What New Bankruptcy Lawyers Need To Know: Beyond The Code

The Means Test Allows Health Care Before Creditors

By Cathy Moran, Esq. Filed Under: Means test

Health insurance is an allowable means test deduction, even if the debtor doesn't currently have health insurance. In my view, the sweetest words in an otherwise miserable bankruptcy means test are found buried in a long paragraph of §707(b)(2)(A)(ii)(1): The debtor's monthly expenses "shall include reasonably necessary health insurance, disability insurance and health savings … [Continue reading...]

Projecting Means Test Tax Expense When Things Change

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

Bankruptcy means test tax projections get more complicated when the year of filing situation looks much different than the last year. If the financial situation is essentially unchanged and all you have to do is adjust for a tax refund or a tax liability, it's little more than dividing the refund or tax due by 12 and making that adjustment to the current withholding. But what if things … [Continue reading...]

Juggling in Defense of the Tax Refund

By Cathy Moran, Esq. Filed Under: Before filing, Tax

As long as clients use tax withholding as a form of savings account, bankruptcy lawyers will have to juggle to protect that refund when bankruptcy looms. Limber up, and let's look at a fact pattern I faced with a December client who needed to file, but faced no immediate crisis. The point for analysis was protecting the tax refund for the year of filing from competing claimants. Tax … [Continue reading...]

Tax Traps 1095 Days Out

By Cathy Moran, Esq. Filed Under: Tax

When it comes time to discharge 2019 taxes in bankruptcy, the IRS has laid a trap. The trap snaps shut three years (or 1095 days) from now. At that point, the familiar three year rule for tax dischargeability won't be so simple. Between Covid, wildfires, and hurricanes, the IRS has unilaterally extended tax filing deadlines. Instead of tax returns becoming due in April, the deadline for … [Continue reading...]

New California Homestead in Action

By Cathy Moran, Esq. Filed Under: Exemptions, Strictly California

The California homestead just changed, for the better, but it raised questions about how the single change affected the rest of the law. The newly enacted version of California Code of Civil Procedure 704.730 replaces the previous homestead system that pegged the amount of the available homestead to family relationships, including marriage, to age, or to health. All of that was eliminated in … [Continue reading...]

Reasons Not To Choose Business Bankruptcy

By Cathy Moran, Esq. Filed Under: Business bankruptcy

Bankruptcy preference avoiding powers constitute a serious reason not to choose a corporate bankruptcy to close a failing business. Yet, preferences and the trustee's ability to recover them have to be one of the hardest concepts to convey to business clients. Clients gag at the thought that paying a genuine debt before a bankruptcy filing can expose the innocent recipient to suit. I … [Continue reading...]

Tax Audit Aftermath-Did You Tell The State?

By Cathy Moran, Esq. Filed Under: Tax

One of the bedrock requirements of the discharge of taxes in in bankruptcy is the requirement to have filed a return. No return, no discharge of that year's taxes. But it gets more nuanced: in California, when the feds audit the debtor and change any of the elemental figures in a filed return return, the taxpayer has an obligation to report the change to the Franchise Tax Board. … [Continue reading...]

Assessing the Ailing Business Post Pandemic

By Cathy Moran, Esq. Filed Under: Business bankruptcy

Long after the human patients recover from the coronavirus, small businesses will still be ailing. And long nights will be spent deciding whether to try to stay in business. As bankruptcy lawyers, we're going to see people in pain trying to assess what to do next. Business owners may see the exit heading through the bankruptcy courts, but that may be neither necessary nor wise. Here's … [Continue reading...]

Objection: Hearsay

By Wayne Silver Filed Under: lawyer skills

There you are, client on the witness stand, jury in the box, story being told on direct exactly the way you prepared her, things going just swimmingly. And then opposing counsel stands and utters those two lovely words…”Objection, hearsay.” Huh? That’s ridiculous, you confidently think to yourself, just as you hear the trial judge say, sustained!. Diving into Evidence Code … [Continue reading...]

Taxing Questions in Bankruptcy’s New Subchapter V

By Steven Walker Filed Under: Bankruptcy Practice, Tax

With the enactment of the Small Business Reorganization Act, Chapter 11 is expected to become more accessible and economic for business debtors with debts below the limits. For bankruptcy lawyers taking their first venture into Chapter 11, knowledge of the tax issues in reorganizations becomes critical. So, I'm happy to have attorney Steven Walker of San Jose, California, guide us through the … [Continue reading...]

Analyzing The Troubled Chapter 13: 20,000 Questions Under The Surface Of The Case

By Cathy Moran, Esq. Filed Under: Chapter 13

After the pandemic, when the economy lurches back into motion, bankruptcy lawyers will confront a clutch of troubled Chapter 13 cases. In the face of disruption, distress, and the unknown, we'll be called on to guide clients forward, in one direction or another. Let's review the questions we'll need to answer in order to provide the sharpest analysis for clients. We'll need our arms … [Continue reading...]

Coronavirus & The Law

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

In the face of pandemic and economic stasis, information is both vital and fleeting. I'm going to collect here links to sources of information useful to consumer lawyers as I find them. As always, check the dates on the linked resources, as I fully expect change, and more change as we work our way through this crisis. General legal resources ABA Covid-19 articles and … [Continue reading...]

Mortgage Matters In Times Of COVID-19

By Bob Schuman Filed Under: Bankruptcy Practice

Is it 2008 again? For us in the mortgage industry, we woke up this week feeling as if during the night, we were transported back to 2008 when the mortgage industry basically collapsed. Then, Fannie Mae, Freddie Mac, and the FHA were the exceptions. As of March 25, 2020, like everything else, the world of mortgage lending has been once again been turned on its head. Here we are again, … [Continue reading...]

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