On June 7, 2010, the United States Supreme Court released its decision in the case of Hamilton, Chapter 13 Trustee v. Lanning. The Supreme Court rarely hears argument in consumer bankruptcy cases so the Lanning decision is big news to consumer bankruptcy lawyers.
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I get this question at least once a week – "I need to file bankruptcy but I don't want to include my [mortgage] [car loan] [debt to my brother] [credit card co-signed by my company]. Let's leave this debt off my petition.
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At least two of the three Chapter 13 trustees in the Northern District of Georgia require a Chapter 13 plan provision which provides that any tax refund payable to the debtor during the term of the debtor's plan shall be paid to the Chapter 13 trustee. These trustees will object to any plan that does not include a tax refund provision.
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As a bankruptcy lawyer, I have to deal with the consequence of what I call "real world" activities. In the non-bankruptcy world people make decisions that will save money and make life easier. For example, blog reader Lou writes me with a question about car titles:
In Chapter 13 cases filed in the Northern District of Georgia, both the IRS and the Georgia Department of Revenue receive notice of your filing. In my office, I include both the IRS and Georgia as "notice creditors" in every case filed.
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Recently I have had problems with several of my Chapter 13 cases where the Chapter 13 trustee has objected to confirmation on the grounds that the debtor (my client) has one or more years of unfiled tax returns.
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The October, 2005 changes to the Bankruptcy Law have forced many debtors into five year Chapter 13 plans. Chapter 13 trustees are demanding that every penny not specifically accounted for in your budget be paid to the trustee, resulting in "rice and beans" budgets for five years.
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In recent months, I have noticed that the Chapter 13 trustees in the Northern District of Georgia are requiring back-up documentation on many expense items set out in a debtor's budget. I am now telling my clients to save receipts for the following expense categories:
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If I loaned money to a friend who committed bank fraud (I had to wire the money within minutes of having received the call from the friend directly to the Bank's fraud recovery department) and that friend subsequently files Chapter 13, is it safe to assume that I have no recourse but to wait in line with other unsecured creditors?
Of course, I did not want the person to go to jail and did not obtain any promissory note or security agreement at the time the funds were wired to the bank's fraud recovery department.
I have not yet obtained a promissory note and mortgage as I assume it could now be disallowed by the trustee because the money was disbursed in mid-February and I'll bet there's a "consideration" issue now.
What do you recommend? Is it too late to get a note and/or secure the debt. The friend has yet to file Chapter XIII yet.
Would there be any priority in my payment becuase I kept the person out of jail?
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Yesterday, one of my Chapter 13 cases was dismissed at the confirmation hearing for one reason and one reason only. I had cured all of the trustee's objections and the case was viable. My clients had the income to make the case work and there was no reason at all that this case should not have worked.
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