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How Many Work Credits Do I Need to Get Social Security Disability in Ohio and Kentucky?

Posted on Monday, July 2nd, 2018 at 11:27 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Dayna Wilson, a law clerk at Lawrence and Associates, who is pursuing her Juris Doctorate at Chase College of Law.

Today, many people are unfamiliar with work credits requirements. Further, some people have not even heard of the term. This blog is designed to make you to have a simple understanding of social security work credits and the importance of them. Here at Lawrence & Associates, we encourage you to call us for a free consultation! We are qualified representatives who can help determine whether you qualify for Social Security Disability.

What are Social Security Work Credits?

Let’s jump into Social Security benefits and what you should know about them. The Social Security Administration refers to these work credits as the “building blocks” which Social Security uses to determine whether you have worked long enough to qualify for benefits. Work credits are earned throughout your employment history.

You qualify for Social Security benefits by earning Social Security credits when you work in a job and pay Social Security taxes. Credits are based on your income during the year, no matter when you did the actual work. When an individual works they can earn up to 4 credits in a year. It is important to keep in mind that it does not matter if you earn $5,000 or $500,000 in a given year, you can only earn up to four credits in a given year. Currently, a worker must earn $1,320 to earn one work credit. This figure gets adjusted based on inflation every year. Your average earnings during your working years determine how much your monthly payment will be.

How Many Credits Do You Need to Be Eligible in the Cincinnati area?

The number of work credits needed for disability benefits depends on your age when you become disabled. In general, you need 40 credits, with 20 earned in the last 10 years ending with the year you become disabled. However, younger workers can qualify with fewer credits. For example, if you are 24 or younger, you may qualify if you have six credits earned in the three-year period ending when your disability starts. If you are between the age of 24 to 31, you may qualify if you have credit for working half the time between age 21 and the time you become disabled. For example, if you become disabled at age 27, you would need credit for 3 years of work (12 credits) out of the past 6 years (between ages 21 and 27). For individuals 31 through 42, the number of credits needed for disability benefits is 20.

In this video, Social Security Attorney Danielle Lawrence, explains to be considered for Social Security Disability at the age of 46, you will need 24 work credits in the last 10 years. On the other hand, if an individual is 58, 36 work credits are needed in the last 10 years in order to qualify. Social Security will use those work credits from the 10 years prior to disability to determine whether an individual may receive Social Security disability benefits.

A common misconception among many people is that Social Security Disability is the same as Social Security Retirement. People may think if they are working hard and paying into their retirement, then they can easily qualify for Social Security benefits. However, it is important to know that is not the case.

Special Rules for Some Jobs

Are you an individual who is self-employed? If so, then you earn Social Security credits the same way employees do (one credit for each $1,320 in net earnings, and no more than four credits per year). There are special rules that apply if you earn less than $400. It is important to note, if you are in the military then you also earn credits the same way civilian employees do. Additional earnings may also be considered based on certain conditions.

How You Can Ensure Accurate Work Credits

Each year, your employer sends a copy of your W-2 (Wage and Tax Statement) to Social Security. Social Security Administration compares your name and Social Security number on the W-2 with their records. Your earnings shown on the W-2 are recorded on your lifelong earnings record. Your lifelong earnings record is what Social Security uses to determine your future benefits and the benefits amount.

Your name and Social Security number on your Social Security card must agree with the information on your employer’s payroll records and W-2. It is important to protect your benefits by ensuring that your employer has the correct social security number and name.

Why Are Work Credits Important to Social Security Disability Determinations in the Cincinnati Area?

According to the Social Security Administration, in 2017, about 173 million people worked and paid Social Security taxes about 62 million people received monthly Social Security benefits. Social Security reaches almost every family, and at some point, impacts the lives of nearly all Americans.

Social Security Attorney Kelsey Westermeyer explains the importance of work credits. She states, “If you do not have enough credits, you cannot get disability.” If you do not have enough credits, then Social Security Administration does not have to pay you monthly checks. A statement from your doctor saying you are disabled is not enough to qualify for Social Security disability benefits.

In sum, The Social Security Administration uses work credits to determine whether an individual qualifies for Social Security Disability benefits. An individual may earn a maximum of four work credits a year. Today, a worker must earn $1,320 to earn one work credit. As an individual gets older the more work credits are needed to qualify for benefits.

If you are unsure about the amount of credits you have earned then it is important to contact a qualified representative. Here at Lawrence & Associates, we are strong advocates for your rights in the Social Security system. We recognize your hard work and efforts and we are here to help you recover your benefits you have worked so hard for.

We offer a free, confidential consultation in order to determine whether you qualify for Social Security Disability. Call today! We’re Working Hard for the Working Class, and we want to help you.


How Can a Local, Cincinnati Attorney Help Get Social Security Disability Approved?

Posted on Thursday, June 28th, 2018 at 11:53 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Jennifer Tressler, who is pursuing her Juris Doctorate at The Ohio State University Moritz College of Law.

Social security disability attorneys can help make an overwhelming process seem much more manageable. While hiring a lawyer specializing in social security disability cases is not required, it will likely be extremely beneficial during a difficult time when your health is suffering. Social security disability attorneys have experience dealing with the Social Security Administration (SSA) and, as such, will be able to handle any of the various issues that could arise during the application process. You can expect your social security disability benefits attorney to review your case with you and ask you a variety of questions, both to gather information on your case and to prepare you for questions you may be asked should a hearing be necessary in the future. Your social security disability attorney will function as the liaison and communicator between you and the SSA. This is just one of the duties that you can expect your social security disability attorney to carry out on your behalf. But it is an important one, as the language and application process of social security disability is complex and often foreign to the average person. At Lawrence & Associates, Kelsey Westermeyer  handles the vast majority of social security claims and consistently achieves high approval ratings.

How Can My Attorney Help Get Approval for SSDI Through the Cincinnati, Ohio or Florence, Kentucky Social Security Offices?

Another one of the duties of your social security disability attorney is to complete an initial review of your case. This will happen no matter at which stage of the application process you are. After this initial review, your social security disability attorney will determine the best strategy for you moving forward. He or she will assist you in crafting a compelling story around your case and develop some strategies for how your case will be won.

One of the most common (and significant!) mistakes made by individuals applying for social security disability benefits is filing with an incomplete claim. The majority of applicants for social security disability benefits are denied during the initial stages, mostly due to incomplete applications. Having your social security disability attorney review your application and ensure its completeness is one of the best ways to ensure your application will go undo review in the proper channels.

