by Steven A. Leahy

Deficiency judgments in Illinois are created when a homeowner loses their home to foreclosure, and the forced sale does not generate enough money to payoff the outstanding mortgage balance. Illinois is a recourse state. That means mortgage companies have recourse; they can recover the deficiency from the homeowner, even after the house is lost to foreclosure sale.

Illinois is also a judicial foreclosure state. That means mortgage companies must go to court, receive a judgment, and hold an auction in order to foreclose on a homeowner’s property. Generally, judicial foreclosures give the homeowner much more time before the home is lost. The two concepts (recourse and judicial) are complementary. Some states do not require court action to foreclose on a home. But, in those states, generally mortgage companies can’t go after the homeowner should a sale result in a deficiency (non-recourse states).

In non-recourse states, homeowners often implement a plan called “strategic default.” That’s when homeowner’s stop making mortgage payments – for whatever reason (e.g. the mortgage is far greater than the value of the home, the homeowner has been transferred to another part of the country, etc.) – and the mortgage company takes the property in foreclosure (usually rather quickly). The homeowner leaves the property free and clear of any financial obligation to the mortgage company.

Homeowners in Illinois must be careful with a strategic default, because a deficiency judgment may arise and the financial obligation to the mortgage company may survive the foreclosure. There are options to avoid a deficiency in Illinois – a judicial, non-recourse state.

My office has helped clients avoid deficiency judgments in Illinois in a number of ways, including:

1. Deed-in-Lieu of Foreclosure;
2. Short sale of the property;
3. Consent foreclosure;
4. Reduced redemption period;
5. In Rem Judgment;
6. Deficiency Waiver;
7. Bankruptcy.

In the last several months I have helped a number of homeowner’s, in similar situations, avoid a deficiency judgment in Illinois. The homeowners have a good income, but their mortgage is much greater than the value of the property. To add to the problem, family members have not paid their fair share of the mortgages, creating a tremendous hardship. The homeowners have been battling this situation for some time; but recent changes in circumstances have made it nearly impossible to continue. Each has found themselves falling behind on the mortgage payments.

In one case, the homeowner is also faced with a mountain of additional debt. Trying to stay current with the mortgage payments has meant neglecting other debt payments, and creating new obligations. Eventually, the other creditors start taking legal action for payment. In this case, bankruptcy is the best option. The homeowner is protected from the deficiency and is granted a discharge of the other debts. While the foreclosure is pending, the homeowner will have a little time to get back on track, save a little money and be in a position to move to a new home.

The second case is in the earliest stages of foreclosure. The homeowner doesn’t really have other debt, but a large deficiency looms, should the home go to a foreclosure sale. For a number of reasons, a consent foreclosure is the best option in this case. By statute (735 ILCS 5/15-1402) a consent foreclosure will protect the homeowner from the deficiency. A consent foreclosure will mean surrendering the property fairly quickly; but the peace of mind and financial certainty far outweigh the inconvenience.

Every case is as different as each client. The best way to resolve each situation begins with discussing the goals of each client and analyzing their financial situation in detail. Only then can the correct remedy be determined. Often the best remedy isn’t available, because the mortgage company will not agree. So, you need a plan B, C and D, just in case.

If you are facing foreclosure, and you need some direction, make sure your attorney understands all the options available. A comprehensive investigation should be completed before you decide which option is best for you. Before you do anything, you should give me a call. We can discuss your options in fighting a foreclosure deficiency in Illinois. – Opem Tax Resolutions & The Law Office of Steven A. Leahy, PC (312) 664-6649. Call NOW to set up your FREE Consultation.

IRS Tax Penalties: IRS Help Chicago

There are three major IRS tax penalties, and they can add up fast. Learn what they are and how to handle them.

Penalty #1: Penalty for failure to pay.

If you don’t pay the IRS on time they will charge you a late penalty of .5% per month that the taxes are late. This tax penalty cannot amount to more than 25% of the taxes owed and is only assessed on the amount still owed.

Penalty #2: Penalty for failure to file.

