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THE CONSUMER BANKRUPTCY LETTER |
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In This Issue:
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October 4, 2004
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FISHERMANS' WHARF COMING FAST
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BankruptcyBooks.com - FEATURING KINGSPRESS
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PENDING EVENTS, SEMINARS & CLE
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HEADS-UP ON RECENT CASES
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SKYROCKETING MEDICAL COSTS = BANKRUPTCY
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DISCHARGING TAXES - THE POWER SEMINAR!
JOIN MORGAN KING AT FISHERMAN'S WHARF - SAN FRANCISCO -
OCTOBER 27, 28, 29
DISCHARGING TAXES - FUNDAMENTALS & ADVANCED PROBLEMS
The next dates scheduled for the 5th annual 3-day Bankruptcy Academy on discharging taxes in bankruptcy cases have been scheduled for -
FISHERMAN'S WHARF, S. F., on October 27, 28 & 29, 2004,
SAN ANTONIO, Texas, January 27, 28 & 29, 2005.
Additional 2005 dates are pending for Atlanta, Georgia, and Boston, Mass.
Principal presenters will be; Morgan King, attorney and author of Discharging Taxes in Bankruptcy; and other experts including Charles F. Rosen, former chief of the Los Angeles IRS office of Special Procedures (bankruptcy, insolvency); Eric M. Casper, formerly Senior Trial Attorney, Tax Division, U.S. Department of Justice - Washington, D.C.; and Robert N. Kolb, formerly with the IRS and recently the prevailing attorney for the debtor/taxpayer in two important appellate cases. The specific faculty may change depending on speaker availablity.
The 3-day seminar and workshop will be a thorough exploration of bankruptcy remedies for delinquent taxes and tax liens in consumer bankruptcy cases (chapter 7 and chapter 13), emphasizing practical handlng of tax discharge cases from A-to-Z.
CLE ACCREDITATION
Previous programs have qualified for CLE in all states for which CLE accreditation was requested. The Academy is applying for attorneys' CLE accreditation in all states for which CLE is mandatory.
CPE accreditation from the IRS for enrolled agents has been approved.
TUITION
Single attorney for Fisherman's Wharf or San Antonio $695
Single attorney from Northern California $395 until Oct. 12
Double attorney registration any location $995 (saves $400!)
Paralegal or other office staff any location $350
Enrolled agent or CPA any location $495
For more information about the Tax Discharge program, or to enroll, click on red below or call (925) 829-6460 west coast time.
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October 10-13, 2004
NATIONAL CONFERENCE OF BANKRUPTCY JUDGES
Seventy Seventh Annual Meeting
Nashville, TN
ncbj.org
October 27-29, 2004
KING BANKRUPTCY ACADEMY
Discharging Taxes in Bankruptcy From A to Z
Fisherman's Wharf, San Francisco
BankruptyAcademy.com
November 5-8, 2004
13th ANNUAL CONSUMER RIGHTS LITIGATION CONFERENCE
Boston, MA
NCLC.org
December 3, 2004
13tth ANNUAL TIDEWATER BANKRUPTCY CONFERENCE
Norfolk Hilton, 1500 North Military Highway, Norfolk, Virginia.
stevenprichards@cs.com
December 2-4, 2004
AMERICAN BANKRUPTCY INSTITUTE
Winter Leadership Conference
Marriott's Camelback Inn, Scottsdale, AZ
Contact: 1-703-739-0800 or http://www.abiworld.org
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The recently released Senate schedule for the floor lists on October 5, the debate of S. 878 - Bankruptcy Judgeship, a bill to authorize an additional permanent judgeship in the District of Idaho.
David P. Goch
Washington Legislative Counsel
Commercial Law League of America
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MEDICAL COSTS & INSURANCE PREMIUMS CONSUMING DISPOSABLE INCOME
In the past four years, Americans have spent an ever-growing portion of their paychecks on health care and for the most part gotten less for their money, forcing millions into the ranks of the uninsured or personal bankruptcy, according to government figures and several independent assessments.
Nationwide, workers' costs for health insurance have risen by 36 percent since 2000, dwarfing the average 12.4 percent increase in earnings since President Bush took office, the liberal consumer group Families USA reports in an analysis scheduled for release today. The number of Americans spending more than a quarter of their income on medical costs climbed from 11.6 million in 2000 to 14.3 million this year, according to the group.
For four straight years, Americans have paid double-digit increases in health insurance premiums, bringing the price for a typical family of four to nearly $10,000. Premiums paid by workers in 26 states and the District climbed 40 percent, according to Families USA.
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KING'S DISCHARGING TAXES IN BANKRUPTCY
5th ed. • 915 pages • 75 exhibits and checklists • over 1,000 cases cited • indexed
This book has been called "the bible" for discharging taxes in consumer bankruptcy cases. Used by thousands of lawyers, trustees, judges and other tax professionals across the country, it explains in simple yet comprehensive terms what kinds of taxes can be erased, when they can be erased, and how they can be erased in chapter 7, 13, or 11. It covers all the issues and traps for the unwary. This book is even used by revenue officers!
