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When NOT to File Bankruptcy

At the Mark Bamberger Company my staff and I have successfully completed hundreds of Chapter 7 and Chapter 13 bankruptcies over the better part of the last decade. Bankruptcy, though never a thrilling experience, has allowed millions of people to start over (as in Chapter 7 cases) or to reorganize their debt (as in Chapter 13 cases). I have lost track of the number of former clients who have broken into tears and hugged me when they realize they can stop “robbing Peter to pay Paul” and can finally start thinking about the future; perhaps in a new house or car.

However, being an ethical attorney, I have sent some people away with the advice that they should avoid bankruptcy. Generally there are four reasons for this:

  • Not enough debt – in some cases, the price of even the cheaper Chapter 7 case makes filing for some clients unnecessary. In those cases we can often represent folks and haggle settlement offers from creditors for the clients to pay off; without having a bankruptcy on their record.
  • Too little time – in some cases, clients have filed previous bankruptcies and cannot yet file another. That ranges from eight (8) years between Chapter 7 cases to as little as two (2) years between Chapter 13 cases.
  • Too recent debt – for Chapter 7 and some 13 cases, if a client has very recently used credit cards or purchased an expensive item, there would be reason for an objection to the case or even sanctions for abuse of the bankruptcy code if someone incurs significant debt, then turns around and files bankruptcy. In 2005 the federal bankruptcy code changed a lot to make it harder for people to “game the system” when they in fact could pay back at least some of their debt. Those Chapter 7 cases have since been funneled into 13 cases where debtors have to commit to paying back something. For that we are all thankful, as bankruptcy was contemplated by the Founding Fathers to be a step up, not a hand out.
  • Too little money – in some instances where the client has too much household income, has filed a Chapter 7 too recently, or else has a house in jeopardy, we recommend filing for a Chapter 13 reorganization. However, if the household income is too little to sustain a monthly payment plan, that is a recipe for default and other problems that can make filing anything problematic.

In general, folks can file a form of bankruptcy that assists them in dealing with their financial problems. But an ethical attorney will know when not to file as well as when to file. Find one of them!

The Cyclical Nature of the Practice of Law

I am often asked about the cyclical nature of the practice of law. Certainly there are ebbs and flows in new cases that come in the door at different times of the calendar year. In 2016, roughly 33% of our business involves some form of family law (dissolution, divorce, guardianships, custody, grandparent rights) 33% involve bankruptcy (Chapters 7 and 13), and the other 33% included a diverse collection of criminal defense, corporate law, civil litigation, employment law, animal law, etc.).

Often divorces tend to peak around tax refund time and early Fall. Each year we get a number of cases based on our clients telling us that “…they wanted to wait until after the holidays to file”. This is sad, but a fact of life. Likewise, bankruptcies often peak around tax time since people have the money to file. A large caveat to this is that folks can file a bankruptcy anytime since, as long as they stop paying on their unsecured debt (e.g., credit cards, medical bills, payday loans, etc.), they can accumulate the funds to pay an attorney to file and begin the case for them.

As for the other areas, employment law cases can arise anytime but often peak in the late Summer to early Fall when businesses start setting their next fiscal year budgets; and in doing so look for sleazy ways to trim their payroll on the backs of their employees. Criminal work often follows economic downturns since people get desperate about job loss, mounting bills, or a generally poor economy.

Learning the lesson of the Irish Potato Famine, I have tried to keep this practice of law diversified. Not only is that smarter economics, but it also means our job is NEVER boring. Each day is challenging and engaging…just as we like it!

Negative Connotations of the Word – Attorney

Negative Connotations of the Word - AttorneyTo be (a lawyer), or not to be (a lawyer); that was our question.  Many of us decided to go into the practice for a myriad of reasons; social justice, money, fame, because playing piano in a brothel was unfeasible  and so on.  We studied all the law and all its historical jurisprudence in our respective law schools.  We further learned in school or elsewhere the scorn many people hold for attorneys.  Why is this so?

“The first thing we do, let’s kill all the lawyers.”
William Shakespeare, King Henry VI Part 2.

 

 

“My decision to become a lawyer was irrevocably sealed when I realized my father

hated the legal profession.”  John Grisham

 

Perhaps people are jealous of the huge sums of money we make; at least that is what I hear. Perhaps they hate our nice suits or fancy cars or big houses.  I have heard those do exist too.  Perhaps they are threatened by the self-discipline they know it takes to get through years and years of agonizing legal education.  Doctors too are often held in low regard.  Many medical friends of mine will relate similar experiences of scorn and derision.  They also often tell of the often fictional “good life” of a well-paid physician.

