The amount of the income tax refund and earned income credit required to be turned over to the trustee varies depending on when the case is filed.  If a bankruptcy is filed early in the year, but after the previous year’s tax refund or earned income credit is received, then the trustee will only require turnover of that portion of the refund or EIC that was “earned” prior to the time that the case was filed.  In other words, if a case is filed on April 1, which is one fourth of the way through the year, then one fourth of the tax refund or EIC must be turned over.  As the year progresses, more or the refund or EIC must be turned over.  If a bankruptcy is filed after the new year begins, but before the tax return is filed and the refund received, then all of the tax refund and EIC from the previous year is subject to turnover to the trustee.

A trustee has discretion to decline to accept a refund or the EIC.  If the refund is small, then a trustee may allow the debtor to keep the refund, since there would not be a meaningful payment to unsecured creditors arising out of the refund.  In my experience, if the refund is less than $1,000.00, then the trustee may decline to administer the refund for the benefit of creditors.  However, this is not always true, especially if there are other potential non-exempt assets which the debtor owns that may be required to be turned over.

Court decisions in the 1990’s determined that the earned income credit was subject to turnover to the trustee.  This credit is available to the “working poor” who have minor children dependent upon the working parent for support.  A person cannot receive the earned income credit if he or she does not work or if there are no minor children at home.  Oftentimes, depending upon the number of children in the family and the amount of income received, the EIC can be substantial, oftentimes amount to several thousand dollars.  It caps out at $5,000.00, which is not an insubstantial amount.  A working parent can receive the EIC even if no taxes were withheld on account of employment, which oftentimes happens with a parent who has a low wage and several children in the home.  Since the EIC is available only to working parents, it is specifically intended to encourage persons with minor children to work outside the home – it is a work-incentive program that is part of our federal welfare system, and when combined with the Temporary Aid to Needy Families program (TANF), is intended to assist those families in meeting their basic needs after the TANF payments expire.

The court rulings which allowed bankruptcy trustees to require turnover of the earned income credit are at cross-purposes with the national welfare assistance programs.  The effect of these decisions is to remove the money from families who need the funds essentially to survive, and allow the money to be distributed to creditors .  The question becomes whether it is fair result to redirect money away from low incomes families who need the funds for essential survival, and pay it to creditors.

This question can be answered by looking how unsecured creditors receive money from the bankruptcy estate.  The trustee is allowed to base a fee on 25% of the first $5,000.00 of recovered assets in a Chapter 7 case, with a 10% fee charged for sums received thereafter on amounts up to $50,000.00.   A $5,000.00 earned income credit refund would result in a fee of $1,250.00 to the trustee.  A Chapter 7 trustee may also charge additional expenses against the recovered asset.  Most trustee’s charge separately, and usually at an hourly rate, for actual legal work that benefits the estate, and this on top of the trustee fee previously discussed.  The attorney fee charges usually add an additional $500.00 to $1,000.00 to the total bankruptcy estate expenses, which are deducted from the recovered asset.  Again, using the hypothetical $5,000.00 earned income credit, fees could easily exceed $2,000.00, leaving the balance for unsecured creditors, who share pro rata in the net recovered assets based upon the amount of each claim compared to the entire recovery.

It is not uncommon for unsecured creditors to receive small distributions amounting to only a few dollars.  Oftentimes, the original creditor has sold its claim to a collection agency or a company that buys claims in bankruptcy for cents on the dollar.  Thus, the small amount of money paid to creditors in Chapter 7 may end up in the coffer of a speculator who has purchased another company’s bankruptcy claim.  This comes at the expenses of working parents who would otherwise use the earned income tax exemption to purchase needed goods and services in the local economy.   Exempting the earned income credit would allow those low income families to keep this source of funds for the benefit of their children.

Senator John Vratil of the Kansas Senate has introduced Senate Bill 363, which if enacted, would exempt the earned income credit in a bankruptcy proceeding.  A person filing bankruptcy, who is also receiving an earned income credit, would no longer be required to turn over those funds to the trustee in the bankruptcy case if this bill is enacted.  I had the privilege of testifying before the both the Senate Judiciary Committee  in February and the House Judiciary Committee on March 12, 2010, in support of this bill.  Along with colleagues Marilyn Harp, Executive Director of Kansas Legal Services, Jill Michaux, and John Hooge (both being bankruptcy lawyers in Topeka and Lawrence, respectively), we presented testimony that the earned income credit is part of the federal welfare assistance program designed specifically to encourage low income people to obtain and keep jobs, and that the requirement to turn over the credit for the benefit creditors in bankruptcy usually results in small, essentially insignificant payments to creditors, especially after trustee fees and expense are charged against the EIC prior to any distributions going to creditors.

