Southern California Bankruptcy Law Blog

Category Archives: Chapter 11

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The Absolute Priority Rule Applies To Individual Chapter 11 Debtors

Posted in Chapter 11, Chapter 11 for Individuals & Married Couples

Some time ago I wrote in great detail about personal Chapter 11 bankruptcy.  In that post I discussed the application of one of the complexities of Chapter 11 bankruptcy to individual (as opposed to business) cases.  That complexity is the absolute priority rule.  At the time of the post, we had a patchwork of inconsistent… Continue Reading

Discharging Income Taxes In Bankruptcy After A Substitute For Return Is Filed: Part II

Posted in Chapter 11 for Individuals & Married Couples, Chapter 13, Chapter 7, Uncategorized

Some time ago I wrote about discharging income taxes in bankruptcy.  I subsequently wrote about discharging income taxes in bankruptcy for a tax year in which the debtor filed a return after the taxing authority ― for simplicity I will generically label the authority as the IRS, though the discussion applies to other taxing authorities… Continue Reading

Prepackaged Chapter 11 Bankruptcy

Posted in Chapter 11, Chapter 11 for Individuals & Married Couples, Small Business Bankruptcy

In this Christmas season children are eagerly awaiting prepackaged presents.  That’s an odd locution, isn’t it?  We usually refer to the gifts as wrapped rather than prepackaged.  I chose the word “prepackaged” because when something is prepackaged it’s all wrapped up.  What does this have to do with Chapter 11 bankruptcy?  A little background will… Continue Reading

Discharging Income Taxes In Bankruptcy After A Substitute For Return Is Filed

Posted in Chapter 11 for Individuals & Married Couples, Chapter 13, Chapter 7

Some time ago I wrote about discharging income taxes in bankruptcy.  I stated that there is a three-part test for determining their dischargeability, and started with the following executive summary: For a tax to be dischargeable in bankruptcy, it must satisfy three requirements: (The three-year rule) The tax return for the tax year in question… Continue Reading

Can The Chapter 7 Bankruptcy Trustee Seize Your Postpetition Commissions?

Posted in Chapter 11, Chapter 7

I recently answered a question posed by a fellow bankruptcy attorney, and thought you might find the discussion interesting. Here’s an edited version of my colleague’s question: A Chapter 7 debtor who is a real estate broker had some listings prepetition.  He opened escrow postpetition, and eventually sold the properties.  He received a $20,000 commission,… Continue Reading

Fair Debt Collection Practices Act And Bankruptcy

Posted in Chapter 11, Chapter 13, Chapter 7

A very recent Eleventh Circuit decision, Crawford v. LVNV Funding, LLC, No. 13-12389 (11th Cir., July 10, 2014), highlights an interesting split among the circuits, which makes things ripe for an appeal to the Supremes. First let’s get a little background. BACKGROUND I.                The Automatic Stay And The Discharge Injunction When a person files for… Continue Reading

Comment On Liz Weston’s Column: Chapter 13 Bankruptcy Is An Option

Posted in Chapter 11, Chapter 11 for Individuals & Married Couples, Chapter 13, Chapter 7

Last Sunday, July 20, 2014, Liz Weston of the L.A. Times gave an interesting answer to a question posed by a reader of the newspaper’s Money Talk feature.  Today’s post adds to Liz’s advice. The reader had accumulated $28,000 in credit card debt over the previous eight years, and had considerable law school debt and… Continue Reading

Tolling A Statute Of Limitations In Bankruptcy

Posted in Chapter 11, Chapter 11 for Individuals & Married Couples, Chapter 7

I recently had an email exchange regarding statute of limitations tolling in bankruptcy, with a friend who is a fellow bankruptcy attorney.  My friend posed a couple of questions based on an interesting fact pattern.  Herewith I offer a slightly edited version of the exchange. First, here is my friend’s email: Salient Facts:   Chapter 7… Continue Reading

Homestead Exemption After Sale Of The Residence

Posted in Chapter 11 for Individuals & Married Couples, Chapter 13, Chapter 7

If you sell your home, can the cash proceeds be exempted using the homeowner’s equity exemption?  That was the subject of two questions that a fellow bankruptcy attorney recently asked me.  I found the exchange interesting, so I am posting it for your edification. Question 1: If the proceeds from the sale of the domicile… Continue Reading

