Atty. Larry Yang

Bankruptcy petition: Single or joint

Sunday, 15 November 2009 19:58 Atty. Lawrence Yang

MARRIED people are allowed by the bankruptcy code to file joint petitions. A husband and wife can file one joint chapter 7 case and pay only one filing fee, not two. However, all assets and liabilities whether community, joint, or separate must be listed in the petition. On the other hand, a husband or wife may file a single bankruptcy petition by his or herself without including spouse. In this case, only joint and community assets need to be listed in the petition. Separate property of the non-filing spouse does not have to be listed, and of course, debts of the non-filing spouse are not listed in the bankruptcy petition. In other words, a married person may file a joint bankruptcy petition together with his or her spouse, or a single petition by himself or herself. How do these situations happen?

Converting Chapter 13 to Chapter 7

Sunday, 08 November 2009 21:31 Atty. Lawrence Yang

LAST week we discussed the conversion of a chapter 7 case into chapter 13. Today we discuss converting a chapter 13 case to chapter 7. Many debtors who want chapter 7 relief are not eligible either because they fail the chapter 7 means test, or the liquidation analysis, which shows that they have substantial, that are not exempt. These debtors usually have household incomes that are above the median in California. The means test is an objective way of computing disposable income based on IRS standards. This device has many critics because sometimes the result of its application is ridiculous. For instance, a debtor with several dependents will benefit from its application because debtor can claim the higher IRS allocation for rent even if debtor’s actual rent is lower. If debtor has 4 dependents his means test rent is at least $1,400 monthly. If the rent he actually pays is only $700, he can claim the difference of $700 as additional expense when determining disposable income under the means test. On the other hand, a debtor who is married without dependents who actually pays rent of $2,900 can only deduct the amount of $1,100 for rent under the means test. In this situation, the difference of $1,800 of non deductible expense can knock the chapter 7 case into a chapter 13 unless debtor has more qualifying expenses to offset $1,800 because substantial disposable income may result from the fact that only $1,100 of the $2,900 rent is deductible under the means test.

Converting bankruptcy cases

Tuesday, 03 November 2009 21:58 Atty. Lawrence Yang

A BANKRUPTCY petition filed under one chapter of the bankruptcy code may be converted into a petition under a different chapter of the code. The debtor himself can request the conversion, or the court itself by its own motion or the US Trustee or the trustee administering the bankruptcy estate, or any interested party may move to have a case converted to a different chapter of the code. § 706 states that the debtor may convert a case under chapter 7 to a case under chapter 11, 12, or 13 at any time, if the case has not been previously converted under § 1112, 1208, or 1307. Debtor’s right to convert case is almost absolute if there has been no prior conversion. However, there have been cases where the court has denied debtor the right to convert where debtor has been found to be in bad faith. Hence, the right to convert is not 100% bulletproof. But a debtor who has filed his original case in good faith should not see any obstacle to converting case if he so chooses as long as no prior conversions have occurred.

Converting bankruptcy cases

Sunday, 01 November 2009 22:23 Atty. Lawrence Yang

Delaware catholic diocese files for bankruptcy relief

Monday, 26 October 2009 19:54 Atty. Lawrence Yang

THE Catholic diocese of Wilmington, Delaware filed for Chapter 11 bankruptcy protection earlier this week on the eve of a civil trial involving clergy sex abuse. With this bankruptcy filing, the first Catholic diocese to file in the East Coast, the Wilmington diocese joins six other dioceses, which have sought bankruptcy court protection under the weight of clergy sex abuse lawsuits leveled against the Catholic Church. Other Catholic dioceses that have filed for bankruptcy protection in the past are dioceses in San Diego, Portland, Oregon, Spokane, Washington, Tucson, Arizona, Davenport, Iowa and Fairbanks, Alaska.

Certainly, clergy sexual molestation is the work of the devil to discredit and damage the Catholic Church. The church now has a zero tolerance of sexual predators masquerading as priests. Hopefully, it will eventually rid itself of the very small minority of errant priests who have no business being men of the cloth and give the majority of holy men who are truly ministers of Christ in this world a bad name.

Can retirement contributions be deducted from disposable income?

