The case for The Archdiocese of St. Paul and Minneapolis, No. 15-30125 (Bankr. D. Minn.) has been an extremely contentious one. The Debtor and the Official Committee of Unsecured Creditors have different ideas on how to compensate sexual abuse claims and have submitted competing plans. Not surprisingly, both parties objected to the other's disclosure statement. The orders entered by Judge Robert Kressel show remarkable wisdom about how the disclosure statement process works in the real world. In ruling upon the Debtor's Disclosure Statement, Judge Kressel wrote:I find that the debtor’s disclosure statement does contain adequate information and there would be virtually no benefit to providing additional information to creditors. Based on my observation of the dynamics in this case, it is extremely unlikely that the unsecured creditors, especially those that have claims for being sexually victimized by employees or associates of the debtor, will base their vote in any way on the information contained in the disclosure statement. Therefore, requiring additional information makes no sense. Order Approving Debtor's Disclosure Statement Dated and Filed December 19, 2016, Dkt. #902 (emphasis added).In ruling upon the Committee's Disclosure Statement, the Court said:I find that the creditors committee’s proposed disclosure statement does contain adequate information and there would be virtually no benefit to providing additional information to creditors. The objections focus primarily on the confirmability of the creditors committee’s plan–objections which I prefer to address as part of the plan confirmation process. There are objections to various factual statements made in the disclosure statement for which little factual basis is provided. However, because voting for or against the committee’s plan will not be based in any meaningful way on the contents of the disclosure statement, I am inclined to allow the disclosure statement to go ahead as filed.Order Approving Creditors' Committee's disclosure Statement Dated and Filed December 19, 2016, Dkt. #903 (emphasis added).. When I first started practicing, I would often receive voluminous objections to disclosure statements which would begin "This disclosure statement fails to meet even the minimum standard for adequate information under 11 U.S.C. Sec. 1125" followed by a long list of items claimed to be lacking. These objections were usually filed by a secured creditor who had already decided to vote against the plan and was simply trying to delay the debtor from proceeding to confirmation.What I find refreshing in Judge Kressel's orders is the recognition that in a highly litigated case, the dueling parties are not going to cast their ballots based on the information in the other side's disclosure statement. While disclosure statements ensure that all creditors receive a minimum amount of information about a plan, there will be many cases were "requiring additional information makes no sense" and the parties just need to get to confirmation. This pair of orders shows remarkable common sense.
A debtor attorney and debtor were jointly sanctions $5,793.75 in creditor's fees for a bad faith chapter 13 filing in In re: Phillip Wayne Lockhart, Jr., No. 16-32803(1)(13), 2017 WL 187560 (Bankr. W.D. Ky. Jan. 17, 2017). The debtor has filed chapter 13 after a a state court order holding him in contempt for not paying child support, after the debtor had unsuccessfully petitioned for a modification of the award. An initial contempt order had required the debtor to pay $500/month in maintenance on the child support arrearage, as well as continued monthly $3,000/month on-going child support. When the debtor failed to keep the on-going payments current, a second contempt order was entered determining the arrearage to be $225,675 at 12% interest, and requiring a lump sum payment of $25,000, plus $2,000 toward the arrearage, and to resume the $3,000/month on-going support payments, or face 180 days in jail. Debtor failed to comply with this order, instead filing for chapter 13 relief. Debtor scheduled priority debts as none. Debtor's plan provided no distribution to unsecured creditors, and provided a special provision as to child support that Debtor would attempt to negotiate or get the child support decreased in the state court. At the confirmation hearing the counsel for debtor asserted that the debtor was unable to afford the payments required by the state court, and admitted that the case was filed to allow more time to seek relief from the state court. Debtor noted meeting with an attorney following a seminar who had no ideas to help him. The debtor also noted that the state court judge was an 'interim' judge who he believed