Senate Bill 363 passed the Kansas Senate by a vote of 37-3 on February 16, 2010.  SB 363 was passed by the House Judiciary on March 17, 2010,  but was amended as follows:  “Nothing in this section shall be construed to limit the right of offset for earned income credit for child support or spousal maintenance.”

See:  http://www.kslegislature.org/legsrv-billtrack/searchBills.do

I will post future blogs on this proposed new law as it works its way through the Kansas Legislature.  Here is a link to the text of Senate Bill 363:  http://www.kslegislature.org/bills/2010/363.pdf

Mortgage Electronic Registration

Much wailing and gnashing of teeth was heard in mortgage banking circles after the Kansas Supreme Court answered the question:  “What is MERS?”

MERS, an acronym for Mortgage Electronic Registration Systems, Inc., was set up some years back by mortgage bankers to be the “straw man” or placeholder for lenders, with MERS to be the mortgagee or recipient of mortgage to real estate, while the debt was held by the mortgage lender.  It is really an electronic database, nothing more.   MERS is privately owned by, you guessed it, the mortgage bankers who created this fictional entity.

State laws require that there be a clear chain of assignment recorded at the county level.  MERS allowed lenders to circumvent this requirement, and had the added benefit of permitting lenders to avoid paying registration fees and recording costs to local governmental units.  This also allowed a number of other things to occur, all beneficial to the mortgage banking industry, and none helpful to homeowners.  By putting the mortgage in the name of MERS, lenders could then sell and assign their notes to each other without the worry of recording an assignment.  Farewell to transparency.  Homeowners would know that MERS held their mortgage, but might not have the foggiest notion about who owned the note, i.e., who was the creditor in the transaction.  Moreover, even if the homeowner knew at the beginning of the loan who the lender was, the creditor holding the note might change on a regular basis through assignments to other mortgage lenders.  Last but certainly not the least, a third party, known as a “loan servicer,” would often be the entity to whom payments were made by borrowers.

Beyond that, this tactic was part and parcel of the mortgage “securitization” bugaboo that was instrumental in bringing on the worst recession since the Great Depression.   Securitization might thought of as the mortgage industry’s version of the “kitchen magician.”  They sliced and diced home loans, repackaged the bits and pieces into “mortgage backed securities” which they then marketed to the investing public.  Many of these repackaged mortgage debts included high risks loans, where the debt  exceeded the value of the home, and other devices, such as “interest only” mortgage loans, where the homeowner was betting on the eventual increase in value of the home.  Finally, many of these mortgages had adjustable rate features with “teaser” rates at inception.

So what is wrong with these home buying strategies?  Well, now we know, two years into the recession.  When home value appreciation stalled, there was no incentive for the speculative homeowner to continue to make payments, even if interest only.  Likewise, when interest rates adjusted upward, after expiration of the teaser period, home buyers walked away.  These sliced and diced mortgages, now repackaged as mortgaged backed securities, began to lose value.  If the underlying mortgages were increasingly falling into nonperforming status, the value of the “securities” had nowhere to go but down.  And so it was.

So what did the Kansas Supreme Court have to say about the MERS folly?  Just this:  No debt is owed to MERs, and therefore, MERS has no right to foreclose.  The entity that has  the debt has no security in the form of a home mortgage to back up the debt, so it is an unsecured creditor.  It has no right to foreclose.  Said the Court:

“The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is a party to whom property is mortgaged, which is to say, a mortgage creditor or lender. A mortgagee and a lender have intertwined rights that defy a clear separation of interests.  By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323 . Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting ’solely’ as the nominee of the lender.”

The Court went on to state that:

“The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009).

Apologist for the mortgage banking industry have characterized the opinion as having “narrow application.”  Maybe narrow in the sense that the case only applies to Kansas mortgages.  And while that may be, courts in other states are showing interest and asking, “What is MERS.”  It is a question we should all be asking.

Many workers are reluctant to notify their employer of a work injury.  The worker may be afraid of some sort of adverse action by the employer.  The worker may also believe that the injury is so minor that nothing should be said.  Finally, some employees believe they should “tough it out” and not report work injuries.

First, it is against the law for an employer to retaliate against a worker who sustains a work injury and then reports it.  Second, even if the injury seems minor at the outset, it should still be reported.  Often injuries, especially so-called “soft tissue” injuries, do not immediately manifest themselves as being a serious condition.  Sometimes, the required 10 days to give notice will have come and gone before the injured worker decides to seek medical treatment.   Therefore, there is one rule that should govern:  REPORT ANY INJURY NO MATTER HOW SLIGHT.

A second requirement under the law is that an injured workers must provide the employer with a written claim.  This must be done within 200 days, which is slightly more than six months.   Here is the link to the “official form” prescribed by the Kansas Division of Workers Compensation:  http://www.dol.ks.gov/wc/html/kwc15%28Rev-02-06%29.pdf.  Although the law does not require that this particular form be used, it is better practice to use this form in making the required written claim.   Whatever form the written claim takes, either give it to the employer or send it by certified mail,  AND KEEP A COPY FOR YOUR RECORDS.

