Bankruptcy Mastery

Becoming a better bankruptcy lawyer

When The Chapter 13 Plan Has A Flat

By Filed Under: Bankruptcy Practice

Chapter 13 plans can be modfied

The Chapter 13 completion rate for confirmed plans in San Jose is 65%. Nationally, it's about 35%. So, how do we do it? Lots has to do with the approach of our trustee, Devin Derham Burk and the on-going liaison between the bench and the bar. But at bottom, it's a skillful and cooperative bar of bankruptcy lawyers who recognize that the lawyer's role does not end at … [Continue reading...]

Don’t File Bankruptcy (Now)

By Filed Under: Bankruptcy Practice

Timing for bankruptcy case

Timing is everything. Hitting a round ball with a cylindrical bat is a matter of timing. Bankruptcy practice is no different.  Picking when to file a client's case may be as important as the decision to file or the choice of chapter. As we approach year's end, taxes pop to mind as a reason not to file now, but next year, even January 2nd. Why? Because if your client expects to owe … [Continue reading...]

5 Tricks For Bankruptcy Exemptions

By Filed Under: Exemptions

Bankruptcy exemption tricks

I've spent hunks of the past couple of days working exemption issues in cases we're filing. California has opted out of the federal bankruptcy exemptions but has a bankruptcy-only set of exemptions that largely mirror the federal bankruptcy exemptions. My typical client this year has substantially more income and more assets than the people I was seeing two years ago.  Today's client … [Continue reading...]

How Did The Autopsy Go?

By Filed Under: Bankruptcy Practice

Bankruptcy case post mortem

Bankruptcy cases in our offices have a relatively short life span and our involvement in our client's life ends soon. When the case is over, do you dissect the case and evaluate what went right and not-so-right? Greg Lambert, one of the authors of 3 Geeks and a LawBlog, suggested that firms conduct an After Action Review of a case, as his unit had done in the Army for field … [Continue reading...]

Bankruptcy Attorney As Storyteller

By Filed Under: Bankruptcy Practice

Bankruptcy schedules should show big picture

We get so caught up in putting the right stuff in the right place on the bankruptcy schedules that it's easy to lose sight of the big picture. Having learned that assets subject to a spendthrift trust provision aren't property of the estate,  we omit them from the schedules.  Patterson v. Shumate. Forgetting, of course, that Schedule B asks for interests in retirement plans and pensions, which … [Continue reading...]

Whose Property Is It At Conversion?

By Filed Under: Bankruptcy Practice

Twenty years in, it's still undecided. We have no uniform rule on what happens to equity in an asset, built up during a Chapter 13 plan, when the case converts to Chapter 7. Amazingly, nearly 20 years after subsection (f) was added to 348, courts are split on how it works.  But another court has just weighed in. Given the propensity for Chapter 13 cases to crater, you need to know where … [Continue reading...]

Brokerage Agreement Boilerplate May Cost Client Their IRA

By Filed Under: Bankruptcy Practice

Talk to Chuck and lose your IRA? That's the prospect suggested by a recent bankruptcy case from ED TN  featured in the ABI Journal this month. In a nutshell, the case held that lien granting language in the standard Merrill Lynch brokerage account agreement was a prohibited transaction with respect to an IRA. Daley, 459 B.R. 270 (E.D. Tenn. 2011) The Chapter 7 trustee was successful in … [Continue reading...]

Join Me For A Day Of Online Marketing On December 8, 2012

By Filed Under: Bankruptcy Practice

Once upon a time,  a raft of  consumer bankruptcy lawyers were lost in Googleland. The landscape was littered with pandas and penguins. No one could find the lawyers;  the lawyers  couldn't find clients.... Is that a familiar tale? For some enterprising lawyers, the story will have a happy ending.  They will spend a day with Jay Fleischman and me unpacking the consumer lawyer's … [Continue reading...]

The Mystery Of Adequate Protection

By Filed Under: Bankruptcy Practice

Adequate protection keeps value intact

Adequate protection in operation seems to stump new bankruptcy lawyers. How does the adequate protection payment relate to the claim as a whole? How do you figure it? Who gets adequate protection? The knottiest question I took at Amelia Island (and the least satisfying answer)  came in the Chapter 13 plan class about adequate protection. So, let's take a stab at working through … [Continue reading...]

My Choice of Nuggets From NACBA Workshop

By Filed Under: Bankruptcy Practice

Wrap up from Amelia Island NACBA Workshop Anytime you spend time rubbing shoulders with other committed bankruptcy lawyers, you learn something. Some learning occurs in the presentations.  Some on the other hand is the  product of what my fellow Californian Jay Fleischman calls hallway magic.   Share, trade, question, complain to other bankruptcy attorneys in the conference hallways, and … [Continue reading...]

Bankruptcy Ethics: Candor v. Confidentiality

By Filed Under: Bankruptcy Practice

Bankruptcy ethics

Crack of dawn from Amelia Island:  a  crackerjack program on bankruptcy ethics with Judge Thomas Waldron; soon to be judge Cynthia Grimes; and Jill Michaux, Topeka Kansas bankruptcy practitioner. Premise:  candor to the tribunal trumps the duty of confidentiality to the client. The rules that apply found in Model Rules  Rule 3.3  The lawyer shall not knowingly make a false statement to the … [Continue reading...]

Bankruptcy Case Law Update

By Filed Under: Bankruptcy Practice

New bankruptcy decisons

I can't type fast enough to summarize Henry Sommer's comments on the cases, but I'll list the cases Henry included in the Case Update. Hall v. US, 132 S. Ct. 1882  - do post petition capital gains taxes have priority Johnson v. Zimmer, 686 F.3d 224  household size when debtor has partial custody Flores, 2012 U.S. App. Lexis 18508 (9th Cir)  did Kagenveama holding on applicable commitment … [Continue reading...]