Non-debtor's (sic) debts against Debt Limits - 109(e)

Yahoo Bot · Tue Jan 20, 2009 3:07 am

Dear Hale,
I believe 1301 - the Chapter 13 "stay of action against codebtor" section will protect the non-filing spouse.
Hope that helps.
Nick
Nicholas Gebelt, Ph.D., J.D.
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
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FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com
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----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, January 19, 2009 12:31 PM
Subject: RE: [cdcbaa] Non-debtor's (sic) debts against Debt Limits - 109(e)
Thanks, Dennis. Glad to know the answer, even though it just cost me a client.

Related question, but one that's been bugging me -
In a cramdown or Lam situation in a less than 100% plan, will creditor go after non-debtor spouse for unpaid car/house unsecured debt? Same analysis as Chapter 7 where only one spouse files?
-
Of Dennis McGoldrick
Sent: Monday, January 19, 2009 11:12 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Non-debtor's (sic) debts against Debt Limits - 109(e)
Hale:
my take mixed in with your questions. Sorry the last one was blank, hit the enter key at the wrong moment.
dennis
I have met with a married couple where, as is often the case, their secured debts are not all in one or the other's name. I understand that they are community in nature. If one files, is the secured debt of the other counted against the limits of 11 USC 109(e)?
Answer: Community property becomes property of the estate. A community claim is therefore a claim against the estate created by the filing of the bankruptcy and must be listed. Don't be confused by the humans, you are creating an estate which has claims against it and are listing the claims against the estate, not just against the human.
I see that In re Monroe, 282 BR 219 (B.D.Ariz. 2002) held that a judgment debt owed by nondebtor husband must be considered toward the debt limit of debtor wife in a community property state.
answer: again a community claim against the community assets in the estate.
However, is that only for "judgment" debt? Can this case be distinguished from one that lacked a judgment? (my guess - "no") Has anyone got a ruling on this by a Central District court? It might help to get some of these cases in while we wait for them to raise the secured debt limits.
Answer: No, all community claims must be listed, regardless of whether the human for whom you are filing is actually liable.
(Elmer or others - if debtor wife files and we assume that all tax refunds go to pay down plan, can nondebtor husband still somehow receive his tax refund if he files "innocent spouse" or some other such thing?)
Answer: The refund would be community property and property of the estate, so answer is no.
Hale
--- On Mon, 1/19/09, Hale Andrew Antico wrote:
Subject: [cdcbaa] Non-debtor's debts against Debt Limits - 109(e)
To: cdcbaa@yahoogroups.com
Date: Monday, January 19, 2009, 10:32 AM
.

The post was migrated from Yahoo.

Yahoo Bot · Mon Jan 19, 2009 2:39 pm

Hale:
No. The community property discharge will protect the nonfiling spouse.hey divorce, the liability will become collectable again from the nonfiling spouse.
dennis

The post was migrated from Yahoo.

Yahoo Bot · Mon Jan 19, 2009 12:31 pm

Thanks, Dennis. Glad to know the answer, even though it just cost me a
client.

Related question, but one that's been bugging me -

In a cramdown or Lam situation in a less than 100% plan, will creditor go
after non-debtor spouse for unpaid car/house unsecured debt? Same analysis
as Chapter 7 where only one spouse files?
_____

The post was migrated from Yahoo.

Yahoo Bot · Mon Jan 19, 2009 11:12 am

Hale:
my take mixed in with your questions.Sorry the last one was blank, hit the enter key at the wrong moment.
dennis
I have met with a married couple where, as is often the case, their secured debts are not all in one or the other's name. I understand that they are community in nature. If one files, is the secured debt of the other counted against the limits of 11 USC 109(e)?
Answer: Community property becomes property of the estate. A community claim is therefore a claim against the estate created by the filing of the bankruptcy and must be listed. Don't be confused by the humans, you are creating an estate which has claims against it and are listing the claims against the estate, not just against the human.
I see that In re Monroe, 282 BR 219 (B.D.Ariz. 2002) held that a judgment debt owed by nondebtor husband must be considered toward the debt limit of debtor wife in a community property state.
answer: again a community claim against the community assets in the estate.
However, is that only for "judgment" debt? Can this casebe distinguished fromone that lackeda judgment?(my guess - "no") Has anyone got a ruling on this by a Central District court? It might help to get some of these cases in while we wait for them to raise the secured debt limits.
Answer: No, all community claims must be listed, regardless of whether the human for whom you are filing is actually liable.
(Elmer or others - if debtor wife files and we assume that all tax refunds go to pay down plan, can nondebtor husband still somehow receive his tax refund if he files "innocent spouse" or some other such thing?)
Answer: The refund would be community property and property of the estate, so answer is no.
Hale

The post was migrated from Yahoo.