Monday, September 18, 2017

Chapter 7 Versus Chapter 13 Bankruptcy

All bankruptcies are not the same. 

The main difference between a Chapter 7 and Chapter 13 bankruptcy is that one is a
“liquidation” bankruptcy (Ch. 7) and the other is a “reorganization” bankruptcy (Ch.13).

Within a Chapter 7 bankruptcy, you can discharge all your unsecured debt (unless there is some sort of priority: i.e. domestic support obligations, tax debt, student loan debt).

In a Chapter 13 bankruptcy, you pay back some/all of your unsecured debt at a reduced interest rate. If you are past due on your home loan or any other secured loan (car loan, furniture, etc.), you don’t have to give them up in a Chapter 13 bankruptcy. You will repay your arrears in the Chapter 13 Plan, interest free, and continue to make your direct payment.


As far as a timeline is concerned, a Chapter 7 bankruptcy is must faster. On average, a Chapter 7 bankruptcy will last around six months, from start to finish (depending on the complexity of your case).

Chapter 13 debtors typically follow a 60-month/five-year plan (unless they qualify to finish their plan in three years). Throughout the five-year plan, the debtor makes a monthly payment that is usually automatically deducted from his or her paycheck. Once the Chapter 13 plan is confirmed, there is usually no action required in the bankruptcy, unless issues arise.

Secured Loans in a Chapter 13 Bankruptcy

One of the perks of filing a Chapter 13 bankruptcy with secured loans, i.e., car loans, is that you are most likely going to lower your monthly payment. The interest rate is usually lower, and since you are stretching the amount due over the 60-month term of the plan, you could save a good amount per month. Also, your attorney will put your car note in the plan, so it is paid by payroll deduction, and you don’t have to worry about paying it directly. Once the term of the plan is over, you own your vehicles.

When it comes to your mortgage payment, you will still make direct payments, but any arrears you are paying in the plan are paid with no interest. That is preferable to a modification agreement made outside the bankruptcy, because the length of the term of your loan does not extend.

Secured Loans & Keeping Property in a Chapter 7 Bankruptcy:

Fining a Chapter 7 bankruptcy doesn’t mean you have to surrender all your property and be left with nothing. As long as you are up to date on your home or car loan, the creditor will typically allow the loan to continue, just as it was before the bankruptcy. Depending on the creditor, you may be required to complete a “Reaffirmation Agreement.” This enters you into another agreement to agree to the terms of the loan, and also waives the discharge of the debt in the bankruptcy.

Non-Exempt Property

In a Chapter 7, you may be required to repay the value of your non-exempt property back to the bankruptcy estate, where the trustee will evenly disburse the monies to your unsecured creditors.

There are two reasons not to let this deter you from filing a Chapter 7 bankruptcy:
1)    Unless you have valuable non-exempt property (listed below), you are paying very little to unsecured creditors,
2)    When you look at the big picture, you are discharging significant debt in exchange for a small payment. Also, the trustees allow you to make the payment of this amount in increments (usually over three months to make it affordable).

In a Chapter 13, the value of your non-exempt property makes up what is called your
liquidation value. The amount of your liquidation value dictates how much you must pay to unsecured creditors throughout the term of the plan. The reason why this is not going to be detrimental to your plan is because a debtor(s) will normally pay that amount over their 60-month plan, regardless. ($5000 over 60 months is only $83 a month.)

Examples of Non-Exempt Property: electronics, such as computers, stereos, televisions, DVD Players, jewelry, fine china, paintings, inheritance property, etc. (Remember, necessities like furniture and clothing are exempt, along with other items.)

Both a Chapter 7 and a Chapter 13 bankruptcy can give you a fresh start and help you regain your financial freedom. If you qualify, a Chapter 7 will allow you to eliminate any non-priority unsecured debt, such as medical bills, payday loans, credit card debt, and even leftover debt from repossessed vehicles or foreclosed homes. If you are about to lose your home or car, a Chapter 13 bankruptcy will allow you to save them and pay back any arrears with no interest. Your debt will be reorganized, and the plan will allow you to make the payments that are affordable to you.

Chapter 7 and Chapter 13 bankruptcies are feasible solutions to take back your life. Contact the Gouner Law Office for more information or to schedule your private consultation.

