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dismissal under 707(a) for too much income
Yea, but what it comes down to is whether one should try. If
there's a chance that a debtor could get a discharge in a Chapter 7
under those circumstances and I advise him to just file a 100%
chapter 13 instead, that's malpractice. There's enough case law
that says that ability to pay--by itself-is not sufficient to allow
dismissal under 707(a) that I think it's worth a try. Worst case
scenario: we convert to Ch. 13. My biggest fear is if court
doesn't allow that, in which case he'd need to wait a year to
re-file because of the new automatic stay provisions in 362(c)
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
Mark, I think you're right to worry. 707(a) still applies. Look at a 3rd circuit case:
In re Perlin, 497 F.3d 364 (3rd Cir. August, 2007)
Issue: 1) Can a bankruptcy court consider the debtors' significant income when deciding whether or not to dismiss a chapter 7 under Section 707(a)? 2) Is the debtors' income here of about $400,000 per year sufficient to find bad faith and dismiss the case?
Holding: 1) Yes, 2) No.
When I did the program with VZ, he asked Peter Anderson who was present if the UST would have filed a motion to dismiss in Perlin. Peter said, "Probably."
>
> I know this is a nonconsumer case. That's why I said "debts are
> primarily nonconsumer (tax)"
>
> Have you ever had such a case where the debtor could afford to pay
> 100% and it still went through to discharge in a 7?
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> This Firm is a Qualified Federal Debt Relief Agency (see what this
> means at
> http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law
> office of Mark J. Markus that may be privileged. The information is
> intended for the use of the addressee only. If you are not the
> addressee, note that any disclosure, copy, distribution or use of
> the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements
> imposed by the IRS, we inform you that any U.S. tax advice contained
> in this communication (or in any attachment) is not intended or
> written to be used, and cannot be used, for the purpose of (i)
> avoiding penalties under the Internal Revenue Code or (ii)
> promoting, marketing or recommending to another party any
> transaction or matter addressed in this communication.
>
> On 3/23/2011 7:51 AM, Dennis McGoldrick wrote:
> >
> >
> > Mark:
> >
> > Mark the box on the b22 which says the case is nonconsumer. This
> > takes the case out of 707b. My cases like this go through to
> > discharge.
> >
> > Padilla is a credit card bust out case (consumer debt). No such
> > case about taxes, taxes are NOT consumer debt.
> >
> > dennis
> >
> > --- On *Tue, 3/22/11, Mark J. Markus //* wrote:
> >
> >
> > Subject: [cdcbaa] dismissal under 707(a) for too much income
> > To: cdcbaa@yahoogroups.com
> > Date: Tuesday, March 22, 2011, 11:14 PM
> >
> > Esteemed colleagues:
> >
> > Has anyone ever attempted this?
> >
> > Debts are primarily nonconsumer (tax) and thus means test
> > doesn't apply and, therefore, neither does 11 USC 707(b).
> >
> > Debtor's I&J budget show a surplus sufficient to pay 100% to
> > unsecured creditors over 60 months.
> >
> > Any chance said debtor could survive in a Chapter 7?
> >
> > My prior research on this showed it would be very risky. I'm
> > familiar with our circuit decision of Neary v. Padilla, but
> > it's not fully on point.
> >
> > Thanks in advance....
> >
> > Mark
> >
> >
> >
> >
> > **************************
> > Mark J. Markus
> > Law Office of Mark J. Markus
> > 11684 Ventura Blvd. PMB #403
> > Studio City, CA 91604-2652
> > (818)509-1173 (818)509-1460 (fax)
> > web: http://www.bklaw.com/
> > This Firm is a Qualified Federal Debt Relief Agency (see what
> > this means at
> > http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
> > ________________________________________________
> > NOTICE: This Electronic Message contains information from the
> > law office of Mark J. Markus that may be privileged. The
> > information is intended for the use of the addressee only. If
> > you are not the addressee, note that any disclosure, copy,
> > distribution or use of the contents of this message is prohibited.
> > IRS CIRCULAR 230 NOTICE: To ensure compliance with
> > requirements imposed by the IRS, we inform you that any U.S.
> > tax advice contained in this communication (or in any
> > attachment) is not intended or written to be used, and cannot
> > be used, for the purpose of (i) avoiding penalties under the
> > Internal Revenue Code or (ii) promoting, marketing or
> > recommending to another party any transaction or matter
> > addressed in this communication. *
> >
> >
> >
> >
>
The post was migrated from Yahoo.
I know this is a nonconsumer case. That's why I said "debts are
primarily nonconsumer (tax)"
Have you ever had such a case where the debtor could afford to pay
100% and it still went through to discharge in a 7?
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
Mark:
Mark the box on the b22 which says the case is nonconsumer. This takes the case out of 707b. My cases like this go through to discharge.
Padilla is a credit card bust out case (consumer debt). No such case about taxes, taxes are NOT consumer debt.
dennis
The post was migrated from Yahoo.
Esteemed colleagues:
Has anyone ever attempted this?
Debts are primarily nonconsumer (tax) and thus means test doesn't
apply and, therefore, neither does 11 USC 707(b).
Debtor's I&J budget show a surplus sufficient to pay 100% to
unsecured creditors over 60 months.
Any chance said debtor could survive in a Chapter 7?
My prior research on this showed it would be very risky. I'm
familiar with our circuit decision of Neary v. Padilla, but it's not
fully on point.
Thanks in advance....
Mark
**************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.