can be worth even hundreds of thousands of dollars: it is VERY possible that a time share can exceed whatever Indiana (or other state) exemption allots for your bankruptcy protection.

Time shares that could be of VERY substantial value should always be fully analyzed by a real estate Agent, appraiser, or timeshare expert.  A professional valuation of the timeshare will allow your bankruptcy attorney to help you make the plans necessary for retaining as much value from the timeshare situation as possible.   Remember, all time shares are not treated equally: value is the key to how your time share will be treated in bankruptcy!

Conclusion: You Can Usually Achieve Your Goal with Timeshares and Bankruptcy

Whether you want to surrender or retain your timeshare, you can usually achieve your goal in bankruptcy.  Bankruptcy usually allows you to completely reorganize your financial status no matter what situation you are facing.  Therefore, timeshares are usually no major obstacle to the debt relief you can achieve in bankruptcy.

 

 

 

Indianapolis Bankruptcy Attorney Reviews

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Indianapolis Bankruptcy Attorney Reviews: Are Bankruptcy Attorney Ratings Available for Indiana?  Are They reliable?

When looking for bankruptcy help, some of our clients have shown interest in Indianapolis bankruptcy attorney reviews.   They ask if Indianapolis bankruptcy attorney ratings are available online or in any other format to help them in their selection process.   Although there is no official Indiana bankruptcy attorney ratings system, there are several ways to identify either individual reviews or other relevant information for choosing a bankruptcy attorney.

Google, Yahoo, or Other Legitimate Bankruptcy Attorney Reviews Methods

Available on the internet and other legitimate business reviewing services, are a very limited amount of actual, relevant reviews.  These reviews (if you can find them) may be able to help you in your selection process.   Google and Yahoo usually contain at least a couple authentic reviews under the official listing for the bankruptcy attorney’s office.   In addition, review services like the Better Business Bureau and Angie’s List both provide reviews and keep businesses accountable with a higher scrutiny level on business practices.   Keep in mind that either the lack of reviews or occasional bad reviews may not be a fully revealing to “rate” any particular Indianapolis Bankruptcy Attorney.

Beware of Advertising Services Disguised as Reviews

Beware of claims such as the “Top 10’s” or “Best Attorneys Reviews” and other like-natured sites because many times these Indianapolis bankruptcy attorneys ratings or reviews are merely advertising.    Reputable publications that give thoughtful information about a bankruptcy office can be useful, but there are NUMEROUS advertising services claiming to contain some form of comprehensive “review” of attorneys in any particular area.  If that Attorney does not “pay” that “service” then he is not “reviewed” at all!  Therefore, these result can be limited and flawed for obvious reasons.

Word of Mouth Can Be Better Than Online Indianapolis Bankruptcy Attorney Reviews

There is nothing better than a word-of-mouth “review” of a professional at the exact moment that you are searching for such an individual.    Although such personal reviews are never 100% accurate, they can be very useful especially if you know the person giving you the recommendation is reliable.   If you know somebody who has filed bankruptcy in the past, ask them who they used and who they would recommend if they had to file bankruptcy all over again.

Research May be Much Better than Indianapolis Bankruptcy “Ratings” or “Reviews”

Bankruptcy Attorney Representation is a very important and personal service.  If you are seeking a good Indianapolis-Area bankruptcy lawyer, it may be MUCH better to do some quick, yet thorough research.   Seek previous clients and ask them how they would “review” their former Indiana bankruptcy attorney.  Go to a prospective Indiana bankruptcy attorney’s website and other online material and get a feel for what to expect on personal interaction, fees, and other matters.   Sometimes bankruptcy attorneys will have client reviews right on their website.  Obviously, reviews posted on the attorney’s website will most likely be positive, but at least that attorney cares about client reviews which may be a good sign.  Also, make sure that the particular attorney you are interested in is properly fitted for what you actually need in bankruptcy representation.    The best Chapter 7 attorney choice for you may not be the same as the best Chapter 11 attorney choice!    Call the office to get a feel of what to expect.   It will be worth the extra time you spend.

Conclusion: Use Indianapolis Attorney Reviews and Ratings But Do Your Own Research!

Although Indianapolis Attorney Reviews can be helpful on occasion, they cannot replace the benefit of fully researching an attorney’s office before hiring them.   With the vast amount of information available on the internet and the general transparency in which most bankruptcy offices conduct their operations, research and inquiry can quickly reveal what choice may be best for you.   Of course, if you have reviewed our office (using the methods described herein) and would feel comfortable with contacting us, feel free to call us for a free consultation or for more information.