Monday, December 6, 2010

ARTICLE THE THREE WORST MONEY MOVES YOU CAN MAKE

The 3 worst money moves you can make

Some of today’s most common personal-finance decisions also happen to be some of the most destructive. Here are the primary pitfalls -- and how to avoid them.
By Liz Pulliam Weston
Sound financial advice doesn't change much from year to year. Bad money management ideas, however, seem to mutate and flourish with each passing season.
Borrowing against our home equity and retirement funds, for example, was once tough to do -- and generally understood as a bad idea. Today, financial services companies encourage us to do both. Lenders also urge us to stretch farther and farther to buy our homes, often to our peril.
Ultimately, it's up to you to resist bad advice and protect your own financial futures. Here's what you need to know about three of the most popular pieces of bad advice today:

Use a home equity loan to pay off credit-card debt

Lenders love to tout home equity loans and lines of credit as a way to pay off your plastic. You'll even see some personal finance journalists parroting the company line that such loans make sense, because home equity rates are typically lower than the interest rates you'd pay on your cards -- and the interest is usually tax deductible.
Americans have been taking this advice with a vengeance, cashing out more than $2 trillion of the equity in their homes between 2002 and 2005, according to SMR Research and Freddie Mac. Comparatively low home-equity rates, and stubbornly high credit-card rates, have convinced millions that this is the way to go.
The only way this maneuver really helps you, however, is if you stop using your credit cards to run up debt. Otherwise, you're just digging yourself a deeper hole.
Unfortunately, the ability to live within their means is beyond many people. Nearly two-thirds of the people who borrowed against their home equity to pay off credit cards had run up more card debt within two years, according to a study by Atlanta research firm Brittain Associates.
Oh, sure, you can borrow more against your home to pay off the new debt -- thus whittling away the amount of equity that's available to you in an emergency, and ensuring that you continue to pay hundreds or thousands of dollars a year in interest to your lender. The credit-card balances you should be paying off every month instead get stretched out for years, ultimately costing you more in interest -- even with the tax savings.
Financial planner Ross Levin of Minneapolis says home equity lending has its place -- as an emergency source of cash. He encourages clients to set up home equity lines of credit, which are revolving accounts that work much like credit cards with variable interest rates, in case they lose their jobs or need quick cash to meet some other dire need. Many lenders will set up home equity lines for you at no cost, and the annual fees are usually minimal.
But Levin, like other planners, is adamant about not tapping home equity to pay off credit cards or anything else that won't last as long as the debt.
"The people who need to do a debt consolidation (using home equity loans) tend to need to do it again and again and again," Levin said. These folks never learn to manage their money, and they put their homes at risk in the bargain. While unpaid credit-card debt can be erased in bankruptcy, the penalty for not making your home equity payments is losing your house.
If you've already borrowed against your home equity, pay off the debt as quickly as you can. If you haven't and think you need to, cut up your credit cards first. Don't use your home equity to pay for luxuries or for anything else that won't last as long as the loan.

Borrow from your 401(k)

Companies don't have to offer a loan feature with their 401(k) retirement plans, but according to the Employee Benefit Research Institute, most of them do. Eighty-three percent of American workers covered by 401(k) plans can borrow against their accounts, and about one in five participants had an outstanding loan in 2005. The average balance was $6,946, said the Investment Company Institute.
Financial services companies have encouraged employers to make loans available, saying the ability to tap retirement funds will increase worker participation in the plans. The idea is that workers are more likely to contribute if they don't feel their money is being locked away.

