All posts tagged Ted Albert

Judge Ted Albert Tentative on Abuse, 707(b) Motions

The Central District Insider thanks Christina Wilton for this tentative ruling and hopes she lets us know what happened.  (I think Judge Albert got it right by the way.  There has to be something more than the UST thinks the house payment is too high).

Tentative Ruling

This is the motion of creditor for dismissal under 11 U.S.C. §707(b)(3)(A) or (B). This requires the court to evaluate alternatively whether the filing of this bankruptcy was in good faith, or if in the totality of the circumstances abuse is demonstrated. The standard is not as the debtor has argued. Just because under the “means test” a presumption of abuse does not arise, the converse is not necessarily true, i.e. a case where the presumption is not triggered may still be determined under all of the circumstances to have been in bad faith or an abuse. Otherwise subsection (b)(3) would be superfluous. See e.g. In re Reed, 422 B.R. 214, 215, 230 (Dist. C.D. Cal. 2009). The real question is whether under these circumstances the various expenses claimed by the debtor make this case abusive. There are several expenses which have provoked comment. For example, the debtor pays for both his home mortgage and for an RV for another $2,745 per Read more…

Appeal of Section 522(f) Issue Pending Before the 9th Circuit

From attorney Anerio V. Altman:

I have an appeal before the 9th Circuit court of Appeals with OCCU in regards to:
1.  Can a Debtor utilize the Wildcard Exemption for the purpose of avoiding a non-possessory non-purchase money security interest in collateral they claim as a tool of the trade under 11 U.S.C. 522(f)?; and
2.  Can a Debtor utilize 11 U.S.C. 522(f) for the purpose of avoiding a Non-PMSI lien in a vehicle they claim as a tool of the trade?

Debtor in this case is a realtor who claims that her vehicle is a tool of the trade.  The vehicle is worth less than $6000 by all accounts.  Debtor filed her own motion pro se, OCCU responded and we filed a chunky reply. 

Judge Albert said you can’t do it.  The District court said that we could.  And now we’re before the ninth.

The case is IN RE:  ANGIE GARCIA.  9th Appellate case number 11-56076 or District Court 10-00985. 
We don’t have a hearing date yet but all papers have been filed. 

Anerio V. Altman, Esq. #228445
Lake Forest Bankruptcy