A law firm had represented a wife in a divorce proceeding. At the conclusion of the divorce case, the divorce court entered an order awarding the ex-wife $85,000 in attorney fees and directed the debtor/husband to pay the attorney fees directly to the ex-wife’s law firm.
Debtor/husband did not pay the attorney fees; instead, he filed a chapter 7 bankruptcy case and received a chapter 7 discharge. In response, the law firm filed an adversary proceeding against debtor/husband and sought an order excepting the $85,000 attorney fee debt from discharge. Clair, Griefer LLP v. Prensky, 416 B.R. 406 (Bankr. D.N.J. 2009).
The issue before the Prensky court was whether attorney fees awarded to debtor’s ex-wife, but payable directly to the ex-wife’s law firm, are dischargeable under §523(a)(15). Debtor/husband asserted that the attorney fee debt was dischargeable because the debt was not a debt owed to a “spouse, former spouse or child” as required for non-dischargeability under §523(a)(15). Debtor/husband urged the court to adopt a “plain language” interpretation of the §523(a)(15) clause “spouse, former spouse, or child” and find the attorney fee debt dischargeable because the debt was payable to the law firm and not to the spouse, former spouse, or child.
The Prensky court rejected debtor’s argument. The court found that the $85,000 attorney fees were divorce-related debt incurred by debtor in the course of the divorce proceedings between the debtor and ex-wife and were thus non-dischargeable pursuant to §523(a)(15). Key to the court’s decision was the fact that the divorce court awarded attorney fees to the ex-wife, not to the law firm. The court noted that, pursuant to the divorce order, the attorney fee debt was owed to the ex-wife but payment was ordered to be made directly to the ex-wife’s law firm. The court further commented that state law gave the ex-wife the legal right to enforce the award of attorney fees in the event the legal fees were n not paid. In short, the court believed that the attorney fee debt was owed to a “spouse, former spouse, or child” as required by §523(a)(15) and that the divorce order directing the payment to be made directly by debtor to the law firm had not changed the fact that the debt was still owed to a “spouse, former spouse, or child.”
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Thursday, December 31, 2009
Monday, December 28, 2009
When is Alimony as Defined by the Divorce Court Not Deemed Alimony by the Bankruptcy Court
Family law attorneys must continuously strive to keep abreast of the most current case law. Similarly, family law attorneys must hone their drafting skills so that divorce pleadings and settlement agreements reflect the ever-changing case law.
The intersection of bankruptcy law and family law is one substantive area that family law attorneys must stay abreast of the recently developments. Below is a bankruptcy case you should read. The family law attorney had drafted a settlement agreement that designated as "indirect alimony" the ex-husband's obligation to pay mortgage and car obligations on behalf of the ex-wife. This settlement agreement was approved by the divorce court prior to the bankruptcy case being filed. Nevertheless, the bankruptcy court later rejected the designation. By rejecting the designation, the bankruptcy court effectively changed a non-dischargeable "alimony" obligation into a dischargeable property division obligation.
In re McCollum, 415 B.R. 625 (Bankr. M.D.Ga 2009). Debtor was a party to a divorce proceeding in state court prior to filing a chapter 13 bankruptcy case. Debtor was not represented by counsel in the divorce case. Ultimately, the divorce court approved a settlement agreement that created various domestic and non-domestic support obligations, including debtor's obligation to pay the mortgage on the home surrendered to the debtor's ex-spouse and pay the car loan on the car surrendered to the debtor's ex-spouse. Importantly, the settlement agreement indicated that the debtor's duty to pay the mortgage and car loan were "indirect alimony" obligations. Nevertheless, debtor's ex-spouse contacted debtor and requested that debtor NOT list the mortgage and car loan payments as "alimony" expenses on debtor's tax return since debtor's ex-spouse did not intend to claim the mortgage and car payments as "alimony" income.
Debtor filed a chapter 13 case after the divorce court entered judgment. Thereafter, debtor filed an adversary complaint seeking a determination regarding the dischargeability of divorce related debt. Debtor-plaintiff conceded that the majority of the ongoing payments under the divorce settlement agreement are excepted from discharge as domestic support obligations pursuant to Section 523(a)(5). Nevertheless, debtor-plaintiff filed the adversary proceeding to determine the dischargeability of debtor's obligation to pay the mortgage debt and the car loan, contending that these obligations are non-domestic support obligations pursuant to Section 523(a)(15).
The McCollum court noted that Section 523(a)(15) applies to debts that do not fall within the definition of a domestic support obligation but were, nevertheless, incurred by the debtor in the course of divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record. For expediency, debts under Section 523(a)(5) are generally referred to as being in the nature of alimony or support, while debts under Section 523(a)(15) are referred to as being in the nature of property division. Therefore, the court determined that the key issue to be determined was whether the mortgage and car payment obligations at issue were nondischargeable domestic support obligations within the scope of Section 523(a)(5) or property division obligations within the scope of Section 523(a)(15).
Whether or not the debts at issue are in the nature of support or property division is a question of federal law that is guided by reference to state law. In making a decision, the court must look beyond any labels used by the parties and instead determine whether at the time of its creation the parties intended the obligation to function as support or alimony. Factors relevant to this inquiry include: the language of the divorce agreement; the relative financial positions of the parties at the time of the agreement; the amount of property division; whether the obligation terminates on the death or remarriage of the beneficiary; the number and frequency of payments; whether the agreement includes a waiver of support rights; the obligation can be modified or enforced in state court; and whether the obligation is treated as support for tax purposes.
The McCollum court determined that the mortgage and car payment obligations were dischargeable in chapter 13 bankruptcy because these obligations were deemed property division obligations and not alimony or support payment obligations. Citing many factors, the court focused mainly on the following: the parties' relative financial positions at the time of the divorce, the fact that debtor was not represented by counsel and the fact that debtor's ex-spouse contacted debtor and requested that the obligation payments not be classified as "alimony" on IRS tax returns.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
The intersection of bankruptcy law and family law is one substantive area that family law attorneys must stay abreast of the recently developments. Below is a bankruptcy case you should read. The family law attorney had drafted a settlement agreement that designated as "indirect alimony" the ex-husband's obligation to pay mortgage and car obligations on behalf of the ex-wife. This settlement agreement was approved by the divorce court prior to the bankruptcy case being filed. Nevertheless, the bankruptcy court later rejected the designation. By rejecting the designation, the bankruptcy court effectively changed a non-dischargeable "alimony" obligation into a dischargeable property division obligation.
In re McCollum, 415 B.R. 625 (Bankr. M.D.Ga 2009). Debtor was a party to a divorce proceeding in state court prior to filing a chapter 13 bankruptcy case. Debtor was not represented by counsel in the divorce case. Ultimately, the divorce court approved a settlement agreement that created various domestic and non-domestic support obligations, including debtor's obligation to pay the mortgage on the home surrendered to the debtor's ex-spouse and pay the car loan on the car surrendered to the debtor's ex-spouse. Importantly, the settlement agreement indicated that the debtor's duty to pay the mortgage and car loan were "indirect alimony" obligations. Nevertheless, debtor's ex-spouse contacted debtor and requested that debtor NOT list the mortgage and car loan payments as "alimony" expenses on debtor's tax return since debtor's ex-spouse did not intend to claim the mortgage and car payments as "alimony" income.
Debtor filed a chapter 13 case after the divorce court entered judgment. Thereafter, debtor filed an adversary complaint seeking a determination regarding the dischargeability of divorce related debt. Debtor-plaintiff conceded that the majority of the ongoing payments under the divorce settlement agreement are excepted from discharge as domestic support obligations pursuant to Section 523(a)(5). Nevertheless, debtor-plaintiff filed the adversary proceeding to determine the dischargeability of debtor's obligation to pay the mortgage debt and the car loan, contending that these obligations are non-domestic support obligations pursuant to Section 523(a)(15).
