.jpg)
Am I reading 11 USC 101(10A) Correctly?
*
Let's cite some authority:
Remember that In the absence of a definition, courts construe a statutory
term in accordance with its ordinary or natural meaning. FDIC v. Meyer, 510
U.S. 471 (1994).
Let's start with the definition of "income":
The post was migrated from Yahoo.
What is your authority for calling a gift income under (A)? There's no definition of income there
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 Jul 19, 2010, at 5:31 AM, Dennis wrote:
> A + B - SSI - ( war crimes + terrorism pymnts) CMI. A includes income. Gifts are income, therefore gifts are included in A,
>
> B includes, amounts paid by others, on a regular basis, then excludes SSI and other things.
>
> Since gifts are in A, and B includes more than just normal income, you cannot exclude gifts in B. B only excludes SSI, and compensation for war crimes and terrorism.
>
> Dennis
>
> Sent from my iPhone
>
>
>
>
>
>
>>
>
>
What is your authority for calling a gift income under (A)? There's no definition of income there Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818)226-1205Email: kennethjschwartz@yahoo.com
The post was migrated from Yahoo.
A + B - SSI - ( war crimes + terrorism pymnts)= CMI. A includes income. Gifts are income, therefore gifts are included in A,
B includes, amounts paid by others, on a regular basis, then excludes SSI and other things.
Since gifts are in A, and B includes more than just normal income, you cannot exclude gifts in B. B only excludes SSI, and compensation for war crimes and terrorism.
Dennis
Sent from my iPhone
A + B - SSI - ( war crimes + terrorism pymnts)= CMI. A includes income. Gifts are income, therefore gifts are included in A, B includes, amounts paid by others, on a regular basis, then excludes SSI and other things.Since gifts are in A, and B includes more than just normal income, you cannot exclude gifts in B. B only excludes SSI, and compensation for war crimes and terrorism.DennisSent from my iPhone
The post was migrated from Yahoo.
I agree that 11 USC 101(10A) is quite ambiguous and needs to be read closely
depending on the facts. Subsection (B) says to include amounts "*paid" *by
others for the household expenses of the debtor or the debtor's dependents but
then goes on to give examples of monies to exclude that are "received" by
the debtor ( "but excludes benefits *received *under the Social Security
Act, payments to victims of war crimes or crimes against humanity on account
of their status as victims of such crimes, and payments to victims of
international terrorism (as defined in section 2331 of title 18) or domestic
terrorism (as defined in section 2331 of title 18) on account of their
status as victims of such terrorism."). I'm pretty sure the SS
Administration doesn't pay people's bills, it gives those people money with
which they pay their bills.
*Regardless of the foregoing, now that I pay closer attention to the
statute, if you focus on the drafter's use of the verb "paid"
in Subsection (B) instead of**, e.g.,** "given" or "received from", you
would exclude gifts because, by their very nature, gifts are not payments
and are not "paid" to people, they are freely given. Amounts are "paid"
when the payor has some obligation to do so or the payee has a right to get
it. A basic definition (from Wiktionary) of the verb supports this reading:
*
Etymology
The post was migrated from Yahoo.
I agree with Dennis. I may dislike the outcome but I do not see
how one time gifts can be exluded under subsection (A) because there
is no definition of "income". How do you jump to the conslusion that,
"It is logical to utilize the normal definition as the product of
one's labors, business, land, or investments?" Sounds like you are
falling into the trap of making a distinction of what is taxible
income under the Internal Revenue Code and what is not.
Nevertheless, I think we can look at the IRC to assist in the
meaning of 11 U.S.C. 101(10A). Congress basically said all revenue
is gross income unless statutorily excepted in IRC Section 61. It
states that "except as otherwise provided in this subtitle gross
income means all income from whatever source derived". I think it is
more logical to use that definition arleady established by Congress
when determining what Congress meant by cmi including the average
monthly income from all sources that debtor recieves. IRC 102
excludes certain gifts and inheritances so they are not gross income.
