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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
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Experience:  Bankruptcy professor.
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Who has the burden of establishing an exemption applies? Specifically,

Resolved Question:

Who has the burden of establishing an exemption applies? Specifically, is it the trustee or the debtor who must show a plan is ERISA-qualified?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.

cfortunato :

Hi JACustomer,

cfortunato :

When the debtor claims an exemption, that exemption is presumed to be valid.

cfortunato :

If the Bankruptcy trustee has reason to believe the exemption is not valid, the trustee must file a motion to deny the exemption.

cfortunato :

Accordingly, the trustee must prove the claimed exemption is no t valid.

cfortunato :

If this means proving a retirement account is not ERISA-exempt, then the trustee has the burden of proving it is not ERISA-exempt.

cfortunato :

I think this is what you wanted to know. If not, please let me know.
Thank you.

Customer:
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