The McCollum court noted that Section 523(a)(15) applies to debts that do not fall within the definition of a domestic support obligation but were, nevertheless, incurred by the debtor in the course of divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record. For expediency, debts under Section 523(a)(5) are generally referred to as being in the nature of alimony or support, while debts under Section 523(a)(15) are referred to as being in the nature of property division. Therefore, the court determined that the key issue to be determined was whether the mortgage and car payment obligations at issue were nondischargeable domestic support obligations within the scope of Section 523(a)(5) or property division obligations within the scope of Section 523(a)(15).
Whether or not the debts at issue are in the nature of support or property division is a question of federal law that is guided by reference to state law. In making a decision, the court must look beyond any labels used by the parties and instead determine whether at the time of its creation the parties intended the obligation to function as support or alimony. Factors relevant to this inquiry include: the language of the divorce agreement; the relative financial positions of the parties at the time of the agreement; the amount of property division; whether the obligation terminates on the death or remarriage of the beneficiary; the number and frequency of payments; whether the agreement includes a waiver of support rights; the obligation can be modified or enforced in state court; and whether the obligation is treated as support for tax purposes.
The McCollum court determined that the mortgage and car payment obligations were dischargeable in chapter 13 bankruptcy because these obligations were deemed property division obligations and not alimony or support payment obligations. Citing many factors, the court focused mainly on the following: the parties' relative financial positions at the time of the divorce, the fact that debtor was not represented by counsel and the fact that debtor's ex-spouse contacted debtor and requested that the obligation payments not be classified as "alimony" on IRS tax returns.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Automatic Stay Lifted to Allow Parties to Litigate in Divorce Court
Here is an interesting article about the scope of the automatic stay and the criteria for lifting the automatic stay in a pending bankruptcy court case when the debtor is simultaneously a party in a pending divorce action.
In re Taub, 413 B.R. 55 (Bankr. E.D.N.Y. 2009). A debtor/wife filed a chapter 11 bankruptcy while she was a party to a pending divorce case in state court. The debtor's estranged husband filed a bankruptcy motion for relief from the automatic stay pursuant to Section 362(d)(1). The estranged husband sought the bankruptcy court order terminating the automatic stay to allow the husband and debtor/wife to procced to conclusion with the divorce action, including the entry of a judgment by the divorce court, with enforcement thereof in the bankruptcy court.
Not surprisingly, the debtor/wife opposed the motion to lift the automatic stay and argued that the bankruptcy court was the proper forum to resolve the comlex matrimonial issues.
The bankruptcy court noted that the filing of the bankruptcy petition triggered a stay of any action to commence or continue a judicial, administrative, or other court action to recover a prepetition claim against the debtor/wife and stayed any act to exercise control over property of the bankruptcy estate. The Taub court further noted that the automatic stay was effective immediately upon the filing of the bankruptcy petition without any further action.
The bankruptcy court stated that the automatic stay does not prevent a debtor/spouse and estranged husband from seeking a dissolution of their marriage. See Section 362(b)(2)(A)(iv). But, the automatic stay in the Taub case did prohibit the estranged husband from proceeding in the divorce court against property of the debtor/wife's estate without first obtaining a bankruptcy court order lifting the automatic stay.
The bankruptcy court entertained 12 factors prior to ruling that the estranged husband had demonstrated sufficient "cause" supporting the motion to lift the automatic stay. The bankruptcy court granted the motion to lift the automatic stay and held as follows:
*permitting the divorce court to determine issues including rights of parties in separate or marital property would resolve significant open issues and assist in plan confirmation, so that factor favored finding cause for relief from stay;
*state court had significant expertise in domestic relations matters and was well qualified to determine property entitlements and obligations, so that factor weighed in favor of finding cause for relief from stay; and
*creditors' rights could be protected by granting limited relief from stay to permit divorce action to proceed only up to entry of judgment, and so that factor weighted in favor of finding cause for relief from stay.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
In re Taub, 413 B.R. 55 (Bankr. E.D.N.Y. 2009). A debtor/wife filed a chapter 11 bankruptcy while she was a party to a pending divorce case in state court. The debtor's estranged husband filed a bankruptcy motion for relief from the automatic stay pursuant to Section 362(d)(1). The estranged husband sought the bankruptcy court order terminating the automatic stay to allow the husband and debtor/wife to procced to conclusion with the divorce action, including the entry of a judgment by the divorce court, with enforcement thereof in the bankruptcy court.
Not surprisingly, the debtor/wife opposed the motion to lift the automatic stay and argued that the bankruptcy court was the proper forum to resolve the comlex matrimonial issues.
The bankruptcy court noted that the filing of the bankruptcy petition triggered a stay of any action to commence or continue a judicial, administrative, or other court action to recover a prepetition claim against the debtor/wife and stayed any act to exercise control over property of the bankruptcy estate. The Taub court further noted that the automatic stay was effective immediately upon the filing of the bankruptcy petition without any further action.
The bankruptcy court stated that the automatic stay does not prevent a debtor/spouse and estranged husband from seeking a dissolution of their marriage. See Section 362(b)(2)(A)(iv). But, the automatic stay in the Taub case did prohibit the estranged husband from proceeding in the divorce court against property of the debtor/wife's estate without first obtaining a bankruptcy court order lifting the automatic stay.
The bankruptcy court entertained 12 factors prior to ruling that the estranged husband had demonstrated sufficient "cause" supporting the motion to lift the automatic stay. The bankruptcy court granted the motion to lift the automatic stay and held as follows:
*permitting the divorce court to determine issues including rights of parties in separate or marital property would resolve significant open issues and assist in plan confirmation, so that factor favored finding cause for relief from stay;
*state court had significant expertise in domestic relations matters and was well qualified to determine property entitlements and obligations, so that factor weighed in favor of finding cause for relief from stay; and
*creditors' rights could be protected by granting limited relief from stay to permit divorce action to proceed only up to entry of judgment, and so that factor weighted in favor of finding cause for relief from stay.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Court Lacks Discretion to Balance Hardship of Property Division Debt
Here is an interesting case regarding the limit of the court's discretion to reduce the hardship imposed upon the paying spouse and thereby reduce the proceeds received by the receiving spouse.
In re Blackburn, 412 B.R. 710 (Bankr. W.D. Pa 2009). A chapter 7 debtor's ex-wife objected to the discharge of her claim pursuant to Section 523(a)(5) and (a)(15). Because it was clear that the obligation was incurred in connection with a divorce decree, the court ruled that the claim was nondischargeable. The debtor asked the court to reconsider, arguing that the court had discretion to find the debt to be dischargeable. The debtor said he was 50 years old and physically unable to work. He asserted that payment of the debt to his ex-wife would cause him to suffer a substantial hardship. Nevertheless, the court denied the debtor's request for reconsideration, noting that the bankruptcy courts no longer have discretion to allow the discharge of matrimonial obligations in chapter 7 cases.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
In re Blackburn, 412 B.R. 710 (Bankr. W.D. Pa 2009). A chapter 7 debtor's ex-wife objected to the discharge of her claim pursuant to Section 523(a)(5) and (a)(15). Because it was clear that the obligation was incurred in connection with a divorce decree, the court ruled that the claim was nondischargeable. The debtor asked the court to reconsider, arguing that the court had discretion to find the debt to be dischargeable. The debtor said he was 50 years old and physically unable to work. He asserted that payment of the debt to his ex-wife would cause him to suffer a substantial hardship. Nevertheless, the court denied the debtor's request for reconsideration, noting that the bankruptcy courts no longer have discretion to allow the discharge of matrimonial obligations in chapter 7 cases.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities.
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Friday, October 9, 2009
More Bad News for legal Profession
This year has been bad for many law firms. Revenues are down. Profits are down. Layoffs and unemployment are up. Bankruptcy lawyers are a bring spot in the legal profession.
