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Inheritance received

Posted: Sat Nov 16, 2013 10:24 am
by Yahoo Bot

Thanks Shannon. I just read the case and it IS great. It took me back to my Wills and Trusts class. I will admit I had to read the case 4 times before I started to understand it but it is a very good review.

The post was migrated from Yahoo.

Inheritance received

Posted: Fri Nov 15, 2013 11:19 am
by Yahoo Bot

Hi John I happen to be researching this issue and I found a great case.
See In re Cook, BAP No. CC-08-1091-HMoD (B.A.P. 9TH Cir 11/3/2008). This
case provides a good explanation of California trust law and when a trust
is excluded from the estate.
Shannon A. Doyle
Attorney at Law
[image: small logo]
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791-1600
Tel: (626) 646-2555
Fax: (626) 332-8644
www.blclaw.com
*From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
Of *R Grace Rodriguez
*Sent:* Tuesday, November 05, 2013 7:58 AM
*To:* cdcbaa@yahoogroups.com
*Subject:* Re: [cdcbaa] Inheritance received
Hi John:
It is your client's duty to inform the Trustee. If they fail to tell the
trustee about the inheritance. There are serious consequences for not
reporting it. As a good attorney if they are not your client (like Mr.
Lever references) you may not owe a legal duty to report it to the Trustee.
In fact, protecting attorney client privilege means you don't go to the
trustee at all. But from a moral standpoint..... I would see my duty to
inform the client of their duty, and their potential downside if Trustee
finds out about it. Then the onus is on them to decide what is the right
thing to do.
Perhaps the way to do this is to do a motion to reopen immediately and
convert to chapter 13. This way the clients have the ability to do a 100%
plan to pay unsecured creditors. They can cross their fingers and hope
most creditors who got discharged in the 7 have already thrown away their
files and don't file claims.
That would be my recommendation.
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not accept notice for *Ex
Parte* Applications via voicemail or by email. You must comply with
California Law and give notice to a person in my office during regular
business hours.
CONFIDENTIALITY STATEMENT: This message contains privileged and
confidential information and is intended only for the individual named. If
you are not the intended recipient you should not disseminate, distribute,
store, print, copy or deliver this message. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system.
On Mon, Nov 4, 2013 at 4:48 PM, John D. Faucher
wrote:
Hello listers:
I'm curious how the trustee gets to an inheritance.
Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed
10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a
sizeable inheritance that will probably pay all unsecured debt.
Do I have a duty to contact the trustee regarding this inheritance? I'm
thinking I must. Where is that articulated?
Or do we leave the trustee to his own devices to figure out that there is
an inheritance? That somehow seems unlikely.
*John D. Faucher *
*Faucher & Associates*
*818/889-8080 *

The post was migrated from Yahoo.

