It is a common myth that bankruptcy will "ruin" your credit. The truth is that after your bankruptcy is compete, you will have no unpaid debt on your credit report and you will now be able to rebuild your credit through careful financial management and paying your bills in a timely manner. While you may face increased interest rates on any new credit cards or car loans, if you pay them off regularly and show your creditors you are being responsible financially, your credit score can improve dramatically within just a few years. Every person's financial history is unique and you should speak to an experienced northern New Jerseybankruptcylawyer from Bergen, Hudson and Passaic County like Rafael Gomez to get more information on what to expect after you are finished with your bankruptcy.
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We have successfully helped hundreds and hundreds of our clients eliminate their debt and start building a new financial future for themselves and their families through bankruptcy. Rafael Gomez is dedicated to helping individuals and business owners protect their valuable assets and get relief from the harassment of collection agencies while using bankruptcy to either discharge all their unsecured debt through chapter 7 or reorganize and pay off their debt over time with chapter 13. When you come to speak with Rafael Gomez for your free bankruptcyconsultation, we will review your finances and advise you on what your best options are.
Another step in restoring your good credit after bankruptcy involves reviewing your various credit reports to make sure that any remaining derogatory comments are removed. While there are companies that advertise to do this for you, it is something you can do yourself. There are other methods of improving your credit rating including secured credit cards and getting a co-signed loan with another person who has good credit. Making the payments and paying off such loans reflects well on both party's credit reports. To discuss what you can expect after your bankruptcy, speak to an experienced bankruptcy lawyer like Rafael Gomez.
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REGINA S. BAILEY, Plaintiff-Appellant/Cross-Respondent, v. JOSEPH GIBBONS, TANYA WOOD, DAVID WATKINS, ESQ., THE CITY OF ENGLEWOOD, ENGLEWOOD POLICE OFFICER THORNTON WHITE, ENGLEWOOD POLICE OFFICER GONZALEZ, and ENGLEWOOD LIEUTENANT BARRETT, Defendants-Respondents, and PAT PRIANT and RUSSO REALTY, Defendants, and KELLY BERTEN[1] ROCCO, ESQ., Defendant/Third-Party Plaintiff-Respondent/Cross-Appellant, v. JAMES M. MARKS, II, ESQ., Third-Party Defendant.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0673-09.
James M. Marks, II, argued the cause for appellant/cross-respondent (The Law Firm of James M. Marks, II, attorneys; Nicolas G. Rotsides, on the briefs).
David M. Watkins, respondent pro se.
Adam J. Adrignolo argued the cause for respondent/cross-appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorney; Christopher J. Carey, of counsel; Adam J. Adrignolo and Michelle M. O'Brien, on the briefs).
Marc D. Mory argued the cause for respondents City of Englewood, Englewood Police Officer Thornton White, Englewood Police Officer Gonzalez, and Englewood Lieutenant Barrett (Dvorak & Associates, LLC, attorneys; Lori A. Dvorak, of counsel; Marc D. Mory, on the brief).
Respondents Joseph Gibbons and Tanya Wood have not filed briefs.
Before Judges Sabatino, Haas and Mitterhoff.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
PER CURIAM.
Plaintiff, the Estate of Regina Bailey,[2] appeals various rulings of the trial court in this complicated case arising out of her removal from her former marital residence and the alleged destruction of her belongings. Among other things, plaintiff has asserted claims against: the purchasers of the residence, Joseph Gibbons and Tanya Wood; the purchasers' attorney David Watkins, Esq.; her former attorney Kelly Berten Rocco, Esq.; and the City of Englewood as well as various police officers of the City who took part in the forcible removal of plaintiff from the residence.
We need not recite here the lengthy procedural history of this litigation. It will suffice to say that the trial court and the federal court have issued various successive orders, among other things, dismissing plaintiff's legal malpractice and other claims against attorneys Rocco and Watkins, and dismissing plaintiff's claims alleging constitutional violations under 42 U.S.C. § 1983 against the City and its officials.
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After plaintiff amended the complaint to assert the Section 1983 claims, the matter was temporarily removed to the federal court. The federal court dismissed the Section 1983 claims and thereafter remanded the case to the Law Division. Further orders were issued by the Law Division, and plaintiff appealed to this court. Questions then arose concerning whether the rulings appealed from had disposed of all issues and all parties, as required to confer appellate jurisdiction upon this court pursuant to Rule 2:2-3(a)(1). Those concerns resulted in a May 19, 2014 order remanding the case back to the trial court for lack of finality.