11 U.S.C. Section 101(10A) has no such modification excepting one
time gifts from income. As Dennis point out 11 U.S.C. Section
101(10B) does not except gifts recieved by the debtor directly only
irregular payments by another to someone someone else for the debtor's
benefit.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
On Sun 18/07/10 11:56 AM , Kenneth Jay Schwartz
kennethjschwartz@yahoo.com sent:
I agree with Dennis' analysis, but I still would interpret a one
time gift as not includable, based upon the following:
Under subsection (A) there is no definition of "income", and
therefore it is logical to utilize the normal definition as the
product of one's labors, business, land, or investments. A gift does
not fall within this definition.
Subsection (B) expands the concept of income to encompass "any
amount paid...", but it must be on a regular basis to be included. a
one-time gift does not meet this criteria
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
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FROM: Dennis McGoldrick
TO: cdcbaa@yahoogroups.com
SENT: Sun, July 18, 2010 10:39:04 AM
SUBJECT: RE: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
Ok, lets take a look at the whole section:
(10A) The term current monthly income
(A) means the average monthly income from all sources that the
debtor receives (or in a
joint case the debtor and the debtor's spouse receive) without
regard to whether such income is
taxable income, derived during the 6-month period ending on
(i) the last day of the calendar month immediately preceding the
date of the
commencement of the case if the debtor files the schedule of current
income required by
section 521(a)(1)(B) (ii); or
(ii) the date on which current income is determined by the court for
purposes of this
title if the debtor does not file the schedule of current income
required by section
521(a)(1)(B) (ii); and
(B) includes any amount paid by any entity other than the debtor (or
in a joint case the
debtor and the debtor's spouse), on a regular basis for the
household expenses of the debtor or the debtor's dependents (and in a
joint case the debtor's spouse if not otherwise a dependent), but
excludes benefits received under the Social Security Act, payments to
victims of war crimes or crimes against humanity on account of their
status as victims of such crimes, and payments to victims of
international terrorism (as defined in section 2331 of title 18) or
domestic terrorism (as defined in section 2331 of title 18) on account
of their status as victims of such terrorism.' I have highlighted
the two parts of A and B, which we have been discussing. My
understanding of the English language may be more limited than my
collegues, but doesn't a modifer, modify what it follows in a phrase?
On a regular basis, follows "includes any amount paid by an entity
other than the debtor....for household expenses of the debtor. So,
on a regular basis only modifies amounts paid by an entity other than
the debtor. Please, gentlemen, explain how the conjunction "and",
which adds the entire (B), where the modifier only relates to the
"paid by and entity other than the debtor, relates back to, and
additionally modifies average monthly income from all sources? The
normal English usage of a modifier would require the modifier to be in
A, also, as in: "average monthly income, received on a regular
basis" It ain't there. dennis
Links:
[1] mailto:cdcbaa@yahoogroups.com?subjectRe: [cdcbaa] Am I reading
11 USC 101(10A) Correctly?
[2]
The post was migrated from Yahoo.
I agree with Dennis' analysis, but I still would interpret a one time gift as
not includable, based upon the following:
Under subsection (A) there is no definition of "income", and therefore it is
logical to utilize the normal definition as the product of one's labors,
business, land, or investments. A gift does not fall within this definition.
Subsection (B) expands the concept of income to encompass "any amount paid...",
but it must be on a regular basis to be included. a one-time gift does not meet
this criteria
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: Sun, July 18, 2010 10:39:04 AM
Subject: RE: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
Ok, lets take a look at the whole section:
(10A) The term current monthly income
(A) means the average monthly income from all sources that the debtor receives
(or in a
joint case the debtor and the debtor's spouse receive) without regard to whether
such income is
taxable income, derived during the 6-month period ending on
(i) the last day of the calendar month immediately preceding the date of the
commencement of the case if the debtor files the schedule of current incomerequired by
section 521(a)(1)(B) (ii); or
(ii) the date on which current income is determined by the court for purposes of
this
title if the debtor does not file the schedule of current income required by
section
521(a)(1)(B) (ii); and
(B) includes any amount paid by any entity other than the debtor (or in a joint
case the
debtor and the debtor's spouse), on a regular basis for the household expenses
of the debtor or the debtor's dependents (and in a joint case the debtor'sspouse if not otherwise a dependent), but excludes benefits received under the
Social Security Act, payments to victims of war crimes or crimes against
humanity on account of their status as victims of such crimes, and payments to
victims of international terrorism (as defined in section 2331 of title 18) or
domestic terrorism (as defined in section 2331 of title 18) on account of their
status as victims of such terrorism.'
