All posts in Chapter 7

Is Continuance of Hearing on MSJ a Violation of the Automatic Stay?

By | November 4, 2017 | Chapter 11, Chapter 13, Chapter 7 | No comments

From the California Bankruptcy Specialists listserve:

Question:  Is it a violation to continue a hearing on a motion for summary judgment if a notice of stay is given to the Court before the hearing on the motion for summary judgment?

Answer from Wayne Silver, Santa Clara:

Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210 (9th Cir. 2002)
Under § 362(a), the prohibition against continuation of judicial actions requires that the action be automatically dismissed or stayed, and not merely that it not be pursued.

Judge Scott Clarkson Affirmed by 9th Circuit – When is a Home Mortgage not a Consumer debt?

By | October 29, 2017 | Abuse - Sec 707, Chapter 7, Judges Corner | No comments

Aspen Skiing Company v. Cherrett (In re Cherrett), — F.3d —, (9th Cir. Oct, 2017)

Issue:   Is a loan taken out to buy a place to live necessarily a consumer debt for section 707(b) purposes?

Holding:   No.   It depends on the debtor’s intent when the loan is incurred.

Appeal from BAP, Kirscher, Dunn, Taylor

Bap appeal from order of Judge Scott Clarkson

Judge Morgan Christen, dissent Jacqueline H. Nguyen Read more…

Should ‘No Money Down’ Chapter 7s Be Allowed?

By | October 19, 2017 | Chapter 13, Chapter 7 | No comments

I am quoted by Danny Gill in his Bloomberg Bankruptcy Law Reporter article.  He quotes me saying that I agree that there should be some way to permit bankruptcy attorneys to be paid post-petition for filing a chapter 7 petition and representing the debtor throughout.   The article is here.

“I talk to people all the time who don’t have the money to file a Chapter 7,” M. Jonathan Hayes told Bloomberg Law Oct. 16.  Hayes is a member of Simon Resnik & Hayes in Sherman Oaks, Calif., and has practiced consumer bankruptcy law for 37 years in the Central District of California. Read more…

Should Attorneys Fees in Chapter 7 be Non-Dischargeable – Your Chance to Chime in

By | October 13, 2017 | Chapter 7, Community | 2 Comments
This is a post from atty Danny Gill on Facebook.
LOOKING FOR COMMENTS. It has been suggested to the ABI Commission on Consumer Bankruptcy that Congress make attorneys fees for filing a Chapter 7 non-dischargeable, to allow lawyers to be paid over time for filing a 7.  I’m looking for comments on the issue, either for or against that fix or suggesting other ways more very poor people can have access to Chapter 7 with no (or only a little) money down.  If you’re interested write me at dgill@bna.com. Thanks.

Here comes the split re: trustee reach back for 10 years!

By | May 10, 2017 | Chapter 11, Chapter 7 | No comments

The circuit split starts!  Following up on my post below, this 10 year reach-back period for trustees is starting to garner some traction!  Judge Pappas, one of the nicest and astute judges I have met, recently issued an extremely thorough 76-page opinion siding with the Florida bankruptcy judge that allowed the trustee to step in the shoes of the IRS and reach back much farther than the 4-year limitation to avoid a fraudulent transfer.

I love it when courts cite nullum tempus occurrit regi meaning “no time runs against the king” (gives me goosebumps) which implies that the United States (i.e. IRS) is not bound by state statutes of limitation in enforcing its rights.

Read more…

Trustee Allowed to Reach Back 10 Years to Avoid a Fraudulent Transfer

By | May 8, 2017 | Chapter 7 | No comments

Mr. Faucher’s post below re: 10 year clock on IRS debt reminded me of a case wherein a trustee was allowed to reach back 10 years (yes, 10!) to avoid a fraudulent transfer.  How far back is 10 years?  Obama was a junior senator.   A link to my original article published in the Law Journal Newsletter can be found by clicking here. Enjoy!

Nice Tentative from Judge Houle on Converting Case from Chapter 7 to Chapter 13 Postdischarge

By | December 12, 2016 | Chapter 13, Chapter 7 | No comments

BACKGROUND
On February 28, 2013, Michael & Maricar Santos (“Debtors”) filed a Chapter 7 voluntary petition.  On June 17, 2013, Debtors received a standard discharge.  The Chapter 7 case, however, remained open.

On October 4, 2016, Debtors filed a motion to convert case from Chapter 7 to 13.  On October 12, 2016, Trustee filed his opposition.  On November 2, 2016, Debtors filed a reply.  A hearing on the matter was held on November 9, 2016.  The hearing was continued to allow for additional briefing on the issue whether, and in what circumstances, a Chapter 7 case could be converted to a Chapter 13 post-discharge.  Debtor filed their response on November 18, 2016.  Trustee filed their response on November 29, 2016. Read more…

Case Brief – In re Diaz, a different view of the homestead exemption

By | November 30, 2016 | Chapter 7 | No comments

The Diaz case (In re Diaz, 547 B.R. 329, 9th Cir. BAP), has not received enough love but I find it to be too fascinating not to write about because of its potential for so much advantage!

There were essentially two holdings in the case:

  1. The California homestead exemption contains a “residence” requirement which includes an “intent” component; and
  2. The burden is on the Debtor to prove intent.

The intent component of the residence requirement requires that debtors have a bona fide intention to make the premises their home or residence.

Read more…

FBA Program on Unbundling and Limited Scope Representation

By | November 21, 2016 | Chapter 7, Programs | No comments

I had a great time on Friday doing a program for the Federal Bar Assn with Judge Sandra Klein.  We tried to summarize the various code sections and rules that circumscribe unbundling and limited scope representation, at least in the central district.   The point was to show that there are really not very many black-letter rules. The point also is that attys may enter into agreements with persons which limit the efforts the atty will make on behalf of the person – subject to only a few rules.

I will summarize the rules.  It helps me get it clear in my head.

United State Constitution – nothing (tongue firmly in cheek). Read more…

Volunteers Needed for Reaffs Tomorrow in Woodland Hills

By | November 14, 2016 | Chapter 7, Community, Pro Bono | No comments

Email from Maggie Bordeaux:

Hi everyone,

We still need volunteers for the reaffirmation hearings scheduled for tomorrow morning, 11/15 at: Read more…

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