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Fair Debt Collection: 4.6.2 Arising Out of a Transaction Involving Money, Property, Insurance, or Services

To fall under the FDCPA definition of debt, an obligation must arise “out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” This definition is similar to the Truth in Lending Act (TILA) definition of “consumer”: “the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes.”219 Of course, the TILA definition applies to “consumer” and the FDCPA definition

Fair Debt Collection: 4.6.3 Debts Not Involving Transactions

The FDCPA definition of debt applies to obligations arising out of a transaction involving money, property, insurance, or services. Consequently, an obligation is not a FDCPA covered debt if the debt does not arise out of such a transaction.

Consumer Bankruptcy Law and Practice: 6.1.2 Methods of Explaining Bankruptcy

Certainly the most common method of explaining these subjects is through a face-to-face discussion during the client interview. Not surprisingly, many bankruptcy specialists have found that doing this job can be both time-consuming and repetitive. For that reason, some have chosen to give most of this general information in written form and to supplement that information in the interview.

Consumer Bankruptcy Law and Practice: 6.2.1.1 Discharge of Most Debts

In a sense, most of this treatise is devoted to describing the advantages of bankruptcy for consumer debtors and showing how to make the most of those advantages. Before a client can make an intelligent decision on a course of action, the advantages applicable to that client’s case, and the disadvantages, if any, must be explained.

Consumer Bankruptcy Law and Practice: 6.5.2.2a Improving Chances of Student Loan Discharge

As discussed elsewhere in this manual,168 the Department of Justice and Department of Education have recently adopted guidance intended to streamline and facilitate the discharge of student loans in bankruptcy. Debtors who believe that their student loans may be dischargeable should consider consolidation of their loans prior to filing a bankruptcy so that the consolidated loan will qualify for discharge.

Consumer Bankruptcy Law and Practice: 6.5.3.1 Anticipation of Further Debt

It is sometimes said that a bankruptcy should not be filed until a client’s debt load has peaked. If the client anticipates further unavoidable liabilities, such as medical bills, the bankruptcy should, if possible, be delayed until after these are incurred. The object of this delay, of course, is to gain maximum benefit from the discharge.

Consumer Bankruptcy Law and Practice: 6.5.3.2 Paying Favored Creditors

Clients may wish to delay a bankruptcy until after they have paid creditors whose claims they do not want to see discharged, for example, friends or the grantors of credit cards they hope to keep. As noted above, such payments, if over $600 and within the applicable preference period, could be set aside by the bankruptcy trustee. Thus, if a client wants to pursue this course of action, and ensure that the creditor retains the payment, the petition must be delayed until after the preference period has run.171

Consumer Bankruptcy Law and Practice: 6.5.3.4 Tax Reach Back Periods

The dischargeability of certain taxes and their possible treatment as priority debts (which must be paid in full in chapter 13 cases) will depend on various time periods having passed.176 Investigation concerning the exact date of expiration of these time periods is essential if discharging taxes is an objective of the case.177 Many debtors have been disappointed by an attorney’s miscalculation of the relevant dates, which can be complicated by tolling periods and special tax rules.

Consumer Bankruptcy Law and Practice: 6.5.3.5 Delay to Obtain More Favorable Treatment of Certain Secured Debts in Chapter 13

The 2005 amendments added a provision to chapter 13 that may impair the debtor’s right to “cramdown” certain debts secured by purchase money security interests in personal property.179 The provision applies if a motor vehicle was purchased for the debtor’s personal use within the 910 days before the bankruptcy petition was filed or if other property was purchased within one year before the petition was filed.180 If the debtor is filing a chapter 13 case in which the debtor can benefit from the b

Consumer Bankruptcy Law and Practice: 6.5.3.7 Timing the Petition to Avoid Automatic Stay Limitations

The dismissal of prior bankruptcy cases within one year before filing a new petition may result in early termination of the automatic stay with respect to the debtor or, in some cases, prevent the stay from taking effect altogether.183 Delaying the bankruptcy filing beyond the one-year period may ensure that the debtor gains the full protection of the automatic stay and eliminates the need to file a motion for extension or imposition of the stay in the new case.184

Consumer Bankruptcy Law and Practice: 7.3.4 List of Creditors, Codebtors, and Parties to Executory Contracts

Federal Rule of Bankruptcy Procedure 1007(a)(1) requires each debtor to file a list of all creditors or other parties listed on Schedules D and E/F of Official Form 106, as well as parties to executory contracts and unexpired leases listed on Schedule G, and codebtors listed on Schedule H of the same official form.71 If the debtor owns community property, the list should include all creditors who have community claims—which may include creditors who have claims against a non-filing spouse—because such creditors have the right to file claims aga

Consumer Bankruptcy Law and Practice: 7.3.12.5 Formulating the Plan

As a practical matter, when formulating a chapter 13 plan, practitioners should keep several broad principles in mind. A strategy must be designed for priority, secured, and unsecured debts that meets the debtor’s objectives, consistent with the Code and the debtor’s available income. Legitimate priority debts generally must be paid in full, unless the creditor agrees otherwise.

Automobile Fraud: 1.1.1 Nature of Automobile Fraud

An astonishing percentage of car sales involve fraud, deception, or unfair conduct. Automobile fraud is prevalent for a number of reasons. The sheer amount of American car expenditures is enormous—hundreds of billions of dollars a year. In addition, both by necessity and by dealer ingenuity, car purchases are complex. The sale involves compliance with state titling and registration laws, and often involves trade-ins, financing or leasing, physical damage and liability insurance, credit insurance, service contracts, vehicle options, and other fees.