Your social security disability attorney will collect and sort medical evidence on your behalf. Many social security disability cases are won and lost on medical evidence. After obtaining proper medical release forms, your social security disability attorney will help you gather the relevant medical evidence needed for your application. He or she will review your medical records and work alongside you to collect any missing medical information or tests. Most importantly, he or she will sort through the hundreds of pages of medical documents to determine which information is the most important. Many social security disability attorneys will work directly with your medical provider, physician, or other healthcare provider to gather supportive opinion statements and letters. Having this evidence strengthens your case and makes it more likely that you will be granted social security disability benefits. Additionally, if your social security disability attorney determines that additional testing is necessary to bolster your application, he or she can request a consultative examination from the Social Security Administration doctors or ask that you get the additional testing completed on your own.

Your social security disability attorney is responsible for staying in communication with the Social Security Administration. The Social Security office is enormous and has an immense volume of claims pass through it. The application process of social security disability benefits is complex, filled with multiple deadlines and various formalities that must be adhered to. Your social security disability attorney will communicate directly with the SSA on your behalf, so that you have less to worry about regarding your application and more time to work on your health. Having a middleman communicate with the SSA on your behalf protects your best interests during this already stressful time. Your social security disability attorney will work to push your social security disability benefits application through the system with minimum effort and work from you.

How Can My Attorney Help Represent Me in Front of a Social Security Administrative Law Judge at a Hearing?

If needed, your social security disability attorney will file the necessary appeals for you. According to the Social Security Administration, less than forty percent of social security disability applications are approved at the initial application level. If your case is one that receives an initial denial, you are entitled to appeal the decision. The appeals process contains several specific and distinct steps that much each be completed within a certain amount of time. Hiring and retaining a social security disability attorney can help you navigate the appeals process, should your initial application be denied. To that end, your social security disability attorney will represent you at disability hearings, if necessary. The majority of successful disability claims are won at the hearing level. If you are originally denied disability benefits and you and your attorney appeal the decision, you are offered a hearing in front of an administrative law judge.

The hearing process is stressful, and having adequate preparation is critical to your success. Having a social security disability attorney will ensure that you are adequately prepared for your hearing. Though you will still need to speak for yourself, your social security disability attorney will represent you during the process and prepare you to testify. Your social security disability attorney will ask questions of your witnesses and address any expert witnesses, such as medical or vocational experts. If you have already been granted social security disability benefits but feel that you are not receiving adequate compensation, your social security disability attorney can help you request additional financial aid in the form of SSI benefits.

Your chances of success when applying for social security disability benefits dramatically improve if you are working with a social security disability attorney. Even if you are struggling financially due to your illness, hiring and working with a social security disability benefits attorney is well worth your time, energy, and money when you consider that without their help, winning your case can be exponentially more difficult. If you are overwhelmed by the social security disability benefits application process and would like some assistance from qualified, experienced individuals, contact Lawrence & Associates today. We can help you obtain that fresh start that you deserve! Call today for a free consultation at (859) 371.5997. We’re Working Hard for the Working Class, and we want to help you!


The Personal Injury of Never Playing Again: Damages for Athletes in Southern Ohio and Northern Kentucky

Posted on Tuesday, June 5th, 2018 at 8:32 am    

The following article was written by William Doering, a former law clerk at Lawrence and Associates. Doering is currently a student at Chase Law and pursuing a Juris Doctorate.

Personal injury cases happen all the time. Most are run-of-the-mill in terms liability and damages. However, there are always extraneous circumstances where damages can be more complex. Each individual plaintiff will require a different amount and type of damages depending on the facts of the accident and the plaintiff’s life circumstances. After accidents, plaintiffs are concerned with being able to do the activities that they were able to do before the accident. Plaintiffs who are no longer able to do certain activities following a personal injury accident may be compensated for that loss. For many, playing sports is an activity that plaintiffs lose the ability to do after an accident.

Suppose for instance that you are an athlete who has just been in a motor vehicle accident. The injury caused by the negligent third party has left you unable to play your respective sport. Damages are proper to help pay for the value of your damaged vehicle, your medical bills, and future treatment. However, you also have the ability to claim damages for being unable to play sports in the form of loss of enjoyment of life. We’ve previously written about damages on several occasions. This blog will describe the basics of personal injury damages, explain the purpose and function of loss of enjoyment of life damages, then describe damages for pro and semi-pro sports players, and discuss how to claim these damages in a tort lawsuit in both Kentucky and Ohio.

What Kinds of Damages Are Allowed in Kentucky and Ohio?

In all successful tort claims, plaintiffs will be able to claim compensatory damages. These can be either general damages or special damages. The American Jurisprudence defines general damages as “those that are the natural and necessary result of the wrongful act or omission asserted” in the complaint. These damages compensate the plaintiff for any loss, injury, or damage such as property damage or medical bills resulting from an accident. Special damages, sometimes called hedonic damages, are another form of compensatory damages. These damages encompass “damages for a harm other than one for which general damages were given.” Special damages can include expenses like loss of enjoyment of life, loss of consortium, pain and suffering, lost wages, mileage, or lost profits.

When claiming special damages, plaintiff must show that they received a great deal of bodily harm; past what general damages can cover. Special damages are calculated separately from one another depending on the jurisdiction; i.e. loss of enjoyment of life will be judged as a separate and distinct category of damages from pain and suffering. Kentucky does not recognize loss of enjoyment damages as a separate claim. However, loss of enjoyment damages may be considered as evidence in determining the severity of injuries, general damages, or pain and suffering. In limited circumstances, Ohio does see loss of enjoyment damages as a separate claim. The reasoning is that Ohio courts see loss of enjoyment damages as a loss of positive experiences rather than an infliction of negative experiences. In calculating loss of enjoyment damages, Ohio limits recovery to circumstances of the injury that were not already addressed in the general damages. This ensures that there are no excess damages awarded to the plaintiff.

What Special Damages Do Kentucky and Ohio Allow Professional Athletes to Claim?

Claiming damages for inability to enjoy sports requires a showing that the harm suffered resulted in a “loss of ability to engage in sports or recreational activities, … loss of a desired vocation or avocation, loss of use of a limb, … or miscellaneous losses” as the court deems fit. A plaintiff must have “developed the ability to perform a pleasurable activity or hobby specifically identified to his or her lifestyle.” There must be an adequate showing that the plaintiff regularly participated in and enjoyed the activities which they can no longer do because of the injury suffered.

