Showing posts with label CHAPTER 7. Show all posts
Showing posts with label CHAPTER 7. Show all posts

Tuesday, December 29, 2020

These Student Loans Are Not Covered By DeVos’s Extension Of Relief

  

These Student Loans Are Not Covered By DeVos’s Extension Of Relief


Adam S. Minsky, Esq.

On Friday, Education Secretary Betsy DeVos announced an extension of the moratorium on student loan payments, interest, and collections to January, 31, 2021.

This additional month provides critical relief to millions of student loan borrowers struggling with repayment and averts an imminent “cliff” on December 31, when the relief was originally scheduled to expire. It gives Congress additional time to potentially extend the relief further into 2021 as part of larger stimulus negotiations. And it provides President-Elect Biden, who would be sworn in on January 20, with the opportunity to enact further relief through executive action if necessary.

But not all student loans are covered by DeVos’s extension. Here’s why.

The current moratorium on student loan payments, interest, and collections is a result of the CARES Act — bipartisan legislation that was enacted in March to provide economic relief in response to the COVID-19 pandemic. But the language in the CARES Act limited student loan relief only to government-held federal student loans. This includes federal Direct loans, and a small number of other types of federal loans that were acquired by, or assigned to, the U.S. Department of Education.

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But a large volume of student loans were excluded from the CARES Act’s provisions. Three main categories of loans are excluded:

  • Loans administered by the Family Federal Education Loan (FFEL) program. FFEL loans are federal loans originated by a private lender, but ultimately backed or guaranteed by the federal government. The FFEL program was discontinued in 2010, but there was still many borrowers who are repaying FFEL-program loans.
  • Perkins loans are federal loans originated by colleges and universities. They are neither Direct nor FFEL loans, and are not protected by the CARES Act.
  • Private student loans are purely private with no federal backing, and are issued and administered by banks and other commercial lending entities.

Because DeVos limited the extension of student loan relief to the existing moratorium under the CARES Act, the relief was not expanded to cover these other loan programs.

There is roughly $300 billion in outstanding student loans that are ultimately left out of the relief, according to the Student Borrower Protection Center. Of that, around there is $160 billion in privately-owned FFEL loans, $5 billion in Perkins loans, and $133 billion in private student loans.

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Congressional Democrats have been pushing to expand the CARES Act protections to cover FFEL loans and Perkins loans. Progressive lawmakers have also pushed for broad private student loan forgiveness, as well. The HEROES Act, which passed the House of Representatives on a largely party line vote in May, would have provided for up to $10,000 in private student loan forgiveness for borrowers in economic distress. But so far, these efforts have run into opposition in the Republican-controlled Senate.

A bipartisan group of senators unveiled a new, $900 billion stimulus bill last week designed to revive efforts to reach a compromise on broad economic relief before the end of the year. Included in this proposal is $4 billion dedicated to student loan relief. While this allocation of federal funds could be sufficient to cover an additional extension of the student loan moratorium further into 2021, specific details regarding student debt relief have yet to be disclosed, and it is not yet clear whether the current relief could be expanded to include the other types of student loans.

Wednesday, December 23, 2020

DeVos Extends Student Loan Relief Into 2021: What You Need To Know

 

DeVos Extends Student Loan Relief Into 2021: What You Need To Know


Adam S. Minsky, Esq.

Education Secretary Betsy DeVos has extended an existing moratorium on student loan payments, interest, and collections into 2021. The U.S. Department of Education announced the update in a press release on Friday. Here’s the latest.

For much of 2020, millions of student loan borrowers have not had to repay their federal student loans because of emergency pandemic relief under the CARES Act. This legislation suspended all payments and interest on government-held federal student loans. It also stopped all collections efforts — such was wage garnishments and offsets of Social Security benefits — for borrowers in default on their student loans. The student loan moratorium was originally supposed to end in September, but President Trump subsequently extended that relief to December 31.

Congressional Democrats have been pushing to further extend student loan relief well into 2021 as part of larger stimulus negotiations. House Democrats passed legislation that would push the student loan moratorium’s expiration to September 2021. But the Democratic-controlled House and Republican-led Senate have been at an impasse for months. President Trump suggested over the summer that his administration could further extend the moratorium through executive action, but he had not made any recent public comments to affirm this.

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The Department of Education just announced an extension of the student loan moratorium to January, 31, 2021. Citing its authority under the HEROES Act of 2003, the Department said, “Federal student loan borrowers will not be expected to make payments through January of next year, though they will continue to be able to do so and benefit from the 0% interest rate as they pay down principal. Non-payments will continue to count toward the number of payments required under an income-driven repayment plan, a loan rehabilitation agreement, or the Public Service Loan Forgiveness program.”

