If anyone is willing to loan them money to remain in business ( and pay their bills and salaries), they don’t have to declare bankruptcy. They still have money to spend even tho it is borrowed and their true "equity" is negative.

That is what is happening today. They are staying alive on borrowed money.

Now that the financial institutions have received all of their pre Christmas bailout money and now that the automobile industry is getting a down payment on their billions, with Christmas over, is it time for the retailers to get their share of the hand outs, bailouts, or whatever you want to call them?  After all, Christmas is 30-50% of some retailers entire year sales.

U.S. retailers face a wave of store closings, bankruptcies and takeovers starting next month as holiday sales are shaping up to be the worst in 40 years. Retailers may close 73,000 stores in the first half of 2009, according to the International Council of Shopping Centers. You read that right! 73,000 stores may close!

More unemployment.

More than a dozen retailers, including Circuit City Stores Inc., Linens ‘n Things Inc., Sharper Image Corp. and Steve & Barry’s LLC, have sought bankruptcy protection this year as the credit squeeze and recession drained sales. Investors will start seeing a wide variety of chains seeking bankruptcy protection in February when they file financial reports, said Burt Flickinger.

“You’ll see department stores, specialty stores, discount stores, grocery stores, drugstores, major chains either multi- regionally or nationally go out,” Flickinger, managing director of Strategic Resource Group, a retail-industry consulting firm in New York, said today in a Bloomberg Radio interview. “There are a number that are real causes for concern.”

Retail Metrics Inc.’s December comparable-store sales index will drop an estimated 1.2 percent, or 5 percent excluding Wal- Mart Stores Inc. Retailers’ fourth-quarter earnings may fall 19% on average, the seventh consecutive quarterly decline, according to Ken Perkins, president of Retail Metrics, a Swampscott, Massachusetts-based consulting firm.

This is dire news no matter how you cut it.

Probably 50,000 stores could close without any effect on consumer choice, Gregory Segall, a managing partner at buyout firm Versa Capital Management Inc., said this month during a panel discussion held at Bloomberg LP’s New York offices. Only retailers with healthy balance sheets will survive the recession, according to Matthew Katz, a managing director at consulting firm AlixPartners LLP.

I bet Obama can’t wait to get back to the mainland to begin solving all of these bankruptcy problems. Oh yes, and the war in the Middle East between Israel and Hamas.

Ernie Fitzpatrick
http://www.articlesbase.com/economics-articles/retail-bailouts-bankruptcies-701778.html

As the nation’s economy has declined, Americans are feeling the pinch, with an average of more than $16,000 in debt per person among those who have a credit profile. Freedom Debt Relief co-founder and co-CEO Brad Stroh reminds those who are facing serious debt hardship that they do have options when it comes to getting help.

“If you have trouble paying the bills, are receiving calls from collectors, are struggling to pay off bills from a medical episode or an accident, or are starting to believe you might be better off not opening the mail, you are in too deep,” said Stroh, whose company has resolved debts for more than 50,000 clients over the past six years. “It’s time to re-assess — and the good news is, you can get help without resorting to bankruptcy.”

Debt Resolution firms, such as Freedom Debt Relief (FDR), negotiate on the consumer’s behalf with creditors. They settle on a lower amount that typically can reduce a consumer’s principal balance due — rather than just interest rates — and lower total payments by 40 percent to 60 percent with a repayment term of two or three years. Credit scores may be negatively impacted, but responsible credit use after completing a debt resolution program can rebuild credit relatively quickly.

Debt Consolidation rolls multiple debts into one loan or into a mortgage. It may or may not bring lower payments. Borrowers using a mortgage to consolidate put their homes at risk and might run up just as much credit card debt within a few years. Those considering debt consolidation must make sure they can afford the resulting payment. Those considering using a mortgage for consolidation must make sure that they are not putting their homes at risk of foreclosure.

Credit Counseling provides lower interest rates, with a repayment term of five to 10 years. Total debt principal is not reduced. Many credit counseling firms operate with creditor funding, so the debt management plans created for consumers may be more in line with interests of the creditors. In addition, credit profiles can prevent access to credit while a consumer is in a program, as many lenders view debt management plans similarly to bankruptcy.

Bankruptcy is a less-viable option for most consumers today, following the reforms of several years ago. Those changes included the institution of a “means test” to determine eligibility for Chapter 7 protection, which eliminates most consumer debt. Those whom the law deems to have enough income (as defined by each state’s median household income) to re¬pay at least a portion of their debt cannot obtain Chapter 7 protection. Chapter 13 filings – which re¬quire consumers to repay debt on a repayment plan – are still available, but generally offer less-favorable terms than found in debt resolution, and result in a significant black mark on a credit report.