Finally, a brief comment about medical treatment.  It is the responsibility of the employer to provide medical treatment to an injured worker.  Thus, the employer gets to select the physician.  On the other hand, if the worker gives the required 10 day notice, and then the employer does nothing, the worker can select his or her own physician to provide treatment.  The bills become the responsibility of the employer.  This, in and of itself, is a good reason to remember to give immediate notice of any injury to the employer.  Even if it is minor, give the notice, and get to a doctor to have the injury checked out by a professional.

Farmers Bankruptcy- Chapter 12

Congress amended the bankruptcy law in 1986 to create a new bankruptcy remedy specifically for farmers and ranchers, known as Chapter 12.  Prior to that, farmers and ranchers were forced to reorganize under Chapter 11, which is really designed for non-farm businesses, or file under Chapter 13, which is primarily intended for individuals with consumer debt.  Chapter 12 was a hybrid between the two other reorganization chapters, and included the best of both.  Especially important was the ability of farmers and ranchers to restructure long term debt, including mortgages secured by a homestead, which could not be done under Chapter 13.  The problem with Chapter 12 was that Congress created it as a “temporary” chapter to the bankruptcy law, intending it to expire or “sunset” after a few years.  However, each time that Chapter 12 was about to expire, it was extended again by Congress, but still on a temporary basis.  Finally, in 2005, Congress made Chapter 12 a permanent part of the bankruptcy code.

So how does Chapter 12 work?  First, the person filing must be a “family farmer” as defined by the law, meaning that the debtor must be a farmer or rancher with at least  50 per cent of the debt arising out of the farming operation, and with at least 50 per cent of the debtor’s gross income for the preceding taxable year being from the farm or ranch operations.  If those requirements are met, the farmer or rancher can file a Chapter 12 petition, and must file a Chapter 12 plan of reorganization within 90 days of filing the bankruptcy petition.  A farm corporation or partnership will be eligible to file a Chapter 12 case if it meets four specific conditions. First, at least 50 percent of the stock or equity of the corporation or partnership must be held by one family, with that family conducting the farming operation. Second, more than 80 percent of the value the corporation or partnership’s assets must be related to the farming operation. Third, the aggregate debts must not exceed $3,544,525 with not less than 50 percent of that arising from its farming operation. As with an individual, the $3,544,525 debt ceiling is automatically adjusted every three years to reflect any change in the Consumer Price Index.

The Chapter 12 Plan is essentially a restructuring of existing debts.  For example, as to secured debt, the plan can propose to pay the value of collateral rather than the full debt if the collateral (property securing the debt) is less than the amount of the debt.  If a tractor is worth $25,000.00, but has a $35,000.00 debt, the plan can propose to pay the value of $25,000.00, with the $10,000.00 difference becoming an unsecured debt.  The plan can also modify the length of debt repayment, extending it beyond the amount called for in the original note.  The plan can also modify the interest rate.  As to unsecured debt, interest stops on filing and doesn’t have to be paid.  In some cases, all or part of the unsecured debt can be discharged after the plan is  complete.  The frequency of payments can also be adjusted.  For example, if payments are scheduled by a creditor’s note to be made before harvest, the plan can modify that requirement to make the payment come due after harvest.

Plan payments are made to the Chapter 12 trustee during the first three to five years of the plan.  The trustee then distributes those payments to creditors pursuant to the plan provisions.  After the three to five year period, the plan payments terminate and unsecured debts are discharged.  Long term secured debts are then made directly by the debtor to secured creditors.

Bankruptcy is a federal law and cases are filed in bankruptcy court, which is part of the federal court system.  There are three bankruptcy court locations in Kansas:  Topeka, Wichita, and Kansas City.  The person filing Chapter 12 will have to attend a meeting of creditors, known as a “341 meeting,” about 30 days after the case is filed.  This meeting is with the trustee, and although creditors can attend, they are not required to.  The 341 meeting is held in the city where the case is filed:  Topeka, Wichita, or Kansas City, as appropriate.   After the plan is filed, the court sets a hearing to confirm or approve the plan.  If creditors object to plan provisions, they must file written objections to the plan.  The court will then  hear and consider those objections as part of the confirmation process.  Once the plan is confirmed, it then is binding on all creditors, and supercedes any provisions in promissory notes and security agreements.

Kansas Worker Disability

by Paul Post

The Kansas Supreme Court recently handed down a decision favorable to injured workers seeking work disability.  Injured workers with so-called “whole body” injuries (head, neck, back) who subsequently lost their employment have been able to claim work disability, which is usually higher than the functional impairment or disability caused by the injury, itself.   The Kansas Legislature has tinkered with work disability over the years, with the last major change being in 1993, when a two-pronged test was established.  A worker’s wage loss percentage was averaged with the worker’s “task loss” percentage to determine the work disability percentage.

