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Tuesday, June 30, 2015

Supreme Court Enhances Power of Bankruptcy Courts

In the event a bankruptcy matter involves an equitable or legal claim, can the bankruptcy court handle this matter or must the litigant resolve the issue separately? 


In a consumer or business bankruptcy matter, there often exists collateral matters that arise as parties settle with creditors or discharge debts. In 2011, the U.S. Supreme Court considered a bankruptcy action wherein the parties were in dispute over a common law matter, and the Court held that the bankruptcy judge had no actual jurisdiction to make a decision on the issue. While the U.S. Constitution clearly articulates this jurisdiction to the “Article III” Courts (i.e., federal district courts), the requirement to re-litigate collateral claims outside bankruptcy court was proving to be not only inconvenient, but wasteful and time consuming. 

In 2015, the Supreme Court revisited the issue, and arrived at an alternative conclusion in a 6-3 opinion penned by Justice Sonia Sotomayor. The case, described more fully below, stands for the notion that a collateral common law or equitable matter directly related to a bankruptcy filing can be decided by a bankruptcy judge, and U.S. bankruptcy courts should have jurisdiction to hear these issues – provided the issues are incident to the overriding bankruptcy claims. 

Court’s Decision in Wellness International Network, et. al. v. Richard Sharif


The Wellness case involved an individual consumer debtor seeking to have a debt owed to Wellness International discharged. Pursuant to the filing, Wellness International sought a declaratory judgment that Mr. Sharif maintained several trust accounts that should be accessible to creditors and available to help pay off or reduce debts prior to discharge. In the interim, the Supreme Court rendered its decision in the aforementioned 2011 case, and declared that only direct bankruptcy issues are to be decided by bankruptcy courts – and that a declaratory judgment does not fit into that category. 

In a contrasting decision, the Court reconsidered its position and held that parties may mutually agree to litigate non-bankruptcy matters in bankruptcy courts, so long as all parties consent to the decision voluntarily. More specifically, the Court premised its holding on the notion that “[a]djudication based on litigant consent has been a consistent feature of the federal court system since its inception.  Reaffirming that unremarkable fact, we are confident, poses no great threat to anyone’s birthrights, constitutional or otherwise.”

If you are considering consumer bankruptcy and would like to discuss your rights and obligations under current laws, please do not hesitate to contact our Miami Valley bankruptcy attorneys at today by calling (937)262-4789. 


Monday, June 29, 2015

Fair Finance Estate to Pay $35 Million to Creditors

What is a claims trade offer?

A settlement has finally been reached in the ongoing Fair Finance case.  A bankruptcy judge in Cleveland recently approved a settlement between the Fair Finance trustee and Fortress Credit Corp.  The parties reached the $35 million settlement in April and filed for approval with the court in May. The Trustee wants to use the settlement funds for interim distributions to satisfy thousands of claims by unsecured creditors.  

The firm is accused of running a $205 million Ponzi scheme that affected more than 5,000 Ohio investors.  The firm’s owners are currently in federal prison.  To date, parties have not been repaid any of the money that they invested in Fair Finance by purchasing uninsured investment certificates.  The settlement does not constitute an admission of liability by Fair Finance and amounts to approximately 17 cents for every dollar originally invested.  The parties allege that Fair Fortress ignored the warning signs of the Ponzi scheme when it provided financing for Fair Finance.  Fair Finance originally processed accounts receivables for other businesses but was sold by the Fair family to Durham and Chochran in 2002.  The offices closed due to FBI raids in late 2009.  The company entered bankruptcy in February 2010.  
This settlement is not the only anticipated money to enter the estate.  Actually, the moviemaker, National Lampoon, also reached an agreement to pay $3 million to the estate at the end of May.  However, that agreement has not been officially entered and or approved yet.

Creditors have received letters offering to buy out their financial interests in the case called claims trade offers.  The trustee is not allowed to advise people on what to do with regard to selling interests or allowed to endorse any of the claims traders.  Claims trading is common in bankruptcy proceedings and anyone who receives a letter should carefully review the contract or have an attorney look at the offer.  Accepting a claims trade offer can result in further liability for the investor.