Questions to ask a debt partner
People who are looking for a trustworthy organization to help win the battle against debt can ask Stroh’s seven questions to choose a reputable firm:

1. Compensation: Does the company get any form of consideration or compensation from the creditors themselves? Some firms receive funding in the form of what are called “fair share” payments from creditors. The payments are incentives to get consumers into debt management plans (DMPs), and could lead to a conflict of interest between creditors’ and consumers’ interests.

2. Professional memberships: Is the company a member of its industry associations, or does it hold itself to a quality standard verifiable by third-party accreditation? A “yes” answer means the company is willing to have its practices scrutinized and to respond to consumer complaints.

3. Individualization: Does the company provide actual consultations and provide advice/education to consumers free of charge? Or is the company simply directing every consumer into a debt management plan?

4. Free education: Does the company provide educational material, including budgeting and financial advice, free of charge? Many firms consider educational material an additional fee source, not a benefit to their clients.

5. Background: What is the background of the company’s management team? Look for good, relevant education and experience — not a team that jumps from opportunity to opportunity to make its fortunes.

6. History: How long has the company been in business?

7. Success: What are the company’s dropout and success rates? Request these statistics. Leading credit card companies report that many credit-counseling firms have dropout rates as high as 90 percent.

About Freedom Financial Network (www.freedomdebtrelief.com)

Based in San Mateo, Calif., Freedom Financial Network, LLC (www.freedomfinancialnetwork.com) provides consumer debt resolution services through its Freedom Debt Relief and Freedom Tax Relief divisions. The company works for the consumer, negotiating with creditors to lower principal balances due that can often result in savings of up to half the amount owed.

Freedom Debt Relief (FDR) has served more than 50,000 clients since 2002 and currently has 28,000 clients working with the company to resolve their debt challenges. In the past month alone, the company resolved more than 3,500 cases for its clients, representing accounts worth more than $20 million. On average, FDR settles cases on behalf of its clients for 47 percent of the outstanding balance — a savings of 53 percent.

Company co-founders and co-CEOs Andrew Housser and Brad Stroh were named to the Silicon Valley/San Jose Business Journal’s “40 Under 40″ list in 2008, and are recipients of the Northern California Ernst & Young 2008 Entrepreneur of the Year Award. The company, with 475 employees, was voted one of the best places to work in both the San Francisco Bay Area and in Phoenix, home of a satellite office.

Mark Bowland
http://www.articlesbase.com/personal-finance-articles/freedom-debt-relief-offers-answers-clarity-for-those-struggling-with-debt-721342.html

As the nation’s economy has declined, Americans are feeling the pinch, with an average of more than $16,000 in debt per person among those who have a credit profile. Freedom Debt Relief co-founder and co-CEO Brad Stroh reminds those who are facing serious debt hardship that they do have options when it comes to getting help.

“If you have trouble paying the bills, are receiving calls from collectors, are struggling to pay off bills from a medical episode or an accident, or are starting to believe you might be better off not opening the mail, you are in too deep,” said Stroh, whose company has resolved debts for more than 50,000 clients over the past six years. “It’s time to re-assess — and the good news is, you can get help without resorting to bankruptcy.”

Debt Resolution firms, such as Freedom Debt Relief (FDR), negotiate on the consumer’s behalf with creditors. They settle on a lower amount that typically can reduce a consumer’s principal balance due — rather than just interest rates — and lower total payments by 40 percent to 60 percent with a repayment term of two or three years. Credit scores may be negatively impacted, but responsible credit use after completing a debt resolution program can rebuild credit relatively quickly.

Debt Consolidation rolls multiple debts into one loan or into a mortgage. It may or may not bring lower payments. Borrowers using a mortgage to consolidate put their homes at risk and might run up just as much credit card debt within a few years. Those considering debt consolidation must make sure they can afford the resulting payment. Those considering using a mortgage for consolidation must make sure that they are not putting their homes at risk of foreclosure.

Credit Counseling provides lower interest rates, with a repayment term of five to 10 years. Total debt principal is not reduced. Many credit counseling firms operate with creditor funding, so the debt management plans created for consumers may be more in line with interests of the creditors. In addition, credit profiles can prevent access to credit while a consumer is in a program, as many lenders view debt management plans similarly to bankruptcy.

Bankruptcy is a less-viable option for most consumers today, following the reforms of several years ago. Those changes included the institution of a “means test” to determine eligibility for Chapter 7 protection, which eliminates most consumer debt. Those whom the law deems to have enough income (as defined by each state’s median household income) to re¬pay at least a portion of their debt cannot obtain Chapter 7 protection. Chapter 13 filings – which re¬quire consumers to repay debt on a repayment plan – are still available, but generally offer less-favorable terms than found in debt resolution, and result in a significant black mark on a credit report.

Questions to ask a debt partner
People who are looking for a trustworthy organization to help win the battle against debt can ask Stroh’s seven questions to choose a reputable firm:

1. Compensation: Does the company get any form of consideration or compensation from the creditors themselves? Some firms receive funding in the form of what are called “fair share” payments from creditors. The payments are incentives to get consumers into debt management plans (DMPs), and could lead to a conflict of interest between creditors’ and consumers’ interests.

