For a system that is supposed to rehabilitate personal finances and set debtors back on their feet, Chapter 13 nationwide is schizophrenic about on- going retirement savings. We’re divided about whether post petition contributions to retirement accounts preclude confirmation of a Chapter 13 plan. Are 401(k) Contributions Disposable Income Or Not? Too many courts, in […]
Bankruptcy Law Trumps State Protection For Judgment Lien
State law insulated a recorded judgment lien from future increases in the homestead exemption. However, bankruptcy law trumps that limitation, says the 9th Circuit in Barclay v. Boskoski. [T]he Bankruptcy Code requires courts to determine the amount of the exemption to whichthe debtor would have been entitled in the absence of the lien at issue […]
Finding the Flaws in IRS Tax Liens
Tax liens in bankruptcy sometimes don’t stand up to close scrutiny, to the delight and profit of bankruptcy debtors. I was reminded of two such instances by the excellent presenters at the NACBA 2021 Workshop. Lien perfection follows state law The secret tax lien attaches to all of a taxpayer’s property of any kind, wherever […]
Marital Adjustment: Everything But The Kitchen Sink
Not every expenditure that benefits the debtor’s household or his family is a household expense. And, if it’s not a household expense, it doesn’t get added to CMI in a single spouse bankruptcy filing. That’s how the marital adjustment should work. But it’s not so simple. Household expense is not an expansive definition During a NACBA […]
Brace & Beyond: Joint Tenancy & Transmutation
For Californians, the CA Supreme Court’s decision in Brace upended our understanding of joint tenancy and community property. For decades, we “knew” that a property couldn’t be both joint tenancy and community property . Siberell. And for those of us in the 9th Circuit, we “knew” that when married folks acquired property with title taken […]
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 ยง502. In Siegel, […]
How To Bankruptcy-Proof A Divorce Settlement
Chapter 13 bankruptcy can discharge non support obligations associated with a divorce that are non-dischargeable in Chapter 7. That’s worth repeating: any marital settlement agreement or court judgment that calls for payment or indemnity by one spouse to the other in the future is potentially vulnerable to a subsequent bankruptcy filing by the obligor-spouse. While […]