Case law interpreting that statute added the “good faith” requirement, which essentially made the injured worker show that he or she had made a “good faith” effort to find other work after the layoff.  This judge-made rule also mandated that if this good faith attempt to find employment was not shown by the worker, then a wage would be imputed based upon the worker’s so-called residual wage earning ability.  This was usually accomplished by hiring a vocational expert to review the worker’s work history and formulate an opinion as to what the injured worker could still earn, factoring in restrictions assigned by a physician.

The Kansas Supreme Court, in the case of  Bergstrom v. Spears Manufacturing, no. 99,369, threw out this good faith requirement, stating that

“K.S.A. 44-510e(a) contains no requirement that an injured worker make a good-faith effort to seek postinjury employment to mitigate the employer’s liability. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997), and all subsequent cases that have imposed a good-faith effort requirement on injured workers are disapproved.”

Under the holding of this case, all that is required is that the injured worker show that he or she is earning less than 90 per cent of pre-injury wage, and if that is the situation, work disability applies.

Stay tuned for what the Kansas Legislature  will have to say about this decision during the 2010 session.  Kansas already has one of the weakest workers compensation laws with the lowest benefits compared to surrounding states.  When the politicos gather in Topeka come January, they will probably not want to risk losing these dubious distinctions.

Bankruptcy Answers

* WHAT IS BANKRUPTCY?

Most people in today’s economy establish some sort of consumer debt, whether it be the purchase of a home, the purchase of an automobile, or perhaps to buy necessary furniture.  The use of credit cards has expanded over the past years, and now “plastic money” is often times used in place of cash and checks.  Most financial difficulties occur over a period of time with the purchase of consumer goods or the overuse of credit cards, where the person buys more on time payments than he or she can actually afford to pay, after taking care of necessary living expenses.  Likewise, periods of unemployment, lengthy illness, serious injuries, and divorce also may have caused financial difficulties.  The ultimate result is that sooner or later, some creditors are not being properly paid, and eventually, legal collection remedies are threatened or pursued.  While some persons are able to make satisfactory arrangements with their creditors for payment, others are ultimately faced with actual legal collection remedies such as garnishment of wages, repossession of property, and court proceedings.  For these persons, the financial crisis has become very real.

There are basically two types of bankruptcy actions available to individuals and families.  The first is what is commonly known as a “straight bankruptcy” or a Chapter 7.  In a chapter 7 bankruptcy, any “nonexempt” property or assets will be sold by the Bankruptcy Trustee, with the money derived from the sale of property to be used to pay the creditors’ claims.  However, from a practical standpoint, most property owned by individuals is “exempt property.”  This means that the property is exempt from attachment by the creditors, whether in or out of bankruptcy, and cannot be sold or utilized to pay creditor debts.  Your residence, automobile, household goods and furnishings, wages, and personal effects are generally all exempt and cannot be taken by the creditors or by the Bankruptcy Trustee.

In a Chapter 7 bankruptcy, most debts are discharged within approximately four to six months after the filing.  The problem with a chapter 7 bankruptcy is two-fold.  First, some debts are not dischargeable, which means these debts continue to exist after the bankruptcy is over.  For example, certain tax obligations are ordinarily not dischargeable, nor are student loans, nor are child support obligations.  Second, if a creditor has a security interest – a lien or a mortgage on property – this security interest generally survives the bankruptcy.  The underlying debt is discharged, but if the property is not paid for, the creditor gets the property back.  As a result, many people still end up owing money after the filing of a chapter 7 bankruptcy, in the form of tax obligations, student loans and payments on secured property (such as a home mortgage or a car loan).

Under the Chapter 13, sometimes called a “wage earner plan,” the purpose is to attempt repayment of your bills, rather than simply canceling them out.  Under present law, a debtor must have regular income from some source, and usually must pay a minimum of $85.00 per month for a period of three years to be eligible for this type of bankruptcy.  However, since the facts of each case vary, oftentimes the payment will be considerably more.  The reason for this is that any creditors to be paid, including secured creditors such as on car loans or other secured debts, are included in the one payment that is made to the Bankruptcy Trustee.  The only exceptions to this are home mortgages on a person’s residence, which continue to be paid directly to the mortgage holder, child support or alimony obligations, which are paid directly to the recipient, and car lease payments.