Further questions arose concerning whether the trial court had made a final disposition of the claims against Gibbons and Wood, the homebuyers, following the remand from federal court. That uncertainty resulted in the following sua sponte remand order dated April 12, 2017, issued by Judge Ostrer of this court:
On May 15, 2014, under docket number A-2974-13T3, we dismissed plaintiff's prior notice of appeal in this action, as it sought review of interlocutory orders. We also denied leave to appeal the interlocutory orders in question, and remanded "for the expeditious resolution of the remaining claims and issues in this case."
We found that "the trial judge has erroneously suggested, or concluded, that there are no claims or issues to be adjudicated[.]" We noted, as an example, that "[a]lthough an order entered by the trial judge on October 25, 2013, in denying defendant David Watkins's cross-motion for summary judgment, professes `the case has been disposed of since June 4, 2013 and is considered closed,' that order alone (which refused to adjudicate that motion on its merits) demonstrates that claims remain unresolved in the trial court." We did not intend to suggest that Watkins's claim was the only outstanding claim in need of resolution.
On remand, the trial court granted Watkins's motion for summary judgment on April 14, 2015.
Thereafter, plaintiff filed a notice of appeal seeking review of that order, and four other interlocutory orders, including an October 25, 2013, order denying her motion for summary judgment against Gibbons and Wood. That appeal, A-4579-14T3, is now before us.
Upon our review of the appellate record and the parties' briefs, it appears that the trial court has neither adjudicated the claims against Gibbons and Wood nor entered a final order or judgment in this matter. Thus, the appeal remains interlocutory. R. 2:2-3(a); See Silviera-Francisco v. Bd. of Educ. of City of Elizabeth, 224 N.J. 126, 136 (2016) ("[I]n a multi-party, multi-issue case, an order granting summary judgment, dismissing all claims against one of several defendants, is not a final order subject to appeal as of right until all claims against the remaining defendants have been resolved by motion or entry of a judgment following a trial.").
IT IS ON THIS 12th DAY OF APRIL, 2017, HEREBY ORDERED THAT: The matter is temporarily remanded to the trial court for the expeditious resolution of the remaining claims and issues. The trial court shall advise this court, within thirty days, of its plan to resolve plaintiff's claims against defendants Gibbons and Wood. Upon receipt of that information, the court will decide whether the balance of this appeal will move forward. We retain jurisdiction.
Following receipt of the April 12, 2017 remand order, the trial court issued a short opinion dated May 4, 2017. The opinion concluded that there are no outstanding claims against either defendants Gibbons or Wood left to be adjudicated in the trial court:
DECISION
After having carefully reviewed the file and thoroughly researching the matter as ordered, this Court finds that there are no outstanding claims and issues against Defendants Gibbons and Wood. Once this matter was remanded from Federal Court on September 12, 2012, Gibbons was among three Defendants who were not properly reinstated in the instant Superior Court action. See Exhibit A (Order dated January 31, 2014). In that action, Plaintiff Regina Bailey (hereinafter, "Bailey") had moved to reinstate[] her claims against Gibbons. This Court denied that Motion, effectively dismissing Gibbons by leaving him inactive as a defendant. Id. No subsequent motion was made to reinstate Gibbons.
After reviewing the file, this Court located a letter from Bailey's counsel, James M. Marks, II, to Judge Robert L. Polifroni, P.J.Cv. See Exhibit B (Letter dated April 10, 2015). In this letter, Bailey's counsel mentions that Wood "declared bankruptcy. In February 2015 a final bankruptcy hearing was scheduled." Id. Upon review of this information, this Court found that on or about February 18, 2011, Wood filed a Chapter 7 voluntary petition for bankruptcy. See Exhibit C (Chapter 7 Voluntary Petition filed by Andrew J. Pincus of Seidman & Pincus, LLC on behalf of Tanya Wood). In her petition, she listed Bailey as a creditor holding an unsecured nonpriority claim. Id. at Schedule F. Wood also listed this lawsuit under "Suits and administrative proceedings, executions, garnishments and attachments." Id. at Statement of Financial Affairs. Bailey filed no Motion for Relief from [the] Stay. This Court confirmed that the bankruptcy was discharged on or about August 10, 2011. See Exhibit D (Order discharging Debtor). Pursuant to 11 U.S.C.S. § 727, the case against Wood was discharged and may not be reinstated in the Superior Court.
Therefore, both Gibbons and Wood are no longer defendants in this matter and thus there are no unresolved claims or issues against them.
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Unfortunately, the trial court's May 4, 2017 decision did not fully accomplish the objectives of the second remand. The trial court did not develop a "plan" to resolve the claims against Gibbons and Wood. Instead, the trial court concluded those claims have already been extinguished.
