Tag: court cases

Court cases involving bankruptcy and articles written which examine, analyze and explain the decisions.

Welsh is a gift from the 9th Circuit for every bankruptcy attorney

Chapter 13, Social Security, & Luxury Debt: A Case you Must Know

Posted by Hale Andrew Antico on

Chapter 13, Social Security, & Luxury Debt: A Case you Must Know

Why Welsh is the greatest Chapter 13 case ever

Every now and then, courts pass down a ruling on a subject that is so practical and a decision so favorable to consumer debtors that it’s as if the heavens opened, angels sang, and cherubim hand-delivered a gift to attorneys far and wide on the wings of a unicorn. The Ninth Circuit’s In re Welsh is such a case.

Introduction

On this, the ten-year anniversary of In re Welsh, 711 F.3d 1120 (9th Cir, 2013), it seems relatively few attorneys know about this ruling, and how it can benefit debtors. Or at least, far fewer bankruptcy lawyers know about this than should. Yet we all should have it tattooed on the inside of our eyelids.

So, with the goal of getting the word out there, and celebrating a decade of relative anonymity, here’s a loud and triumphant commemoration as a monument to one of the greatest debtor cases in bankruptcy jurisprudence, and all of its varied folklore.

Continue reading “Chapter 13, Social Security, & Luxury Debt: A Case you Must Know” →

duplex apartment outhouses and homestead exemption house with knife

Duplex, ADUs, Apartments, Buildings and Calif Homestead Exemption

Posted by Hale Andrew Antico on

Duplex, ADUs, Apartments, Buildings and California Homestead Exemption

Does the California Homestead protect a separate dwelling unit?

Is a duplex or apartment protected by the California homestead exemption? What about a separate building like an ADU on the same lot. Or a very large lot. It depends.

Accessory dwelling units (or ADUs) are becoming quite common in California. The question is whether the Calif homestead is broad enough to cover ADUs.  The California homestead exemption lets someone in a bankruptcy protect some or all of the equity in their residence. What are the limits of this though?

Starting with a common scenario: if someone rents out a room in their home, is the unpartitioned house now subject to limited protection? What if it becomes partitioned?

The issue only gets more complicated from there. Debtors can live in a duplex or apartment building they own, but how extensive (or limited) is the asset protection of the homestead exemption in California?  What about a home on a (very large) lot? Two dwellings or ADUs on a lot?  Let’s take a look.

Continue reading “Duplex, ADUs, Apartments, Buildings and Calif Homestead Exemption” →

Surplus Income, Bankruptcy, and Nonconsumer or Business Debt Avoids the Maze of the Means Test

Nonconsumer Debt + No Means Test = Chap 7 Discharge? A Deep Dive

Posted by Hale Andrew Antico on

Nonconsumer Debt + No Means Test = Chap 7 Discharge? A Deep Dive

A Look at Surplus Income and Nonconsumer Debt, Skipping the Bankruptcy Means Test, and if the Case Law Leads to Chapter 7 Success

Does having primarily nonconsumer debt give someone a shortcut to Chapter 7 discharge? Generally, Chapter 7 is for people who can’t afford to repay debt. There’s a means test that makes someone eligible for Chapter 7. However, there appears to be a loophole that allows someone with primarily nonconsumer debt to skip the means test. Does that shortcut mean high-income debtors with primarily non-consumer debt are on easy street to Chapter 7 discharge?

The Issue: Why Nonconsumer Debt May Help Chapter 7 Discharge

Debt can be categorized as either consumer or nonconsumer. The big difference is if the debt is nonconsumer, you can skip the means test, and squeeze into Chapter 7 bankruptcy.

Continue reading “Nonconsumer Debt + No Means Test = Chap 7 Discharge? A Deep Dive” →

Amending exemptions or schedules in a reopened case is not allowed in some courts

Amend Exemption in Reopened Bankruptcy? The Three Approaches

Posted by Hale Andrew Antico on

Amend Exemption in Reopened Bankruptcy? The Three Approaches

In a bankruptcy case where you already got the order of discharge and has been closed, can you go back and reopen the case to amend the exemptions to protect an asset? The answer is (say it with me): it depends.

The Scenario: Need to Reopen & and Amend Schedules

If you practice bankruptcy long enough, you know the situation. Debtor files bankruptcy, and somehow forgets that they had a cause of action and (potential) lawsuit against someone, and doesn’t disclose the potential asset.

Years later, defendant finds out about the bankruptcy, considers judicial estoppel, and for good measure, notifies the old bankruptcy trustee about the asset in the closed bankruptcy case.

Debtor then reopens the bankruptcy case, and amends the schedule of assets and exemptions and all is forgiven. No harm, no foul.

