Central District Consumer Bankruptcy Attorney's Association

charset="UTF-8"

The post was migrated from Yahoo.

charset="UTF-8"
I would add the following to Dennis and Caseys spot on remarks.
John, in your case, you have no idea what of the many requirements of ERISA qualification are being litigated in New York. Both the labor code and the tax code have numerous requirements for ERISA qualification. It does not matter. All that matters is whether 541(c)(2) applies. Is it (1) in a trust and (2) is there an antialienation clause are the relevant questions. Antialienation is one type of restriction on the transfer of a beneficial interest). The other common type is a spendthrift clause.
Dennis point about contributions beyond the limit are not found in the bk code. The best way for me to think about the contribution limits is to say that amounts over the contribution limit are not held in trust, and are thus property of the bk estate.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com

The post was migrated from Yahoo.

I just did a code search and my computer did not find the acronym ERISA in the bankruptcy code. I don't recall the case, but the phase "Erisa qualified" was used in a case as a short cut to describe the retirement plans that are exempt.
522(c) reads:
(C) retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986.
The bk code references only the Internal Revenue Code, not the Employee Retirement Income Security Act.
Income is not taxed if it is put into a retirement vehicle in compliance with the Internal Revenue Code. One requirement is that the vehicle not be subject to creditor levy. As a result, Erisa, and the tax code require the plan to have an antialienation clause. Really, why let someone obtain income tax free, if their creditors can take the money? The debtor could put all his income into a retirement and spend it tax free if there were no antialienation requirement.
So, what are we looking for? First a provision that the fund cannot be attached by anyone. i.e. an antialienation clause. Second, the fund must not allow more money to be invested per year, then allowed by the internal revenue code.
I try not to tell clients the amount they can invest per year. I tell them to ask their accountant. But, I do look for an antialientation clause. If there is none, the plan is not exempt.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Dec 31, 2013, at 8:45 AM, wrote:
>
> If it turns out it is not ERISA qualified, will that necessarily mean that it is not exempt from taxation under the IRS code? In other words, will you still be able to exempt under BK code section 522(b)(C)(3)?
>
>

The post was migrated from Yahoo.

Thanks for this and all other answers.
I should have read the entire complaint and motion to dismiss before posting (a violation of the David Tilem rule? but it was 100+ pages of financial district legalese). Price Waterhouse maintains that the plan qualifies; the class action plaintiffs maintain that it does not, but that the court should order a reformation nunc pro tunc that makes it qualify (and puts more money in the plaintiffs' pockets). I think I can use these documents to prove that the plan does qualify under ERISA.
- John D. Faucher
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Tuesday, December 31, 2013 3:47 AM
Subject: Re: [cdcbaa] Proof that retirement plan complies with ERISA
John:
Order a copy of the plan and find the spendthrift provision in the plan. the trustee.
If the trustee wants to hold the case open until the litigation in SDNY is over, the trustee can do that, but the trustee must first object to the exemption, or keep continuing the 341a meeting until the SDNY litigation is over.
There are cases that I file without first reading the pension plan, but there are also some cases that I won't file until I read the plan.
I recommend that all lawyers on this list not opine that a plan is exempt, unless they have read the plan. In some cases, I put into the retainer that I cannot opine that a plan is exempt unless I have read the plan.
For example, a teacher in a public school, no need to get a copy of the plan. An ee (employee) in a small co with its own plan, ee has 100k in the plan, better read the plan.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Dec 30, 2013, at 1:17 PM, John Faucher wrote:
>Right.
>And the question is whether this plan is ERISA-qualified; who determines that? Price Waterhouse says it is qualified. Is that enough for a trustee? Or does the trustee get to wait until the end of the litigation to determine whether it is, in fact, ERISA-qualified? Do I have the burden of proving compliance, which may be hard to do with major litigation on this question going on at the other end of the country? Or does the trustee have the burden of showing it's not qualified once I claim it is qualified?
>- John D. Faucher
>818/889-8080
>
>
>
>________________________________
>To: cdcbaa@yahoogroups.com
>Sent: Monday, December 30, 2013 12:44 PM
>Subject: Re: [cdcbaa] Proof that retirement plan complies with ERISA
>
>
>
>
>ERISA qualified with the typical spendthrift provision means it is not property of the estate. If debtor(s)chose 704 exemptions and it's a privateretirement plan (as defined by that statute) it will beeld and controlled or in the process of distribution are exempt. 704.115(b).
>
>
>Law Office of Eric Alan Mitnick
>21515 Hawthorne Boulevard, Ste. 1080
>Torrance, California 90503
>(310) 792-5864; 792-5866 (fax)
>MitnickLaw@aol.com
>
>Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
>
>The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
>
>
>-----Original Message-----
>To: cdcbaa
>Sent: Mon, Dec 30, 2013 12:19 pm
>Subject: [cdcbaa] Proof that retirement plan complies with ERISA
>
>
>
>Hello listers:
>My client has funds in a Price Waterhouse "Retirement Benefit Accumulation Plan." The trustee asks for proof that this plan complies with ERISA.
>It turns out that this plan is the subject of a class action by its beneficiaries seeking to overturn its ERISA status (why they want to do this is as yet unclear to me). It has been in litigation for the last eight years in the SDNY, and most recently, the employees survived a motion to dismiss the complaint.
>Given this scenario, is it likely that the trustee will agree that it complies with ERISA until the plaintiffs in NY win, or will the trustee claim that the plan does not comply with ERISA and therefore is nonexempt?
>- John D. Faucher
>
>

