Author: Dan LaBert

More proof that if it sounds too good to be true, it usually is: Contrary to what you may read, there are not “a lot” of instances in which students who are savvy enough to ask to discharge their student loan debts are allowed to do so. (“Debunking the Student Loan Bankruptcy Myth,” August 13, 2014)

In reality, the United States is crippled with what has been termed a “student loan debt bomb.” Americans have accumulated more than $1.2 trillion in student loan debt, exceeding even the level of credit card debt in our nation. Because federal law treats student debt as non-dischargeable in bankruptcy proceedings, borrowers can be burdened with this debt for a lifetime even if they are unable to repay.

Federal law does provide that bankruptcy discharge is available for student loans in cases of “undue hardship.” But there’s a big gap between what is theoretically possible and what happens in the real world. The path to an undue hardship discharge is often blocked by U.S. Department of Education contractors, which aggressively challenge debtors’ efforts to show undue hardship. Too often, what we see in bankruptcy courts is federal education contractors using their legal muscle and ability to drag things out in order to crush hardship cases.

The U.S. Department of Education needs to take charge of the situation and make it clear that the over-the-top hardball tactics of its contractors are out of line. Students, parents, educators, lawmakers and other concerned citizens should encourage Congress to restore meaningful and workable bankruptcy protections for student loans, so that those in real need are able to get a fresh start, rather than being devastated for life by insurmountable student loan debt.

Edward Boltz
President, National Association of Consumer Bankruptcy Attorneys
Raleigh, North Carolina

Bankruptcy Briefs 8/26/14

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Bankruptcy Briefs 8/25/14

Attorneys File Complaints Against Bankruptcy Trustee

Retirees’ Social Security checks garnished for student loans

Some homeowners could get hit with a whopping tax bill if they accept help through Bank of America’s settlement

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Are Student Loans Dischargeable in Bankruptcy? Only if You Can Prove Undue Hardship

An Unfinished Chapter at Countrywide

Renew Your NACBA Membership

Join the only national organization dedicated to serving the needs of consumer bankruptcy attorneys and protecting the rights of consumer debtors in bankruptcy

Bankruptcy Declared in “The Office”

As you’ll see from the clip below, one cannot just “declare bankruptcy” by shouting from the rooftops. On a nationally televised episode of The Office, Michael Scott (Steve Carell) was given this advice by his staff accountants Oscar Martinez (Oscar Nunez). However, Michael received this advice only after announcing to all his co-workers his intent to “declare bankruptcy.” Individuals filing for bankruptcy typically aren’t required to disclose their intent to file or make a public announcement concerning their bankruptcy. (some exceptions to this may exist)

Corporations and partnerships must have an attorney to file a bankruptcy case. Individuals, however, may represent themselves in federal bankruptcy court. While individuals can file a bankruptcy case without an attorney or “pro se,” it is extremely difficult to do it successfully. This is just one of the reasons why the National Association of Consumer Bankruptcy Attorneys (NACBA) exists.

NACBA is the only national organization dedicated to serving the needs of consumer bankruptcy attorneys and protecting the rights of consumer debtors in bankruptcy. Formed in 1992, NACBA now has more than 4,000 members located in all 50 states and Puerto Rico.

“Pro se, NO WAY,” especially not when it comes to increasing your success rate of discharging many of your financial stress points. Declaring for bankruptcy isn’t quite that simple! Get the facts and find an attorney via the NACBA Attorney Finder.

Do not follow Michael Scott’s lead, declare bankruptcy only after having secured legal representation by a NACBA member attorney.

NACBA Member Profile: Greta LaMountain Biagi

Based on random sampling of NACBA’s membership, the Member Profile strives to answer the question: Who are Consumer Bankruptcy Attorneys? It looks at a variety of economic and demographic characteristics, as well as, business practices and “war stories.” NACBA is and always will be your “Your Practice Partner!”

Allow us to introduce, our “Practice Partner,” Attorney Greta LaMountain Biagi of Massachusetts. NACBA Member since June 2006.

Greta LaMountain Biagi was born in western Massachusetts and has spent most of her life in the Amherst area. She spent 13 years in Boston, where she graduated from Berklee College of Music with a Bachelor Degree in Vocal Performance in 1994 then received her Law Degree from Boston College Law School in 2003. Between degrees, she worked primarily in business but always kept her community in mind, doing volunteer work for numerous service organizations over the years. Attorney Biagi entered the legal field because she felt driven to work with people and to help them find real solutions to their legal needs. Before starting her own practice, she practiced at two local firms where she was able to hone her varied legal skills under the supervision of numerous experienced mentors.

Whether dealing with business owners or individuals, Attorney Biagi is committed to really listening to her clients and providing a truly individualized approach to each situation as it presents itself. Her emphasis is always on providing a human touch and on giving advice with professionalism and compassion, explaining the legal process and answering questions as understandably as possible.