would be replaced after the next election, and that he hoped the new judge would look on his case more favorably. Rule 9011, is most pertinent to the matter at bar. It reads: (b) Representations to the Court. By presenting to the court (whether by signature, filing, submitting or later advocating) a petition, pleading, written motion or other paper, an attorney or unrepresented party is certifying to the best of the persons's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, – –(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;In general, courts employ an objective standard in determining whether a filing has been made for an “improper purpose.” The test has been stated as follows:Alan N. Resnick & Henry J. Sommers, COLLIER ON BANKRUPTCY ¶ 9011.04[7][c].In applying the objective test, courts may infer the purpose of a filing from the consequences of the pleading or motion. For example, an improper purpose may be inferred when the effect of a pleading or the motion is to delay the proceedings.Lockhart , 2017 WL 187560, at *2–3. The court noted that the debtor had not appealed the state court order finding him in contempt. In order to cure the arrearage and maintain payments the plan payment would need to be about $8,000/month, rather than the $975 proposed. The bankruptcy court does not have jurisdiction to modify the state court order determining the amount of child support arrearage. The pleadings and statements in court establish that the filing was a delaying tactic to avoid serving jail time and force additional litigation. Courts considering a request for sanctions under Rule 9011(b), “must consider both frivolousness and improper purpose on a sliding scale, where the more compelling the showing as to one element, the less decisive need be the showing as to the other.” In re Silberkraus, 336 F.3d 864, 870 (9th Cir. 2003), quoting In re Marsch, 36 F.3d 825, 830 (9th Cir. 1994). Lockhart 2017 WL 187560, at *4, 2017). The court found that debtor and counsel violated Rule 9011(b) and found an appropriate sanction for violations in cases filed for improper delay is restitution of the unnecessary litigation expense incurred by the opposing party. Thus the joint award against debtor and counsel for the fees of $5,793.75.Michael Barnett. www.tampabankruptcy.com
Annuity Contracts VS. Bankruptcy Law in Arizona Financial planning is difficult, but important. Many people of Arizona don’t understand the importance of saving money for the future, or the concept of financial planning. As lawyers, when we are saying “financial planning,” we are talking about long-term, the future. What are you going to do when retire? You can not just depend on social security. How about the college education of your kids? What if you want to travel the world? How long will your life savings maintain you while you are retire? There are is a lot of unforeseen situations in the future, and a variety of “what if’s.” For those who are prepare financially for the future, who have a financial plan for retirement mostly like obtain an annuity. Here is a what if situation, “What if you need to file bankruptcy, will that include losing your annuity?” My AZ Lawyers has a clarification on that “what if.” What is an Annuity? For those you don’t understand what an annutiy is, here is definiation from investopedia.com: “An annuity is a contractual financial product sold by financial institutions that is designed to accept and grow funds from an individual and then, upon annuitization, pay out a stream of payments to the individual at a later point in time. The period of time when an annuity is being funded and before payouts begin is referred to as the accumulation phase. Once payments commence, the contract is in the annuitization phase.” You open an annuity account with a financial institution. Open the account with x amount of money, maybe with a few payments, and them leave the account alone. You’ll have to let the funds grow, accumulate. After x amount of years, depending on the contract, you’ll be receiving payouts from your annuity account. It’s like a forgotten saving account. Except this forgotten savings account is for the future, like college tuition money for your kids or to keep financially stable during retirement. Here is scenario that builds ups to the “what if” situation. You purchase an annuity 45 years ago, and today it’s worth $200,000. These annuity is your major assets, plus you have a lot of bills and a couple for assets here and there. Now, you barely afford to pay your bills, and so there is a chance that you’ll be filing bankruptcy. Enhance, will filing bankruptcy mean losing the annuity? Bankruptcy Law in Arizona Luckily for you, Arizona has an exemption statute that can save your annuity contract in specific situations, A.R.S. § 33-1126(a)(7). The statute reads as follows: “33-1126. Money benefits or proceeds; exception A. The following property of a debtor is exempt from execution, attachment or sale on any process issued from any court: …. 