• Scottsdale (602) 707-7112 Prescott (928) 704-1777
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Helping Clients and Seeking the Protection of the Law When Financial Problems Arise

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Areas of Practice

Fields of Expertise
  • Bankruptcy
  • Chapter 7
  • Chapter 11
  • Chapter 12
  • Chapter 13
  • Debt Reconciliation Negotiation
  • Fair Debt Collection Practices Act
  • Mortgage Modification
  • Excess Proceeds Recovery

Our Locations

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Brand and Associates, PLLC
8889 East Bell Road Suite 210 Scottsdale AZ 85260





Prescott Office:
140 N Montezuma St, Suite #313
Prescott, AZ 86301

(928) 704-1777





Chapter 7, 11, and 13 Bankruptcy Lawyers in Prescott, AZ

See Our Other Practice Areas Below

Bankruptcy has a long and honorable history in American jurisprudence having been included in Article 1, Section 8, Clause 4 of the U.S. Constitution by our founding fathers. There was a commitment that debtors would not suffer the imprisonment and destruction of spirit experienced in Europe. Brand and Associates takes pride in the enforcement of the U.S. Bankruptcy Code and in providing bankruptcy legal services to protect and preserve the rights of both creditors and debtors before the Bankruptcy Court for the District of Arizona. The firm has a history before this Court exclusively for the last 8 years and we look forward to enforcing your rights in Bankruptcy.
The Bankruptcy Code sets forth four separate chapters which are intended to protect the bankruptcy rights of the great bulk of individuals and entities in the U.S. They are Chapters 7, 13, 11, and 12. Brand and Associates’ practice includes all of these chapters. Another, Chapter 9, used in municipality bankruptcy seen in the news now, is a chapter of the future.
The most commonly known chapter to most people is Chapter 7 which is sometimes called the “fresh start.” It ordinarily takes any assets which are not exempt, and you either use other exempt funds after filing to purchase the assets back, or you obtain loans from family or friends and purchase them. Whether you buy them, or they are sold at forced sale, they furnish the funds to pay all or part of what you owe to unsecured creditors. Your unsecured creditors usually include credit cards in most cases, medical bills, personal loans, or even secured creditors to the extent that the value of their security is exceeded by the secured debt. This is not uncommon in this economy. Today some of the largest unsecured creditors are those secured creditors only partially secured.
Although Chapter 7 takes assets, it can be the Chapter of choice if: (1) all of what you have is exempt, or you are prepared to surrender it; (2) because your fresh start can start virtually the day after you file; (3) it is the least costly; and (4) your discharge of debt is granted in months, not years. Unfortunately, since 2005 this chapter is not available to everyone for the asking. Talk to your Brand and Associates attorney to see if you qualify for Chapter 7.
Chapters 11 and 13 are both reorganizations requiring years of payments into plans to accomplish their goals. Chapter 11 is often thought of as the business reorganization because corporations and other business entities use it to reorganize their business, or to provide for an orderly liquidation for the benefit of all creditors, and not just the first to judgment. In many cases however Chapter 11 is also the most beneficial for individuals because it offers the greatest opportunity for modification of loan terms including the principal amount of the loan, and those modifications can be much more practical for the individual than can modifications available in a Chapter 13 plan. It is the most costly however of the alternatives available to most people because it is the most structured of the chapters requiring frequent requests to the court for permission to do acts, the most preparation before filing, and frequent negotriation with creditors and counsel to reach a confirmation of a plan.
Chapter 13 plans are limited to individuals, and only those with limited secured debt and unsecured debt. If those limits are exceeded, which can happen with just one residences. Chapter 13 is unavailable. Also, the plan must be 3 to 5 years in duration by people with regular income. When a loan such as a residential mortgage is modified the new principal balance must be repaid in no more than 5 years. The monthly payments are ordinarily too costly for the typical Chapter 13 debtor. Nevertheless, Chapter 13 can be very helpful in stripping “unsecured” junior liens on real estate and saving thousands for debtors. Also, Chapter 13 can permit the retention of assets which are important to the debtor by payments into the plan to replace value. Taxes can be repaid without further interest and penalties.
Lastly, Chapter 12 is for farmers or ranchers and fishermen. This Chapter 12 has most of the benefits of Chapter 13 and Chapter 11, and can be the best of all worlds. You must not have over a limit in debt but this limit is more reasonable than Chapter 13. Loans can be amortized consistent with the rules of Chapter 11 far over the maximum of the 5 year limit in Chapter 13. Consequently real estate loans can be reduced and the new payments are more realistic. Farmers, ranchers, and fishermen have the advantage of Chapter 11 without the cost.
You now have enough information to demonstrate for you that regardless of your debt there is hope, and you need to review your facts with a licensed attorney from Brand and Associates, PLLC. to learn what is available.