The additional month of relief for borrowers would avert an imminent “cliff” on December 31 — a potentially disruptive gap after the current relief expires, but before President-Elect Biden is sworn in on January 20, 2021. The resulting uncertainty has led student loan borrowers to scramble to budget for payments, apply for income-driven repayment plans, and consider whether to request hardship deferments or forbearances if they cannot afford their regular payments. Servicers would have started generating reminder notices for student loan bills as early as next week.

“The coronavirus pandemic has presented challenges for many students and borrowers, and this temporary pause in payments will help those who have been impacted," said Secretary DeVos. "The added time also allows Congress to do its job and determine what measures it believes are necessary and appropriate.”

A bipartisan group of senators unveiled a new, $900 billion stimulus bill this week designed to revive efforts to reach a compromise on broad economic relief before the end of the year. Included in this proposal is $4 billion dedicated to student loan relief. While this allocation of federal funds could be sufficient to cover an additional extension of the student loan moratorium further into 2021, specific details regarding student debt relief related to this stimulus proposal have yet to be disclosed.

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Furthermore, after President-Elect Biden is sworn into office on January 20, 2021, he could use executive action to enact additional student loan relief, as well. Consumer rights advocates and progressive Democrats in Congress are pushing Biden to use executive action to enact sweeping student loan relief, including an extended moratorium on payments as well as broad student loan forgiveness. Biden has indicated a willingness to enact some policy changes through aggressive executive action if necessary, but has been largely silent on his position regarding cancelling student debt via executive authority. He has expressed a preference for Congress to take action.

Monday, December 21, 2020

Bipartisan Stimulus Bill Would Extend Student Loan And Unemployment Relief For Millions

 

New Details: Bipartisan Stimulus Bill Would Extend Student Loan And Unemployment Relief For Millions



Momentum is building for passage of a new stimulus package, and new information released today about a proposed stimulus bill confirms that it includes a further extension of student loan and unemployment relief.

For much of 2020, millions of student loan borrowers have not had to repay their federal student loans because of emergency pandemic relief under the CARES Act. This legislation suspended all payments and interest on government-held federal student loans. It also stopped all collections efforts — such was wage garnishments and offsets of Social Security benefits — for borrowers in default on their student loans. The student loan moratorium was originally supposed to end in September, but President Trump subsequently extended that relief to December 31.

Last Friday, Education Secretary Betsy DeVos further extended the moratorium by one month, to January 31, 2021. The additional month of relief for borrowers would avert an imminent “cliff” on December 31 — a potentially disruptive gap after the current relief expires, but before President-Elect Biden is sworn in on January 20, 2021. This could have led to confusion for student loan borrowers, and administrative processing delays by servicers.

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Democrats have been pushing to further extend existing student loan relief well into 2021 as part of larger stimulus negotiations. House Democrats passed legislation earlier this year that would push the student loan moratorium’s expiration to September 2021. But the Democratic-controlled House and Republican-led Senate have been at an impasse for months.

The new, $908 billion bipartisan compromise package aims to bridge the gap between Senate Republicans’ previous $500 billion stimulus proposal, and a $2 trillion proposal by House Democrats. According to a summary of the compromise bill released today, the current moratorium on student loan payments, interest, and collections would be further extended to April 30, 2021. However, that relief would not be expanded to include around $300 billion in student loans not covered by the existing moratorium, such as commercially-held FFEL loans, Perkins loans, and private student loans. The current relief only covers government-held federal student loans.

Still, the bill, if passed, would provide desperately needed relief to millions of student loan borrowers. According to a recent nationwide survey of 60,000 student loan borrowers completed by Student Debt Crisis and Savi, 77% of student loan borrowers do not feel financially secure enough to resume payments in early 2021. More than half of surveyed borrowers rate their current financial wellness as poor or very poor since the COVID-19 pandemic began in March; only 21% rated their financial wellness as poor or very poor prior to the pandemic. More than a third of healthcare workers with student loan debt who responded to the survey have experienced reduced work hours caused by the COVID-19 pandemic.

“People are deeply concerned about the continuing impact of COVID-19, and their student debt burden is creating uncertainty about the future. The data shows that borrowers are not even close to ready to begin making payments again when relief ends on January 31st. Healthcare workers, educators, and people of color are even less certain of their financial security.” said Natalia Abrams, Executive Director of Student Debt Crisis. “Student debt relief policies are rapidly changing and borrowers want elected officials to know the difficulties they face.”