The situation doesn't bode well for 2010. I found an interesting article written by Sherri Qualters who maintains that outside counsel speding is projected to drop again. This drop could result in less work for outside counsel, and therefore reduced revenues, reduced profits, and more layoffs. Below is the article:
Outside Counsel Spending Projected to Drop by 4.3 Percent Next Year
Sheri Qualters
10-09-2009
A new study projects a 4.3 percent slide in corporate spending on outside counsel next year, on top of this year's 10.8 percent drop.
Outside counsel spending dropped from an average of $20.8 million in 2008 to $18.5 million this year and is projected to dip to $17.7 million in 2010, according to the "BTI Premium Practices Forecast 2010: Survey of Corporate Legal Spending" study by Wellesley, Mass.-based legal consulting shop BTI Consulting Group.
According to the study, the corporate counsel strategies likely to drive the legal services market next year include developing cost-effective compliance strategies; resolving litigation; focusing on early case assessment; and crafting new strategies to manage outside counsel.
The projected spending drop continues a focus on cost control that corporations started implementing in 2007, said BTI President Michael Rynowecer.
There's still an imbalance between supply and demand, but a slight boost in a few practice areas such as regulatory work and litigation indicates the imbalance may be leveling off, he said.
"The fact that we're seeing a couple of practices showing a pickup would suggest that we may be nearing equilibrium, at least for the moment," Rynowecer said.
Based on corporate spending plans, the study projects modest growth in several law firm practice areas, including 3.4 percent growth in regulatory work; 2.3 percent in litigation; and 1.4 percent in intellectual property litigation.
Regulatory work, in particular, is a tremendous source of business right now, Rynowecer said.
"Every company is trying to develop industry-specific and company-specific regulatory strategies," Rynowecer said. "They're looking towards their law firms. [It's critical] to get a strong understanding of your clients' companies at an operating level."
Several practice areas are expected to sharply contract, including real estate by 12.4 percent; corporate by 10.2 percent; intellectual property transactional work by 8.6 percent; tax by 7.8 percent; and environmental by 7.4 percent.
The continuing soft economy and corporate spending responses to it will drive declines in those five areas. An increasing percentage of corporate and intellectual property transactional work will be routine, for example. Companies are also striving to keep more legal work in house, including in the tax arena.
BTI's results were based on 200 interviews with corporate counsel between June 13 and Sept. 4 at companies with an average revenue of $21.9 billion and a median revenue of $4.3 billion. The sample includes 20 percent of the companies listed on the Fortune 500.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
The situation doesn't bode well for 2010. I found an interesting article written by Sherri Qualters who maintains that outside counsel speding is projected to drop again. This drop could result in less work for outside counsel, and therefore reduced revenues, reduced profits, and more layoffs. Below is the article:
Outside Counsel Spending Projected to Drop by 4.3 Percent Next Year
Sheri Qualters
10-09-2009
A new study projects a 4.3 percent slide in corporate spending on outside counsel next year, on top of this year's 10.8 percent drop.
Outside counsel spending dropped from an average of $20.8 million in 2008 to $18.5 million this year and is projected to dip to $17.7 million in 2010, according to the "BTI Premium Practices Forecast 2010: Survey of Corporate Legal Spending" study by Wellesley, Mass.-based legal consulting shop BTI Consulting Group.
According to the study, the corporate counsel strategies likely to drive the legal services market next year include developing cost-effective compliance strategies; resolving litigation; focusing on early case assessment; and crafting new strategies to manage outside counsel.
The projected spending drop continues a focus on cost control that corporations started implementing in 2007, said BTI President Michael Rynowecer.
There's still an imbalance between supply and demand, but a slight boost in a few practice areas such as regulatory work and litigation indicates the imbalance may be leveling off, he said.
"The fact that we're seeing a couple of practices showing a pickup would suggest that we may be nearing equilibrium, at least for the moment," Rynowecer said.
Based on corporate spending plans, the study projects modest growth in several law firm practice areas, including 3.4 percent growth in regulatory work; 2.3 percent in litigation; and 1.4 percent in intellectual property litigation.
Regulatory work, in particular, is a tremendous source of business right now, Rynowecer said.
"Every company is trying to develop industry-specific and company-specific regulatory strategies," Rynowecer said. "They're looking towards their law firms. [It's critical] to get a strong understanding of your clients' companies at an operating level."
Several practice areas are expected to sharply contract, including real estate by 12.4 percent; corporate by 10.2 percent; intellectual property transactional work by 8.6 percent; tax by 7.8 percent; and environmental by 7.4 percent.
The continuing soft economy and corporate spending responses to it will drive declines in those five areas. An increasing percentage of corporate and intellectual property transactional work will be routine, for example. Companies are also striving to keep more legal work in house, including in the tax arena.
BTI's results were based on 200 interviews with corporate counsel between June 13 and Sept. 4 at companies with an average revenue of $21.9 billion and a median revenue of $4.3 billion. The sample includes 20 percent of the companies listed on the Fortune 500.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Thursday, October 8, 2009
Attorney Fees in Family Law Cases
Dear bloggers:
I read the following article from Helen Gunnarsson of the Illinois State Bar Association and I thought you might find it as interesting as I did. There also could be some bankruptcy implications as to the dischargeability of attorney fees. Nevertheless, Ms. Gunnarsson reports:
"Woodstock lawyer Paulette Gray has found the provisions of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq) on attorney fees unclear and confusing for the more than dozen years she’s been practicing family law. With the support of ISBA, she and the rest of ISBA’s Family Law Section Council have now done something about it: legislation they drafted to clear up the statute’s inconsistencies has now been signed into law as PA 96-583, which takes effect on January 1, 2010.
Attorney fees in non-divorce cases
A principal problem, Gray explains, is that the IMDMA’s fee provisions were written as if referring only to divorce cases. But some provisions apply not only to attorney fees in dissolution of marriage proceedings but also to cases under the Parentage Act of 1984, see 750 ILCS 45/17, and to post-dissolution proceedings such as enforcement or modification actions respecting child custody, visitation, and support, as well as appeals.
As the statute currently reads, Gray says, it’s unclear whether section 501 (c-1)(1), governing interim attorney fees, can apply to post-decree proceedings, appeals, or parentage cases. Likewise fuzzy are other procedures, she continues, including what parties must present to the court for interim fee petitions and whether counsel may continue to represent their clients on appeals where issues of fee allocation remain outstanding.
The new public act modifies sections 501, 503, and 508 of the IMDMA. Subsection (c-1)(1) of section 501, which governs temporary relief and refers to “the marriage” and “the marital estate,” has been amended to clarify that its provisions apply only to pre-judgment dissolution proceedings. A sentence has also been added to that subsection requiring courts to schedule all hearings for or relating to interim attorney’s fees and costs under that subsection in an expeditious manner.
Subsection (d)(1) of section 503, which governs the disposition of property in a proceeding for dissolution of marriage, has been modified to refer back to section 501(c-1)(2). As amended, the statute will provide that, when dividing the parties’ marital property, courts are to consider any diminution in value of marital or nonmarital property resulting from a payment for interim attorney fees that is deemed to have been an advance from the parties’ marital estate under section 501(c-1)(2).
Section 508, governing attorney’s fees and clients’ rights and responsibilities respecting fees and costs, has been modified to clarify that interim attorney’s fees may be awarded from one party to the other not only in pre-judgment dissolution proceedings, but also “in any other proceeding under this subsection,” meaning, Gray notes, post-judgment proceedings, appeals, and actions under the Parentage Act of 1984.
Affidavits for interim-fee petitions
The new act also amends section 508(a) to conform the letter of the law with the practice in most courts, says Gray, by explicitly requiring petitions relating to interim fees and costs to have attached an affidavit regarding the factual basis for the relief requested. She explains that the general practice for interim fee petitions has long been for courts to hold non-evidentiary hearings and decide the petitions based on the facts contained in attached affidavits. Until now, however, the statute has not required affidavits.
