CHANGE IN CUSTODY TERRY BANKERT LAWYER 810-235-1970

DID YOU KNOW.

MCL 722.27(1)(c) provides that in a custody dispute, a trial court, for the best interests of the child at the center of the dispute, may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.” 

[Principle source e-journal #71713, Unpublished 11/14/19.No.349021. ]

But the court is not permitted to “modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c).

“These initial steps to changing custody— finding a change of circumstance or proper cause and not changing an established custodial environment without clear and convincing evidence—are intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003) (quotation marks omitted). 

The first step in the analysis is to determine whether the moving party has established proper cause or a change of circumstances by a preponderance of the evidence. Id. at 508-509.

In McRoberts v Ferguson, 322 Mich App 125, 131-132; 910 NW2d 721 (2017), this Court explained: Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken. 

In order to establish a change of circumstances, a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.

To constitute a change of circumstances under MCL 722.27(1)(c), the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. [Citations, quotation marks, and alterations omitted.] 

With respect to the issue of “proper cause,” the criteria outlined in the statutory best

interest factors, MCL 722.23, “should be relied on by a trial court in deciding if a particular fact raised by a party is a ‘proper’ or ‘appropriate’ ground to revisit custody orders.” Vodvarka, 259 Mich App at 512. 

In regard to “change of circumstances,” the relevance of facts presented should also “be[] gauged by the statutory best interest factors.” Id. at 514. “Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic.” Corporan, 282 Mich App at 605. 

In Vodvarka, 259 Mich App at 512, this Court, addressing the threshold issue, observed: Obviously, trial courts must make this factual determination case by case. Although these decisions will be based on the facts particular to each case, we do not suggest that an evidentiary hearing is necessary to resolve this initial question. 

Often times, the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.

 MCR 3.210(C)(8) provides: In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.

 It is clear to us, and was effectively accepted by the trial court, that if the allegations set forth in plaintiff’s motion to modify custody are true, they would easily establish a change of circumstances and proper cause for purposes of revisiting the issue of custody under the statutory best-interest factors.

 But the trial court found it problematic that plaintiff had not submitted any statements, affidavits, reports, or other documentary evidence to support the allegations, let alone evidence that was current and relevant. 

The motion to modify custody was not verified, nor did plaintiff supply her own affidavit. MCR 3.210(C)(8) allowed the trial court to require “an offer of proof or otherwise” in relation to deciding whether to order an evidentiary hearing.

Under the circumstances of the case and given the remarks made by the trial court when ruling on the motion, the court’s hesitation and resistance at giving any weight to the allegations in plaintiff’s motion was plainly driven by the four CPS investigations instigated by plaintiff that resulted in determinations that allegations of abuse by defendant could not be substantiated.

The lack of substantiation, again and again, could reasonably call into question plaintiff’s motives and credibility on all matters.

 The trial court appeared more than open to further considering a motion to modify custody if plaintiff would come forward with supporting documentary evidence, explaining why the court took the unusual step of denying the motion without prejudice.

 Indeed, the record and the CPS history support the trial court’s decision to deny the motion to modify custody simply on the-1970 basis that plaintiff did not provide supporting documentation on the threshold issue of change of circumstances or proper cause."

Presented here by Terry Bankert Flint Divorce Attorney 810-235-1970 FlintFamilyLaw.com

Modifying Child Custody

OVERCOMING THE BARRIER. HOW TO MODIFY A CUSTODY ORDER.

The initial steps to modifying judgments or custody orders, is finding a change of circumstances or proper cause and proving that changes to an established custodial environment, absent clear and convincing evidence, and that the change is in the child’s best interests—are intended to “erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Heid v AAASulewski  (After Remand), 209 Mich App 587, 593–594, 532 NW2d 205 (1995); see also Foskett v Foskett, 247 Mich App 1, 6, 634 NW2d 363 (2001) (recognizing legislature’s intent in enacting Child Custody Act of 1970 was to prevent removal of children from established custodial environments except in most compelling cases).[MFL 12.]

