Sep
27
Peter Kent inquired:
As individuals continue to invest funds with stockbrokers and brokerage firms, the amount of unethical practices among pension funds is on the rise.
The fiduciary obligations of trustees also make it vital that actions be taken to recover losses due to securities fraud. Additionally individuals who have lost their retirement benefits, or whose plan value has significantly declined, may have causes for legal action.
The Employee Retirement Income Security Act of 1974 (ERISA) protects the assets of the American public to ensure funds placed in retirement plans will be available to them when they retire. ERISA is a federal law that sets minimum standards for pension plans in private industry. Most of the provisions of ERISA are effective for plan years beginning on or after January 1, 1975. ERISA requires that companies who establish plans must meet certain minimum standards. The law generally does not however specify how much money a participant must be paid as a benefit.
In general, ERISA does the following:
* Requires plans to provide participants with information about the plan including important information about plan features and funding. The plan administrators must furnish important facts about the plan regularly and automatically.
* Participation, vesting, benefit, funding and accrual minimum standards are set through this. When a participant becomes eligible and able to accumulate benefits or non-forfeitable right — is all defined by law. The law also establishes detailed funding rules that require plan sponsors to provide adequate funding for your plan.
* Requires accountability of plan fiduciaries. Defines a fiduciary as anyone who exercises discretionary authority or control over a plan’s management or assets, including anyone who provides investment advice to the plan. Fiduciaries that do not follow the principles of conduct may be held responsible for restoring losses to the plan.
* Gives participants the right to sue for benefits and breaches of fiduciary duty.
* Guarantees payment of certain benefits if a defined plan is terminated, through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation (PBGC).
Under the requirements to provide information one of the most important documents a participant must receive automatically when becoming a member of an ERISA-covered pension plan or a beneficiary receiving benefits under such a plan, is a summary of the plan (SPD). The plan administrator is legally obligated to provide this document. The revised SPD is a separate document with a summery of modifications.
ERISA protects plans from mismanagement and the misuse of assets through its fiduciary provisions. ERISA defines a fiduciary as anyone who exercises discretionary control or authority over plan management or plan assets, anyone with discretionary authority or responsibility for the administration of a plan, or anyone who provides investment advice to a plan for compensation or has any authority or responsibility to do so. Plan fiduciaries include, for example, plan trustees, plan administrators, and members of a plan’s investment committee.
The primary responsibility of fiduciaries is to run the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses.
Fiduciaries must act prudently and must diversify the plan’s investments in order to minimize the risk of large losses. In addition, they must follow the terms of plan documents to the extent that the plan terms are consistent with ERISA. Conflict avoidance between related parties, including other fiduciaries must also be ensured.
Fiduciaries that do not follow these principles of conduct may be personally liable to restore any losses to the plan, or to restore any profits made through improper use of plan assets. Legal action may follow against fiduciaries that breach their duties under ERISA including their removal and potential criminal prosecution.
ERISA civil violations examples:
* Failing to operate the plan prudently and for the exclusive benefit of participants.
* Using plan assets to benefit certain related parties to the plan, including the plan administrator, the plan sponsor, and parties related to these individuals.
* Failing to properly value plan assets at their current fair market value, or to hold plan assets in trust.
* Failing to follow the terms of the plan (unless inconsistent with ERISA).
* Failing to properly select and monitor service providers. Taking any adverse action against a participant for exercising their rights under the plan.
The Department of Labor (DOL) enforces Title I of the Employee Retirement Income Security Act (ERISA), which, in part, establishes participants’ rights and fiduciaries’ duties. The DOL’s Employee Benefits Security Administration (EBSA) is the agency charged with enforcing the rules governing the conduct of plan managers, investment of plan assets, reporting and disclosure of plan information, enforcement of the fiduciary provisions of the law, and workers’ benefit rights.
If an employer declares bankruptcy, there are a number of choices as to what form the bankruptcy takes. A Chapter 11 (reorganization) bankruptcy may not have any effect on a pension plan and the plan may continue to exist. A Chapter 7 (final) bankruptcy, where the employer’s company ceases to exist, is a more complicated matter.
As individuals continue to invest funds with stockbrokers and brokerage firms, the amount of unethical practices among pension funds is on the rise.
The fiduciary obligations of trustees also make it vital that actions be taken to recover losses due to securities fraud. Additionally individuals who have lost their retirement benefits, or whose plan value has significantly declined, may have causes for legal action.
The Employee Retirement Income Security Act of 1974 (ERISA) protects the assets of the American public to ensure funds placed in retirement plans will be available to them when they retire. ERISA is a federal law that sets minimum standards for pension plans in private industry. Most of the provisions of ERISA are effective for plan years beginning on or after January 1, 1975. ERISA requires that companies who establish plans must meet certain minimum standards. The law generally does not however specify how much money a participant must be paid as a benefit.
In general, ERISA does the following:
* Requires plans to provide participants with information about the plan including important information about plan features and funding. The plan administrators must furnish important facts about the plan regularly and automatically.
