522(f) and Turnover of levied funds BR
Posted: Sat Feb 09, 2013 11:26 am
Jason,
Arguably, the circumstances of the debor recoverying levied exempt funds from the Sheriff in a Chapter 7 back to the debor (not the estate) are different than an individualChapter 11 debtor recoverying property back to the bankruptcy estate. Perhaps this could turn on whether the particular judge believes that the absolute priority rule applies in individual Chapter 11 cases.
Rule 7001(1) states "a proceeding to recovery money or property..." and has exceptions for actions under code sections 554(b) and 725. Recovery is presumably to the estate.
If a debtor prevails in a 522(f) motion to avoid the execution lien created by thejudgment creditor'slevy and the trustee doesn't object to the debtor's exemption of the property held by the Sheriff, thenperhaps Rule 7001(1) doesn't apply because the debtor is essentially recoverying abandoned funds [554(b)] or disposing of property in which an entity other than the estate (the debtor) has an interest [725].
I have a pro bono Chapter 7 client with levied funds and would like to avoid the costs associated with an adversary proceeding...
Thanks,
Peter
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
________________________________
To: cdcbaa@yahoogroups.com
Sent: Saturday, February 9, 2013 9:11 AM
Subject: Re: [cdcbaa] 522(f) and Turnover of levied funds BR
When, in an 11, I needed turnover of property of the estate, which was levied pre petition by the sheriff, I was pretty sure I needed an adversary. critical to the business. Then the adversary went away. Judge Kaufman.
I don't know why the part of FRBP 7001 that applied there is any different if it is exempt property.
Jason
Jason Wallach
Gladstone Michel Weisberg Willner & Sloane, ALC
4551 Glencoe Avenue, Suite 300
Marina del Rey CA 90292
(310) 821-9000
http://www.gladstonemichel.com/
jwallach@gladstonemichel.com
On Feb 8, 2013, at 6:09 PM, Yahoo wrote:
I'm reasonably confident that a motion is sufficient where turnover is intended to accomplish the release to the debtor of exempt funds held by a party (sherif) rather than an attempt to take finds from a party claiming a possessory interest, in which case an adversary proceeding would typically be required. I am not sure all judges agree.
Sent from my iPhone
On Feb 8, 2013, at 5:09 PM, Holly Roark wrote:
>Sorry to hijack this thread but I have the same question for BB. Thanks.
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>Holly Roark
>holly@roarklawoffices.com
>http://www.roarklawoffices.com/
>Central District of California
>Consumer Bankruptcy Attorney
>1875 Century Park East, Suite 600
>Los Angeles, CA 90067
>T (310) 553-2600
>F (310) 553-2601
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>On Fri, Feb 8, 2013 at 4:54 PM, Peter M. Lively wrote:
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>>Does anyone have experience before BR with levied funds turnover proceedings? Does he require an adversary or is a motion sufficient?
>>Thanks,
>>Peter
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>>Peter M. Lively, J.D., M.B.A.
>>Law Office of Peter M. Lively * Personal Financial Law Center I
>>11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
>>Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
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The post was migrated from Yahoo.