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Contrary to CA law, disclaimer of inheritance is a fraudulent tr...
The good news is that SBA v. Bensal (9th Cir 2017)(DJDAR 4/5/17) is a verynarrow decision relating only to debts owed to the federal government. The 9th circuit does not overturn its decision in In Re Costas 555 F.3d 790
(9th Cir., 2009). In fact the 9th Circuit specifically distinguished thefederal government's interest under the FDCPA in disclaimed property from a
bankruptcy estate's interest in disclaimed property. It reasoned the
federal government had an interest in the inheritance before Bensal's disclaimer.
CA law was thus stripping away an interest owned by the federal
government which violated the supremacy clause. On the other hand Costas was a
disclaimer of her interest in a trust prior to the bankruptcy being filed, so
the bankruptcy estate was not being stripped of its interest in an asset by
the disclaimer. The 9th Circuit distinguished a prepetition disclaimer
from a postpetition disclaimer.
As a practice note however the 9th circuit did not really fully
analyze 11 U.S.C. 541(a)(5)(A) and its impact on trust beneficial interests.
Any interest in property that would have been property of the estate if such
interest had been an interest of the debtor on the date of the filing of
the petition and in which the debtor acquires an interest with 180 days
after the filing of the petition by bequest, devise or inheritance is property
of the estate. 11 U.S.C. 541(a)(5)(A). However, property so acquired
from an intervivos trust is not acquired by bequest, devise or inheritanceand is therefore not property of the estate. Matter of Newman, 903 F.2d 1150
(7th Cir. 1990) disagreeing with In re Moody, 837 F.2d 719 (5th Cir. 1988).
Newman appears to be applicable as to the similarities with California
law.
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 (805) 497-5864 (Facsimile)
In a message dated 4/5/2017 9:28:21 A.M. Pacific Daylight Time,
cdcbaa@yahoogroups.com writes:
SBA v. Bensal (9th Cir 2017)(DJDAR 4/5/17). The case concerns a guaranty of an SBA loan. Guarantor disclaimed after judgment had been entered
against him.
Eric
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
Telephone: (310) 792-5864
Facsimile: (310) 347-4353
Email: MitnickLaw@aol.com, MitnickLaw@gmail.com
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The good news is that SBA v. Bensal (9th Cir 2017)(DJDAR 4/5/17)
is a very narrow decision relating only to debts owed to the federal
government. The 9th circuit does not overturn its decision in In Re Costas
555 F.3d 790 (9th Cir., 2009). In fact the 9th
Circuit specifically distinguished the federal government's interest under
the FDCPA in disclaimed property from a bankruptcy estate's interest in
disclaimed property. It reasoned the federal government had an interest in
the inheritance before Bensal's disclaimer. CA law was thus stripping
away an interest owned by the federal government which violated the supremacy
clause. On the other hand Costas was a disclaimer of her interest in
a trust prior to the bankruptcy being filed, so the bankruptcy estate
was not being stripped of its interest in an asset by the disclaimer. The 9th Circuit distinguished a prepetition disclaimer from a
postpetition disclaimer.
As a practice note however the 9th circuit did not
really fully analyze 11 U.S.C. 541(a)(5)(A) and its impact on trust beneficial
interests. Any interest in property that would have been property of the
estate if such interest had been an interest of the debtor on the date of the
filing of the petition and in which the debtor acquires an interest with 180
days after the filing of the petition by bequest, devise or inheritance isproperty of the estate. 11 U.S.C. 541(a)(5)(A). However, property
so acquired from an intervivos trust is not acquired by bequest, devise orinheritance and is therefore not property of the estate. Matter of Newman, 903
F.2d 1150 (7th Cir. 1990) disagreeing with In re Moody, 837 F.2d 719 (5th Cir.
1988). Newman appears to be applicable as to the similarities
with California law.
Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)
In a message dated 4/5/2017 9:28:21 A.M. Pacific Daylight Time,
cdcbaa@yahoogroups.com writes:
SBA v.
Bensal (9th Cir 2017)(DJDAR 4/5/17). The case concerns a guaranty
of an SBA loan. Guarantor disclaimed after judgment had been entered
against him.
Eric
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
Telephone:
(310) 792-5864
Facsimile:
(310) 347-4353
Email:
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