I have highlighted the two parts of A and B, which we have been discussing.My understanding of the English language may be more limited than my collegues,
but doesn't a modifer, modify what it follows in a phrase? On a regular basis,
follows "includes any amount paid by an entity other than the debtor....forhousehold expenses of the debtor.
So, on a regular basis only modifies amounts paid by an entity other than the
debtor.
Please, gentlemen, explain how the conjunction "and", which adds the entire (B),
where the modifier only relates to the "paid by and entity other than the
debtor, relates back to, and additionally modifies average monthly income from
all sources?
The normal English usage of a modifier would require the modifier to be in A,
also, as in:
"average monthly income, received on a regular basis"
It ain't there.
dennis
I agree with Dennis' analysis, but I still would interpret a one time gift as not includable, based upon the following:Under subsection (A) there is no definition of "income", and therefore it is logical to utilize the normal definition as the product of one's labors, business, land, or investments. A gift does not fall within this definition.Subsection (B) expands the concept of income to encompass "any amount paid...", but it must be on a regular basis to be included. a one-time gift does not meet this criteria 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: Dennis McGoldrick <easky1@yahoo.com>To: cdcbaa@yahoogroups.comSent: Sun, July 18, 2010 10:39:04 AMSubject: RE: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
Ok, lets take a look at the whole section:
(10A) The term current monthly income(A) means the average monthly income from all sources that the debtor receives (or in ajoint case the debtor and the debtor's spouse receive) without regard to whether such income istaxable income, derived during the 6-month period ending on(i) the last day of the calendar month immediately preceding the date of thecommencement of the case if the debtor files the schedule of current income required bysection 521(a)(1)(B) (ii); or (ii) the date on which current income is determined by the court for purposes of thistitle if the debtor does not file the schedule of current income required by section521(a)(1)(B) (ii); and(B) includes any amount paid by any entity other than the debtor (or in a joint case thedebtor and the debtor's spouse), on a regular basis for the household expenses of the
debtor or the debtor's dependents (and in a joint case the debtor's spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331 of title 18) on account of their status as victims of such terrorism.'
I have highlighted the two parts of A and B, which we have been discussing.
My understanding of the English language may be more limited than my collegues, but doesn't a modifer, modify what it follows in a phrase? On a regular basis, follows "includes any amount paid by an entity other than the debtor....for household expenses of the debtor.
So, on a regular basis only modifies amounts paid by an entity other than the debtor.
Please, gentlemen, explain how the conjunction "and", which adds the entire (B), where the modifier only relates to the "paid by and entity other than the debtor, relates back to, and additionally modifies average monthly income from all sources?
The normal English usage of a modifier would require the modifier to be in A, also, as in:
"average monthly income, received on a regular basis"
It ain't there.
dennis
The post was migrated from Yahoo.
Ok, lets take a look at the whole section:
(10A) The term current monthly income
(A) means the average monthly income from all sources that the debtor receives (or in a
joint case the debtor and the debtor's spouse receive) without regard to whether such income is
taxable income, derived during the 6-month period ending on
(i) the last day of the calendar month immediately preceding the date of the
commencement of the case if the debtor files the schedule of current income required by
section 521(a)(1)(B)(ii); or
(ii) the date on which current income is determined by the court for purposes of this
title if the debtor does not file the schedule of current income required by section
521(a)(1)(B)(ii); and
(B) includes any amount paid by any entity other than the debtor (or in a joint case the
debtor and the debtor's spouse), on a regular basis for the household expenses of the debtor or the debtor's dependents (and in a joint case the debtor's spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331 of title 18) on account of their status as victims of such terrorism.'