Other considerations in determining the amount you must pay include the value of any secured property, and any tax obligations, and any nondischargeable debts, such as student loans.  In order to complete a Chapter 13 and to keep secured property in your possession, you must pay at least the value of that property back to the secured creditor.  For example, if you have a car loan balance of $10,000.00, with the car being worth $8,000.00, then the requirement under Chapter 13 is that you propose to pay at least $8,000.00 to the secured creditor in order to keep that automobile in your possession.  This rule now applies only to vehicles purchased more than 910 days prior to filing bankruptcy (910 days is approximately 2 ½ years – if acquired within 910 days or less, the debt must be paid in full through the Plan).  You have up to five years to pay your creditors under Chapter 13.  If a creditor does not agree with the value which you place on the property, the Bankruptcy Judge decides what the property is worth, and you have to pay the value as decided by the Judge.

In addition, there are other significant differences between the Chapter 13 and Chapter 7 bankruptcy.  Under the Chapter 13, some debts can be discharged or eliminated, which might not be dischargeable in a Chapter 7.  Likewise, you are in control of how much you choose to pay back, rather than the creditor dictating to you how much must be paid.  The Chapter 13 saves you money in three ways, as follows:

a)    Interest on any unsecured claim, such as credit cards, stops running, and you simply pay back the principal due and owing to that creditor;

b)    Many consumer debts have a repayment cycle of one to three years, but under the Chapter 13, you may take up to five years to pay back any obligation.  This type of extension would reduce the payment owed to any creditor.

c)    You can, if you choose, pay less than the total amount of the debt due and owing under certain rules established by the Bankruptcy Court, which will also reduce the amount which you must pay.

However, you should be aware of the fact that some debts are not dischargeable in either a Chapter 7 or Chapter 13 bankruptcy, and under a Chapter 13, must be paid in full.  Some tax debts and most child support obligations cannot be discharged, nor can student loans unless you can show what is known as “undue hardship”.   As to student loans, to seek discharge of the debt you have to file a separate proceeding in your bankruptcy against the student loan creditor.  This is known as an “adversary complaint.”   Student loan discharge issues will be the subject of a future article on this blog.

Finally, Congress amended the Bankruptcy Code in 2005 to add the concept known as “means testing” or “needs based bankruptcy.”  This rule attempts to force people who are above the median income to file a Chapter 13 and pay something back to their unsecured creditors over a period of five years.  However, every case is different.  Even people who earn above the median income can still file Chapter 7, depending on the outcome of the so-called means test.  There are many deductions which can be taken in completing the means test, including support payments, retirement plan loan repayments, charitable gifts, and secured debt payments, which will result in no money being left over to pay creditors in a Chapter 13, and thus allow for the filing of a Chapter 7.

I have not covered business bankruptcy filings in the article.  Business bankruptcies are usually filed under Chapter 11.  Farm bankruptcies are generally filed under Chapter 12.  I will talk about those in the future.

Paul Post- P.A.

My staff and I at the Law Office of Paul D. Post, P.A. in Topeka, Kansas, are ready to help answer your questions about bankruptcy in Kansas.   Call us at 785.273.1353/800.347.1353 or use website contact form  for more information.

Filing Bankruptcy in Kansas? You have three courts that handle bankruptcies: Topeka, Kansas City and Wichita. If you live west of Topeka and live north of I-70 highway, seeking a Topeka bankruptcy lawyer like Paul Post may be your best option. Few western Kansas attorneys offer bankruptcy counsel, because it requires them to drive to Topeka, Kansas City or Wichita’s bankruptcy courts. 

After your bankruptcy petition is filed by you or your attorney, the bankruptcy court sends a notice to all the creditors listed on your list of creditors filed with the case. This notice is generally mailed out within five days after you file your bankruptcy petition.  It advises creditors that you have filed bankruptcy, provides the case number, the location of the bankruptcy, and the name and address of the bankruptcy Trustee.

If you owe any secured creditors (that is, creditors with a lien on property such as a mortgage company, automobile finance company, furniture stores, etc) the bankruptcy does not wipe out the creditor’s lien.  If you file a Chapter 13 repayment plan (sometimes called a “wage-earner plan”) your plan will make provisions for the debt to be paid so that you can keep the secured property.  If you file a Chapter 7, you are required to notify secured creditors of your intentions concerning the secured property, that is, whether you want to keep the property or surrender it. This is done by filing Statement of Intent.   You then have approximately 75 days to either return the secured property or agree to what is known as a “reaffirmation agreement” if you want to keep the property.

The bankruptcy courts will also mail you or your attorney, as well as all creditors a notice scheduling the so-called 341 Meeting of Creditors. This hearing is often referred to as the “Meeting of Creditors” or “341 Meeting.”  At this meeting, the bankruptcy judge is never present.  That is because the bankruptcy code prohibits it, as the 341 meeting is an administrative hearing presided over by the Trustee.  The Trustee’s primary job is to make sure that you have complied with the disclosure requirements of the bankruptcy code, and also to generally look out for the interests ofyour creditors.  The Trustee will review your bankruptcy petition and attached schedules, and ask you  specific questions about these documents. Your attorney will already have provided the Trustee with tax returns and pay stubs.  You may be asked to provide the Trustee with copies of bank statements, titles to motor vehicles, an appraisal of your home (if you own one) along with a recorded mortgage and deed, and perhaps other documents.  Or the Trustee may be satisfied with information shown on the bankruptcy petition and schedules, and not request anything further. That decision is up to the particular Trustee assigned to your case, and depends in large mearsure on the accuracy and detail of your petition and schedules.

