Bankr. M.D.N.C.: In re Gifford- Severed Tenancy by the Entireties did not become asset of the Estate Ed Boltz Sun, 01/23/2022 - 16:09 Summary: Christopher Gifford and Shana Gifford owned real property as tenants by the entireties. On April 1, 2019, they separated and Christopher filed a complaint for Equitable Distribution. While that was still pending, on August 7, 2020, Christopher filed a Chapter 7, claiming the real property as exempt as tenancy by the entireties. The Trustee obtained an extension of time to object to exemptions until December 17, 2020. On December 1, 2020, Shana Giffords sough relief from the automatic stay to continue the Equitable Distribution action in state court. The Trustee then sought second and third extensions (with Christopher Gifford objecting to the third). The bankruptcy court grantted a final extension until April 7, 2021. No Objection to Exemptions was ever filed. On April 12, 2021, the bankruptcy court approved a settlement between the Trustee and Shana Gifford approving the sale of the property, but reserving the rights of both the Trustee and Christopher Gifford. An Absolute Divorce between Christopher Gifford and Shana Gifford was entered on June 28, 2021. Christopher Gifford then moved the bankruptcy court to determine that the real property was either not part of the bankruptcy estate or that it should be abandoned, as any severance of the tenancy by the entireties occurred more than 180 days after the filing of the petition. The Trustee argued that Christopher Gifford's vested right to an equitable distribution of the real property and the subsequent divorce made Christopher Gifford's interest an asset of the bankruptcy estate. The bankruptcy court held that the termination of the exemption post-petition did not, absent a separate statutory mechanism, bring the new interest in the underlying property into the bankruptcy estate. In re Birney, 200 F.3d 225, 228 (4th Cir. 1999) (citing Cordova, 73 F.3d at 38). The re-capture does not occur by operation of state law and § 541(a)(1) because the interest as a tenant in common is a new interest in property that "did not exist as of the commencement of the case.'"  Bellinger v. Buckley, 577 B.R. 193, 196-99 (D. Md. 2017). While § 541(a)(5)(B) is one statutory mechanism by which certain types of after-acquired interests in property may be brought into the estate, including an interest in property acquired "as a result of . . . an interlocutory or final divorce decree", but only if the debtor acquires or becomes entitled to acquire an interest in the property within 180 days of filing bankruptcy. 11 U.S.C. § 541(a)(5)(B). Here, the divorce decree was entered more than 180 days after Debtor filed bankruptcy. Therefore, Christopher Gifford's new interest in the Property as a tenant in common did not come into the estate under § 541(a)(5)(B). See In re Earls, Case No. 05-53870C-7W, 2006 WL 3150923, *1 n. 2 (Bankr. M.D.N.C. 2006). Christopher Gifford did, however, acquire a vested, but contingent, right to marital property as of the date of the parties separation on April 1, 2019. Even though the state court had not yet ruled on the equitable distribution, allocating specific assets, that right became an asset of the debtor's bankruptcy case upon filing. Should the state court award the real property to the debtor, in part or in full, that would be an asset of the bankruptcy estate, but only available to joint creditors of the debtor and his now ex-wife. Commentary: This shows an interesting gap as the Debtor's interest in marital property was fixed as of the date of separation but the Tenancy the Entireties was not severed until the parties divorced. Not being an expert in family law, it is not clear whether the Chapter 7 Trustee can, on behalf of Christopher Gifford's bankruptcy estate, appear in the state court equitable distribution action to maximize the estates share of the marital property. As the real property is not available for the Debtor's individual creditors, it would seem to be in the interest of the bankruptcy estate to reach a settlement with the Shana Gifford that gave her the real property in exchange for other assets available for all of the Debtor's creditors. Depending on what other marital assets exist, this would certainly have been a case where the Debtor should have filed the bankruptcy either 181 days before separating, waiting to file bankruptcy until the equitable distribution, or filing Chapter 13, as he would remain in control of those assets rather than ceding it to the trustee. For a copy of the opinion, please see: In-re-GiffordDownload Blog comments Category North Carolina Bankruptcy Cases Middle District

A new opinion from the Fifth Circuit shows multiple mishaps in connection with a bankruptcy-related auction. However, its most important holding has to do with authenticating evidence. The bottom line is that a trial court decision limiting a defaulting bidder's damages based on a webpage found on the Wayback Machine was reversed. Weinhoffer v. Davie Shoring, Inc., Case No. 20-30568 (5th Cir. 1/20/22).  You can find the opinion here. What HappenedDavid Weinhoffer was liquidating trustee for Offshore Specialty Fabricators, LLC. He contracted with Henderson Auctions to conduct an online auction. Henderson advertised the auction on its website. However, when bidders clicked on the auction link, they were taken to Proxibid, a third-party website where they could view the terms of the auction and place bids. One of the terms listed on Proxibid was that defaulting bidders would only be liable for 20% of the amount of their bid. Davie Shoring, Inc. did not go through Proxibid. Instead, it called up Henderson and placed the bid by phone. Davie Shoring bid $177,500 for a piece of equipment but decided not to go through with the purchase because it would be too difficult to remove the module from storage.The liquidating trustee sued Davie Shoring to recover the amount of the bid. Davie Shoring insisted that it was only liable for 20% of the amount of its bid. Davie Shoring's principal testified that he read and relied upon the 20% limitation prior to bidding. The company sought to