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When filing a chapter 7 bankruptcy, the goal is to allow you to have a "fresh start". A fresh start means that we, as a society, want you to have a car to get to work. Keep your tools so that you can continue to work in your trade. Keep clothes, household goods, and other items so that you are not from starting from scratch.
A "fresh start" is essentially artful terminology that guides you as to whether a you will be allowed to keep possessions in a bankruptcy. One asset that is the subject of many trustees is the tax refund. You might be one of those individuals that gets a large tax refund. Trustees in a chapter 7 cases, the administrators of the bankruptcy case, look for large tax refunds that can take and distribute to your creditors.
In a chapter 7 bankruptcy, there are two tracks of exemptions to protect your assets from being sold to creditors. One track is the home equity track. You can protect from $75,000 to $150,000 of equity in your home. This is a great exemption that protects a lot of money if you have worked hard to build equity in your home. If this path is taken, you will likely have to surrender your tax refund if you have not spent your tax refund before you file bankruptcy. This mainly effects debtors from late in a tax year through May of the following year. Late in a tax year, you have built up a nice savings with your employer that that a trustee will look at with an envious eye.
If you have not built up equity in your home, you can use the approximate $20,000 "wild card" exemption to protect your tax refund. $20,000 is not nearly the same protection as the home exemption, but it can come in handy to protect to a $8,000 tax refund that I have seen from some debtors.
Chapter 11 bankruptcy, also known as “reorganization bankruptcy,” is a bankruptcy plan that allows corporations, partnerships and individuals to reorganize their finances and restructure their debt. Unlike Chapter 13 bankruptcy cases, Chapter 11 bankruptcy has no debt ceiling. This plan is popular with both large and small businesses that need to restructure their debt. The... Read more »
The post Understanding Your Plan of Reorganization for a Chapter 11 Bankruptcy appeared first on AllmandLaw.
Chapter 11 bankruptcy, also known as “reorganization bankruptcy,” is a bankruptcy plan that allows corporations, partnerships and individuals to reorganize their finances and restructure their debt. Unlike Chapter 13 bankruptcy cases, Chapter 11 bankruptcy has no debt ceiling. This plan is popular with both large and small businesses that need to restructure their debt. The... Read more »
The post Understanding Your Plan of Reorganization for a Chapter 11 Bankruptcy appeared first on Allmand Law Firm PLLC.
Chapter 11 bankruptcy, also known as “reorganization bankruptcy,” is a bankruptcy plan that allows corporations, partnerships and individuals to reorganize their finances and restructure their debt. Unlike Chapter 13 bankruptcy cases, Chapter 11 bankruptcy has no debt ceiling. This plan is popular with both large and small businesses that need to restructure their debt. The […]
The post Understanding Your Plan of Reorganization for a Chapter 11 Bankruptcy appeared first on Allmand Law Firm PLLC.
Pre-Bankruptcy Planning It is best to file bankruptcy after you have had a chance to plan for your filing. Most people have thought long and hard about whether or not to file a bankruptcy case long in advance of the actual filing. It is true that some people bury their heads in the sand and+ Read More
The post Smart, Pre-Bankruptcy Planning appeared first on David M. Siegel.
On January 9, 2014, the U.S. Supreme Court delivered its decision in the case of Executive Benefits Insurance Agency v. Arkison. The case presented the question of whether a bankruptcy judge could constitutionally hear the presented fraudulent conveyance claim and per the relevant statute make a report and recommendations to the district court for de novo review and a decision. This question to be decided was whether the statutory powers given to a bankruptcy judge by Congress to allow it to hear this type of case and present a report and recommendation to the district court for it to make its judgment, exceeded the limits of Article III of the Constitution.
Constitutional and Statutory Background Article III §1 of the Constitution commands that "[t]he judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish" and provides that the judges of these constitutional courts "shall hold their Offices during good Behaviour" and "receive for their Services [ ] a Compensation [ ] [that] shall not be dimished" during their tenure. Bankruptcy courts were not created under Article III, but are appointed for 14-year terms by the courts of appeals in their district pursuant to the Bankruptcy Amendments and Federal Judgeship Act of 1984.