Video on MSN Money: Get more from your IRA

Secrets to better banking © Nick Koudis / Photodisc Red / Getty Images
Here's a simple, no-cost way to boost the earning power of your Individual Retirement Account. Click here to play the video.
People who borrow from their workplace retirement funds, meanwhile, love to think it's a smart move, since when they repay the loan they're essentially paying interest to themselves rather than to a credit-card company or other lender.
This is true, but 401(k) borrowers also could be putting their retirements at risk. If they lose their jobs or get fired, the loan must be repaid, typically within weeks. If that's not possible -- and often it's not, since people who lose their jobs don't tend to have a lot of cash sitting around -- the outstanding loan balance is taxed and penalized as a premature distribution.
So in addition to the $6,800 you borrowed to spend on whatever, you'll be coughing up thousands more for taxes and penalties.
It gets worse, since you can't put that money back. Whatever the $6,800 might have earned in future years is gone forever. Assuming an 8% return that could cost you more than $75,000 in future retirement funds.
Like home equity, retirement funds are best left alone to grow -- and to be there for you in case of real emergency.

Stretch to buy a house

Beware, homebuyers. Everyone around you is conspiring against your financial best interests.
Your real estate agent may be pushing you to buy the most expensive house you can: the higher the price tag, the bigger her commission. Your lender is in cahoots, as well. Not only will a larger loan rack up more fees and interest, but also the lender knows you'll move heaven and earth to pay your mortgage even when you're falling behind on other bills.
Your friends and family also may get into the act, telling you it's okay to stretch to pay that mortgage, since your income will eventually rise and make the payments more comfortable.
Maybe, maybe not. But anyone who's been house-poor knows the emotional, psychological and financial stress of stretching too far.
"You never want to buy as much house as lenders are willing to lend you," declares Delia Fernandez, a Long Beach, Calif. financial planner who specializes in middle-income clients. "Some people think they're willing to sacrifice to live in their dream home, but they should think long and hard about what that really means."
Buying too much house could mean giving up other things you want: vacations, eating out, a college fund for your kids, a sufficient retirement kitty. Or it could mean ever more debt, as you borrow to try to maintain your lifestyle.
Fernandez has had clients who overextended to buy a house, ran up $50,000 in debt on a home equity line of credit and then had trouble making even the minimum payments on their loans. Now any new purchase is a struggle.
"Sometimes they can't stay in the house, or they let maintenance and repairs go, which doesn't do them any good" since the value of their house declines with deferred maintenance, Fernandez said.
Traditionally, lenders limited the amount you could borrow so that your housing costs --principal, interest, taxes and insurance, or PITI -- equaled 26% to 28% of your total pretax income. Lenders today, however, are often willing to go to 33% or even higher, said mortgage broker Allen Bond.
Bond, president of the California Association of Mortgage Lender's Southern California chapter, has seen lenders approve mortgages that eat up 50% to 60% of the borrower's income.

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Mortgage payments, of course, are just part of the costs of owning a house. Homeowners should plan on spending at least 1% of their homes' value each year on maintenance and repairs, according to Eric Tyson, author of "Home Buying for Dummies." Include other costs, such as bigger utility bills, homeowners' association dues and decorating, and the typical homeowner could spend an amount equal to the monthly mortgage payment on such upkeep.
That's why Fernandez recommends her clients limit their PITI to 25% of their total income.
"That's the most comfortable level for most people," she says.
If you're set on buying your dream house, figure out how much more you'll be paying each month for your new home -- and start living now as if you were already shelling out that amount. If you can pull this off comfortably for six months or more, then you can proceed with some confidence. In the meantime, Fernandez said, you can save the difference between what you're spending now and what you'll be spending in the future -- thus bolstering your emergency fund and giving yourself an even larger comfort zone.