authenticate the evidence through two forms of evidence. First, it introduced a printout from the Proxibid website. The printout was authenticated by Henderson's office manager. The office manager testified that Henderson did not have a copy of the auction terms because the auction was no longer up on its website. Instead, she obtained them from Proxibid when Henderson was subpoenaed. Davie Shoring also introduced a copy of the Proxibid terms and conditions obtained from the Wayback Machine, an online digital archival of web pages.The liquidating trustee objected to the internet evidence as irrelevant, unauthenticated and hearsay. The district judge allowed the evidence in. The district court found that Henderson's office manager had properly authenticated the printout as a custodian of records. The district court also found that it could take judicial notice of the contents of the Wayback Machine because it was a source whose accuracy could not reasonably be questioned under Fed.R.Evid. 201.Based on the terms and conditions, the district court limited the liquidating trustee's recovery to $35,500 plus costs. The liquidating trustee appealed.The RulingThe Fifth Circuit reversed and remanded. It found that Henderson's office manager could only testify as a custodian of records as to its own records. The exhibit came from Proxibid's records, not Henderson's. As a result, Henderson's custodian of records could not authenticate it. "Although a witness need not be a document’s author to authenticate it for purposes of Rule 901, we have observed that a witness attempting to authenticate online content as evidence was unlikely to have the requisite direct knowledge where that content was created and maintained by a third party." Opinion, pp. 4-5. Because Henderson's custodian of records could not authenticate the document, it also could not take the document out of the hearsay rule by authenticating it as a business record. Thus, the printout was doubly inadmissible.The Court also found that it was error to take judicial notice of the Wayback Machine.  There is apparently a body of case law dealing with the Wayback Machine. An opinion from the Federal Circuit found that it could not take judicial notice of a page on the Wayback Machine because the district court had not been asked to take judicial notice. This led several district courts to conclude that they could take judicial notice. Other district courts disagreed, noting that the Wayback Machine itself disclaims any guarantees of accuracy. In another federal circuit decision, a witness properly authenticated a page from the Wayback Machine to show that certain content was publicly known in the context of a patent dispute.The Fifth Circuit found that the Wayback Machine was not so reliable that pages from its archive could not be self-authenticated. Here, there was no testimony to authenticate the archived webpage. Our sister circuits’ decisions that the Wayback Machine is not self-authenticating are persuasive in the context of judicial notice. In sum, the district court erred in taking judicial notice of the terms because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned as required by Rule 201.Opinion, p. 8. The Fifth Circuit reversed the decision and remanded for further proceedings consistent with the opinion. Presumably, the further proceedings will not include another chance for the defendant to authenticate the evidence. Lessons to Be LearnedThe first important question about this case is one that is not answered by the opinion. Did the trustee know that the company he hired to conduct the auction had out-sourced the auction to a third-party whose terms and conditions contained a damage limitation? There are two possibilities here. One is that the trustee had no idea that this limitation existed and was shocked when the bidder tried to limit his liability. The other is that the trustee knew all along and was willing to let his attorneys take an opportunistic position hoping that the other side couldn't get the evidenced authenticated. However, if the trustee knew about the limitation, the bidder could simply have gotten the evidence from the trustee. The fact that it had to go to other sources strongly suggests that the trustee was not aware of this limitation and didn't agree to it. This suggests that trustees conducting online auctions should do their due diligence to know the mechanics of how the auction will be conducted and whether a third-party will be posting the terms and conditions of the sale. Had the bidder properly authenticated the terms and conditions, the small judgment would have been upheld. Henderson was the authorized agent of the trustee and Proxibid was the authorized agent of Henderson. Therefore, the trustee could have been held to the admissions of its agent once removed. The second lesson is that just because something is on the internet does not make it admissible. If I write on my Facebook page that Leif Clark was in Norway on a certain date, that post could be used as a party admission against me (although I have no idea why anyone would care). However, it could not be introduced into evidence against Leif since that would be hearsay. Instead, you would have to go to find Leif's own posting about his latest trip to Norway and then authenticate it. That could be done by asking Leif if that was his post or by having a witness from Facebook testify that the posting accurately reflected a statement posted from Leif Clark's Facebook account. For those wanting to authenticate pages from the Wayback Machine, the Fifth Circuit helpfully points out that  The Wayback Machine’s “Using The Wayback Machine” webpage instructs users on how to request affidavits to authenticate Wayback Machine pages as “certified records for use in legal proceedings.” See Internet Archive, Using the Wayback Machine, http://help.archive.org/hc/en-us/articles/360004651732-Using-The-Wayback-Machine (last visited January 20, 2022).Opinion, n. 22.The final lesson is that this opinion illustrates why counsel should get stipulations on the admissibility of evidence prior to trial so that you know in advance which exhibits may be problematic.   