The post was migrated from Yahoo.

John:
Order a copy of the plan and find the spendthrift provision in the plan. Underline the spendthrift provision. Send the red lined copy to the trustee.
If the trustee wants to hold the case open until the litigation in SDNY is over, the trustee can do that, but the trustee must first object to the exemption, or keep continuing the 341a meeting until the SDNY litigation is over.
There are cases that I file without first reading the pension plan, but there are also some cases that I won't file until I read the plan.
I recommend that all lawyers on this list not opine that a plan is exempt, unless they have read the plan. In some cases, I put into the retainer that I cannot opine that a plan is exempt unless I have read the plan. This usually motivates clients to get me a copy of the plan.
For example, a teacher in a public school, no need to get a copy of the plan. An ee (employee) in a small co with its own plan, ee has 100k in the plan, better read the plan.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Dec 30, 2013, at 1:17 PM, John Faucher wrote:
>
> Right.
> And the question is whether this plan is ERISA-qualified; who determines that? Price Waterhouse says it is qualified. Is that enough for a trustee? Or does the trustee get to wait until the end of the litigation to determine whether it is, in fact, ERISA-qualified? Do I have the burden of proving compliance, which may be hard to do with major litigation on this question going on at the other end of the country? Or does the trustee have the burden of showing it's not qualified once I claim it is qualified?
> - John D. Faucher
> 818/889-8080
>
> To: cdcbaa@yahoogroups.com
> Sent: Monday, December 30, 2013 12:44 PM
> Subject: Re: [cdcbaa] Proof that retirement plan complies with ERISA
>
>
> ERISA qualified with the typical spendthrift provision means it is not property of the estate. If debtor(s) chose 704 exemptions and it's a private retirement plan (as defined by that statute) it will be fully exempt under 704.115(a)(1),(2). Also note that all amounts held and controlled or in the process of distribution are exempt. 704.115(b).
>
> Law Office of Eric Alan Mitnick
> 21515 Hawthorne Boulevard, Ste. 1080
> Torrance, California 90503
> (310) 792-5864; 792-5866 (fax)
> MitnickLaw@aol.com
>
> Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
>
> The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
>
>
> -----Original Message-----
> To: cdcbaa
> Sent: Mon, Dec 30, 2013 12:19 pm
> Subject: [cdcbaa] Proof that retirement plan complies with ERISA
>
>
> Hello listers:
> My client has funds in a Price Waterhouse "Retirement Benefit Accumulation Plan." The trustee asks for proof that this plan complies with ERISA. > It turns out that this plan is the subject of a class action by its beneficiaries seeking to overturn its ERISA status (why they want to do this is as yet unclear to me). It has been in litigation for the last eight years in the SDNY, and most recently, the employees survived a motion to dismiss the complaint.
> Given this scenario, is it likely that the trustee will agree that it complies with ERISA until the plaintiffs in NY win, or will the trustee claim that the plan does not comply with ERISA and therefore is nonexempt?
> - John D. Faucher
>
>
>

The post was migrated from Yahoo.

John:
You make the prima facie case, based on Price Waterhouse opinion. Trustee must rebut.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green
1010 E. Union St. Ste. 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com

The post was migrated from Yahoo.

