Archive for the ‘Crimes’ Category

How To Pay Your Criminal Restitution Through A Chapter 13 Bankruptcy

Tuesday, March 20th, 2012

criminal restitution in chapter 13 bankruptcy

Today we have a guest post from Jay S. Fleischman, a great consumer bankruptcy attorney who is a member of the National Association of Consumer Advocates, a member of — and the New York co-chair of — the National Association of Consumer Bankruptcy Attorneys, and a partner in the New York law firm of Shaev & Fleischman, LLP

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Let’s say you’re convicted of a crime.  Your lawyer can get you jail time or criminal restitution, perhaps a mix of both.  Here’s how to handle that restitution order using the U.S. Bankruptcy Code.

Bankruptcy is usually thought of as a way to get out of credit card debt, stop foreclosure, and the like.  And though you can’t wipe out a criminal restitution order using the bankruptcy laws, you can leverage the system to repay that debt in a way that doesn’t interfere with your ability to earn a living.

Discharge of Criminal Restitution In Bankruptcy

Under 11 USC 523(a)(7), you cannot discharge a debt that is for a “fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty”.  In other words, you can’t wipe out your criminal restitution obligation in bankruptcy.  When you file for Chapter 7, which is designed to lead to a discharge of your obligations, you will still owe the criminal restitution when you complete your case.

Chapter 13 Bankruptcy As Repayment Tool

There is, however, a different type of bankruptcy case that is available to those who have regular monthly income.  Under Chapter 13 bankruptcy you can repay a portion or all of your debts over a 3-5 year period.  The amount you are required to pay each month under Chapter 13 is dictated by a combination of your income, expenses and debt, and the monthly payments go to a bankruptcy trustee for distribution to your creditors according to a legally-mandated formula.

Chapter 13 is an elegant way of reorganizing your financial life and structuring repayment in such a way as to minimize the impact on your day-to-day life.  While you’re in an active Chapter 13 case the government cannot execute against your income or assets in connection with the restitution award, so you won’t need to worry about your paycheck or bank account being seized during this period of time.

If you’re in a Chapter 13 bankruptcy, however, you’re going to need to repay that restitution award in full because, as in Chapter 7, the claim won’t be discharged at the end of the case.  That’s why it’s important to structure your Plan accordingly.

Order Of Repayment In Chapter 13

Debts get paid in a particular order under the U.S. Bankruptcy Code.  The U.S. Bankruptcy code has at its core the policy of fairness to all creditors of equal legal priority.  At the lowest priority of repayment stands the general unsecured claim, which includes credit cards and medical bills.  § 507(a) of the U.S. Bankruptcy Code lists those debts that are entitled to priority over other unsecured debts. Although the list of priority claims includes certain type of debts that would also be nondischargeable, criminal restitution claims are not among those listed.  In addition, the bankruptcy court can’t change the priority scheme established by the Bankruptcy Code.
If you file for Chapter 13, your repayment plan can’t attempt to repay your criminal restitution award before other general unsecured creditors except in extremely limited situations.  In fact, the reported cases addressing separate classification of restitution claims have uniformly denied confirmation. See, e.g., In re Crawford, 324 F.3d 539 (7th Cir. 2003)In re Bowles, 48 B.R. 502 (Bankr. E.D. Va. 1985)In re Williams, 231 B.R. 280 (Bankr. S.D. Ohio 1999)In re Limbaugh, 194 B.R. 488 (Bankr. D. Or. 1996).

The Ever-Lasting Chapter 13 Bankruptcy

If you owe money for criminal restitution, but you’re not going to be able to repay it during the course of a single Chapter 13 bankruptcy case, you may want to consider whether it makes sense to file one case, go through the entire repayment plan, and then file another one as soon as the first one is completed.  This gives you the opportunity to restructure your finances over a longer period of time than would otherwise be possible in a single bankruptcy case.
There are going to be considerations once you complete your first repayment plan, such as whether your income is higher or lower than it was when you began your case.  The second repayment plan will need to reflect your new income and expense levels, but for some it’s a valuable tool to help wrangle that restitution award into shape.