Sunday, 18 October 2009 20:19 Atty. Lawrence Yang

MANY clients complain that their net income is small even though their gross income is big because they have large retirement contributions. Therefore, they need bankruptcy relief. For instance, client’s gross income is $10,000 monthly. But his net income is only $6,000 because his retirement contribution is 20% or $2,000 monthly. His deductions are $2,000 for FICA, social security & Medicare, and $2,000 for retirement, or total deductions of $4,000, leaving him a monthly take home pay of $6,000 from his gross monthly income of $10,000. It is understandable that client feels that he financially strapped because 40% of his gross income has been deducted from salary. But matters are not that simple when client seeks bankruptcy relief. Bankruptcy law distinguishes between ‘mandatory’ and ‘voluntary’ retirement contributions. Mandatory retirement contributions are done by force. Employee has no choice but to submit to the deduction. Employee has no choice but to agree with the deduction even if he does not want to make the contribution. However, voluntary retirement contributions are deducted because employee has asked the employer to make the deduction by employee’s own choice.

Is a gift card dischargeable in BK?

Monday, 12 October 2009 19:32 Atty. Lawrence Yang

THE 74-year-old debtor applied for a Lowe’s credit card on March 15, 2008. She said she had an annual income of $48,000. But her true income was only $667 in monthly Social Security payments. GE Money Bank approved her credit application and gave her a credit line of $12,500. Sometime in May, debtor used the card to buy $5,000 worth of gift cards. She filed for Chapter 7 relief in August 2008 with an outstanding balance of $6,039 on her Lowe’s account. Before she filed for bankruptcy, debtor made three payments on the account for a total of $160. Creditor filed an adversarial case to object to the discharge of the card. Is this card dischargeable?

There are several points that support the contention of creditor that the card is not dischargeable:

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Vacant house cannot be exempted as homestead

Wednesday, 07 October 2009 00:34 Atty. Lawrence Yang

IN California, depending on the system of exemption used and the qualifications of debtor filing for bankruptcy, the equity of the residence or homestead that may be claimed as exempt is $50,000 to $150,000. A single person without any dependents may claim a $50,000 equity exemption for his homestead while a person at least 65 years old at the time the bankruptcy is filed may claim a $150,000 equity exemption pursuant to California Code of Civil Procedure 704.730. Note that it is the equity of the house that is claimed exempt. Equity is current fair market value on the day the bankruptcy is filed minus the outstanding balance of all mortgages on the property. Hence, if the fair market value of the house is $300,000 while the outstanding mortgages is $250,000, a single person with no dependents can claim the house as exempt in his bankruptcy and be able to keep the house despite the bankruptcy. In this example, if the outstanding mortgage balance was $150,000, a single person who is at least 65 years old on the date of his bankruptcy filing may be able to claim the house as exempt because his exemption qualification is up to $150,000. But the younger single person can exempt only $50,000 of equity. Thus, the younger single person may lose the house to the bankruptcy trustee if his mortgage balance was only $150,000. In that instance, the Chapter 7 trustee may sell the house and give the single person his exemption of $50,000 in cash and use the rest of the sale proceeds to pay creditors. If there is money left after creditors and administrative expenses are paid, including trustee and trustee counsel fees that money is given to the debtor.
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Vacant house cannot be exempted as homestead

Sunday, 04 October 2009 23:29 Atty. Lawrence Yang

IN California, depending on the system of exemption used and the qualifications of debtor filing for bankruptcy, the equity of the residence or homestead that may be claimed as exempt is $50,000 to $150,000. A single person without any dependents may claim a $50,000 equity exemption for his homestead while a person at least 65 years old at the time the bankruptcy is filed may claim a $150,000 equity exemption pursuant to California Code of Civil Procedure 704.730. Note that it is the equity of the house that is claimed exempt. Equity is current fair market value on the day the bankruptcy is filed minus the outstanding balance of all mortgages on the property. Hence, if the fair market value of the house is $300,000 while the outstanding mortgages is $250,000, a single person with no dependents can claim the house as exempt in his bankruptcy and be able to keep the house despite the bankruptcy. In this example, if the outstanding mortgage balance was $150,000, a single person who is at least 65 years old on the date of his bankruptcy filing may be able to claim the house as exempt because his exemption qualification is up to $150,000. But the younger single person can exempt only $50,000 of equity. Thus, the younger single person may lose the house to the bankruptcy trustee if his mortgage balance was only $150,000. In that instance, the Chapter 7 trustee may sell the house and give the single person his exemption of $50,000 in cash and use the rest of the sale proceeds to pay creditors. If there is money left after creditors and administrative expenses are paid, including trustee and trustee counsel fees that money is given to the debtor.
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