West Virginia Lawyer Blog

Even with the economy slowly improving, people across the country continue to file for bankruptcy, including here in West Virginia. Bankruptcy is an interesting area of law: it is federal law, but the outcome of many cases depends upon state law. Oftentimes, the laws are so tightly intertwined, it is difficult to determine whether a matter should be litigated by a West Virginia bankruptcy attorney, or dealt with in state court.

Why do people file for bankruptcy? One of the biggest reasons is the threat of foreclosure. Ever since the housing bubble exploded, the rate of foreclosure in West Virginia has risen, with one in 8,320 houses foreclosed upon. The hardest-hit counties include Wayne, Kanawha, Hampshire, Berkeley, Jefferson, Hancock, and Tyler. Many people bought houses with mortgages that they could not afford, or they could afford their mortgages until they lost their jobs.

When you default on your mortgage payments, the mortgage lender usually first issues a notice of default. If you are unable to cure the default, the lender issues a notice of sale. Under West Virginia law, mortgage lenders are permitted to do what is known as a "non-judicial foreclosure." That means the lender can sell your house without having to get permission from a state court. The notice of sale must follow state requirements in Chapter 59 of West Virginia's code, including the time and place of sale; the names of the parties to the deed; the date of the deed; the quantity and description of the land; and the terms of sale. A trustee then auctions the house off to the highest bidder. "Judicial foreclosure," where the court must issue a final judgment, and the house is sold at a sheriff's sale, is also common.

If you file for bankruptcy before the foreclosure sale, you can prevent the sale from taking place. If you file for "personal," or individual bankruptcy, what is known as an "automatic stay" takes effect. The stay prevents creditors from continuing their harassment or acts of repossession, including foreclosure. As long as you do everything that you are required to do for your bankruptcy case, the stay will remain in effect.

There are some wrinkles, however. First, if you want to keep your home, you have to be careful about the type of bankruptcy you choose. If you file for Chapter 7, the most common type of bankruptcy, you could risk losing your home. That is because a Chapter 7 trustee takes over your "estate" and determines what is exempt and non-exempt property. The non-exempt property is sold and the proceeds are used to pay off creditors. On the other hand, if you file for Chapter 13, you may be able to keep your house. All Chapter 13 filers must provide a payment plan, where they state how much they will be able to pay to the Chapter 13 trustee -- who then pays the creditors -- over a period of several years. If you are able to make the plan payments, you could pay off your mortgage debt and keep your house. If you can't make the payments, or if the Chapter 13 or a creditor finds other fatal flaws in your case, your case could be dismissed and your house may be vulnerable once again.

Continue reading "Bankruptcy and the Threat of Foreclosure in West Virginia" »

On June 30, 2011, the United States Sentencing Commission voted to make the 2010 crack cocaine United States Sentencing Guideline amendments' retroactive. This is significant and if you or someone you love was sentenced for a crack cocaine charge they need to contact an attorney immediately, if they are still incarcerated for a potential reduction of their sentence. The effective date is November 1, 2011. If you were charged and convicted in Federal District Court for the Northern District of West Virginia the Federal Public Defenders Offices along with the Federal Probation Office have been working to develop a list of persons who may benefit from these new amendments.

The Sentencing Commission estimates that approximately 12,000 offenders may be eligible to seek a sentence reduction, which on average, will be 37 months. The struggle to make the sentencing guidelines "more fair" when faced with the sentencing disparity between crack cocaine and powder cocaine is a battle which had been fought for many years. If you were sentenced for crack, you received 100 times the sentence you would have if your offense involved the same amount of powder cocaine. The Fair Sentencing Act reduced the disparity between "crack" and "powder" to 18 to one. It was argued that this disparity resulted in a racial disparity, given that the black communities form of preference was "crack" cocaine and the white communities preferred powder.

The Fair Sentencing Act of 2010, was signed into law on August 3, 2010. The Federal Probation Department and the Federal Public Defenders Offices can be contacted by family members to see if someone who will benefit from the amendments and are eligible for a Motion for Reduction of Sentence. If you feel that your case is eligible for a reduction, you need to contact your attorney who represented you on the underlying charge or the Federal Public Defenders Office in your district.