With respect to defendant Gibbons, we do not understand the legal reasons why Gibbons is no longer a viable defendant in this case. The trial court appears to believe that Gibbons needed to make a motion to reinstate his status as an active defendant in the litigation, once the case was remanded from the federal court. We are aware of no such requirement. Cf. R. 4:24-1(d) (regarding remands from the federal court). In a January 31, 2014 order, the trial court crossed out provisions in a proposed order reinstating Gibbons as a defendant (as well as Watkins and Russo after the remand), but supplied no statement of reasons in compliance with Rule 1:7-4(a) explaining why it struck (or refused to reinstate) Gibbons as a defendant. Although we cannot be certain from the confusing record, apparently Gibbons was mistakenly removed as a defendant in the Law Division through a clerical error at the time when the litigation was removed to the federal court. In any event, the court's dismissal of Gibbons from the case has not been sufficiently justified with reasons, which impedes meaningful appellate review by this court.
With respect to Wood, we note the trial court's explanation that Wood is entitled to dismissal of the claims against her because of a discharge in her Chapter 7 bankruptcy case. Wood's bankruptcy petition identifies the claims against her in this case, and lists plaintiff's co-counsel as a creditor. This explanation potentially is sound, but is subject to future scrutiny.
At oral argument on the appeal, plaintiff argued that the claims against Wood founded upon the intentional tort of alleged conversion of property are not dischargeable in a Chapter 7 bankruptcy. See 11 U.S.C. § 523(a)(6) (exempting from discharge any debt "for willful and malicious injury by the debtor to another entity or to the property of another entity.") However, such debts are discharged "unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge." 11 U.S.C. § 523(c)(1). So, if a creditor having a claim against the debtor does not file a timely exception to discharge application, the intentional tort liability is still discharged. This is subject to a further exception, if the debt is not listed or scheduled by the debtor and the creditor lacked notice of the bankruptcy. 11 U.S.C. § 523(a)(3).
The burden of establishing nondischargeability of the debt falls on the creditor who is required to file a timely adversary complaint. See Bankr. R. 4007. The complaint to declare nondischargeability must be "filed no later than 60 days after the first date set for the meeting of creditors under [11 U.S.C. § 341(a)]." Bankr. R. 4007(c).
Here, the present record supplied to us is insufficient to confirm whether plaintiff or plaintiff's counsel received proper service of Wood's petition and, if so, whether plaintiff failed to preserve the conversion claim by seeking a timely exception from the BankruptcyCourt. The record must be developed further in the trial court to address these matters.
In sum, the viability of plaintiff's claims against Gibbons and Wood is, at best, murky. Moreover, the trial court apparently has not entered a comprehensive final judgment. Nor are there specific orders dismissing Gibbons and Wood with prejudice.
All of this convinces us that the appeal remains interlocutory and there has not been a proper final disposition of all issues as to all parties. We are loathe to proceed with the appeal in its present defective state, and decline to grant leave to appeal to address, piecemeal, the issues against the defendants other than Gibbons and Wood. See Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (underscoring the general policies disfavoring piecemeal review). Much of plaintiff's brief on appeal discusses facts and legal claims against Gibbons in particular. If, hypothetically, Gibbons or Wood, or both of them, remains a defendant in the trial court, the disposition of those claims could affect certain issues or factual contentions involving the other defendants. Moreover, the evidentiary and proof issues are complicated by plaintiff's death, although we anticipate the Estate will seek to rely on plaintiff's deposition testimony pursuant to the hearsay exception in N.J.R.E. 804(b)(1), if any claims are ultimately allowed to proceed to trial.
Given these abundant problems with the existing state of the case, we dismiss the present appeal without prejudice. The matter shall be reactivated in the Law Division, with specific direction to the trial court to conduct a new assessment of the viability of the claims against Gibbons and Wood, respectively. The remand shall be assigned to a different judge, who will have the advantage of a fresh perspective on the issues. To aid in the process, counsel shall provide courtesy copies of the parties' appellate submissions. The trial court shall conduct a case management conference within thirty days of this opinion.
On remand, the trial court shall issue orders and written statements of its reasoning respecting Gibbons and Wood. If the claims against either Gibbons or Wood remain in the case, those claims shall be tried to finality or adjudicated in a dispositive motion. Once the matter is concluded with a final disposition of all issues as to all parties, including Gibbons and Wood, any aggrieved party can file a timely new appeal. In such a new appeal, counsel may re-submit their previous briefs (with any appropriate corrections) to this court, along with supplemental briefs not to exceed fifteen pages each. No other briefs will be permitted without leave of court.