In most “no asset” cases, creditors rarely appear at these 341 Meeting; however, a representative from one of the companies you owe, or a person you owe, may show up at this meeting. They normally only make an appearance to ask where the secure item is located and if it is insured.  Even though the 341 Meeting is known as the Meeting of Creditors, creditors do not have to attend, nor do creditors forfeit any rights that they may have in the case by not attending.

If your bankruptcy petition and schedules are sufficiently detailed and adequate to provides all the information the Trustee requires, the Meeting of Creditors will normally only last 5-10 minutes.  You will ordinarily not be required to return for another meeting, although the Trustee may request that you provide additional documents or information after the meeting is concluded, which you have an obligation to do.

You can contact Paul at 785.273.1353 or use website contact form for a free consultation.

1. CHILD CUSTODY
   What types of custody orders can a judge make?
   Joint custody is preferred and implies that both parents will share in making major decisions concerning the child’s upbringing. The usual arrangement is for the child to reside primarily with one parent (residential custody) and to spend time with the other parent on some weekends and overnights, extended summer visits and holidays. Joint custody does not pertain to the physical residence of the children. Shared physical custody, occurs when the child lives with both parents in equally or nearly equal blocks of time. Because shared physical custody requires parents to be extremely cooperative and is easiest when the parents live in close proximity to each other, many judges are reluctant to order it, but will frequently approve agreed shared physical custody.Sole custody means that one parent makes all the major decisions regarding the child’s upbringing and the child lives with that parent. The other parent may have specified visitation rights. Sole custody occurs when one parent is not involved, i.e., prison, or suffers from mental incapacity.

1. Divided custody means that one child lives with one parent and another child with the other. Each party has visitation with the child in the custody of the other. It is used in exceptional cases.

   Non-parental custody can be granted temporarily if the court believes the parents are unfit or that the child is in need of care and an action will be filed pursuant to the Kansas Code for the Care of Children. Grandparent placement is non-parental custody.

   What factors does a judge look at in awarding a parent residential custody of a child?

   The trial judge has broad discretion to award custody according to the child’s best interests. The Kansas statute lists the following factors, among others: the child’s adjustment to home, school and community; the wishes of the parents and the child; which parent will most cooperate in helping the child maintain a relationship with the other parent; and evidence of spousal abuse. Neither the mother nor the father is preferred because of sex. Each case is reviewed on its own facts according to child’s best interests. If the child is a teenager, the judge may be willing to consider the child’s wishes as to residence and the child’s reasons. There is no specific age when a child gets to decide where they live, but generally, the older the child, the more weight that child’s desires are given by the court.

   Can the parties agree as to the custody arrangement for their child?
   Yes, the parties may agree on the type of custody that fits their circumstances and present their agreement to the judge for approval. Kansas law provides a presumption that a written agreement between the parties concerning custody or residency of their minor child is in the child’s best interest. In many counties, mediation, a process later discussed hereing, is utilized by the court to facilitate custody agreements.

   After a Court determines which parent should have the primary residence of a child, can the court ever change that?
   Yes. The Court retains jurisdiction (keeps the power) to change the primary residence of a child until the child attains the age of majority (18) or graduates from high school, whichever occurs first. In some instances, the court’s authority is extended to the child’s 19th birthday, or high school graduation. Generally, if the parties remain in the same state, a motion to change primary custody must be filed in the same court where the divorce or paternity was determined.

   What reasons would a court need to change the child’s primary residence?
   The law usually requires a material change of circumstances’ before a judge will modify a custody order. Usually the change of circumstances will be something in the residential parent’s home that has an adverse impact on the child, such as physical abuse, use of illegal drugs, alcohol abuse or neglect. Seldom will the mere improvement of conditions of the nonresidential parent be sufficient, absent other facts, for a Court to remove a child from a stable situation. Occasionally, the desires of a teenage child can serve as a change of circumstances.

   1. VISITATION OR ACCESS RIGHTS
      If I do not have primary residential custody, what access will i have with my child?
      Visitation, often called “access” is the right of the parent who does not have residential custody to spend time with the child. The Court may order “reasonable” visitation, leaving it to the parties to work out the details, or the judge may order specific times for access to the child. “reasonable” visitation entitles a parent to see the child at reasonable times under reasonable conditions, after adequate notice.What happens if the parties cannot work out an agreeable schedule or do not follow a schedule ordered by the Court?
      If a divorce or paternity case is still pending, then the parent can ask for a temporary order or for modification of an existing temporary order. If the order is “final”, the party must file a motion for specific visitation or to enforce existing rights. The Court may find a party in contempt of court for refusing to comply or can modify the existing order.