Exempting An Inherited IRA

Posted in Chapter 11, Chapter 13, Chapter 7

Can I exempt the IRA I inherited from my father when he died? This, in essence, is the question the U.S. Supreme Court very recently addressed in Clark v. RAMEKER, No. 13-299 (U.S. June 12, 2014). I.          Exempting Retirement Funds I have discussed exemptions in many previous posts. In one post I covered exempting non-ERISA-qualified… Continue Reading

Preferential Transfers IV: Defenses to Preference Avoidance Actions (Part VIII)

Posted in Chapter 11, Chapter 13, Chapter 7

Here is the eighth defense against preference avoidance actions, the so-called de minimis transfer defense.  This defense has two versions. Defenses To Preference Avoidance Actions, Part VIII: The De Minimis Transfer Defense A.        The De Minimis Transfer Defense, Part I Suppose an individual with primarily consumer debt files a personal bankruptcy.  And suppose that debtor had… Continue Reading

Preferential Transfers IV: Defenses To Preference Avoidance Actions (Part VII)

Posted in Chapter 11, Chapter 13, Chapter 7

Here is the sixth defense against preference avoidance actions, the so-called domestic support defense.  This one is short. Defenses To Preference Avoidance Actions, Part VII: The Domestic Support Defense A comparison of the Bankruptcy Code prior to October 17, 2005 with its current incarnation (the 2005 law that changed the Code is the Bankruptcy Abuse… Continue Reading

Preferential Transfers IV: Defenses To Preference Avoidance Actions (Part VI)

Posted in Chapter 11, Chapter 13, Chapter 7

Here is the sixth defense against preference avoidance actions, the so-called statutory lien defense. Defenses To Preference Avoidance Actions, Part VI: The Statutory Lien Defense Some liens are voluntary, the result of the debtor voluntarily granting a lien to a creditor.  Examples include home mortgages and car loans. Other liens are involuntary and are recorded… Continue Reading

Preferential Transfers IV: Defenses to Preference Avoidance Actions (Part V)

Posted in Chapter 11, Chapter 13, Chapter 7

Here is the fifth defense against preference avoidance actions, the so-called floating lien defense. Defenses To Preference Avoidance Actions, Part V: The Floating Lien Defense In my last post I discussed the security interest defense, and noted that § 547(c)(3) requires that the security agreement must clearly identify the collateral securing the debt.  The example that set… Continue Reading

Nicholas Gebelt is speaking on Preferential Transfers on May 8 in Orange, CA and May 15 in Pasadena, CA

Posted in Chapter 11, Chapter 13, Chapter 7

If you’ve been following my blog posts on preferential transfers and would like more in-depth coverage, I will be speaking on this topic on May 8 in Orange, California and again on May 15 in Pasadena, California.  In addition to the topic of Preferential Transfers: Preference Actions and Substantive Defenses, I will also cover the topics of 1) Fraudulent Transfers: Actual… Continue Reading

Preferential Transfers IV: Defenses to Preference Avoidance Actions (Part IV)

Posted in Chapter 11, Chapter 13, Chapter 7

Here is the fourth defense against preference avoidance actions, the so-called net result defense. Defenses To Preference Avoidance Actions, Part IV: The Net Result Defense Suppose you borrowed $10,000 from ABC Bank.  After paying back ABC Bank the $10,000, you borrowed another $7,000 from ABC Bank.  And suppose you filed for bankruptcy protection less than… Continue Reading

Preferential Transfers IV: Defenses to Preference Avoidance Actions (Part III)

Posted in Chapter 11, Chapter 13, Chapter 7

Here is the third defense against preference avoidance actions, the so-called security interest defense. Defenses To Preference Avoidance Actions, Part III: The Security Interest Defense Suppose you wish to buy a new car that costs $30,000, but you don’t have $30,000.  Your solution is to borrow money for the purchase.  The lender wants some assurance… Continue Reading

Preferential Transfers IV: Defenses to Preference Avoidance Actions (Part II)

Posted in Chapter 11, Chapter 13, Chapter 7

This is the second post devoted to defenses against preference avoidance actions.  It covers the so-called ordinary course of business defense. Defenses To Preference Avoidance Actions, Part II: The Ordinary Course Of Business Defense Suppose a corporate debtor in Chapter 11 has a lease on the building in which it conducts its business.  Suppose the… Continue Reading