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Non-consumer debt case
101(8) defines consumer debt as "debt incurred by an individual for a
personal, family, or household purpose." In the land of plain meaning, I
think a divorce attorney is hired for a personal purpose, not a business
purpose.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
I would take the position that it is not incurred primarily for a personal, family, or household purpose.
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California 91364-2203
Telephone: (818) 226-1205
Facsimile: (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Fri, May 7, 2010 3:43:31 PM
Subject: Re: [cdcbaa] Re: non-consumer debt case
How is this debt non- consumer?
Sent from my iPhone
On May 7, 2010, at 3:37 PM, "David A. Tilem" wrote:
>
>
>
> >
>
>
>>
>
>>
>
>Yeah, glad I'm not the
>divorce attorney.
>
>
>David A.
>Tilem
>Certified Bankruptcy
>Specialist*
>Law Offices
>of David A. Tilem (a debt relief agency)
>206 N.
>Jackson Street, #201, Glendale , CA 91206
>Tel: 818-507-6000 Fax:
>818-507-6800
>
>*
>Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.>
>Business bankruptcy specialist cert. by Amer. Bd. of
>Certification
>
>
>-----Original Message-----
>[mailto:cdcbaa@ yahoogroups. com] On Behalf Of Larry Simons
>Sent: >Friday, May 07, 2010 2:34 PM
>To: >cdcbaa@yahoogroups. com
>Subject: RE: [cdcbaa] Re: non-consumer debt
>case
>
>
>I have a client that
>owes $100K to her divorce attorney. Just wondering if that debt has to be>classified as consumer debt. Any thoughts?
>
________________________________
>From:> cdcbaa@yahoogroups. com
>[mailto: cdcbaa@yahoogroups. com ] On Behalf Of jonhayes6666
>Sent: Friday, May 07, 2010 11:26
>AM
>To: > cdcbaa@yahoogroups. com
>Subject: [cdcbaa] Re: non-consumer debt
>case
>
>I'll help
>with the appeal.
>
>--- In cdcbaa@yahoogroups. com,
>mitnicklaw@. .. wrote:
>>
>> PC chapter 7 client has cc debt that
>mostly arises from gambling that
>> comprises more than 50% of the total
>debt. Leaving aside the host of other
>> issues, would it be wrong to file
>this case as a non-consumer debt case ?
>>
I would take the position that it is not incurred primarily for a personal, family, or household purpose. Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818) 226-1205Facsimile: (818) 226-1213THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN
ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.From: Vicki Temkin <Vtemkin@yahoo.com>To: "cdcbaa@yahoogroups.com" <cdcbaa@yahoogroups.com>Sent: Fri, May 7, 2010 3:43:31 PMSubject: Re: [cdcbaa] Re: non-consumer debt case
How is this debt non- consumer?Sent from my iPhoneOn May 7, 2010, at 3:37 PM, "David A. Tilem" <DavidTilem@TilemLaw .com> wrote:
Yeah, glad I'm not the
divorce attorney.
David A.Tilem
The post was migrated from Yahoo.
How is this debt non- consumer?
Sent from my iPhone
On May 7, 2010, at 3:37 PM, "David A. Tilem" wrote:
Yeah, glad I'm not the divorce attorney.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
on
arry Simons
Sent: Friday, May 07, 2010 2:34 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Re: non-consumer debt case
I have a client that owes $100K to her divorce attorney. Just wondering if that debt has to be classified as consumer debt. Any thoughts?
The post was migrated from Yahoo.
From In re Kelly, 841 F.2d 908 (9th Cir. 1988)(Bro. Kozinski)
A. Primarily Consumer Debts
1. The first question we must address is whether some or all of the Kellys' debts constitute "consumer debts" within the meaning of the Code. As an initial matter, the Kellys argue that debts secured by real property are never consumer debts, relying on floor statements made in the House and Senate prior to the enactment of the 1978 Act. See 124 Cong.Rec. S17,406 (daily ed. Oct. 6, 1978) (statement of Sen. DeConcini) ("[a] consumer debt does not include a debt to any extent the debt is secured by real property"); 124 Cong.Rec. 32,393 (1978) (statement of Rep. Edwards) (same). Since approximately 85 percent of the Kellys' debt is secured by real property (their home), they contend that they cannot have "primarily consumer debts" and thus are exempt from dismissal under section 707(b).
This argument stands the process of statutory interpretation on its head, resorting to legislative history without first considering the language of the statute. As the Supreme Court has noted, "legislative history, ... by traditional canons of interpretation[,] is irrelevant to an unambiguous statute." . . . Here, resort to legislative history is not appropriate because the statutory language is clear and precisely addresses this situation.
The Code defines "consumer debt" as "debt incurred by an individual primarily for a personal, family, or household purpose." 11 U.S.C. Sec. 101(7) (1982). "Debt" means "liability on a claim," 11 U.S.C. Sec. 101(11) (1982), and "claim," in turn, is broadly defined as any "right to payment, whether or not such right is ... secured, or unsecured." 11 U.S.C. Sec. 101(4)(A) (1982) (emphasis added). A literal reading of the Code's simple language leads inexorably to the conclusion that consumer debt includes secured debt. Indeed, section 521(2) of the Code, also added by the 1984 Act, makes special provision for "consumer debts which are secured by property of the estate," an unambiguous indication that Congress intended that the "secured or unsecured" language of the definition apply to consumer debts.