   Mediation
   In situations where visitation is an issue, the court can order the parties into mediation which is a process by which a neutral person tries to help the parties reach an agreement outside the court. The mediator is a communication facilitator, and has no authority to enter orders or provide recommendations to the court. Mediation is a confidential process in that statements made in mediation may not be used in court. Such confidentiality is designed to promote open communication between the parents to assist in reaching parental agreements.

   Can a judge ever prohibit access by a parent?
   A judge may restrict, or even prohibit, access if there is evidence that visitation would be extremely harmful to the child, as in instances of child abuse. Sometimes a Court will order that any visitation be supervised by a third party, such as a social worker, relative or court officer. A parent who is prohibited from seeing a child may, at a later time, petition the Court for visitation if conditions improve. A Court may, in extremely rare situations, condition visitation on payment of child support.

   Are there any guidelines for visitation?
   Parental responsibilities continue to exist whether the parents live together or not. For children to grow up emotionally healthy requires love, understanding and sound guidance from both parents. Children need the opportunity to love and respect both parents.

   Courts often give parents the following guidelines:
   The residential parent should have the child ready at the mutually agreed time.
   The residential parent should encourage and make the child feel good about going to visit the other parent.
   The nonresidential parent should pick up and return the child on time unless there is an emergency or the parent has called ahead.
   The nonresidential parent should notify the other parent as soon as possible if unable to keep visitation.
   The nonresidential parent should make the time spent with the child as pleasant as possible by not questioning the child regarding the former spouse’s activities, or making promises that cannot be kept, not discussing the faults of the other parent, or by making extravagant gifts.
   Parents should not argue with each other in front of the child.
   The nonresidential parent should not visit the child after drinking or taking illegal drugs.
   The parent should not visit the child at unreasonable hours or take them to unsafe places.

   Can a judge order visitation rights for anyone other than a parent?
   Kansas statutes provide that following a divorce, grandparents and step-parents may be granted visitation rights if it is in the best interest of the child. In addition, Kansas law allows grandparents to petition for visitation if they have established a substantial relationship with the child or if their child has died and their grandchild has been adopted by a step-parent. The judge has the discretion to make a visitation order. However, natural grandparents do not have a right to visitation when their grandchildren are adopted by third parties, or when the grandparents’ child has had his or her parental rights severed.

   1. CHILD SUPPORT
      How does the judge decide how much child support must be paid?
      In determining the amount to be paid for child support, Kansas law requires a Court to consider all relevant factors, including the financial resources and needs of both parents, the financial resources and needs of the child, and the physical and emotional condition of the child.The Kansas Supreme Court has adopted child support guidelines which must be used as the basis for establishing and reviewing all child support orders. The guidelines are based upon a premise that both parties have a shared duty to support their children based upon their contribution to the combined family income. A proportion of each parent’s income is allocated to the child. Child support continues until the child is 18. If the child attains 18 and is attending high-school, child support continues until June 30 of the school year during which the child becomes 18. Child support and educational expenses may also be extended beyond 18 years if the parents sign a written agreement approved by the Court. If the parties cooperate in holding the child back in school so that the child is 18, but still attending high-school, the Court may extend the child support for an additional school year, subject to conditions.

   Where should I pay child support?
   In most cases, a parent is required to pay child support either to the Clerk of the District Court or the District Court Trustee because it is easier to enforce the support order. In rare instances, the judge may allow a parent to make direct payments to the residential parent. Unless the judge approves direct payments in advance, a parent will not receive credit for payments made to anyone other than the Clerk of the District Court or Court Trustee, which can result in a request to pay support twice.

   Can a child support order be changed if my income changes?
   Yes. A child support order may be changed for future payments, but not for past due payments, if there has been a change of circumstances. If a parent’s income increases or decreases so that the amount owed would be 10 percent less, there is a change of circumstances. A change of circumstances occurs when a child reaches age 7 and 16. The parent should contact an attorney right away to see if the support order should be lowered, because orders can only be modified for the future.

   If I feel that my child is entitled to more support than is currently ordered, what should I do?
   The parent should either contact an attorney or the local Court Trustee, the Department of Social and Rehabilitation Services or Child Support Enforcement Unit as soon as possible to see about the possibility of obtaining an increase in the support obligation.

   Who is the District Court Trustee?
   Some counties have a court trustee who is appointed by the judges to collect child support. A parent who pays support to the court trustee must also keep the trustee informed of current addresses and place of employment.

