bambergerlaw.com

Mark J. Bamberger, Esq., Owner and Attorney at Law

The Mark Bamberger Co., LLC

Offices in Tipp City (Dayton), West Chester, and Enon, Ohio

To divorce or not to divorce; that is not only the question, but often the life choice. The painful and agonizing decision to separate one’s life from another that they once loved, if not cherished, can be the worst of the worst of times. Even in today’s challenged economy, the decision to get a dissolution or divorce is often the hardest decision someone has to make in their entire lives.

Our parents used to say that we “stayed together for the kids”. However, our culture came to realize that two functional homesteads were often better for the kids than one dysfunctional one. Although separation is a traumatic and very complex condition, there are additional legal considerations that make it even more complex. It is my job as their legal “counselor” to help them weigh all the options. The word “counselor” is apt since in those trying times I seem to be more emotional support mechanism than attorney.

In many cases, the other party in the divorce is represented by counsel, which makes my job a lot easier. It is usually far easier and more efficient to deal with another professional and clear-thinking attorney to get a divorce completed. In some nightmarish scenarios, the other side represents themselves “pro-se” (by themselves). This can be painful since the other side is often too arrogant, too prideful, and/or too poor to retain counsel. There’s a reason we go to law school and have to pass a 20-hour bar exam!

So many times, we at The Mark Bamberger Co., LLC deal with divorce affiliated with bankruptcy, or civil litigation, or even criminal defense. We try to counsel those retaining us for their divorce representation that all these other myriad issues may also come into play. Often, filing a bankruptcy is the best way to get out from under staggering debt that could haunt each of the divorcing parties and their progeny for a generation to come. We tell our clients that if they file bankruptcy on joint debts (those held jointly between both spouses), the creditors will visit their harassment and court actions on the other soon-to-be-ex spouse. Not all of our clients are upset at that prospect. In many situations, bankruptcy (especially under Chapter 7 of the bankruptcy code) allows a “new start”.

Some of our clients favor a dissolution; where both parties sit down and decide issues like parental custody, parental visitation, child and/or spousal support, and personal and real property separation. This can be a civil, reasonably fast, and inexpensive way to divorce in Ohio and most other jurisdictions. Others will attempt a non-contested divorce, where my staff prepares the documents and terms for our client. Here, we file the necessary materials with the court and perfect service to the Defendant (other spouse) to make sure they received the documents. The Defendant then has 28 days (in reality much more) to either do nothing, agree, or contest the terms. If they contest, it becomes a contested divorce, which needless to say is the most expensive, time-consuming, and often painful option. We have had many cases that began non-contested or a dissolution, then became contested (read “ugly”). Not often do they go the other way, but it can happen,

The bottom line is this; divorce is complicated; emotionally, financially, and legally. We at The Mark Bamberger Co., LLC try to counsel our clients about the inter-disciplinary aspects of divorce and help them navigate through some of the most traumatic and painful months of their lives. It is never easy, but usually the sun does shine after the rainfall of tears has stopped.

MJB 4/11

Popularity: 22%

As if filing bankruptcy was not tough enough…

Clients walk into the offices of The Mark Bamberger Company with some dreadful problems.  One of the more common is the threat or ongoing nightmare of a foreclosure.  In some cases, their lender is saying it is right on the horizon.  In more cases foreclosure has been commenced.  What is important to know is that the filing of a foreclosure complaint is only the first step of a long process; ending in a sheriff’s auction sale of the property out from under my clients.  This process can take between three and 18 months; depending on how vigorously the client fights, how clever their attorney is in stalling for time or negotiating a refinance or loan modification, or how badly the lender really wants the property.

The Automatic Stay

Often I am asked how foreclosure ties into bankruptcy.  Whether the bankruptcy is under Chapter 7 or Chapter 13, the answer is roughly the same.  Filing bankruptcy puts ALL pending or ongoing legal action “on ice”.  This is legally termed the “automatic stay”.  The only way a creditor gets out of this is to wait out the discharge of the bankruptcy or move the bankruptcy court for relief from the automatic stay; which often takes about as long as the bankruptcy itself.

Never Surrender

Bankruptcy CAN be an efficient way to stop a foreclosure long enough to negotiate a deal with the lender.  Before the filing of a bankruptcy petition, the lender has all the power.  After filing the petition, the debtor gains some power since they can choose whether to keep or “retain” the property or give it up, called “surrender”.  Even if the debtor says they want to keep it; five minutes and an amendment to the petition can change the outcome.  What that means is that the lender gets the property; with all the debt and non-performing loan that goes with it.  They generally do not want that, no matter how nice the house is, since they are inheriting debt; plain and simple.

So much for mandated loan modification

Unfortunately, as has been reported on the national news, the major lenders took billions in federal bailout money; only to go back on their promises to make loan modification easier.  Sometimes they seem to be cutting of their nose to spite…my clients!  The bottom line is this – a bankruptcy can be used as leverage, but never guarantees success in a client keeping their home!

Mark J. Bamberger, Esq., Owner and Attorney at Law

The Mark Bamberger Co., LLC

Offices in Tipp City, West Chester, and Enon

Popularity: 29%

The Economy appears to be improving; at least that is what the numbers and news broadcasts relay.  However, many of our clients at The Mark Bamberger Company see people who continue to suffer pain.  As I related in a previous article, many experts report a second wave of foreclosures and resultant Chapter 7 and 13 bankruptcies due to a second expected bounce in some adjustable rate mortgages.

Many of our clients are still either unemployed or severely under-employed.  Many of them continue to see mounting bills they cannot pay.  Home mortgage lenders seem to be “cutting off their nose to spite their face”, by taking billions in government bailouts; then openly imposing obstacles to mortgage modifications.  Additionally, finance charges and late-payment penalties are making creditor payments harder than ever.

