Central District Consumer Bankruptcy Attorney's Association

Great results - however, the discharge under 1328 was severely limited
after BAPCPA so the "super"
discharge is not that super anymore.
1328 (a)Subject to subsection (d), as soon as practicable after completionby the debtor of all payments under the plan, and in the case of a debtorwho is required by a judicial or administrative order, or by statute, to
pay a domestic support obligation, after such debtor certifies that all
amounts payable under such order or such statute that are due on or before the
date of the certification (including amounts due before the petition was
filed, but only to the extent provided for by the plan) have been paid, unless
the court approves a written waiver of discharge executed by the debtor
after the order for relief under this chapter, the court shall grant the
debtor a discharge of all debts provided for by the plan or disallowed under
_section 502 of this title_ (https://www.law.cornell.edu/uscode/text/11/502)
, except any debt
(1)
provided for under section 1322(b)(5);
(2)
of the kind specified in section 507(a)(8)(C) or in paragraph (1)(B),
(1)(C), (2), (3), (4), (5), (8), or (9) of section 523(a);
(3)
for restitution, or a criminal fine, included in a sentence on the debtors conviction of a crime; or
(4)
for restitution, or damages, awarded in a civil action against the debtoras a result of willful or malicious injury by the debtor that caused
personal injury to an individual or the death of an individual.
Very truly yours,
Shai Oved
The Law Offices of Shai Oved
7445 Topanga Cyn. Blvd., Suite 220
_Canoga Park, California 91303_ (x-apple-data-detectors://0/0)
Tel: _(818) 992-6588_ (tel:(818)%20992-6588)
Fax: _(818) 992-6511_ (tel:(818)%20992-6511)
Email: ssoesq@aol.com
_www.shaioved.com_ (http://www.shaioved.com/)
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In a message dated 11/25/2016 8:26:54 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Jonathan,
I agree with everything that has been said. I have never worked in
criminal defense law, but I've had a couple shaky clients where I learned things
after beginning my representation that would have led me not to take the
case if I had known earlier.
Because I had already been paid and didn't want to immediately make a
refund to the debtor(s), I did a couple things to try and protect myself and
also to help the client.
First, I made it clear to the client that I would not sign the bankruptcy petition or any other document filed with the court that I did not believeto be accurate and truthful. If I doubted the amounts listed for bank accounts then I would need to see the statements for confirmation. If thedebtor stated the statements were not available, then that would need to be
mentioned on the petition. [I also have all prospective clients sign thatthey have received certain disclosures, attached, on our first meeting.]
Second, I explained to the client that his statements made in the petitionand at the meeting of creditors are made under penalty of perjury and thatthere are serious consequences for making false statements. I think I
repeated the information on the wall signs at every 341 meeting.
Third, I explained that a bankruptcy trustee has the power and the duty toinvestigate the debtor's financial affairs and assets, and that if the
debtor is not truthful it is highly likely the trustee will find out.
Finally, I would explain the difference between the discharges obtained ina chapters 7 case versus a chapter 13 full compliance case - see Section 523(a). A chapter 13 full compliance -1328(a) discharge is much more
extensive and can discharge a debtor's liability for money obtained by fraudulent
means and false pretenses. A chapter 13 case is easier to dismiss, as
well, if that becomes desirable (though a chapter 13 trustee may object todismissal if there are clear signs that the petition was filed to defraudcreditors, and limited other reasons). I've also given such clients a brief
understanding of "taking the fifth" and recommended that they have a criminal
defense attorney on speed dial if they intend to commit perjury. [and a
clear statement in my fee agreement as to the scope of my services, which do
not include criminal defense]
In two such cases I handled, the bankruptcy went through without too much hassle. In one there was an adversary proceeding by a creditor, but not by
the trustee. The adversary was dismissed shortly after the debtor
answered. In the other, the creditor requested and held an extensive 2004Examination, but did not timely file an adversary proceeding, and the discharge
was granted.
In one other case, I calculated my lodestar and refunded to the debtor thebalance of what I was paid. I did this even though my fee was stated as
"nonrefundable".
All three of the cases mentioned were in the Central District of
California.
Kindest regards,
Link Schrader
On Wed, Nov 23, 2016 at 12:20 PM, Larry Simons larry@lsimonslaw.com
[cdcbaa] wrote:
To piggy back on Pats comments, I always advise my clients and other
attorneys that a debtor will never lose his/her discharge for over disclosure.
In my little universe, the twin pillars of disclosure and cooperation
are the keys to having a case go smoothly.
Sent: Wednesday, November 23, 2016 10:00 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Input/Tips Sought - Chapter 7 with Potential 523 Issues
Jonathon:
You have two options here: listen to the collective wisdom and avoid big trouble or learn the same lesson the hard way by representing this client.I want to add that the number of red flags in this case is scary. One failure to disclose is all that is reasonable and even that may be too much.
An innocent oversight that is immediately corrected might be a reason to
keep a client who has failed to disclose something. Continued attempts towithhold information are a clear signal that the client is dishonest and is
trying to job the system. Always begin your representation with emphasizing
the need to disclose, disclose, disclose. Read the clients expression
and listen to their words in reaction to that admonition. That is your first
test of your client's veracity. If they look down, if they look away, ifthey tighten their lips while you are emphasizing the importance of
disclosure, you know that you have a liar on your hands.& Run, don't walk,
away from the client, they will take you under with them.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green, Attorneys at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: _(626) 449-8433_ (tel:(626)%20449-8433)
Fax: _(626) 449-0565_ (tel:(626)%20449-0565)
pat@fitzgreenlaw.com
Sent: Tuesday, November 22, 2016 8:03 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Input/Tips Sought - Chapter 7 with Potential 523 Issues
If the client refuses to cooperate with you by fully disclosing bank
statements and financial history - fire the client. You put your reputation on
the line when you file a case Doing so without bank statements to back upthe client's representations invites trouble. Plus the client will alwayspoint the finger of blame at you the second anything goes wrong!
Sent from my iPhone
On Nov 22, 2016, at 10:45 AM, 'Jonathan Vaknin' jonathan@voklaw.com
[cdcbaa] wrote:
Greetings colleagues:
I have a client wanting to file Chapter 7 immediately, against my advice. There is the potential of 523 issues to emerge with respect to a sizeablecash advance taken out in the recent past from a credit union credit cardaccount. It took some digging for me to have my client divulge that he took
out around $8,000.00 - $10,000.00 days before he retained us in early
October.
In addition to that, while trying to prepare schedules, the client has
been inconsistent with providing me bank account balances. I was providedfigures from $2,000.00 to the $8,000.00 to $10,000.00 range. I was laterinformed that the monies derived from the proceeds of the cash advance
mentioned above. The client is consequently unwilling to provide me with bank
statements. I naturally have concerns that there may be more monies sitting in
his account than he is disclosing.
This clients level of resistance to be cooperative coupled with his
willingness to act against my advice is very concerning. I advised the client
of the potential for causes of action by his creditor(s) to except the cash
advance and any other recently acquired debts from discharge. I
recommended that he make a couple of months of payments to these creditors before
filing for Chapter 7. The advice is unfortunately not being given seriousconsideration.
Im curious to see how my fellow colleagues in the community would deal
with this type of situation.
Thank you,
Jonathan N. Vaknin, Esq.
Associate Attorney
_213-986-4323 x104_ (tel:213-986-4323%20x100) (direct) | _310-881-6996_(tel:310-881-6996) (fax)
jonathan@voklaw.com (email) | _www.VokLaw.com_ (http://www.voklaw.com/) (website)
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