 

“’Lawyer’, n. One skilled in circumvention of the law.”
Ambrose Bierce, The Devil’s Dictionary.

 

Barristers hold a proud place in the English and American common law.  So noble was the practice in England that the barristers used to not touch the money they were paid.  Patrons would place pay in their robe pockets to keep the honorable practice of law from the low-brow collection of money.  Where did those days go?

 

The above-cited quote from King Henry VI does not mean that life would simply be more pleasurable if there were no lawyers.  It meant something more deeper and more profound.  Within context, the quote inferred that lawyers were the keepers of the rules; the arbiters of structure in society.  In the noble ancestry of the practice of law, this meant that without laws, and therefore lawyers to administer and interpret and argue those laws, there would be anarchy.

I don’t think you can make a lawyer honest by an act of legislature.  You’ve got to work on his conscience.

And his lack of conscience is what makes him a lawyer.” Will Rogers

A measured and organized society needs rules.  Those rules need to be known by and regulated by lawyers.  It is not any more or less complicated than that.  And still we are far too often scorned.  When I began my practice of law, I realized that four easy “riles” would elevate me into the top third of practicing counsel: (1) be competent, if not expert, at least competent in the area in which you are practicing; (2) look clients in the eyes when you speak to them; (3) be honest about the frailties of their case; and (4) manage client expectations.  I learned this lesson the hard way; as do we all.  A growing percentage of my clientele’ emanates from someone else’s client list.  That former counselor somehow lost those clients by violating one of these four rules.  I have violated, to some degree still do violate, at a least rules #3 and #4.  I like all attorneys like paying customers.  There is a profound difference between voluntary and involuntary pro bono work.  However, in my zeal for an exciting case or zest for paying the overhead at my office, I still find myself promising a little too much, saying it a bit too optimistically, or honestly underestimating the challenge of a case; especially since I often find myself on the plaintiff bar of the practice.

 

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln

 

With that in mind, there is a small percentage of the bar who give attorneys their bad name.  We all know who they are.  For me, 90-95% of the Dayton bar are people: (1) I respect; (2) I like personally; and (3) with whom I would share dinner and/or bourbon.  It’s the other 5-10% of the sample population who fail on two or all three of those accounts.  They are not merely “ambulance chasers”, but endeavor to belittle clients and opposing counsel alike; I fear out of a need to compensate for shortcomings elsewhere.  They are the ones who, often in loud and boisterous voice, transmit the form of arrogance and lack of empathy that we all seem to hear when discussing lawyers.  The massive amount of lawyer jokes are on one level humorous, yet on another level telling of the important role we attorneys play in modern society and also the scorn with which we have to deal.

 

The attitude toward attorneys might have something to do with their portrayal in movies and on TV.  From Perry Mason, Jack McCoy on “Law & Order”, or Atticus Finch in “To Kill a Mockingbird” at one end of the spectrum to the drunken underdog played by Paul Newman in “The Verdict” or Al Pacino’s Arthur Kirkland in “And Justice for All” on the other end, lawyers are seen as everything from the most noble to the most base of creature.

 

“I think we may class the lawyer in the natural history of monsters.”
John Keats

 

We like to see ourselves as fitting in the former category, but due to occasional perception problems or arrogance disguised as supreme confidence, some at times see us as fitting more snugly into the latter.  In part, people fear the unknown.  Like taking your car to a mechanic you do not fully trust or your child to a new doctor, humans approach the unknown with concern.  For most people, the American legal system is the unknown.  The best teachers are those who can take complex information and explain it simply.  In part that is what we are; legal teachers as well as counselors.  Let us never forget that.

 

The bottom line is this: We need to drum out the 5-10% that ruin our reputations and defame our good intentions and slowly, client by client, educate people of the importance of law in our society and the noble way we (try to) practice it.  When will I stop “practicing” at law?  I will get back to you on that one.  Often it is a simple matter of education.  The more that our clients understand the complexities (and at times idiosyncrasies) of the law applicable to their case or the frailties of the case they think they have, the more they seem to appreciate our efforts, training, and compassionate practice of the age-old and noble craft of practicing law.

 

“The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.”
Ralph Waldo Emerson


The Mark Bamberger Co., LLC is a general practices focusing on bankruptcy, civil litigation, criminal defense, employment law, family law, environmental law, and animal law.  See www.bambergerlaw.com.  TMBC has offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio.