Attorney Biagi is now a general practitioner with a particular focus on financial matters, including Chapter 7 and 13 bankruptcies and debt negotiation when filing for bankruptcy protection may not be the best option. Her practice also includes residential and commercial real estate transactions, and small business formation and representation. Attorney Biagi has represented business and individual clients in zoning appeals matters and has defended business clients in matters surrounding complaints and prosecutions with state agencies such as the Massachusetts Division of Professional Licensure. She also has appeared regularly in court representing both plaintiffs and defendants in both pre- and post-judgment proceedings and has experience in estate planning, probate and family law.

Attorney Biagi is admitted to practice law in Massachusetts and Connecticut in the State, District and Bankruptcy Courts. She is a member of the Massachusetts Bar Association, Hampshire County Bar Association and National Association of Consumer Bankruptcy (NACBA). She is a member of the Amherst Rotary Club, Amherst Area Chamber of Commerce, and sits on the Board of Directors of Stavros Center for Independent Living, Inc. She has been an MBA panelist discussing Bankruptcy issues and practice, as well as a panelist at Boston College Law School discussing career paths for attorneys and a NACBA panelist discussing social media marketing and practice.

Most challenging case:

During my first couple years of practice, a very difficult bankruptcy client misrepresented numerous assets and lied repeatedly before and after I filed her Chapter 7. I ultimately was forced to move to disappear from the case and she ultimately lost her discharge. I was naive at the time and I learned more from that case than I ever have from any case since. People often do not understand that their lies and omissions can, and very often will, come back to haunt them.

Best advice you received from the national listserv:

Document everything! Confirm all information you receive. Look into your clients’ eyes and assess each situation. Don’t be afraid to walk someone out the door if you do not believe them.

The NACBA benefit you couldn’t live without:

The national listserv, of course! I could not do what I do without the input of other members and without the amazing archives I have saved over the years.

How many years have you been practicing?

I am in my 11th year of practice and am always amazed at how much more there is to learn! The practice of law takes a ton of practice and requires a small enough ego that you are constantly ready to learn the next lesson that comes your way,

Who is your mentor – who do you look up to professionally?

More than anyone, I look up to Ingrid Hillinger, my Contracts Professor at Boston College. She has taught me so much about being human while being a lawyer, being tough but sensitive and caring, learning your trade beyond a textbook understanding, about education and empathy. Ingrid is simply amazing. She happens to be a Bankruptcy professor as well (although I never took Bankruptcy in law school).

What is your favorite part of being a consumer bankruptcy attorney?

I get to make a tangible difference in people’s lives. I can brainstorm, research, and find answers or resolutions to problems, and can almost always help my clients to make a positive change. It works both ways, as I am spared boredom and literally learn from every case.

Name an area of the law that you’d like to learn more about:

I do not have time to focus on these areas right now, but I would like to learn more about tax matters and student loan dischargeability.

Most memorable moment in NACBA:

Presenting on a panel with Jay Fleischman and John Skiba in NYC. I liked doing that.

In another life, you’d be……

An angst-ridden folk chick/singer-songwriter…or a lawyer for The Innocence Project, iIf I did not have a family. But I am so happy to have my family.

For further information on filing bankruptcy, you can contact Greta LaMountain Biagi via her website http://www.biagilaw.com/ or Twitter https://twitter.com/GretaLaMountain

NACBA Member Profile: Gene Melchionne

Allow us to introduce, our “Practice Partner,” Attorney Gene Melchionne of Connecticut. NACBA Member since December 2002.

Gene Melchionne is a graduate of The University of Connecticut (B.A. 1977) and Drake University School of Law (J.D. 1980) where he received the American Jurisprudence Award for academic excellence.Since 1980, Mr. Melchionne has focused his practice in the areas of consumer bankruptcy, workouts and foreclosure defense in distressed real estate markets, real estate transactions, condominium law, commercial litigation, business organizations and probate.

Prior to opening his office in 1990, Mr. Melchionne was associated with Grady & Riley in Waterbury, Connecticut and DiPietro, Kantrovitz & Brownstein, P.C. in New Haven, Connecticut. From 1990-1998, Mr. Melchionne was of counsel to Bender & Anderson handling that firm’s complex litigation and trials. In addition to his practice, Mr. Melchionne was an adjunct professor at the American Institute of Banking and Teikyo Post University teaching bankruptcy, real estate, commercial and consumer law. Mr. Melchionne also advised the Corporation Counsel’s office for the City of Waterbury on bankruptcy and foreclosure matters and mentored junior attorneys in that office.