 https://www.bankrate.com/finance/credit-cards/how-long-after-bankruptcy-credit-card/

 https://www.reuters.com/world/us/upside-down-again-omicron-surge-roils-us-small-businesses-2022-01-16/

A Breakdown of the Bankruptcy Petition What is a bankruptcy petition, exactly? Find out from noted Philadelphia bankruptcy attorney David M. Offen what a bankruptcy petition is and how it works in the bankruptcy process. If you are researching bankruptcy petitions online, you are likely considering filing bankruptcy and want to know more about it. An educated debtor is a successful debtor. Find out even more about your options considering your unique financial situation by scheduling your free, no-obligation consultation with the Law Offices of David M. Offen. Call (215) 625-9600   and let us help you get free of bills. Bankruptcy Petition Definition The bankruptcy petition is the first form in a package of forms you must file in order to open your bankruptcy case. The information you disclose on your petition introduces you to the court and the Trustee. In your petition, you set forth identifying information, the identity of your co-debtor if you have one, your address, what Chapter you intend to file under, and general information about your financial situation. You will file many other forms with your petition when you file bankruptcy, and the entire filing may also be referred to as “the petition” or “the petition and schedules.”  On your Schedules, you disclose your income, assets, expenses, and debts, and co-debtors, and swear to the best of your knowledge that the information you’ve disclosed is true and correct to the best of your knowledge.  You also complete forms attesting that your social security number is correct, a statistical summary of your assets and liabilities, and certifications that you completed your credit counseling course, and later in your case, the financial management course, also called the debtor education course. Last, you complete your Statement of Financial Affairs. If you have a lawyer filing for you, the attorney will put together the paperwork for you based on the information you provide.  You then sign that the information is true and correct to the best of your knowledge. Chapter 7 Bankruptcy & Chapter 13 Bankruptcy Chapter 7 bankruptcy is a four- to six-month process during which you disclose your income, assets, expenses, and debts to the court and receive a discharge of your unsecured debt. You must pass the Chapter 7 means test in order to income qualify to file under Chapter 7. In other words, if you complete the means test and find that you have disposable income, you must file under Chapter 13, except in certain circumstances such as where you were just laid off from a high paying job, no longer have the same income and you need bankruptcy relief right away. Forms specific to Chapter 7 bankruptcy include: Chapter 7 Means TestStatement of Intention (how you intend to deal with your secured debt)Statement of Current Monthly IncomeStatement of Exemption from Presumption of Abuse  A Chapter 7 debtor may also need to file: Application to Pay the Filing Fee in InstallmentsApplication to Have the Filing Fee WaivedStatement about an Eviction JudgmentForms requesting Mortgage Modification (vary by jurisdiction) Chapter 13 bankruptcy is a three- to five-year process and works much the same way as a Chapter 7 filing except a Chapter 13 debtor pays Chapter 13 plan payments each month to the Trustee, who distributes the payments to the debtor’s creditors. Chapter 13 debtors often use Chapter 13 to catch up with past-due payments on their mortgage, car loan or lease, support obligation, student loan obligation, or obligation to pay taxes or government fines or fees. Forms specific to Chapter 13 bankruptcy include: Your proposed Chapter 13 planStatement of Current Monthly Income and Calculation of Commitment PeriodCalculation of Your Disposable Income All debtors are required to provide a list of creditors. These can include credit card lenders, medical providers for unpaid medical bills, holders of deficiency judgments, domestic support obligees such as a child support obligee or an alimony obligee, mortgage lenders, car lenders, car lessors, personal loan lenders, landlords for unpaid rent, second mortgage or HELOC lenders, tax lien holders, the IRS for unpaid income tax, student loan lenders, and the state or federal government. Even if the statute of