As the famous remark by the plotter of treachery in Shakespeare’s King Henry VI shows – “The first thing we must do is kill all the lawyers,” – the surest way to chaos and tyranny even then was to remove the guardians of independent thinking. http://www.spectacle.org/797/finkel.html, The Ethical Spectacle, July, 1997.

These percentages are anecdotal averages drawn from a consensus with other attorneys and is pertinent to the Dayton (Ohio) bar.  My experience is that for the Cincinnati, Columbus, Toledo, or Cleveland bars, the percentage of bad actors is notably higher.

Mark Bamberger, PhD, JD Educates on Animal Law at the 2012 Ohio State Bar Association Annual Convention

Mark Bamberger, PhD, JD Educates on Animal Law at the 2012 Ohio State Bar Association Annual ConventionAs a part of the 2012 Ohio State Bar Association’s annual convention, local attorney Mark Bamberger presented to his peers his publication entitled, A Litigator’s Guide to Fitting Animals into Environmental Law, a paper which deals with primarily the fact that animals in Ohio find very little protection under the law.
Continue reading Mark Bamberger, PhD, JD Educates on Animal Law at the 2012 Ohio State Bar Association Annual Convention

The Different Divorce Options in Ohio

The Different Divorce Options in OhioAs is common in many states, there are generally three ways to end a marriage in Ohio.  From easiest (and often least expensive) to often ugliest and most costly, they are: (1) non-contested divorce; (2) dissolution; and (3) contested divorce. 

In each case, the same legal forms are indicated and are determined by county.  One of the biggest reasons to retain legal counsel in any of these situations in Ohio is that each county is different and some counties are very different indeed.  The wrong forms or formats can add many months and many thousands of dollars to the end of a marriage.  Even with trained legal counsel, this process can be time-intensive and tricky.  Though people legally can “do it themselves” (termed “pro se”), it is often best to pay the money to get it done efficiently, completely, and with finality. This is especially true where minor children are involved.  Courts often have little patience for pro se litigants making mistakes and “ignorance is never an excuse under the law”.

Without children, in most Ohio counties the necessary documents include: (1) the complaint for divorce; and (2) the separation agreement.  With minor children, add on several additional forms and a shared parenting agreement.  Whether custody will be full, shared, or joint, there are details to be completed.

Non-Contested Divorce

A non-contested divorce is just that; not contested.  In this form, the represented Plaintiff fills out the preliminary paperwork and then serves the forms and prepared documents upon the Defendant. Once service is perfected, the Defendant has three options: (1) contest or fight the complaint; (2) sign off and not contest; or (3) do nothing.  In the latter two cases, the court will allow the allotted 28-day answer period; then schedule the case for a final, non-contested hearing.  In that case, the Defendant need not even appear at the final hearing.  The Plaintiff appears with a witness to testify and attest that: (1) they know the Plaintiff; (2) the Plaintiff has resided in Ohio at least 180 days; (3) the Plaintiff has resided in the subject county for at least 90 days; and (4) the Plaintiff and Defendant meet the cause of action claim used for the divorce (e.g., incompatibility, residing apart for at least one contiguous year, gross neglect, etc.).  Non-contested divorces can be the fastest and least expensive option for ending a marriage in Ohio; as long as they stay non-contested.

Dissolution

A dissolution happens when both Plaintiff and Defendant decide on everything and decide those terms together and in (relative) harmony.  One attorney handles the paperwork for both parties, but can only represent one of the parties.  The other party is dealt with honestly and openly, but must represent him- or her-self pro se.  Once the dissolution is approved by the court, both parties are responsible for what they signed; represented or not.  Dissolutions can be as fast and inexpensive as a non-contested divorce.  The concern with dissolutions is that if at any point there is divergence of wants and desires, the case can quickly become contested (and contentious).  At that point, it is the ethical obligation of the attorney to end negotiations, tell the unrepresented party that the case has become contested, and recommend he or she retain private legal counsel of their own.

Contested Divorce

Finally, a contested divorce is just what you would expect; a fight!  These can become ugly; with children used as pawns in a nasty chess game and the two sides fighting over the silverware.

These three pathways are not mutually exclusive.  In other words, a non-contested divorce or dissolution can become contested and, in rare cases, a contested situation can end quietly and equitably.  The bottom line is this: the best thing a divorce attorney can do is to evaluate the situation and help his or her client decide which path to take for maximum gain and minimum pain in a situation usually defined by pain and heartache.

