Attorney Daniel Gigiano reviews Ohio bankruptcy and Ohio foreclosure law. In this review of the law, Attorney Daniel Gigiano looks at historical, as well as, recent developments and how these apply to real situations.
Homeowners Get Greater Protection In Bankruptcy.
In Ohio, you can now keep even more of your assets when you
file for bankruptcy. Starting April 1,
2013, each person can keep up to $132,900 of equity in their home, which adds
up to $265,800 for a married couple filing a joint bankruptcy. This is over
five times more than people were allowed to keep before. This exemption was increased to $136,925 per
person in 2016.
However, this law had many opponents who argued it only
applied to debt that incurred after March of 2013, which meant the old
protection of $21,625 per person would apply.
First, a judge in Toledo stated that we should use the exemption of
$132,900. Later, the judge of the Canton
bankruptcy court also ruled that this exemption should apply without any
limitations. Currently, it appears that
this law is here to stay. Even if the
opponents had won the day at the time, eventually their argument would have
become moot, as very few bankruptcies would consist of debt entirely incurred
prior to 2013.
Ohio Bankruptcy
Exemptions
People considering bankruptcy are usually concerned with
whether they can still keep their houses, cars, furniture, clothing and the
tools they use to make a living. The
good news is that Ohio has generous exemptions protecting those and other
assets. Exemptions work by creating a
value that one gets to keep before a creditor or bankruptcy trustee could take
anything. This is why a bank account
garnishment does not include the first $475 in the account; that is the cash on
hand exemption that the owner of the account gets to keep. Anything in the account above that amount and
not subject to any other exemption can be garnished and sent to the court for
disbursement to the creditor.
Bankruptcy works the same way, except there is no
garnishment. The bankruptcy trustee determines if there are non-exempt assets
and asks the bankruptcy filer to turn over those assets. If the bankruptcy filer refuses, the trustee
files a motion with the court for turnover of the assets. The bankruptcy judge makes a decision as
whether the trustee could take the items from the bankruptcy filer.
The most common Ohio bankruptcy exemptions for 2016 are as
follows:
Homestead ($136,925); Vehicle ($3,775); Cash on Hand ($475); Household Goods and Clothing ( $12,625); Jewelry ($1,600); Tools of trade ($2,400); IRA/Pension/401(k) (All
of it (100%)); Burial Plot (All
of it (100%)); Medically necessary health aids (All of it (100%)); Wildcard/any other property ($1,250)
Bankruptcy Is
Constitutional
Bankruptcy is specifically mentioned in the United States
Constitution. The United States
Constitution states: “[The Congress
shall have Power] to establish . . . uniform laws on the subject of
Bankruptcies throughout the United States.”
This means bankruptcy is constitutional.
The Framers wanted to ensure that there would be a uniform
system of bankruptcy so that one state would not put someone in debtor’s prison
for a debt that was discharged in another state. James Madison, in Federalist Paper No. 42,
wrote about how important uniform bankruptcy laws would be for the regulation
of commerce in the United States. In
this article, the power to pass and regulate bankruptcy was mentioned in the
same paragraph as the power to issue currency and regulate the use of foreign
currency.
The United States Congress passed the first bankruptcy law
in 1800. However, that law only lasted
until 1803. The next bankruptcy law was
not passed until 1841, which also had a short life, lasting only until
1843. After the civil war, Congress
passed a bankruptcy act with a little more longevity, lasting from 1867 to
1878. Congress finally passed a permanent
bankruptcy law in 1898, which remained in place for eighty years. In 1978, the current structure of bankruptcy
laws were enacted. In 1984, 1986, 1994,
and 2005, the bankruptcy act was revised, but the basic structure remained
intact. The 2005 act added the means
test and limits on restructuring vehicle loans.
Debt Collectors
The Fair Debt Collection Practices Act (FDCPA) prevents debt
collectors from harassing you and calling you outside normal business
hours. While the law gives you some
rights, it does not give you the right to avoid your debt. The FDCPA covers only personal and household
debts, but not business debts. Typical
personal debts are vehicle loans and credit card debts.
Debt collectors, otherwise known as bill collectors or
collection agencies, cannot harass or abuse you, nor can they engage in
deceptive or unfair practices in their attempt to collect the debt. If a bill collector calls you before 8 a.m.
or after 9 p.m., you can write a letter telling the bill collector to stop. It is a good idea to send the letter by certified
mail and to keep a copy of the letter.