Gray also notes a word substitution in section 508(b). Among other things, this provision currently requires a court to allocate attorney’s fees and costs to a party or counsel found to have acted improperly “if at any time a court finds that a hearing under this Section was precipitated or conducted for any improper purpose.” In substituting the word “Act” for “Section,” the new statute substantially discourages vengeful or petty litigiousness, Gray believes.
The new public act also amends section 508(c)(5) to provide for tolling the deadline for filing a final fee petition or praecipe for a fee hearing if a motion under section 2-1203 of the Code of Civil Procedure or a notice of appeal is filed. Without this change, Gray says, counsel wishing to file a fee petition would have to withdraw because of ethical considerations if the case were appealed. This change, therefore, permits the same counsel to handle their clients’ appeals and provides needed flexibility for filing final fee petitions, she says.
Finally, section 508(d) has been amended to eliminate the requirement of attaching itemized attorney billing statements to petitions for entry of consent judgments in favor of simple representations from counsel and affidavits from clients that they received those statements. Noting that billing statements in family law cases may cover years of litigation and, thus, be extremely bulky, Gray suggests that this amendment makes sense from both cost and environmental perspectives.
Gray acknowledges that the IMDMA remains cumbersome. Absent a comprehensive rewriting of the statute, however, the changes PA 96-583 makes will, she believes, clarify practice regarding awards of attorney’s fees under the statute. "
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
I read the following article from Helen Gunnarsson of the Illinois State Bar Association and I thought you might find it as interesting as I did. There also could be some bankruptcy implications as to the dischargeability of attorney fees. Nevertheless, Ms. Gunnarsson reports:
"Woodstock lawyer Paulette Gray has found the provisions of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq) on attorney fees unclear and confusing for the more than dozen years she’s been practicing family law. With the support of ISBA, she and the rest of ISBA’s Family Law Section Council have now done something about it: legislation they drafted to clear up the statute’s inconsistencies has now been signed into law as PA 96-583, which takes effect on January 1, 2010.
Attorney fees in non-divorce cases
A principal problem, Gray explains, is that the IMDMA’s fee provisions were written as if referring only to divorce cases. But some provisions apply not only to attorney fees in dissolution of marriage proceedings but also to cases under the Parentage Act of 1984, see 750 ILCS 45/17, and to post-dissolution proceedings such as enforcement or modification actions respecting child custody, visitation, and support, as well as appeals.
As the statute currently reads, Gray says, it’s unclear whether section 501 (c-1)(1), governing interim attorney fees, can apply to post-decree proceedings, appeals, or parentage cases. Likewise fuzzy are other procedures, she continues, including what parties must present to the court for interim fee petitions and whether counsel may continue to represent their clients on appeals where issues of fee allocation remain outstanding.
The new public act modifies sections 501, 503, and 508 of the IMDMA. Subsection (c-1)(1) of section 501, which governs temporary relief and refers to “the marriage” and “the marital estate,” has been amended to clarify that its provisions apply only to pre-judgment dissolution proceedings. A sentence has also been added to that subsection requiring courts to schedule all hearings for or relating to interim attorney’s fees and costs under that subsection in an expeditious manner.
Subsection (d)(1) of section 503, which governs the disposition of property in a proceeding for dissolution of marriage, has been modified to refer back to section 501(c-1)(2). As amended, the statute will provide that, when dividing the parties’ marital property, courts are to consider any diminution in value of marital or nonmarital property resulting from a payment for interim attorney fees that is deemed to have been an advance from the parties’ marital estate under section 501(c-1)(2).
Section 508, governing attorney’s fees and clients’ rights and responsibilities respecting fees and costs, has been modified to clarify that interim attorney’s fees may be awarded from one party to the other not only in pre-judgment dissolution proceedings, but also “in any other proceeding under this subsection,” meaning, Gray notes, post-judgment proceedings, appeals, and actions under the Parentage Act of 1984.
Affidavits for interim-fee petitions
The new act also amends section 508(a) to conform the letter of the law with the practice in most courts, says Gray, by explicitly requiring petitions relating to interim fees and costs to have attached an affidavit regarding the factual basis for the relief requested. She explains that the general practice for interim fee petitions has long been for courts to hold non-evidentiary hearings and decide the petitions based on the facts contained in attached affidavits. Until now, however, the statute has not required affidavits.
Gray also notes a word substitution in section 508(b). Among other things, this provision currently requires a court to allocate attorney’s fees and costs to a party or counsel found to have acted improperly “if at any time a court finds that a hearing under this Section was precipitated or conducted for any improper purpose.” In substituting the word “Act” for “Section,” the new statute substantially discourages vengeful or petty litigiousness, Gray believes.
The new public act also amends section 508(c)(5) to provide for tolling the deadline for filing a final fee petition or praecipe for a fee hearing if a motion under section 2-1203 of the Code of Civil Procedure or a notice of appeal is filed. Without this change, Gray says, counsel wishing to file a fee petition would have to withdraw because of ethical considerations if the case were appealed. This change, therefore, permits the same counsel to handle their clients’ appeals and provides needed flexibility for filing final fee petitions, she says.
Finally, section 508(d) has been amended to eliminate the requirement of attaching itemized attorney billing statements to petitions for entry of consent judgments in favor of simple representations from counsel and affidavits from clients that they received those statements. Noting that billing statements in family law cases may cover years of litigation and, thus, be extremely bulky, Gray suggests that this amendment makes sense from both cost and environmental perspectives.
Gray acknowledges that the IMDMA remains cumbersome. Absent a comprehensive rewriting of the statute, however, the changes PA 96-583 makes will, she believes, clarify practice regarding awards of attorney’s fees under the statute. "
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Monday, September 21, 2009
1 Million Bankruptcy Cases filed in 2008
Consumer bankruptcy cases topped 1 million during 2008, totalling 1,074,225 new cases. The Seventh Circuit reported a total of 113,825 new cases. The Northern District of Illinois and the Southern District of Indiana topped the list within the Seventh Circuit.
Just shy of 40,000 new bankruptcy cases were filed in the Northern District of Illinois. Of these, 27,616 cases were chapter 7 cases and 12,324 were chapter 13 cases.
The most bankruptcy cases were filed in the 9th Circuit (AZ, CA, NV, WA) with 206,922 cases. The 6th Circuit (Ky, MI, OH, TN) was next busiest with 178,008 cases. The 11th Circuit (AL, FL, GA) was third with 152,034 cases. Source: Consumer Bankruptcy News 3/26/09
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Just shy of 40,000 new bankruptcy cases were filed in the Northern District of Illinois. Of these, 27,616 cases were chapter 7 cases and 12,324 were chapter 13 cases.
The most bankruptcy cases were filed in the 9th Circuit (AZ, CA, NV, WA) with 206,922 cases. The 6th Circuit (Ky, MI, OH, TN) was next busiest with 178,008 cases. The 11th Circuit (AL, FL, GA) was third with 152,034 cases. Source: Consumer Bankruptcy News 3/26/09
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Divorce & Bankruptcy Worlds Collide
The US is in the midst of a bankruptcy boom. Bankruptcy filings in the US topped more than 1 million in the calendar year 2008--- reaching 1,074,225 cases. An increase in 2009 is projected. The causes of consumer bankruptcies are many, including family breakup/divorce, high debt load, foreclosure, an interruption in income due to job loss, and sustained high medical costs.
The interrelationship between (a) federal bankruptcy laws and (b) state substantive and procedural laws presents issues vital to the state court process, especially in the area of domestic relations. Divorce and bankruptcy are alike in that each attempts to provide a "fresh start." However, the objectives of a divorce case are not necessarily consistent with the goals of a bankruptcy case. The divorce fresh start is from the former spouse. It attempts to divide assets, apportion debt and provide support for the disadvantaged spouse and minor children.
