Community property works differently in bankruptcy. I probably don’t have to tell you that. On the issue of assets and debts, community property is pretty straightforward. All of the community property comes into the estate upon the commencement of a bankruptcy case, even when only one spouse files. §541(a)(2). Every creditor with a right to […]
Siegel, Claim Preclusion & Me
I’ve been having nightmares about the 9th’s Circuit’s decision in Siegel for 20 years. Broad strokes, Siegel (143 F.3d 525 (9th Cir. 1998) holds that a filed claim in a no asset bankruptcy case to which no one objects is entitled to preclusive effect in subsequent litigation by reason of Bankruptcy Code §502. In Siegel, […]
Lien Avoidance In Bankruptcy: The Questions You Need To Answer
Black letter law says liens pass through bankruptcy unchanged. But the better statement adds a single word: unless. Liens survive bankruptcy intact unless….unless you take some action to void them. One tool to void liens lives in §522(f). Its location in Chapter 5 tells you that it’s available to any individual debtor who is entitled […]
All Bankruptcy Roads Pass Through Chapter 5
Regardless of the ultimate destination, all bankruptcy roads lead through Chapter 5. A few bankruptcy cases are derailed there. Because Chapter 5 provisions tell you what comes into the bankruptcy estate, what can be exempted, and what can be changed using Chapter 5. Sometimes the results tell you that bankruptcy is not the right choice […]
Do You Know These Exceptions To Discharge Not In The Bankruptcy Code?
Not all exceptions to discharge in bankruptcy are found in the Bankruptcy Code. Inconvenient, but true. The first two non-Code exceptions to discharge that I encountered in practice were HEAL loans, dischargeable only if denying the discharge would be “unconscionable.” (42 U.S.C. sec. 292f(g)); and a scholarship to attend a U.S. Military Academy. Turns out […]
What Goes Into The Liquidation Analysis
The liquidation analysis is central to every form of consumer bankruptcy. Yet too many attorneys think the formula is Assets minus Secured Debts minus Exemptions = Distributable estate Not by a long shot. So let’s walk through the elements of a comprehensive liquidation analysis. You need it if you’re assessing the vulnerability of assets to […]
Rescuing A Troubled Chapter 13: The Unseen Threat
We all get sucked in, at some time, to trying to rescue a Chapter 13 bankruptcy case gone bad. Dismiss and refile is often an appealing strategy. But, make sure that you don’t let a bad situation get worse. Get your arms around Bankruptcy Code §109(g). When only a do-over will do, don’t wait around. […]