I have highlighted the two parts of A and B, which we have been discussing.My understanding of the English language may be more limited than my collegues, but doesn't a modifer, modify what it follows in a phrase? On a regular basis, follows "includes any amount paid by an entity other than the debtor....for household expenses of the debtor.
So, on a regular basis only modifies amounts paid by an entity other than the debtor.
Please, gentlemen, explain how the conjunction "and", which adds the entire (B), where the modifier only relates to the "paid by and entity other than the debtor, relates back to, and additionally modifies average monthly income from all sources?
The normal English usage of a modifier would require the modifier to be in A, also, as in:
"average monthly income, received on a regular basis"
It ain't there.
dennis
Ok, lets take a look at the whole section:
(10A) The term current monthly income(A) means the average monthly income from all sources that the debtor receives (or in ajoint case the debtor and the debtor's spouse receive) without regard to whether such income istaxable income, derived during the 6-month period ending on(i) the last day of the calendar month immediately preceding the date of thecommencement of the case if the debtor files the schedule of current income required bysection 521(a)(1)(B)(ii); or (ii) the date on which current income is determined by the court for purposes of thistitle if the debtor does not file the schedule of current income required by section521(a)(1)(B)(ii); and(B) includes any amount paid by any entity other than the debtor (or in a joint case thedebtor and the debtor's spouse), on a regular basis for the household expenses of the
debtor or the debtor's dependents (and in a joint case the debtor's spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331 of title 18) on account of their status as victims of such terrorism.'
I have highlighted the two parts of A and B, which we have been discussing.
My understanding of the English language may be more limited than my collegues, but doesn't a modifer, modify what it follows in a phrase? On a regular basis, follows "includes any amount paid by an entity other than the debtor....for household expenses of the debtor.
So, on a regular basis only modifies amounts paid by an entity other than the debtor.
Please, gentlemen, explain how the conjunction "and", which adds the entire (B), where the modifier only relates to the "paid by and entity other than the debtor, relates back to, and additionally modifies average monthly income from all sources?
The normal English usage of a modifier would require the modifier to be in A, also, as in:
"average monthly income, received on a regular basis"
It ain't there.
dennis
The post was migrated from Yahoo.
Dennis,
and(B) are different.
Those two subsections are tied together with an "and" at the end of
101(10A)(A)(ii), soNick's point was the the"includes" modifying regular
doesn't necessarily exlude gifts that are not made regularly if you read it a
"includes, but is not limited to"
Peter
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Sat, July 17, 2010 12:24:03 PM
Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
These two answers show the difference between 101(10A)(A) & (B). all gifts are income, that's from (A). (B) says amounts paid by another are
only part of cmi when they are regularly made.
So, don't let your clients accept gifts. If you have the luxury, have the
person who will be making a gift, pay the debtor's expense directly. A gift is
under (A), a payment to someone other than the debtor, for the debtor's benefit
is under (B), and if irregular is excluded from cmi.
Dennis
Sent from my iPhone
On Jul 16, 2010, at 1:09 PM, Nicholas Gebelt wrote:
>Dear Peter,
>
>Permit me to take a contrarian view for just a moment.
>
>The wording of 101(10A)(B) can be read as saying that the only income excluded
>from CMI is social security benefits, victims of crimes benefits, etc.>that CMI includes any amount paid by any entity other than the debtor . . . on
>a regular basis is not necessarily meant to be read as excluding one-time gifts
>from CMI. Instead, it serves to emphasize the fact that the word >used in 101(10A)(A) should not be restricted to just what the debtor earns
>through employment or operation of a business, but must also include money the
>debtor receives from the largesse of someone else. This is a defensible reading
>of the text, and I could imagine a judge accepting it. Thus, while I would, of
>course, still vigorously defend my client against a 707(b)(2) motion that was
>based on the claim that a one-time gift should be included in CMI, it is not
>clear to me that your position would be guaranteed to win.
>
>You may recall that a few months ago at a cdcbaa meeting, Ken Lau said that the
>US Trustees position was that one-time gifts are to be included in CMI. I took
>that to mean that while they might take no action in a close case, they would
>file a 707(b)(2) motion if the gift was large enough to make a real>difference. Therefore, if at all possible, I would rather age the income for a
>while and avoid the problem altogether, than have to explain to my client that I
>need extra fees to defend against the motion.