2. Professional memberships: Is the company a member of its industry associations, or does it hold itself to a quality standard verifiable by third-party accreditation? A “yes” answer means the company is willing to have its practices scrutinized and to respond to consumer complaints.

3. Individualization: Does the company provide actual consultations and provide advice/education to consumers free of charge? Or is the company simply directing every consumer into a debt management plan?

4. Free education: Does the company provide educational material, including budgeting and financial advice, free of charge? Many firms consider educational material an additional fee source, not a benefit to their clients.

5. Background: What is the background of the company’s management team? Look for good, relevant education and experience — not a team that jumps from opportunity to opportunity to make its fortunes.

6. History: How long has the company been in business?

7. Success: What are the company’s dropout and success rates? Request these statistics. Leading credit card companies report that many credit-counseling firms have dropout rates as high as 90 percent.

About Freedom Financial Network (www.freedomdebtrelief.com)

Based in San Mateo, Calif., Freedom Financial Network, LLC (www.freedomfinancialnetwork.com) provides consumer debt resolution services through its Freedom Debt Relief and Freedom Tax Relief divisions. The company works for the consumer, negotiating with creditors to lower principal balances due that can often result in savings of up to half the amount owed.

Freedom Debt Relief (FDR) has served more than 50,000 clients since 2002 and currently has 28,000 clients working with the company to resolve their debt challenges. In the past month alone, the company resolved more than 3,500 cases for its clients, representing accounts worth more than $20 million. On average, FDR settles cases on behalf of its clients for 47 percent of the outstanding balance — a savings of 53 percent.

Company co-founders and co-CEOs Andrew Housser and Brad Stroh were named to the Silicon Valley/San Jose Business Journal’s “40 Under 40″ list in 2008, and are recipients of the Northern California Ernst & Young 2008 Entrepreneur of the Year Award. The company, with 475 employees, was voted one of the best places to work in both the San Francisco Bay Area and in Phoenix, home of a satellite office.

Mark Bowland
http://www.articlesbase.com/personal-finance-articles/freedom-debt-relief-offers-answers-clarity-for-those-struggling-with-debt-721342.html

Challenging Wrongful Foreclosure in Nevada

 LAW OFFICE OF MALIK W. AHMAD

ATTORNEY AT LAW

 

(702) 270-9100

 

WWW.FASTBANKRUPTCYNEVADA.COM

 

WWW.MYMALIKLAW.COM

 

Foreclosures are on the rise and in fact the largest in United States according to the latest statistics. Where ever two or more people get together they are discussing economy or foreclosure in Nevada, and especially in Las Vegas. This is a brief guide for lay persons about how to challenge foreclosure successfully, a feat that is possible though difficult. However, this memo is not a substitute for legal assistance, which is usually essential in this complex area of the law. Please get a proper legal help from a licensed and qualified attorney in Nevada as well as in Las Vegas. Also, be very suspicious of agencies or people who are calling from outside Nevada, with a different area code. Ask them first question what is the name of their attorney and his date of admission and possibly if you can speak to him directly. Please under no circumstances give any information to them.

This memo is divided into the following parts:

• Filing Bankruptcy before Foreclosure Occurs

 

• Suing to Enjoin Foreclosure before It Occurs

 

• Suing to Set Aside a Foreclosure that Has Already Taken Place

 

• Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred

 

• Filing Bankruptcy after Foreclosure

 

• Procedural Grounds for Challenging the Foreclosure

 

• Substantive Grounds for Challenging the Foreclosure

Filing Bankruptcy before Foreclosure Occurs

 

 

This is often the shortest and simplest procedure. It has the following advantages: a bankruptcy filing automatically prevents foreclosure temporarily and sometimes permanently; you have the opportunity to cure a default in your payments by paying the delinquent amount in installments over a reasonable period; you may be able to reduce or eliminate the fees of the lender’s attorney; and you may be able to avoid interest on the amount you are delinquent (though not interest on the loan itself).

Generally, you will need a lawyer in bankruptcy. You must file before the foreclosure sale takes place, a time that usually is only 20 or so days after the foreclosure process starts with a letter to you or a notice in a newspaper.

Suing to Enjoin Foreclosure before It Occurs

 

 

To obtain an injunction, you must file a complaint in a court. You will need a lawyer. The process is made more arduous by a requirement that you give five days’ notice to the lender before seeking to enjoin the foreclosure. This reduces the 20-day period to 15 days for acting.

 

Temporary injunctions require a “clear” showing of “immediate and irreparable injury, loss or damage” or “that the acts or omissions of the adverse party will tend to render [the] final judgment ineffectual.” Judges take this requirement seriously.