Brian Lusardi is one of Miami Valley’s leading bankruptcy attorneys with extensive experience helping clients with the intricacies involved in bankruptcy filings and settlements.  Contact him today at (937) 262-4789 for a free consultation.    


Wednesday, June 17, 2015

Supreme Court Expands Bankruptcy Court Powers

Can bankruptcy judges determine lawsuits that are related to the bankruptcy proceeding?

The Supreme Court, in a 6-3 decision, recently held that parties in bankruptcy proceedings can consent to allowing a bankruptcy judge to decide their related cases. The ruling arises out of a case where a nutritional supplement distributor sued for breach of contract but failed to comply with discovery demands and owed hundreds of thousands of dollars in legal fees. When the distributor filed for bankruptcy, a creditor wanted the bankruptcy court to declare that a trust asset belonged to the distributor.

The Seventh Circuit Court of Appeals found that the parties could not consent to such a determination. An earlier Supreme Court decision had held that side matters to a bankruptcy proceeding had to be decided by federal judges operating under Article III of the U.S. Constitution. This removed some of the power Congress had given bankruptcy judges to decide disputes that were related to a bankruptcy proceeding.

Now, the Supreme Court reversed the Seventh Circuit and held that parties can waive their right to present a related case to a federal judge and consent to a bankruptcy judge deciding the matter. While bankruptcy judges do not have the same protections as Article III judges (such as life tenure and salary guarantees), they are subject to oversight from the Article III judges. Justice Sotomayor noted in her majority opinion that other areas of law allow parties to consent to an administrative judge determining the ruling subject to oversight by federal judges.

The majority found it beneficial for bankruptcy judges to have this power as it can alleviate the current caseload before federal district courts; however, the dissenting judges believe it jeopardizes the checks and balances system in the government by allowing Congress to take away judicial powers contrary to what Article III of the constitution allows.

If you are considering bankruptcy, the attorneys at Miami Valley Bankruptcy can provide the knowledgeable advice you need. Brian Lusardi is an experienced bankruptcy attorney serving clients in Xenia, Jamestown and Beavercreek, Ohio and the Miami Valley area. Call him today at (937)262-4789 for a free consultation.


Thursday, May 28, 2015

Medical Debt & Bankruptcy

My husband and I are facing bankruptcy primarily due to our insurmountable medical debt. Will these charges be forgiven? Or will we still owe a portion of the outstanding balances? 


Medical debt is one of the hallmark dischargeable debts in Chapter 7 consumer bankruptcy – and may be totally erased by a successful bankruptcy filing. According to data compiled by the U.S. Census Bureau and the federal bankruptcy courts, medical debt remains the reigning number one cause of bankruptcy in the United States. Fortunately, bankruptcy laws consider medical debt to be a “nonpriority unsecured debt,” meaning it will more than likely disappear at the conclusion of the discharge process – a welcome relief for overburdened debtors, many of whom are dealing with significant health issues as well. 

Understanding the debt hierarchy 

During the bankruptcy process, the trustee assigned to the file will be required to evaluate the petitioner’s assets and pay off as many outstanding debts as possible. Once an asset profile is identified, the trustee will begin with secured debts, which are those attached to underlying collateral (e.g., home, vehicle, boat). Debtors may choose to walk away from these debts, reaffirm the debt, or redeem the debt. From there, the trustee will require payment of high priority unsecured debts, including taxes or child support obligations. These types of debts are generally not dischargeable, and must be paid regardless of the petitioner’s status in bankruptcy. Lastly, unsecured nonpriority debts are those that are dischargeable in the bankruptcy process, provided the debtor is unable to pay the outstanding balance – and, fortunately, this category includes medical debts. 