The appeal is dismissed, without prejudice, for lack of jurisdiction, pending further developments in the trial court. The cross-appeal of defendant Rocco seeking frivolous litigation sanctions against plaintiff is denied without prejudice.
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Reed Smith, LLP, attorneys for respondent (Henry F. Reichner, on the brief).
Before Judges Koblitz and Currier.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
PER CURIAM.
In this foreclosure matter, defendant Adesina Ogunlana appeals from the September 19, 2017 order denying her motion to stay a sheriff's sale. Defendant's basis for the stay of the sale was her bankruptcy filing. Under 11 U.S.C. § 362(c)(4)(A)(i), an automatic stay does not take effect when a debtor has had two or more prior cases dismissed within the year. The automatic stay did not take effect here because defendant filed a third bankruptcy action just before the date of the sheriff's sale. Therefore, it was not an abuse of discretion for the Chancery judge to deny a stay of the sale. We affirm.
After defendant defaulted on the loan securing the mortgage on her residential property, plaintiff HSBC Bank National Association, filed a foreclosure action. Defendant did not answer the complaint and final judgment was entered in June 2015. A sheriff's sale was scheduled for September 19, 2017.
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On the day of the sale, defendant requested a stay due to a petition for relief under Chapter 13 of the Bankruptcy Code, which she had filed the previous day. See 11 U.S.C. § 362(a)(2). Defendant had filed two prior petitions for relief in April and July 2017, both of which were dismissed for failure to file schedules. After hearing counsels' arguments, the Chancery judge denied the stay of the sale on September 19, 2017.[1]He noted § 362(c)(4)(A)(i) of the BankruptcyCode provides an exception to the automatic stay generally triggered by a bankruptcy petition filing if two or more prior petitions have been dismissed within the year. As this was defendant's third Chapter 13 filing within five months, the automatic stay did not take effect. Therefore, there were no grounds presented to the court to stay the sheriff's sale.[2]
On appeal, defendant asserts the Chancery judge erred in denying the motion to vacate the sheriff's sale. We disagree. Plaintiff presented evidence of defendant's three bankruptcy filings for relief under Chapter 13. Under 11 U.S.C. § 362 (c)(4)(A)(i), the automatic stay does not trigger upon the third filing. As there were no other grounds presented to support the application, it was not an abuse of discretion for the Chancery judge to deny a stay of this request.
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Affirmed.
[1] The judge heard additional arguments the next morning following which he reaffirmed his decision.
[2] Defendant's subsequent motion in the Bankruptcy Court to impose an automatic stay was denied on October 13, 2017.
Creditcounseling is a crucial part of any bankruptcy case. In fact, it is required that you complete a briefing with a certified creditcounseling agency that has been approved by the U.S. Trustee’s Office. Since October of 2005 this requirement has been in place, and a failure to complete creditcounseling within 180 days prior to filing may result in the rejection or dismissal of your Chapter 7 or Chapter 13bankruptcy case. After you complete your creditcounseling course, you will receive a certificate of completion that must be filed with your bankruptcy petition.
The average cost for a creditcounseling course is approximately $50, but the exact cost may vary depending upon what type of session you undergo and where you live. This briefing may be completed in person, over the phone or online. The basic steps of the briefing will usually include an evaluation of your finances, a personal budget plan and the discussion of alternatives to bankruptcy, if any.
Generally speaking, there are very few exceptions to the requirement that a debtor complete a credit counseling course prior to filing for bankruptcy. Bankruptcycourt judges have little to no authority to waive this requirement, so it is important that you discuss this with your attorney prior to filing. A dismissed bankruptcy case may result in your being unable to file for a certain period of time.
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With the economy in its current state, hearing that people are struggling with debt is, sadly, not as uncommon as one would like to hear. Too many people find themselves slipping further and further down the slippery slope, caught between the fast paced world that we live in and the simultaneous culture of plastic money and wanting more. Credit card companies are of no help either, as at the end of the day they are only concerned with making a profit, not helping you get your feet back underneath you to successfully move forward with your life.
If you are currently facing a situation similar to this, it is in your best interest to talk to an experienced New Jerseybankruptcylawyer about the possibility of filing for bankruptcy. By talking to someone knowledgeable about this process, you can have your questions answered; questions about bankruptcy warnings signs, if you qualify, what chapter is right for you, the bankruptcy benefits, exemptions, what you will lose and the types of debts that can be eliminated. Bankruptcy can be a terrifying, confusing process to try and take on, but with the proper guidance, you have no reason to fear it. It can merely be a way for you to move forward into the next chapter in your life.
