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As a follow-up to Nick's questionI have virtually the same fact pattern but in front of Judge Zurzolo.
Before drawing Judge Zurzolo I had planned on filing a Motion for Turnover of exempt property under 542(a). However, I believe Judge Zurzolo will require that an adversary proceeding be brought for an avoidance action to recover funds.
Would anyone be willing to share a case number where I could view a complaint where 522(h)(1) or 542(a) was used to recover exempt funds levied with 90 days prior to bankruptcy so as to not reinvent the wheel on this issue?
Thanks in advance,
- DavidDavid S. Shevitz, Esq.
Shevitz Law Firm
3435 Wilshire BoulevardSuite 2920Los Angeles, CA 90010
Telephone:(213) 863-0183
Facsimile:(213) 788-4834
Email:david@shevitzlawfirm.com
Website:www.shevitzlawfirm.com
On Monday, May 9, 2016 4:03 PM, "Nicholas Gebelt ngebelt@gebeltlaw.com [cdcbaa]" wrote:
Dear Listmates, As you know, a debtor can recover funds levied during the ninety-day prepetition period under 522(h)(1) and nt assume the 547(b) avoidance power. I have Chapter 13 clients from whom American Express levied about $17,000 during the ninety-day prepetition period. Since the debtors have proposed a 100% plan, and 1302(b)(1) doesnt include 704(a)(1) in its ambit, I have no reason to wait to recover the money. Some time ago Judge Kwan let me avoid such a preference by motion. However, the judge in this case is Julia Brand. Does she follow the Zurzolo school of thought that requires an adversary proceeding because of Fed. R. Bankr. Proc. 7001(1)? Or will she permit the avoidance using a motion? Since a motion is cheaper, and my clients have to be in a 100% plan due to an excess of rental real estate equity (we used the 703.140 table to exempt the funds), Id like to use a motion. Thanks for your insight, Nick Nicholas Gebelt Nicholas Gebelt, Ph.D., J.D. Attorney at Law Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization Commissioner, California State Bars Bankruptcy Law Advisory Commission treet Whittier, CA 90604 Phone: 562.777.9159 FAX: 562.946.1365 Email:ngebelt@goodbye2debt.com;ngebelt@gebeltlaw.com Web:niabankruptcylawblog.com/ Important notice required by 11 U.S.C. ief under the Bankruptcy Code. 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-mailinfo@gebeltlaw.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. IRS Circular 230 Disclosure:In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended 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 transa
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