Says Ike Shulman, former President of the National Association of Consumer Bankruptcy Attorneys, "Every serious bankruptcy practitioner should have this book!"
At BankruptcyBooks.com
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TWO CASES ON JUDICIAL ESTOPPEL
1. FAILURE TO LIST DEBTORS' LAWSUIT AS AN ASSET IN BANKRUPTCY SCHEDULE DOES NOT RESULT IN DENIAL OF RIGHT TO PROSECUTE THE SUIT
The doctrine of judicial estoppel bars a party from asserting a position that is contrary to one the party has asserted under oath in a prior proceeding, where the prior court adopted the contrary position “either as a preliminary matter or as part of a final disposition.”
Dismissal of plaintiffs' lender-liability claim, on ground that they were judicially estopped on the claim since they failed to disclose it in a prior bankruptcy proceeding, is reversed where the district court did not consider plaintiffs' reasons of mistake and inadvertence, as well as an absence of bad faith.
Plaintiffs failed to schedule their claim alleging a breach of contract, contractual bad faith, tortious interference with contract, negligent misrepresentation, constructive fraud, negligent supervision, breach of fiduciary duty, and intentional infliction of emotional distress. The district court held Plaintiffs were judicially estopped from pursuing a claim which they failed to disclose in a prior bankruptcy proceeding.
Plaintiffs assert that their bankruptcy counsel inadvertently failed to amend their schedules to include Defendant as a claim of potential assets on their schedule B.
Because this Court has previously held that evidence of an inadvertent omission of a claim in a previous bankruptcy proceeding is a reasonable and appropriate factor to consider when analyzing judicial estoppel’s applicability, the Court REVERSES the district court’s decision barring Plaintiffs’ civil claim as judicially estopped.
EUBANKS v. CBSK FIN. GROUP, INC. (6th Cir. 2004)
2. FAILURE TO LIST DEBTORS' LAWSUIT IN BANKRUPTCY SCHEDULE RESULTS IN DISMISSAL OF LAWSUIT
Stephanie and William Howell have brought this action against the Town of Leyden and its Chief of Police, Daniel Galvis, alleging civil rights violations and various intentional torts. A month before filing this suit, the Howells filed a bankruptcy petition with the United States Bankruptcy Court for the Middle District of Florida. In that petition, the Howells did not list this action among their assets; ultimately, the Howells received their discharge without ever disclosing this claim. Based on this omission, the defendants have moved for summary judgment on the grounds that judicial estoppel precludes the Howells' suit. For the reasons set forth below, the court will allow defendants' motion.
The Howells retained an attorney in order to pursue a bankruptcy petition. The Florida attorney sent the Howells a questionnaire that requested information about their financial situation. The Howells never met with their attorney to review the answers they provided in the questionnaire. Nevertheless, the attorney used the questionnaire answers in preparing the filings for the Howells' bankruptcy petition, including the "Statement of Financial Affairs" and "Schedule B, Personal Property." The Howells received via mail the completed forms, along with a letter from the attorney requesting that the Howells review the paperwork. Again, the Florida attorney never provided the Howells with an explanation of the forms. The bankruptcy petition was filed on July 19, 2002.
The Statement of Financial Affairs asked the petitioner to list any "suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case." The Howells answered "none" to this question. Schedule B asked the petitioner to identify "contingent and unliquidated claims of every nature, including . . . counterclaims of the debtor, and rights to setoff claims." Again, the Howells answered "none" to this question. The Howells have submitted an affidavit to the effect that they did not understand these questions to seek information about their claims against the defendants; they believed the questions referred to tax and other debt matters.
The prerequisites of judicial estoppel are clearly met on these facts: first, the Howells represented to the Florida bankruptcy court that they had no claims among their assets — a position contrary to their assertion before this court that they have multiple claims against the defendants — and second, the bankruptcy court accepted the Howells' representation in resolving their bankruptcy petition and depriving their creditors of access to this substantial potential asset. Were the court to allow the Howells to proceed with this lawsuit, the integrity of the judicial process would be endangered.
HOWELL v. TOWN OF LEYDEN, (Mass. 2004)
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RIGHT TO CONVERT TO CHAPTER 13 NOT ABSOLUTE
The right to convert from Chapter 7 to Chapter 13 is not absolute and in extreme circumstances conversion can be denied. In the debtor's sixth Chapter 7 filing, the bankruptcy court did not err in denying a motion to convert on the grounds that the conversion would be futile since it was clear that the debtor lacked the requisite good faith to confirm a plan.
In re Copper (6th Cir. BAP 2004)
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PUBLISHED BY KING BANKRUPTCY MEDIA FOR BANKRUPTCY PROFESSIONALS 7080 Donlon Way Suite 222 Dublin California 94568 (925) 829-6460
© King Bankruptcy Media 2004 CONTACT US AT editor@bankruptcymedia.com
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