 

The most difficult requirement of all may be the need to give a bond “in such sum as the court … deems proper” unless you successfully obtain permission to bring the action as an indigent person. A homeowner with only modest amounts of other assets and income may be unable to qualify as indigent and may also be unable to find anyone willing to provide a bond, especially one on short notice.

Suing to Set Aside a Foreclosure that Has Already Taken Place

The grounds for setting aside a foreclosure are limited to “some evidence of irregularity, misconduct, fraud, or unfairness on the part of the trustee or the mortgagee that caused or contributed to an inadequate price.” Defenses like the absence of a delinquency or violations by the lender of federal or state commercial law may not be raised.

You have the burden of proof in a lawsuit to set aside a foreclosure. Damages are the only remedy. There is nothing to prevent a third-party purchaser from keeping your house even if he knows of your claim against the lender and even if he believes that your claim is meritorious.

Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred

Foreclosure may be challenged by a counterclaim when the lender (or other new owner of the property) seeks possession by a “detainer” action. It is better to file the counterclaim in writing, and the grounds for doing so are discussed below. It is preferable that you use a lawyer to assist you, but most persons do not.

There is an initial problem. A statute says: “The estate, or merits of the title, shall not be inquired into” in a detainer action. Lenders may assert that a wrongful foreclosure may not be challenged even when the parties are before the court on the issue of possession, the right to possession is necessarily founded on ownership, and ownership depends on the lawfulness of the foreclosure. In our view, the statute disallows only attacks upon title based on transactions prior to the creation of the deed of trust. We also believe that the statute is inapplicable to counterclaims seeking to set aside a foreclosure, even if it bars defenses to the detainer action.

Not every new owner is successful in obtaining possession. It may overlook the proof that is necessary to show that it the foreclosure was conducted properly and that it was entitled to foreclose – things like affidavits or testimony showing that you did not make timely payments. You may and should contest every assertion made by the new owner, even if you do not have a lawyer. The new owner has the burden of proof. If it fails to meet that burden, the judge may conclude that you are entitled to remain in possession even though you no longer own the home.

On the other hand, if the new owner is successful in the detainer action, it is entitled not only to possession but also to the rental value of the property from the date of foreclosure until the date of removal. You have only ten days for an appeal to Circuit

Court and must furnish a bond. The amount of it can be prohibitive: a “sufficient amount to cover, besides costs and damages, the value of the rent of the premises during the litigation.” Even the furnishing of an affidavit of indigency may be insufficient to retain possession during an appeal.

 

Filing Bankruptcy after Foreclosure

It is possible to set aside the foreclosure through the bankruptcy process. The grounds that may be asserted are discussed below.

There is some good news even if you lose the challenge; bankruptcy usually discharges all or part of a deficiency judgment against you for any amount still due after the foreclosure occurs.

Procedural Grounds for Challenging the Foreclosure

• Failure to Give Personal Notice. No personal notice to a borrower is required by statute. However, we believe that federal and state constitutions require personal notice to each borrower, either by summons or by certified mail that is actually received, and we are litigating cases so as to establish this principle.

• Insufficient Notice by Newspaper Publication or Posting in Public Places. Under Nevada statutes, advertisement of a foreclosure sale must be made three different times in “some” newspaper “published” in the “county where the sale is to be made.” Only 20 days’ notice is required, and the use of publications read almost exclusively by lenders and lawyers is permitted. Both the shortness of the time and the use of obscure newspapers seem vulnerable to constitutional objection. In addition, some counties have no eligible newspapers. In this case, written notice may then be posted in five “of the most public places in the county.” There is no guidance about what such places are or how they are to be determined. This is too vague a standard to pass constitutional muster.

• Failure to Give Notice Required by the Deed of Trust. Many deeds of trust require notice of foreclosure by certified mail, or at least by mail, in addition to notice by newspaper publication. Many also require notice – before foreclosure is sought — that the entire sum has been declared to be due because of a late payment or other default.

• No Meaningful Opportunity to Dispute the Foreclosure. This too is a constitutional challenge to Tennessee’s foreclosure process. It is based on the notion that making you find a lawyer and file a lawsuit in 15 days, assume a high burden of proof, and furnish a bond are unfair hurdles imposed on you.

• Defects in the Foreclosure Sale. Nevada judges have said that the foreclosure must occur in the county in which the property is located; it must take place at an accessible location; and a lender may not use a purely technical default as a basis for foreclosure. However, when the lender demands the full amount of the debt, they have refused to let the borrower cure the delinquency by paying the disputed amount before the foreclosure occurs. They also have ruled that there is no minimum price that must be paid and have allowed the lender to recover a deficiency judgment if the amount received in the sale is less than the amount owed. They have yet to decide whether the combination of a shockingly low price and another procedural defect are sufficient to disallow the foreclosure.