In 2005, Mr. Melchionne was appointed State Chair for the National Association of Consumer Bankruptcy Attorneys (NACBA). He acts as a liaison between the national organization and Connecticut attorneys who are members of the Association. He has fostered education of attorneys in the bankruptcy field and increased access of the public to bankruptcy relief in light of the law passed in 2005. In 2014, Mr. Melchionne was elected to serve on the Board of Directors for the National Association of Consumer Bankruptcy Attorneys.

Most challenging case:

All of them. Every. Single. Fracking. Case. I don’t think there is a thing such as a “simple” case. Every case has some twist or turn, fact pattern or legal issue, that makes it unique and difficult. Clients have different goals in life or philosophies, levels of understanding or education, and personal histories or situations. The very things that keeps no two cases from being the same is the very thing that keeps things fun and challenging. I strive to take different and difficult cases and if there were such a thing as doing only “simple cases”, I think I would get bored and go find something else to do.

Best advice you received from the national listserv:

Don’t take every case that walks in the door. That’s harder to do these days, but it’s really true. There is no success in filing more cases than you can handle, and ultimately, no money in it either. Part of the secret is knowing when NOT to take a case. It’s tempting when filings are down, but everyone has that one case that they regret taking because it never works out. Once I learned to refuse taking cases and focus only on those that presented interesting legal issues or facts, I found that I could be more successful in those cases and happier doing it. The corollary to that is to also make sure you take time for yourself. This is a marathon, not a 50 yard dash. Go hiking or fishing or something. If you don’t decompress, you WILL explode and it WILL be messy.

The NACBA benefit you couldn’t live without:

That’s easy. The listserv(s). When I joined, there was only one listserv and I faithfully read every post until the volume just got to be too much. I skim now, but I have archived every email posted to the listservs since the day I joined, a feat that I believe has only been surpassed by John Colwell. The wealth of knowledge in those posts easily substitutes for any WestLaw or Lexis service and frequently cases are discussed there months before they are available on any other service. A quick search in the archives and I can find just about any answer to any question I might have.

How many years have you been practicing?

Technically 32 years, but I was active in consumer credit for a while prior to passing the bar, first by working in a local credit bureau, and then by paying for law school by repossessing cars and setting them up for auction.

Who is your mentor – who do you look up to professionally?

I don’t have one mentor that I can point to. When I first started practice in credit union collections (hey, we all make mistakes), I learned a lot from the lawyer I worked for about the business of a law practice. When I did condo association work, I depended on those around me to teach me about condominiums. (I swear one day I will write the book, “Condominiums, A Study In Uncooperative Living”.) But since joining NACBA, it has been the stand out members like Cathy Moran, Jay Fleischman, Jill Michaux, Doug Jacobs, John Rao, Henry Sommer, and just about every other member of NACBA that I look to for answers to just about any problem case.

What is your favorite part of being a consumer bankruptcy attorney?

The practice of law is fun. If you are not having fun, then no amount of money makes it worth it. The downsides are steep, but when things go right, there is nothing more fun or challenging than consumer bankruptcy law. You have creditors trying to take your client’s stuff, you have clients who are desperately trying to keep their stuff, you have stuff that ultimately isn’t worth fighting over anyway, you have courts trying to comply with a stupid law and get cases completed and none of them exist to make your life easy. I know I’m deranged, but when that occasional thank you note comes in, it makes it all worthwhile and keeps me going for the next while. Meanwhile, I get to educate consumers about misconceptions in finance and I learn to avoid making the mistakes I see every day. Isn’t life grand?

Name an area of the law that you’d like to learn more about:

Bankruptcy. Anyone who thinks they know it all already is fooling themselves. I learn something new every week even after 32+ years. And just when you think you’ve got it, you can count on Congress or the Supreme Court to change it so you have to relearn what you thought you knew.

Most memorable moment in NACBA:

The first NACBA Convention I attended was in Las Vegas in 2002. Not only had I never been to Vegas before, but I had no idea that there were that many bankruptcy attorneys in the country. Here I was sitting in a room with 800 other attorneys who faced the exact same problems that I did in the same kinds of cases. It was close to a religious experience. In the first day I met the likes of Kurt O’Keefe from Michigan (if you don’t know him, just listen for him during the next NACBA event) and sat down for lunch with Ike Shulman, Henry Sommer, and Billy Brewer not realizing who they were. Everyone was friendly, supportive and knowledgeable and still is. Never before in my then 20 years of legal experience had I ever been to an event that changed my life and my practice like that. If you are not a member of NACBA or let your membership lapse, you are missing out.

In another life, you’d be……

A heavy metal rock musician. This was actually a real choice; go record a demo album with Aerosmith’s producers in Boston or go to law school. Good thing that heavy metal didn’t work out for me given my current crop of hair!