Right.
And the question is whether this plan is ERISA-qualified; who determines that? Price Waterhouse says it is qualified. Is that enough for a trustee? Or does the trustee get to wait until the end of the litigation to determine whether it is, in fact, ERISA-qualified? Do I have the burden of proving compliance, which may be hard to do with major litigation on this question going on at the other end of the country? Or does the trustee have the burden of showing it's not qualified once I claim it is qualified?
- John D. Faucher
818/889-8080
________________________________
To: cdcbaa@yahoogroups.com
Sent: Monday, December 30, 2013 12:44 PM
Subject: Re: [cdcbaa] Proof that retirement plan complies with ERISA
ERISA qualified with the typical spendthrift provision means it is not property of the estate. If debtor(s)chose 704 exemptions and it's a privateretirement plan (as defined by that statute) it will befully exempt under 704.115(a)(1),(2). Also note that all amounts held and controlled or in the process of distribution are exempt. 704.115(b).
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: cdcbaa
Sent: Mon, Dec 30, 2013 12:19 pm
Subject: [cdcbaa] Proof that retirement plan complies with ERISA
Hello listers:
My client has funds in a Price Waterhouse "Retirement Benefit Accumulation Plan." The trustee asks for proof that this plan complies with ERISA.
It turns out that this plan is the subject of a class action by its beneficiaries seeking to overturn its ERISA status (why they want to do this is as yet unclear to me). It has been in litigation for the last eight years in the SDNY, and most recently, the employees survived a motion to dismiss the complaint.
Given this scenario, is it likely that the trustee will agree that it complies with ERISA until the plaintiffs in NY win, or will the trustee claim that the plan does not comply with ERISA and therefore is nonexempt?
- John D. Faucher

The post was migrated from Yahoo.

ERISA qualified with the typical spendthrift provision means it is not property of the estate. If debtor(s) chose 704 exemptions and it's a private retirement plan (as defined by that statute) it will be fully exempt under 704.115(a)(1),(2). Also note that all amounts held and controlled or in the process of distribution are exempt. 704.115(b).
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
To: cdcbaa
Sent: Mon, Dec 30, 2013 12:19 pm
Subject: [cdcbaa] Proof that retirement plan complies with ERISA
Hello listers:
My client has funds in a Price Waterhouse "Retirement Benefit Accumulation Plan." The trustee asks for proof that this plan complies with ERISA.
It turns out that this plan is the subject of a class action by its beneficiaries seeking to overturn its ERISA status (why they want to do this is as yet unclear to me). It has been in litigation for the last eight years in the SDNY, and most recently, the employees survived a motion to dismiss the complaint.
Given this scenario, is it likely that the trustee will agree that it complies with ERISA until the plaintiffs in NY win, or will the trustee claim that the plan does not comply with ERISA and therefore is nonexempt?
- John D. Faucher
ERISA qualified with the typical spendthrift provision means it is not property of the estate. If debtor(s) chose 704 exemptions and it's a private retirement plan (as defined by that statute) it will be fully exempt under 704.115(a)(1),(2). Also note that all amounts held and controlled or in the process of distribution are exempt. 704.115(b).
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, California 90503
(310) 792-5864; 792-5866 (fax)
MitnickLaw@aol.com

Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.

The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
.AOLWebSuite .AOLPicturesFullSizeLink { height: 1px; width: 1px; overflow: hidden; } .AOLWebSuite a {color:blue; text-decoration: underline; cursor: pointer} .AOLWebSuite a.hsSig {cursor: default}
To: cdcbaa <cdcbaa@yahoogroups.com>
Sent: Mon, Dec 30, 2013 12:19 pm
Subject: [cdcbaa] Proof that retirement plan complies with ERISA

The post was migrated from Yahoo.

Hello listers:
My client has funds in a Price Waterhouse "Retirement Benefit Accumulation Plan." The trustee asks for proof that this plan complies with ERISA. It turns out that this plan is the subject of a class action by its beneficiaries seeking to overturn its ERISA status (why they want to do this is as yet unclear to me). It has been in litigation for the last eight years in the SDNY, and most recently, the employees survived a motion to dismiss the complaint.
Given this scenario, is it likely that the trustee will agree that it complies with ERISA until the plaintiffs in NY win, or will the trustee claim that the plan does not comply with ERISA and therefore is nonexempt?
- John D. Faucher

The post was migrated from Yahoo.