All posts in Chapter 7

You know Legal and Equitable Rights, but have you heard of a Reversionary Right?

What happens when two spouses file two separate bankruptcy cases?  I will use Spouse 1 and Spouse 2 both to distinguish the spouses but also to establish the order of filing — first and second.  Spouse 1 files first followed by Spouse 2 later.

Do the community assets of Spouse 1 get included in Spouse 2′s bankruptcy case?  Not so says the Court in this published decision but Spouse 2 does have a “Reversionary Right” to those assets.

Here’s what happened in this published Chapter 13 Moreno case from Riverside.

Read more…

Good points from the cdcbaa program “Meet the chapter 7 Trustees.”

These programs are absolutely fascinating!  I can’t comprehend that any attorney doing any appreciable amount of chapter 7 cases is not a member of this group and attending these meetings.  The program consisted of two hours of debtor’s counsel asking questions and each of the trustees responding (although the most common answer by far was “it depends.”

Points that jumped out at me:

1.  The trustees unanimously agreed that doing the 341(a) meeting by Zoom is great and will continue, certainly for now, and for some of them, hopefully forever.  One benefit is that attendance by the debtors has increased since there are fewer excuses for not attending.  More creditors are attending because it’s so easy to attend, trustees like creditors being involved (most of the time). Read more…

Do Cares Act payments count towards the means test? No.

A post from the consumer bankruptcy listserve.

I seem to recall something somewhere that Cares Act payments would not be considered in the bankruptcy means test, does anyone have a reference?

Response from my friend Mark Marcus:

See 11 USC 101(10A)(B)(ii)(V)

So I thought I would check it out.  It’s actually pretty clear.

Section 101(10A)(B)(ii)(V) says that Current Monthly Income excludes:

(V)Payments made under Federal law relating to the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the coronavirus disease 2019 (COVID–19).

Tentative from Judge Kaufman re exemption for Covid-19 stimulus checks

June 25, 2020  2:00 PM
1:11-11603  Chapter 7
#3.00 Judgment Creditors Motion Assignment Order and Restraining Order

Docket 735
I. BACKGROUND
At the last hearing, the Court requested that Tammy Phillips and Tammy Phillips, a Prof. Law Corp. (“Creditors”), file a supplemental brief regarding whether Kevan Harry Gilman (“Debtor”) waived his right to claim an exemption in any “Covid-19 economic stimulus checks/payments from the federal government to Debtor,”including the stimulus check that Debtor may qualify for under the Coronavirus Aid, Relief, and Economic Security Act (the “Stimulus Check”) .

On May 28, 2020, Creditors filed a supplemental brief (the “Brief”) [doc. 746].  In the Brief, Creditors assert that Debtor waived his right to an exemption by failing to claim one within three days of the hearing on their motion pursuant to California Code of Civil Procedure (“CCP”) § 708.550.  Creditors also argue that Debtor has waived his right to claim an exemption in any future Covid-19 related federal stimulus payments.  Finally, if Debtor is provided with a Stimulus Check, Creditors expressed opposition to the Court’s proposed procedure for Creditors to receive the Stimulus Check. [FN1].  Debtor did not file a response to the Brief. Read more…

Watch out for Ford and reaff’s

This is from our consumer bankruptcy listserve, bankruptcy attys only, names have been withheld to protect the innocent.

Question (from consumer bk atty):  I filed a Chapter 7 for client.  Ford sent their letter saying to sign a reaffirmation agreement or they will repo the car.  Has anyone had Ford actually repo cars with no reaffirmation agreement?

Answer No. 1:  Yes…especially if they’re represented by Cooksey Toolen in Costa Mesa.

Answer No. 2:   Definitely. Watch out for Ford!

Comment from Hale Antico, President of our group:

I think the conventional wisdom is only Ford/Cooksey will go after a failure to reaffirm, but it’s still best practice to reaffirm, coupled with the next sentence. If the court disapproves it, we’re back to pre-BAPCPA ride-through. I know of no example of a repo after a court disapproval where debtor remained current.

Credit Unions won a reaff carve-out at 524(m)(2).

My Los Angeles Daily Journal article on the means test

My article, Congress, it’s time to get rid of that stupid means test, was published in the Los Angeles Daily Journal on April 30, 2020.  Let me know what you think.  You can access it here.

In re Brace oral argument – watch it here

The you tube oral argument at the California Supreme Court was released today.  The link posted by the Supreme Court is here.  

A YouTube video of Ed Hays arguing for the bankruptcy trustee is here.  

In re Brace – California Supreme Court hears oral argument about what constitutes community property

My previous post on In re Brace is here.

The trustee was represented by Ed Hays, Marshack Hays LLP.  This is his post on social media.

Today, I was fortunate to be able to appear (virtually) and present oral arguments in a case before the California Supreme Court.  It was a very cool experience.  It took me 28 years to get a case before the high court and then Covid-19 kept me from appearing in person.  Hopefully, it won’t take as long to get another chance where I can appear in person.

What was the case about? Read more…

Updated means test numbers

Email from Hale Antico this morning:

Good morning, CDCBAA community! A few updates as we start off the week:

1. The means test numbers are adjusting for cases filed after 4/1/2020. My summary:

    • 1-person household: $59,286, but after April 1, 2020 it’s $60,360
    • 2-person household: $77,860, but after April 1, $79,271
    • 3-person household: $86,665, and after April 1, $88,235
    • 4-person household: $99,512, and after April 1, $101,315
    • Each additional person: $9,000

Note that this is the first time in recent memory, if ever, that a 1-person household median in Calif is over $60,000, and a four-person household median is six figures, over $100,000.

2. With social distancing being encouraged to battle the coronavirus outbreak, you can offer Zoom consultations with potential clients, and for a small meeting Zoom is free. Caveat: the meeting may be limited to 40 minutes for that free number, but the next tier up is only $14.99/month.

Hale

Hale Andrew Antico

(888) 54-BKLAW
https://www.los-angeles-bankruptcy.net

President, Central Dist Consumer Bankruptcy Attorneys’ Assn.(CDCBAA)
Past President, James T. King Bankruptcy Inn of Court
Member, National Association of Consumer Bankruptcy Attorneys (NACBA)

Disclaimer of Inheritance: Not a Fraudulent Transfer Under Section 548, but….

Imagine 5 months before debtor files bankruptcy, she was notified that her late grandmother left her a mansion in Beverly Hills and $50,000 in life insurance proceeds.  Debtor, who was concerned that her creditors would snatch up the assets, instead decided to disclaim her interest in this inheritance — meaning she waived her right to receive the inheritance.  It is common sense that nobody can be forced to accept something if they do not choose to and the transfer of title to the property does not vest in the person until the recipient accepts it.

Under California’s Probate Code, a beneficiary to an inheritance may disclaim any property interest as long as they file the disclaimer in accordance with the Probate statute (i.e. sign it, identify who is seeking to transfer you the asset (grandma) and voluntarily disclaim the asset).  Debtor has now “transferred” her right to inheritance to another person before filing bankruptcy.   Is this a prepetition fraudulent transfer that is voidable by the trustee under Uniform Voidable Transaction Act?

No, it’s not.

Read more…