If the plaintiff is an athlete with potential to play college, semi-professional, or professional sports, that factor is taken into consideration. However, this type of predictive futures damage is harder to prove. Courts err on the side of caution before awarding these damages because they must be a precise as possible. Not every person injured in a car accident will make it to the pros. Thus, not all plaintiffs should be able to claim these extra damages for potential lost financial damages. Courts will only rule in favor of extra damages in this manner if an athlete was already playing sports at a higher level or if they were certain to play them and have some form of monetary gain from playing them in the near future.

Loss of enjoyment damages are real damages that can be claimed from a personal injury accident. Courts in Kentucky and Ohio allow for them to be claimed following an injury; they are just argued differently. If you have been injured due to someone else’s negligence and can no longer enjoy playing sports, you can be compensated for this loss of enjoyment. Make sure to talk to a legal professional about your options if you think you can claim these damages. The legal system may not get you back to playing sports again but it can fairly compensate you for the loss of those positive experiences in life.

Are you a pro or semi-pro athlete that has been injured in an automobile accident or as a result of someone else’s negligence? Don’t go it alone! Lawrence & Associates has helped thousands of people recover for their injuries, and we know how to fully recover for your damages. We’re Working Hard for the Working Class, and we want to help you!


The Benefits Available Through Workers’ Compensation in Cincinnati, Ohio

Posted on Wednesday, May 2nd, 2018 at 10:13 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Thomas Rovito, who is pursuing his Juris Doctorate at the Ohio State University.

When one thinks of workers’ compensation, a person may reasonably think of it as a monolithic concept. However, when the theory meets reality, Ohio workers’ compensation includes several varieties, such as medical care, temporary disability, partial disability, permanent total disability, and benefits in case of death, all with unique characteristics under Chapter 4123 of the Ohio Revised Code.

Before reaching the characteristics of the unique varieties of workers’ compensation in Ohio, it is important to take stock of readily available and free resources on this topic. First, the Ohio Bureau of Workers’ Compensation and the Ohio Attorney General’s Workers’ Compensation Section have free resources from the state on this topic. While the webpages of the state agencies can be hard to navigate, they do have in-depth publications for injured worker, such as BWC Basics for Injured Workers and Compensation Types. Third-party legal websites Nolo and Findlaw have great information on this topic available for free. In addition, professional groups like the Ohio State Bar Association maintain readily available pamphlets on this topic.

Now, let’s turn to the characteristics of the unique varieties of workers’ compensation in Ohio.

I. Medical Care (O.R.C. § 4123.66)

This benefit includes “the amounts for medical, nurse, and hospital services and medicine as the administrator deems proper” under O.R.C. § 4123.66(A). In addition, this section includes “reasonable funeral expenses in an amount not to exceed fifty-five hundred dollars” if “death ensues from the injury or occupational disease.” If the injury damages the “eyeglasses, artificial teeth or other denture, or hearing aid” of the worker, they will be entitled to “a reasonable amount to repair or replace the same.” This statute also outlines the counter of the first prescription drug refill and welfare plans, which are further fleshed out in administrative rules derived from the statute.

II. Temporary Disability (O.R.C. § 4123.56)

Under temporary disability, “an employee shall receive sixty-six and two-thirds per cent of the employee’s average weekly wage so long as such disability is total” with a few internal threshold caveats as described in Chapter 4123. If the injury persists and prevents the clamant from working in the professional opinion of a certified medical doctor, after two hundred weeks the clamant must report for a determination by the Bureau of Workers’ Compensation for a permanent disability status determination. In addition, if the employee suffers a wage loss “as a result of returning to employment other than the employee’s former position of employment due to an injury or occupational disease” or “as a result of being unable to find employment consistent with the employee’s disability resulting from the employee’s injury or occupational disease,” then the employee is entitled to “compensation at sixty-six and two-thirds per cent of the difference between the employee’s average weekly wage and the employee’s present earnings, not to exceed the statewide average weekly wage” which cannot go beyond two hundred and twenty-six weeks in total.

III. Partial Disability (O.R.C. § 4123.57)

Partial disability flows from “[t]he district hearing officer, upon the application, shall determine the percentage of the employee’s permanent disability . . . based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable.” This statute also has a schedule for injuries. For instance, the loss of a little finger is 15 weeks, whereas the loss of a leg is 200 weeks.

IV. Permanent Total Disability (O.R.C. § 4123.58)

If a worker is permanently and totally disabled, then “the employee shall receive an award to continue until the employee’s death in the amount of sixty-six and two-thirds per cent of the employee’s average weekly wage” with limited caveats. If the employee is also receiving Social Security disability benefits, and those benefits are reduced or terminated, then “the workers’ compensation award shall be recomputed to pay the maximum amount permitted under this division.” Very importantly, O.R.C. § 4123.58(C)-(D) distinguishes between what constitutes permanent total disability, and what does not constitute permanent total disability. Permanent total disability includes when “[t]he claimant has lost… the use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof,” or “[t]he impairment resulting from the employee’s injury or occupational disease prevents the employee from engaging in sustained remunerative employment utilizing the employment skills that the employee has or may reasonably be expected to develop” under O.R.C. § 4123.58(C). However, permanent total disability does not cover “[i]mpairments of the employee that are not the result of an allowed injury or occupational disease,” “[s]olely the employee’s age or aging,” “[t]he employee retired or otherwise voluntarily abandoned the workforce for reasons unrelated to the allowed injury or occupational disease,” and “[t]he employee has not engaged in educational or rehabilitative efforts to enhance the employee’s employability, unless such efforts are determined to be in vain” under O.R.C. § 4123.58(D).

