How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Fritz Your Own Question

Fritz
Fritz, Attorney
Category: Bankruptcy Law
Satisfied Customers: 302
Experience:  Florida attorney with extensive experience in Chapter 7 and Chapter 13 consumer bankruptcy cases
Type Your Bankruptcy Law Question Here...
Fritz is online now
A new question is answered every 9 seconds

Id like to clarified my question better what I asked you in

Customer Question

I'd like to clarified my question better what I asked you in June 28:
I got divorced and the State Supreme Court of New York ordered distributive award for me to pay but my wife is in the Bankruptcy Court for 4 years and she has a trustee on all her properties what the court ordered. the trustee is controlling all the debtor's properties and belongings. I have to give the distributive award what the State Court ordered not to my wife just to the trustee in the Bankruptcy Court. That's the law. The question is now who has the right to appeal the decision of the Judge in State Court about distributive award. She wants to appeal in State Court. Now my question: The trustee has the right to appeal in State Court or my wife has the right to appeal. As my lawyers advising me that just the trustee has the right to appeal the decision in State Court. Please give me some literature of some law who has the right. I live in New York State. If my wife will appeal in State Court I will answer very simple She is not the person to appeal just the trustee has the right appeal.
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Fran-mod replied 1 year ago.
Hi, I’m a moderator for this topic and I wonder whether you’re still waiting for an answer. If you are, please let me know and I will do my best to find a professional to assist you right away. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 1 year ago.
Im still waiting for the answer!
Expert:  Fran-mod replied 1 year ago.
Sometimes, finding the right Expert can take a little longer than expected and we thank you greatly for your understanding. We’ll be in touch again shortly.
Expert:  Fritz replied 1 year ago.

In many cases, the family court will not hear the appeal until the bankruptcy case is finished. Some judges will issue a ruling lifting the automatic stay sua sponte, allowing the family court to hear the appeal . Other judges will require the moving party to file a Motion for Relief from Stay as to the distributive award to obtain stay relief. In simpler terms, stay relief means that the Bankruptcy Court issues an order that permits the moving spouse to continue her family court appeal requesting (presumably) an increase in support. A Bankruptcy Court will typically grant these types of motions.

I realize this is not a complete or definitive answer, so I will conduct further research to see if I can find relevant New York cases on point and get back to you.

Expert:  Fritz replied 1 year ago.

In re Taub appears to be extremely instructive as to how a New York Bankruptcy Court would likely analyze the issues in your case. Please see the link here:

http://scholar.google.com/scholar_case?case=3848063247475737175&hl=en&as_sdt=2,10

Expert:  Fritz replied 1 year ago.

Please let me know if you have any further questions in light of the above case.

Customer: replied 1 year ago.
You did not understand my question! The state ordered I should give distribution to my wife but she's a bankrupt and she has a trustee. I have to give the money to the trustee. My question is: My wife is not happy with the state ruling how much I should give her! She wants more! Who has the right to appeal the state court decision. My wife has the right to appeal to State Court decision or the trustee? Because my wife is a debtor and the trustee is handeling all of debits. We are not talking about stay! Who has the right? What you linked me is me... I dont need my links!
Expert:  Fritz replied 1 year ago.
It's a difficult question, but let me do my best to help you. Please give me a few minutes...
Expert:  Fritz replied 1 year ago.

"Who has the right to appeal the state court decision. My wife has the right to appeal to State Court decision or the trustee? Because my wife is a debtor and the trustee is handeling all of debits. We are not talking about stay! Who has the right?"

Actually, after doing some further research, I believe YOU might be the only one who could appeal at this point (although you would have to file a Motion to Lift the Automatic Stay first). Theoretically, the Trustee could also appeal, but only "for cause" (i.e. if you weren't making the current payments ordered by the state court to the Trustee). As long as you're making your scheduled payments to the Trustee, I don't think the Trustee has sufficient cause to do anything here. Your wife will likely need to wait until she receives her bankruptcy discharge to go back to state court and try to have the distributive award increased.

Expert:  Fritz replied 1 year ago.
If you are still unsatisfied with my response, please let me know how I can help, and I will conduct more research and provide a very specific answer for you. Thank you.
Expert:  Fritz replied 1 year ago.

Who has the right to appeal the state court decision?

The very narrow answer to your question is that no one has a direct right to appeal the state court decision during the bankruptcy (neither your wife nor the Trustee). New York law clearly states that equitable distribution awards are property of the bankruptcy estate (which is why you've been paying the Trustee during the bankruptcy). Thus, in order to proceed on an appeal of an equitable distribution award, the debtor must 1) receive a discharge, 2) the case must be dismissed, or 3) the bankruptcy court must enter an order explicitly allowing commencement of the state court appeal. Without one of these three things occurring, no one has the right to appeal.

Customer: replied 1 year ago.
The answer looks good but I need some back up! If there is a case like this or a lawbook or something like that
Expert:  Fritz replied 1 year ago.
Let me see if I can find a case... please give me a few minutes.
Expert:  Fritz replied 1 year ago.

In In re Frederes, the Trustee (with the support of the Debtor) filed an adversary proceeding to claim an interest in real property owned solely by the non-Debtor spouse. There, the court held that under New York law, the Debtor had no vested legal or equitable property interest in the real property at the time of the filing of his petition, the property was not property of the estate within the meaning of 11 U.S.C. §541(a)(1), and thus was not subject to turnover pursuant to 11 U.S.C. §542.

http://scholar.google.com/scholar_case?case=10321905553203560586&q=in+re+frederes&hl=en&as_sdt=2,10

Expert:  Fritz replied 1 year ago.

There's also In re Cole, where the bankruptcy court held that the non-Debtor spouse could continue the divorce action and litigate her claim to equitable distribution from the Debtor. Significantly, this Debtor spouse was not paying his current support obligations, yet the court still apparently thought this was a pretty close call as to whether to send the case back to state court. Moreover, the equitable distribution award in that case had not been finalized.

http://scholar.google.com/scholar_case?case=16701201536392699464&hl=en&as_sdt=2,10

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
< Last | Next >
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
< Last | Next >
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
  • http://ww2.justanswer.com/uploads/TL/tleeders/2012-6-13_204815_TSL1.64x64.jpg Terry L.'s Avatar

    Terry L.

    Attorney

    Satisfied Customers:

    2204
    Better Business Bur 15yrs bankruptcy experience. Chicago Bar
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    950
    B.A.; M.B.A.; J.D.
  • http://ww2.justanswer.com/uploads/CO/cortrightlaw/2011-12-5_4117_Kevin.64x64.JPG cortrightlaw's Avatar

    cortrightlaw

    Attorney

    Satisfied Customers:

    490
    Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
  • http://ww2.justanswer.com/uploads/Jay1968/2006-12-03_004423_JoeRossPhoto.jpg JoeLawyer's Avatar

    JoeLawyer

    Attorney

    Satisfied Customers:

    376
    Attorney in the practice of Bankruptcy Law since 1996
  • http://ww2.justanswer.com/uploads/DY/Dylatess/2012-9-11_1968_BHBTemplePhoto.64x64.jpg dylatess's Avatar

    dylatess

    Attorney

    Satisfied Customers:

    370
    35 plus years of experience specializing in bankruptcy law
  • http://ww2.justanswer.com/uploads/US/USLawAnswers/2012-9-20_23143_20090105211638Headshot3b.64x64.jpg Brent Blanchard's Avatar

    Brent Blanchard

    Bankruptcy Attorney

    Satisfied Customers:

    315
    Twelve years experience in all aspects of debtor & creditor BK.