Substantive Grounds for Challenging the Foreclosure

The following claims and defenses are among those that may be raised so as to defeat a foreclosure altogether or reduce the amount of any deficiency:

• Estoppel: Late Payments Were Accepted on Other Occasions. This suggests that the lender waived the right to refuse late payments and was estopped from foreclosing.

• Refusal: The Lender Refused to Supply a Pay-Off Amount or Accept Full Payment so Foreclosure Could Be Avoided. Despite unfavorable precedent, this could be a viable ground.

• Military Service: A Borrower was in Military Service at the Time of the Foreclosure.

 

• The Loan was Unconscionabl:. That is, the inequality of the bargain is so manifest as to shock the judgment of a person of common sense, and the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.

• Unfair and Deceptive Practices (UDAP): The Making of the Loan, or the Servicing of It,  was Riddled with Unfair and Deceptive Practices that Violated the Nevada Consumer          Protection Act.

• Unauthorized Fees: The Servicer Collected Unauthorized Fees for the Escrow Account, or  as Late Charges, or as Attorney Fees during the Foreclosure Process.

• Signatures: One Spouse Was Required to Sign the Mortgage Note even though the Credit of the Other Spouse was Sufficient.

• Capacities: One or More Borrowers Lacked the Mental or Physical Capacity to Borrow.

• YSP: (Yield Spread Premium): The Mortgage Broker Was Paid an Unlawful Sum by the     Lender.

• Fiduciary Responsibilities: The Lender Violated a Relationship of Trust with the Borrower  that Developed in the Lending Process.

• Fraud or Misrepresentation: There Was Fraud or Misrepresentation by the Lender in the  Making of the Loan.

Malik Ahmad Attorney at law
http://www.articlesbase.com/bankruptcy-articles/foreclosure-in-nevada-steps-and-procedure-740749.html

Challenging Wrongful Foreclosure in Nevada

 LAW OFFICE OF MALIK W. AHMAD

ATTORNEY AT LAW

 

(702) 270-9100

 

WWW.FASTBANKRUPTCYNEVADA.COM

 

WWW.MYMALIKLAW.COM

 

Foreclosures are on the rise and in fact the largest in United States according to the latest statistics. Where ever two or more people get together they are discussing economy or foreclosure in Nevada, and especially in Las Vegas. This is a brief guide for lay persons about how to challenge foreclosure successfully, a feat that is possible though difficult. However, this memo is not a substitute for legal assistance, which is usually essential in this complex area of the law. Please get a proper legal help from a licensed and qualified attorney in Nevada as well as in Las Vegas. Also, be very suspicious of agencies or people who are calling from outside Nevada, with a different area code. Ask them first question what is the name of their attorney and his date of admission and possibly if you can speak to him directly. Please under no circumstances give any information to them.

This memo is divided into the following parts:

• Filing Bankruptcy before Foreclosure Occurs

 

• Suing to Enjoin Foreclosure before It Occurs

 

• Suing to Set Aside a Foreclosure that Has Already Taken Place

 

• Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred

 

• Filing Bankruptcy after Foreclosure

 

• Procedural Grounds for Challenging the Foreclosure

 

• Substantive Grounds for Challenging the Foreclosure

Filing Bankruptcy before Foreclosure Occurs

 

 

This is often the shortest and simplest procedure. It has the following advantages: a bankruptcy filing automatically prevents foreclosure temporarily and sometimes permanently; you have the opportunity to cure a default in your payments by paying the delinquent amount in installments over a reasonable period; you may be able to reduce or eliminate the fees of the lender’s attorney; and you may be able to avoid interest on the amount you are delinquent (though not interest on the loan itself).

Generally, you will need a lawyer in bankruptcy. You must file before the foreclosure sale takes place, a time that usually is only 20 or so days after the foreclosure process starts with a letter to you or a notice in a newspaper.

Suing to Enjoin Foreclosure before It Occurs

 

 

To obtain an injunction, you must file a complaint in a court. You will need a lawyer. The process is made more arduous by a requirement that you give five days’ notice to the lender before seeking to enjoin the foreclosure. This reduces the 20-day period to 15 days for acting.

 

Temporary injunctions require a “clear” showing of “immediate and irreparable injury, loss or damage” or “that the acts or omissions of the adverse party will tend to render [the] final judgment ineffectual.” Judges take this requirement seriously.

 

The most difficult requirement of all may be the need to give a bond “in such sum as the court … deems proper” unless you successfully obtain permission to bring the action as an indigent person. A homeowner with only modest amounts of other assets and income may be unable to qualify as indigent and may also be unable to find anyone willing to provide a bond, especially one on short notice.

Suing to Set Aside a Foreclosure that Has Already Taken Place

The grounds for setting aside a foreclosure are limited to “some evidence of irregularity, misconduct, fraud, or unfairness on the part of the trustee or the mortgagee that caused or contributed to an inadequate price.” Defenses like the absence of a delinquency or violations by the lender of federal or state commercial law may not be raised.