V. Benefits in Case of Death (O.R.C. § 4123.59)

Ohio law distinguishes between benefits in case of death if the worker dies from an injury or occupational disease cause by their employment if the employee has any dependents or not. If the employee does not have any dependents, then “the disbursements from the state insurance fund is limited to the expenses provided for in section 4123.66 of the Revised Code.” On the other hand, if the decedent employee does have “wholly dependent persons at the time of death,” then “the weekly payment is sixty-six and two-thirds per cent of the average weekly wage” subject to state-established internal payment caps. If there is more than one “wholly dependent persons at the time of death,” then “the administrator of workers’ compensation shall promptly apportion the weekly amount of compensation payable under this section among the dependent persons.” Dependent spouses “shall continue from the date of death of an injured or disabled employee until the death or remarriage of such dependent spouse. If the dependent spouse remarries, an amount equal to two years of compensation benefits at the weekly amount determined to be applicable to and being paid to the dependent spouse shall be paid in a lump sum to such spouse and no further compensation shall be paid to such spouse.” Other dependents “shall continue from the date of death of an injured or disabled employee to a dependent as of the date of death, other than a spouse, at the weekly amount determined to be applicable and being paid to such dependent other than a spouse.” These payments cease when other dependents “[r]eaches eighteen years of age;” “[i]f pursuing a full time educational program while enrolled in an accredited educational institution and program, reaches twenty-five years of age;” or “[i]f mentally or physically incapacitated from having any earnings, is no longer so incapacitated.”

Thus, workers compensation in Ohio comes provides many different benefits, including medical care, temporary disability, total permanent disability, benefits in case of death, all with unique characteristics. If you have been injured on the job and have additional questions, Lawrence & Associates offers free, confidential consultations. We’re Working Hard for the Working Class, and we want to help you. Call today!


Cincinnati, Ohio Workers’ Compensation Awards for Permanent Partial Disability and Permanent Total Disability

Posted on Monday, April 23rd, 2018 at 1:59 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jennifer Tressler, who is pursuing her Juris Doctorate at The Ohio State University Moritz College of Law.

Below is a case study used by law students to teach them about the difference between Permanent Partial Disability (PPD) and Permanent Total Disability (PTD). By reading it, you may learn which of these applies to your Workers’ Compensation claim!

What Injuries Led This Cincinnati Woman to File for Workers’ Compensation?

Sherry Redwine was injured at work on August 13, 2003. She filed a workers’ compensation claim for lumbosacral strain, radiculopathy right lower extremity, aggravation of pre-existing degenerative disc disease, depression, and ruptured disc at L4-5 with free disc fragment and applied for permanent-total disability compensation. It was determined that she was now unable to perform any sustainable employment due to the medical impairment caused by her psychological condition, and thus she was awarded benefits to continue until her death.

In August 2013, Ms. Redwine applied for permanent-partial disability compensation. While she admitted that she was not entitled permanent-partial disability compensation for her psychological condition (which she had already been awarded permanent-total disability compensation for), she stated that she was entitled to this award based on her physical conditions. Her application was denied by a district hearing officer, who noted that her physical and psychological impairments were a result of the same workplace injury, saying therefore that she would be unable to collect both permanent partial disability and permanent total disability for the same injury. A staff hearing officer reconsidered her case and decided that claimants would not be barred from collecting both types of compensation provided that the conditions for which s/he is seeking permanent-partial disability were not the basis for which the permanent-total disability had been awarded.

In response to this, Ms. Redwine’s employer, Ohio Presbyterian Retirement Services, Inc. (OPRS), filed a complaint alleging that there was no evidence or authority to base this decision upon, but their complaint was denied. OPRS then appealed this decision to the Supreme Court of Ohio. Their appeal contains references to three different Ohio statutes (O.R.C. 4123.95, O.R.C. 4123.58, O.R.C. 4123.57(A)). The Supreme Court was concerned with the Industrial Commission’s interpretation of these statutes. In the event that the Commission is found to have misinterpreted a statute, the Court has the authority to issue something called a writ of mandamus to correct the misinterpretation.

How Do Permanent Partial Disability (PPD) and Permanent Total Disability (PTD) Actually Work?

The Industrial Commission is authorized to pay permanent-partial disability compensation to employees who suffer an injury or disease that result in a permanent partial disability and is intended to cover employees who can still work. Permanent-partial disability compensation comes in two forms: (1) compensation for a specific loss and (2) compensation based on the percentage of permanent disability pursuant to O.R.C. 4123.57(A), which is the type of compensation at issue in Ms. Redwine’s case. For the latter type of compensation, a district hearing officer determines the percentage of disability based on evidence submitting at a hearing, with compensation based upon the employee’s wages.

Permanent-total disability is also calculated based upon an employee’s wages and lasts until the employee’s death. The purpose of this type of compensation is to provide injured workers with compensation for loss of earning potential resulting from their injury or disease. This type of compensation also has two categories: (1) compensation for loss of body parts and (2) compensation for a workplace injury that prevents the employee from obtaining future lucrative employment, which is the type of compensation at issue in Ms. Redwine’s case.

The rules of statutory interpretation that the Supreme Court of Ohio is bound by are that they must determine and attribute the legislative intent, that the legislative intent must be determined primarily from the language of the statute itself, and if the statute is unambiguous, they must apply the statute as written. It is also mandated that workers’ compensation laws be construed in favor of employees.

Keeping these rules in mind, the Supreme Court of Ohio’s main issue was to decide whether the Industrial Commission has the authority to grant concurrent compensation of permanent-partial disability and permanent-total disability under O.R.C. 4123.57(A) and O.R.C. 4123.58, respectively. They held that the Industrial Commission does not have this authority.

The Court’s reasoning is that the language of the statutes is so plain and unambiguous that they are forced to apply the language of the statutes as written. Since there is no language in the workers’ compensation statutes that specifically allow for concurrent payment of permanent-partial disability and permanent-total disability compensation, the Court was unable to find for Ms. Redwine. The Industrial Commission argued that the statutes do not specifically prohibit concurrent payments in the same claim, but the Court countered by pointing out precedent that an injured employee only has the right the recover workers’ compensation benefits allowed by statute. The Court says that if the legislature intended to allow injured workers to concurrently receive permanent-partial disability and permanent-total disability payments in the same claim, it could easily have included it in the statutes. The Industrial Commission maintained that the statutes neglecting to comment on the issue of concurrent payment creates an ambiguity in the statutory language that must be decided in the workers’ favor, but the Supreme Court of Ohio reasons that the omission was intentional. Per Ms. Redwine’s request, the Court reopened her case for further consideration, but after hearing oral arguments on both sides, the Court adhered to their decision.

How Can Greater Cincinnati Residents Get the Permanent Partial Disability (PPD) and Permanent Total Disability (PTD) They Deserve?