Of course, this can also happen when you want to avoid the lien of a home with no equity at the time of an old case, using Section 522(f). This would lead to the need to reopen and amend Schedule C with a de minimis amount to show that the lien is impairing an exemption.  In re Higgins, 201 BR 965 (9th Cir BAP 1996)

The Problem: Can you Amend Exemptions after a Bankruptcy is Closed?

We start with one potential issue:  Rule 1009(a) of the Federal Rules of Bankruptcy Procedures says when a case can be amended. “A voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed.”

Continue reading “Amend Exemption in Reopened Bankruptcy? The Three Approaches” →

A converted bankruptcy case may start the objection deadline

Bankruptcy Conversion and Exemption Objection Deadlines

Posted by Hale Andrew Antico on

Bankruptcy Conversion and Exemption Objection Deadlines

Does a converted bankruptcy case restart the deadline for objections to exemptions?

A recent look at objecting to exemptions and Rule 4003 revealed a circuit split — despite the rule’s text — as to whether a bankruptcy that is filed as Chapter 11 or as Chapter 13 but then converted to Chapter 7 resets the clock for objections to exemptions.

The Issue

The FRBP rule says that the opportunity to object to exemptions is within 30 days of the 341a meeting.  But when a case is filed as a Chapter 11 or Chapter 13, the trustee and creditors are not quite as motivated to challenge exemptions as in Chapter 7, as these chapters are not about liquidation or taking nonexempt assets for the benefit of the creditors. However, when a case is then converted to Chapter 7, a trustee who is focused like a laser beam on exemptions is then appointed. However, the 341(a) meeting was already concluded months (if not years) ago and the new trustee doesn’t get a chance to object to the exemptions.

Some courts have found this to be unfair as a backdoor way around exempting assets or a violation of due process, and the courts have allowed a new deadline. Others have held true to the statute’s plain text. This has led to a split in the circuits.

Continue reading “Bankruptcy Conversion and Exemption Objection Deadlines” →

Absolute Right to Dismiss Chapter 13 is a Happy Green Light

9th Cir BAP: Actually, Absolute Right to Dismiss means Absolute

Posted by Hale Andrew Antico on

9th Cir BAP: Actually, Absolute Right to Dismiss means Absolute

Ninth Circuit Bankruptcy Appellate Panel finds no “eligibility” exception to right to dismiss a Chapter 13 bankruptcy

Recent BAP ruling answers the question if debtor’s right to dismiss a Chapter 13 bankruptcy after Nichols is absolute, or if debt limit ineligibility restricts it.

Continue reading “9th Cir BAP: Actually, Absolute Right to Dismiss means Absolute” →

Bankruptcy can toll or extend the statute of limitations using Section 108(c)

Does Bankruptcy Toll the Statute of Limitations? 108c Top Points

Posted by Hale Andrew Antico on

Does Bankruptcy Toll the Statute of Limitations? 108c Top Points

Does bankruptcy’s automatic stay toll a statute of limitations for a creditor’s claim or judgment, or extend it in Calif and beyond. What to know.

When a bankruptcy is dismissed or discharged, is the statute of limitations tolled on an earlier claim by the automatic stay, and suspended? Or is the statute of limitations extended by a few weeks with just a little bit of time tacked on? The answer could make a big difference on how much time the creditor has the act on their claim, lawsuit, lien, or other collection actions.

Continue reading “Does Bankruptcy Toll the Statute of Limitations? 108c Top Points” →

time of bankruptcy filing determines homestead exemption

9th Cir: To Avoid a Judgment Lien, Use Exemptions at this Time

Posted by Hale Andrew Antico on

9th Circuit: Lien Avoidance Homestead Determined at Time of Bankruptcy Filing

If someone wants to avoid a judgment lien in bankruptcy, is the homestead exemption the one at the time the lien attached, or at the time of the bankruptcy filing? The Ninth Circuit Court of Appeals has recently weighed in, and the answer can affect thousands of dollars of liens on your home.

Continue reading “9th Cir: To Avoid a Judgment Lien, Use Exemptions at this Time” →

Chicago v Fulton automatic stay and turnover cases are not just about cars

After Chicago v Fulton: Not Only Cars

Posted by Hale Andrew Antico on

After Chicago v Fulton: Not Only Cars

A Survey of Fulton Rulings and a Weakened Automatic Stay

Intro: What is a Fulton ruling?

When Chicago v Fulton (In re Fulton), 141 S Ct. 585 (Sup Ct, 2021) was first decided by the Supreme Court, there was a consensus among bankruptcy attorneys that the erosion of the automatic stay with regard to turnover was only about cars. That is, Fulton was a narrow ruling that was only about impounded vehicles seized prepetition, and wouldn’t really impact or weaken the automatic stay otherwise. Two years on, that turns out not to be the case.

June 2023 Update: the following list has been updated to include cases citing Fulton and the automatic stay through the midpoint of 2023.

Continue reading “After Chicago v Fulton: Not Only Cars” →