If you don’t file your tax return on time, the IRS is going to attach a penalty to your tax bill of 5% per month that the taxes are filed late. This can be waived if you prove that there was a “reasonable cause” for late filing.

Penalty #3: Interest

Interest is added to any taxes that are not paid at the time they are owed. The IRS can change the interest rate on taxes owed.

The best way to avoid penalties from the IRS is to take care of your taxes owed. If you do owe taxes, then be sure to file your returns to minimize penalties.

If you owe taxes and can’t pay them right away, then the best thing to do is work with the IRS to get them paid off. There are many programs available to help you do this, but they can be complicated and it’s not always easy to determine which one is right for you.

Tax Penalties? Don’t wait. Call Opem Tax Resolution – The Law Office of Steven A. Leahy, PC (312) 664-6649. Call Now to schedule your FREE 1 hour Consultation!

by Steven A. Leahy

Are taxes dischargable in bankruptcy? The answer is – It depends. Some taxes are never dischargable. For example Trust Fund Recovery Penalties (TFRP) – that is, taxes imputed to the responsible party for non-payment of payroll taxes – are never dischargable in bankruptcy.

However, some income taxes are dischargable in bankruptcy. There are three important dates to remember. First, the tax must be due more than 3 years ago. 2010 tax returns were due April 15, 2011 – unless an extension was filed. An extension would move the due date to October 15, 2011. Second, the tax return must be filed more than 2 years ago. And, finally, the taxes must have been accessed more than 240 days ago. If all three of these date requirements are met – then the taxes may be dischargable. However, calculating the dates can be tricky.

Some events, such as a prior bankruptcy, Offer in Compromise application or a Collection Due process appeal, stop the clock on the time periods discussed here. So, merely looking back and counting the days may not give an accurate determination of dischargability.

Another obstacle may be the taxpayer’s failure to file tax returns at all. If a taxpayer fails to file a tax return, the IRS may file the return for them. When the IRS files a return for a taxpayer, the return is referred to as a Substitute for Return (SFR). A SFR is NOT considered a return for the purposes of determining discharagablity in bankruptcy.

Recently, I helped a taxpayer with his IRS problem, after he thought the problem was resolved through a Chapter 13 Bankruptcy. His confirmed plan called to pay his IRS debt at 10% of the balance due. He paid his Trustee payments for five (5) years, and received his discharge upon completion. He was shocked to find that he still owed the IRS more than $60,000.00, and the IRS was aggressive in collecting that amount from him after bankruptcy. This taxpayer’s taxes were not discharged because several of his prior returns were SFRs.

If you owe the IRS money, and you are contemplating discharging irs debts in bankruptcy, make sure your attorney understands both tax law and bankruptcy law. A comprehensive investigation should be completed before you decide what remedy is best for you. Often, bankruptcy can be the best remedy, even if some or all the tax is not dischargable. But you should have all the information to make an informed decision. If an IRS debt will remain after bankruptcy, you should know that going in.

Before you file bankruptcy you should give me a call. We can discuss discharging irs debts in bankruptcy, or some other option. – Opem Tax Resolutions & The Law Office of Steven A. Leahy, PC (312) 664-6649. Call NOW to set up your FREE Consultation.

by Steven A. Leahy

I meet with good people every day. Many of these people are facing financial troubles for the first time in their lives; financial troubles they never thought could happen to them. I hear the same statement over and over: “I’m not like your normal client. I have always paid my bills and taxes on time, always been honest with my creditors. I never imagined I would be sitting here speaking with an attorney.”

What they don’t know is: they are my “normal client.” I don’t help people cheat the system. I help honest people with financial recovery. Sometimes, the recovery involves bankruptcy. My clients are often reluctant to even discuss bankruptcy as an option. After all, these are their obligations and they don’t want to cheat anyone.

I have a bust of Abraham Lincoln in my office – this is where I point to the bust and describe “Honest Abe” and financial recovery. Honest Abe recognized that there are two kinds of financial obligations – legal obligations and moral obligations. Bankruptcy can protect you from some legal obligations. Bankruptcy cannot protect you from your moral obligations.