DUMBEST MISTAKES : PART 2

Bankruptcy Planning: Ten Dumbest Things NOT to Do–Part Two

You’re considering bankruptcy, or just suffering through financial problems due to job loss, divorce, illness, other problems, or a combination of all of those things, and you want to avoid costly mistakes.  Continuing my list of things NOT to do, here is part two.  Call them pitfalls, call them dumb ideas, call them mistakes, but whatever you call them, don’t fall for these.
6.  Be careful of trying to pay mortgage payments ahead.  Sometimes what looks  like smart financial planning turns out to be a problem.  One example is an attempt to pay your mortgage payments ahead.  Let’s say you know you are going to be on short term disability for a while.  You take your savings and use it to pay your mortgage payments (or even car payments) ahead, for the time you won’t be drawing a regular paycheck.  You might well think that is sound financial planning.  The problem with your plan is that the mortgage company may not apply the money as you intended.  Many banks and mortgage companies will apply any excess over your current payment (and any escrow shortages) to principal.  So, if you send them three payments this month, they will apply the money to any the current month first, and then to principal.  Next month they will still look for you to make a payment.  The problem is that once they have applied the funds in that way, it is almost impossible to get them to reverse it.  A better idea:  leave that money in savings until it’s time to make the payment.  If you are worried that you’ll fritter the money away, put it in a wholly separate savings account.  Or write the checks out, but wait to send them until the payment is due.   Even if your mortgage company seems willing to apply the payments as you intend, I would be cautious.  Many of these practices are driven by regulation or language in the mortgage documents, and the lender may not be flexible at all.  (By the way, it’s worth noting that some lenders, including student loan lenders, use the opposite tactic, called “paid ahead status,” to get you, too.)
7.  Don’t borrow against your home to pay unsecured debt. Don’t take unsecured debt (like credit cards, medical bills, personal loans and payday lenders and turn it into a mortgage.  It is far easier to deal with unsecured debt, and protect your assets, than it is to pay off a mortgage on your home.  Not to mention the fact that it could cause you to lose your home.
8.  Don’t wait until the wolves are at the door before seeking help. This one is easier said than done, and often it is the folks who are trying the hardest who are the worst offenders.  I recently met with a couple who told me that they had been struggling with the decision to seek help for three years.  During that time, they lost their home and two investment properties to foreclosure, closed their business, and practically everything.  Ironically, they knew more than most about what they could do, and should do, but were so engaged in the struggle that they ignored the advice they would have given anyone else.  I don’t know any bankruptcy lawyer who doesn’t see some version of this story on a regular basis.  Seeking help early can be invaluable, can help you avoid the worst mistakes, can help you preserve assets, and may help you avoid bankruptcy–exactly the things you are trying to do on your own.  Seeking help is not an admission of defeat, it’s a way to fight better.
9.  Don’t exhaust your cash.  This sounds a lot like paragraph 5, but my focus here is a little different.  One of the most persistent urban myths about bankruptcy is that you aren’t allowed to have bank accounts, or any cash.  It isn’t true–you can keep your bank accounts and you not only can keep some cash, you are going to need it.  Filing bankruptcy will immediately, and probably for some time, put you on a cash basis, and you are going to need a little bit of a nest egg to cover both ordinary expenses and emergencies.  An experienced bankruptcy lawyer can tell you how much it is safe to keep, and what steps you need to take to protect your cash from creditors, whether you are in bankruptcy or not.  Laws can vary from state to state, so you need to ask someone who is familiar with your jurisdiction.
10.  Don’t ignore the problem.  It is tempting to just stick your head in the sand.  It is stressful and unpleasant to deal with financial problems.  I occasionally have a client who comes in carrying a grocery bag full of unopened bills and notices.  I can identify with the impulse to stick them somewhere unopened.  But it can cost you, especially if you are missing critical notices of legal action taken against you.  You can lose your rights, and sometimes your property, by not paying adequate attention to what your creditors are trying to do.  Read your mail–that is crucial.  You can talk to your creditors or not–I usually recommend NOT talking to the ones who call you, but if you want to talk to them, you place the call to them.  You tend to get someone higher up the totem pole that way, who is actually in a position to help you.  File your tax returns, even if you can’t pay the taxes–there is nothing more crucial than this.  Besides the legality of failing to file tax returns, you need to know how much you owe in taxes.  I’ve had more than one client over the years who didn’t file a return because he didn’t think he had the money to pay, only to find out years later that the actual tax was fairly minimal.  Of course, the penalties and interest due for failure to file is NOT minimal.  Even if you are what lawyers call judgment-proof, you still need to track follow what your creditors are doing, to make sure they don’t do something they aren’t supposed to.  So don’t be an ostrich, man up, and go see someone about those financial problems.  I’d be willing to bet you’ll feel better afterward.