>
>All the best,
>
>Nick
>
>Nicholas Gebelt, Ph.D., J.D.
>Law Offices of Nicholas Gebelt
>15150 Hornell Street
>Whittier, CA 90604
>Phone: 562.777.9159
>FAX: 562.946.1365
>Email: ngebelt@goodbye2deb t.com
>Web: www.goodbye2debt. com
>
>Confidentiality Note: This e-mail is intended only for the person or entity to
>which it is addressed and may contain information that is privileged,
>confidential, or otherwise protected from disclosure. Dissemination,>distribution, or copying of this e-mail or the information herein by anyone
>other than the intended recipient, or an employee or agent responsible for>delivering the message to the intended recipient, is prohibited. If you have
>received this e-mail in error, please notify us immediately at
>562.777.9159 or e-mail info@goodbye2debt. com and destroy the original message
>and all copies.
>
>Representation Note: If you have not signed a contract of representation, the
>Law Offices of Nicholas Gebelt do not represent you, and this email does not
>contain any legal advice for you.
>
>From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of P L
>Sent: Friday, July 16, 2010 8:57 AM
>To: cdcbaa@yahoogroups. com
>Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>Lanning instructsthat the court can adjustPDI by foreseeable changes in
>income/expenses. The one time cash gift is historic and not CMI, since not
>regular. However, if it was the first of many to be receivedregularly in the
>future, then Lanning could be applicable to adust CMI higher.
>
>Peter M. Lively, JD/MBA
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
>Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
>A-Bankruptcy- Attorney. com
>Personal Financial Law Center II - Costa Mesa, CA
>
>THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
>IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
>AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
>IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
>DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
>ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
>PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US
>IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
>
>
>
>
________________________________
>From:Shannon Doyle
>To: cdcbaa@yahoogroups. com
>Sent: Fri, July 16, 2010 9:51:02 AM
>Subject: RE: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>
>Wouldnt this be a special circumstances argument under Lanning (i.e. disclose
>in MT and make the one-time payment argument).
>
>Shannon A. Doyle
>Attorney at Law
>100 N. Barranca Avenue, Suite 250
>Tel: (626) 646-2555
>Fax: (626) 332-8644
>www.blclaw.com
>
>West Covina, CA 91791-1600
>
>From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of
>Kenneth Jay Schwartz
>Sent: Friday, July 16, 2010 9:29 AM
>To: cdcbaa@yahoogroups. com
>Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>
>I believe in over as opposed to under disclosing, but I do not think that>disclosure a one time gift belongs on Question 2 of the SOFa as it is not income
>in any way, shape, or form.
>
>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.
>
>
>
________________________________
>From:P L
>To: cdcbaa@yahoogroups. com
>Sent: Fri, July 16, 2010 8:55:00 AM
>Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>
>Donny's question was posed in the negative, so when Ianswered "yes" that
>meantthatI agree theone time cash giftisnot on a regularbasis.SFA
>disclosure/explanat ion is still suggested.
>
>Peter M. Lively, JD/MBA
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
>Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
>A-Bankruptcy- Attorney. com
>Personal Financial Law Center II - Costa Mesa, CA
>
>THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
>IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
>AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
>IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
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>ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
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>
>
>
>
________________________________
>From:vicki temkin
>To: cdcbaa@yahoogroups. com
>Sent: Thu, July 15, 2010 7:31:27 PM
>Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>
>Peter,
>I am not questioning your answer here, but please give me an explanation how a
>one-time gift fits the definition of 11 USC 101(10A) - ..."on a regular basis".
>Thanks,
>Vicki
>Vicki L. Temkin
>Law Office of Vicki L. Temkin
>15030 Ventura Blvd., Ste. 19-780
>Sherman Oaks, Ca 91403
>Ph:(818) 501-4658 /Fx:(818) 501-0903
>
>
>--- On Thu, 7/15/10, P L wrote:
>
>Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>To: cdcbaa@yahoogroups. com
>Date: Thursday, July 15, 2010, 11:00 AM
>
>yes, butyou may want to disclosurethegift in SFA #2>takes the position you just articulated.