Inheritance received

Posted: Tue Nov 05, 2013 7:58 am
by Yahoo Bot

Hi John:
It is your client's duty to inform the Trustee. If they fail to tell the
trustee about the inheritance. There are serious consequences for not
reporting it. As a good attorney if they are not your client (like Mr.
Lever references) you may not owe a legal duty to report it to the Trustee.
In fact, protecting attorney client privilege means you don't go to the
trustee at all. But from a moral standpoint..... I would see my duty to
inform the client of their duty, and their potential downside if Trustee
finds out about it. Then the onus is on them to decide what is the right
thing to do.
Perhaps the way to do this is to do a motion to reopen immediately and
convert to chapter 13. This way the clients have the ability to do a 100%
plan to pay unsecured creditors. They can cross their fingers and hope
most creditors who got discharged in the 7 have already thrown away their
files and don't file claims.
That would be my recommendation.
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not accept notice for *Ex
Parte* Applications via voicemail or by email. You must comply with
California Law and give notice to a person in my office during regular
business hours.
CONFIDENTIALITY STATEMENT: This message contains privileged and
confidential information and is intended only for the individual named. If
you are not the intended recipient you should not disseminate, distribute,
store, print, copy or deliver this message. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system.
On Mon, Nov 4, 2013 at 4:48 PM, John D. Faucher
wrote:
>
>
> Hello listers:
> I'm curious how the trustee gets to an inheritance.
> Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed
> 10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a
> sizeable inheritance that will probably pay all unsecured debt.
> Do I have a duty to contact the trustee regarding this inheritance? I'm
> thinking I must. Where is that articulated?
> Or do we leave the trustee to his own devices to figure out that there is
> an inheritance? That somehow seems unlikely.
>
>
> John D. Faucher
> Faucher & Associates
> *818/889-8080 *
>
>
>
Hi John:
It is your client's duty to inform the Trustee. If they fail to tell the trustee about the inheritance. There are serious consequences for not reporting it. As a good attorney if they are not your client (like Mr. Lever references) you may not owe a legal duty to report it to the Trustee. In fact, protecting attorney client privilege means you don't go to the trustee at all. But from a moral standpoint..... I would see my duty to inform the client of their duty, and their potential downside if Trustee finds out about it. Then the onus is on them to decide what is the right thing to do.
Perhaps the way to do this is to do a motion to reopen immediately and convert to chapter 13. This way the clients have the ability to do a 100% plan to pay unsecured creditors. They can cross their fingers and hope most creditors who got discharged in the 7 have already thrown away their files and don't file claims.
That would be my recommendation.
R. Grace Rodriguez, Esq.OFF: (818) 734-7223CEL: (818) 554-9922
NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not acceptnotice for Ex Parte Applications via voicemail or by email. You must comply with California Law and give notice to a person in my office during regular business hours.
CONFIDENTIALITY STATEMENT: This message contains privileged and confidential information and is intended only for the individual named. If you are not the intended recipient you should not disseminate, distribute, store, print, copy or deliver this message. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system.
On Mon, Nov 4, 2013 at 4:48 PM, John D. Faucher <j.d.faucher@sbcglobal.net> wrote:
Hello listers:
I'm curious how the trustee gets to an inheritance.
Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed 10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a sizeable inheritance that will probably pay all unsecured debt.
Do I have a duty to contact the trustee regarding this inheritance? I'm thinking I must. Where is that articulated?
Or do we leave the trustee to his own devices to figure out that there is an inheritance? That somehow seems unlikely.
John D. FaucherFaucher & Associates
818/889-8080

The post was migrated from Yahoo.