PART ONE: DUMBEST MISTAKES PRE-BANKRUPTCY

Bankruptcy Planning: Ten Dumbest Things NOT to Do–Part One

As a bankruptcy attorney, a recent headline offering to tell me the dumbest mistakes I could make if I owed too much debt caught my eye.  Rarely does a potential bankruptcy client come to me as soon as they get into financial trouble; often they have done things to try and fix the problems themselves that I can only wish had not been done.  Unfortunately the headline that caught my eye was only a link to an advertisement that didn’t deliver on the promise, but it got me thinking.  Here is my list of the dumbest things you can do if you owe too much money, or, put another way, what NOT to do if you owe too much money.
1.  Don’t tap your retirement funds. One frequent mistake made by people in financial trouble is to take money out of a 401k plan or IRA in order to pay things like credit card debt.  Retirement funds like 401ks and IRAs are protected from both creditors and bankruptcy trustees.  Creditors can’t take that money, and there is a reason for that:  you NEED it.   The only way that creditors can reach that money is if you voluntarily take it out and give it to them.  There might be situations in which using retirement funds to pay debt make sense, but if taking the money out of retirement doesn’t solve the whole problem, (like paying off ALL your credit card debt AND the taxes that you are going to incur for early withdrawal) then it is probably a dumb thing to do. Most of the time my clients have taken money out of retirement and used it to make minimum payments.  As a result, they still owe more money than they can pay to creditors, and now they owe taxes, too.
2.  Don’t try to pay those loans from family members first.  One of the things many people think of doing when they get into financial hot water is to try and pay off family members before filing bankruptcy, or before a creditor gets a judgment.  While the impulse to try and pay off those who are close to you is understandable, it may be a very bad idea, for several reasons.  It may cost the family member you are trying to protect a lawsuit, depending on when you do it and what happens later.  It may eliminate bankruptcy as an option to help you, or make your bankruptcy more expensive.  And it may not work–many such payments can be unwound, whether you plan to file bankruptcy or not.  A better option is to consult with a lawyer before making any such payments, and find out what kind of problems you may be creating for yourself.  If you’ve already done it, consult with a bankruptcy lawyer anyway, and ‘fess up to the problem–what my friend Russ DeMott calls “putting the skunk on the table.”   Your lawyer may be able to unwind the transfer and put you back where you started. Many times I can offer clients with family obligations better options, and accomplish the same goal while reducing their risk.  One further note–I’m talking about loans from family members, not child support or alimony obligations.  Pay the things the Bankruptcy Code calls “domestic support obligations” or some judge may throw you in the pokey.
3.  Don’t take money out of retirement to pay off family members.  A combination of the prior two bad ideas is a REALLY bad idea.  Taking money out of a 401k or IRA to pay back a family loan is the granddaddy of bad ideas when you are in financial distress.  Not only do you incur taxes and penalties, but you have taken money that is protected from your creditors (in a 401k or IRA) and made it free game for those creditors, and for a bankruptcy trustee.   Absolutely, positively do not do this without consulting a lawyer.
4. Another really bad idea is to transfer assets away when you run into financial trouble.  Clients frequently tell me that they have some equity in an asset, and then ask me if they should transfer it to someone else.  The answer to that question is almost always “no.”  In fact, I can’t think of any exceptions to that rule, but I will leave it at “almost always” in case there is an exception I’ve never run into.  Unfortunately, many of the people I talk to have already done that.  I don’t call them “clients” because I may not be able to help them, so they don’t become clients.  The transfer of an asset to keep it away from creditors is called a fraudulent conveyance, and it can have very serious consequences. It can restrict or eliminate the kind of bankruptcy relief you are entitled to, it can result in more law suits, and it can generally be unwound.  And often the asset that was transferred away is one that is exempt, that creditors couldn’t reach anyway, that is, until you transfer it away.  That’s right, once you give it away, you are no longer entitled to claim it as exemptproperty.  You can really make a mess for yourself with this one, so don’t do it.
5.  Don’t exhaust your savings to pay unsecured debt when your income drops.  Note that I used the word “exhaust.”  Most financial gurus will tell you that you need an amount in savings equal to your monthly bills for several months (two to six, depending on the “expert).   I’m not talking about a situation where you have enough savings to carry you for six months, and you are going to be out of work for surgery for two months.  I’m talking about a situation where you’ve been laid off, and you’re facing an indefinite period without sufficient income to live on.  Most of us would cross our fingers and try to keep paying everything for a month or two.  But don’t continue to try to pay unsecured debt at the expense of paying the folks who can really hurt you, like your mortgage company.  If you aren’t sure about which is which, and how you should prioritize the use of your savings, consult with an attorney, or with a financial counselor.   How you should set your priorities, and what options you have depend on your individual situation, including your age, your assets, and how much you owe.  If you aren’t sure, look for expert advice that is tailored just for you.
Tune in for Part Two, and avoid the mistakes that will cost you in the long run.