For further information on filing bankruptcy, you can contact Gene Melchionne via his website http://www.ctbankruptcy.com/ or Twitter http://twitter.com/ctbankruptcy

NACBA Member Profile: John Rogers

Allow us to introduce, our “Practice Partner,” Attorney John Rogers of Kentucky. NACBA Member since April 2004.

John Rogers graduated from Eastern Kentucky University and the University of Kentucky College of Law. He attended the Program of Instruction for Lawyers, Harvard Law School in 1991. While at Eastern, his activities included membership in the Political Science Honor Society and Student Government. Also, during his attendance at Eastern he was an intern for the Kentucky Legislature and the United States Senate Commerce Committee. During law school, he served as a law clerk to the Office of the Kentucky Attorney General and the Office of the Governor of Kentucky. Upon graduation from law school, John served in various legal and administrative capacities with the Office of the Governor and the Finance Cabinet in Frankfort. He has also served as Assistant Commonwealth Attorney for the 43rd Judicial Circuit. He has maintained a private practice of law in Glasgow, Kentucky since 1991.

John has served the Kentucky Association of Chiropractors as General Counsel since 1996. His civic activities have included membership on the Kentucky Historic Properties Advisory Commission, the Kentucky Historical Society, the Glasgow/Barren County Chamber of Commerce, the American Cancer Society, the Boy Scouts of America, Counsel to the Glasgow/Barren County Habitat for Humanity Chapter and the Cumberland Trace Legal Services Board. His professional memberships include the Barren County and Kentucky Bar Associations, Kentucky Justice Association, Consumer Bankruptcy Section and the National Association of Consumer Bankruptcy Attorneys, Past Kentucky State Chair. He is certified in Consumer Bankruptcy Law by the American Board of Certification and is a member of the American Bankruptcy Institute. John has also served as Chair of the Kentucky Registry of Election Finance.

Most challenging case:

Probably my most challenging case came many years ago as a young bankruptcy practitioner. I challenged a long standing rule of our Court that prevented a case from being reopened after a set amount of time to avoid a later discovered judgment lien. The District Court overturned the rule of the Chief Bankruptcy Judge who, it was known, did not particularly like to be appealed and overturned. That was a good early lesson to never assume that something is correct or proper just because it has always been done that way, even if it was in United States Bankruptcy Court!

Best advice you ever received from the national listserv:

Honestly, just knowing that “The Firm” is there at any time to bounce questions off of and get knowledge and forms from is so comforting as a solo practitioner. The times that I have received information from the listserv, often without even asking questions, but just by listening, are too numerous too mention.

The NACBA benefit you couldn’t live without:

Having the listserv in it’s current format, without question. The times over the years that the listserv has been down (which is very, very rare) or changed, was almost like not having a law partner by your side or in the next office. I would experience a hollow feeling knowing that the information was not flowing by via the emails. The listserv is a friend you never want to “not” be there!

How many years have you been practicing? What is your favorite part of being a consumer bankruptcy attorney?

I have been in practice 25 years, but every day is new and fresh with each new client that comes in for help. If you enjoy helping people and dealing with something different every day, then consumer debtor bankruptcy practice is the way to go! I love it!

Who is your mentor? Who do you look up to professionally?

I always greatly admired and respected our former bankruptcy judge, Henry Dickinson. He was judge when I first began practicing and was always happy to share his knowledge and expertise with a young practitioner. Just to follow from the bench his common sense and compassion for the debtors was truly a lesson in how to practice bankruptcy law. Judge Dickinson passed a few years back, but his reputation still carries on in our court through the attorneys that practiced at his bench and carry on his tradition of compassion with a dose of firmness and humor that made us enjoying practicing before his court.

Name an area of the law that you’d like to learn more about

As a student of politics and government, election and campaign finance law have always intrigued me. I served for almost 5 years as the chair of our state election finance agency, but would love the opportunity to learn more about the intricacies and details of state and federal campaign finance law. My exposure to it only increased my desire to learn more. It’s a fascinating area!

Most memorable moment in NACBA

This would have to be the opportunity to meet and talk with then professor Elizabeth Warren many years ago at a San Diego convention. I have always been a huge fan of her work and the straightforward and simple way she explains complex issues of finance, consumer law, and their interaction with the economy. She really “gets it” and that is so refreshing to those of us in the trenches, especially that she is now able to wield her influence through her position in the Senate. So wonderful!

In another life, you’d be…

…a tour guide at Thomas Jefferson’s Monticello. I love to visit there, and the surrounding countryside in Albemarle County, Virginia. The Rogers side of my family lived there during Jefferson’s time and when I visit, I always have a peaceful, calm feeling of being at home. Very bizarre, I know, but I always trust my gut instinct…it hasn’t failed me yet!

For further information on filing bankruptcy, you can contact John Rogers via email at johnrogers@glasgow-ky.com or toll free at 1-888-651-9353.