What is the answer?  There is no standard answer for everyone; but with planning, families can avoid the pitfalls of the still-hindered economy.  Bankruptcy may be a good option; but before that decision is made, debtors should meet with their attorney; be it me or someone else, and do a global assessment of their financial situation.  Specific questions to ask, among many others, include:

1. Is my house safe from foreclosure or loss in a bankruptcy?  If my house is in foreclosure, how far in is it (from initial complaint through final sheriff’s sale)?
2. How much equity do I have in vehicles and other big-ticket real and personal property?
3. How much unsecured debt (e.g., credit cards, medical debts, and personal loans) can be discharged in my bankruptcy?
4. Can I afford to pay for a bankruptcy?  This is often easier than many think since they can be economical, paid off through monthly payment plans, and paid from the money not paid to unsecured debt during the bankruptcy period.

Above all, don’t panic; there are almost always options.  Empowerment comes from taking control, even if the situation appears dubious!

MJB  7/3/10

Popularity: 27%

Mark J. Bamberger, Esq., Principal

The Mark Bamberger Co., LLC

Those with adjustable rate mortgages (“ARMs”) who made it through what seems to have been the worst part of the recent Recession are taking a deep breath in thanks of maintaining their homes from foreclosure either within or without Bankruptcy.  It is good news, to be sure.  But before uncorking that champagne, bear this in mind.  Many economic experts who study these things forecast that a second wave of foreclosures and bankruptcies on the near horizon.

The reason for this pessimistic prediction has to do with the structure of many housing loans.  Many of the ARMS still out there are about to hit a second “adjustment” phase, in which, like the first one, the rates will shoot for the sky.  This could raise some ARMs from 6% to perhaps more than 10%, meaning hundreds of dollars more in monthly mortgage payments for the average household and further financial peril.  This wave is predicted to begin washing up on our shores later in 2010 and into 2011 and 2012.  And no, this has nothing to do with the Mayan calendar!

As before, the important thing to do is avoid panic.  Just as the federal programs for home retention, for example President Obama’s Home Affordable Program, helped so many through the first wave, many who know this stuff say a second mortgage assistance program is on its way.  Also, mortgage brokers are now accustomed to dealing with attorneys representing economically challenged and desperate clients.  My mantra is this: “As wonderful as your house is, in this market the bank does not want it!  It is in their best interest to keep you as a paying customer as long as they can”.  In other words, they are on your side – well as much as a monolithic, cold, heartless creditor can be.

And on the subject of mortgage broker empathy, more often now I see more clients in my offices concerned about the pace of their loan modification under federal or state home retention programs.  They also complain about the mortgage brokers repeatedly losing paperwork and nagging them for “updated financials” to process their modification applications.  Although I join many others in assuming an insidious and nasty motive from mortgage brokers, some of this just makes sense.  As I advise my clients, mortgage creditors are so overwhelmed with modification applications that it can literally take four months or more for them to review a client file and render an offer on modification.  The lost paperwork and need for them to update that client’s financial information is more an artifact of the backlog than anything insidious.  Alternatively, if a client has evidence of nasty motives, I am more than happy to take their civil case against that mortgage broker.

Popularity: 35%

In these troubling economic times, I have a lot of clients in my offices asking if filing a bankruptcy is their best option.  Whether it be a Chapter 7 petition for a total bankruptcy as a “fresh start”, a Chapter 13 petition for a personal reorganization plan, or a Chapter 11 for business reorganization, the choice is never easy.  So often I have clients who are embarrassed with themselves or just plain mad at the world for what has happened to them.  It is true that often they have no one but themselves to blame for bad decision making.  However, the vast majority of my cases involve job loss, medical problems, or both.  These are conditions out of people’s control.  In these cases Bankruptcy is a viable and government-supported option.

I tell every client who discusses options with me that the reason bankruptcy is in federal court and not state courts is that it is an enumerated right granted to the federal government in our Constitution.   In fact, the concept of bankruptcy goes back much further than that in democratic history, but I will leave the history lesson for another time.  The bottom line is this – in some cases bankruptcy makes a great deal of sense for people to allow them the ability to “start over”.  Working in bankruptcy law is much easier ethically these days since the 2005 amendments to the bankruptcy code which made it much harder for people to file petitions just to escape paying what they owe.  There was abuse in the system, but not much anymore.  Now the bar to passing a “means test” is much higher and limits the bankruptcy option to those who truly need and deserve the assistance.

I have written in the past about the connections between bankruptcy and other aspects of my practice, namely civil litigation and criminal defense.  Usually when things start going bad for families or individuals, it goes there fast.  I have defended someone in a criminal case or filed a civil complaint for them, only to see them on my doorstep months later in dire financial shape and in need of bankruptcy counseling.  Again, for some, this option makes sense.  However, I take great pride in talking some clients out of bankruptcy when I think there are other options.  Bankruptcy is still serious business, although the stigma has been taken off it – to a large extent.   For some, I can arrange settlement offers to creditors at 20-30 cents on the dollar, allowing those clients to pay their debt and move on, without a bankruptcy.  Again, it is a tool provided by the federal government to help people, not cast them into an abyss of financial ruination.         MJB/091022

Popularity: 41%

Bankruptcy is a very difficult word to say. You are not alone. Last year over 2 million people filed for personal bankruptcy, and in Ohio nearly 3,500 bankruptcies are filed each month… and unfortunately, the number of bankruptcies in the US is growing.

A wide variety of circumstances can place virtually anyone in a precarious enough financial situation that may merit filing bankruptcy. Understandably, this can be a very scary thought for most individuals. Here at The Bamberger Law Co. LLC we handle matters in a caring and forthright manner.

Popularity: 36%