>
>Peter M. Lively, JD/MBA
>Law Office of Peter M. Lively * Personal Financial Law Center I
>11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
>Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
>A-Bankruptcy- Attorney. com
>Personal Financial Law Center II - Costa Mesa, CA
>
>THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH
>IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL
>AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE
>IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR
>DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
>ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
>PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US
>IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
>
>
>
>
________________________________
>From:Donny
>To: cdcbaa@yahoogroups. com
>Sent: Thu, July 15, 2010 10:26:30 AM
>Subject: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>
>An under-median client of mine just told me that his church gave him some cash
>to help him out. This cash gift happens to be during the CMI period, and if
>included as CMI, will cause him to become above-median - and with a presumption
>of abuse.
>
>
>Since 11 USC 101(10A) defines income to include "any amount paid by any entity
>other than the debtor [...] on a regular basis for the household expenses of the
>debtor or the debtor's dependents [...]"
>
>does that mean that a one-time cash gift, which is NOT paid on a regular basis,
>does NOT have to be included as CMI?
>
>Thanks,
>
>Donny Brand
>Brand | Burris
>3836 E Anaheim St
>Long Beach, CA 90804
>Tel: 562-438-7500
>Fax: 562-438-8500
>dbrand@brandburris. com
>
>
Dennis,
I agree with your conclusion, but disagree that (A) and (B) are different. Those two subsections are tied together with an "and" at the end of 101(10A)(A)(ii), so Nick's point was the the "includes" modifying regular doesn't necessarily exlude gifts that are not made regularly if you read it a "includes, but is not limited to"
Peter Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy-Attorney.com
From: Dennis <easky1@yahoo.com>To: "cdcbaa@yahoogroups.com" <cdcbaa@yahoogroups.com>Sent: Sat, July 17, 2010 12:24:03 PMSubject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
These two answers show the difference between 101(10A)(A) & (B). Nick says all gifts are income, that's from (A). (B) says amounts paid by another are only part of cmi when they are regularly made.
So, don't let your clients accept gifts. If you have the luxury, have the person who will be making a gift, pay the debtor's expense directly. A gift is under (A), a payment to someone other than the debtor, for the debtor's benefit is under (B), and if irregular is excluded from cmi.
Dennis
Sent from my iPhone
On Jul 16, 2010, at 1:09 PM, Nicholas Gebelt <ngebelt@gebeltlaw. com> wrote:
Dear Peter,
Permit me to take a contrarian view for just a moment.
The wording of 101(10A)(B) can be read as saying that the only income excluded from CMI is social security benefits, victims of crimes benefits, etc. The fact that CMI includes any amount paid by any entity other than the debtor . . . on a regular basis CMI. Instead, it serves to emphasize the fact that the word o just what the debtor earns through employment or operation of a business, but must also include money the debtor receives from the largesse of someone else. This is a defensible reading of the text, and I could imagine a judge accepting it. Thus, while I would, of course, still vigorously defend my client against a 707(b)(2) motion that was based on the claim that a one-time gift should
be included in CMI, it is not clear to me that your position would be guaranteed to win.
You may recall that a few months ago at a cdcbaa meeting, Ken Lau said that the US Trustees position was that one-time gifts are to be included in CMI. I took that to mean that while they might take no action in a close case, they would file a 707(b)(2) motion if the gift was large enough to make a real difference. Therefore, if at all possible, I would rather age the income for a while and avoid the problem altogether, than have to explain to my client that I need extra fees to defend against the motion.
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2deb t.com
Web: www.goodbye2debt. com
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at
562.777.9159 or e-mail info@goodbye2debt. com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
From: cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of P LSent: Friday, July 16, 2010 8:57 AMTo: cdcbaa@yahoogroups. comSubject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
Lanning instructs that the court can adjust PDI by foreseeable changes in income/expenses. The one time cash gift is historic and not CMI, since not regular. However, if it was the first of many to be received regularly in the future, then Lanning could be applicable to adust CMI higher.
Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy- Attorney. comPersonal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
From: Shannon Doyle <sdoyle@blclaw. com>To: cdcbaa@yahoogroups. comSent: Fri, July 16, 2010 9:51:02 AMSubject: RE: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
Wouldnclose in MT and make the one-time payment argument).
Shannon A. Doyle
Attorney at Law
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791-1600
Tel: (626) 646-2555
Fax: (626) 332-8644
www.blclaw.com
<image001.png>
From: cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of Kenneth Jay SchwartzSent: Friday, July 16, 2010 9:29 AMTo: cdcbaa@yahoogroups. comSubject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
I believe in over as opposed to under disclosing, but I do not think that disclosure a one time gift belongs on Question 2 of the SOFa as it is not income in any way, shape, or form.
Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818) 226-1205Facsimile: (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.
From: P L <petermlively2000@
The post was migrated from Yahoo.
These two answers show the difference between 101(10A)(A) & (B). Nick says all gifts are income, that's from (A). (B) says amounts paid by another are only part of cmi when they are regularly made.
So, don't let your clients accept gifts. If you have the luxury, have the person who will be making a gift, pay the debtor's expense directly. A gift is under (A), a payment to someone other than the debtor, for the debtor's benefit is under (B), and if irregular is excluded from cmi.
Dennis
Sent from my iPhone
On Jul 16, 2010, at 1:09 PM, Nicholas Gebelt wrote:
Dear Peter,
Permit me to take a contrarian view for just a moment.
The wording of 101(10A)(B) can be read as saying that the only income excluded from CMI is social security benefits, victims of crimes benefits, etc. The fact that CMI includes any amount paid by any entity other than the debtor . . . on a regular basis is not necessarily meant to be read as excluding one-time gifts from CMI. Instead, it serves to emphasize the fact that the word income as used in ugh employment or operation of a business, but must also include money the debtor receives from the largesse of someone else. This is a defensible reading of the text, and I could imagine a judge accepting it. Thus, while I would, of course, still vigorously defend my client against a 707(b)(2) motion that was based on the claim that a one-time gift should be included in CMI, it is not clear to me that your position would be guaranteed to win.
You may recall that a few months ago at a cdcbaa meeting, Ken Lau said that the US Trustees position was that one-time gifts are to be included in CMI. I took that to mean that while they might take no action in a close case, they would file a 707(b)(2) motion if the gift was large enough to make a real difference. Therefore, if at all possible, I would rather age the income for a while and avoid the problem altogether, than have to explain to my client that I need extra fees to defend against the motion.
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com
Web: www.goodbye2debt.com
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at
562.777.9159 or e-mail info@goodbye2debt.com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
The post was migrated from Yahoo.
Section 101 (10A) has two subsections (i.e., (A) and (B)) and the last part
of of 101(10A)(A) ends with "and" ; so, the statute is written in the
injunctive and you take (B) into account to come up with the entire
definition. Since (B) contains the phrase "on a regular basis" and the
examples of excluded payments are all types of payments debtors would
receive on a "regular basis," I think basic statutory interpretation should
exclude a one time gift from a relative. Otherwise, you're reading the
phrase "on a regular basis ... " out of the statute. However, a bonus
received from your employer, especially if you received such bonuses every
year in the past or if the employer's policies or a contract contemplates
receipt of such bonus every year, may be regular enough to require
inclusion.
I think either full disclosure to the client of a potential disagreement
from the UST would be enough of a CYA or, of course, the preferable route
would be to age the case. However, with so many clients coming in on the
eve of foreclosure, aging is not a luxury we have all the time.
On Fri, Jul 16, 2010 at 5:24 PM, vicki temkin wrote:
>
>
> thanks
>
>
> Vicki L. Temkin
> Law Office of Vicki L. Temkin
> 15030 Ventura Blvd., Ste. 19-780
> Sherman Oaks, Ca 91403
> Ph: (818) 501-4658 / Fx: (818) 501-0903
>
>
> --- On *Fri, 7/16/10, P L * wrote:
>
>
> Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
> To: cdcbaa@yahoogroups.com
> Date: Friday, July 16, 2010, 8:55 AM
>
>
>
> Donny's question was posed in the negative, so when I answered "yes" that
> meant that I agree the one time cash gift is not on a regular basis. SFA
> disclosure/explanat ion is still suggested.