Dealing with medical debt in bankruptcy 

If a petitioner’s available assets are depleted to pay secured or high priority debts, he or she may be able to discharge medical debt in its entirety. If, however, assets remain to put toward an outstanding balance at a hospital or practitioner’s office, the trustee will ensure the petitioner pays as much as possible toward the balance. After all assets and available cash are depleted, remaining nonpriority unsecured debts will be discharged, allowing the petitioner to move on toward a brighter financial future. 

If you are concerned about medical debt, considering personal bankruptcy and would like to speak with a reputable attorney about your situation, please contact Cox, Keller & Lusardi right away. You can reach our Xenia, Ohio office by calling (937)262-4789 today. 


Wednesday, May 27, 2015

Student Loans & Bankruptcy: What are the Options?

I am drowning in student loan debt. Is this debt dischargeable in bankruptcy? 


Traditionally, student loans were not considered a dischargeable debt under federal bankruptcy laws. However, as national student loan debt has skyrocketed into the trillions of dollars, struggling graduates may be able to escape the burden of four-figure monthly payments by successfully proving severe financial hardship. As well, there are a number of less common avenues through which student loan debt may be discharged, which could be a financial life-saver for those meeting eligibility criteria. 

Three-prong undue hardship test

Under current consumer bankruptcy law, there is a three-part test to determine if a student loan is dischargeable based on undue hardship. First, you must prove that, if forced to repay the loan under its minimum payment terms, you would be unable to maintain a minimum standard of living. While the phrase “minimum standard of living” has not been officially defined in the bankruptcy code, it is generally considered to mean the financial ability to maintain adequate housing and meet daily needs for the borrower and his or her dependents. 

Second, the borrower must show that the inability to maintain a minimum standard of living is not temporary in nature, and is likely to continue throughout the duration of the loan repayment period. Lastly, discharge may be possible if you have made a true good faith effort to repay the loan prior to filing for bankruptcy – which means a period of at least five years. 

Known as the Brunner test, this three-prong analysis looks for poverty, persistence, and good faith – and may be a good option for borrowers who have tried, but are simply unable, to repay that those looming and unrelenting education debts. 

Other options

As a debtor, there may be other options for avoiding student loan repayment, primarily if your alma mater is involved in any kind of investigation for fraud or consumer deceit. In some instances, students have earned relief from part or all of their student loans by successfully highlighting their school’s false promises or exaggerated graduation/employment rates – thereby triggering a consumer protection or breach of contract action. 

If you are struggling with student and consumer debt, please contact Miami Valley bankruptcy attorneys at Cox, Keller & Lusardi right away.  You can reach our office, conveniently located in Xenia, Ohio, by calling (937)262-4789 today. 

Tuesday, May 26, 2015

Thistledown Racino and Horseshoe Casino to Seek Bankruptcy Protection

Can a corporation in bankruptcy continue to operate as normal?

Citing poor regional performance, Caesars Entertainment Operating Company has filed for bankruptcy seeking to climb out of $18.4 million in debt.  Caesars owns 50 casinos worldwide, including a 20% stake in two Ohio Casinos, Horseshoe Casino in Cincinnati and Thistledown Racino in Cleveland.  

The bankruptcy will likely have little to no effect on casino operations.  The company’s CEO, Gary Loveman, assured employees and gamblers that they will continue to host events and meetings.  Guests are welcome at the hotel and all gaming will remain in place.  The director of gaming, lodging and leisure at Fitch Ratings commented on the bankruptcy stating that  “Casinos in the past have operated through bankruptcy with little disruption to loyalty programs or services.  They own a small piece so it’s really not a major factor for those casinos.”

Most bankruptcies do not involve the dissolution of a business.  They protect debtors by reorganizing their debt or discharging it as necessary.  News of the bankruptcy resulted in a 4% drop in stock price of Caesars entertainment (NASDAQ: CZR).  

If you or your business are in need of protection from creditors, bankruptcy may be the best option for you.  You deserve attorneys who have experience and dedication to their clients like the ones at Cox, Keller & Lusardi.  Call us today to schedule an appointment at (937) 372-6921.  We provide a free, no obligation consultation to discuss your legal needs.