Bankruptcy provides a fresh start for debtors from creditors, and attempts to discharge debts and distribute non-exempt assets among creditors. Recent changes to the US Bankruptcy Code make it harder and more expensive to discharge certain obligations that arise in a divorce, and help illustrate the differences between the objectives of bankruptcy law and family law. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
The interrelationship between (a) federal bankruptcy laws and (b) state substantive and procedural laws presents issues vital to the state court process, especially in the area of domestic relations. Divorce and bankruptcy are alike in that each attempts to provide a "fresh start." However, the objectives of a divorce case are not necessarily consistent with the goals of a bankruptcy case. The divorce fresh start is from the former spouse. It attempts to divide assets, apportion debt and provide support for the disadvantaged spouse and minor children.
Bankruptcy provides a fresh start for debtors from creditors, and attempts to discharge debts and distribute non-exempt assets among creditors. Recent changes to the US Bankruptcy Code make it harder and more expensive to discharge certain obligations that arise in a divorce, and help illustrate the differences between the objectives of bankruptcy law and family law. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Types of Bankruptcy Filings
The current bankruptcy laws, enacted by Congress in 1978, are known as the US Bankruptcy Code. The Code is set forth in Title 11 of the US Code. It consists of nine chapters: 1, 3, 5, 7, 9, 11, 12, 13 and 15. Chapters 1, 3 and 5 are of general applicability. Chapters 7, 9, 11, 12, 13 and 15 each deal with a particular type of bankruptcy proceeding. The Code refers to the financially troubled person or entity in need of bankruptcy assistance as the "debtor."
Debtors file bankruptcy for a variety of reasons, including divorce, job loss and health problems. A debtor need not be insolvent to file for bankruptcy. Debtors are entitled to a respite from most collection activities upon filing bankruptcy, pursuant to various stay provisions called the "Automatic Stay." By filing for bankruptcy, debtors may obtain a discharge of personal liability from many debts and may be able to restructure others.
There are two basic types of bankruptcy proceedings: liquidations and reorganizations. In liquidations, governed by chapter 7, the debtor's nonexempt pre-filing assets are sold for the benefit of creditors. In exchange for surrendering these assets, the debtor generally obtains a discharge of personal liability for prebankruptcy debts and may enjoy assets acquired after the filing.
Chapters 11, 12 and 13 involve various types of reorganization or payment plans. In bankruptcy reorganizations, the debtor's assets are not sold, unless otherwise provided for in the plan. Indeed, many debtors choose reoganizations in order to keep pre-bankruptcy assets. Individual debtors, for instance, often file chapter 13 cases in order to save their homes from foreclosure. Reorganization bankruptcies allow debtors the opportunity to restructure debts and to pay them, possibly in part and not in full, through a plan funded by post-filing income. A debtor in a reorganization bankruptcy may obtain a discharge of most pre-confirmation debts that are provided for, but not paid in full, in the plan. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Debtors file bankruptcy for a variety of reasons, including divorce, job loss and health problems. A debtor need not be insolvent to file for bankruptcy. Debtors are entitled to a respite from most collection activities upon filing bankruptcy, pursuant to various stay provisions called the "Automatic Stay." By filing for bankruptcy, debtors may obtain a discharge of personal liability from many debts and may be able to restructure others.
There are two basic types of bankruptcy proceedings: liquidations and reorganizations. In liquidations, governed by chapter 7, the debtor's nonexempt pre-filing assets are sold for the benefit of creditors. In exchange for surrendering these assets, the debtor generally obtains a discharge of personal liability for prebankruptcy debts and may enjoy assets acquired after the filing.
Chapters 11, 12 and 13 involve various types of reorganization or payment plans. In bankruptcy reorganizations, the debtor's assets are not sold, unless otherwise provided for in the plan. Indeed, many debtors choose reoganizations in order to keep pre-bankruptcy assets. Individual debtors, for instance, often file chapter 13 cases in order to save their homes from foreclosure. Reorganization bankruptcies allow debtors the opportunity to restructure debts and to pay them, possibly in part and not in full, through a plan funded by post-filing income. A debtor in a reorganization bankruptcy may obtain a discharge of most pre-confirmation debts that are provided for, but not paid in full, in the plan. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Chapter 7 Liquidation
A voluntary chapter 7 bankruptcy proceeding is typically initiated by the debtor. An involuntary chapter 7 bankruptcy may be filed by the debtor's creditors under certain circumstances.
In a typical chapter 7 case, a bankruptcy trustee is appointed. One of the chief duties of the trustee is to liquidate a debtor's nonexempt assets and distribute the proceeds to creditors. In exchange for surrendering these assets, an individual debtor ordinarily receives a discharge from personal liability for most pre-bankruptcy debt. Plus an individual debtor typically keeps assets acquired after the filing for use in his or her "fresh start." Thus, an individual debtor's prior economic life essentially ends with the filing of the chapter 7 bankruptcy. A second financial life begins. Obtaining a bankruptcy discharge is usually an individual's primary incentive for filing a voluntary chapter 7 case. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
In a typical chapter 7 case, a bankruptcy trustee is appointed. One of the chief duties of the trustee is to liquidate a debtor's nonexempt assets and distribute the proceeds to creditors. In exchange for surrendering these assets, an individual debtor ordinarily receives a discharge from personal liability for most pre-bankruptcy debt. Plus an individual debtor typically keeps assets acquired after the filing for use in his or her "fresh start." Thus, an individual debtor's prior economic life essentially ends with the filing of the chapter 7 bankruptcy. A second financial life begins. Obtaining a bankruptcy discharge is usually an individual's primary incentive for filing a voluntary chapter 7 case. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Chapter 13 Reorganization
Chapter 13 bankruptcy case is a reorganization proceeding available to individuals with regular income whose debtors are less than proscribed debt limits (secured and unsecured). In chapter 13 cases, the debtor's assets are not liquidated. Instead, the debtor pays his debts, in whole or in part, through a plan that must be confirmed by the court in accordance with specific statutory criteria.
A debtor is chapter 13 remains in control of his or her assets. A trustee, however, is appointed. The debtor pays the trustee, who makes payments to creditors pursuant to the repayment plan confirmed by the bankruptcy judge. Debtors would obtain a discharge of personal liability from most debts. The chapter 13 discharge is typically available only after the debtor has made all of the payments specified in the plan. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
A debtor is chapter 13 remains in control of his or her assets. A trustee, however, is appointed. The debtor pays the trustee, who makes payments to creditors pursuant to the repayment plan confirmed by the bankruptcy judge. Debtors would obtain a discharge of personal liability from most debts. The chapter 13 discharge is typically available only after the debtor has made all of the payments specified in the plan. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Bankruptcy Basics
The bankruptcy provisions that state courts most often confront involve automatic and non-automatic stays and dischargeability of debts. To understand these provisions, one must first learn three bankruptcy concepts: (a) property of the estate; (b) property of the debtor; and (c) claims.
"Property of the estate" describes the assets in a bankruptcy proceeding that are to be used to satisfy pre-filing or pre-confirmation debts and the costs of the bankruptcy proceeding. But for the bankruptcy filing, these assets would have belonged to the debtor.
In a chapter 7 case, property of the estate is defined by US Bankruptcy Code Section 541 as "all legal and equitable interests of the debtor in property as of the commencement of the case." Some assets, although initially characterized as property of the estate, later exit this category when they are exempted by the debtor, abandoned by the trustee as burdensome or inconvenient, redeemed by the debtor, or sold by the trustee. In chapter 7, Section 541 excludes from property of the estate all of an individual debtor's earnings from post-petition services.
The Section 541 definition of property of the estate applies to chapter 13 cases too. However, individual debtors are expected to fund their repayment plans with post-petition income. Consequently, chapter 13 expands the definition of property of the estate.
The next concept is "property of the debtor." Property of the debtor includes all of the property owned by the debtor before the bankruptcy filing or acquired by the debtor after the filing that is statutorily excluded from property of the estate. In addition, property of the debtor includes all property exempted or redeemed by the debtor as well as property abandoned by the trustee to the debtor.