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At the law firm of Rafael Gomez, we understand the questions and concerns you will have if you are considering filing for bankruptcy. We know that it appears complex and the ideas of Chapter 7, and Chapter 13 may appear foreign and overwhelming. There, are, however many things that you can do to help yourself. By closely working with your case, and giving you the undivided personal attention that you deserve, you can breathe easier knowing that you are dealing with someone devoted to getting you to the optimum outcome. No matter if you are concerned with credit card debt or life after bankruptcy, we will be here to help you.
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Whether bankruptcy is the right choice depends in large part on the type of debt you have. There are two main types of debts: secured and unsecured. Bankruptcy will discharge most unsecured debts, but not secured debts. It is important to know the difference between the types.
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ANALYZING YOUR BUDGET TO DETERMINE IF BANKRUPTCY WILL HELP
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A final ingredient in the financial picture of a family or individual is a complete analysis of ongoing expenses and income. Only with this information in hand can the likely outcome of a bankruptcy be projected, for the family will continue to have its usual expenses, even if most or all debts are discharged, and will have to pay them with the anticipated available income.
A family or individual that is considering bankruptcy must therefore put together a budget of ongoing anticipated expenses and income. Once this is done, it may become apparent that bankruptcy by itself will do little to solve the financial problem because, even with the elimination of most or all debts, ongoing expenses still significantly exceed anticipated income. In such cases, at least part of the solution will be to pare expenses or to raise income.
Cutting expenses is never easy. Families must look at such major items as housing expenses. Is cheaper housing available? Other items, such as restaurant meals, fancy automobiles, vacations, expensive clothes and other luxuries must sometimes be given up. Smaller savings can be made by conserving energy, cutting out extra phone service options, reducing or eliminating cable television bills, and cost-conscious shopping at thrift stores, garage sales and supermarkets.
The alternative, of course, is to increase income. This can sometimes be achieved by a spouse working outside the home, though these gains may be offset by expenses for child care and transportation. A lower income family may be eligible for government benefits such as food stamps, energy assistance payments or public assistance.
In any case, budget information is important for analyzing whether bankruptcy makes sense. It is also critical for determining whether a Chapter 13 case is feasible, and it is required on the schedules filed in every bankruptcy case. Creditors and the court are permitted to examine this information if they wish, though usually they do not.
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In 2005, the United States substantially changed its bankruptcylaws, adding a means test to prevent wealthy debtors from filing for Chapter 7Bankruptcy. The most noteworthy change brought by the 2005 BAPCPA amendments occurred within 11 U.S.C. § 707(b). The amendments effectively subject most debtors who make an income, as calculated by the Code, above the median income of the debtor's state to an income-based test. This test is referred to as the "means test." The means test provides for a finding of abuse if the debtor'sincome is higher than a specified portion of their debts. If a presumption of abuse is found under the means test, it may only be rebutted in the case of "special circumstances." Debtors whose income is below the state's median income are not subject to the means test. Notably, the Code-calculated income may be higher or lower than the debtor's actual income at the time of filing for bankruptcy. This has led some commentators to refer to the bankruptcy code's "current monthly income" as "presumed income." If the debtor'sdebt is not primarily consumer debt, then the means test is inapplicable. Thus, the means test is "a formula designed to keep filers with higher incomes from filing for Chapter 7bankruptcy. (These filers may use Chapter 13bankruptcy to repay a portion of their debts, but may not use Chapter 7 to wipe out their debts altogether.)" The bankruptcy means test is rather complex but quite generous and most debtors have no trouble meeting its requirements. Consumers can use a means test calculator to determine their eligibility. Some bankruptcy practicioners have suggested that the means test is not all that fair or equitable, and have somewhat cynically pointed out that the reference to consumer protection in the bankruptcy act is ironic at best (Orwellian at worst), since those with primarily consumer debt are required to pass a means test while businesses are not. What is undeniable is that it is complex, and the terms that govern many parts of it - including those terms that control whether it applies at all - are of unsettled definition.
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Most individual debtors filing for bankruptcy relief are required to complete either Official Bankruptcy Form 22A or 22C (Statement of Current Monthly Income and calculations). Bankruptcy Form 22A is the form chapter 7debtors will complete for “means testing” purposes; Form 22C is the form chapter 13debtors will complete. [The Official Bankruptcy Forms can be found on the Administrative Office of the U.S. Courts Web site.] A debtor must enter income and expense information onto the appropriate form (i.e., Form 22A or Form 22C) and then make calculations using the information entered. Some of the information needed to complete these forms, such as a debtor's current monthly income, comes from the debtor's own personal records. However, other information needed to complete the forms comes from the Census Bureau and the Internal Revenue Service (IRS).
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