Presented here by Terry Bankert  Flint / Genesee County MI Family Law Lawyer (810) 235-1970, www.attorneybankert.com.

FLINT DIVORCE LAWYER ,CHILD SUPPORT CUSTODY, FLINT ATTORNEY

SEPARATE MAINTENANCE

FYI “Married persons may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons.”Source Michigan Family Law Benchbook, Ch 2 , Icle 2nd ED 2006

“ Separate maintenance may allow both parties to have continued health care coverage, but some employers and heath insurance providers treat an action for separate maintenance as a triggering event disqualifying a nonemployee spouse from continued health insurance coverage. This is not uniformly applied by either employers or health insurance providers.”

Presented here by Terry Bankert Flint Divorce attorney (810)-235-1970, www.attorneybankert.com

“An action for separate maintenance is filed in the same manner and on the same grounds as a divorce. MCL 552.7. Either the plaintiff or the defendant must have resided in the state for at least 180 days and in the county of filing for at least 10 days immediately preceding the filing of the complaint. MCL 552.7(1), .9(1). Both of these residency requirements are jurisdictional and must be met on the date of filing. If the requirements are not met, the action may be dismissed or the judgment set aside. Lewis v Lewis, 153 Mich App 164, 395 NW2d 44 (1986) (circuit court lacks jurisdiction in separate maintenance action if neither party met residency requirement before filing). See chapter 1 for a complete discussion of the procedural requirements for a divorce.”

“When the matter is concluded, the parties are still technically married, but the marital property may be divided, MCL 552.19, and the court may order support for a spouse who requires it, MCL 552.23(1).”

“A separate maintenance action will result in a divorce judgment if the defendant files a counterclaim for divorce and the statutory grounds are established. MCL 552.7(4)(b).”

“ If a party wishes to divorce after a final judgment has been issued in a separate maintenance action, the party should file an entirely new cause of action. Although many issues will already have been decided and are enforceable under the judgment, any remaining issues like dissolution of the marriage should occur under the new action.”

“In Kresnak v Kresnak, 190 Mich App 643, 476 NW2d 650 (1991), even though the husband died before the entry of the judgment, a property settlement agreement in a separate maintenance action was enforced where the parties had placed it on the record and it had been generally approved by the court. The general rule that the divorce court lacks jurisdiction to render a divorce after the death of one of the parties did not apply. The issue was not the severing of the relationship, but the enforcement of a contractually binding agreement. Id. at 649–650.”

“MCL 700.2801(1) of the Estates and Protected Individuals Code excludes an individual from surviving spouse status when that individual is divorced from the decedent or the marriage has been annulled. A decree of separation does not terminate the status of husband and wife and is not a divorce for purposes of MCL 700.2801(1). However, MCL 700.2801(2)(c) provides that a surviving spouse does not include “[a]n individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.” Although a judgment of separate maintenance does not terminate the status of husband and wife, it is a court proceeding “purporting to terminate all marital property rights.” But see §2.4(discussing same-sex marriage after Obergefell v Hodges, 576 US ___, 135 S Ct 2584 (2015)).”

“Unless it provides to the contrary, a waiver of “all rights” in the property or estate of a spouse or a complete property settlement entered into after the marriage

DO YOU WANT YOUR KIDS TO LIVE WITH YOU?

When you feel your children would be better of living with you rather than your ex spouse who has child custody what can you do? #childcustody

PROVE A PROPER CAUSE OR  CHANGE IN CIRCUMSTANCES

There are several important steps the first discussed here is a court determination that a” change of circumstances exists.”