What does this mean for workers injured on the job? Being unable to concurrently collect both permanent-partial disability compensation and permanent-total disability compensation will reduce benefits able to be collected by the most severely injured workers on the job. Workers like Ms. Redwine, who suffered both extensive physical and extensive mental injuries during her employment, will need to choose whether to apply for permanent-partial disability compensation or permanent-total disability compensation, as they will be unable to successfully apply for and receive both types of compensation. This may sound overwhelming, or even scary, but do not be afraid to reach out for help!

If you have been injured on the job like Ms. Redwine, contact Lawrence & Associates today. We can help you explore options to get the workers’ compensation you deserve! Call today for a free consultation at (513) 351-5997. We’re Working Hard for the Working Class, and we want to help you!


Lawrence & Associates Help Cincinnati Firefighter Get Workers’ Compensation Benefits

Posted on Wednesday, April 4th, 2018 at 10:16 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Joseph Lowe. Lowe is a law clerk here at Lawrence and Associates, and is pursuing his Juris Doctorate at NKU Salmon P. Chase College of Law.

Lawrence & Associates pays attention to the law. You probably read that and thought, “Well, I hope an experienced group of attorneys pays attention to the law!” But what you may not know is that over time the law changes. What separates the great attorneys from the rest is the amount of attention they pay to the ever changing law. Recently, Attorney Marisa A. Dyson exemplified what it means to pay attention to the new laws and the benefits they can provide injured workers.

Marisa has been practicing law since 2014. She desires to represent her clients to the best of her ability and that means keeping tabs on how the law may be changing. Marisa represents many clients with Workers’ Compensation claims. Recently, Marisa won a case for her client largely because she was paying attention to new changes in the law. Before April of 2016 a firefighter could not get Workers’ Compensation benefits if he could not prove that his cancer was caused by exposure to all of the various carcinogens that come with fighting fires. Obviously, as pinpointing the cause of cancer is nearly impossible, this was a very difficult burden for injured workers to satisfy.

This past year Marisa represented a client who may not have been able to get the benefits he desperately needed if this new law were not enacted. Marisa followed Ohio S.B. 27 and the corresponding new legislation which became effective in April of 2016 and used this brand new statute to gain Workers’ Compensation coverage for a firefighter. This law was specifically enacted for the protection of firefighters who are denied Workers’ Compensation when they are suffering from cancer that they have acquired from the risks of their job.

Marisa’s client had been a firefighter for almost 30 years and had developed cancer as a result of his service to his community. This new law lays out a rebuttable presumption that if a fire fighter contracts cancer before the age of 70, has completed 6 years of hazardous duty within the past 15 years, and develops cancer, such cancer is caused by and a result of his or her employment. Marisa argued the facts of her client’s case and fought to get him the benefits he deserves. Specifically, Marisa won the firefighter the benefits he is entitled under the new law by proving:

  1. Her client served as a firefighter in hazardous duty for the required 6 years,
  2. Her client was under 70,
  3. Her client was actively working for the fire department within the past 15 years,
  4. Her client was disabled because of his cancer, and
  5. Her client was exposed to a 1 or 2A carcinogen as a result of employment.

It is important to have an attorney who not only advocates for your cause, but is equipped with the proper knowledge of what the law is when it matters to you. Marisa and the attorneys at Lawrence and Associates pay attention to the law and how it is changing. They are experienced at representing a variety of clients and will provide expert legal representation to every client they serve. If you need help with a Workers’ Compensation claim, don’t go it alone. Call Lawrence & Associates for a 100% free consultation. We’re Working Hard for the Working Class, and we want to help you!


The Intersection of Personal Injury and Bankruptcy: What Happens When Your Personal Injury Claim Intersects with the Defendant’s Bankruptcy

Posted on Tuesday, March 27th, 2018 at 9:53 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Thomas Rovito, who is pursuing his Juris Doctorate at the Ohio State University.

Note from editor: This article discusses federal law and cites to sources outside the Cincinnati and Northern Kentucky area. If you live in Cincinnati or Northern Kentucky, you can review Kentucky specific case law at our article for the Advocate, which is re-printed here.

 

Consider the following hypothetical. You are driving your car on the way to work, and you get t-boned at an intersection. You, as plaintiff, commence personal injury litigation against the other driver, as defendant, but in the midst of this litigation, the defendant driver files for bankruptcy as a debtor. Do you lose your lawsuit, or what do you have to do to keep the lawsuit alive?

While this situation is not the norm, bankruptcy attorneys do come across a few cases that fit the above fact pattern. And some of those attorneys have drafted white papers to facilitate knowledge on the process of preserving the plaintiff’s claim, such as the standout article by Jeffrey Traurig, “Defendant in Personal Injury Action Files for Bankruptcy – Now What?,” as well as “Scheduling and Protecting Personal Injury and Other Causes of Action in Bankruptcy Cases,” and “How Bankruptcy Affects Personal Injury Lawsuits.”

First, upon the debtor-defendant’s petition for bankruptcy, the bankruptcy court will grant an automatic stay to the personal injury litigation pursuant to 11 U.S.C. § 362(a). This stay will pause external litigation during the course of the bankruptcy proceeding. Once plaintiff’s counsel is on notice (either through being filed and served through the court of the personal injury claim or bankruptcy court, hearing from the client, or learning through a publication), the plaintiff’s counsel must obey the stay, as actions taken in violation of the stay “are generally void,” and are possibly punishable with sanctions from 11 U.S.C. § 362(k). The plaintiff’s attorney should monitor any bankruptcy filings or notices to note any changes to the automatic stay or any determinations that would result in claim or issue preclusion.

It also matters what kind of bankruptcy the debtor is seeking from the bankruptcy court. For instance, if the debtor is petitioning for a Chapter 7 liquidation, then plaintiff’s counsel should timely file a “proof of claim” against the debtor’s estate. According to Traurig, a timely filing means “a proof of claim must be filed before the proof of claim deadline regardless of whether a claim is scheduled as undisputed.” A claim, under 11 U.S.C. § 101(5), is a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” The “proof of claim” must be presented on the official proof of claim form pursuant to Federal Rules of Bankruptcy Procedure 3001 to the bankruptcy court, which is a necessary precondition to receive disbursements from the debtor’s estate. To improve the relative chances of success, the plaintiff should attach legal documentation, such as the summons and complaint (ideally with medical records and evidence of damages) against the defendant. Plaintiff’s counsel should be vigilant for any bankruptcy filings or public notices regarding the proof of claim deadline, and seek to preserve and present any credible evidence of the plaintiff’s injuries.