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The proposal also includes an extension of federal unemployment benefits at $300 per week for 16 weeks. This is less than the $600 weekly benefit amount that Democrats had originally wanted, but with current benefits expiring, supporters of the proposal view it as a reasonable compromise. Also included in the bill is rental relief, and additional funding for small businesses via the Paycheck Protection Program.

It is unclear at this juncture whether the compromise bill has sufficient support to pass the GOP-controlled Senate, but momentum is building. If passed by the Senate, the bill would then have to be passed by the House, controlled by Democrats. House Speaker Nancy Pelosi has expressed support for the bill. President Trump would then have to sign it; the White House has not yet indicated whether he would do so.

Friday, December 18, 2020

Major Bankruptcy Reform Bill Would Permit Student Loan Discharges And Make Other Dramatic Changes

 

Major Bankruptcy Reform Bill Would Permit Student Loan Discharges And Make Other Dramatic Changes


Adam S. Minsky, Esq.


Today, Senators Elizabeth Warren (D-MA), Dick Durbin (D-IL), and Sheldon Whitehouse (D-RI), along with several House Democrats, introduced the Consumer Bankruptcy Reform Act of 2020. This is the first major consumer bankruptcy reform legislation to be introduced into Congress since the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. If passed, the bill would fundamentally change the entire bankruptcy system — particularly for student loan borrowers.

The current bankruptcy code treats student loan debt differently from most other forms of consumer debt, such as credit cards and medical bills. Borrowers must generally prove that they have an “undue hardship” in order to discharge their student loan debt in bankruptcy. These restrictions initially only applied to federal student loans, but were subsequently expanded to cover private student loans following the passage of a 2005 bankruptcy reform bill.

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The “undue hardship” standard applied to student loan debt is not adequately defined in statute, so bankruptcy judges have established various tests (which vary by jurisdiction) to determine discharge eligibility. In order to show that they meet this standard, borrowers must initiate an “adversary proceeding,” which is essentially a lawsuit within the bankruptcy case that is brought against the borrower’s student loan lenders. Through the adversary proceeding, the borrower must present evidence showing that they meet the undue hardship standard, while the student lenders present opposing evidence. The adversary proceeding can be a long and invasive process for borrowers, and can get quite expensive for those who retain a private attorney. Student loan lenders may also have significantly more resources than borrowers, which can give them an edge in the litigation. As a result, many student loan borrowers are unsuccessful in proving undue hardship, and many others don’t even try.


The new bankruptcy reform bill would make a simple, but far-reaching, change to the bankruptcy code by simply eliminating the section of the code that exempts student loan debt from discharge. If enacted, student loans would be treated no differently from other forms of consumer debt, and could be discharged without an adversary proceeding, and without having to prove an “undue hardship.”

Among other things, the bill would also radically reform the bankruptcy system by replacing Chapter 7 and Chapter 13 bankruptcies with a single, unified bankruptcy process. It would create a uniform federal homestead exemption, rather than a patchwork of state exemptions. It would permit the discharge of certain government fees and fines. It would exempt sources of income and assets linked to alimony, child support income, the child tax credit, and the Earned Income Tax Credit. And it would crack down on predatory practices by lenders and creditors.

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“Our Consumer Bankruptcy Reform Act simplifies and modernizes the consumer bankruptcy system to help people struggling with debt – starting by creating a single system for all consumers, streamlining the filing process, and reducing filing fees,” said Senator Warren. “I’ve sat in bankruptcy courtrooms and heard the stories of people who worked hard, had big dreams, and whose lives took a terrible turn. Bankruptcy is supposed to be a last resort to help people pull themselves back up. We must fix bankruptcy to give people a fighting chance.”

The bill has little chance of passing the Republican-controlled senate during the lame-duck session. But its chances could improve depending on the outcome of the January runoff elections in Georgia, which will determine which party controls the Senate after Joe Biden assumes the presidency on January 20.

Friday, December 11, 2020

BEST BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

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MORTGAGE ARTICLE - BANKRUPTCY LAWYER IN HACKENSACK NJ (201) 646-3333

 

MORTGAGE ARTICLE


EMIGRANT MORTGAGE COMPANY, INC., Plaintiff-Respondent,
v.
GINA GENELLO and FRANK GENELLO, Defendants-Appellants, and
PALISADE COLLECTION, Defendant.

No. A-1297-16T2.
Superior Court of New Jersey, Appellate Division.

Submitted March 13, 2018.
Decided June 1, 2018.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-045130-08.