The final concept is a bankruptcy "claim." A claim is a creditor's right to payment, whether or not the right is reduced to judgment, unsecured, unliquidated, unmatured, contingent or disputed. Even a right to equitable relief for breach of a "performance" may be a claim, if a right to payment is an alternative remedy for the breach of performance giving rise to the right to equitable relief. This very broad definition of "claim" allows a debtor to discharge debts that many people would not even consider debts yet. Thus, this broad definition of a "claim" benefits the debtor. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
"Property of the estate" describes the assets in a bankruptcy proceeding that are to be used to satisfy pre-filing or pre-confirmation debts and the costs of the bankruptcy proceeding. But for the bankruptcy filing, these assets would have belonged to the debtor.
In a chapter 7 case, property of the estate is defined by US Bankruptcy Code Section 541 as "all legal and equitable interests of the debtor in property as of the commencement of the case." Some assets, although initially characterized as property of the estate, later exit this category when they are exempted by the debtor, abandoned by the trustee as burdensome or inconvenient, redeemed by the debtor, or sold by the trustee. In chapter 7, Section 541 excludes from property of the estate all of an individual debtor's earnings from post-petition services.
The Section 541 definition of property of the estate applies to chapter 13 cases too. However, individual debtors are expected to fund their repayment plans with post-petition income. Consequently, chapter 13 expands the definition of property of the estate.
The next concept is "property of the debtor." Property of the debtor includes all of the property owned by the debtor before the bankruptcy filing or acquired by the debtor after the filing that is statutorily excluded from property of the estate. In addition, property of the debtor includes all property exempted or redeemed by the debtor as well as property abandoned by the trustee to the debtor.
The final concept is a bankruptcy "claim." A claim is a creditor's right to payment, whether or not the right is reduced to judgment, unsecured, unliquidated, unmatured, contingent or disputed. Even a right to equitable relief for breach of a "performance" may be a claim, if a right to payment is an alternative remedy for the breach of performance giving rise to the right to equitable relief. This very broad definition of "claim" allows a debtor to discharge debts that many people would not even consider debts yet. Thus, this broad definition of a "claim" benefits the debtor. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Bankruptcy Court System Structure
The US Constitution grants Congress the exclusive power to create laws regulating bankruptcy. See Article I, Section 8 of the US Constitution. Major bankruptcy statutes were enacted in 1800, 1841, 1867, 1898 and 1978. The statute passed in 1978 was a major revision and has been further amended from time to time, most recently in 2005. The bankruptcy laws are codified at 11 USC Section 101 et seq., and are commonly referred to as the “Code”.
Congress vested all jurisdiction over bankruptcy matters in the US district courts. The district courts have exclusive original jurisdiction over a bankruptcy case itself and original, but nonexclusive, jurisdiction over civil proceedings arising in, arising under or relating to a bankruptcy case.
Federal district courts could abstain and allow state courts to proceed in civil matters where comity or the interest of justice indicates that a state court should hear the matter. Section 1334 of Title 28, US Code, also mandates abstention upon timely motion by a part (a) where the federal courts, absent bankruptcy, would lack jurisdiction over the proceeding, and (b) the proceeding is either (i) pending in a state court at the time the motion is filed, or (ii) the proceedings arises under state law and can be timely adjudicated in state court.
Federal district courts are authorized to refer bankruptcy matters, with limited exceptions, to bankruptcy courts, which operate as a unit of the district court. Bankruptcy judges are appointed for 14-year terms by the US Court of Appeal for the circuit in which they are located. Thus, there are some limits as to the proceedings that may be held before bankruptcy courts, the matters on which bankruptcy courts may issue final or appealable orders, and which bankruptcy courts must make recommendations to district courts subject to de novo review. Bankruptcy courts may enter final, binding orders as to “core proceedings” and must prepare findings of fact and conclusions of law for de novo review by district courts in “related proceedings.”
All district courts have standing orders of reference under which all bankruptcy cases are initially referred to the bankruptcy courts. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Congress vested all jurisdiction over bankruptcy matters in the US district courts. The district courts have exclusive original jurisdiction over a bankruptcy case itself and original, but nonexclusive, jurisdiction over civil proceedings arising in, arising under or relating to a bankruptcy case.
Federal district courts could abstain and allow state courts to proceed in civil matters where comity or the interest of justice indicates that a state court should hear the matter. Section 1334 of Title 28, US Code, also mandates abstention upon timely motion by a part (a) where the federal courts, absent bankruptcy, would lack jurisdiction over the proceeding, and (b) the proceeding is either (i) pending in a state court at the time the motion is filed, or (ii) the proceedings arises under state law and can be timely adjudicated in state court.
Federal district courts are authorized to refer bankruptcy matters, with limited exceptions, to bankruptcy courts, which operate as a unit of the district court. Bankruptcy judges are appointed for 14-year terms by the US Court of Appeal for the circuit in which they are located. Thus, there are some limits as to the proceedings that may be held before bankruptcy courts, the matters on which bankruptcy courts may issue final or appealable orders, and which bankruptcy courts must make recommendations to district courts subject to de novo review. Bankruptcy courts may enter final, binding orders as to “core proceedings” and must prepare findings of fact and conclusions of law for de novo review by district courts in “related proceedings.”
All district courts have standing orders of reference under which all bankruptcy cases are initially referred to the bankruptcy courts. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Concurrent Jurisdiction with Family Law Court
Bankruptcy court authority in the domestic relations area is limited. Bankruptcy courts lack authority to grant divorces, decide custody or award support. However, bankruptcy courts have statutory authority to decide certain other issues relating to bankruptcy discharge determinations and exceptions to discharge for support and property settlement obligations. More specifically, bankruptcy courts must determine: (1) whether an obligation is in the nature of alimony, support or maintenance as a matter of federal bankruptcy law, and (2) whether certain property settlement obligations are dischargeable in bankruptcy. These statutory directives put bankruptcy courts into a role that appears to contradict traditional federal noninvolvement in domestic issues. But, it is a role that should be limited in scope.
Some courts have taken the position that state courts and bankruptcy courts have concurrent jurisdiction when “dischargeability” issue arises under Section 523(a) and 523(a)(15) of US Bankruptcy Code. A state court may be allowed to make its own determination as to dischargeability if the divorce case is filed after the bankruptcy case has been closed. However, if the divorce case is filed before the bankruptcy case is filed then the state court would seldom have an opportunity to determine dischargeability. However, a state court’s holding on certain issues may have a substantial impact on a dischargeability issues rising in a bankruptcy case filed after the divorce decree has been entered. More specifically, a state court’s factual finding in a divorce decree as to alimony, maintenance, support, and property settlement may have strong, if not preclusive, effect in a later dischargeability determination in the bankruptcy proceeding. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Some courts have taken the position that state courts and bankruptcy courts have concurrent jurisdiction when “dischargeability” issue arises under Section 523(a) and 523(a)(15) of US Bankruptcy Code. A state court may be allowed to make its own determination as to dischargeability if the divorce case is filed after the bankruptcy case has been closed. However, if the divorce case is filed before the bankruptcy case is filed then the state court would seldom have an opportunity to determine dischargeability. However, a state court’s holding on certain issues may have a substantial impact on a dischargeability issues rising in a bankruptcy case filed after the divorce decree has been entered. More specifically, a state court’s factual finding in a divorce decree as to alimony, maintenance, support, and property settlement may have strong, if not preclusive, effect in a later dischargeability determination in the bankruptcy proceeding. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Domestic Support Obligations
Under prior bankruptcy law, a key concept was “alimony, maintenance and support” owed to a “spouse, former spouse or child of the debtor” and “not assigned to another entity, whether voluntarily, involuntarily or by operation of law.” To constitute “alimony, maintenance or support,” the obligation had to be in the nature of support as opposed to a property settlement debt.
