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History of Bankruptcy, Anyone? Adam Brown is a bankruptcy attorney for Dexter & Dexter, a debt relief agency helping people file for bankruptcy.
In the case of In re Bast, ___ BR ___, 2007 WL 1429481 (Bkrtcy.S.D. Fla.)(Friedman, J.) where the court found that the requirements for a technical abandonment of certain non-exempt real property were met and that it was therefore abandoned from the estate to the debtor at the close of the case. The trustee's subsequent efforts to administer the non-exempt real property for the benefit of the creditors were denied by the Court.
On August 8, 2007, the case of In re O'Neal, ___ B.R. ___, 2007 WL 2296450 (Bkrtcy.S.D.Fla.)(Friedman,J.) was issued. In this case a successor Chapter 7 trustee attempted to vitiate an abandonment by his predecessor of an interest in certain stock. The successor trustee's Motion to Reopen the Case was granted and the trustee filed a Motion to Revoke Technical Abandonment. The court denied the Motion to Revoke Technical Abandonment as it held that a reopening of the case does not automatically revoke a technical abandonment and that there were otherwise no equitable circumstances for a revocation.
The Debtor's chapter 7 case was filed and discharged as a "no asset" case. The Debtor had scheduled the stock in his schedule B with a value of $1. Apparently the stock was worth considerably more. The trustee claimed that the Debtor intentionally mislead him as to the value of the stock.
The court denied the trustee's motion to revoke technical abandonment. The court noted that property which is not sold or otherwise administered during the bankruptcy case is deemed abandoned upon the closingn of the case. 11 USC 554(c). The court noted that the courts have disagreed about the effect of reopening a case when property was previously technically abandoned pursuant to Section 554(c). The court held that it disagreed with the cases that held that a reopening, if not limited, automatically revokes technical abandonment as this would eliminate the finality that Section 554(c) was intended to provide and would eliminate the incentive for the trustee to investigage estate assets carefully before closing a case.
The court held that although reopening does not automatically revoke the technical abandonment, that the court may order that property not be considered abandoned after a reopening based upon equitable circumstances, such as when misleading information was given to the trustee. The court held that this position is in accordance with the language in section 554(c) which provides "unless the court order otherwise..." which requires some cause for such an order which deviates from the norm of technical abandonment under section 554(c). The court noted that its view is essentially the same as that in In re Woods, 173 F.3d 770 (10th Cir.1999) which held that the reopening of a case does not automatically vitiate the abandonment of property under section 554(c), but that a court may under FRBP 9024 vacate the abandonment if the standards of that rule which are the equivalent of FRCP 60 are met.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
Miami Personal Bankruptcy Lawyer Jordan E. Bublick has over 25 years of experience in filing Chapter 13 and Chapter 7 bankruptcy cases. His office is centrally located in Miami at 1221 Brickell Avenue, 9th Fl., Miami and may be reached at (305) 891-4055. www.bublicklaw.com
The Bankruptcy Court in Miami previously issued its decision in the case of In re Maria D. Lopez, Case No. 08-18101-BKC-LMI (Bankr. S.D.Fla. April 17, 2009)(Isicoff, J.), the Bankruptcy Court held that the involved attorney fees were not entitled to priority status as a "domestic support obligation".
The debtor's ex-husband was awarded his attorney fees in their dissolution of marriage proceeding and sought priority status for the claim in the debtor's chapter 13 case. Priority status would require full payment and the lack thereof would subject to claim to status as a general unsecured creditor and typically only a small dividend.
The Court explained that the Bankruptcy Code provides that a domestic support obligation ("DSO") owed to a former spouse is entitled to priority status and that while an award of attorney fees in some instances may be considered a DSO, not every award of attorney fees in a dissolution of marriage case are entitled to DSO status.
The Court states that for a claim to be considered as a DSO, it must meet all the requirements of section 101(14A) of the Bankruptcy Code. Generally, the claim must be
- owed to a spouse, former spouse, or child of the debtor, or such child's parent or guardian
- be in the nature of alimony, maintenance or support
- established or subject to establishment by reason of a separation agreement, divorce decree, or property settlement agreement or by court order
- not assigned to a nongovernmental entity unless voluntarily assigned for purposes of collection
At issue in this case was whether the attorney fees are "in the nature of alimony, maintenance, or support." The Court noted that the 2005 BAPCPA amendments to the Bankruptcy Code amended certain provisions relating to claims arising from "alimony, maintenance, or support" and renamed these obligations "domestic support obligations," but that the pre-BAPCPA case law does to a certain extent continue to have applicability post-BAPCPA.