Monday, May 25, 2015

Effect of Bankruptcy on Drivers’ License Suspension in Ohio

I recently went through Chapter 7 bankruptcy and my Bureau of Motor Vehicle fees were discharged as a debt. Can I get my license back? 


For Ohio drivers, nothing can be more frustrating than losing your license for failure to pay fines, penalties and fees to the Bureau of Motor Vehicles (BMV). One the one hand, you’d love to get to work to pay back what you owe. On the other, your loss of driving privileges prevents you from getting to work on time – if at all! 

However, for those who have opted to pursue Chapter 7 or Chapter 13 consumer bankruptcy, there may be a remedy to this discouraging situation. For more information about the positive effects of consumer bankruptcy, including regaining balance and control of your life, be sure to contact an experienced Miami Valley bankruptcy law attorney right away. 

Discharging suspension fees following bankruptcy


The BMV may impose a license suspension for any number of reasons, from dropping out of school to committing a DUI. Each category of suspension carries hefty fines and penalties, and this can create an impenetrable hindrance for many Ohio workers. 

However, Section 4510.10 of the Ohio Revised Code affords Ohioans a number of options in repaying their fines, getting back on the road, and resuming employment or education as quickly as possible. Under Section 4510.10(H), a bankruptcy petitioner having successfully commenced the Chapter 13 or Chapter 7 consumer bankruptcy process may regain access to driving privileges by presenting the BMV with a filed and court-stamped Petition or Discharge in Bankruptcy, as well as a copy of the Schedule of Debts indicating the debts that were included in the bankruptcy. Under the law, the BMV is thereafter required to reinstate driving privileges and reissue the petitioner’s driver’s license, provided there are no additional underlying debts or issues that may prevent reinstatement (e.g., outstanding child support). 

Petitioners seeking reinstatement following bankruptcy should direct their paperwork to Ohio Bureau of Motor Vehicles, Attn: Compliance Unit, P.O. Box 16583, Columbus, Ohio 43216-6583, or appear in person at any Reinstatement Center. 

If you are considering bankruptcy or would like to learn more about the process, please contact the law firm of Cox, Keller & Lusardi today by calling (937)262-4789 today. 

Wednesday, May 20, 2015

Congress to Consider Student Debt Forgiveness in Bankruptcy

Can I discharge my student debt in bankruptcy? 

The concept of bankruptcy has been around since the inception of the United States, and various types of debts can be forgiven through a consumer bankruptcy proceeding. Unfortunately for millions of educated Americans, student loan debt is not currently found on this list; however, Congress is considering an amendment to current bankruptcy policy to allow for the possible forgiveness of insurmountable student loan balances.

A group of 12 senators recently introduced the Fairness for Struggling Students Act of 2015 – a piece of legislation aimed to reduce the staggering $1.2 trillion in outstanding education loans. While barely two pages in length, the potential impact of this Act is enormous, and could conceivably allow struggling borrowers the opportunity to enjoy financial peace along with their prestigious undergraduate, graduate and doctoral degrees.

In essence, the Act is drafted to include a new definition of dischargeable debt – namely, any debt made or guaranteed in whole or in part by the federal government or acquired through the attendance at an institution funded in whole or in part by federal funds. The definition also covers the discharge of debts acquired through the advancement of federal funds via stipend or scholarship.

Since 2005, private student loan debt has been excluded from the bankruptcy conversation, unlike other private secured and unsecured debts (e.g., mortgages, car loans, credit cards). However, as more and more students pursue higher education – and more and more university-level fraud is uncovered – the student debt amounts have skyrocketed. As a result, students have had to make mortgage-sized monthly payments, while delaying the purchase of a home or starting a family. 

If you are considering bankruptcy and would like to discuss your options as a consumer debtor, please contact Miami Valley Bankruptcy today for a free consultation by calling (937)262-4789. Our experienced bankruptcy attorneys serve clients in Xenia, Jamestown and Beavercreek, Ohio.


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