 

Excess Proceeds Recovery

Brand and Associates, PLLC, now offers representation in locating and recovering foreclosure excess proceeds, on deposit following sales upon foreclosures of real property. It is not generally known that upon a default upon a real estate secured loan, and upon a forced sale of the property described as the security for the loan, the lender is not entitled to profit by the sale. If the lender prevails upon its own bid at auction without other interested buyers outbidding it, the lender must demonstrate that it has at least bid the market value of the secured real estate.
With appreciating property values beginning in 2010, many of the foreclosed properties were worth more than at the bottom of the market, and the properties brought more at sale than was owed the lender even including costs of sale and attorney’s fees. The lender is not entitled to retain those EXCESS PROCEEDS and most states including Arizona have adopted statutes which govern the disposition of those funds. If your property was abandoned and left to be foreclosed, surrendered in bankruptcy and later foreclosed, or sold out from under you and you were evicted, and this took place in 2010 or thereafter, you may be the beneficiary of such EXCESS PROCEEDS.
In Arizona, the law provides that those funds must be deposited with the county treasurer of the county where the sale occurred and a friendly lawsuit brought in the Superior Court of that county, naming the county treasurer as a party, and alleging all of the facts regarding the sale including the sale price, the costs and attorney fees associated with the sale, and how much remains for disposition. Notice must be given to all who may have a claim for those funds including the debtor, any junior lien holders, any HOA owed assessments, and even medical providers with liens, and other judgment lien holders. The problem with that notice is that it is often sent to the best address available to the lender. More often than not, that was the address of the debtor when he or she lived at the property foreclosed. It is no wonder that the debtor never received that notice.
The Arizona law also provides time limits for application to recover the proceeds before they will be delivered to the State Department of Revenue for disposition, the priority of those who can make claim, what an application must contain, and limitations upon the compensation that may be payable to those who recover for others. Effectively, all claimants to the funds must participate in the judicial process to recover their entitlement.
Brand and Associates has cooperated with Redeemed Assets, LLC., which is actively engaged in looking for those funds and the idenity and whereabouts of the proper claimants. We then have recovered five figure claims for debtors and junior creditors, and we welcome the opportunity to investigate your sale and help you with recovery within the provisions of the law. Call 7 days a week to explore your options if you have had a sale which you think may qualify you for recovery. We welcome helping you obtain the funds that could prove to be enough to permit you to purchase your replacement home. There is no cost for telephone conferences regarding your rights, and fees are only payable if we recover for you.

You are welcome to read and review more information by clicking “Downloads and Info” regarding any of the above areas of law where we can help you to reduce stress in dealing with, and alleviating debt.  We look forward to  talking with  you.

Debt Reconciliation and Negotiations. For the last several years real estate values have steadily increased, and in many cases consumers have equities in their property and home equities exceeding the $150,000 Homestead effective in Arizona. Under such circumstances a chapter 7 bankruptcy can lead to the liquidation sale of a family home, or other real estate, at prices that may realize full value. Even assuming full value upon sale it could force the family to relocate against their will. A chapter 13 reorganization might be considered as an alternative.

Debtors are designated “liquid” under the Bankruptcy Code when equities exceed liabilities.

Not only does that generally result in treatment without debt discharge (often with full debt repayment) but it  also can result in liability and ultimate payment of other contractual obligations, including interest   and contractual penalties. Even a chapter 13 consumer debtor secures no relief if the total of all obligations is exceeded by property equity, because all of the obligations which would be liquidated in short order in a disposition of non-exempt assets under a chapter 7, are likewise paid in full over the 60 months of a chapter 13 plan.  The differences between chapter 7 and 13 in a “liquid” debtor   circumstance is that in a plan there is an opportunity to pay the entire debt over 60 months rather than upon immediate asset liquidation.

Consumers must be cognizant of the unfortunate circumstance where the equity in property (particularly the family home) is sizeable but the current income produces little “disposable income” exceeding the monthly necessities of life. Given a maximum of 60 months to pay debts, the obligation may be far too large to permit the payment of basic necessities along with the debt total over the payoff period. In these instances, the only alternative may be refinancing the asset so you can retain it, while using the proceeds to pay the debt obligation.  With long term payoff of a home loan the debtor can retain the important asset and still pay the debt. Such an arrangement is often more manageable within a debtor’s budget. Brand and Associates, PLLC, would be happy to counsel you about such an arrangement.

