Mark Neis Named Consumer Bankruptcy Super Lawyer

 

 
Mark Neis has been named a Super Lawyer in consumer bankruptcy law.

Super Lawyers magazine names attorneys in each state who received the highest point totals, as chosen by their peers and through the independent research. Rising Stars names the state’s top up-and-coming attorneys.

Super Lawyers magazine is published in all 50 states and reaches more than 13 million readers.

How to Contact the Topeka Bankruptcy Law Office

Stop being stressed out by bills you can’t pay! Get the fresh start only the federal bankruptcy laws can give you. Contact us at the Topeka Bankruptcy Law Office today!

Mark Neis and Jill Michaux, Topeka’s only consumer bankruptcy law specialists.  You expect board certification in your doctor, expect it in your lawyer, too.

Bankruptcy Law Office Location

Neis & Michaux, P.A., Bankruptcy Law Office

825 Bank of America Tower, 534 S Kansas Ave Ste 825

Topeka KS 66603-3446

785-354-1471 telephone –  785-354-1170 facsimile

mark.neis@neismichaux.com - jill.michaux@neismichaux.com

our website: bankruptcykansas.info

bankruptcy blog: www.bankruptcylawnetwork.com

personal finance blog: www.moneyhealthcentral.com

 

View street view of Bank of America Tower Map to Our Location

Call Mark and Jill today.  We understand your bill problems.  785-354-1471

 

Earned Income Tax Credits Now Exempt in Kansas Bankruptcy

Debtors will get to keep one year of earned income tax credits when filing bankruptcy in Kansas. A new law went into effect April 14, 2011, granting the exemption.  This change in the law will prevent bankruptcy trustees from taking the portion of income tax refunds that is EITC, a valuable benefit for low to moderate income, working people, most of whom have minor children at home.

SENATE BILL No. 12

AN ACT concerning civil procedure; relating to bankruptcy;

exempt property; earned income tax credit.

Be it enacted by the Legislature of the State of Kansas:

Section 1. An individual debtor under the federal bankruptcy

reform act of 1978 (11 U.S.C. §101 et seq.), may exempt the debtor’s

right to receive tax credits allowed pursuant to section 32 of the

federal internal revenue code of 1986, as amended, and K.S.A. 2010

Supp. 79-32,205, and amendments thereto. An exemption pursuant

to this section shall not exceed the maximum credit allowed to the

debtor under section 32 of the federal internal revenue code of

1986, as amended, for one tax year. Nothing in this section shall be

construed to limit the right of offset, attachment or other process

with respect to the earned income tax credit for the payment of

child support or spousal maintenance.

Sec. 2. This act shall take effect and be in force from and after

its publication in the Kansas register.

(Published in the Kansas Register April 14, 2011.)

Prior to the enactment of Senate Bill 12, bankruptcy trustees took earned income tax credits and tax refunds for their fees and for creditors’ claims.  Tax refunds are the most commonly seized assets in Kansas consumer bankruptcy cases.  The amount forfeited by individual debtors was substantial, but the amount distributed to creditors is relatively low, often 1 or 2% of their claims.

The law limits the bankruptcy exemption to the right to receive one year of earned income tax credits and does not prevent government offset of the credits for child support collection.  Bankruptcy trustees will still be able to take tax refunds not attributable to earned income tax creditors from debtors.

The Earned Income Tax Credit or the EITC is a refundable federal and Kansas income tax credit for low to moderate income working individuals and families. According to the Internal Revenue Service, Congress originally approved the tax credit legislation in 1975 in part to offset the burden of social security taxes and to provide an incentive to work. When EITC exceeds the amount of taxes owed, it results in a tax refund to those who claim and qualify for the credit. To qualify, taxpayers must meet certain requirements and file a tax return, even if they do not have a filing requirement.

Our thanks goes to Kansas Senator John Vratil, R-Leawood, for sponsoring SB12.  The bill passed unanimously in the Senate and nearly so (118 to 5) in the House of Representatives.  Testifying in favor of the bill were Marilyn M. Harp, executive director of Kansas Legal Services, and attorneys John Hooge of Lawrence, Paul Post of Topeka and Kansas Bankruptcy Information blogger Jill Michaux of Topeka.