Once the debt collector receives your letter, the debt collector must
stop calling you outside the hours of 8 a.m. and 9 p.m., but can continue to
call you between those hours.
A debt collector can call you at work. If your employer does not allow such calls,
you can tell the debt collector that you are not allowed to receive debt
collection calls at work. While you can
do so by phone, it is a good idea to follow up by certified letter. Upon receiving this instruction, the debt
collector must stop calling you at work.
Can a debt collector lie?
No. They cannot pretend to be
someone else. They cannot threaten to
put you in jail. Such tactics are
violations of the FDCPA. Fighting
against a violation of the FDCPA starts with your actions. You can contact the Federal Trade Commission
or the Ohio Attorney General’s Office.
You may also hire an attorney to handle the debt collector harassment
case. If you win, you have the right to
make the debt collector pay your attorney fees.
Here is some useful contact information for organizations
that can help you when you are victim of a violation of the FDCPA:
1-877-382-4257
1-614-466-4320
Can I Go To Jail For Defaulting On A Payday Loan?
Some payday lenders threaten to call the police if the check
bounces, prompting one to ask, “can I go to jail for defaulting on a payday
loan?”
A payday loan is usually a small loan with a postdated check
as collateral for the loan. The due date
is usually the date of the person’s next paycheck. Payday loans carry a high interest rate,
often more than 300%. If one borrows $900
on March 1 and has to pay $990 back on March 15, it may not seem like
much. However, ten percent over two
weeks is equivalent to 260% over a year.
If someone repeatedly took out this same loan for a full year, that
person would pay 260% interest on $900, which amounts to paying the $900 back,
plus $2,340 in interest.
What happens when the lender tries to cash the postdated
check? Because the check was postdated,
the lender would not expect you to have funds to cover the check on the date
you gave them the check. Having
insufficient funds on the due date does not amount to a criminal offense unless
you gave the lender a check knowing you would have no funds to cover it on the
due date. Because you would be receiving
your paycheck at that time, you would certainly expect to have sufficient funds
to cover the check on the due date.
Accordingly, any threat by the lender to call the police to have you
arrested for passing a bad check is likely to be an empty threat.
Can bankruptcy discharge this debt? Of course it can. Bankruptcy cannot eliminate one’s criminal
liability if the funds were stolen or procured by fraud. In such instances, one may not even receive a
discharge for such debts. However,
payday loans, as discussed above, rarely involve any potential criminal
liability, which means that the loan can usually be easily discharged in
bankruptcy.
What is the Foreclosure Process?
What is the foreclosure process? Before a foreclosure case is filed, the
mortgage company sends a foreclosure referral package to their attorney. A title examination is done to identify all
individuals and entities that have an interest in the real estate, which can
even include spouse’s dower rights. Once
that is done, a complaint is filed, with instructions to serve the individuals
and entities with an interest in the real estate. Service usually occurs by certified mail or
by a sheriff’s deputy. Once the
homeowner receives the complaint, he or she has twenty-eight days to formally
respond to the complaint. Once the
complaint is received, it is important to consult with an attorney to determine
if there are any legal defenses that need to raised, as well as any motions
that need to be filed prior to answering the complaint. Some claims must be raised before filing a
formal answer.
A foreclosure can take four to six months to the sale and
confirmation. Failure to defend the
foreclosure complaint results in the lender’s attorney filing a motion to
default judgment, speeding up the process.
Defending the foreclosure usually result in the court referring the case
to a number of status or mediation hearings, where forbearance and modification
agreement options are considered. Such
programs include the “Home Affordable Modification Program” (HAMP).
A foreclosure judgment gives the lender the ability to sell
the real estate and to collect on the money judgment against the
homeowner. Once a sale is approved, the
sheriff appraises the real estate, schedules a sale, and advertises the
sale. The sheriff’s sale is a public
auction where any adult can submit a bid.
The property must sell for at least two-thirds of the appraised
value. The sheriff reports the results
of the sale to the court. The lender then
requests the court to confirm the sale, distribute the proceeds and order a
sheriff’s deed. If the homeowner has not
yet moved out, the buyer can start the eviction process. Most of the time, the lender buys the real
estate. Any mortgage balance not covered
by the sale is known as a deficiency balance.
