Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
Back on 10/24/2012, I requested that you follow up with me today to see if my issue was resolved. If I give you a positive rating for this follow-up, JustAnswer will pay you since it's included with my membership.
Hi again Fritz.
Have a "general bankruptcy question for you" that came out of a somewhat favorable hearing today.
I filed two motions that were heard today: Motion to for extention of time to Appeal on ALL issues ruled on either by written order or "orally" ruled on in open court without paying fees: Objected by the Trustee; however; overrulled by Judge in my favor;
Then; I had a motion to "Void" the previous compromise to pay the Trustee 10,000 whereas I used the wrong rule of law in error and my motion was denied for that reason.
However; my wife and I have been in contact with the Trustee since hearing today; and they would like to "avoid" dealing with the apeal on ALL the issues. They are willing to "Amend the settlement agreement" and further consider the amounts still owing to the Trustee for the buy-back of personal property to be "satisified" if we do not appeal the multiple "other" issues.
Here is the "general" question:
In the proposed "amended" agreement, the Trustee makes the following conditional statement:
"In the event that the Trustee identifies any property ("other property'), this Settlement shall not be binding on the Trustee as to the estate's rights in and to the other property, and such other property shall be made availabe for, and subject to, administration by the Trustee."
Having said that; what is the actual defination of "estate property" as our case is still open. In otherwords; suppose I was to go out and buy christmas gifts for my kids. Since the bankruptcy is still open; would these gift items become part of the estate because the case is still open and if discovered by the Trustee, as ascribed in the conditional terms quoted above; would be also subject to administration by the Trustee?
As to "estate property," Sec. 541(a)(1) provides that, with a few exceptions, all legal or equitable interests of the debtor in property as of the commencement of a case will flow into the bankruptcy estate created by the debtor's bankruptcy filing, as well as (a)(7) any interest in property that the estate acquires after the commencement of the case.
Estate property will also include (a)(5) any interest in property that could have been property of the debtor's bankruptcy estate as of the date of filing, when the debtor acquires or becomes entitled to acquire such property within 180 days from the date of filing as a result of a bequest, devise, or inheritance; property settlement agreement with the debtor's spouse, or of an interlocutory or final divorce decree; or as a beneficiary of a life insurance policy or of a death benefit plan.
"In otherwords; suppose I was to go out and buy christmas gifts for my kids. Since the bankruptcy is still open; would these gift items become part of the estate because the case is still open and if discovered by the Trustee, as ascribed in the conditional terms quoted above; would be also subject to administration by the Trustee?"
In hypertechnical terms, yes, these funds could be swept up into the bankruptcy estate and potentially be subject to administration if they are not covered under any bankruptcy exemption. However, such gifts would typically derive from exempt funds (such as wages) and thus would not usually be subject to administration. In practice, this sort of thing is only a problem when a "Christmas gift" turns out to be a $700,000 home (true story) or other type of sizable gift that cannot be covered by any of Debtor's available bankruptcy exemptions.
Perfect. Thanks for answering in "hypothetical" terms. I know my case is also (true story) and not supposed to ask for absolute l"legal advice" but did not know how else to explain it.
When we talked to the Trustee after hearing, because the Judge is allowing me to appeal (and waiving all fees associated with my appeal) on all issues raised in a two hour hearing (which I mostly controled); the Trustee off the record told us that "its in his best business judgment) to just let the property issue and money allegedly owed to the trustee including waiving all the Trustee's rights to recover any fees and costs, go as the "cost" and "time" associated with him replying to my appellette brief (that as he stated; is "convinced" I will more likely than not, prevail on "some," but not all the issues);
I will ask him to be more specific in his defination of aquiring personal property while the case is still open; and further advise him that I am "relying on" his inturpertation on the kinds amounts and values of property I can aquire by signing the agreement.
Therefore, the Trustee can not come after us for "petty stuff" later on as I would have "relied on" to my detriment, his inturpertations as so written in the agreement. [Basic principle in Contract Law] --yes, I know you did not need that defination, just showing I know it.
Happy Holidays Fritz...
Have a follow-up question for you.
Pursuant to the terms set forth in the Trustee's amended and now executed "Settlement Agreement;" the Trustee has "
thdrawn" his prior 'Objection' to my eariler filed "Amended Schedule 'C'."
By having the Trustee agree to and more importantly--'Actually filing his "Withdraw to his 'Objection' (Doc 141=withdrawn); does that now result in my previously filed "Amended Schedule 'C'" being automaticaly assumed as "Valid and in force," thus now 'fully exempting' all the property and all the 'exemption statutes' I used being automatialy granted, or if 'you' were in this type of situation, would you file a seperate motion to have the Judge actually 'Rule On" whether or not the previously objected to amended schedule "C," which is no longer "Objected to," is approved and in full force?
Again, Happy Holidays to you and your family,
JT- JD Law Student
Q: "By having the Trustee agree to and more importantly--'Actually filing his "Withdraw to his 'Objection' (Doc 141=withdrawn); does that now result in my previously filed "Amended Schedule 'C'" being automaticaly assumed as "Valid and in force," thus now 'fully exempting' all the property and all the 'exemption statutes' I used being automatialy granted?"
A: Yes, your Amended Schedules would be presumptively valid so long as there's no pending objection. It's probably more accurate to say the Amended Schedule C is being "allowed" or "permitted" rather than granted, as the Court doesn't have to take any affirmative action to grant your Schedules - they're simply allowed unless the Trustee, a creditor, or the Court (sua sponte - this would be very rare) files a timely objection. Schedules claiming overexemptions or containing small errors (i.e. the Debtor claims $7,000 in various exemptions when only $6,000 in exemptions are actually available to the Debtor) will sometimes be permitted at the discretion of the Trustee when there's little equity (more than $0) in non-exempt property, but the Trustee doesn't believe that this small amount of non-exempt property is worth administering. In a very broad sense, this is what it sounds like may be happening here, which would certainly be good news.
Q: "If 'you' were in this type of situation, would you file a seperate motion to have the Judge actually 'Rule On" whether or not the previously objected to amended schedule "C," which is no longer "Objected to," is approved and in full force?"
A: It's not necessary to file a separate Motion, as the Schedules are presumptively allowed unless/until the Court enters a ruling to the contrary upon a timely Objection.
Hope you had a happy holidays, and I wish you the best in 2013!
Thank you again Fritz.
Happy Hollidays...and yes - -I really HOPE for a better year.
Currently looking for Employment at "Law Firms" in my area....Getting fairly 'Strong' in Bankruptcy Law - - and would love to learn more.
JD Law Student
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