Additional questions about change in custody can be found by contacting  Flint Divorce Attorney Terry R. Bankert 1000 Beach St. Flint MI 810-235-1970 or terry@attorneybankert.com #flintdivorce

A RECENT DENIAL OF A FATHER'S MOTION TO CHANGE CUSTODY

In a recent Michigan Court of Appeals Case, looking at Kent Circuit Court,LC No. 12-005913-DM case Defendant father  appeals as of right a May 13, 2014 order, with several other issues, denying his motion for change of custody in regard to the parties’ minor child,

TO DETERMINE CHANGE OF CIRCUMSTANCES REQUIRES IS WHAT IS COMMONLY CALLED A VODVARKA HEARING

In Child custody modification of a custody order the controlling state statute is; MCL 722.27(1)(c) while the controlling case law is Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “

When the Michigan Court of Appeals reviews a child custody modification of a County trial court decision, here ,Kent Circuit Court,LC No. 12-005913-DM,  to deny a motion for change in custody   it determines  whether the trial court's finding that there was no "change of circumstances" or "proper cause" was against the great weight of the evidence; MCL 722.28;[1]

The Michigan Court of Appeals recently  held that the trial court,Kent Circuit Court,LC No. 12-005913-DM,  did not err by denying the defendant-father's motion for change of custody of the parties' minor child.[1]

The Michigan Court of Appeals held that the trial court's, In the Kent case,  finding that there was no change of circumstances or proper cause to support a change in custody was not against the great weight of the evidence.[1]

"None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child's life or well-being.[1]

 HOW A CHANGE OF CUSTODY DECISION IS MADE. THE FIRST HURDLE .

A child custody award may only be modified after there has been “proper cause

shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “[1]

The movant, the parent that wants a change,  of course has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists . . . .” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “ [1]

Proper cause” sufficient to warrant revisiting a custody order “means one or

more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.[1]

THE COURT LOOKS AT FACTS THAT HAVE CHANGED  SINCE THE ENTRY OF THE LAST ORDER  THAT ARE IMPORTANT OR MATERIAL TO THE CHILDS BEST INTEREST

To demonstrate a change of circumstances meriting consideration of a custody change, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially ]changed.” Id. at 513.  [1]

“[T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513-514. [1]

In the Kent Circuit Court,LC No. 12-005913-DM case the court did not find the required change in circumstances

As stated above a child-custody award may only be modified after there has been “proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c).  [2]

The purpose of the proper cause or change-of-circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003), [2]

None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child’s life or well-being. See Vodvarka, 259 Mich App at 512-513.[1]

At most, father’s allegations amount to nothing more than normal life changes for the child or minor inconveniences to father in his attempts to interact with mother. See id. at 512-514.[1]

While it is true that “a stipulation by the parties regarding a matter of law is not binding

on a court,” see Staff v Johnson, 242 Mich App 521, 529; 619 NW2d 57 (2000),the Michigan Court of Appeals  cannot characterize the factually based change-of-circumstances issue as purely a “matter of law.” In Vodvarka, 259 Mich App at 512, the Court stated, “Often . . ., the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the

facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.”[2]

In Washtenaw Circuit Court LC No. 13-001155-DC  the consent order did not reflect a clear temporary arrangement. Instead, it explicitly stated, “the parties stipulate that the parties minor child shall attend kindergarten in the State of Michigan until there is a determination of change of custody” (emphasis added).[2]

The parties stipulated on July 29, 2013, that there was, in fact, a change of circumstances, and the legal standard was satisfied. Vodvarka, 259 Mich App512.[2]

Under all the circumstances, the Michigan Court of Appeals  found “we conclude that the Washtenaw Circuit Court LC No. 13-001155-DC  ultimately erred in finding no change of circumstances sufficient to warrant a revisiting of the original custody order.[2]

If you have additional questions about change in custody please contact Flint Divorce Lawyer Terry R. Bankert 1000 Beach ST. Flint MI 810-235-1970 or terry@attorneybankert.com

Source [1]

STATE OF MICHIGAN COURT OF APPEALS,Before: M.J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.PER CURIAM.,UNPUBLISHED November 20, 2014

v No. 322082 Kent Circuit Court,LC No. 12-005913-DM

Source [2]

STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED November 18, 2014 v No. 320871

Washtenaw Circuit Court LC No. 13-001155-DC

e-Journal Number: 58667

WHAT HAPPENS WHEN YOUR DO NOT GET YOUR PENSION QDRO FILED?