limitations for debt collection in PA has passed, you should list those creditors. Types of Bankruptcy Petitions Voluntary Bankruptcy Petition for Individuals Most bankruptcy petitions are filed by debtors voluntarily using Official Form 101. Voluntary Bankruptcy Petition for Non-Individuals Businesses or organizations filing bankruptcy use Official Form 201 as their petition. Involuntary Bankruptcy Petition for Individuals Occasionally a creditor forces someone into bankruptcy. Those filing bankruptcy against an individual use Official Form 105 as their petition. Involuntary Bankruptcy Petition for Non-Individuals If a group of creditors wish to force a business or organization into bankruptcy, they will use Official Form 205 as their petition. Requirements of Bankruptcy Petitions Individual debtors filing voluntarily or married individuals filing jointly must disclose: Your legal name and any other names you have used in the last eight years;Your spouse’s legal name and any other names they used in the last eight years, if you are filing a joint petition;The last four digits of your social security number(s);Any business name or Employer Identification Numbers you have used in the last eight years;Your address;The Chapter of bankruptcy you are filing under;How you intend to pay the filing fee, or if you need installment payments or a fee waiver;Whether you have filed bankruptcy in the last eight years;Whether you spouse or business partner has a pending bankruptcy case;Whether you own a business as a sole proprietor;Whether you are filing under Chapter 11 and are a small business debtor;Whether you possess anything that is hazardous;Whether you have been briefed about taking your credit counseling course;Whether your debts are primarily consumer or business debts;Whether you are filing Chapter 7 and have non exempt assets;An estimate of the number of creditors you owe;An estimate of the worth of your assets;An estimate of the total amount of your debt;Your signature “under penalty of perjury;”Whether an attorney or a petition preparer helped you prepare the petition. Be aware that your signature is a sworn statement that everything you’ve disclosed on your petition is true and correct to the best of your knowledge. If you lie on your petition, you have committed perjury, and you may have to pay fines of up to $250,000, face up to 20 years of imprisonment, or both. Just be sure to try to accurately answer any questions that your lawyer asks you. What Happens After Filing a Bankruptcy Petition Once you have filed your bankruptcy petition and schedules, your case will be assigned a docket number and your creditors will be mailed or emailed a notice that you filed, the deadline to object to discharge, and the date of the first scheduled 341(a) Meeting of Creditors. If you have not done so already, you must complete your credit counseling course and provide your attorney with the certification of completion, which your attorney will file. You must also take a financial management course, also called the debtor education course, and have your attorney file that certification of completion. 341(a) Meeting of Creditors The purpose of the 341(a) Meeting of Creditors is not only to give your creditors the opportunity to question you about the debt you owe. The Meeting of Creditors allows the Trustee to verify your identity and ask any questions they have about your filing. In most cases, the creditors do not show up to the meeting of creditors. Your attorney will know if any creditors intend to appear, and will prepare you for the Trustee’s questions. How an Experienced Bankruptcy Attorney Helps Regardless of what Chapter you are filing under, an attorney guides you through the process or completing your bankruptcy petition so that you make no mistakes that could be construed as bankruptcy fraud. Also, an experienced bankruptcy attorney will ensure that the process goes very smoothly, that you attain your financial goal through your bankruptcy filing, and that there are no surprises or unintended consequences from your filing. Call The Law Offices of David M. Offen today at (215) 625-9600 to take advantage of the opportunity to talk with an experienced bankruptcy attorney about your particular financial situation, concerns, and goals – free of charge! Let us help you get a fresh financial start. The post A Breakdown of the Bankruptcy Petition appeared first on David M. Offen, Attorney at Law.