You have the burden of proof in a lawsuit to set aside a foreclosure. Damages are the only remedy. There is nothing to prevent a third-party purchaser from keeping your house even if he knows of your claim against the lender and even if he believes that your claim is meritorious.

Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred

Foreclosure may be challenged by a counterclaim when the lender (or other new owner of the property) seeks possession by a “detainer” action. It is better to file the counterclaim in writing, and the grounds for doing so are discussed below. It is preferable that you use a lawyer to assist you, but most persons do not.

There is an initial problem. A statute says: “The estate, or merits of the title, shall not be inquired into” in a detainer action. Lenders may assert that a wrongful foreclosure may not be challenged even when the parties are before the court on the issue of possession, the right to possession is necessarily founded on ownership, and ownership depends on the lawfulness of the foreclosure. In our view, the statute disallows only attacks upon title based on transactions prior to the creation of the deed of trust. We also believe that the statute is inapplicable to counterclaims seeking to set aside a foreclosure, even if it bars defenses to the detainer action.

Not every new owner is successful in obtaining possession. It may overlook the proof that is necessary to show that it the foreclosure was conducted properly and that it was entitled to foreclose – things like affidavits or testimony showing that you did not make timely payments. You may and should contest every assertion made by the new owner, even if you do not have a lawyer. The new owner has the burden of proof. If it fails to meet that burden, the judge may conclude that you are entitled to remain in possession even though you no longer own the home.

On the other hand, if the new owner is successful in the detainer action, it is entitled not only to possession but also to the rental value of the property from the date of foreclosure until the date of removal. You have only ten days for an appeal to Circuit

Court and must furnish a bond. The amount of it can be prohibitive: a “sufficient amount to cover, besides costs and damages, the value of the rent of the premises during the litigation.” Even the furnishing of an affidavit of indigency may be insufficient to retain possession during an appeal.

 

Filing Bankruptcy after Foreclosure

It is possible to set aside the foreclosure through the bankruptcy process. The grounds that may be asserted are discussed below.

There is some good news even if you lose the challenge; bankruptcy usually discharges all or part of a deficiency judgment against you for any amount still due after the foreclosure occurs.

Procedural Grounds for Challenging the Foreclosure

• Failure to Give Personal Notice. No personal notice to a borrower is required by statute. However, we believe that federal and state constitutions require personal notice to each borrower, either by summons or by certified mail that is actually received, and we are litigating cases so as to establish this principle.

• Insufficient Notice by Newspaper Publication or Posting in Public Places. Under Nevada statutes, advertisement of a foreclosure sale must be made three different times in “some” newspaper “published” in the “county where the sale is to be made.” Only 20 days’ notice is required, and the use of publications read almost exclusively by lenders and lawyers is permitted. Both the shortness of the time and the use of obscure newspapers seem vulnerable to constitutional objection. In addition, some counties have no eligible newspapers. In this case, written notice may then be posted in five “of the most public places in the county.” There is no guidance about what such places are or how they are to be determined. This is too vague a standard to pass constitutional muster.

• Failure to Give Notice Required by the Deed of Trust. Many deeds of trust require notice of foreclosure by certified mail, or at least by mail, in addition to notice by newspaper publication. Many also require notice – before foreclosure is sought — that the entire sum has been declared to be due because of a late payment or other default.

• No Meaningful Opportunity to Dispute the Foreclosure. This too is a constitutional challenge to Tennessee’s foreclosure process. It is based on the notion that making you find a lawyer and file a lawsuit in 15 days, assume a high burden of proof, and furnish a bond are unfair hurdles imposed on you.

• Defects in the Foreclosure Sale. Nevada judges have said that the foreclosure must occur in the county in which the property is located; it must take place at an accessible location; and a lender may not use a purely technical default as a basis for foreclosure. However, when the lender demands the full amount of the debt, they have refused to let the borrower cure the delinquency by paying the disputed amount before the foreclosure occurs. They also have ruled that there is no minimum price that must be paid and have allowed the lender to recover a deficiency judgment if the amount received in the sale is less than the amount owed. They have yet to decide whether the combination of a shockingly low price and another procedural defect are sufficient to disallow the foreclosure.

Substantive Grounds for Challenging the Foreclosure

The following claims and defenses are among those that may be raised so as to defeat a foreclosure altogether or reduce the amount of any deficiency:

• Estoppel: Late Payments Were Accepted on Other Occasions. This suggests that the lender waived the right to refuse late payments and was estopped from foreclosing.

• Refusal: The Lender Refused to Supply a Pay-Off Amount or Accept Full Payment so Foreclosure Could Be Avoided. Despite unfavorable precedent, this could be a viable ground.

• Military Service: A Borrower was in Military Service at the Time of the Foreclosure.