QUESTION : HYPOTHETICAL QUESTION ISSUE DOES NOT INVOLVE A CURRENT OR PREVIOUS CLIENT- Divorced May 2012 in judgement of divorce a 401(k ) was to be divided. The company is requiring a QDRO in order to begin the division of funds.

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By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970


The husband the original holder of the 401k submitted two QDRO’s but each has been returned as they were not within the acceptable guidelines.

The ex-spouse asks Is there a time limitation for the lawyer to submit this QDRO to the company? She would also like to know what is it for the state of Mich. and what are the consequences for not complying with this time limit.

RESPONSE:

THERE ARE A LEAST TWO PROBLEMS .AFTER SIX YEARS THE TRANSFER OF THE 401(K) WILL NOT BE PRESUMED TO BE NON TAXABLE. THE HUSBAND MAY HAVE DIED AND THE 401(K) DISPERSED OTHERWISE.

Retirement benefits are often the largest single asset in a divorce. Michigan law requires every judgment of divorce (or separate maintenance) to determine the rights, including contingent rights, of the parties to (1) any vested pension, annuity, or retirement benefits; (2) any accumulated contributions in any pension, annuity, or retirement system; and (3) any unvested pension, annuity, or retirement benefits. MCL 552.101(4). [2]

Your Pensions earned during a marriage are marital property subject to division. [1] This division of retirement or pension plans can be divided using qualified domestic relations order (QDRO) procedures. [1]

The QDRO rules In Michigan apply to private tax-qualified pension, profit-sharing, and stock bonus plans, including defined benefit pension plans, 401(k) plans, most 403(b) plans and 457 plans, money purchase pension plans, cash balance plans, and employee stock ownership plans (ESOPs). [2]

A Michigan state court domestic relations order (DRO) that is a QDRO within the meaning of IRC 414(p) and 29 USC 1056(d)(3) must be honored by retirement plans that are subject to ERISA. If a DRO is a QDRO, the qualified plan may pay benefits to a former spouse or another alternate payee in accordance with the terms of the order without violating the antialienation rule. It is this exception to the antialienation rule that allows state courts the ability to divide and reallocate retirement benefits in domestic relations actions.[2]

A Domestic Relations DRO may be a judgment, decree, or order made pursuant to a state domestic relations or community property law that relates to the provision of child support, alimony, or the property rights of a spouse, former spouse, child, or other dependent of a plan participant (referred to as an alternate payee). To be a QDRO, the DRO must, among other requirements, specify (1) the name and mailing address of the plan participant and each alternate payee, (2) the amount or percentage of the participant’s benefit to be paid to each alternate payee or how it is to be determined, (3) the number of payments or the period to which the order applies, and (4) the identity of each plan to which the order applies.[2]

The general rule of IRC 1041 is that transfers of property between spouses or former spouses incident to divorce are not taxable. This provision applies not only to transfers at divorce but after as well, provided the transfers are incident to the divorce.[3]

• Six-year presumption. Transfers made pursuant to divorce documents within six years of divorce are presumed incident to divorce and not taxable
• After six years. The reverse presumption—that transfers after six years are not incident to divorce and asre taxable —may be rebutted by presenting evidence to the contrary.

The nontaxable treatment applies to transfers of cash or property, the surrender of marital property rights, and the assumption of liabilities. It does not apply to assignments of income such as an accrued bonus or a right to income from rental property (unless ownership of the rental property itself is also transferred). This is the reason QDROs and EDROs are necessary to transfer pensions tax free.[]3]

Property settlement. Attorneys should also consider the tax consequences of transferring property between divorcing spouses. Generally, no gain or loss is recognized on transfers of property between spouses (or former spouses) incident to divorce—that is, transfers that occur within one year after the marriage is terminated or, if beyond a year, are nonetheless related to the cessation of the marriage.[4]

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[source]

[1]
Information for Clients in a Divorce Case,Contributed by Thomas L. Saxe,
ICLE ,11/11

[2]
Michigan Family Law ch 16 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at
http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2011553510&chapter=16
(last updated 01/18/2013).