Can I Put My Property In My Spouse’s Name & File For Bankruptcy In Arizona? The Repercussions Of Putting Your Property In The Name Of Your Husband Or Wife & Filing Bankruptcy Our Phoenix Bankruptcy Lawyers and Tucson Bankruptcy Attorneys discuss the repercussions of putting your property in the name of your spouse and then filing bankruptcy in Arizona. Our experienced Phoenix debt relief attorneys define Chapter 7 Bankruptcy and chapter 13 Bankruptcy. Additionally, they dive into different scenarios of property transfers and declaring bankruptcy in Phoenix and Tucson, Arizona. Bankruptcy can be a powerful tool that reorganizes or eliminates your debts. Erasing thousands of dollars of unsecured debt could give you several new opportunities in life. Filing bankruptcy also triggers the Automatic Stay, which stops your creditors from taking actions like repossessing your vehicle, garnishing your wages, foreclosing your home, and more. But you can’t take advantage of these massive benefits if you have the financial means to pay your debts on your own. There are strict requirements you must meet to be eligible to file Chapter 7 bankruptcy in Arizona, which is the type of consumer bankruptcy that doesn’t require you to pay back your debts. And while not a strict requirement, any assets that aren’t protected by state bankruptcy exemptions are at risk of being taken by your bankruptcy trustee to pay your creditors. So sometimes, clients come to us with what they believe is a novel workaround- filing bankruptcy without their spouse, and transferring non-exempt assets to their spouse beforehand. Read on to learn more about how using this strategy could work out when you file an Arizona bankruptcy. Arizona Bankruptcy Basics It’s almost impossible to continue without first giving a brief overview of some bankruptcy basics. Most people in Arizona file either Chapter 7 or Chapter 13 bankruptcy. If you are married, you have the option between filing as an individual or as a married couple. A bankruptcy trustee will be assigned to oversee your case, making sure you aren’t hiding assets that could be used towards your debts. You will need to attend a hearing known as a 341 Meeting of Creditors, in which you will meet with the trustee and any creditors that choose to attend. Filing Chapter 7 Bankruptcy In Phoenix, Arizona Chapter 7 bankruptcy is what most people think of when they hear the word “bankruptcy.” It clears away unsecured debts like credit cards, medical bills, and personal loans. To qualify for such an enormous benefit, you must meet one of two income requirement tests. The first is a comparison of your income to Arizona’s median income based on your household size. For a single individual, this is $55,839 per year. If you are married or have one minor child, it is $69,975. This increases to $75,560, $85,714, $94,714, and so on, for each additional family member. Only a spouse and children under the age of 18 count as family members for bankruptcy calculation purposes. If you make more than the Arizona median income for your household size, you will need to qualify for Chapter 7 bankruptcy using the Means Test. The Bankruptcy Means Test in Arizona is a bit more complicated than comparing your income to the state median income. If you aren’t paid on a salary basis, you will first find your average monthly income over the previous 6 months. Then, you will subtract necessary expenses from your average monthly income. This includes a wide variety of expenses, like rent or mortgage payments, utilities, student loans, child support and spousal maintenance, taxes, and more. The number you calculate, which represents how much spare income you have that could be used to pay your debts, is known as your disposable monthly income. If this number is negative, or falls within Arizona’s limits, you can file Chapter 7 bankruptcy. If you can’t qualify under either of these methods, you will need to instead file Chapter 13 bankruptcy. Qualifying For Chapter 7 Bankruptcy in Arizona Another major concern besides income qualification when filing Chapter 7 bankruptcy is protecting your assets. Each state has its own bankruptcy exemptions, which represent how much equity you can hold in certain asset categories. Unlike some other states, Arizona doesn’t allow for use of federal bankruptcy exemptions. Your bankruptcy trustee has the right to seize any assets that aren’t protected by exemptions to sell and pay your debts. They also have a great incentive to do so, as they also receive a percentage of the proceeds. The homestead exemption, or the exemption used to protect your house, RV, etc., is $150,000. For motor vehicles, the exemption in Arizona for married couples is $6,000 each for two vehicles or $12,000 for one vehicle. The exemption for household goods and furnishings is also $6,000. For engagement and wedding rings, the Arizona exemption is $2,000. Only $20,000 of life insurance proceeds are protected in an Arizona Chapter 7 bankruptcy. However, all child support and spousal maintenance payments are