Jay S. Fleischman is a lawyer who helps people file Chapter 13 bankruptcy.  He also sues harassing bill collectors on behalf of his clients.

Image credit:  stevendepolo

Do I need to go to court?

Monday, September 5th, 2011

I was in court last week and noticed that there were a lot of people who didn’t show up for their scheduled court dates.  The judge was NOT happy and issued a lot of ‘failure to appear’ charges.

In fact, in one case I remember, the judge dismissed the underlying reason for the person to come to court that day….but issued a summons for the person and that person now has a ‘failure to appear’ charge pending.  I know this judge usually gives people a couple of days in jail for the failure to appear, so this one particular person went from having his charge dismissed to facing possible jail time.  All because he didn’t show up.

Why do people not show up in court as scheduled?

I imagine that a lot of them just forget.  Forgetting is NOT a good excuse.  Think of it this way, would you want the jail to ‘just forget’ to let you out?  Get a calendar and mark that date.  Put a reminder on your cell phone.  Put a note on your refrigerator.  Whatever it takes to get you to court on the right day.

And make sure you know what courtroom you are assigned.  I’ve often seen situations where people will sit in court all morning just to find out they were in the wrong court!  If you don’t know for sure where you are supposed to be, ask the guard when you first come in the building.  Show the guard your summons and ask for directions to the right courtroom.   This can be especially frustrating when there are different buildings.  You can also check online to make sure you know where the court is located.  Or call the clerk’s office to confirm your date (and time) and ask the clerk for directions to make sure that you are going to the right place.

Some people say that they got a paper in court, but they never got anything in the mail.  In the past, they always got something in the mail, so they figured they would get a notice in the mail this time too.  Sorry, you get notices in the mail when they can’t give you the notice in person.  If they give you a piece of paper in court with the next court date, you NEED to be there!

I had one person tell me that the original date was ‘just for child visitation’ and they decided they didn’t want to fight the visitation request, so they didn’t show up.  Not a good idea!  If you don’t want to fight the visitation request, you need to show up in court and tell that to the judge.  Otherwise, the judge will probably issue a ‘failure to appear’ summons and you will show up in court at a later time, with a much bigger problem!

Some people say that something else came up and they couldn’t make it to court.  If something really does come up, you can contact the court before your scheduled time to appear and the judge MIGHT give you a break and schedule another day.  Being in the hospital for surgery is the type of thing that the judge might accept.  Wanting to go shopping instead, or oversleeping because you were up late the night before is something that the judge will probably NOT accept.

For traffic tickets, the officer will write on the ticket whether or not you need to appear.  Most of the time, you can use the online system to pay for simple speeding tickets (although you should be aware that pre-paying the ticket is the same as pleading ‘guilty’ and you will receive the ‘points’ against your license).  If you have been charged with reckless driving, you must appear.

Sometimes an attorney can appear in court on your behalf and you don’t need to be there yourself.  Be sure to check with your attorney to make sure whether or not you need to appear yourself.  I generally suggest that my clients also appear in court even if they don’t really need to be there.  After all, it’s your life, your money, or your freedom that is at stake and you really should be involved in anything that might happen.  The attorney can tell you what the ‘regular’ judge will probably do, but that judge may be sick this one day and there is a substitute.  It’s just better to be there yourself.

The bottom line is that if you have been told to be in court on a certain day at a certain time, you need to make arrangements to be there!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

What is VASAP?

Monday, August 22nd, 2011

VASAP is the Virginia Alcohol Safety Action Program.

VASAP helps police officers by assisting them to obtain state of the art alcohol identification equipment and by training the officers on the use of this equipment.

VASAP is most widely known to be the organization that provides programs and activities to educate the public on the dangers and costs of drinking and driving.

I know that I was confused about whether the name was ‘VASAP’ or just ‘ASAP’.  The ASAP programs are the local programs that are attended by the public and there are 24 local ASAP programs in Virginia.  The VASAP is the umbrella organization that oversees and evaluates the actions of the local ASAPs.  Most of the time, you can use either name to indicate the program.

