Thursday, October 25, 2012

Appearing in Court: Appropriate Dress and Decorum

Whether you are a party to a case or a witness, appearing in court is a formal and serious matter. Accordingly, the importance of the affair should be reflected in both your attire and behavior while inside the courtroom. The following recommendations establish some general guidelines for how to present and conduct yourself in court.

Appropriate Courtroom Attire

Above all else, make sure you appear in court looking clean and well-groomed. You should be freshly bathed and have clean hair, clean nails, and clean clothing. Remove excessive or gaudy jewelry. Facial piercings and other accessories such as large ear plugs are distracting and should be removed. If you have a tongue piercing, remove it prior to entering the courtroom so that you will be easier to understand while speaking.

When dressing for court, think conservatively. Women should avoid low-cut tops or outfits that fit too snuggly. Appropriate apparel for women includes slacks and a blouse or blazer, a skirt, or a dress. For footwear, choose reasonable heels. Low-heeled, closed-toe shoes are more suitable for court than flashy platform pumps. Do not wear flip flops.

For men, slacks and a collared shirt are appropriate selections for the courtroom. Avoid wearing T-shirts, especially those with graphics, phrases, or statements printed on the front or back. Even in the summer, avoid wearing shorts. Do not wear a hat to your court appearance.

Appropriate Courtroom Conduct 

Be on time. This often means making sure you leave yourself enough time to find parking and navigate the courthouse. Do not bring your cell phone into the courtroom with you. If you do, turn it completely off.

While in court, speak and respond only when asked. When answering a judge’s question, try to limit your reply to ten words or less and avoid lengthy monologues. Be careful not to act too casually, such as leaning on the judge’s bench. Do not try to kid around with the judge or crack jokes, especially those which might be found distasteful. Keep your movements to a minimum and avoid distracting gestures.

Most importantly, be polite and respectful at all times. While tensions often run high, do not raise your voice or use coarse language. When someone else is speaking, listen politely. Do not react by sighing, laughing, snorting, rolling your eyes, or shaking your head. These types of responses are disrespectful to both the person speaking and to the court. Finally, remember to be courteous to everyone you encounter while in the courthouse and courtroom, including judges, attorneys, other parties, clerks, and bailiffs.

Contributions by Jeanne Foster, Attorney and Kelly Thompson, Law Clerk

Tuesday, October 2, 2012

What happens if I don’t reaffirm my mortgage in a chapter 7 bankruptcy?

A reaffirmation agreement is a document that is executed after your bankruptcy case is filed. It renews your obligation to a secured creditor, who has the right to repossess a vehicle or foreclose on your property if you fall behind on payments post-filing. It also makes you responsible for any deficiency balance after the sale of the property. It basically strips that debt of the bankruptcy protection. However, there are many benefits to reaffirming a debt too, including an easier time refinancing and positive reporting on your credit report.

If you intend to keep a house, vehicle, or piece of property secured by a lien, the creditor may prepare a reaffirmation agreement and forward it to your attorney. It is the Creditor who is responsible for preparing these agreements and they cannot be forced to do to. If you choose to sign a reaffirmation agreement generally your attorney’s office completes the required information, forwards it to you for review and signature, then it gets sent back to the creditor for filing with the bankruptcy court. If your budget (Schedules I and J) shows you can afford the payment and that it is not a hardship, no hearing is necessary (in WDMO and District of Kansas). The creditor files the agreement with the court and you are responsible for that debt regardless of your bankruptcy filing.

Not reaffirming a debt, especially a mortgage can sound like a good idea to you initially. It seems as though you can just pay each month and remain in the property. It is true that state contract law protects you to the extent that if you keep up with payments, the property cannot be taken away. And if something does happen financially in the future, such as illness or loss of income, you can surrender the house or car without having to worry about the deficiency balance. Because if no reaffirmation agreement was filed, it means the debt was discharged. And for the most part, that can be true. But, you need to be sure to speak to your attorney about the best option for you because there can be some consequences to not reaffirming a property in your chapter 7 bankruptcy.

One big problem with not reaffirming is credit reporting. If you don’t reaffirm the mortgage, the creditor will likely stop reporting payments to the credit bureaus even though you are making the payments on time each month. The mortgage debt may appear as being discharged in bankruptcy. So, your credit score may take a hit. This can make getting a new loan difficult. Another major problem can be with refinancing or modification. Many lenders will not refinance or modify a loan if a reaffirmation agreement was never filed. So, you will likely be locked into the original loan terms that you have until you decide to sell the property or let it foreclose. It can leave you with few, if any options if you find that the payments are no longer affordable. At that point your only option may be to surrender the property and walk away. And on that note, there are a few things to keep in mind if you are facing foreclosure. Until the property is transferred out of your name (after the foreclosure sale), you need to keep insurance on the property, keep up with maintenance, winterize and secure the property if vacant, and ensure compliance with city rules and codes. As long as it’s in your name, you are responsible for anything that happens to the property, and those fines and costs imposed by a city code violation, fire, etc. are not dischargeable if they happened after your bankruptcy was filed.

So, overall the best option is to speak to your bankruptcy attorney about your options with reaffirming a debt, especially a mortgage debt. They will be able to give you the best advice for your particular situation.

Contributions by Kelley Snyder, Paralegal