exempt. One important Chapter 7 bankruptcy exemption to note in Arizona is for bank accounts. Arizona only allows $300 on the day of filing for an individual, and $600 for a married couple. This means carefully timing your bankruptcy petition to make sure there aren’t nonexempt funds in your account on the day of filing. Contact our firm for your free consultation if you need additional information about Arizona’s bankruptcy exemptions. Filing Chapter 13 Bankruptcy In Phoenix, Arizona Chapter 13 bankruptcy is usually available to those whose income exceeds Arizona’s Chapter 7 income limits. It reorganizes debts into a payment plan that is divided and paid off in four categories of debt. For someone who qualifies for Chapter 7 bankruptcy, the payment plan will last 3 years. For those who don’t, it lasts 5 years. You are safe to keep paid in full assets in a Chapter 13 bankruptcy because you will be paying off most of your debts in your payment plan. Only some of your unsecured nonpriority debts may be discharged at the end of your payment plan. So if your assets aren’t protected in a Chapter 7 bankruptcy, you may want to consider filing Chapter 13 instead. If I Transfer a Non-Exempt Asset To a Relative Or Non-Filing Spouse, What Happens If My Chapter 7 Bankruptcy Trustee Finds Out? Some resourceful Chapter 7 filers consider the idea of transferring an asset such as a vehicle or real estate to a loved one that won’t be included in the bankruptcy before filing. This might seem like a creative solution to the issue of non-exempt assets being taken in a Chapter 7 bankruptcy to pay creditors. But your bankruptcy trustee will have an eye out for these types of maneuvers. The trustee can review 2-4 years of prior transfers to make sure you haven’t hidden any assets that could be used to pay debts. It’s always best to be honest and give full disclosure of prior property transfers on your bankruptcy petition. Your bankruptcy trustee may “claw back” preferential payments to your family members, as well as recover any other property like a vehicle or expensive watch. If the transfer was money, but the money is now gone, you will most likely be required to pay that sum to the trustee or face case dismissal. In serious cases, you could even be charged with bankruptcy fraud, which would result in massive fines and even prison time. Protect Your Interests With a Dedicated Phoenix Bankruptcy Attorney Whether or not you’ve made a “creative” transfer in recent years, it’s always best to proceed with the guidance of a professional when it comes to bankruptcy. And if your bankruptcy trustee catches you in a sketchy transfer, your case could be dismissed and make your financial situation even worse. You could even face felony charges for lying on your bankruptcy petition. Make sure your petition is filed in accordance with state law by filing with a knowledgeable and experienced bankruptcy attorney. Our team of Phoenix and Tucson bankruptcy attorneys has collective decades of experience helping our clients achieve their bankruptcy goals and move forward with a fresh start. Furthermore, we will guide you through each step of the process, starting with your free initial consultation. Our free consultation is confidential and is the perfect opportunity to have all your questions about filing bankruptcy in Arizona answered. It’s also your opportunity to interview us. During your free consultation, we will check your bankruptcy qualification, as well as see if you qualify for our Zero Down Bankruptcy Payment Plan. Let us know when is most convenient for you through our online form or at 480-833-8000; telephone appointments available.     Arizona Offices: Mesa Location: 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: (480) 448-9800 Email: info@myazlawyers.com Website: https://myazlawyers.com/ Phoenix Location: 343 West Roosevelt, Suite #100 Phoenix, AZ 85003 Office: (602) 609-7000 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) 469-6603 The post Can I Put My Property In My Spouse’s Name & File For Bankruptcy In Arizona? appeared first on My AZ Lawyers.

 Bankruptcy Deadlines must be observed! The recent case of In re U-Haul, 21-bk-20140, 2021 Bkr LEXIS 3373 (Bankr. S.D. W. Va. Dec. 10, 2021) demonstrates this rule. In the U-Haul case, a creditor needed to file a proof of claim for $53 million and their attorney  waited until the last moment to do the filing. Unfortunately the attorney  did not have the proper password and the proof of claim was filed approximately 9 hours late.Counsel for the Debtor objected to the late filed claim. Creditor counsel argued “excusable neglect” (the argument usually made by attorneys  when deadlines are missed see  Pioneer Inv. Servs. v. Brunswick Assocs. Ltd P’ship, 507 U.S. 380 (1993)) and creditor counsel lost. For those that do bankruptcy work on a day to day basis, this is a painful case to read. A lesson for all lawyers is to prepare for deadlines, observe deadlines, do not wait until the last minute to file and prepare and plan for the unexpected. Jim Shenwick, Esq.