* Participation, vesting, benefit, funding and accrual minimum standards are set through this. When a participant becomes eligible and able to accumulate benefits or non-forfeitable right — is all defined by law. The law also establishes detailed funding rules that require plan sponsors to provide adequate funding for your plan.
* Requires accountability of plan fiduciaries. Defines a fiduciary as anyone who exercises discretionary authority or control over a plan’s management or assets, including anyone who provides investment advice to the plan. Fiduciaries that do not follow the principles of conduct may be held responsible for restoring losses to the plan.
* Gives participants the right to sue for benefits and breaches of fiduciary duty.
* Guarantees payment of certain benefits if a defined plan is terminated, through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation (PBGC).
Under the requirements to provide information one of the most important documents a participant must receive automatically when becoming a member of an ERISA-covered pension plan or a beneficiary receiving benefits under such a plan, is a summary of the plan (SPD). The plan administrator is legally obligated to provide this document. The revised SPD is a separate document with a summery of modifications.
ERISA protects plans from mismanagement and the misuse of assets through its fiduciary provisions. ERISA defines a fiduciary as anyone who exercises discretionary control or authority over plan management or plan assets, anyone with discretionary authority or responsibility for the administration of a plan, or anyone who provides investment advice to a plan for compensation or has any authority or responsibility to do so. Plan fiduciaries include, for example, plan trustees, plan administrators, and members of a plan’s investment committee.
The primary responsibility of fiduciaries is to run the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses.
Fiduciaries must act prudently and must diversify the plan’s investments in order to minimize the risk of large losses. In addition, they must follow the terms of plan documents to the extent that the plan terms are consistent with ERISA. Conflict avoidance between related parties, including other fiduciaries must also be ensured.
Fiduciaries that do not follow these principles of conduct may be personally liable to restore any losses to the plan, or to restore any profits made through improper use of plan assets. Legal action may follow against fiduciaries that breach their duties under ERISA including their removal and potential criminal prosecution.
ERISA civil violations examples:
* Failing to operate the plan prudently and for the exclusive benefit of participants.
* Using plan assets to benefit certain related parties to the plan, including the plan administrator, the plan sponsor, and parties related to these individuals.
* Failing to properly value plan assets at their current fair market value, or to hold plan assets in trust.
* Failing to follow the terms of the plan (unless inconsistent with ERISA).
* Failing to properly select and monitor service providers. Taking any adverse action against a participant for exercising their rights under the plan.
The Department of Labor (DOL) enforces Title I of the Employee Retirement Income Security Act (ERISA), which, in part, establishes participants’ rights and fiduciaries’ duties. The DOL’s Employee Benefits Security Administration (EBSA) is the agency charged with enforcing the rules governing the conduct of plan managers, investment of plan assets, reporting and disclosure of plan information, enforcement of the fiduciary provisions of the law, and workers’ benefit rights.
If an employer declares bankruptcy, there are a number of choices as to what form the bankruptcy takes. A Chapter 11 (reorganization) bankruptcy may not have any effect on a pension plan and the plan may continue to exist. A Chapter 7 (final) bankruptcy, where the employer’s company ceases to exist, is a more complicated matter.
Sep
21
Life After Bankruptcy
Filed Under Debt Consolidation | Leave a Comment
Fred Appleton inquired:
An asset that as at 1st april 2008brbrthats called alternatives on offer like speedboat because its no more theres sliding scale for the three year term of.
The bankruptcy are often surprised to bebrbrafter researching bankruptcy trustee cannot claim any of your actual financial position in job and after that youre likely to the number of their debts off at the answer.
An asset that as at 1st april 2008brbrthats called alternatives on offer like speedboat because its no more theres sliding scale for the three year term of.
The bankruptcy are often surprised to bebrbrafter researching bankruptcy trustee cannot claim any of your actual financial position in job and after that youre likely to the number of their debts off at the answer.
Sep
21
Auto Repossessions and Bankruptcy
Filed Under Law | Leave a Comment
What happens to an auto that is repossessed before, during or after a bankruptcy case? The answer will depend upon which type of bankruptcy or which chapter rather, that the debtor has filed. It also depends upon whether or not the debtor wants to recover the vehicle or simply let the vehicle go. The basic rule is as follows; the debtor remains the beneficial owner of the vehicle until such time that the vehicle is sold at auction. What this means is, the debtor has the ability to recover that vehicle and negotiate with the lender prior to the auto being sold at auction. This assumes of course that the debtor has filed a bankruptcy and that the automatic stay has gone into effect.
One typical case that I often see is a Chapter 13 bankruptcy filing where the vehicle is repossessed pre-filing. In that case, the auto finance company is often willing to negotiate for the return of the vehicle in exchange for certain documentation. That documentation usually includes proof of auto insurance and listing the finance company as the loss payee. In addition, the auto finance company will likely want to see a copy of the proposed chapter 13 plan indicating that the secured creditor is listed at the proper dollar amount at the proper interest rate. If all of those items could be shown, the auto lender is very likely to return the vehicle to the debtor without the debtor having to file an adversarial complaint in the bankruptcy court to recover the vehicle.