Another possible move plaintiff’s counsel could make to ensure timely compensation for his client is to petition the court to modify the automatic stay through 11 U.S.C. § 362(d). As the bankruptcy automatic stay may last years, it may delay compensation for the plaintiff; however, 11 U.S.C. § 362(d)(1) allows “[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—(1) for cause. . . .” It is important to note that “cause” is not defined in the relevant section, and that the various circuit courts have applied different factor based tests to evaluate whether there is “cause.” As noted by Traurig, courts may consider whether the debtor was insured and how much the debtor would pay during the cause evaluation:

Because prejudice against a debtor is one of the primary factors in any balancing test, one of the factual issues that weighs heavily in determining whether the automatic stay should be lifted for a personal injury action to proceed is whether insurance is available to satisfy the claim and whether the debtor would be required to pay defense costs or deductibles. If a debtor has sufficient third party commercial coverage with no deductible (or a deductible that has already been met) and if the insurance carrier is responsible for all defense costs with no premium adjustment, it is likely that a bankruptcy court would authorize the lifting of the automatic stay to permit the claimant to proceed against insurance.

On the other hand, if the debtor is responsible for defense costs and deductibles, or if insurance will not satisfy the claim in full, the court will need to balance the factors to determine whether the stay should be lifted, including whether there is a likelihood that pre-petition unsecured creditors will receive distributions in the bankruptcy case and the ultimate need for the claim to be liquidated, as well as whether the claimant will agree to waive claims against the debtor’s estate if insurance is not adequate.

Thus, if the preconditions of 11 U.S.C. § 362(d) are met, and the defendant has insurance and would be subject to minimal cost, then there is an enhanced possibility of the bankruptcy automatic stay being modified.

An additional complication concerns the statute of limitations for the plaintiff’s claim and the imposition of the automatic stay. According to Traurig, while the statute of limitations “may” be extended, it “is not tolled.” Thus, plaintiff’s counsel should keep an eye on whether the statute of limitations is running down, and whether plaintiff’s counsel could file within 30 days’ notice of the termination of the automatic stay, pursuant to 11 U.S.C. § 108(c).

Thus, as Traurig concludes, the key to keeping your claim alive at the intersection of personal injury and bankruptcy is to ensure:

[T]hat proper steps be taken to ensure that a claimant’s rights are protected and that the attorney is properly representing the client, including ensuring that a proof of claim is timely filed and that the statute of limitations does not expire after the termination of the stay. Attorneys should also consider whether they should actively seek to modify the automatic stay to proceed against insurance while the bankruptcy is pending and should review notices and other pleadings filed in the bankruptcy case to ensure that orders are not entered that impair the ability to proceed against available insurance and should consider monitoring the docket in the bankruptcy case.

If you’ve been hurt in an accident or need to file bankruptcy, don’t go it alone! Lawrence & Associates offers free, confidential consultations and has helped thousands of people in Cincinnati and Northern Kentucky. We’re Working Hard for the Working Class, and we want to help you!


Medical Bills and Bankruptcy: Can filing a bankruptcy affect my medical bills?

Posted on Wednesday, March 14th, 2018 at 11:29 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Jennifer Tressler, who is pursuing her Juris Doctorate at The Ohio State University Moritz College of Law.

Seeing medical bills pile up is one of the most stressful and overwhelming experiences a family can go through, particularly when being able to pay for them seems to be a far-off dream unable to be reached in this lifetime. Sometimes, the only thing that seems feasible is declaring bankruptcy. If this sounds like you, do not worry! You are not alone.

Although courts do not require individuals declaring bankruptcy to disclose their reasons for doing so, research shows us that medical bills are the single largest cause of personal bankruptcy, accounting for between fifty and sixty-two percent of all personal bankruptcy filings. This is unsurprising when considering that medical bills often come on suddenly, can be unexpected, and are often very large amounts of money that insurance does not always cover. [Ed. Note: In Northern Kentucky, most medical treatment is provided by St. Elizabeth hospital or one of its subsidiaries. The article below applies to St. Elizabeth and all its subsidiaries, regardless of whether St. Elizabeth has filed a lawsuit against you!]

When filing for bankruptcy, a consumer’s debt is separated into multiple categories. This is because only certain debts can be eliminated through bankruptcy. Fortunately, medical debt is one of them! During bankruptcy, medical debt is considered general, unsecured debt, just like credit cards. This means that medical bills receive no priority treatment during bankruptcy and are able to be wiped out during bankruptcy filing. Depending on what type of bankruptcy a consumer qualifies for and which type of bankruptcy is in his or her best interests, he or she may be able to eliminate financial obligations for medical bills through filing for either Chapter 7 or Chapter 13 bankruptcy.

Chapter 7 bankruptcy is more common than Chapter 13. If a consumer qualifies for Chapter 7 bankruptcy, medical bills, along with all other general, unsecured debt, will be eliminated. There is no limit to the amount of medical debt that can be discharged in Chapter 7 bankruptcy. Any medical bills paid for by credit card will also be discharged. However, in order to qualify for a Chapter 7 bankruptcy, a consumer’s disposable income must be low enough to pass a means test.

The means test is intended to disqualify people with too high of income levels from filing for Chapter 7 bankruptcy. The test calculates whether or not a consumer has the means to pay back a portion of what is owed to creditors. It compares a consumer’s average monthly income for the six months prior to filing for bankruptcy against the median income of the state the consume is domiciled in while factoring in the consumer’s expenses as well as the national and local standards for living expenses. The test takes this information and determines whether a consumer has any disposable income left over with which to pay creditors.

A simple way to determine if you pass the means test is to figure out if your income is above or below your state’s median income for households which are the same size as your own. If your average income for the six months prior to filing for bankruptcy was below the median, you automatically pass the means test and qualify for Chapter 7 bankruptcy and do not need to fill out the rest of the means test. If your average income for the six months prior to filing for bankruptcy was above the median, you do not automatically pass the means test. However, this does not mean you have failed; it simply means you must complete the rest of the test, which requires more information about your expenses.

When filling out the means test, you are required to use IRS standard expense figures (which can be found here) for Northern Kentucky for certain living expenses, even if your actual expenses are higher than the allowed standards. However, actual expense figures are allowed for other expenses such as mortgage, car payments, taxes, health insurance, and child care. Speaking to an attorney can help you figure out the best way to determine if you can pass the means test.