Dunne, Dunne & Cohen, LLC, attorneys for appellants (Frederick R. Dunne, III, of counsel and on the brief).

Knuckles Komosinski & Manfro, LLP, attorneys for respondent (John E. Brigandi, on the brief).

Before Judges Hoffman and Gilson.


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.

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PER CURIAM.

Defendants Gina and Frank Genello (defendants) appeal from an October 21, 2016 Chancery Division order denying their motion to vacate the sheriff's sale of their home, which occurred on September 13, 2016. Because they did not receive notice of the adjourned date of the sheriff's sale, defendants argue the trial court decision constituted an abuse of discretion and resulted in "a miscarriage of justice." We affirm.

On May 31, 2007, Gina Genello executed a promissory note to plaintiff Emigrant Mortgage Company (Emigrant) for $383,500, and defendants secured the loan with a non-purchase money mortgage on their home in West Caldwell. Beginning in June 2008, defendants stopped making their monthly payments under the note and mortgage. Emigrant filed a foreclosure action on November 13, 2008, after defendants failed to cure their default. Defendants filed an answer and counterclaim.

On September 16, 2010, the parties entered into a forbearance agreement, whereby defendants withdrew their answer and counterclaim with prejudice, allowing the foreclosure to proceed uncontested in exchange for a six-month stay of the foreclosure proceedings. The agreement provided for an additional three-month stay if defendants found a buyer for their home. The agreement did not require defendants to make regular monthly payments, only monthly escrow payments. Thereafter, the court dismissed the case, assuming it had settled.

Emigrant then filed a motion to restore the action. Defendants opposed the motion, which the court granted on March 21, 2016, but on the condition that Emigrant not seek default interest when it applied for final judgment.

On December 4, 2014, Emigrant filed a motion for final judgment. On July 22, 2015, the court entered final judgment against defendants for $673,220.99 and ordered the sale of the property. Defendants filed a motion for reconsideration, which the court denied on August 7, 2015. Defendants appealed from the final judgment and order denying reconsideration, and we affirmed. Emigrant Mortg. Co. v. Genello, No. A-0292-15 (App. Div. Dec. 2, 2016).

On May 26, 2014, Emigrant sent correspondence to defendants advising of the sheriff's sale date. Defendants requested two adjournments pursuant to N.J.S.A. 2A:17-36, which postponed the sale until July 5, 2016. On that date, defendants filed a Chapter 7 bankruptcy petition, resulting in another postponement of the sheriff's sale. A lack of supporting documentation lead to the dismissal of defendants' bankruptcy proceeding, and the rescheduling of the sheriff's sale for September 13, 2016. Emigrant did not notify defendants of the new sale date.

On September 13, 2016, Emigrant purchased the property at the sheriff's sale for $100. Upon learning of the sale, defendants filed a motion to vacate the sale on September 22, 2016, arguing the sale was unfair and prejudicial absent further notice by Emigrant. The judge denied defendants' motion but extended their redemption period to November 1, 2016. Defendants now appeal on the same grounds.

On appeal, defendants seek reversal of the order denying their motion to vacate the sheriff's sale, arguing that our decision in First Mutual Corp. v. Samojeden, 214 N.J. Super. 122 (App. Div. 1986) requires this result. In Samojeden, we held that our court rules, "as a matter of fundamental fairness[,] . . . must be construed as entitling interested parties to actual knowledge of the adjourned date upon which the sale actually takes place." Id. at 123.

We review the trial court's denial of defendants' motion to vacate the sheriff's sale under an abuse of discretion standard. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). The Court finds an abuse of discretion when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

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We recognize that a court of equity may set aside a sale and provide the defendant with notice of another sheriff's sale. First Trust Nat'l Ass'n v. Merola, 319 N.J. Super. 44, 49 (App. Div. 1999). "The general rule is that when insufficient notice of a sheriff's sale is given, the preferred remedy is that which restores the status quo ante to the greatest extent possible." New Brunswick Sav. Bank v. Markouski, 123 N.J. 402, 425 (1991). The court may void the sale if the party promptly seeks relief, was unaware of the pending sale, and no innocent third parties would be prejudiced. Ibid. (citation omitted).

However, the remedy to void the sale requires "some evidence of actual prejudice to an interested party." G.E. Capital Mortg. Servs., Inc. v. Marilao, 352 N.J. Super. 274, 283 (App. Div. 2002). The power to void the sale is "discretionary and must be based on considerations of equity and justice." First Trust Nat'l Ass'n, 319 N.J. Super. at 49. We defer to that exercise of discretion, absent a mistake of law or an abuse of discretion. Ibid.