 

• The Loan was Unconscionabl:. That is, the inequality of the bargain is so manifest as to shock the judgment of a person of common sense, and the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.

• Unfair and Deceptive Practices (UDAP): The Making of the Loan, or the Servicing of It,  was Riddled with Unfair and Deceptive Practices that Violated the Nevada Consumer          Protection Act.

• Unauthorized Fees: The Servicer Collected Unauthorized Fees for the Escrow Account, or  as Late Charges, or as Attorney Fees during the Foreclosure Process.

• Signatures: One Spouse Was Required to Sign the Mortgage Note even though the Credit of the Other Spouse was Sufficient.

• Capacities: One or More Borrowers Lacked the Mental or Physical Capacity to Borrow.

• YSP: (Yield Spread Premium): The Mortgage Broker Was Paid an Unlawful Sum by the     Lender.

• Fiduciary Responsibilities: The Lender Violated a Relationship of Trust with the Borrower  that Developed in the Lending Process.

• Fraud or Misrepresentation: There Was Fraud or Misrepresentation by the Lender in the  Making of the Loan.

Malik Ahmad Attorney at law
http://www.articlesbase.com/bankruptcy-articles/foreclosure-in-nevada-steps-and-procedure-740749.html

With the economy suffering and an increasing amount of people out of work, it’s no surprise that more people are falling behind on their payments. Incessant collection calls can be both embarrassing and upsetting. Learn your rights and your options for relief.

With the economy suffering and an increasing amount of people out of work, it’s no surprise that more people are falling behind on their payments. Incessant collection calls can be both embarrassing and upsetting. While creditors certainly have the the right to collect, you are offered some protection under the Fair Debt Collection Practices Act. In Texas, you are further protected under the Texas Debt Collection Act. A creditor may contact you, or may sell the debt at a reduced rate to a debt collector—regardless of what party is attempting to collect, there are certain inappropriate behaviors and it’s important to know your rights.

Collectors MUST: Creditors must identify who they are and why they are calling. If you request the name and address of the original creditor they must give it you within thirty days. They must provide proof of the debt, if requested, also within thirty days. They must also notify you of your right to dispute the debt. If you choose to do so, you must request it in writing, and during that thirty day investigation period they must not attempt to contact you.

Collectors MUST NOT: Collectors are expected to behave in a reasonable manner and are prohibited from “abusive and deceptive” conduct. Collectors are not allowed to call you outside the hours of 8am to 9pm, and must not repeatedly call in an attempt to harass you. They must not use profanity or abusive language, or threaten unrealistic legal action or arrest. They also cannot misrepresent themselves as a member of law enforcement or an attorney. If you do have known representation in the matter, collectors must not contact you. Once you have notified a collector that you prefer not to be contacted at work, they must not attempt to reach you there, nor can they discuss the nature of the debt with outside parties, other than your lawyer or spouse.

These are the primary do’s and don’t designated for your protection. However, even if a collector abides by these rules, if the debt is legitimate, then you still owe it! If you are simply unable to pay, you do have options. The first is to attempt to negotiate with the collector, for example, offer to pay a reduced amount or participate in an extended payment plan. Unfortunately, this is rarely successful, and the best option for many may be to file for bankruptcy. Once you are under the protection of the court, creditors are notified and must discontinue all attempts to collect immediately.

Texas is very bankruptcy-friendly, offering greater protection than most states. In Texas, over 100,000 people declared bankruptcy last year to get the fresh start they needed. Contrary to what many believe, your credit is not permanently damaged and you will still be able to have credit. There are two types of bankruptcy, and a knowledgeable bankruptcy lawyer can educate you as to your options in Texas.

At the Malaise Law Firm, our <a href=”http://www.malaiselawfirm.com/bankruptcy”>Texas bankruptcy attorneys</a> have over forty years experience helping people file bankruptcy. We serve clients in San Antonio, Houston, Corpus Christi, Harlingen, Brownsville and McAllen. If you are being harassed by creditors, we encourage you to call for a consultation. Bankruptcy can offer relief from your credit problems, but may or may not be right for you and your situation. We are committed to helping our clients do what is in their best interest.

Helen Walker
http://www.articlesbase.com/law-articles/debt-collection-your-rights-your-options-683449.html

http://bankruptcy-info.we.bs/
http://www.loan-house.info/2009/09/choosing-right-bankruptcy-attorney.html

The law passed after the 2005 Supreme Court ruling did not address all of these, so they are up for litigation. And are being litigated right now. The exceptions might not affect many people, but they exist.

So: bankruptcy, lawsuits. And yes, the IRS can seize your IRA.

http://800buchwald.com/p-pension.htm

 The average American knows very little about bankruptcy. Most people probably understand very generally that a bankruptcy can serve to eliminate debt and offer a ‘fresh start’ – but often know very little beyond this basic concept. Some of the information you might have heard is correct, but much of it is not. Misconceptions have become even more widespread after the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). The purpose of this article is to dispel some of the most common bankruptcy myths.

