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Lawyers expect rush of consumer bankruptcy filings before new law is enacted
Thursday, April 14, 2005

Local bankruptcy attorneys are bracing for an onslaught of business from debt-weary consumers rushing to file bankruptcy before federal legislation making it more expensive and burdensome to erase debts takes effect.

The most sweeping changes to bankruptcy law in decades could be approved by the House and be headed to President Bush, who has said he was eager to sign the bill, as early as today. Most of the provisions would take effect six months after the president's signature.

"I think it will be a record summer" for bankruptcy filings, said Paul McElrath, head of the bankruptcy division at Moody McElrath & Johnston, Downtown.

McElrath said he was advising clients considering bankruptcy not to delay for too long. "Now is better than later, simply because the process is going to become more cumbersome and costly," he said.

Since the Senate approved the legislation a month ago, the Downtown practice of Steidl & Steinberg has been fielding about 40 percent more calls, or more than 30 a day, from financially desperate people weighing their options, lawyer Ken Steinberg said.

The veteran bankruptcy attorney is telling callers not to panic. "People have plenty of time to consider what to do," Steinberg said, noting that the earliest the law could kick in would be in October.

"Most attorneys can file a bankruptcy for a client in a pinch in a day or two." Steinberg said. "People will have time to talk to somebody. They shouldn't panic."

Nevertheless, he is recommending that clients strongly consider filing before the rules change.

"Most people eligible to file now will be eligible after the changes, but they will have to run through more hoops to do it," Steinberg said.

Those hoops include a requirement that consumers pay for credit counseling within six months prior to filing for bankruptcy and complete a financial management course before a judge could wipe out any debts.

The law also will raise certain filing fees, require more documentation and trips to court, and is projected to boost attorney fees because of a provision that makes lawyers more liable for their clients mistakes or cheating.

"Attorneys will have to verify the accuracy of petitions or be subject to penalties," McElrath said. "If I have to spend more time, it will be more expensive."

Attorneys also may want to recoup the cost of increased malpractice insurance, he said.

One of the biggest hurdles in the new law will be for debtors who earn more than the state's median income (adjusted for the number of people in the household and inflation). In Pennsylvania, the median household income in 2003 was $41,478, according to the Census Bureau.

Those who exceed the median will be required to undergo a "means test" to determine if they are eligible for the most popular and lenient type of bankruptcy, a Chapter 7, which essentially allows filers to walk away from their debts.

Those who are determined to have sufficient means to repay a certain portion of their bills will be required to file under Chapter 13, a more expensive and time-consuming process that requires debtors to stick to a repayment plan.

Under current law, judges have the discretion to determine which chapter is most suitable.

The American Bankruptcy Institute estimates the new rules will divert about 3.5 percent of all filers from Chapter 7 into Chapter 13 repayment plans.

Supporters of the plan say the goal is to weed out abuse by people who use bankruptcy as an easy way out after carelessly running up big bills.

Critics say the means test is too rigid and arbitrary and will do little to actually get more money into creditors' hands. They note that two-thirds of Chapter 13 filers already fail to stick to their repayment plans.

"It's wishful thinking that the law will produce greater returns to creditors," said Samuel Gerdano, executive director at the ABI, a nonpartisan group that tracks bankruptcy statistics.

Gerdano, who referred to the legislation as "500 pages of creditor-friendly provisions," said that if it becomes law as expected, bankruptcy filings would immediately jump nationwide by perhaps 10 percent to 15 percent as consumers race to beat the clock on the new rules.

Several times over the last eight years, similar bankruptcy measures have been close to final passage. Each time, as publicity heated up, bankruptcy filings spiked, he said.

Jeff Morris, attorney and resident scholar at the ABI, said the new law would make bankruptcy more expensive and more of a hassle for the average filer. But he said it was too early to say by how much.

"The bill has a lot of things in it that are relatively unclear," he said. "It will take awhile to determine what it means and may take some court decisions" to sort it all out.

First published on April 14, 2005 at 12:00 am
Patricia Sabatini can be reached at psabatini@post-gazette.com or 412-263-3066.