 

Kansas Bankruptcy Local Court Rules Amended

New local rules for the Kansas Bankruptcy Court went into effect March 17, 2011.

2011_Local_Rules

Chapter 13 Plan Form Mandated in Kansas Bankruptcy Court

The Kansas Bankruptcy Court judges adopted standing order SO_10_02 mandating the use of a chapter 13 plan form for all cases filed after March 1, 2011.  Differing language may be used but it must be placed in locations on the form for non-standard language.  The rule is designed to make it easier for readers to see chapter 13 plans deviate from “standard” language.

 

 

Local Rules Changes Proposed

Changes to the local rules of the Kansas Bankruptcy Court have been published on the court’s website.  Comments are invited through December 15, 2010.

PDFClick here to see the Proposed Rules.

Kansans Fare Better on Bankruptcy Audits

Kansas debtors have less errors on their bankruptcy paperwork than the national average, according to the report just issued by the U.S. Trustee.  “Material misstatements” were reported in 12% of the audited cases, compared with 22% nationwide, although the report does not say just how serious the errors were.

The federal government audits bankruptcy cases just to keep everyone honest, but your odds of being selected are very low.  There were 19 cases chosen for audit in Kansas during 2009 fiscal year.  That is 19 out of 10,588 cases filed in Kansas, one in 557 cases.

Auditors filed Reports of Audits indicating at least one “material misstatement” in 17 Kansas cases.  Two cases had Reports of No Audit.  It is unknown whether any of these debtors did not get their discharges or had other negative outcomes because of the audits.  It also is unknown why Kansans fare better on the audits.

See my post on the Bankruptcy Law Network today explaining audits.

Topeka Attorneys Observe U.S. Supreme Court Bankruptcy Argument in Lanning

We watched the arguments before the U.S. Supreme Court in Washington, D.C., yesterday in the bankruptcy case of Hamilton v. Lanning.

We are not involved in this case.  We attended as observers.  The case deals with the formula for determining how much a debtor has to pay her general creditors in a chapter 13 bankruptcy payment plan.  You can read the transcript or listen to the recording of the 60 minute hearing.

Jan Hamilton is the chapter 13 bankruptcy trustee in Topeka.  He objected to confirmation of Stephanie Lanning’s chapter 13 plan because she is not proposing to pay the disposable income determined by the means test.  Her previous six months’ income average was extraordinarily high due to two job lump sum severance payments she received in the fifth and sixth months prior to filing her bankruptcy.  She then lost her job and got a new job for less wages.  She cannot afford to pay the amount the means test dictates and proposed to pay less.

The bankruptcy court denied the trustee’s objection and said the means test is a presumption, a starting point, that the court has the discretion to look forward to determine a debtor’s projected disposable income.  The trustee appealed to the U.S. Court of Appeals for the Tenth Circuit, which affirmed.  The U.S. Supreme Court accepted the trustee’s appeal based upon opposing circuit court opinions between the mechanical approach and the forward looking approach.

At the argument, we saw Chief Justice Roberts and Justice Scalia vs. Justice Ginsberg and Justice Sotomayor–strict construction of the means test statute vs. finding an “escape” for this debtor who did not pass the means test because of job buyout and could not afford to pay the means test result.  Justice Alito seemed to share concerns with Justices Ginsberg and Sotomayor.  Justice Thomas, Justice Breyer and Justice Stevens did not ask any questions or make comments.  Justice Kennedy made a brief comment or two.  Justice Scalia evoked laughter a few times.

I was surprised and impressed by the Court’s command of bankruptcy law.  I did not expect that.  (I did not know yesterday that the Espinosa bankruptcy decision would be issued today.)  I am told the Court is hot for argument, meaning they have already read the briefs and taken a preliminary vote, prior to argument.  The Court peppered both sides with questions in a respectful way.  The trustee spoke about 90 seconds before Justice Ginsberg asked the first question.  He got several other minutes of his prepared speech made in spurts here and there and did a two minute rebuttal at the end. The trustee was a better advocate, in my view, but there was sympathy for the debtor’s plight. There also was deference to the government position.