Inheritance received

Posted: Tue Nov 05, 2013 1:41 am
by Yahoo Bot

The attorney's duty is to the client. Learning of inheritance is subject to attorney client privilege. All attorney can do is encourage client to inform trustee. If attorney were to notify court or trustee w/o client permission that is serious ethical breach subject to discipline and malpractice case by debtor.
Mark Jessee
Sent from my iPhone
On Nov 5, 2013, at 12:24 AM, Michael Avanesian wrote:
> A lot of great information here but:
>
> 1. Does John have any duty to disclose this information to the Court?
> 2. It seems like he "knows" that this happened but what if he didn't "know" (but had some feeling)?
> 3. Does he have a duty to make a reasonable inquiry in the 6 month period following the petition date?
> 4. Are trustees supposed to keep cases open for 180 days to make sure there isn't money coming in?
> 5. Is Steven's clause that attorney/client relationship end upon closure of the case protect him? Does it add additional duties for him while the case is open?
>
> I don't do consumer work so I don't deal with this stuff (so pardon me if these are dumb questions) but if we're ever out of ideas for CLEs, I would personally enjoy as many on ethics as possible.
>
>
> Sincerely,
> Michael Avanesian
> Law Offices of David A. Tilem
> www.tilemlaw.com
> 818-507-6000
>
>
> On Mon, Nov 4, 2013 at 5:48 PM, John D. Faucher wrote:
>>
>> Hello Steven:
>> Thanks, that's a helpful clue. Also, since going off half-cocked on this, I was able to find 11 usc 727(d)(2), which allows a trustee to revoke a discharge if the debtor acquires estate property and doesn't deliver or surrender such property to the trustee. So there is a mechanism for requiring a debtor to step up and tell the trustee about the inheritance.
>>
>>
>> John D. Faucher
>> Faucher & Associates
>> 818/889-8080
>>
>>
>> On Mon, Nov 4, 2013 at 4:45 PM, Steven B. Lever wrote:
>>>
>>> Are they still your client, John? Check your retainer. Mine says the attorney/client relationship terminates on the close of case.
>>>
>>>
>>>
>>> Steven B. Lever
>>>
>>>
>>>
Of John D. Faucher
>>> Sent: Monday, November 04, 2013 4:48 PM
>>> To: cdcbaa@yahoogroups.com
>>> Subject: [cdcbaa] Inheritance received
>>>
>>>
>>>
>>>
>>>
>>> Hello listers:
>>>
>>> I'm curious how the trustee gets to an inheritance.
>>>
>>> Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed 10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a sizeable inheritance that will probably pay all unsecured debt.
>>>
>>> Do I have a duty to contact the trustee regarding this inheritance? I'm thinking I must. Where is that articulated?
>>>
>>> Or do we leave the trustee to his own devices to figure out that there is an inheritance? That somehow seems unlikely.
>>>
>>>
>>>
>>>
>>>
>>> John D. Faucher
>>>
>>> Faucher & Associates
>>>
>>> 818/889-8080
>>>
>
>

The post was migrated from Yahoo.

Inheritance received

Posted: Tue Nov 05, 2013 12:24 am
by Yahoo Bot

A lot of great information here but:
1. Does John have any duty to disclose this information to the Court?
2. It seems like he "knows" that this happened but what if he didn't "know"
(but had some feeling)?
3. Does he have a duty to make a reasonable inquiry in the 6 month period
following the petition date?
4. Are trustees supposed to keep cases open for 180 days to make sure there
isn't money coming in?
5. Is Steven's clause that attorney/client relationship end upon closure of
the case protect him? Does it add additional duties for him while the case
is open?
I don't do consumer work so I don't deal with this stuff (so pardon me if
these are dumb questions) but if we're ever out of ideas for CLEs, I would
personally enjoy as many on ethics as possible.
Sincerely,
Michael Avanesian
Law Offices of David A. Tilem
www.tilemlaw.com
818-507-6000
On Mon, Nov 4, 2013 at 5:48 PM, John D. Faucher
wrote:
>
>
> Hello Steven:
> Thanks, that's a helpful clue. Also, since going off half-cocked on this,
> I was able to find 11 usc 727(d)(2), which allows a trustee to revoke a
> discharge if the debtor acquires estate property and doesn't deliver or
> surrender such property to the trustee. So there is a mechanism for
> requiring a debtor to step up and tell the trustee about the inheritance.
>
>
> John D. Faucher
> Faucher & Associates
> *818/889-8080 *
>
>
> On Mon, Nov 4, 2013 at 4:45 PM, Steven B. Lever wrote:
>
>>
>>
>> Are they still your client, John? Check your retainer. Mine says the
>> attorney/client relationship terminates on the close of case.
>>
>>
>>
>> Steven B. Lever
>>
>>
>>
>> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On
>> Behalf Of *John D. Faucher
>> *Sent:* Monday, November 04, 2013 4:48 PM
>> *To:* cdcbaa@yahoogroups.com
>> *Subject:* [cdcbaa] Inheritance received
>>
>>
>>
>>
>>
>> Hello listers:
>>
>> I'm curious how the trustee gets to an inheritance.
>>
>> Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed
>> 10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a
>> sizeable inheritance that will probably pay all unsecured debt.
>>
>> Do I have a duty to contact the trustee regarding this inheritance? I'm
>> thinking I must. Where is that articulated?
>>
>> Or do we leave the trustee to his own devices to figure out that there is
>> an inheritance? That somehow seems unlikely.
>>
>>
>>
>>
>> *John D. Faucher *
>>
>> *Faucher & Associates*
>>
>> *818/889-8080 *
>>
>>
>
>
A lot of great information here but:1. Does John have any duty to disclose this information to the Court?2. It seems like he "knows" that this happened but what if he didn't "know" (but had some feeling)?
3. Does he have a duty to make a reasonable inquiry in the 6 month period following the petition date?4. Are trustees supposed to keep cases open for 180 days to make sure there isn't money coming in?
5. Is Steven's clause that attorney/client relationship end upon closure of the case protect him? Does it add additional duties for him while the case is open?I don't do consumer work so I don't deal with this stuff (so pardon me if these are dumb questions) but if we're ever out of ideas for CLEs, I would personally enjoy as many on ethics as possible.
Sincerely, Michael AvanesianLaw Offices of David A. Tilemwww.tilemlaw.com
818-507-6000
On Mon, Nov 4, 2013 at 5:48 PM, John D. Faucher <j.d.faucher@sbcglobal.net> wrote:

