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THE CONSUMER BANKRUPTCY LETTER
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In This Issue:
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September 1, 2003 | 2,226 subscribers
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ANNOUNCEMENTS - EVENTS - NEWS
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PERSONAL & SMALL BUSINESS BANKRUPTCY PRACTICE IN CALIFORNIA
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RESULTS - SURVEY ON EXCELLENCE
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REPORTS POINT TO ECONOMIC REBOUND
Wednesday, August 27, 2003
Two economic indicators pointed to improvement. The Commerce Department reported that new orders for durable goods -- costly manufactured products expected to last at least three years -- went up by 1 percent in July, on top of a 2.6 percent increase in June. Meanwhile, the Conference Board said its consumer confidence index rose to 81.3 in August, up 4.3 points from a revised 77.0 in July. And the Commerce Department reported that sales of new, single-family homes edged down to a seasonally adjusted annual rate of 1.17 million units, a 2.9 percent decline from June's record-high sales pace of 1.2 million, as rising mortgage rates discouraged some house hunters. But even with the decline, the July sales total was the second best on record.
SOURCE: Washington Post & BKInformation.com
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ALMAN & WEIL SURVEY LISTS HIGHEST, LOWEST HOURLY RATES
The annual law firm economic report by Altam & Weil listed, in order, antri-trust, employee benefits, intellectual property, taxation, and bankruptcy as the highest, and insurance defense and workers compensation as lowest.
In non-litigation fields, intellectual property, securities, municipal finance were highest, and collection, family & domestic, and education were lowest.
The information disclosed to the public by Altman & Weil did not rate consumer bankruptcy law.
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CALIFORNIA BANKRUPTCY PRACTICE FROM CEB
1076 pages, 2 looseleaf volumes, 2003
The best practical guide for California attorneys involved in personal and small business bankruptcy cases, this new CEB title has been written by practicing California bankruptcy specialists, all expert in their field, and reviewed by consultants who include bankruptcy judges and bankruptcy law professors, as well as practicing bankruptcy attorneys.
Focuses on bankruptcy practice in California
* Covers small business as well as consumer bankruptcies
* Gives extensive practical advice on counseling clients, filing bankruptcy cases, and handling issues arising after a case is filed
* Covers pre-bankruptcy counseling
* Includes extensive treatment of both debtor and creditor representation in Chapters 7, 11, and 13 cases
* Provides in-depth coverage of key bankruptcy law topics such as property of the estate preferences, fraudulent conveyances, claims, executory contracts, the automatic stay relief from stay, and bankruptcy litigation
* Details the interaction of bankruptcy and California family law
TO ORDER BOOK CLICK ON IMAGE AT RIGHT . . .
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DEBTORS DENIED HOMESTEAD FOR LACK OF SUFFICIENT OCCUPANCY
Where joint debtors moved to Florida from California after the filing of an involuntary petition against them, and purchased a home during the gap period, the court did not err in denying their Florida homestead exemption claim since the Florida residence was not debtors' domicile for the longer portion of the 180 days immediately preceding the petition date.
In re Tanzi __ F.3d __ (9th Cir. 2003)
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DEBTOR DENIED HOMESTEAD FOR ONE NIGHT OCCUPANCY
The debtor appealed from the bankruptcy court’s order sustaining the judgment creditors’ objection to her homestead exemption claimed under Oklahoma law pursuant to Okla. Stat. Ann. tit. 31, § 1(A)(1), and denied the debtor’s motion to avoid the judgment lien against the homestead. The bankruptcy court concluded that the debtor’s purported homestead was not her principal residence as of the commencement of the case. The bankruptcy court found that the debtor’s overnight stay at the property on the eve of filing the petition did not demonstrate sufficient intent to make the property her principal residence.
Robinson v. Sanchez (In re Robinson), 295 B.R. 147 (10th Cir. BAP 2003)
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ONLY TRUSTEE CAN AVOID TAX LIEN UNDER 11 U.S.C. § 724
Although any party in interest generally has standing to pursue a claim objection, the debtors lacked authority to attempt to disallow or subordinate secured penalty-type claims using sections 502(d) and 724(a). The 724(a) tax lien avoidance power can only be exercised by a trustee, per the Supreme Court's decision in Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000). Allowing a debtor to exercise the tax lien avoidance power under the rubric of 502(d) would thwart the Code's exclusive reservation of the power to trustees.
In re Odom Antennas Inc. __ F.3d __ (8th Cir. 2003)
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PROMISSORY NOTE TO WIFE FOUND TO BE NON-EXEMPT PROPERTY DIVISION, NOT EXEMPT SPOUSAL SUPPORT
After Elizabeth Ann Evert filed for Chapter 7, the trustee objected to Evert's attempt to claim as exempt property under 11 U.S.C. § 522(d)(10)(D) a $65,000 promissory note payable to her and executed by her former husband which she had received pursuant to their divorce. The bankruptcy court found that the promissory note constituted "alimony, support, or separate maintenance" and therefore could be shielded from Evert's creditors under section 522(d)(10)(D). The district court affirmed. The Fifth circuit reversed.
Under bankruptcy law, the intent of the parties at the time a separation agreement is executed determines whether a payment pursuant to the agreement is alimony, support or maintenance within the meaning of section 523(a)(5). [cites]. A written agreement between the parties is persuasive evidence of their intent. [cites]. Thus, if the agreement between the parties clearly shows that the parties intended the particular debt in question to reflect either support or a property settlement, then that characterization will normally control.
In re Evert __ F.3d __ (5th Cir. 2003)
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NEW CONSUMER BANKRUPTCY LAWYERS' GROUP - Southern Cal
For consumer bankruptcy attorneys who live or work in the greater Los Angeles area: You are about to receive an announcement for the formation of a new local consumer bankruptcy group.
The innaugural meeting will be held from 2:00 - 4:00 p.m. on Saturday, November 22, 2003 at the Airtel Plaza Hotel, 7277 Valjean Ave., Van Nuys.
There are plenty of organizations which provide continuing legal education. This group will focus instead on: (1) the performance, nomination and re-nomination of judicial officers, chapter 13 trustees, chapter 7 trustes; (2) clerk's office procedures; (3) local rules affecting consumer practice including "no look" fees and compensation procedures; (4) the arrival of electronic filing; (5) California legislation affecting consumer debtors and similar matters.
For info RSVP e-mail to MarleneKole@TilemLaw.com or phone 818-507-6000.
David A. Tilem
Law Offices of David A. Tilem
Glendale, CA
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NATIONAL ASSOCIATION OF ATTORNEYS GENERAL WILL HOLD BANKRUPTCY SYMPOSIUM IN SANTE FE SEPTEMBER 21024
NAAG (National Association of Attorneys General) will hold a 4-day symposium and seminar, "Bankruptcy From a Government Perspective" in Santa Fe, NM September 21-12, 2003. Registration fee is $400 if registered before Sept. 2, 2003, or $450 thereafter.
For info FAX to Valerie Gibson at (202) 408-6998. For more info visit http://naag.org/naag/meetings.php
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