All of the justices who spoke accepted the reset of current monthly income (CMI) period in 11 U.S.C. 101(10) though Justice Ginsberg thought it “odd” and Justice Sotomayor was concerned that debtor could reset CMI by failing to do something she was supposed to do (file I and J).  There was a discussion of judicial discretion.  The questioning Justices were not very interested in the debtor’s options in this case (delaying filing, filing a 7, converting to 7, dismissing and refiling).  Justice Ginsberg said conversion resulted in less money to creditors.  She also said dismissing and refiling was a waste of time and resources.

This case boils down to does the means test statute control or is there an “escape” for a debtor who is victim to a harsh result if the statute controls? Who knows what the result will be.  It is very difficult to tell from the argument.  I left the room thinking the debtor might win, but I know there is strong strict construction sentiment on the Court.

The juxtaposition of the parties was very odd.  It was strange having the government on the side of the debtor against the 13 trustee.  The government position was quite the opposite of the position the U.S. Trustee has taken on many other means test issues.  One has to wonder what would happen if the government was on the trustee side of the case.

Stephanie Lanning was present at the argument of her case.  She was represented by Tom Goldstein of Akin Gump, a veteran Supreme Court litigator. He runs a pro bono project with law students for unrepresented Supreme Court litigants and also publishes the SCOTUS blog.

Mr. Souter, the clerk of the court, also wore a morning coat with the traditional vest and pants.  The court marshal, the first female to hold the office, also wears a morning coat, although she was seated and I did not notice.  The solicitor general was represented by Sarah Harrington.  She wore a morning coat with tails over a skirt.  I am told all participants in SCOTUS arguments used to wear formal attire.  I read today that Elena Kagan, the newly appointed solicitor general and first woman to hold that office, and rumored to be on the short list for appointment to the U.S. Supreme Court, has broken with tradition and appeared before the Court in a dark pants suit.  Other women in her office wear a morning coat at their option.  None of the attorneys in the Lanning case wore formal attire, all were dressed in dark, business suits.

Each side had 30 minutes for argument.  The debtor and government split the time.  I thought the time would go very fast, but it felt like an eternity.  Everyone in the room was excited to be present but the tension was thick.

Clifford White, EOUST executive director, was present as were numerous chapter 13 trustees and other UST personnel.

A larger than normal number of members of the SCOTUS bar were present, I don’t know why.  I would think bankruptcy and tax, the topics of the day, would not be that popular.  Any member of the SCOTUS bar is allowed to come to argument and sit with the bar on a space available basis. NACBA member Dan Press  of Virginia was present.  Mark Neis sat with the bar as did the chapter 13 trustee from Wichita, KS and Gil Weisman of Becket & Lee (eCast attorney).  My daughter and I sat with invited guests right behind the bronze rail.  Each side is allowed six guests.  Hamilton graciously offered us two of his six seats.  He also invited his wife and step-son, Will Griffin, the chapter 13 trustee from Kansas City, Kansas, and the chapter 13 trustee from Maine.  Many people stood in line outside in the rain for the chance to be admitted to observe the argument.

The Courtroom was completely full.  You sit amazingly close to the Justices.  We were on the center aisle about six rows of chairs and two aisles back from the chief justice. Security was very tight and our movement was controlled every step.  We were commanded to remain seated and silent several times.  Hamilton was so close to the justices, he had to physically turn to address the each of them as he was questioned.

Hamilton had a moot court last week at Georgetown Law School before a group of law professors and others from around the area.

Win or lose, Hamilton and his staff attorney, Teresa Rhodd, did a fine job, for which all of us in Kansas can be proud.  They have spent hundreds of hours these past several months preparing.  We were able to find only a half dozen cases from Kansas in the Supreme Court since Brown v. Board of Education in the 1950s.  The Court accepts less than 100 cases per year out of ten thousand or more applications. The odds of a Topeka bankruptcy case before the Supreme Court of the United States is extremely small.

It was a fantastic experience to see an U.S. Supreme Court argument live.   I would recommend it to all of you.

KCK 13 Bankruptcy Trustee Moves

The chapter 13 bankruptcy trustee for cases filed in Kansas City, Kansas, has moved to a new office at 6330 Lamar, Ste. 110, Overland Park, KS 66202.