The 2005 amendments to the US Bankruptcy Code continue to distinguish between support debts on one hand, and property settlement debts on the other. However, the amendments clarify and broaden the concept of “alimony, maintenance and support” by introducing a new bankruptcy term, “domestic support obligation” (hereinafter, “DSO”) and referring to it consistently throughout the amended Code. An obligation must be in the nature of support to constitute a DSO. See 11 U.S.C. Section 523. That term includes both pre-petition and post-petition alimony and support as well as interest under applicable nonbankruptcy law. A DSO includes support obligations established before, on or after the bankruptcy case is commenced. In addition to obligations owed to the debtor’s spouse, former spouse or child, or assigned to governmental units as described above, a DSO includes debts owed to the child’s parent, legal guardian or responsible relative, as well as governmental and nongovernmental units if voluntarily assigned for purpose of collection. Section 101(14A) of the US Bankruptcy Code.
The 2005 amendments make many important changes to enhance enforcement of domestic relations rights and responsibilities. Domestic relations creditors get broad immunities from the automatic stay. In addition, the amendments establish a comprehensive set of provisions to enhance the enforcement and collection of DSOs even while the bankruptcy case is pending. First, all DSOs will have first-priority status. However, within that first-priority category, highest priority goes to a trustee’s administrative expenses in finding and liquidating assets to pay DSOs. Second, failure to make ongoing DSO payments is a ground for conversion or dismissal in chapter 13. Third, plans under chapter 13 can be confirmed only if they propose full payments of pre-petition DSO claims entitled to first priority. Fourth, such plans can be confirmed only if the debtor is current on post-petition DSO payments. Fifth, the court may not grant a discharge in chapter 13 unless the debtor certifies that the debtor is current in all post-petition DSO payments and has made all DSO payments called for under the plan. Sixth, trustees under all chapters must inform DSO claimants about the resources available to them to collect their claims and of their rights under the Code. Consequently, the bankruptcy court has become an important conduit in the enforcement and collection of support obligations. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
The 2005 amendments to the US Bankruptcy Code continue to distinguish between support debts on one hand, and property settlement debts on the other. However, the amendments clarify and broaden the concept of “alimony, maintenance and support” by introducing a new bankruptcy term, “domestic support obligation” (hereinafter, “DSO”) and referring to it consistently throughout the amended Code. An obligation must be in the nature of support to constitute a DSO. See 11 U.S.C. Section 523. That term includes both pre-petition and post-petition alimony and support as well as interest under applicable nonbankruptcy law. A DSO includes support obligations established before, on or after the bankruptcy case is commenced. In addition to obligations owed to the debtor’s spouse, former spouse or child, or assigned to governmental units as described above, a DSO includes debts owed to the child’s parent, legal guardian or responsible relative, as well as governmental and nongovernmental units if voluntarily assigned for purpose of collection. Section 101(14A) of the US Bankruptcy Code.
The 2005 amendments make many important changes to enhance enforcement of domestic relations rights and responsibilities. Domestic relations creditors get broad immunities from the automatic stay. In addition, the amendments establish a comprehensive set of provisions to enhance the enforcement and collection of DSOs even while the bankruptcy case is pending. First, all DSOs will have first-priority status. However, within that first-priority category, highest priority goes to a trustee’s administrative expenses in finding and liquidating assets to pay DSOs. Second, failure to make ongoing DSO payments is a ground for conversion or dismissal in chapter 13. Third, plans under chapter 13 can be confirmed only if they propose full payments of pre-petition DSO claims entitled to first priority. Fourth, such plans can be confirmed only if the debtor is current on post-petition DSO payments. Fifth, the court may not grant a discharge in chapter 13 unless the debtor certifies that the debtor is current in all post-petition DSO payments and has made all DSO payments called for under the plan. Sixth, trustees under all chapters must inform DSO claimants about the resources available to them to collect their claims and of their rights under the Code. Consequently, the bankruptcy court has become an important conduit in the enforcement and collection of support obligations. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Discharge Enjoins Creditors from Collection Efforts
A bankruptcy discharge permanently enjoins creditors from all attempts to collect discharged prepetition debt after the discharge is entered. A bankruptcy discharge will be granted or denied pursuant to Section 727 or 1328 of the US Bankruptcy Code, depending on the chapter in which the case is filed.
Even if the debtor receives a general discharge, certain debts may be excluded from that discharge. Section 523 of the Code lists the types of debts that may be excepted from discharge. A distinguish must be made between "domestic support obligations" on one hand and "property settlement obligations" on the other hand. First, debts for "domestic support obligations" (fka alimony, maintenance and support) are nondischargeable in every kind of bankruptcy case.
Second, under the 2005 bankruptcy amendments, property settlement obligations may be dischargeable in chapter 13 cases, but not in chapter 7 cases. Under prior law, property settlement debts could sometimes be discharged in chapter 7 if the debtor was unable to pay or if the benefit to the debtor of discharging the debt outweighted the harm discharge would impose on the former spouse. Thus, this balancing test has now been legislated out of the bankruptcy Code. Source: American Bankruptcy Institute
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Even if the debtor receives a general discharge, certain debts may be excluded from that discharge. Section 523 of the Code lists the types of debts that may be excepted from discharge. A distinguish must be made between "domestic support obligations" on one hand and "property settlement obligations" on the other hand. First, debts for "domestic support obligations" (fka alimony, maintenance and support) are nondischargeable in every kind of bankruptcy case.
Second, under the 2005 bankruptcy amendments, property settlement obligations may be dischargeable in chapter 13 cases, but not in chapter 7 cases. Under prior law, property settlement debts could sometimes be discharged in chapter 7 if the debtor was unable to pay or if the benefit to the debtor of discharging the debt outweighted the harm discharge would impose on the former spouse. Thus, this balancing test has now been legislated out of the bankruptcy Code. Source: American Bankruptcy Institute
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Bankruptcy Stays and Injunctions
The Bankruptcy Code provides certain limitations on creditors attempting to collect prepetition debts after a bankruptcy case is filed. The two most significant limitations relate to the “automatic stay” and the “discharge injunction.” Bankruptcy’s stay and injunction provisions affect state proceedings far more often than most any other sections of the Code. Extensive changes were made to the bankruptcy stays by the 2005 amendments.
In a nutshell, bankruptcy stays generally prohibit creditors from attempting to collect prepetition debts while the bankruptcy case is pending. On the other hand, a bankruptcy discharge injunction generally prohibits creditors from attempting to collect prepetition debts after the bankruptcy case is closed. Sanctions and fees are statutorily provided for and could be awarded against the intentional or unintentional creditor who violates the Code provisions.
Bankruptcy stays principally arise out of Section 362, 1301, and 524. Section 362 applies to all bankruptcy cases and provides for a comprehensive stay to arise immediately and automatically upon the filing of any bankruptcy petition. Unlike a state court TRO or injunction motion, the Bankruptcy Code does not require either a motion or hearing; the injunction is automatic and immediate.
The 2005 amendments carve out a narrow exception to the general rule that an automatic stay arises upon the filing of a bankruptcy petition. This exception applies to debtors who have had two or more cases dismissed within the year before the petition is filed. In such cases, no stay arises automatically when yet another petition is filed.
Section 1301 also involves an automatic stay, but only applies to chapter 13 cases. Such a stay would only protect individuals who, although not co-debtors, are co-obligors with the debtor with respect to consumer debt.
Section 524 provides that the grant of a bankruptcy discharge operates as an injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover or offset any discharged debt as a personal liability of a debtor. Although the Section 524 injunctions arise automatically, they do not arise on the filing date of the petition, but only if and when the court grants the debtor a discharge. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
In a nutshell, bankruptcy stays generally prohibit creditors from attempting to collect prepetition debts while the bankruptcy case is pending. On the other hand, a bankruptcy discharge injunction generally prohibits creditors from attempting to collect prepetition debts after the bankruptcy case is closed. Sanctions and fees are statutorily provided for and could be awarded against the intentional or unintentional creditor who violates the Code provisions.