OVERPAYMENT OF UNEMPLOYMENT BENNIES: DISCHARGEABLE?

If I Was Overpaid Unemployment Benefits And The State Wants Me To Pay It Back! Will Bankruptcy Help?

I was watching the news recently and it caught my attention that the State of North Carolina says that it had paid  lots of people more than it should have in unemployment benefits.  Because of this, the State will seek to recover the amount that it claims it overpaid.  See article here
If you were receiving unemployment and the State says you were paid too much, how are you going to pay the State back if you are (a) still unemployed, or (b) now have a job but make less money and still have other bills to pay like the house and car?  Will bankruptcy help?
Typically, once you file bankruptcy, the automatic stay will serve to stop a creditor from attempting to collect a debt.  Does that mean that the State would not be allowed to get its claimed overpayment?  A careful distinction is made when there is a claim forrecoupment  A recoupment is not stayed and the State may collect the overpayment of benefits by withholding future unemployment checks.
Let’s consider an example.  Suppose you are eligible for unemployment benefits and will receive a weekly check in the amount of $389.00 per week.  What if the State pays you in the amount of $489.00 per week for a period of 20 weeks.  In that instance, the State has overpaid you by $2,000.00 ($100 x 20 weeks).
Once the State figures this out, the State will request that you pay back that money back.  Of course, you do not have the money.  If you are still eligible for unemployment, the State will then reduce your future benefits to recover the overpayment.  To continue the example above, since the State overpaid you by $100 a week, the State may reduce your future benefits by $100 to recoup the overpayment–so instead of receiving $389.00 a week, you will receive $289.00 a week for the next twenty weeks.
So, how will bankruptcy help this situation.  If you are still receiving unemployment benefits when you file bankruptcy, it will not help at all.  Generally, recoupment actions are not stayed by the automatic stay so that the State can and will continue to withhold the amount it overpaid to you out of future benefits that are entitled to.
But, if you are now employed or no longer eligible to receive unemployment benefits, the overpayment is just a debt owed to the State.  It becomes a general, unsecured claim and will either be discharged or paid through your chapter 13 plan just like any other unsecured creditor.  In this instance, bankruptcy can be a big benefit in that it will discharge any claim the State may assert against you for overpayment of unemployment benefits.
It should be remembered that if the overpayment in unemployment benefits was caused by fraud on your part, that is a criminal offense and bankruptcy will not discharge that obligation.  For example, if you report to the Employment Security Commission that you are not working so you can continue to receive benefits when you really are working, that is fraud.  The State will seek to recover the overpayment and will quite possibly start a criminal prosecution.  Bankruptcy will do little to help in that instance.
This type of situation occurs with some regularity in the context of overpayments for unemployment benefits.  It also occurs with some regularity with overpayments of Social Security benefits and with long-term disability benefits through a private disability insurer.  It is important to note that a recoupment of an overpayment is not stopped by the automatic stay but a set-off of debts is stopped.
In the context of unemployment or disability overpayments, an overpayment can be recouped through a reduction in future benefits.  However, if you are no longer eligible to receive these benefits so that you do not have any future benefits from which the overpayment can be recouped, then the claim for overpayment is just another unsecured debt and can be discharged through your bankruptcy case.