[3]
Michigan Family Law Benchbook ch 9 (ICLE 2d ed 2006), at
http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2006553550&chapter=09
(last updated 01/18/2013).

[4]
Michigan Family Law ch 18 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2011553510&chapter=18
(last updated 01/18/2013).

Your questions in Chapter 13 Bankruptcy by Flint Bankrutpcy Attorney Terry Bankert 235-1970

CASE NUMBER

Your bankruptcy case number is very important! This is how the Bankruptcy Court and the Trustee’s office identify your specific case. You will need to put this number on all payments made directly to the P.O. Box in Memphis, TN. It will also be required if you contact the Trustee’s office with questions regarding your case, or if you would like to view your case information online.

CASE ACCESS

If a neighbor, friend, family member, girlfriend, boyfriend, roommate, etc. calls the Trustee’s office and requests information regarding your case, we cannot give them information without your written authorization.

CONTACT BY CREDITORS

All the creditors listed in your Chapter 13 Plan have been sent a notice advising them of the filing of your bankruptcy case. They are subject to an Automatic Stay Order, which requires the halt of all collection activity on pre-bankruptcy debts. In the event that you are contacted, do not discuss your debt, but instead, give them your Chapter 13 case number and the name of your attorney. Get the name of the person contacting you and report it to your attorney.

FIRST PAYMENTS

Your first payment is due within 30 days after your bankruptcy is filed. Failure to make your first payment within 30 days of filing will result in the Trustee’s office filing a motion to dismiss your case. Please discuss all payment instructions with your attorney.

PAYMENT APPLICATION

Payments to the Trustee are used to pay your attorney, Trustee fees, and your creditors. Creditors fall into three basic categories: secured, priority, and unsecured. Generally, the Trustee makes monthly payments to the secured and priority creditors first. After these creditors are paid in full, your payments are then divided among the unsecured creditors. Unsecured creditors may not receive payments for many months or even years.

SHORT PAYCHECK

If you experience a short paycheck/short pay period, you still need to make your full payment. Contact your attorney. They will advise you of your legal options – with your attorney’s help we may be in a position to assist you.

VACATION/SICK LEAVE/LAID OFF

Payments are due even if you are on vacation, laid off or on sick leave. In the event that you can’t make the required payment, please contact the Trustee’s office immediately and make arrangements to pay “something” directly, until you return to work. Please keep records of any partial payments and upon return to work you will need to remit extra payments in addition to regular payments to cure the default. Also, contact your attorney. They will advise you of your legal options.

MISSED PAYMENTS

If payments are missed, it is possible that your expected completion date will change. Please keep records of any missed payments and remit extra payments in addition to regular payments to cure the default. NOTE: You cannot complete your Plan as originally proposed if you do not make all of your payments into the Plan!!

EXTRA MONEY

If you have a little extra money, DO NOT use it to pay creditors directly if they are to be paid by the Trustee. Contact your attorney to discuss your options – this office will continue to pay all of your creditors as court ordered unless otherwise informed in writing by either the creditor or attorney.

VACATION/BONUS CHECKS & TAX REFUNDS

If you receive a bonus check, vacation check or a tax refund and a deduction or the whole check/amount has been remitted to the Trustee’s office to fund your Chapter 13 Plan- READ YOUR PLAN AND PAY ORDER – to find out if the deduction was correct. The Trustee has a duty to collect all funds and apply them to the plan unless there is an exception. All receipts are disbursed regularly. If a payment was received incorrectly, please notify the Trustee’s office immediately.

GETTING A PAYOFF

Only your attorney is to contact the Trustee’s office in writing to request payoff information. THE PAYOFF AMOUNT CHANGES WITH EVERY DISBURSEMENT. Please contact your attorney so that he/she can help you to determine if this is in your best interest.