Bankruptcy stays principally arise out of Section 362, 1301, and 524. Section 362 applies to all bankruptcy cases and provides for a comprehensive stay to arise immediately and automatically upon the filing of any bankruptcy petition. Unlike a state court TRO or injunction motion, the Bankruptcy Code does not require either a motion or hearing; the injunction is automatic and immediate.
The 2005 amendments carve out a narrow exception to the general rule that an automatic stay arises upon the filing of a bankruptcy petition. This exception applies to debtors who have had two or more cases dismissed within the year before the petition is filed. In such cases, no stay arises automatically when yet another petition is filed.
Section 1301 also involves an automatic stay, but only applies to chapter 13 cases. Such a stay would only protect individuals who, although not co-debtors, are co-obligors with the debtor with respect to consumer debt.
Section 524 provides that the grant of a bankruptcy discharge operates as an injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover or offset any discharged debt as a personal liability of a debtor. Although the Section 524 injunctions arise automatically, they do not arise on the filing date of the petition, but only if and when the court grants the debtor a discharge. Source: American Bankruptcy Institute.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Bankruptcy Discharge
The bankruptcy discharge is a court order granting a debtor a discharge from prepetition debts owed to most creditors. The discharge prohibits any attempt to collect from the debtor a debt that has been discharged. For example, a creditor is not permitted generally to contact a debtor by mail, phone or otherwise, to file or continue a lawsuit, to attach wages or other property, or to take any other action to collect a discharged debt from the debtor. A creditor who violates this order can be required to pay damages and attorney’s fees to debtor.
However, a creditor may have the right to enforce a valid lien, such as a mortgage or security interest, against the debtor’s property after the bankruptcy, if that lien was not avoided or eliminated in the bankruptcy case. Also, a debtor may voluntarily pay any debt that has been discharged.
The chapter 7 discharge order eliminates a debtor’s legal obligation to pay a debt that is discharged. Most, but not all, types of debts are discharged if the debt existed on the date the bankruptcy case was filed. If a case was begun under a different chapter of the Bankruptcy Code and converted to chapter 7, then the discharge applies to debts owed when the bankruptcy case was converted.
Some of the common types of debts which are NOT discharged in a chapter 7 bankruptcy case are: debts for most taxes; debts incurred to pay nondischargeable taxes; debts that are domestic support obligations; debts for most student loans; debts for most fines, penalties, forfeitures, or criminal restitution obligations; debtors for personal injuries or death caused by a debtor’s operation of a motor vehicle while intoxicated; some debts not properly listed by a debtor; debts that a bankruptcy court specifically has decided are not discharged; debts for which debtor has given up the discharge protections by signing a reaffirmation agreement; and debts owed to certain pension, profit sharing, stock bonus, and other retirement plans. Source: Official Form 18J.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
However, a creditor may have the right to enforce a valid lien, such as a mortgage or security interest, against the debtor’s property after the bankruptcy, if that lien was not avoided or eliminated in the bankruptcy case. Also, a debtor may voluntarily pay any debt that has been discharged.
The chapter 7 discharge order eliminates a debtor’s legal obligation to pay a debt that is discharged. Most, but not all, types of debts are discharged if the debt existed on the date the bankruptcy case was filed. If a case was begun under a different chapter of the Bankruptcy Code and converted to chapter 7, then the discharge applies to debts owed when the bankruptcy case was converted.
Some of the common types of debts which are NOT discharged in a chapter 7 bankruptcy case are: debts for most taxes; debts incurred to pay nondischargeable taxes; debts that are domestic support obligations; debts for most student loans; debts for most fines, penalties, forfeitures, or criminal restitution obligations; debtors for personal injuries or death caused by a debtor’s operation of a motor vehicle while intoxicated; some debts not properly listed by a debtor; debts that a bankruptcy court specifically has decided are not discharged; debts for which debtor has given up the discharge protections by signing a reaffirmation agreement; and debts owed to certain pension, profit sharing, stock bonus, and other retirement plans. Source: Official Form 18J.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Automatic Stay
An understanding of the US Bankruptcy Code’s “automatic stay” provisions is essential to family law practitioner, including when it applies and when it does not. Bankruptcy stays principally arise out of Sections 362, 1301, and 105. The mere filing of a chapter 7 case automatically triggers the Section 362 stay; whereas the filing of a chapter 13 case automatically triggers both the Sections 362 and 1301 stays. The Section 105 stay is imposed only after a motion and hearing---similarly to an injunction motion.
The automatic stay prohibits the commencement or continuation of judicial proceedings that were or could have been commenced prior to the bankruptcy case filing, with some exceptions. These exceptions should be discussed in future writings. The stay also prohibits creditors from non-judicial attempts to collect non-exempt debts owed prepetition, including attempts via phone, fax, email, letter, etc.
Attorneys need to proceed with great caution, as if treading carefully on a mine field. On one hand, unintentional violation of the stay may needlessly wastes the court’s and litigants’ time and treasury. An action that violates Section 362 is either void or voidable; consequently, the results of a protracted proceeding may be a nullity or may be nullified. On the other hand, an intentional violation of the automatic stay may result in the above plus sanctions, including damages, costs, attorney fees, and even punitive damages for egregious conduct. The sanction could even be assessed against the attorney!
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
The automatic stay prohibits the commencement or continuation of judicial proceedings that were or could have been commenced prior to the bankruptcy case filing, with some exceptions. These exceptions should be discussed in future writings. The stay also prohibits creditors from non-judicial attempts to collect non-exempt debts owed prepetition, including attempts via phone, fax, email, letter, etc.
Attorneys need to proceed with great caution, as if treading carefully on a mine field. On one hand, unintentional violation of the stay may needlessly wastes the court’s and litigants’ time and treasury. An action that violates Section 362 is either void or voidable; consequently, the results of a protracted proceeding may be a nullity or may be nullified. On the other hand, an intentional violation of the automatic stay may result in the above plus sanctions, including damages, costs, attorney fees, and even punitive damages for egregious conduct. The sanction could even be assessed against the attorney!
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
I encourage you to SUBSCRIBE to this blog by completing the box to the right of this post so you will automatically receive future blog postings. Next, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Plus, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
Invitation to Family Law Attorneys
Welcome to my blog! I am attorney Robert Schaller and I have designed this blog to communicate general bankruptcy information to family law attorneys who have bankruptcy related questions that need to be answered.
It is my experience that family law issues and bankruptcy law issues intertwine. Most family law attorneys are not bankruptcy experts. So, family law attorneys who encounter bankruptcy issues in their family law practice need a place to turn for some guidance. This blog should be of help.
You can find three types of assistance with this blog. First, you can SUBSCRIBE to this blog by completing the box to the right of this post. By doing so, you will be receiving automatically interesting and timely bankruptcy information in each of my future blog postings. Second, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Third, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
I look forward to a mutually beneficial relationship with you.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
It is my experience that family law issues and bankruptcy law issues intertwine. Most family law attorneys are not bankruptcy experts. So, family law attorneys who encounter bankruptcy issues in their family law practice need a place to turn for some guidance. This blog should be of help.
You can find three types of assistance with this blog. First, you can SUBSCRIBE to this blog by completing the box to the right of this post. By doing so, you will be receiving automatically interesting and timely bankruptcy information in each of my future blog postings. Second, you can review past and future blogs at any time by clicking the "archive" link in the column to the right of this posting. Third, you are invited to submit a question by utilizing the "question" box in the column to the right of this posting.
I look forward to a mutually beneficial relationship with you.
Warmest Regards,
Bob Schaller
Your Bankruptcy Advisor Blog
By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys.
For information about Chapter 7 bankruptcy Click Here
For information about Chapter 13 bankruptcy Click Here
You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at http://www.schallerlawfirm.com/to learn about how the bankruptcy laws can help you.
NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.
I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; and bankruptcy and student loan issues blog.
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