Payments to William H. Griffin, Trustee, still go to the bank lock box at PO Box 613106, Memphis, TN  38101.  No money is accepted at the Overland Park office, all payments must be mailed to the bank.

Kansas Bankruptcy Filings Up 23%

At economic conditions worsen for people, it is no surprise that bankruptcy filings rose 22.6% in Kansas and 34.5% in the United States this past year.  Filings have steadily climbed since the so-called bankruptcy reform act went into effect in 2005.

Four people for every 1,000 in Kansas filed bankruptcy, ranking Kansas 31st in the nation.  Kansas had 10,588 bankruptcy cases filed compared with 8,637 cases filed the previous year.  A total of 1.4 million bankruptcy cases were filed in the U.S. for the federal fiscal year ending September 30, 2009.  That compares with slightly over a million (1,042,806) filed in fiscal year 2008.

The federal court system keeps the count and released its most recent statistics yesterday.   The 10th Circuit, which is the region of the country covering Kansas, Colorado, Oklahoma, New Mexico, Wyoming and Utah, saw an increase of 36.8% in bankruptcy filings.

Our neighbors to the east had an 18.7% and 27.4% increase in bankruptcy filings in the two districts in Missouri.  Nebraska saw a 14.3% increase.  The highest increase in bankruptcy filings in the region was experienced in Colorado at 35.1%.  Oklahoma’s three districts had increases of 32.4% in the north,  30.6% in the east and 28.4% in the west.

US Trustee Website Changed

The website URL for the United States Trustee’s Offices in Region 20, which includes Kansas, has changed to: http://www.justice.gov/ust/r20/index.htm

Wichita Jeweler Files Bankruptcy

Barriers Inc, a long-time Wichita jeweler filed a chapter 11 bankruptcy Friday.  The store is located at Douglas and Oliver.  Ed Nazar is the company’s bankruptcy attorney.

Topeka Bankruptcy Attorneys Named 2009 Super Lawyers

photo-mark-neis-6697-web-150x150

Mark Neis

Our attorneys at the Bankruptcy Law Office, Mark Neis and Jill Michaux, have been chosen for inclusion on the 2009 Missouri & Kansas Super Lawyers list.  Only five per cent of Missouri and Kansas attorneys are chosen each year.

Jill Michaux

Jill Michaux

The Super Lawyers selection process includes a statewide survey of lawyers, peer nominations based on 12 indicators of peer recognition and professional achievement, a blue ribbon panel review by practice area, independent research to identify outstanding lawyers, and a discipline check of candidates.

Mark and Jill were two of four Kansas lawyers selected as 2009 Super Lawyers in the consumer bankruptcy law category.  They are two of three Topeka lawyers selected as 2009 Super Lawyers in the bankruptcy and creditors rights law category.

Mark and Jill are the only consumer bankruptcy law specialists in Topeka and two of 10 in Kansas.  They are board certified by the American Board of Certification in consumer bankruptcy law.

Kansas Home Foreclosures Up 40%

The home mortgage foreclosure crisis got dramatically worse in Kansas in July, August and September 2009. RealtyTrac, a California company that tracks foreclosures, reports 3,402 foreclosure filings in Kansas during the third quarter, an increase of almost 40%.

The Kansas foreclosure rate is below the national average of one in every 136 households. The foreclosure rate in Kansas is 31st in the county at one in every 358 households.

Truth About Mortgage Modification – Few Getting Help to Stop Foreclosure

Foreclosure Prevention Toolkit

Kansas City Bank Shut Down

Bank regulators from the Federal Deposit Insurance Corporation (FDIC) shut down five banks Friday including the First Bank of Kansas City. The deposits will be assumed by Great American Bank of DeSoto.

Interpreters for Bankruptcy 341 Hearings

The United States Trustee’s office is now providing free interpreters by telephone at bankruptcy meetings of creditors (341 hearings) for limited English proficient debtors.

For more information, go to web site for the Executive Office of the U.S. Trustee:  http://www.usdoj.gov/ust/eo/public_affairs/lep/index.htm

Persons wishing to use the interpreter service should contact the case trustee in advance of the meeting to make arrangements.