Do You Get What You Pay For When You Hire A
Cheap Bankruptcy Attorney?
Do you get what you pay for when you hire a cheap bankruptcy
attorney? My office receives a lot of
phone calls asking what I charge for a chapter seven bankruptcy. Some of these prospective clients are looking
for a cheap bankruptcy attorney. Some
are just trying to get an idea of the range of bankruptcy attorney fees. We happily give them our fee and tell them
what we do for that fee. However, it is
really difficult to really show them all that we do for that fee. While we have a competitive fee, we are not
the lowest fee. We do not want to be the
lowest fee because of the loss of professionalism and service that would likely
occur if we were to charge such a low fee.
Attorney Daniel Gigiano provides professional bankruptcy
service. The client meets with Attorney
Daniel Gigiano at the initial consultation.
Later, Attorney Daniel Gigiano reviews the client’s completed
questionnaire and documents in a personal appointment with the client. This eliminates phone tag and delays. The Medina County bankruptcy attorney shows
the clients the documents and asks questions.
Because the clients and the attorney are reviewing the documents
together, the clients do not have to guess what the attorney is talking
about. They are looking at the documents
and are actively engaged in the process.
This process leads to a better bankruptcy petition, with thorough and
accurate information. Even after this,
the bankruptcy attorney reviews the petition with the clients. This is not simply a “sign here” meeting. This bankruptcy attorney actually reviews the
petition with the clients, going through the details. This sometimes results in corrections, but
better in the office than to be caught flat-footed sitting on your heels at the
hearing. This process leads to a
smoother bankruptcy hearing. Attorney
Daniel Gigiano, at the hearing in Akron or Canton, will review the information
one last time with the clients right before the hearing. After the hearing, clients often ask if “that
was it”? The clients are often amazed at
how easy the questions were. The
questions are not easy, but they can be if you have been thoroughly prepped for
the hearing.
Many people may say that they do not need such thorough
services or would rather have their bankruptcy attorney miss certain unwanted
pieces of information. Attorney Daniel
Gigiano has attended many hearings in Canton, where the hearings are
public. While waiting for his client’s
hearing, Attorney Daniel Gigiano will take a few minutes to listen to some of
the other hearings. A good attorney
never stops learning. Those hearings are
usually just conducted by the local chapter 7 trustee. If the petition is red-flagged, a
representative from the U.S. trustee comes to ask questions. In one hearing, this bankruptcy attorney
heard the U.S. trustee, who made a special trip to question this debtor, ask
about “house expenses” listed on her bankruptcy petition. Attorney Daniel Gigiano was surprised to
this, too, as there is no line item for “house expenses,” nor is that a clear
depiction of expenses. Then, the U.S.
trustee did take the trouble to send an additional representative to thoroughly
vet this person with questions. The
“house expenses” item turned out to be a variety of expenses, many of which
were already listed elsewhere in the petition.
Now, this attorney asked himself, didn’t the bankruptcy attorney read
this bankruptcy petition before filing it?
This bankruptcy attorney was certain that this debtor did not leave that
hearing asking if “that was it?”. This
particular debtor may have also faced a motion to dismiss her bankruptcy due to
the misleading and untruthful nature of her petition. Perhaps, that person had one of those cheap
bankruptcy attorneys and if that person was run through a “mill” where they had
minimal interaction with an actual bankruptcy lawyer. Such a process can miss things, but the U.S.
trustee reads those bankruptcy petitions and looks for missing things.
This Barberton bankruptcy attorney also has attended
numerous bankruptcy seminars, including the annual seminar in Hartville,
Ohio. The serious bankruptcy attorneys
attend this seminar regularly, as it not only provides updates of the changes
in the bankruptcy laws, but also provides direct information from the people
who will decide the average person’s fate.
The bankruptcy judges, trustees and creditor’s attorneys are at this seminar,
presenting information and answering questions.
Sometimes, you cannot get this information from a book or online
resources. You have to be there,
listening, especially when one of the judges offers their take on a topic. The U.S. Trustee’s office often presents at
this seminar. Sometimes, they lecture on
the federal criminal sanctions for lying on your bankruptcy petition. Real people go to real federal penitentiaries
for real misstatements on real bankruptcy petitions. What is quite unfortunate is that, many of
these misstatements would have provided little benefit in the bankruptcy
petition. How much better it is to have
the truth presented in the most favorable light on solid legal grounds, leading
to a “that was it?” hearing. Are cheap and
easy bankruptcy petitions worth the possibility of dismissal of the bankruptcy
petition or possible federal criminal charges?