What Does the Bankruptcy Trustee Investigate? Every person considering filing Chapter 13 bankruptcy or Chapter 7 bankruptcy is concerned about running afoul of the Trustee. You’ve probably heard that the Trustee has the power to seize your assets or dismiss your case. This is true, under certain circumstances. Learn from noted Philadelphia bankruptcy lawyer David M. Offen who the bankruptcy Trustee is, what their duties are, how and when you and your attorney interact with the Trustee, and how your bankruptcy lawyer helps you navigate the bankruptcy process and provide everything the Trustee requires so that you have a successful bankruptcy filing. Call us if you have any questions. You can discuss your concerns with us free of charge. We have over 20 years of experience helping our clients satisfy the Trustee and successfully complete their bankruptcy case. We can help you too. What the Bankruptcy Trustee Is A bankruptcy Trustee is an officer of the Department of Justice appointed by the United States Trustee to represent each debtor’s estate in their bankruptcy proceeding. Bankruptcy Trustees evaluate debtors’ cases and investigate, make recommendations, and take action in accordance with the United States Bankruptcy Code. What a Bankruptcy Trustee Investigates in Chapter 7 The Chapter 7 Trustee has many duties, among them inspecting the debtor’s filing, inspecting creditors claims, confirming the identity of the debtor, and holding the 341(a) Meeting of Creditors. Without the approval of the Chapter 7 Trustee, no one can complete a Chapter 7 case and receive a discharge. These are the questions that trip up Chapter 7 debtors the most: Did the Debtor Pass the Chapter 7 Means Test? The Chapter 7 Trustee’s first obligation is to confirm that the debtor is eligible to file Chapter 7. The Trustee examines the debtor’s completed and filed means test as well as the financial information and documentation the debtor provides. If the Chapter 7 Trustee has concerns or requires further information or documentation, they will contact the debtor’s attorney or ask for what they require at the 341(a) Meeting of Creditors. If the Chapter 7 Trustee finds that the debtor is ineligible to file Chapter 7, they will recommend either case dismissal or case conversion. That is why before you file for Chapter 7 your attorney wants to make sure that you pass the means test, or have very special circumstances that would permit the Chapter 7 to proceed even if you do not pass the means test. Does the Debtor Have Nonexempt Assets? Another of the Chapter 7 Trustee’s primary duties is to protect the interests of creditors. If the debtor’s attorney has applied all applicable exemptions and there are non exempt assets left over, the Chapter 7 Trustee has the power to seize and sell those assets for the benefit of the debtor’s creditors. If there are no such assets, the Trustee files a Notice of Abandonment with the court. If there are no non-exempt assets that you wish to keep, then your attorney may recommend that you file for bankruptcy protection under Chapter 13. Is the Debtor Entitled to Chapter 7 Discharge? The final and perhaps most crucial step the Trustee takes is to determine whether the debtor is entitled to a discharge. The Chapter 7 Trustee may object to discharge if: The debtor has previous recent bankruptcy filingsThe debtor filed bankruptcy in bad faith (example: to unreasonably delay creditor action)The debtor lied on their petition or schedulesThe debtor lied under oath at the 341(a) Meeting of CreditorsThe debtor failed to disclose incomeThe debtor failed to disclose assetsThe debtor attempted to conceal or destroy propertyThe debtor incurred debt fraudulentlyThe debtor incurred debt in contemplation of filing bankruptcyThe debtor failed to cooperate with the Trustee’s requests  What a Bankruptcy Trustee Investigates in Chapter 13 In addition to what the Chapter 7 Trustee investigates, a Chapter 13 Trustee must verify that the debtor has sufficient income to fund their plan, that the debtor’s creditors are receiving as much through the plan as they could have gotten had the debtor filed Chapter 7 and had nonexempt assets, and the value of any property affected by the plan, such as a car or real property. What a Bankruptcy Trustee Has Access To A bankruptcy Trustee has access to the debtor’s complete filing and has the power to demand just about any kind of supporting documentation of the debtor. The Trustee can also subpoena third parties to testify under oath about the debtor’s finances. Because the Trustee has wide-ranging power, there is little a debtor can do to hide income or assets or cover up fraudulent behavior. Failing to Divulge Information in Bankruptcy Failing to divulge all financial information in their bankruptcy filing is the most common way debtors fall afoul of the Trustee. Often what looks like fraud or nondisclosure to a Trustee is simply a mistake or oversight by the debtor.  An experienced bankruptcy attorney helps a debtor avoid any such question or allegation by discussing their financial situation in detail and planning well in advance of actually filing.  Things Bankruptcy Trustees Look for at the Meeting of Creditors The Trustee requires proof of identity such as a driver’s license and Social Security card, and will ask some or all of the following questions, among others: Is the address on the petition your current address?Is the signature on the petition, schedules, statements, and related documents your own (pointing to your filed documents)?Did you review these documents before you signed them?Are you personally familiar with the information contained in your filing?Is the information contained in your filing true and correct to the best of your knowledge?Are there any errors or omissions in your filing that you want to bring to my attention at this time?Are all of your assets identified on the schedules? Have you listed all of your creditors on the schedules?Have you previously filed bankruptcy? If so, when?Who is your current employer?What is the address of your current employer?What do you do for your employer?Have you filed any amendments to the recent tax returns you provided to me?Do you have a domestic support