My case was a Chp 13. I paid $5500 to the trustee. I converted to Chp 7. I think my lawyer made many mistakes. Between filing the petition and converting, I received a disability lump sum benefit. She reported this with the conversion. Also, the Chp 7 trustee took possession of the $5500 from the unconfirmed Chp 13 case. He says that the $5500 makes it an asset case. Of course, he'll be paid 25% of that and goodness knows when he'll actually distribute it.I brought 11 USC 348(f)(1)(A) and the case document here: http://wikisend.com/download/195038/Taylor(96-4091).pdfPointing out that A.) the disability money never had to be listed/exempted in the first place, and B.) The $5500 should be/have been returned to me rather than held by the trustee as an asset.The trustee told my attorney to list the disability money and told her that I could not get the $5500 back. As I am on disability, my resources are very limited. If it weren't for the trustee's trap, I would easily be no-asset even with the $5500.I asked my lawyer to file a motion/objection to have the $5500 returned to me and the case reclassified as no-asset, based on 11 USC 348(f)(1)(A). She doesn't want to.Do I have reason to be upset here? It seems like I have multiple reasons.
State/Country relating to question: Pennsylvania
Hi JACustomer,The same exemptions that apply to a Chapter 13 case also apply to a Chapter 7 case. If there was no exemption for your Disability money while your case was a Chapter 13, there will also be no exemption for that money once it is converted.So, first you have to determine if there is an applicable exemption for the $5,500. To help determine this, please answer the following:1) Do you own a home?2) If yes, how much equity does your home have? (Equity = current market value minus the balance on the mortgage.)3) Did your attorney use the state or the federal exemptions?
I am not concerned with the exemptions.11 USC 348(f)(1)(A) clearly states that property in the Chapter 7 estate is any property that existed when the petition was filed and is still in the debtor's Possession/controll.The case opinion I gave you a link to clearly states:"once the Chapter 13 trustee has knowledgeof the conversion of a case where no plan has been confirmed, the trustee is required to turn over any fundsheld by him to the debtors"My disability lump sum was paid in February of this year. My petition was filed in August of last year. My lawyer amended my petition to include the lump sum payment. However, according to 11 USC 348(f)(2), property that the debtor obtains AFTER the petition but before conversion must be added to the case ONLY if it was found that the Chapter 13 was in bad faith, my case was not in bad faith.My issue is that, from what I can see in 11 USC 348, which deals with conversions, I did not HAVE to list any assets I obtained after the petition was original filed. And, from the court opinion that I provided to you (which cites another court opinion in support of that opinion) that the $5500 is not property of the Chapter 7 estate and should have been returned to me.From what I've read, it doesn't look like the $5500 nor the disability payment ever had to be exempted because neither were ever property of the Chapter 7 estate, per 11 USC 348. Only assets from the original petition needed to remain assets (if I still had them).To me, that section reads rather clearly. And the case opnion that I gave you a link to speaks very clearly that non-confirmed Chapter 13 funds need to be refunded to the debtor.Is there any reason why I am mistaken? I understand what the exemptions are and I am not asking about exemptions. Accurding to paragraph one of 11 USC 348, I never had to list the disability in the first place, as I obtained post-petition. And the $5500 should have been returned.After you have reviewed 11 USC 348, and the case opinion I provided, am I being unreasonable?
Thank you for your response.
For what period of time was the lump sum disability payment?
Sorry for the confusion. The disability lump sum was successfully exempted. So I am not actually concerned about that.My concern is with the payments to an uncomfirmed Chapter 13. According to the court opinion I gave you, the judge is very vocal that under 11 USC 348 and other case law, those funds need to be returned to the debtor and are not a part of the Chapter 7 estate.My trustee informed my lawyer that I could not get it back. He took the money directly from the Chapter 13 trustee and set my case as an asset case. But if you look at the opinion of the Bankruptcy Judge in the file I provided, if the case was never confirmed, not only should it be returned directly to the debtor, but it is not part of the Chapte 7 Estate.I would imagine that nay asset that is not an asset of the Chapter 7 Estate would not need to be exempted. If it is not part of the estate, the trustee has no control over it, right?Based on that court opinion, and the case referenced in that opinion, I asked my lawyer to fie a motion/obection to have that money returned. She doesn't want to.Regardless of what the judge decides, is it unreasonable, based on previous court opinion, for me to want the matter looked into? My lawyer would rather I dropped it. But I don't like the idea of paying the trustee $1300 when I don't need to. I have priority debts that could be paid with the money that is now going to go to the trustee.
You are absolutely correct.
You said the money was not originally listed in your Bankrutpcy petition. Has it subsequently been listed on an Amended Schedule B and an Amended Schedule C that have been filed?
That was in regard to the disability money. My attorney did amend the petition to add the lump sum payment to my schedules, even though I received it 6 months after the petition was filed, and I hadn't even filed for disability when the petition was filed.But there was more than enough left over exemption from my federal homestead exemption to cover the lump sum in full.The $5500, of course, accumulated after the original petition (payments to the Chapter 13 trustee). So it wasn't listed on any petition, original or ammended.But if it isn't part of the estate, it wouldn't need to be added anywhere, right?If I am being unreasonable for some reason, let me know. I don't want to ask my lawyer to do something that just makes me a pain in her but. But she seems to lack a lot of knowledge. Like, I asked her if my back-Taxes and property taxes would be paid first and she said "she thinks so." Then I said, well according to 11 USC 507(a)(8) they should be completely paid before any non-priority unsecured debt is paid.Do you think I'm being unreasonable? Should I have to argue with my attorney to get her to file a motion/object? If I am being unreasonable I'll tell her to forget about it.
The disability money would be part of the estate if it was payment for a period of time that was before the Bankruptcy was filed - even though you received the money after the Bankruptcy was filed, and even though you applied for disability after the Bankruptcy was filed. If it was payment for a period of time that was after the Bankrutpcy was filed, then it would not be part of the Bankruptcy estate.
Was the disability money payment for a period of time that was before or after your Bankruptcy was filed?
It was for both. But anyway, my attorney listed the full amount (that I still had) when the case was converted and it was exempted. So it is not an issue. The trustee has already reviewed that. No point in ammending it now.The $5500 Chapter 13 payment (preconfirmation) has nothing to do with the disability lump sum.My question basically is, Am I being unreasonable to expect to get that $5500 back? (based on the case law and code reference I've already made).Feel free to "answer" the question. I'm not going to give you a negative rating under any circumstance.
Yes - the money belongs to you - because although the portion that was for the period of time from before your Bankruptcy was filed became part of the Bankruptcy estate, but was exempt, and the portion that was for the period of time that was after your Bankruptcy was filed was part of your Chapter 13 estate, but not part of your Chapter 7 estate.
The money belongs to you, and the Bankruptcy trustee should not be keeping it.
If your attorney is afraid of the Bankruptcy trustee, you can report the Bankruptcy trustee to the US trustee - who is the Bankruptcy trustee's supervisor. You should be able to find the US Trustee's contact information on your Notice of (Chapter 13 or Chapter 7) Bankruptcy filing. You can also get the contact information from the Bankruptcy court clerk.
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