7. An annuity contract where for a continuous unexpired period of two years that contract has been owned by a debtor and has named as beneficiary the debtor, the debtor’s surviving spouse, child, parent, brother or sister, or any other dependent family member, except that, subject to the statute of limitations, the amount of any premium, payment or deposit with respect to that contract is recoverable or avoidable by a creditor pursuant to title 44, chapter 8, article 1 is not exempt. The exemption provided by this paragraph does not apply to a claim for a payment of a debt of the annuitant or beneficiary that is secured by a pledge or assignment of the contract or its proceeds. For the purposes of this paragraph, “dependent” means a family member who is dependent on the debtor for not less than half support.” Basically the specific situations are: You must the annuity contract for at least two years Must not have been broke when you bought the contract Have one of the specified person’s (surviving spouse, child, parent, brother or sister, or any other dependent family member) listed as the beneficiary **Arizona Title 44, chapter 8, article 1, relates to transfers made while broke or intentionally to defeat creditors. These requirements are not harsh, they are very reasonable. If points one to three are met, there there is chance you’ll keep the annuity. However, if your attentions were as stated in Arizona Title 44, chapter 8, article 1, then there will be complications. My AZ Lawyers recommended you to the properly plan your finances with the appropriate legal advice. The lawyers at My AZ Lawyers are here to help with the legal advice. We know that life is messy, and bankruptcy could be part of that mess. Understanding and being aware of the bankruptcy laws in Arizona is quite the challenge. Consult with a bankruptcy lawyer in Mesa at My AZ Lawyers to understand the regulations of bankruptcy laws. Published By: My AZ Lawyers Mesa Location: 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: (480) 448-9800 Glendale Location: 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: (602) 509-0955 Tucson Location: 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: (520) 441-1450 Avondale Location: 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 Office: (623) 499-4222 The post Annuity Contracts VS. Bankruptcy Law in Arizona appeared first on My AZ Lawyers.
Difficult Trustees Nobody likes difficult people. Nobody likes to feel that they have been put through the ringer. Nobody wants to feel that they have been harassed, abused, and given an unnecessarily rough ride in the process. Unfortunately, this is a common occurrence in some Will County chapter 7 bankruptcy cases. Let me cite a+ Read More The post Simple Chapter 7 Bankruptcy Filing Can Become Difficult Depending Upon The Trustee appeared first on David M. Siegel.
Bankruptcy Is A Service Business As bankruptcy attorneys, we are in the service business of getting people out of debt. This could come in the form of a chapter 7 bankruptcy or a chapter 13 bankruptcy depending upon the facts of the case. We have the solutions available at our disposal thanks to the bankruptcy+ Read More The post Where Has Salesmanship Gone Among Bankruptcy Attorneys? appeared first on David M. Siegel.
The 4th Circuit Court of Appeals has ruled that the allowed expenses for the means test is the amount allowed by the National and Local standards, even if the debtor's actual expense is less. MARJORIE K. LYNCH, Bankr. Adm'r for the E. Dist. of N. Carolina, Appellant, v. GABRIEL LEVAR JACKSON; MONTE NICOLE JACKSON, Debtors – Appellees, & A. SCOTT MCKELLAR, Tr.. NATIONAL ASSOCIATION OF CONSUMER BANKRUPTCY ATTORNEYS, Amicus Supporting Appellees., No. 16-1358, 2017 WL 59011 (4th Cir. Jan. 4, 2017)This appeal involves a chapter 7 filing in North Carolina where the above-median income debtors claimed the full mortgage allowance of $1,548/mo though their actual mortgage expense was only $878/mo, and claimed the full car allowance for 2 cars of $488/mo each despite car payments of $111/mo and $90.50/mo. The bankruptcy administrator sought to dismiss the case alleging that while the Debtors followed the instructions in the official forms, such forms were incorrect, and the statute was intended to limit debtors to their actual expenses. The bankrutptcy court denied the motion to dismiss, finding that the use of the allowances comports with the plain