Fair Debt Collection Practices Act (FDCPA). In 2006, Congress passed the Fair Debt Collection Practices Act to solve the problem of consumer abuse and harassment leading to stress from false or misleading misrepresentation, deception, or means in connection with the collection of any debt. The act was specifically intended to govern debt collectors but not lenders themselves. The exception is someone who purchases the debt to pursue recovery when it is already in default. In those cases the creditor himself is treated as a debt collector. The misrepresentation can be of the character or amount of a debt, and this includes a simple error in the representation of the amount of the debt balance. The courts have said that the liability is “strict” meaning the debt collector is not required to have intended to misrepresent, but only intended to demand payment. Regardless of whether a debt collector believes the demand was proper, the test is whether a statement connected with debt collection was in error and whether the least sophisticated debtor would understand the statement to have requested payment of a debt and thereby been deceived.

After the real estate crash of 2008, there have been many examples of modifications of mortgage balances accomplished within and outside bankruptcy because the existing mortgages were for balances far in excess of the value of the real estate serving as collateral. Sometimes three or more loan servicers, who never owned the debt itself but had acquired the lucrative right to collect and account for the mortgages, were at times engaged in collecting from a single consumer debtor. This led to confusion and often demands were made upon the debtor known by the debtor to be excessive and improper. Notwithstanding repeated demand for correction, these consumers were often stressed by monthly threats of foreclosure and financial loss if the unlawful sums were not paid. It was in this circumstance that Brand and Associates, PLLC, has become involved in seeking damages on behalf of the injured debtors. These cases continue and the cases of abuse are not limited to just mortgage modifications “gone bad”, but also include instances where other unlawful demands have been made.

Brand and Associates, PLLC, can review your documentation to determine if you have a cause of action for misrepresentation of debt; then assess your damages; and make demand from your creditor for correction and recovery. If necessary, an action can be brought in the Superior Court of Arizona, or in the United States District Court for Arizona. Damages can include emotional injury because of the threats, physical injury, damage to your credit, lost wages, wage garnishment, and the costs and expenses of your resolution of these claims. Most important, there are statutory damages of $1000 per creditor in cases where you have not yet suffered any actual damages. Also, if you establish a breach of the Act you are permitted to recover attorney fees. Those fees may exceed your actual or statutory damages and nevertheless are recoverable as necessary to clear your credit and rectify the unreasonable demands. There is a one year statute of limitation so if you feel you have been wronged, do not delay investigation.

Modification Of Mortgages Within And Outside Bankruptcy. Since the real estate crash of 2008, almost every client requiring a chapter 13 bankruptcy would benefit by a curing of a default in the payments upon a residential mortgage in order to save the home from foreclosure. Most chapter 13 plans included payment to accomplish the curing. On occasion clients have been encouraged to also apply for a modification with the servicer collecting payments upon the residential real estate loan notwithstanding a prior history of denials of modification. It has appeared that servicers more often accept a need for a modification once a petition in bankruptcy had been filed.

The standard procedure, where there has been a cure accomplished in a plan, was to amend the plan to reduce the payment made to the trustee in the amount of a cure payment outside the plan since the modification included in most instances the sum in default. Many attorneys, including Brand and Associates, PLLC, have avoided getting involved in applications for modifications because of the unnecessary delay, repetition of acts, and repeated communications seemingly brought about to discourage requesting a modification. It became prohibitive to pay an attorney’s fee for such delay tactics. It would seem that those days are now over and Brand and Associates, PLLC, will once again assist in seeking a justifiable modification. A new program adopted by the United States Bankruptcy Court, District of Arizona, effective February 1, 2017, promises to make it financially feasible to seek the assistance of counsel and accordingly Brand and Associates, PLLC, will participate in filing for modification of mortgages, both within and outside the bankruptcy program.

The new program facilitates modification by inclusion of willing servicers, assisting in preparing all necessary documentation, providing a complete package for modification, providing an appeal process, and managing communication with servicers and mediators. The new program provides a “portal” to be used for communication, verbal and written, between the mediator, the debtor and his attorney, and the creditor servicing agent and its attorney. It does not require that servicers cooperate and grant a modification, but the number of servicers supporting the program demonstrates their wish to be cooperative and not appear obstructive. The “Documod” software insures that the required documents are gathered in one complete package to assist the debtor and counsel efficiently. The mediator can at least provide encouragement of a modification where it appears appropriate and  timely, and provide a forum to discuss the application for modification.

All of this simplifies the process and provides order, which encourages counsel in assisting clients. For these reasons Brand and Associates, PLLC, will now assist its clients in seeking modifications at a cost that is reasonable and fair to clients and counsel. In fact, these fees are set by the court in its Rules. In those cases where the client does not require a bankruptcy, the software itself will help reduce cost and prevent delays. We can use that same software to prepare your modification package for submission but without the option of using the “portal” to communicate.   We will submit the materials   at the same cost as applies in bankruptcy.  Call Brand and Associate, PLLC, for a free discussion to explore whether you are a candidate for modification within or outside of   bankruptcy.