Myth: Bankruptcy relief is no longer available.

Untrue.  Almost all of the relief formerly available through bankruptcy survives in today’s bankruptcy code. The bankruptcy filing process is a little more complicated – and it can therefore be more difficult to find a qualified attorney – but the end result of a discharge of debts (and with that discharge the hoped-for “fresh start”) is still entirely attainable.

 Myth: People who file for bankruptcy can’t get credit for 10 years.

Entirely untrue. Chapter 7 filers invariably receive unsolicited credit card offers after they get their discharge. The rates might not be quite as favorable as rates offered to others with perfect credit, but credit is undoubtedly available. The myth probably stems from the fact that the Fair Credit Reporting Act allows the reporting of a bankruptcy filing for 10 years. That much is true, but has no direct bearing on how quickly after bankruptcy one can obtain credit. Myth: Filing for bankruptcy is an embarrassment, or is somehow indicative of personal or moral failure. Untrue and unfair. The vast majority of bankruptcy filings stem from one or more of the following, all of which are beyond the debtor’s control : Loss of income resulting from layoff or failed self-employment business, large medical expenses resulting from injury or illness, divorce or separation, and high interest rates and/or penalties on credit cards resulting from the imposition of a ‘Universal default’ clause. (‘Universal default’ is the term for a practice in the financial services industry whereby a particular lender may change the terms of a loan from the normal terms to the ‘default terms’ when that lender learns that their customer has defaulted with  another lender, even though the customer has not  defaulted with the first lender.) This invariably means a drastic rate increase which, in combination with one of the other hardship factors, leads inevitably in turn to more late or insufficient payments, triggering a “snowball” effect. bankruptcy laws were specifically designed to prevent honest debtors, who have been faced with these difficult or hardship circumstances, from being mercilessly harassed by creditors for accounts the debtor simply has no possible way of repaying. It should be no negative reflection on a person’s character for simply availing himself of laws that were written for these very reasons and situations.

Myth:  Even if I file for bankruptcy, creditors can still harsss me and my family.

Completely false. Bankruptcy law provides for ‘automatic stay’ protection; that is, as soon as you file for bankruptcy a hold is put on all your outstanding debts and any creditor attempts to collect those debts. The law prohibits any creditor attempt to collect on or even contact the debtor in regard to a debt. If a creditor does not follow the rules, the debtor may have a cause of action against the creditor for ‘punitive damages,’ whereby a bankruptcy judge could actually punish a creditor with stiff fines and penalties for not following the procedures set out in the bankruptcy code. Whether a debtor has a cause of action against a creditor should be left to an attorney to answer. What is certain, however, is that the moment you file for bankruptcy, creditors must leave you alone or suffer the consequences.

Myth: If I file for bankruptcy, I will have to forfeit some or all of my assets.

For the vast majority of filers, this is not the case. Under chapter 7, you may claim certain of your property as exempt under federal law (for example the $10,775 exemption limit for household goods, furnishings, and appliances, and the $1,350 exemption limit for jewelry). A trustee may have the right to take possession of and sell the remaining property that is not exempt and use the sale proceeds to pay your creditors. In the vast majority of cases, however, the debtor has no assets above these statutory exemption limits, meaning that the debtor may “exempt”, and therefore keep, all of his assets.

Myth: Filing for bankruptcy could cost you your job.

False.  Specifically, federal law (U.S.C. Sec. 525) prohibits any employer from discriminating against you because you filed bankruptcy. State laws may provide additional protection for filers, as often do union employment contract clauses.

Myth: Bankruptcy costs our society too much.

Credit card issuers are quite profitable and, industry-wide, boast some of the highest profit margins in the corporate sector. This is despite the relatively small percentage of loans discharged in bankruptcy, a percentage that is factored into their budgets and compensated for by the percentage rates they charge. Our economy has, overall, benefited enormously by the purchasing power facilitated by credit – one need only consider the widespread economists’ predictions of pervasive and lasting harm to the American economy should the ongoing subprime mortgage crisis be allowed to cause credit to ‘dry up’. And again, the pricing of credit takes into account that not everyone will be able to repay. The “$400 per family bankruptcy tax” bandied about in Congress was a number picked out of the air by a bank lobbyist – no surprise there – who made an arithmetic error in the process.

Myth: Filing bankruptcy causes family trouble and divorce. 

Wrong.  Bankruptcy eliminates debt, which in turn cannot help but eliminate financial stress. Filing bankruptcy is the solution to the problem, not an additional problem. Although making the decision to file bankruptcy might be a difficult one, the relief provided will lift a huge weight off of you and your spouse. The removal of financial stress will in all likelihood help  your relationship.

David Romito
http://www.articlesbase.com/bankruptcy-articles/common-bankruptcy-myths-debunked-723754.html