   What should I do if I can not pay all of my child support?
   A parent who is unable to pay child support in full should pay as much as possible and then contact the court trustee or child support enforcement unit (CSEU) to make arrangements for the balance. The court trustee of CSEU may accept a partial payment. If there are other problems, the parent may want to see an attorney right away. For example, if the reason for inability to pay is loss of a job, the parent may want to file a motion to modify the support obligation as soon as possible.

   What happens if I do not pay my child support?
   After July 1, 1993, child support is automatically withheld from most parent’s wages. If income is not being withheld, it can be ordered when a parent defaults. In addition to income withholding, the law authorized garnishment of bank accounts, imposition of liens on personal property, interception of tax refunds, and other remedies. A person can also be held in contempt.

   Can I be sent to jail if I do not pay my child support?
   Yes. In addition to the enforcement procedures, there are possible criminal penalties. A parent’s failure, neglect or refusal to pay for the support of a child without lawful excuse is a felony. If convicted, a parent could be imprisoned. Failure to obey a court order to pay child support may result in civil punishment such as a fine, or imprisonment for contempt until the offender tells the court that the child support order will be obeyed.

   Does the parent who receives the child support (the parent with whom the child lives) have to spend that money on the child?
   Yes, but it may be spent indirectly. The money does not have to be spent only on things which go directly to the child, such as clothes or toys. Part of the money will help pay for rent or house payments, utilities, school fees, food, and transportation.

   A parent who believes that the child support is being improperly spent should not stop paying support, but should contact an attorney. If the attorney decides there is sufficient evidence, a motion can be filed to ask a judge to review and correct the situation.

   If I am denied my visitation rights, can I refuse to pay my child support?
   No. Child support and visitation are considered by statute in Kansas to be two entirely separate matters. A parent cannot withhold child support to enforce visitation rights nor can a parent deny visitation to enforce child support. If a parent is being denied visitation, the parent can file a motion with the court, even without a lawyer, to enforce visitation. If visitation is being wrongfully denied, the judge can correct the situation.

 You can contact Paul’s office at 785.273.1353 or complete the contact us form or visit his website for more legal information.

Injury Cases

When you have been injured by someone else’s carelessness, it is important to take some initial steps toward making sure your injury claim can be settled fairly and as quickly as possible:

• Write down everything you can remember about how the injury occurred, including the names, addresses and phone numbers of potential witnesses, police officers, insurance company representatives (or company or workers’ compensation representatives if it was a work injury)
• Talk to a Topeka personal injury lawyer before making any statements, written or verbal, to insurance company adjusters or representatives
• Let anyone you think may be responsible for the injury know right away that you are intending to file a claim against them
• Take steps to protect any evidence you may need to prove your injury, such as your totaled car, photographs of an accident or injury scene, clothing you were wearing, damaged personal belongings, and so forth

How Do I Figure Out Who Is At Fault?

In most cases, in order to collect on an injury claim in Kansas, you must prove the person who caused the injury was “negligent” – which is a failure to use reasonable care. In Kansas, you must prove:

• The existence of a duty owed to you by the person who caused your injury
• The other person failed to carry out that duty
• You suffered damages
• The other person’s failure caused you to have the injury

If you were careless, and your carelessness contributed to your injury, the amount you can recover will be reduced in proportion to your carelessness, under Kansas comparative negligence law. Kansas follows a modified comparative fault rule, which provides that if you were 50% or more at fault, you cannot recover. If you were 49% or less at fault, you may recover, though your recovery will be reduced by your decree of fault.

In Kansas, if more than one person is negligent toward you, each person who has been found negligent to you is responsible for a proportional amount of the total damages.

If you have been injured using a consumer product, the seller of the product may be responsible under a “strict liability” legal theory. Under Kansas law, you would need to prove that:

• The product was defective, which made it unreasonably dangerous
• You used the product the way it was supposed to be used
• The defect caused your injury
• You suffered damages

What Is My Claim Worth?

Under Kansas law, the person who injured you is responsible for:

• Past, current and future estimated medical expenses
• Time lost from work, including time spent going to medical appointments or therapy
• Any property that was damaged, such as your vehicle
• The cost of hiring someone to do household chores when you could not do them
• Any permanent disfigurement or disability
• Your emotional distress, including anxiety, depression, and any interference with your family relationships
• A change in your future earning ability due to the injury
• Any other costs that were a direct result of your injury

A lawyer will know what type of expert witness to hire to best prove your damages.

How Long Do I Have To File A Legal Claim?

In Kansas, you only have two years to file a lawsuit against the person who injured you. If your lawyer has not been able to come to an agreement with any involved insurance companies, you will definitely want to file a lawsuit before the two-year statute of limitations runs out.

You can contact Paul Post at  785.273.1353  or  complete form  for a free consultation.