If you do not pass the means test, you cannot file for Chapter 7 bankruptcy. You still may be able to file for a Chapter 13 bankruptcy, which is more complicated than a Chapter 7, but this means that you will likely have to pay back a portion of your debts.

In Chapter 13 bankruptcy, medical bills are categorized with other general, unsecured debts in a consumer’s repayment plan. The amount a consumer must pay general, unsecured creditors depends on income, expenses, and nonexempt assets. Each creditor receives a proportional (“pro rata”) portion of the total amount going towards the debts in the repayment plan. However, consumers can possibly have debt that is too high for a Chapter 13 bankruptcy.

Unsecured debt does not have property or other assets serving as collateral for its payment. Most consumer debt is unsecured. Chapter 13 bankruptcy is only available for consumers who have less than $394,725 total in unsecured debts, though this number changes periodically. Unfortunately, many of the people with debt higher than this cap are people with substantial medical bills. In addition to the unsecured debt limit, consumers must also not have secured debt (debt which has property attached to it as collateral) above $1,184,200 as of April 2016. This most commonly includes mortgages. More often, consumers do not meet the secured debt limit rather than the unsecured debt limit.

Chapter 13 bankruptcy is an option that allows consumers to retain property that they would otherwise lose in a Chapter 7 bankruptcy. What debts are repaid, how much is paid each month, and what happens to debts at the end of a three to five year period is all laid out in a Chapter 13 repayment plan. Though the process of filing for bankruptcy may seem overwhelming, it can help to relieve some of the debt that individuals are struggling to keep up with from harsh medical bills and lack of insurance.

If you are overwhelmed by mounting debt and tired of receiving harassing phone calls from creditors, contact Lawrence & Associates today. We’ve helped hundreds of people overwhelmed with mountains of medical bills, and we can help you obtain that fresh start that you deserve! Call today for a free consultation at (859)371.5997. We’re Working Hard for the Working Class, and we want to help you!


Discharging Student Loan Debt Through Bankruptcy – Choosing Your Path Forward in the Northern Kentucky Bankruptcy System

Posted on Tuesday, February 27th, 2018 at 11:13 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Thomas Rovito, who is pursuing his Juris Doctorate at the Ohio State University.

One of the few things more frightening than end of term finals for students is crushing loan debt after undertaking an educational degree. But fear not. There are several bankruptcy discharge options for federal student loans, which may be altered by the type of bankruptcy, such as Chapter 7 or Chapter 13, or if the student has a specific level of disability.

Fortunately, there are several sources available online for free that can serve as guides on this topic. For instance, the Federal Student Aid Office of the U.S. Department of Education provides information on both loan forgiveness, cancellation, and discharge, as well as what happens to your federal student loan if you file for bankruptcy. Third-party legal websites, such as FindLaw, LegalZoom, and Nolo have various summaries on this topic. In addition, popular newspapers on finance, such as Forbes and NerdWallet, and education, like U.S. News & World Report, occasionally run articles on this topic. In addition, Lawrence & Associates has a proven track record on successfully resolving student loan debt legal issues for clients.

It is important at the forefront to look at the underlying statistics behind student loan debt discharge through bankruptcy for a realistic assessment. According to empirical research from the American Bankruptcy Law Journal, while “only 0.1 percent of student loan debtors who have filed for bankruptcy attempt to discharge their student loans,” the sample recorded in the journal also noted 39 percent discharged some of their student loan debt. But what legal mechanisms create these underlying statistics?

The first decision is whether to file bankruptcy under Chapter 7 (Liquidation) or Chapter 13 (Reorganization). As most government funded or guaranteed educational loans are non-dischargeable upon filing for bankruptcy, this status places an additional onus on the debtor to commence an adversary proceeding against the loan holder in bankruptcy court. See 11 U.S.C. § 523(a)(8).

The standard to discharge a debt is to display “undue hardship” before the bankruptcy court under the Brunner test. See Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir. 1987). This test, which has been accepted by most circuit courts, analyzes the facts of the case under the totality of the circumstances through three prongs: first, that payments on the student loan debt would cause the debtor to fall below a minimal standard of living, second, that persistent special circumstances prevent the debtor from paying off the loan, and third, that the debtor made good faith efforts to pay off the loan before filing for bankruptcy. As this test is relatively elastic, the outcome of the analysis will depend on the particular bankruptcy judge hearing the case and the underlying facts presented by debtor. If the bankruptcy court issues a discharge for the student loan debt, the discharge may be either partial or total; the court also has the authority to modify the interest rate for the student loan. If the bankruptcy court refuses to issue a discharge, the debtor may try to switch to a different repayment plan more consistent with the revenue and expenditures of the debtor.

One persistent special circumstance that materially impacts the bankruptcy discharge is a total and permanent disability discharge (TPD). TPD applies to William D. Ford Federal Direct Loans, Federal Family Education Loan Program Loans, and Federal Perkins Loan Program Loans. A debtor may prove disability to the U.S. Department of Education in one of three ways: veterans may submit paperwork from the U.S. Department of Veterans Affairs articulating unemployability from a service-related disability, recipients of Social Security Disability Insurance or Supplemental Security Income may submit paperwork from the Social Security Administration, or the debtor’s physician can submit paperwork that attests that the debtor is totally and permanently disabled. To view the TPD certification process, please consult https://www.disabilitydischarge.com/. If the U.S. Department of Education (through the Nelnet Total and Permanent Disability Servicer) finds a TPD, then they will instruct the loan collector to cease collection activities and return any payments after the finding of disability; on the other hand, if the U.S. Department of education does not find a TPD, then they will allow the loan collect to resume collection activities.

In the event a debtor obtains a TPD discharge, then they can no longer qualify for a Direct Loan, Perkins Loan, or TEACH Grant, unless the debtor “obtain[s] a certification from a physician that you are able to engage in substantial gainful activity,” and the debtor fills out a form “acknowledging that the new loan or TEACH Grant service obligation cannot be discharged in the future on the basis of any injury or illness present at the time the new loan or TEACH Grant is made, unless your condition substantially deteriorates so that you are again totally and permanently disabled.”

In addition, if the debtor was granted a TPD discharge through the filing of Social Security Administration paperwork or by the debtor’s physician (rather than through the U.S. Department of Veterans Affairs), the debtor will be subject to a three year monitoring period from the U.S. Department of Education, in which the former debtor must respond to inquiries from the U.S. Department of Education or provide notice to the U.S. Department of Education regarding earning thresholds, changes in address, and changes in status. If the former debtor fails to comply with these monitoring requirements, the debtor’s former student loan may be subject to reinstatement.