Written By: Alyssa L. Collara

Mistaken Drug Raids

It is a beautiful day. You are home, minding your own business. Suddenly, you see a van approach your house. Out from it, emerges a team of heavily armed cops and K-9 units, who forcibly make their way into your home.

Before you even realize what is going on, they search the premises, make a big mess, turning the whole place upside down. Only then do you realize that you have been on the receiving end of a mistaken drug raid.

Far More Common Than You Think

If you think this scenario is too far-fetched, you will be surprised to know that such incidents happen with alarming regularity across the country. There have been instances where cops have mistaken common plants for weed and have conducted drug raids. These plants include okra, hibiscus, ragweed, horsemint, oregano, apple mint, catnip, blackberries, and many others. 

Even chaste trees, which are common plants often used in front yards, are frequently mistaken for marijuana.

If you are growing any of these plants in your yard, law enforcement might pay you a "not-so-friendly" visit. Their reason to do so can be based on an anonymous tip or part of some underground operation.

 A wrongful raid, where overzealous officers mistake a common plant for weed, can be stressful and traumatic for a homeowner. Your reputation in the community could be adversely affected after the raid--even if the cops admit they made a mistake and issue an apology. Sometimes, however, things go too far, and the raids result in property damage, injuries, and even death.

Dealing with Cops during a Drug Raid

What can you do if you believe you are being mistakenly raided for drugs? The first rule is to never be aggressive or combative with law enforcement. During a drug raid, cops usually come armed, because they expect to be met with deadly force from unlawful elements. They are well within their rights to respond with deadly force in such a scenario. Even verbal aggressiveness on your part can cause problems for you.

Here are the most sensible things to do in this situation:
  •      Show the officers your identification card.
  •      Politely inform them that there has been a mistake.
  •      Tell them the plant they think is cannabis (weed) is actually a common plant.
  •      Give them the name if you know it.
  •      Ask them to take a sample and have it tested in a laboratory, if they are unsure.

This calm and rational approach usually defuses a volatile situation. Once the officers realize they have made a mistake, they usually apologize and go away.

In case things take a turn for the worse, however, and the raid results in significant property damage or injuries to you or your family members, contact the Gouner Law Office immediately.

Written By: Benjamin Roussey

IRS Phone Scams

Telephone scams are nothing new. The latest one we are hearing about involves calls to cell phones with threats of arrest by the IRS.  These scam artists are scaring people…and getting paid. 

You can be sure that the IRS does not have a call center in India, nor will they accept payment over the phone to recall an arrest warrant. They do not take store gift card payments over the phone to resolve an arrest possibility. (Yes, this is often how the scammer will ask for payments.)

With a real IRS investigation, the first notice you will likely receive is one for an audit. The IRS then schedules a meeting at their office or at your home.  The IRS can and will levy a payroll check or bank account without a formal hearing. 

If you get a call – usually from someone with and Indian or foreign accent – saying you will be arrested, hang up or do not return the call. Whatever you do, do not pay any money. If the call leaves you rattled, contact your local IRS office for clarification. 

Below are two videos showing how a scamming operation works and how to protect yourself:

Written By: Greg Gouner

Monday, April 24, 2017

How Not To Get Arrested

I’ve been practicing criminal defense law for almost 25 years. The most important step I’ve discovered in avoiding arrest is to avoid encountering the police in the first place.

Recently, a client called the police about a domestic disturbance with his wife. This is usually a bad idea, because police usually have orders to arrest someone for any potential domestic callout. Whenever you call the police, it is also standard for them to check arrest warrants on everyone.

In this case, it was a particularly bad idea. There were outstanding bench warrants for my client. 

I do not know how he thought this would play out.

One of the things we discuss in just about every criminal case is how the person made contact with the police.  I usually get answers like, “The police were harassing me.”  When it comes down to it, the real question is usually, “What did you do that got the attention of the cops in the first place?”  In other words, with millions of people out there, what did you have to do to draw the attention of law enforcement?

I have had dozens of people stopped for traffic tickets by officers intending to do nothing more than write a speeding ticket and move on.  Prolonged argument with the police over the fairness of the ticket can elevate the situation to an arrest for charges like DWI and even resisting arrest for a refusal to sign the ticket.

