One of the most frequent and first questions I get asked in a bankruptcy a consult is whether or not a home can be saved.  Fortunately, that answer is almost always a comforting yes.

First, of all, not to jinx myself, but I have never had a client lose a home in bankrutpcy, Chapter 7 or Chapter 13, so long as they kept the payments up.   

That is not to say it couldn't happen, but by and large most mortgage lenders will sit back and let you go through your bankruptcy if you just keep the payments current.  Why, well techinically they need specific permission from the Court (an order lifting the Automatic Stay) to do anything to collect or foreclose after the bankruptcy is filed.  Even if they do lift the stay, in Idaho they will have a difficult time foreclosing if you are current on the payments.

Practically speaking, if Mortgage lenders know that they are already secured on their loan, the mortgage is the FIRST thing most people pay in their budget, and if they just let you go through the bk process you are going to have an easier time paying their debt.  If your already current on the payments they have a disincentive to do anything nasty.

If you are already in arrears on your mortgage, filing Chapter 13 may help even more.  Under a Chapter 13 you may well be able to file for bankruptcy, put any arrearage amounts into a payment plan spread out over a 3-5 year period, start making the regular mortgage payments and stop any foreclosure dead in its tracks.  Thus saving your home and giving you time to take care of the arrearage slowly while making your regular payments again.

So most of the time, if you can afford the regular mortgage payments, you can file bankruptcy, pay off your home and when your done years down the road, the title to your home is yours free and clear.

This is a huge relief to any debtor trying to save their home.

 

For anyone who has been charged with a crime or has a loved one facing charges as a criminal defendant this new case is a must read.  The Idaho Supreme Court just issued it on January 30th, 2009, and it is very favorable to the accused.

Among other things, it says that a law enforcement officer has NO right to pat you down UNLESS he has a REASONABLE suspicion that you are BOTH armed and dangerous.  Being high on meth and acting nervous is NOT enough of a reason to get frisked, even if the officer had reasonable information that you fit the description of someone who was just involved in a drug deal.  This case is a must read for anyone interested in protection our Constitutitonal right to be free from illegal searches and seizures!

An illegal search often leads to a DISMISSAL or a NOT GUILTY end to your case!


http://www.isc.idaho.gov/opinions/bishop35241.pdf

One of the most common issues that comes up in divorce and custody cases is when and why can a parent relocate with the children out of state?  This brings up the issue of when should a child be forced or allowed to change schools and social circles and how should a move effect a parent's primary custody or the other parent's visitation.  It also impacts issues involving child support and transportation costs.

Most of the time the law requires parent wanting to relocate the children (either in or out of state) to show that the move is somehow in the child's best interests rather than just in the parent's best interests.

As of about March of 2007, it was thought that a parent was restricted from taking a child out of state without the consent of the other parent, as per Hopper v. Hopper, an Idaho decision.  In that case the Court ultimately found that a mom who had taken a child from Boise to Montana, made what was found to be a false domestic violence report, and then acted to withold contact between the child and Dad for over a year was potentially in jeopardy of being prosecuted for custodial interference.  In fact, the Idaho Court in that decision said that the Magistrate should have, from day one, issued an order to be issued immediately requiring mom to move back to Idaho or return the child to the father.

After that some Idaho magistrates, maybe most, read that decision to require them to issue a "return order" in cases involving parents who move children out of the state without the other parent's consent.  However, in the recent Idaho Supreme Court Case of Schultz v. Schultz, --  http://www.isc.idaho.gov/opinions/schultz34790.pdf , that Hopper decision was perhaps modified. 

In this latest decision it seemed to make the issue one more for a court's discretion rather than a hard and fast rule requiring return.  What is even more interesting to note is that in this decision the Court seems to open the door to allow a mom, or potentially dad, who is a victim of domestic violence, to argue that a relocation that is made due in part to domestic violence issues and/or stalking may argue that such reason for moving actually serves the child's best interests and therefore may even independantly justify an abused spouse from moving with the kids just to get away from his or her abuser. 

One of the biggest issues that comes up in bankruptcy is a debtor's duty to provide truthful, complete, and accurate information.  One thing I've learned as a bankruptcy attorney is that most debtors are honest and straightforward  people who are just very down on their financial luck.  Even so, when your creditor's are breathing down your neck and you are in a big hurry to get your bankruptcy paperwork completed and into your attorney's office for filing, mistakes can be made and oversights happen.

When you forget to list things you can open the door to getting your case dismissed, your discharge denied, or in the worst case you might get prosecuted for bankruptcy fraud.  This recent case from Idaho, shown below, demonstrates the kind of hot water you can unintentionally get yourself into.  Fortunately in this case the Court found in favor of the debtors. But that doesn't always happen.  Like a wise old Bankruptcy attorney once told me, when it comes to filling out your bankruptcy papers "When in doubt, just list it out". If you have an issue your concerned about talk to your lawyer about it BEFORE you file.  Let your attorney be your attorney and do what he can to help do damage control, but don't try and hide things from the bankruptcy Court or from your lawyer.

http://www.id.uscourts.gov/decisions-bk/Warr_Memo.pdf

Possible good news for distressed homeowners! Today the House was supposed to consider a bill that would allow Bankruptcy Judges to "cram down" a bankruptcy debtor's mortgage in a Chapter 13 case.  What does that mean in laymen's terms?  Well it gives a bankruptcy court the ability to review a debtor's mortgage to reduce the principal and the interest on your mortgage even over the objection of the mortgage company.  Thus "cramming it down" the lender's throat.

This means that if you are eligible to file a chapter 13 you may be able to have the court lower the outstanding balance on your mortgage and lower the interest rate thus reducing your monthly mortgage payment.  It has the potential to provide significant relief to debtors struggling to keep their homes. 

Apparently, the House declined to move forward on it today because of debate about the potential burden it might place on taxpayers.  Some argue that this power will translate into higher costs for mortgages for the everyone else while others argue it requires the lenders to eat the losses.  Either way if it passes it may provide some needed relief to alot of struggling American families.

More often than not, when a prospective client calls for questions on bankruptcy they are trying to put out a blazing fire.  The first question out of their mouth is "will bankruptcy really stop my foreclosure or my wages from being garnished?"  Well fortunately I can answer with an emphatic YES!  If bankruptcy is the right choice for you, filing your case puts an IMMEDIATE stop to any creditor phone calls, collections, garnishments or foreclosure proceedings!!!  The day your case is filed an AUTOMATIC STAY goes into effect which is a FEDERAL COURT ORDER prohibiting any creditor collection activity or contact with a debtor.  One of the beauties of bankruptcy protection is that you can get the benefit of a fresh start from day one. 

Hi! My name is Rocky Wixom and I am southeastern Idaho attorney.  I provide bankruptcy, criminal, and divorce services throughout Eastern Idaho.  I offer free consultations and am commited to providing exceptional legal services to clients from Twin Falls to Pocatello, to Idaho Falls.  If you in the market for a lawyer I invite you to visit www.youridahoattorney.com for more information on my background and for FAQs.  Hope to hear from you.