However, going through the TPD discharge process without also receiving a bankruptcy discharge on a student loan debt can raise tax implications. The U.S. Department of Education will send notice of any discharge of more than $600.00 to the Internal Revenue Service. The U.S. Department of Education will then send an IRS Form 1099-C to the former debtor recording the total amount of the discharge, which is considered as income for federal taxes (and for some states). However, the student loan bankruptcy process will not raise secondary taxation concerns, since a bankrupt debt cannot result in taxation for the forgiveness of a loan. By definition, bankrupt debts are not forgiven.

Thus, bankruptcy through Chapter 7 or Chapter 13 provides one possible avenue for discharging student loan debt through an adversary proceeding in which the bankruptcy court will likely apply the totality of the circumstances. In addition, a finding of Total and Permanent Disability also provides another avenue for student loan debt relief. It is also important to consider non-bankruptcy alternatives for student loan debt relief, such as repayment options, deferments, forbearance, forgiveness, cancellation, consolidation, or rehabilitation, which may preserve the debtor’s credit rating.

For more information, consult one of the experienced attorneys at Lawrence & Associates when choosing your path forward on discharging student loan debt. We’re Working Hard for the Working Class, and we want to help you!


The Law Is on Your Side! Legal Recourse for Creditor Harassment After Filing for Bankruptcy in Kentucky

Posted on Tuesday, February 13th, 2018 at 11:48 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Thomas Rovito, who is pursuing his Juris Doctorate at the Ohio State University.

The bankruptcy process is designed to provide debtors with relief from their creditors through a structured legal process. As such, the law provides recourse for debtors from creditor harassment upon petitioning for bankruptcy. Some frequently asked questions regarding creditor harassment and the bankruptcy legal process, which this blog post will answer in turn, include:

  • Why do creditors have to stop harassing me?
  • What is an automatic stay?
  • What happens if a creditor does not obey automatic stay?
  • What is an adversary action?
  • When does a discharging junction kick in?

First, creditors may never illegally harass debtors. The Fair Debt Collection Practices Act (FDCPA), enforced by the Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB) and the debtor’s State Attorney General’s Office, provides baseline protections for all debtors from illegal creditor harassment. The FDCPA defines illegal creditor harassment as “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt,” such as threats of violence, obscene language, publishing a list of debtors, advertising the sale of a debt to coerce payment, engaging in repeated telephone conversations with the intent to annoy, abuse, or harass, and placing telephone calls without revealing the creditor’s identity under 15 U.S.C. § 1692d. In addition, creditors are prohibited from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt” under 15 U.S.C. § 1692e, and from using “unfair or unconscionable means to collect or attempt to collect any debt” under 15 U.S.C. § 1692f. Therefore, the FDCPA provides a baseline of protections for debtors.

Second, once a debtor files for bankruptcy, the debtor is entitled to expanded protections from creditors through an automatic stay. An automatic stay is “[a]n injunction that automatically stops lawsuits, foreclosures, garnishments, and all collection activity against the debtor the moment a bankruptcy petition is filed.” See 11 U.S.C. § 362. This section specifically includes “any act to collect, assess, or recover a claim against the debtor” in 11 U.S.C. § 362(a)(6). Thus, the automatic stay provides a raised level of protection after a debtor files for bankruptcy.

Third, a creditor may face legal recourse if the creditor does not obey an automatic stay after receiving notice upon the filing of bankruptcy. If a creditor willfully violates a provision of a stay, then the creditor may be liable for actual damages, costs, attorney’s fees, and “in appropriate circumstances,” even large-sum punitive damages through 11 U.S.C. § 362(k)(1). In addition, the bankruptcy court is empowered to impose contempt sanctions against the creditor under 11 U.S.C. § 105(a). In the Covington division of the Eastern District of Kentucky Bankruptcy court system, creditors have been sanctioned (i.e. fined) steeply for violating the automatic stay. Ultimately, bankruptcy law provides potent legal recourses to deter creditors from violating an automatic stay.

Fourth, an adversary action, or proceeding, is a “lawsuit arising in or related to a bankruptcy case that is commenced by filing a complaint with the court.” An illustrative, but not exclusive, list of adversary proceedings is included in Fed. R. Bankr. P. 7001. An adversary proceeding is relevant here, because once a creditor obtains notice of the debtor’s bankruptcy petition, the creditor may file a complaint to object to the discharge of a debt, which triggers the adversary proceeding. A discharge may be denied under 11 U.S.C. 727(a) for a host of reasons, such as:

[A] failure to provide requested tax documents; failure to complete a course on personal financial management; transfer or concealment of property with intent to hinder, delay, or defraud creditors; destruction or concealment of books or records; perjury and other fraudulent acts; failure to account for the loss of assets; violation of a court order or an earlier discharge in an earlier case commenced within certain time frames . . . before the date the petition was filed.

If the adversary proceeding results in trial, the objecting party has the burden of proof. Thus, a creditor may challenge the discharge of a debt through an adversary action spun-off from the bankruptcy process.

Fifth, a discharging junction triggers differently for Chapter 7 (Liquidation) Bankruptcy or Chapter 13 (Adjustment of Debts of an Individual with Regular Income) Bankruptcy. In a Chapter 7 Bankruptcy case, “the court usually grants the discharge promptly on expiration of the time fixed for filing a complaint objecting to discharge and the time fixed for filing a motion to dismiss the case for substantial abuse (60 days following the first date set for the 341 meeting).” This often happens in about 120 days after the debtor files the initial petition for bankruptcy. On the other hand, a Chapter 13 Bankruptcy discharge occurs “as soon as practicable after the debtor completes all payments under the plan,” which may take three to five years. But what if a creditor pesters a debtor in a collection effort for a discharged debt? The debtor may “file a motion with the court, reporting the action and asking that the case be reopened to address the matter,” which courts “often” grant, because the discharge “constitutes a permanent statutory injunction prohibiting creditors from taking any action, including the filing of a lawsuit, designed to collect a discharged debt.” If the creditor violated this injunction, it may be subject to civil contempt resulting in a fine. Ultimately, the legal system provides recourse from creditor harassment after the close of bankruptcy proceedings.

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