What New Bankruptcy Lawyers Need To Know: Beyond The Code

Head Start on Bankruptcy Research

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

Have you found Judge Randall Newsome's bankruptcy research binder on the Northern District Bankruptcy Court's website? This is an awesome compilation of leading cases on the total range of bankruptcy topics. While it's focused on the 9th Circuit, I suggest that new bankruptcy lawyers use it as a starting point for their personal bankruptcy law resource and add the cases in their circuits that … [Continue reading...]

Bankruptcy Schedules Look Forward and Backward

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice, Means test, Start Here

New bankruptcy lawyers are often frustrated by the internal inconsistencies required by the "reformed" Bankruptcy Code. Whether it's rational or not, the means test income figure looks backward while the means test expenses set forth are prospective. Some of those prospective expenses are actual (taxes ) while others are contractual (mortgage payments). Social Security income is … [Continue reading...]

Answer to Every Question Starts in the Code

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice, Start Here

If Jews, Muslims, and Christians are People of the Book, we, as bankruptcy lawyers, are, or ought to be, People of the Code, the Bankruptcy Code. Virtually every question that a new bankruptcy lawyer asks ought to send her first to the code for a start. The Bankruptcy Code adopted in 1978, was well thought out in terms of structure, word usage, and organization. The "reforms" of 2005 were … [Continue reading...]

Exemptions & Property of the Estate

By Cathy Moran, Esq. Filed Under: Exemptions, Start Here

Sometimes, as an inexperienced bankruptcy lawyer, it's hard to get your head around the idea that your client can have an asset of substantial value and not need to exempt it when filing bankruptcy. That's because only property of the estate is potentially available to pay the client's creditors in a bankruptcy, and some assets, by definition, are not property of the estate. The most … [Continue reading...]

Track Down All The Client’s Creditors

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice, Start Here

While a new client may seek out a bankruptcy lawyer when they are served with a lawsuit, they may overlook the plaintiff in that very suit when listing their creditors. Pretty amazing, but if you rely on the client to identify their creditors, their list will often omit creditors who didn't send them a bill this month. Or creditors they want to continue paying. Or people they don't want to … [Continue reading...]

Convert, Don’t Dismiss, That Bankruptcy Case

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

Young lawyers just learning bankruptcy practice seem to have missed the portions of the Bankruptcy Code that allow a debtor to convert a case under one chapter of the Code to a case under a different chapter. All too often, when it looks like the client is in the wrong chapter, they propose to dismiss and refile under the new chapter. Not necessary. The Code provides, in sections 706, … [Continue reading...]

Bankruptcy Cases Not Predictably Simple

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice, Start Here

I've been aghast at the willingness of lawyers brand new to bankruptcy practice to take on cases and issues far beyond their current competence. I've tried to gently counsel that both self preservation and the client's best interest require the inexperienced to pass on cases beyond their present skill set. I realized just how glib and unrealistic that advice could be yesterday when a young … [Continue reading...]

Surrendering Property in Bankruptcy

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice, Real property

Apart from Selling your home in a stress-free manner, many things are revolving around properties that you need to know. Your client's statement that he is surrendering property in his bankruptcy case is nothing more than a statement of future intentions. Intentions can be changed, and action is required to actualize that intention. An intention does not serve to transfer the property … [Continue reading...]

New Bankruptcy Lawyers, Google On

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

Lawyers setting up a new bankruptcy practice often want to know which of the legal research giants they should use. Doing my research this morning for a presentation on the means test I'm giving to other lawyers, I needed case authority on whether taxes were a consumer debt for purposes of Section 707(b). My search on Lexis came up empty. Yet I've understood for years that taxes are not … [Continue reading...]

Beyond The Client’s Preconceptions

By Cathy Moran, Esq. Filed Under: Before filing

The clients were in my office considering bankruptcy because of nasty litigation approaching trial. While they would undoubtedly win, the expense was enormous. Even victory in court would ruin them. As we talked about their financial situation and their eligibility for bankruptcy, it came out that there were two liens on their house . On their numbers, perhaps the second lien … [Continue reading...]

Attorney as added-value at 341 meeting

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

The lawyer's presence at the 341 meeting often seems superfluous. A good 341 meeting is when the only words I utter are to enter my appearance for my client. My role is usually to remind the debtor to keep breathing and to tease them about their worries over the meeting afterward. Yet two incidents yesterday reminded me why I'm there. I am not a potted plant: I'm the … [Continue reading...]

Struggling with “adequate protection”

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

The bankruptcy code seems strangely inarticulate about adequate protection: what are we protecting and how do we measure "adequacy"? It's not a term defined in §101. My class of new bankruptcy lawyers kept coming back to questions about adequate protection. The Code offers a roundabout explanation in § 361. We are protecting 1) creditors with an interest in property (a ha, the secureds!) … [Continue reading...]

Notice Key to Bankruptcy Success

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

Who should I give notice to, the young bankruptcy lawyer asked, the creditor who had limited legal capacity or the creditor's conservator? One of the basic themes of bankruptcy is that it works on notice. Those who get notice of the case are bound by its outcome. The bankruptcy forms allow the debtor to characterize a listed creditor has holding a contingent claim, an unliquidated claim, a … [Continue reading...]

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