Nor is there any indication that debts secured by real property are to be treated differently. To the contrary, section 524 of the Code explicitly recognizes that consumer debt may be secured by real property, making different provisions for the reaffirmation of consumer debt depending on whether or not it is "consumer debt secured by real property." . . . The statutory scheme so clearly contemplates that consumer debt include debt secured by real property that there is no room left for any other conclusion. . . . (FN3)
The Kellys argue that this interpretation would render petitions of most consumer debtors subject to dismissal, because most consumers have the largest portion of their debt secured by real property. Such policy arguments are, of course, beside the point once Congress has spoken. In any event, the argument is spurious. The existence of substantial consumer debt does not, in itself, result in dismissal. The court may dismiss the petition only if granting relief would be a "substantial abuse." Those debtors who are, for no fraudulent or improper reasons, truly in need of a "fresh start" will not be subject to 707(b) dismissal. This is precisely what Congress had in mind. See pp. 913 14 infra. (FN4)
2. While secured debt is not automatically excluded from consumer debt, it is not automatically included either. We must look to the purpose of the debt in determining whether it falls within the statutory definition. Of the Kellys' mortgage debts, $95,000 consists of a lien they assumed in purchasing their home and $32,000 represents a home equity line of credit incurred for home improvements and the repayment of credit card debts. ER at 102; CR 18 at 38 43. All these fit comfortably within the Code's definition of consumer debt. (FN5) It is difficult to conceive of any expenditure that serves a "family ... or household purpose" more directly than does the purchase of a home and the making of improvements thereon.
The Kellys also claim to have a second home equity line of credit on which they owe approximately $20,000. The sole evidence concerning the nature of this debt is Kelly's affidavit which describes it as securing a loan from VNB to his professional corporation. Debt incurred for business ventures or other profit seeking activities is plainly not consumer debt for purposes of section 707(b). . . .
The Kellys' only remaining debt is the $25,000 they owe to the Zolgs and Tucson Realty for attorney's fees incurred in the state court litigation. That lawsuit was commenced by the Kellys for the purpose of recovering money allegedly overpaid in purchasing their home. The litigation thus served primarily a "family" or "household" purpose within the meaning of section 101(7). A debt for attorney's fees incurred in attempting to further this purpose, like any other debt so incurred, qualifies as a consumer debt.
The ultimate question we must decide under section 707(b) is, of course, whether debtors have "primarily consumer debts." "Primarily" means "for the most part." Webster's Ninth New Collegiate Dictionary 934 (1984). Thus, when "the most part" i.e., more than half of the dollar amount owed is consumer debt, the statutory threshold is passed. Here that standard is easily met. Of the Kellys' $172,000 indebtedness, $152,000 (approximately 88 percent) is consumer debt. They have primarily consumer debts within the meaning of section 707(b).
>
> I have a client that owes $100K to her divorce attorney. Just wondering if
> that debt has to be classified as consumer debt. Any thoughts?
>
>
>
> _____
>
> jonhayes6666
> Sent: Friday, May 07, 2010 11:26 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Re: non-consumer debt case
>
>
>
>
>
> I'll help with the appeal.
>
> --- In cdcbaa@yahoogroups. com,
> mitnicklaw@ wrote:
> >
> > PC chapter 7 client has cc debt that mostly arises from gambling that
> > comprises more than 50% of the total debt. Leaving aside the host of other
>
> > issues, would it be wrong to file this case as a non-consumer debt case ?
> >
>
The post was migrated from Yahoo.
Yeah, glad I'm not the divorce attorney.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Larry Simons
Sent: Friday, May 07, 2010 2:34 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Re: non-consumer debt case
I have a client that owes $100K to her divorce attorney. Just wondering if
that debt has to be classified as consumer debt. Any thoughts?
_____
The post was migrated from Yahoo.
Non consumer.
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California
91364-2203
Telephone: (818)226-1205
Email: kennethjschwartz@yahoo.com
Sent from my iPhone
On May 7, 2010, at 2:34 PM, "Larry Simons" wrote:
I have a client that owes $100K to her divorce attorney. Just wondering if that debt has to be classified as consumer debt. Any thoughts?
The post was migrated from Yahoo.
I'll help with the appeal.
>
> PC chapter 7 client has cc debt that mostly arises from gambling that > comprises more than 50% of the total debt. Leaving aside the host of other
> issues, would it be wrong to file this case as a non-consumer debt case ?
>
The post was migrated from Yahoo.
PC chapter 7 client has cc debt that mostly arises from gambling that
comprises more than 50% of the total debt. Leaving aside the host of other
issues, would it be wrong to file this case as a non-consumer debt case ?
PC chapter 7 client has cc debt that mostly arises from gambling thatcomprises more than 50% of the total debt. Leaving aside the host of other
issues, would it be wrong to file this case as a non-consumer debt case
?
The post was migrated from Yahoo.