Independent of statutes or court rules, the court may grant equitable relief to set aside a sheriff's sale or to order redemption when irregularities occur in the conduct of the sale, such as fraud, accident, mistake or surprise. Orange Land Co. v. Bender, 96 N.J. Super. 158, 164 (App. Div. 1967). While we held in Samojeden that fundamental fairness entitles all "interested parties to actual knowledge of the adjourned date upon which the sale actually takes place," we did not hold that the absence of such notice requires the court to vacate the sale in every case. 214 N.J. Super. at 123.

Here, the trial court carefully exercised its discretion by crafting a remedy of extending the redemption period by ten days rather than vacating the sheriff's sale. The court balanced the equities of the parties, noting the lengthy history of this matter, where defendants had not made any mortgage payments in over eight years, while Emigrant "paid the taxes . . . paid the insurance," without "access to the collateral" securing its mortgage loan. In addition, the court noted, "There's no . . . evidence to indicate . . . there was going to be a purchase at the sale or [that] some modification . . . was underway." The court further noted that defendants were effectively on notice that the sheriff's sale would be rescheduled after the bankruptcy court dismissed their petition. In essence, the court found that Emigrant's failure to provide formal notice did not prejudice defendants. Indeed, the court gave defendants ten days to redeem the property, but they failed to make the redemption. On this record, we find no abuse of discretion in the trial court's decision.

Affirmed.

Wednesday, December 9, 2020

CHAPTER 7 ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

 

CHAPTER 7 ARTICLE


JOAN MARIE HOFFMAN, Plaintiff-Appellant,
v.
J.P. MORGAN CHASE and CALIBER HOME LOANS, Defendants-Respondents.
No. A-4566-17T4Superior Court of New Jersey, Appellate Division.

Argued telephonically May 13, 2019.
Decided June 5, 2019.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. C-012005-18.

Joan Marie Hoffman, appellant, argued the cause pro se.

Robert T. Yusko argued the cause for respondent Caliber Home Loans (Perkins Coie LLP, attorneys; Robert T. Yusko, on the brief).

Eva K. Carey argued the cause for respondent J.P. Morgan Chase Bank (Bertone Piccini, LLP, attorneys; Eva K. Carey, of counsel and on the brief).

Before Judges Fasciale and Rose.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Hi, my name is Nicole. I was represented by Rafael Gomez, his office treated my very fairly and I highly recommend him.

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 appeals from two orders: an April 30, 2018 order dismissing the amended complaint against defendant Caliber Home Loans (Caliber); and a June 8, 2018 order dismissing the complaint against defendant JPMorgan Chase Bank, N.A. (Chase), improperly pled as J.P. Morgan Chase. Judge Margaret Goodzeit entered the orders and rendered comprehensive and thorough opinions. We affirm.

Almost eleven years ago, a bank instituted a residential foreclosure complaint against plaintiff, who immediately filed an answer contesting the bank's allegations. In November 2009, the bank obtained final judgment, which the court amended. The Sheriff then scheduled the sale of the property. Thereafter, plaintiff filed a Chapter 13 petition, which stayed the sale. The bankruptcy court dismissed the petition in October 2016, and although the Sheriff re-listed the sale, plaintiff stayed it again by filing a Chapter 7 petition. The bankruptcy court lifted the stay, refusing to stay the sale any further, despite multiple applications by plaintiff.[1] Plaintiff filed this complaint in January 2018, and the Sheriff sale of the property occurred in June 2018.

In this complaint, plaintiff alleged she proposed to redeem the property in March 2010, Chase failed to respond, Caliber became the servicer of the loan in July 2015, and Caliber provided a pay-off figure to plaintiff in November 2017. The judge entered the orders under review dismissing the complaint under Rule 4:6-2(e), the entire controversy doctrine (ECD), res judicata, and collateral estoppel.

On appeal, plaintiff argues the judge erred by dismissing the complaint by relying on the ECD. Indeed, her merits brief focuses solely on the ECD, although at oral argument before us, she contended that the judge erroneously relied on the other bases for dismissing this case. Plaintiff urges us to reverse the orders and award her damages.

We conclude that plaintiff's contentions are without sufficient merit to warrant attention in a written opinion. R. 2:11-3(e)(1)(E). We reach that conclusion even considering plaintiff's new arguments on appeal, on the record that she expanded without court order. We affirm substantially for the reasons expressed by Judge Goodzeit.

Affirmed

[1] Plaintiff filed at least three other bankruptcy petitions, seeking further stays of the sale. The bankruptcy court dismissed the petitions and denied each of her requests to stay the sale of the property.

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