On its face, Diaz (Diaz v. Viegelahn , No. 19-50982 (5th Cir. Aug. 26, 2020)) is a pretty straightforward decision that struck down a local form plan as violating a below-median income debtor’s right to use her tax refund to finance necessary expenses for maintenance and support. On a deeper level, it appears to highlight […]
Ensure You Understand Insurance In Bankruptcy
Sometimes, issues that you’ve just skimmed over burst forth in bunches, demanding attention. Lately, that issue in my bankruptcy cases has been insurance. Because its treatment varies so, we need to be asking more pointed questions of clients about insurance policies and the debtor as beneficiary. Unmatured life insurance Starting with exemptions, ยง522(d)(7) makes an […]
6 Steps to Ethical Unbundling of Bankruptcy Representation
No matter how many hoops the client dutifully jumped through, without adequate inquiry and communication, the bankruptcy attorney was slammed for unbundling his services. The representation agreement at issue excluded representation in any adversary proceeding filed, as do most such agreements, I imagine. The client initialed every paragraph of the 19 page representation agreement, and […]
Reaffirmations Impose Impossible Demands On Bankruptcy Counsel
When BAPCA gutted the ipso facto clause, reaffirmation was left as the only way a debtor could be assured of retaining his wheels. Car lenders took sides back then, then changed sides, on whether they would automatically repossess a vehicle when the debt was not reaffirmed. Some wanted the in terrorem effect of losing the […]
Hearsay Exception: How Do I Get This Into Evidence?
Quick: tell me everything you know about Federal Rule of Evidence 803(17)! If you’re like me, there’s deafening silence. I’ve apparently skated through forty years of bankruptcy practice without really considering how Kelly Blue Book figures get into evidence. If it worked, I just went on. (Hint: it’s FRE 803(17). But a change in California […]
Wrestling With The Means Test
The timeless questions asked by mankind include “why are we here“, “which came first…” and “coffee or tea“. Bankruptcy lawyers wrestle with “which controls, b-22 or Schedules I and J“. My argument is: if Congress wanted a means test, then the means test controls, unless you show special circumstances. But if I minus J controls, […]
Unpacking The Enhanced California Homestead
On January 1, 2021, California’s homestead exemption grew from a prior low of $75,000 to a minimum of $300,000, to as much as $600,000, depending on county wide home prices. And the homestead floor and ceiling adjust annually for inflation. A big part of the change is that the increased homestead is available to homeowners […]