language of the statute. The administrator appealed, and the 4th Circuit allowed a direct appeal to that court. The 4th Circuit initially turned to the decision in Ransom v. FIA Card Servs., 562 U.S. 61, 70 (2011), holding that an expense is “applicable,” as used in § 707(b)(2)(A)(ii)(I), “only if the debtor will incur that kind of expense during the life of the plan.” However, the Court expressly declined to reach the issue of “the proper deduction for a debtor who has expenses that are lower than the amounts listed in the Local Standards.” Id. at 75 n.8. The Court then examined the plain language of the statute. “[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989).Here, the language is quite clear. Once an expense is incurred, then “[t]he debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards.” 11 U.S.C. § 707(b)(2)(A)(ii)(I) (emphases supplied). A debtor is entitled to take the full amount of the National and Local Standards if they incur an expense in that category.LYNCH, , 2017 WL 59011, at *4. The statute reads:Section 707(b)(2)(A)(i) the court shall presume abuse exists if the debtor's current monthly income reduced by the amounts determined under clauses (ii), (iii), and (iv), and multiplied by 60 is not less than the lesser of: (I) 25 percent of the debtor's nonpriority unsecured claims in the case, or $7,700, whichever is greater; or (II) $12,850.In turn, clause (ii), § 707(b)(2)(A)(ii)(I), states:the debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor's actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service for the area in which the debtor resides .... Section 707(b)(2)(A)(ii)(I) uses both “applicable” and “actual” in the same sentence, and “[d]ifferent words used in the same ... statute are assigned different meanings.”2A N. Singer, Sutherland on Statutes and Statutory Construction § 46:6 (7th ed. 2007). The first clause requires use of the applicable national and local standards, whereas the second clause looks to the actual expenses of the Debtor. The use of two different words in the same sentence presumes they must have different meanings. Further, acceptance of the administrator's position would result in punishing frugal debtors, an intent producing absurd results which should be avoided. Michael Barnett. www.tampabankruptcy.com
Overview This is the bankruptcy case study for Mr. M., who resides in Chicago, Illinois. He is seeking advice on whether or not chapter 7 bankruptcy will provide relief. Let’s go through and look at the particulars of his case. For starters, he has no significant assets whatsoever. He is not a homeowner; He does+ Read More The post Bankruptcy Case Study 1/5/17 appeared first on David M. Siegel.
Looking Back on HAMP and Forward on Student Loan Relief Congress should soon take a look at fastest growing category of consumer debt—student loans. During the 2016 Presidential election, Donald Trump added his voice to the Democratic law makers, led by Senator Elizabeth Warren, calling for student loan relief. President Trump was elected on the promise […]The post Trump, Republicans and Student Loans: Don’t Follow Obama’s HAMP by Robert Weed appeared first on Robert Weed.
Can I file? For the most part, when people seek out bankruptcy relief they are seeking the type of relief offered through chapter 7. To file, you must: • Reside, be domiciled, or have property or a place of business in the United States (U.S.). A person does not have to be a U.S. citizen to file, nor live in the U.S., as long as they have assets in the U.S. • You are able to file if you do not have a prior Chapter 7 discharge or it has been more than 8 years, or 6 years since a Chapter 13 discharge. • Within 180 days before filing the bankruptcy petition, you must receive credit counseling briefing from one of the approved nonprofit agency that focuses on budget and counseling. • Be subject to a means test to determine how your income compares to Arizona’s median income and whether or not you qualify to file under Chapter 7. The post Pursuing Bankruptcy under Chapter 7 appeared first on Tucson Bankruptcy Attorney.
As the holiday season gets fully into swing here in midtown Manhattan, with tourists thronging around the store displays, we at Shenwick & Associates wanted to take this time to wish you a happy, safe and warm holiday season and a very happy and healthy 2017. We also wanted to thank you for your friendship, your business, your referrals and your trust in us. Complex cases that involve a mix of personal, business and tax debts are keeping us busy as 2016 draws to a close. We’re here for you now and in the upcoming year, and we look forward to working with you. Happy holidays and happy 2017 from Shenwick & Associates!