 

The Zen of Divorce

 

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

The Economy is Getting Better…Right?

Economic recovery? Or titanic disaster?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

Bankruptcy: The Best Choice…for Some

banner-legal-gavilIn 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

Criminal Defense

An arrest is one of the most traumatic events an individual or family can endure. It can impact a clients’ well-being, livelihood and future. At The Mark Bamberger Law Co. LLC, we are dedicated to obtaining the best possible outcome for each criminal defense client. Contact an experienced criminal defense attorney at (877) 644-8181.

Company founder, Mark Bamberger puts his experience to work protecting the rights of criminal defendants.

We are often are able to deal with the police before charges are filed, sometimes helping to limit charges that ultimately are brought against our clients. We thoroughly investigate each case and present an honest assessment of a cases’ possible outcome. We have experience crafting aggressive and successful trial strategies and will pursue a favorable plea agreement or reduced sentence when it’s appropriate.

Clients find we do all of this with care and discretion and keep them informed through every step of their case.

We handle a wide range of felony and misdemeanor cases, including:

* White-collar crimes – Fraud, bank fraud, bribery, forgery, insurance fraud, money laundering and tax evasion.
* Drug crimes – Manufacturing, possession and distribution of cocaine, methamphetamine, heroin, and marijuana.
* Violent crimes – Aggravated assault, simple assault, robbery, arson, homicide, murder and hate crimes.
* Sex crimes – Rape, sexual assault, molestation, prostitution, date rape, indecent exposure, pornography and child abuse.
* Property crimes – Burglary, theft, trespass, vandalism.

For more information or to schedule a consultation, send an email to Mark Bamberger, or call us at (877) 644-8181.

Foreclosure Defense

Many homeowners, especially those who were enticed to sign sub-prime mortgages, can no longer afford their mortgage payments, even if the mortgage is current. That makes a Chapter 13 bankruptcy impossible. Even if you are behind on your payments, and cannot afford the current monthly payment for your home, you should definitely contact The Mark Bamberger Law Co. LLC to fight the foreclosure.

While you are litigating the foreclosure case, you are not required to make your normal monthly mortgage payments. The legal process will afford you time to reinstate the mortgage, sell your home, file a bankruptcy or move out. You may be able to force the lender to completely rewrite the terms of your note and mortgage, enabling you to actually keep your home.

This may sound too good to be true, but you may actually have valuable defenses and counterclaims against your mortgage company that could actually prevent foreclosure and even require your lender to pay you damages. All across the US, judges are harshly punishing mortgage companies for incomplete record keeping and for violations of the Truth In Lending Act. You may be able to allege valid defenses including fraud and Truth In Lending Act violations.

Are you aware that your mortgage company is probably not the same company that actually loaned you the money to buy or refinance your home? How do you know if the mortgage company suing you has been properly assigned your note and mortgage? Your mortgage company may have failed to properly assign the note and mortgage before initiating the foreclosure. Does your foreclosure complaint even have copies of the note, mortgage and purported assignment attached?

Most likely, these documents are not attached, and may not even be in the possession of your mortgage company. Your mortgage company may be attempting to substitute your original note and/or mortgage with a purported copy. This is called a “Count to Establish Lost Documents.” There are strict legal requirements to establish a lost note or mortgage, and your mortgage company may be unable to meet the requirements if challenged.

If your current mortgage company is not your original lender, it probably has never read your mortgage. Your mortgage may require that the plaintiff accelerate (i.e. demand) the entire balance of the note. Your mortgage company probably failed to do that, which may entitle you the opportunity to cure the mortgage by paying the reinstatement amount. It is also very common for mortgage companies to inflate the balance due on the mortgage by charging homeowners junk fees, such as Broker Price Opinions (BPO), property inspections and other “property preservation expenses.” We know how to ferret out these tactics and hold your mortgage company accountable.

Essentially, your mortgage company may have filed an improper foreclosure lawsuit, but your time to contest this is limited. You have or will be served with a copy of the foreclosure complaint by a process server. You typically have only 20 days to respond to the mortgage company’s complaint, so you need to see an attorney immediately if you wish to defend against the foreclosure. If you are beyond the twenty days, there are still defenses that can be raised.

Please don’t wait. Contact The Mark Bamberger Law Co. LLC right away so we can begin to defend your rights!