PAYING OFF EARLY

It may not be in your best interest to pay off your case early. Contact your attorney to discuss your options.

PLAN SUCCESS

The Plan will not work if payments are not received. If you have an interruption in employment, please contact the Trustee’s office. Keeping the Trustee informed can possibly avoid a motion to dismiss. However, creditors may still file motions if your payments are behind. Contact your attorney to discuss your options.

STAYING UPDATED

The Trustee will provide you with information on your Chapter 13 Plan and payments. You will receive an annual report in the mail and you can view your case information at any time online.

TRUSTEE CHECKS

If you are entitled to a check from the Trustee’s office, you may NOT come pick it up in person. We mail all payments.

ADDRESS CHANGES

You must keep your attorney and the Chapter 13 Trustee’s office informed in writing of address changes. This information is not only useful for notices, but also to make sure that any checks payable to you are sent to the correct address.

DEBTS LISTED

Every debt you owe, contingent or disputed (business or individual), must be listed in your plan. All debts must be paid through the Trustee’s office unless there is justification stated in the Plan. If you have debts that you did not list, contact your attorney.

PROOFS OF CLAIM

In order to be paid, creditors must file a proof of claim after receiving notice of your Chapter 13 filing. Unsecured creditors are allowed 90 days from the date of the first meeting of creditors (341 meeting) to file their claims. Governmental agencies have 180 days from the filing date of your petition to file a claim. If they fail to do so, they most likely will not receive payments into the plan.

REPORT ON TIMELY FILED CLAIMS

Several months after the filing of your case, you will receive a document called the Report on Timely Filed Claims. This document lists all of the creditors in your plan and discloses whether or not a claim has been filed. Carefully check the listing for accuracy. CONTACT YOUR ATTORNEY IF ANY OF THE CREDITORS OR CLAIM AMOUNTS APPEAR INACCURATE.

SHUT OFF NOTICE

If you have received a shut off notice, explore assistance from your church, charitable agencies, and contact your attorney. The Trustee cannot respond unless your attorney takes legal steps.

HOME/CAR REPAIRS NEEDED

If you need repairs on your vehicle or home, contact your attorney and they will discuss your options.

BUYING

All of your disposable income is considered part of your bankruptcy estate and must be committed to the Plan for the first 36 months. You cannot buy any major purchase without first obtaining the Trustee’s permission. This includes refinancing. Your attorney must submit the appropriate paperwork asking the Trustee to consider your request.

SELLING

All of your property is considered part of your bankruptcy estate. You cannot sell any major part of the estate, including but not limited to: your home, car, land, fine art, or jewelry without the permission of the Court. Your attorney must submit the appropriate paperwork asking the Court to consider your request.

CREDIT CARDS/LOANS

Any use of credit or credit cards, or entering into a loan agreement of any kind is prohibited by the Court. This applies to any family member that you support, even though they are not a party to your Chapter 13.
In emergency circumstances or if a unique need for credit use arises, contact your attorney to submit a Motion to Incur Debt which the Trustee will take into consideration. The Trustee will decide if the request has merit and is affordable. Pursuing credit without the Trustee’s permission may jeopardize your Chapter 13 case and could lead to dismissal.

TAX ESCROW

If your Chapter 13 Plan includes a tax escrow to pay future property taxes while you are in bankruptcy, you will need to mail all tax bills to the Trustee’s office for payment at 400 N. Saginaw St., Suite 331, Flint, MI 48502. Be sure to include your name and case number on the bill. DO NOT mail them to your attorney’s office first.

LEGAL ADVICE

The Trustee and his staff cannot give legal advice.

ATTORNEY

Your attorney is your best source of information. If you have questions, contact your attorney.

UNHAPPY WITH ATTORNEY

If you feel that your attorney is not providing adequate service and/or they are totally inaccessible, you always have the option of hiring a different attorney.

