Include Me Not

exclude includeProposed: the word “included” shall be stricken from the vocabulary of any bankruptcy lawyer.

A relatively innocent question from a young lawyer set me off (again).  The car, driven and paid for by an offspring, was titled to the prospective debtor who was the only borrower on the loan.  The lawyer asked how to avoid “including” the car in the bankruptcy.  The client didn’t want to entangle the car in the case as the remaining term of the loan was shorter than the prospective Chapter 13 plan.

Soooo? I wanted to shout.  First of all, when does what we “want” to do having any bearing on the law?  But, more profoundly, what was the lawyer asking?

“Include” , in this context, is at best ambiguous, and at worst meaningless.  I concede that our clients don’t know any better.  But as bankruptcy lawyers, we should.

By not “including” the car, was it proposed to omit the asset?  To exclude the debt from the schedules?  To provide for the debt via direct payments?

“Include” is capable of any one of these interpretations, and so, is useless at describing the situation.

I know this young lawyer well enough to know he wasn’t proposing to have the client lie.  He wanted to know how to properly make this client happy.

So, I propose that we strike this word “include” from our working, professional vocabulary in favor of words that actually convey information.

The rules (of bankruptcy) are these:

  • All debts must be scheduled
  • All recent transfers, of money or title to assets, must be disclosed
  • All debts secured by the debtor’s property must be provided for in the plan

The debtor’s choices include

  • Contending that she held bare legal title, and disclosing the loan standing in her name in the schedules
  • Paying off the loan before filing, after an analysis of any preference claims raised, and listing the payment in the SOFA
  • Providing that the loan would continue to be paid by the child directly
  • Transferring title to the child, with appropriate disclosure, and scheduling the unpaid loan

None of these choices is neat or without wrinkles.  Which works best is probably a matter of local Chapter 13 culture.

But regardless of how you address the issue, don’t talk to me about “including” a debt in bankruptcy, as though it was a matter of choice.  Express yourself more precisely so we can work the problem without muddy thinking or speaking.

All in favor?

 

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  • Mitch

    Aye. I hate hearing how clients do not want something included in their plans OR that another lawyer did not include such and such in the bankruptcy. It is all included and all provided for. How it is provided for is the only issue.

  • Ray Schimmel

    My favorite variation on the client who asks, “I didn’t know we were including my car loan in the bankruptcy”  is the client who declares, “I didn’t want to file bankruptcy on my American Express card.”