In 1832, with partner William F. Berry, Lincoln purchased a general store in New Salem, Illinois. The store faced stiff competition, and closed in 1833, leaving a debt Lincoln and his partner were unable to pay. Soon after the shop closed, Mr. Berry passed away. Lincoln declared bankruptcy to obtain protection from his legal obligations – and surrendered some possessions as a result. His possessions were not enough to pay off the debt.

Lincoln, however, felt a moral obligation to pay off his debt, and the debt of his former partner, even though he wasn’t legally obligated to do so. It took Lincoln some years to pay off the debt. But, by all accounts, the debts were paid.

Lincoln’s experience translates well to the lives of my honest clients. They are facing legal consequences from debt: IRS levies, court actions, judgment garnishments, etc. Should they leave themselves and their families unprotected, the legal consequences will mount and cause additional hardships, making it impossible to recover. Instead, bankruptcy can offer legal protection and foster financial recovery. Once financial recovery takes hold, my clients are in a better position to meet their moral obligations.

I don’t think every debt carries an equal moral obligation for repayment. For example, if I have a pay-day loan at 500% interest, and I have already paid the principle many times over, I may not feel a moral obligation to make additional payments after receiving legal protection. But I may.

If, however, I have a debt to an organization that helped me when I really needed it, and that debt has since been discharged in bankruptcy, I may feel a moral obligation to repay that debt, even though I don’t have a legal obligation to do so. Bankruptcy does not prevent me from paying a discharged debt – it simply protects me from creditors’ legal actions to collect.

To quote the United States Supreme Court “a central purpose of the [Bankruptcy] Code is to provide a procedure by which [an honest but unfortunate person] can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’”

Good moral character is defined by correct actions, even when not legally compelled to act at all. Abraham Lincoln’s actions after bankruptcy are reason enough for his nick name “Honest Abe.”

If you need legal protection from your financial obligations, give me a call. We can discuss if bankruptcy, or some other option, is right for you – Opem Tax Resolutions & The Law Office of Steven A. Leahy, PC (312) 664-6649. Call NOW to set up your FREE Consultation.

1. Ethan Trex, Seven famous people who survived bankruptcy, CNN.com/living (November 19, 2008, 12:58 p.m.) http://www.cnn.com/2008/LIVING/personal/11/19/mf.successful.people.survived.bankruptcy/

2. The Glurge of Springfield, Snopes.com (February 11, 2009), http://www.snopes.com/glurge/lincoln.asp

3. Grogan v. Garner, 498 U.S. 279, 286 (U.S. 1991)

Chicago – Discharge Taxes in Bankruptcy

What You Need to Know about Tax Bankruptcy in Chicago

Since bankruptcy can have a long-term negative impact on your financial life, it might be a big mistake to seek bankruptcy protection as a tax-relief option…if in the end it doesn’t relieve the tax pressure that you were seeking
to relieve in the first place.

In order to discharge taxes in bankruptcy it must meet these criteria:

1. The tax debt must be related to a return that was due at least 3 years prior to the taxpayer declaring bankruptcy

2. The tax debt must be related to a tax return that was filed at least 2 years before the taxpayer files bankruptcy

I know that the above 2 conditions are a bit confusing. Let’s see if I can clear it up a bit:

For example – if you file bankruptcy in 2007, the tax debt that you are trying to eliminate should be from a return
due in 2004 or before (meeting the requirement of #1).

If you wish to eliminate the debt due in 2004, you must have filed the return at least by 2005, which would meet the requirement in #2.

In other words, if you filed the taxes due in 2004 returns late (say in 2006), you would not be able to eliminate the debt in bankruptcy in 2007, since 2 years had not yet passed since the return had been filed.

Think that’s complicated?

That’s only the beginning. There are many complicated rules when it comes to getting your tax debt taken care of in a bankruptcy. If you are in trouble with the IRS or have received notices that you owe taxes, we can help. Call Opem Tax Resolution – The Law Office of Steven A. Leahy, PC (312) 664-6649. Call Now to schedule your FREE 1 hour Consultation!