The post was migrated from Yahoo.

Inheritance received

Posted: Mon Nov 04, 2013 6:36 pm
by Yahoo Bot

Mark's point is that if it from a trust, it does not matter if there is
spendthrift clause or not, a trust categorically falls outside 541(a)(5)(A)
because it is not an inheritance, bequest or devise and is thus not part of
the estate. Note that a testamentary trust maybe within the scope of the
statute.

The post was migrated from Yahoo.

Inheritance received

Posted: Mon Nov 04, 2013 5:48 pm
by Yahoo Bot

Hello Steven:
Thanks, that's a helpful clue. Also, since going off half-cocked on this,
I was able to find 11 usc 727(d)(2), which allows a trustee to revoke a
discharge if the debtor acquires estate property and doesn't deliver or
surrender such property to the trustee. So there is a mechanism for
requiring a debtor to step up and tell the trustee about the inheritance.
John D. Faucher
Faucher & Associates
*818/889-8080*
On Mon, Nov 4, 2013 at 4:45 PM, Steven B. Lever wrote:
>
>
> Are they still your client, John? Check your retainer. Mine says the
> attorney/client relationship terminates on the close of case.
>
>
>
> Steven B. Lever
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *John D. Faucher
> *Sent:* Monday, November 04, 2013 4:48 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Inheritance received
>
>
>
>
>
> Hello listers:
>
> I'm curious how the trustee gets to an inheritance.
>
> Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed
> 10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a
> sizeable inheritance that will probably pay all unsecured debt.
>
> Do I have a duty to contact the trustee regarding this inheritance? I'm
> thinking I must. Where is that articulated?
>
> Or do we leave the trustee to his own devices to figure out that there is
> an inheritance? That somehow seems unlikely.
>
>
>
>
> *John D. Faucher *
>
> *Faucher & Associates*
>
> *818/889-8080 *
>
>
>
Hello Steven:Thanks, that's a helpful clue. Also, since going off half-cocked on this, I was able to find 11 usc 727(d)(2), which allows a trustee to revoke a discharge if the debtor acquires estate property and doesn't deliver or surrender such property to the trustee. So there is a mechanism for requiring a debtor to step up and tell the trustee about the inheritance.
John D. Faucher
Faucher & Associates818/889-8080
On Mon, Nov 4, 2013 at 4:45 PM, Steven B. Lever <sblever@leverlaw.com> wrote:
Are they still your client, John? Check your retainer. Mine says the attorney/client relationship terminates on the close of case.
Steven B. Lever
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of John D. Faucher
Sent: Monday, November 04, 2013 4:48 PMTo: cdcbaa@yahoogroups.comSubject: [cdcbaa] Inheritance received

The post was migrated from Yahoo.