Is a cheap bankruptcy worth a denial of discharge?
Attorney Daniel Gigiano also conducts online searches of
local court records and auditor’s records (fiscal office records for the Summit
county clients). A credit report is
ordered, saving the client substantial amounts of work in searching for
long-lost creditors. A records search is
ordered, thoroughly checking the electronic records of vehicle and real estate
ownership. Some trustees conduct this
search. Shouldn’t you have access to the
same information? Attorney Daniel
Gigiano orders your credit counseling class and financial management classes. Many attorneys will send their
clients to
find their own class. After years of
being harassed by phone calls and trying to sort out truth from lies in these
calls, do you really want to do more of the same? Once you file your bankruptcy petition,
numerous financial management providers will send you material asking you to
take their course, leaving you to guess which ones are legitimate. Do you really want to do this work? Ordering the courses streamlines this process
and saves you this hassle.
About The Author – Daniel
Gigiano, Esq.
Attorney Daniel Gigiano is located in downtown Wadsworth,
Medina County, Ohio. Daniel Gigiano,
Esq. regularly represents individuals in need of bankruptcy and foreclosure
defense services in the Akron bankruptcy court, Canton bankruptcy court, and in
the state courts located in Medina County, Wayne County and Summit County.
Ohio Criminal Sentencing Laws
In that decision, the defendant pled guilty to a count of
felony receiving stolen property and a count of misdemeanor receiving stolen
property. The judge sentenced him to 11
months in prison for the felony and 6 months in jail for the misdemeanor, each
to run consecutively for a total of 17 months.
Polus was charged with two more felony counts of receiving stolen
property. He pled to those and received
two more consecutive sentences of 11 months each for a total of 22 months to
begin after he finished serving the 17 months from the previous
conviction. Polus appealed. The Ohio Supreme Court decided that Ohio law generally required
misdemeanor sentences to run concurrent with felony sentences. 
Ohio sentencing hearings are where the judge decides the
sentence for one convicted of a crime. The criminal defense attorney focuses on the
positive things his client has done while showing the bright side of negative
things. Positive things include: gainful
employment; past history of volunteering and/or helping people; repaying the
victim; steps take to address problems (drug treatment and alcohol treatment);
and being a responsible parent to minor children. The bright side of negative things include
showing that addressing a defendant’s drug addiction would benefit society more
than incarcerating the individual. In
this instance, the negative issue taking the form of a drug addiction is
presented as a problem to be solved, shifting the focus away from the State of
Ohio’s desire to lock up the offender. 
Once the charges are dismissed, the record is not sealed off
from the public. The arrest record
likely still exists. In order to wipe
the docket and arrest from the record, one must file to have those records
sealed and expunged. The waiting period
for expunging convictions is one year for a misdemeanor or three years for a
felony. The Ohio Supreme Court decided, in
State
v. Niesen-Pennycuff, that the court may, but is not required to, impose a
waiting period for expunging a dismissal.
Because the charges are dismissed at the conclusion of an intervention
in lieu of conviction program, there is no conviction and it is considered a
dismissal. Since the waiting periods
only apply to convictions, expungement of the docket and arrest is available
immediately. 
Credit for jail time is supported by the Equal Protection
Clause in the Fourteenth Amendment to the United States Constitution, the Equal
Protection Clause of Article 1, Section 2 of the Ohio Constitution, R.C. 2967.191,
R.C. 2929.19, and R.C. 2945.38. The Ohio
Supreme Court has ruled on jail time credit in a number of decisions: State
v. Fugate, 117 Ohio St.3d 261; State
ex rel. Rankin v. Mohr, 130 Ohio St.3d 400. 
Some courts and prosecutors will allow agreed
sentences. Even in these cases, the
court still reserves the right to change its mind, but rarely does so. The focus in this situation is what will
convince a prosecutor to agree to a more advantageous sentence? There are some
situations where the prosecutor may not agree to a lighter sentence. These include where a minimum statutory
sentence is required, a victim opposes a light sentence, or the
About The Author –
Daniel Gigiano, Esq.