Another popular way to get arrested is sticking around after being told to leave.  Let’s say you do not like the quality of the delicious hamburger you ordered and start arguing with the manager.  At some point, he may ask you to leave and threaten to call the police.  It is probably a good idea to do just that before the cops arrive.  If you decide to stick around to stand your ground, the likely charge will be “Remaining After Being Forbidden”—a misdemeanor that usually comes with a free ride in a squad car.

In my defense experience, the most memorable charge for this was a client who did not like a sandwich at a local poboy restaurant.  The manager told him to leave.  My client upped the ante by calling the cops himself.

He was then picked up, not only for his outstanding bench warrant, but also for not leaving when he had the chance.

Remember Your Manners
Police generally think they can arrest anyone for just about anything.  The cops have a special phrase for it: an attitude arrest.  You may be able to beat the charge in court, but you cannot beat the ride to jail and everything that comes with it.

Sometimes, it is just a lack of politeness that gets you chauffeured to jail.  A bad attitude directed toward the cop can make a situation worse than it needs to be. I cannot tell you how many people have spent time in our court system who thought that yelling something like, “Don’t you know who I am?!” at the officer at 2am on the side of the road would impress them.

Oh, it impresses them, all right.

Written by Greg Gouner

Do Traffic Tickets Expire?

We get lots of calls from people asking this question.  There really is not a good answer for it.  Here is how it all plays out:

The DMV will place a hold on your driver’s license when it receives a notice of an unpaid ticket.

At some point, the ticket times out. In Louisiana, however, there is no definitive point when it expires. 

Getting a traffic ticket is like a two-way street--You have an obligation to show up, or otherwise, deal with the ticket. The municipality has some obligation to find you, if you do not show for court.  In other words, if the town does not do anything, the ticket basically times out at some point.

There is no fixed time period for a town to automatically throw out old tickets.  Most towns do not usually actively look for people who missed court dates on speeding charges and minor traffic offenses. If you do not resolve your ticket, the municipality basically leaves you alone, but asks the DMV to suspend your license.

That does not mean the next police officer that stops you for a charge will not also give you a ticket for driving under suspension.  Most people are motivated to take care of old tickets to avoid the one-year mandatory suspension.  There is also the possibility that your next traffic stop will mean an arrest. This can happen, but usually it does not until the person has at least two or three other bench warrants.

I have seen prosecutors argue that the ticket never expires and not showing up in court makes someone a fugitive from justice.  Despite that, I have gotten stacks of tickets thrown out that were a decade or more old. Most judges I have appeared before seem to throw out anything more than around 10 years old.

In reality, the town usually needs the police officer to show up in court to prove the ticket.  People retire, lose their jobs, and move away.  With an old ticket, it is often impossible for the town to carry their burden to trial.  That still does not stop the DMV from continuing a hold on your license.  The hold will usually stay in place until they get some paperwork saying the ticket is resolved.

If you have an old ticket and the DMV has your license suspended, you will have to deal with the municipality to get it resolved. It could take a court appearance to avoid hundreds of dollars in fines the town probably added, due to an old bench warrant.

In summary--

Regardless of how old it is...the burden is on you to deal with it quickly.

Written By: Greg Gouner

Monday, December 5, 2016

Get with Us ASAP After an Accident

Louisiana provides one year to make a claim for auto accident and other injury cases.  This is less time than most states, but is long enough for many people to postpone deciding what to do until near the end of the year. 

The Gouner Law Office handles wrecks and other injury cases.  The time to meet with an attorney is immediately following the accident.  Waiting until several months pass is not a good idea.  Witnesses can disappear.  Police may not prepare accident reports without prompting.  Delaying taking action can cost you money. 

Medical treatment is a key part of personal injury cases. Getting a lawyer usually means getting prompt treatment. Insurance adjusters will often urge people to wait to get treatment to see how they feel.  This is the same adjuster who will “ding” you for not getting prompt treatment and suggest any injury was small, because treatment was delayed.

Likewise, waiting to get appraisals on your vehicle damage and delaying making a claim for property loss is a mistake. After as little as a few weeks, the vehicle can start to rust, and a fresh dent will start to look old. Insurance companies will take advantage of that, saying the damage was pre-existing.

If you get in a wreck, act quickly. Call the Gouner Law Office to get your claim started.

(225) 293-6200 or Toll Free: (800) 404-1921

By Greg Gouner