obligation? If so, to whom?Are you current with your domestic support obligation?Have you read the Bankruptcy Information Sheet?Do you own or have any interest whatsoever in any real estate?Have you made any transfers of any property or given any property away within one year prior to filing bankruptcy? Does anyone hold property belonging to you?Do you have a claim against anyone or any business?Are you the plaintiff in any lawsuit?Are you entitled to life insurance proceeds?Are you entitled to an inheritance?Does anyone owe you money?Have you made any large payments to anyone including family in the year prior to filing?At the time of the filing of your petition, were you owed a tax refund from the federal or state government?Do you anticipate that you might realize any property, cash or otherwise, as a result of a divorce or separation proceeding? If the Trustee is dissatisfied with any response, they have the power to reschedule the 341(a) Meeting and demand additional information or documentation.  What if Creditors Show Up at the 341(a) Meeting? Creditors have the right to appear at the meeting and ask questions of the debtor under oath. This can happen if a creditor suspects that the debtor incurred debt fraudulently, asserts that a debt listed as unsecured is actually secured, or is hiding income or assets. For example, an ex-spouse may appear and ask the debtor about undisclosed income or assets, or a business partner of the debtor may appear to ask about company property or funds.  The debtor must answer the creditor’s questions truthfully or risk federal prosecution for lying under oath. Depending upon who the creditor is and what questions they ask, the creditor may take additional actions against the debtor such as filing an objection to discharge or an adversary proceeding to determine that the debt is nondischargeable.  If a Bankruptcy Trustee Suspects Fraud If a Trustee suspects fraud either through their own assessment of the debtor’s case or through the debtor’s responses to creditor questions, they have a number of ways to investigate and take action against the debtor, if warranted. Rule 2004 Examinations If a Trustee suspects fraud but does not yet have the evidence they need to object to discharge or move to dismiss a debtor’s case, they can compel the debtor to testify or to produce documents during an examination of the debtor allowed by Bankruptcy Rule 2004. The Trustee may ask about anything and everything having to do with the debtor’s filing, financial behavior before and during their bankruptcy case, and testimony under oath.   Objections to Discharge If a Trustee finds any evidence that the debtor is not entitled to a discharge, they may file an objection. Such evidence may fall short of fraud but may show that the debtor had a previous discharge shortly before filing this case, or that the debtor did not pass the means test. Adversary Proceedings If the Trustee finds evidence to support a finding of fraud, they may file a lawsuit against the debtor or a third party within their bankruptcy case. This lawsuit is called an adversary proceeding.  Again, two of the primary duties of the bankruptcy Trustee is to determine whether the debtor is entitled to discharge and to protect the interests of the debtor’s creditors. To these ends, the Trustee may ask the bankruptcy court to: reverse prepetition preferential transfersset aside prepetition fraudulent transfers obtain hidden or undisclosed property owned by the debtor revoke discharge if the debtor failed to disclose inheritance or other windfall received shortly after their bankruptcy case closedobtain property or funds from employees or officers who have wrongfully taken assets of a business that filed bankruptcyrecover property that has been wrongfully seized by creditors Refer Bankruptcy Crimes to the Office of the United States Trustee for Prosecution Bankruptcy fraud is a federal crime punishable by fines and incarceration. Examples of bankruptcy crimes a debtor may commit include: Knowingly concealing assets or incomeLying under oathBriberyEmbezzlementFiling a fraudulent petition or schedules Creditors in a bankruptcy case may also be prosecuted for fraud if they file a false claim or otherwise lie under oath. The Trustee refers bankruptcy crimes to the Office of the United States Trustee who in turn refers it to the United States Attorney, the Federal Bureau of Investigation (FBI), or other appropriate federal agency for prosecution in federal court. How a Bankruptcy Lawyer Helps Your Case This article is in-depth because as someone considering filing bankruptcy, you need to know what you may be in for. Many innocent debtors get caught up in Trustee allegations of wrongdoing or fraud because they did not know what the Trustee would be looking for and failed to plan for that. Let experienced bankruptcy lawyer David M. Offen guide you through the filing process so that your bankruptcy goes as smoothly as possible. During your initial consultation, Mr. Offen identifies any potential problems that the Trustee might spot and advise you as to how to deal with them in advance. Put his over 20 years of experience to work for you and get a fresh financial start. The post What Does the Bankruptcy Trustee Investigate? appeared first on David M. Offen, Attorney at Law.

Alternatives to Bankruptcy: Money Management Credit Counselling For high income people who can’t quite handle their debt, “credit counselling” can be an alternative to bankruptcy. Credit counselling services–the kind I’m talking about anyway–have agreements with the major credit cards on what payments they will accept through their program.  Professional and ethical standards for credit counselling […] The post Alternatives to Bankruptcy: Credit Counselling Debt Management by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.

Stress May Be Your Heart’s Worst Enemy That’s a headline in today’s New York Times.   I pass that on because as a bankruptcy lawyer I see people defeated by the stress of debt’s they can’t pay.  Good people go for years dragging around bad debts they can’t pay, before they finally take advantage of the […] The post Stress and Your Heart by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.