CONVERSION

A case may be converted to a Chapter 7 voluntarily.A letter will be sent from our office to the employer and/or you (debtor) with directions to extinguish the payroll deduction, ACH or to direct you to stop personally paying. A close code has been entered in your case. This code directs our system to reject any further payments received after the conversion and to refund any payments received back to the debtor. Bear in mind it sometimes takes approximately 4 to 6 weeks for some employers to extinguish a deduction.

Any funds received prior to conversion are disbursed to your creditors pursuant to your confirmed plan.

DISMISSAL

A case may be dismissed either voluntarily, meaning that you decide to stop your participation in the plan, or involuntarily, meaning the Court has terminated your plan usually because of failure to maintain timely payments. If your case was dismissed, all creditor stays will be lifted and creditors may resume recovery procedures on accounts and may add any interest and penalties that were waived under your Chapter 13 Plan.

A letter will be sent from our office to the employer and/or you (debtor) with directions to extinguish the payroll deduction, ACH or to direct you to stop personally paying. A close code has been entered in your case. This code directs our system to reject any further payments received after the dismissal and to refund any payments received back to the debtor. Bear in mind it sometimes takes approximately 4 to 6 weeks for some employers to extinguish a deduction.
Any funds received prior to the dismissal are disbursed to your creditors pursuant to your confirmed plan.

COMPLETION

Congratulations, you have successfully completed your Chapter 13 Plan. Your case has been audited and an Order is being entered with the U.S. Bankruptcy Court to extinguish the payroll deduction, ACH or direct you to stop personally paying. This Order is served to you (debtor), your attorney and your employer. A close code has been entered in your case. This code directs our system to reject any further payments received after the completion code has been entered and refund the payments back to you as the payments are received. It takes approximately 4 to 6 weeks for some employers to extinguish a deduction.

The final disbursement will take place on the 1st of the month following completion. After the final disbursement has taken place, a Notice of Completion is sent to you (debtor), your attorney and all your creditors. It instructs all parties that they have 30 days to respond. If they disagree to you receiving your Discharge, they are to file an objection with the U.S. Bankruptcy Court. After the 30 days expire, the U.S. Bankruptcy Court will issue your Discharge. Bear in mind that although you are financially completed you are still legally protected by the bankruptcy until you receive your Discharge. You may not buy or sell any items until you receive your Discharge. The time between completion and Discharge is approximately 2 to 3 months.

If this office was paying your mortgage payment, you will receive a letter from us directing you to start making your mortgage payment. We will indicate what month you are to start and the amount you are to start paying. You will need to mail your payments directly to the mortgage creditor according to the letter you receive. The mortgage creditor will not set up automatic payment until after you receive your Discharge.

NON-DISCHARGEABLE DEBT

Unique debts contained in your plan that cannot be discharged upon completion include student loans, child support obligations, and fines created as a result of your causing injury while under the influence of drugs or alcohol. You will be responsible for any balances due on debts of these types after the completion of your plan.

DEBTS NOT PAID IN FULL

If your unsecured creditors did not receive the entire amount originally owed to them, all remaining balances will be “discharged” or legally forgiven upon the completion of your plan. Creditors cannot resume collection activity on these debts.

CREDIT REPORT

When a creditor has been paid in full through the plan, the creditor may upon your request, send the “paid in full” papers to you. Court records will officially show your plan was paid in full according to its terms and will overrule any claim the creditor might make for additional money from you. Should you receive a request for additional money after your plan completes, review the matter with your attorney.
Your Chapter 13 bankruptcy will be reflected on your credit report for ten years after the petition was filed with the Court.

FINAL REPORT

A final report and account must be submitted to the Court for auditing before your case can be closed. Auditing usually takes four to six weeks. You will receive a copy itemizing all money transactions, receipts, claims filed, and amounts of disbursements. You will receive an Order of Discharge from the Bankruptcy Clerk and a copy of your Final Report. Your creditors will receive notice that the final report was filed. These are very important documents that you should keep in a safe place indefinitely.