The Court rejected the claimant's argument that the attorney fees met the requirement of being "in the nature of alimony, maintenance or support" as they related to custody, parentage, or visitation. The Court noted that the determination of what constitutes "support" is a matter of federal law. The Court further noted that in determining whether an award of state court attorneys' fees constitutes "support", the Bankruptcy Court may "only undertake a simple inquiry as to whether the debt can be characterized as 'support'" and that it may look to state law for guidance on whether the obligation should be considered in the nature of "support". The Court noted that the state court judgment awarded claimant attorney fees based on the debtor's litigation misconduct and not based on their respective wages or ability to pay.Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.
If you file Chapter 7 bankruptcy too soon after you get a previous bankruptcy discharge, you cannot receive another discharge.
If you filed for Chapter 7 bankruptcy in the past, you may not be able to file a new Chapter 7 case and get a discharge of your debts.
Time your new Chapter 7 bankruptcy case properly and you’ll get the benefits you’re looking for.
Do it wrong and you’ll end up in a bad situation.
Filing Chapter 7 Bankruptcy Again
If you received your first discharge under a Chapter 7, you are eligible to get a discharge in a new Chapter 7 bankruptcy that is filed more than eight years from the date that the first case was filed.
If you file a new Chapter 7 bankruptcy case within eight years then you will not qualify for a discharge in the new case.
Is The Discharge Important In The New Chapter 7 Case?
As I discuss in the article, How To File Bankruptcy Again When You’re Back In Debt, you need to think about why you’re filing a new Chapter 7 bankruptcy case. In some situations, the discharge may not be important to you.
You may have enough money to repay your debts in full but simply don’t want to deal with numerous creditors.
Or you may have a piece of property that could be sold to pay your debts, but don’t want the hassle of selling it and dividing up the proceeds.
In those situations, a new Chapter 7 bankruptcy may be a good idea in spite of the fact that you won’t get a discharge.
Discharged v. Dismissed v. Denied
If you file for Chapter 7 bankruptcy, you don’t qualify for a discharge if the prior case was filed within the past eight years and resulted in a discharge.
However, if the case was dismissed then you may not face such a limitation. We’re going to need to look into the reasons for the dismissal before making a decision about that.
If your discharge was denied in your first case then you may be able to file again. Any discharge you receive, however, may not include the debts you listed in the original Chapter 7 bankruptcy case. Again, we’re going to need to look into things before deciding how the new Chapter 7 case is going to play out.
Consider Chapter 13
Even if you do not qualify for a discharge in a second Chapter 7 bankruptcy case, you may be eligible to file for Chapter 13 bankruptcy and get a discharge of your debts.
For more information on that, read my article, Why Your Debt Relief Options Should Include Your Future Plans. You may find that filing a new case under Chapter 13 gets you the results you’re looking for.
Either way, remember that filing for bankruptcy again isn’t impossible. It all depends on your goals, your timing, and your willingness to be flexible to get the relief you need.
Here’s When You Can File For Chapter 7 Bankruptcy Again was originally published on Consumer Help Central. If you're seeing this message on another site, it has been stolen and is being used without permission. That's illegal, a violation of copyright, and just plain awful.
Filing for bankruptcy can help you keep your assets legally without having them seized by creditors to satisfy an outstanding balance or past due debt. Yet, some who file think they need to hide or withhold information about their personal property in order to retain it. This action may lead to bankruptcy fraud charges, hefty [...]
It is my job to know whether a Chapter 7 or a Chapter 13 is the better option for my clients. The questions that I ask at the initial consultation asked to make this determination. Most clients want to file a Chapter 7, but that is not always the best option for them. Each case […]
It is my job to know whether a Chapter 7 or a Chapter 13 is the better option for my clients. The questions that I ask at the initial consultation asked to make this determination. Most clients want to file a Chapter 7, but that is not always the best option for them. Each case […]
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Getting rid of a lawsuit in bankruptcy depends on a few factors. One of the main factors includes determining if the liability associated with it is dischargeable. Sometimes a debtor may receive a lawsuit or learn of being sued and ignore it. This can turn into a default judgment giving creditors an upper hand on [...]
Divorce can result from the stress of dealing with marital debt. Bankruptcy and divorce often go hand-in-hand.
Often one spouse wants to file bankruptcy and the other spouse dissents. Thus, the question is what happens with the debt when the husband files divorce by himself?
Answer: The husband is no longer liable on any of the unsecured debt. Not his separate or the marriage's joint debt. Because California is community property state, his separate debt -- incurred while married -- will be owed by the non-filing wife. It is a rough rule. Now, she will have to be concerned about handling repayment of all the debt.
If the couple is in the process of divorce, the family court judge may have some leeway in taking that fact into consideration when awarding other community property and/or spousal support.
Ken Jorgensen, California Attorneywww.fresnobankruptcylawgroup.com
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