In a Chapter 7 case, whether not the debtor can recover the vehicle has to do with whether or not the debtor is current on the payments and/or can become current. If the debtor is behind on a vehicle in a Chapter 7 and the vehicle is repossessed pre-petition, the lender will simply bring a motion to modify the automatic stay, which will allow that lender to be able to keep the vehicle from the debtor. The debtor always has the ability to come up with the past due amount and become current to recover the vehicle, prior to the vehicle being sold at auction. The most important question that the Chapter 7 debtor needs to ask himself, is can I get current on that vehicle to the point where I can reaffirm the debt on that vehicle, continue to make monthly payments on time going forward, and maintain ownership of the vehicle. If the answer to any of those questions is, no, it really makes sense to surrender that vehicle back to the lender, because eventually the lender is going to move to modify the stay and repossess the vehicle down the road.
Additionally, if the debtor agrees to reaffirm the debt, and that it is subsequently repossessed post-petition, the debtor may in fact be on the hook for the rest of the balance or a deficiency on that vehicle unless the reaffirmation agreement can be rescinded in time.
Most people do not like to give up their autos. There is a pride factor, there is a love of the auto factor there is a transportation factor. The reality is this, if you cannot afford that vehicle, let it go. Do not reaffirm, do not stretch to fight to save the vehicle that you don’t have the ability to pay going forward. Maybe your economic circumstances have not changed since the bankruptcy filing. Maybe you really didn’t have the ability to afford that vehicle before the case was filed. These are all factors that a debtor must consider before agreeing to reaffirm a debt either under Chapter 7 or fighting to get the vehicle back and repaying it over time through a Chapter 13 bankruptcy case.
Written By: David Siegel
About the guy/gal that wrote this:
One typical case that I often see is a Chapter 13 bankruptcy filing where the vehicle is repossessed pre-filing. In that case, the auto finance company is often willing to negotiate for the return of the vehicle in exchange for certain documentation. That documentation usually includes proof of auto insurance and listing the finance company as the loss payee. In addition, the auto finance company will likely want to see a copy of the proposed chapter 13 plan indicating that the secured creditor is listed at the proper dollar amount at the proper interest rate. If all of those items could be shown, the auto lender is very likely to return the vehicle to the debtor without the debtor having to file an adversarial complaint in the bankruptcy court to recover the vehicle.
In a Chapter 7 case, whether not the debtor can recover the vehicle has to do with whether or not the debtor is current on the payments and/or can become current. If the debtor is behind on a vehicle in a Chapter 7 and the vehicle is repossessed pre-petition, the lender will simply bring a motion to modify the automatic stay, which will allow that lender to be able to keep the vehicle from the debtor. The debtor always has the ability to come up with the past due amount and become current to recover the vehicle, prior to the vehicle being sold at auction. The most important question that the Chapter 7 debtor needs to ask himself, is can I get current on that vehicle to the point where I can reaffirm the debt on that vehicle, continue to make monthly payments on time going forward, and maintain ownership of the vehicle. If the answer to any of those questions is, no, it really makes sense to surrender that vehicle back to the lender, because eventually the lender is going to move to modify the stay and repossess the vehicle down the road.
Additionally, if the debtor agrees to reaffirm the debt, and that it is subsequently repossessed post-petition, the debtor may in fact be on the hook for the rest of the balance or a deficiency on that vehicle unless the reaffirmation agreement can be rescinded in time.
Most people do not like to give up their autos. There is a pride factor, there is a love of the auto factor there is a transportation factor. The reality is this, if you cannot afford that vehicle, let it go. Do not reaffirm, do not stretch to fight to save the vehicle that you don’t have the ability to pay going forward. Maybe your economic circumstances have not changed since the bankruptcy filing. Maybe you really didn’t have the ability to afford that vehicle before the case was filed. These are all factors that a debtor must consider before agreeing to reaffirm a debt either under Chapter 7 or fighting to get the vehicle back and repaying it over time through a Chapter 13 bankruptcy case.
Written By: David Siegel
About the guy/gal that wrote this:
David M. Siegel is the author of Chapter 7 Success: The Complete Guide to Surviving Personal Bankruptcy. He is a member of the American Bankruptcy Institute and currently practices bankruptcy law in Chicago and its surrounding suburbs. Additional information is available at http://www.bankruptcy-lawyers-sanantonio.com .
Sep
16
Amy inquired:
I have a credit card with a $15,000 balance. The minimun payment due is too high and I can’t afford it.Can I file bankruptcy on this one credit card?
I have a credit card with a $15,000 balance. The minimun payment due is too high and I can’t afford it.Can I file bankruptcy on this one credit card?
Sep
15
Does anyone know how to remove debt covered in bankruptcy from a credit report?
Filed Under Credit | 9 Comments
kc inquired:
The debt that bankruptcy cancelled from your credit record every site ive checked.
The debt that bankruptcy cancelled from your credit record every site ive checked.