Pursuant to 28 U.S.C. §1334(a) the district courts of the United States, which are Article III courts, have "original and exclusive jurisdiction in all cases" under the bankruptcy code. However pursuant to 11 U.S.C. §157 (d), most district courts refer all bankruptcy cases to the bankrkuptcy judges of their district pursuant to a general standing order of reference. Purusant to 11 U.S.C. §157 (b) and (c), bankruptcy judge may hear and enter final judgments in "core proceedings arising under title 11, or arising in a case under title 11." But pursuant to 11 U.S.C. §157 (c), although a bankruptcy judge may determine a referred proceeding that "is not a core proceeding, but ... is other-wise related to a case under title 11", the bankruptcy judge must submit proposed findings of fact and conclusions of law to the district court which then enters final judgment after a de novo review.
Stern v. Marshall
The case before the Supreme Court is a follow-up to its 2011 decision in Stern v. Marshall. In Stern, the Supreme Court held that as bankrutcy judges are not Article III judges, they do not have the power under Article III of the Constitution to rule on the type of claim presented in Stern, which was a counterclaim for tortious interference.The Court held that even though "bankruptcy courts are statutorily authorized [by Congress] to enter final judgment on a class of bankruptcy related claims, Article III of the Constitution prohibits bankruptcy courts from finally adjudicating certain of those claims." The claims being referred to was a category of claims deemed "core" matters by Congress. The tortious interference claim presented in Stern was in this class of claims. The Court did not, though, address how bankruptcy courts should proceed when they encounter a Stern claim.
Court's HoldingThe Supreme Court in Executive Benefits Insurance v. Arkison held that when a bankruptcy court is presented with a Stern claim, "the proper course is to issue findings of fact and conclusion of law" which
the district court will then review de novo and enter judgment. That is, a claim such a Stern claim, may proceed in the bankruptcy court as "non-core" proceedings and the bankruptcy court may only issue findings of fact and conclusion of law to then be send to the district court for de novo review and issuance of judgment. The Court stated that "[t]his approach accords with the bankruptcy statute and does not implicate the constitutional defect identified by Stern."
Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
On January 9, 2014, the U.S. Supreme Court delivered its decision in the case of Executive Benefits Insurance Agency v. Arkison (In re: Bellingham Ins. Agency, Inc.) 573 U.S. ___ (2014) in which it held that bankruptcy judges do have the authority under the Constitution in Stern type cases, to submit "findings of fact and conclusions of law" to the district court for its de novo review even though the bankruptcy court is constitutionally barred from entering a final judgment on such a claim that is only "related" to a bankruptcy case. This was a question left unanswered in the Supreme Court's prior decision in Stern v. Marshall. The claim in Stern was a counterclaim for tortious interference that arose under state law.
The Court though left Bellingham unanswered the question the question of whether the Constitution permits bankruptcy judges to, despite its holding, enter a final judgment based on the actual or implied consent of the parties in a Sterm claim. A more lengthly review of the case is available here. Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055
Bankruptcy Trustees If you live in Chicago and file a chapter 13 bankruptcy, the trustee appointed to your case is either going to be Marilyn Marshall or Tom Vaughn. Although each trustee follows the same bankruptcy laws and processes, each has a different standard or structure when it comes to confirming cases. In general, cases+ Read More
The post Chapter 13 Bankruptcy Trustees In Chicago appeared first on David M. Siegel.
Bob needs to do a blog on this. Here’s this on confidentiality. http://www.scbar.org/MemberResources/EthicsAdvisoryOpinions/OpinionView/.... It’s an ethic violation for lawyer to sign–client can sign and direct lawyer to keep his mouth shut. That’s the same opinion I’ve cited on non-disparagement.The post Settlement Agreements, Confidentiality and Non-Disparagement by Robert Weed appeared first on Robert Weed.
People are understandable concerned about obtaining credit after filing for bankruptcy. It is a real concern for many people. We have become so used to credit and the leeway that it provides in making purchases. The good news is that you will be able to obtain credit within a very short time after filing bankruptcy. + Read MoreThe post Credit After Bankruptcy appeared first on David M. Siegel.
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