It has been reported that 86% of all crimes can be somehow related to alcohol or other drugs, and there is a consensus that if we can limit the unreasonable use of alcohol or drugs, we can limit the number of crimes committed.  While there are many crimes that do not involve driving, most people today drive, and if the driver is habitually abusing either alcohol or drugs, it is very likely that he or she will eventually be given a ticket for some driving activity that can be attributed to the alcohol or drug misuse and that is one path that the state can take to get the driver into the VASAP program with the goal to eliminate, or at least minimize, the illegal use of alcohol or drugs in the future.

While most of us think of the VASAP programs as being for drivers that were found guilty of a DUI, VASAP also has programs for drug offenders and reckless drivers where the use of alcohol or drugs is not directly involved.  There is also a program for those that have been found guilty of driving on a suspended license.

The VASAP programs are funded by the fees charged to those that are ordered to take these programs.  This means that the cost of a DUI or other drug or alcohol related crime is increased by the VASAP fee.  There are usually payment plans available, but if the VASAP fees are not paid, the person’s driver’s license will generally be suspended, which can cause future problems for the driver.

You can find out more about the VASAP program at their website here.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Don’t Be a Bully!

Sunday, August 7th, 2011

School is starting and many kids are heading into situations that should be filled with learning and fun.

Unfortunately, many of these kids are also heading into situations filled with some students that are using technology to bully and harass other students.

In July, a federal appeals court in Richmond refused to reinstate a lawsuit brought by a West Virginia high-school student named Kara Kowalski.  Ms. Kowalski claimed that her five-day suspension from Musselman High School, and the subsequent ‘social suspension’ in 2005 had violated her free speech and due process rights.   The actions were ordered by the school after Kowalski created a MySpace page that targeted another student with photos and suggestions that the other student was a ‘whore’ who had ‘herpes’.

Kowalski argued that she should not have been punished by the school for private, out of school speech.  The Fourth Circuit ruled that public schools have a compelling interest in regulating speech that disrupts school activities, and that bullying is a major concern for schools nationwide.  Judge Paul V Niemeyer said that “[S]chool administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conductive to learning.”

This case has not been brought before the United States Supreme Court… yet… and it might not ever be brought before the highest court in the nation.  But for right now, the decision of the 4th Circuit is the prevailing law for Virginia.

The Code of Virginia was also modified effective July 1, 2011 to state that the use of cell phones and other wireless telecommunication devices to distribute profane, threatening, or indecent language with the intent to coerce, intimidate or harass any person is guilty of a Class 1 Misdemeanor, which carries a possible jail sentence of up to 12 months and a possible fine of up to $2,500.

As I said before, don’t be a bully.  It is being taken very seriously!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

What is a court appointed attorney?

Sunday, July 24th, 2011

If you are charged with an offense that could possibly result in you being sent to jail, and you can’t afford an attorney, you have the right to have an attorney appointed to represent you.

In order to qualify for an appointed attorney, you need to meet some low income guidelines.  If you don’t meet these guidelines, the court determines that you can afford to hire an attorney on your own, and you are not eligible to have an attorney appointed to represent you.

In some courts in this area, there is a public defender’s office that handles most of these cases.  In other courts, there is no public defender and so the court needs to find other attorneys that will accept the appointments.  There might also be a situation where there is a conflict in the public defender’s office, so sometimes the court needs to find another attorney to accept this particular appointment even though most of the time the public defender’s office is used.

Who pays for these attorneys?  The Commonwealth of Virginia, which means the taxpayers of Virginia.

But the attorney does not get paid at their ‘normal’ retained rate.   Instead, the court appointed attorney gets paid a very reduced rate.

The court does not just go out on the street to find the first attorney walking by.  All of the court appointed attorneys need to meet training standards to be allowed on the list in the first place, and they then need to continue to get additional training in order to remain on the list.

Most of the court appointed attorneys also handle privately retained clients, and they agree to take court appointed cases as a way of helping the community.

What does this mean to you?  If you happen to have a court appointed attorney, you can rest comfortably in the knowledge that your attorney is well qualified.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.