Inheritance received

Posted: Mon Nov 04, 2013 5:44 pm
by Yahoo Bot

Unfortunately I have a lot of experience with this issue. Like Mark
Jesse says, it makes all the difference how the brother's estate plan
was written, and whether there is one. If there is a trust, you need to
look at both the spendthrift provision and the distribution provisions
of the trust.
Of course, advise them, even if you're no longer their attorney, of the
duty to disclose the inheritance, but only after you know the above.
I have some good case law from the law partner of a trustee (when he was
Debtor's attorney) keeping the trust out of the estate, that worked when
I had that Trustee.

The post was migrated from Yahoo.

Inheritance received

Posted: Mon Nov 04, 2013 5:32 pm
by Yahoo Bot

It makes all the difference in the world wether the debtor's brother's
estate was left to the brother through the instrument of a trust, which is not
part of the bankruptcy estate under 11 U.S.C Section 541(a)(5)(a) or
through will (or intestate succession) which are part of the bankruptcy estate
under 11 U.S.C Section 541(a)(5)(a). See Matter of Newman 903 F.2d 1150
(7th Cir. 1990) See also the Rutter Bankruptcy Practice Guide.
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 11/4/2013 4:48:11 P.M. Pacific Standard Time,
j.d.faucher@sbcglobal.net writes:
Hello listers:
I'm curious how the trustee gets to an inheritance.
Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with asizeable inheritance that will probably pay all unsecured debt.
Do I have a duty to contact the trustee regarding this inheritance? I'm thinking I must. Where is that articulated?
Or do we leave the trustee to his own devices to figure out that there isan inheritance? That somehow seems unlikely.
John D. Faucher
Faucher & Associates
818/889-8080
It makes all the difference in the world wether the debtor's brother'sestate was left to the brother through the instrument of a trust, which is not
part of the bankruptcy estate under 11 U.S.C Section 541(a)(5)(a) or through
will (or intestate succession) which are part of the bankruptcy estateunder 11 U.S.C Section 541(a)(5)(a). See Matter of Newman 903 F.2d
1150 (7th Cir. 1990) See also the Rutter Bankruptcy Practice Guide.

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 11/4/2013 4:48:11 P.M. Pacific Standard Time,
j.d.faucher@sbcglobal.net writes:




Hello
listers:
I'm
curious how the trustee gets to an inheritance.
Facts:
petition filed 6/8/2013, discharge entered 10/15/2013, case closed 10/21/2013.
Debtor's brother keels over 10/28/2013, leaving debtors with a sizeable
inheritance that will probably pay all unsecured debt.
Do I
have a duty to contact the trustee regarding this inheritance? I'm thinking I must. Where is that articulated?
Or do we
leave the trustee to his own devices to figure out that there is an
inheritance? That somehow seems unlikely.


John
D. Faucher
Faucher & Associates
818/889-8080

The post was migrated from Yahoo.

Inheritance received

Posted: Mon Nov 04, 2013 4:48 pm
by Yahoo Bot

Hello listers:
I'm curious how the trustee gets to an inheritance.
Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed
10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a
sizeable inheritance that will probably pay all unsecured debt.
Do I have a duty to contact the trustee regarding this inheritance? I'm
thinking I must. Where is that articulated?
Or do we leave the trustee to his own devices to figure out that there is
an inheritance? That somehow seems unlikely.
John D. Faucher
Faucher & Associates
*818/889-8080*
Hello listers:I'm curious how the trustee gets to an inheritance.
Facts: petition filed 6/8/2013, discharge entered 10/15/2013, case closed 10/21/2013. Debtor's brother keels over 10/28/2013, leaving debtors with a sizeable inheritance that will probably pay all unsecured debt.
Do I have a duty to contact the trustee regarding this inheritance? I'm thinking I must. Where is that articulated?
Or do we leave the trustee to his own devices to figure out that there is an inheritance? That somehow seems unlikely.
John D. FaucherFaucher & Associates
818/889-8080

The post was migrated from Yahoo.