DIVORCE DEBT & BANKRUPTCY

Divorce Debt In Bankruptcy

We have lots of divorces and too much debt in America today.
As an attorney who has done lots of domestic law work, I recall the time when the court divided the property between the husband and wife, including the value in their house.
Well, those days are gone, as the song says.
One of the prime causes of marriages falling apart is money troubles.
There is no value now to split up in most cases.
But, in most cases, both husband and wife are on the mortgage.
The house is awarded to someone, but the divorce judge is without power to remove a name from of a mortgage, or any other contract, that you signed.
The divorce judgment binds only the people actually getting divorced.
The Total Money Makeover, by Dave Ramsey, the myth on page 66:
“My divorce decree says my spouse has to pay the debt, so I don’t.”
WRONG!
Total myth, yet I still find people who believe it.
Whatever debt you signed for before the divorce, you still owe.
All a divorce judge can do is make one spouse indemnify, or reimburse, the other, for whatever he/she spent paying a debt the other was ordered to pay.
That means you pay the debt first, and then chase your ex for what it cost you, to get reimbursed.
Not the best financial planning.
If you are getting divorced, especially with kids involved, your expenses are probably not going down as much as your income.
So if you were financially in the hole before the divorce, that hole will just get deeper.
And if you try to pay everyone you were ordered to pay, what if your ex files bankruptcy, taking his or her name off the debts?
This means you are the only one the creditors can chase.
So work on your post divorce budget, and discuss your options with a bankruptcy lawyer before you get break up.
That is planning.
Debts you are ordered to pay in a divorce judgment are not dischargeable, that is, you cannot get out of them, in Chapter 7 bankruptcy..
So don’t think you can just make that divorce deal and waltz over to bankruptcy court and get out of the bills you agreed to pay.

SAVING YOUR HOME

Mortgage and Bankruptcy: Save Your Home!

If you are behind in the mortgage payment on your home, there are several things you can do.  One way to stop a foreclosure is to file bankruptcy.  Once filed, there is anautomatic stay that goes into effect that keeps anyone from taking your property, including your home.
In a chapter 7 bankruptcy, however, the first thing the mortgage company is going to do is to file a motion for relief from the automatic stay so that they can continue the foreclosure.  This is usually granted by the court if you aren’t making your house payments.
On the other hand, in a chapter 13 bankruptcy, the law gives you a right to stop the foreclosure altogether so long as your plan payments can catch up on what is owed the mortgage company.  This is often easier than it sounds.  Without the help of the bankruptcy you would have to come up with the total amount that is in arrears right away.  That will be the sum of all of the missed payments and can be a daunting amount.
In a Chapter 13 however, you have up to five years to cure the amount you are behind.  So, even a sum as large as $10,000 can be paid at $200 or so (including the administrative costs) a month.  Not so scary!
Meanwhile, you can look for a modification program to totally restructure your home loan to something you can afford.  There are Federal programs to do this, and most mortgage companies will work with you towards that end.
Unfortunately, the ultimate decision lies with the mortgage company. There is no judge or government agent that can force a modification.  Nonetheless, it does happen, and you will be able to modify your mortgage payments while in the Chapter 13 plan.
Keep your attorney apprised of the situation so she can make whatever changes are necessary in your bankruptcy plan.