>
> Peter M. Lively, JD/MBA
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> A-Bankruptcy- Attorney. com
> Personal Financial Law Center II - Costa Mesa, CA
>
>
> THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO
> WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED,
> CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER
> OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT
> RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE
> HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS
> COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
> COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY
> TELEPHONE. THANK YOU.
>
>
> ------------------------------
> *From:* vicki temkin
> *To:* cdcbaa@yahoogroups. com
> *Sent:* Thu, July 15, 2010 7:31:27 PM
> *Subject:* Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>
>
> Peter,
> I am not questioning your answer here, but please give me an explanation
> how a one-time gift fits the definition of 11 USC 101(10A) - ..."on a
> regular basis".
> Thanks,
> Vicki
>
>
> Vicki L. Temkin
> Law Office of Vicki L. Temkin
> 15030 Ventura Blvd., Ste. 19-780
> Sherman Oaks, Ca 91403
> Ph: (818) 501-4658 / Fx: (818) 501-0903
>
>
> --- On *Thu, 7/15/10, P L * wrote:
>
>
> Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
> To: cdcbaa@yahoogroups. com
> Date: Thursday, July 15, 2010, 11:00 AM
>
>
>
> yes, but you may want to disclosure the gift in SFA #2 with a note that
> debtor takes the position you just articulated.
>
> Peter M. Lively, JD/MBA
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
> Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
> A-Bankruptcy- Attorney. com
> Personal Financial Law Center II - Costa Mesa, CA
>
>
> THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO
> WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED,
> CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER
> OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT
> RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE
> HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS
> COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
> COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY
> TELEPHONE. THANK YOU.
>
>
> ------------------------------
> *From:* Donny
> *To:* cdcbaa@yahoogroups. com
> *Sent:* Thu, July 15, 2010 10:26:30 AM
> *Subject:* [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
>
>
>
> An under-median client of mine just told me that his church gave him some
> cash to help him out. This cash gift happens to be during the CMI period,
> and if included as CMI, will cause him to become above-median - and with a
> presumption of abuse.
>
> Since 11 USC 101(10A) defines income to include "any amount paid by any
> entity other than the debtor [...] on a regular basis for the household
> expenses of the debtor or the debtor's dependents [...]"
>
> does that mean that a one-time cash gift, which is NOT paid on a regular
> basis, does NOT have to be included as CMI?
>
> Thanks,
>
> Donny Brand
> Brand | Burris
> 3836 E Anaheim St
> Long Beach, CA 90804
> Tel: 562-438-7500
> Fax: 562-438-8500
> dbrand@brandburris. com
>
>
>
>
>
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Phone: (888) 619-8222 x101
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Section 101 (10A) has two subsections (i.e., (A) and (B)) and the last part of of 101(10A)(A) ends with "and" ; so, the statute is written in the injunctive and you take (B) into account to come up with the entire definition. Since (B) contains the phrase "on a regular basis" and the examples of excluded payments are all types of payments debtors would receive on a "regular basis," I think basic statutory interpretation should exclude a one time gift from a relative. Otherwise, you're reading the phrase "on a regular basis ... " out of the statute. However, a bonus received from your employer, especially if you received such bonuses every year in the past or if the employer's policies or a contract contemplates receipt of such bonus every year, may be regular enough to require inclusion.
I think either full disclosure to the client of a potential disagreement from the UST would be enough of a CYA or, of course, the preferable route would be to age the case. However, with so many clients coming in on the eve of foreclosure, aging is not a luxury we have all the time.
On Fri, Jul 16, 2010 at 5:24 PM, vicki temkin <Vtemkin@yahoo.com> wrote:
thanksVicki L. Temkin Law Office of Vicki L. Temkin15030 Ventura Blvd., Ste. 19-780 Sherman Oaks, Ca 91403br>--- On Fri, 7/16/10, P L <
The post was migrated from Yahoo.