Central District Consumer Bankruptcy Attorney's Association

Dear Stella,
I forgot about 524(b) - it's been a long day. Pat is right. Your clients are in trouble.
Nick
Nicholas Gebelt, Ph.D., J.D.
Board Certified Bankruptcy Specialist
[Description: cid:image003.jpg@01CC076B.B14D73C0]
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
Web: www.goodbye2debt.com
Blog: www.southerncaliforniabankruptcylawblog.com/
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
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Dear Stella,
Ignore the bankruptcy context for a moment. A requirement that made only 50% of the community property available for a spouse's "separate" debt, would place an undue burden on the creditor to determine which half of the community property belonged to that spouse. After all, if the couple were to divorce, they might have a difficult time deciding which half of the community belonged to which spouse. Thus, outside of bankruptcy, all of the community property - not just 50% - is available to pay one spouse's debt.
Now consider the bankruptcy context of your clients. My reading of 11 U.S.C. 524(a)(3):
A discharge in a case under this title - . . . operates as an injunction against . . . an act, to collect or recover from . . . property of the debtor of the kind specified in section 541(a)(2) of this title that is acquired after the commencement of the case, on account of any allowable community claim . . . in a case concerning the debtor's spouse . . . ;
coupled with the holding in In re Kimmel, 378 B.R. 630, 632 (B.A.P., 9th Cir. 2007):
[T]he community property discharge entered in the case of one spouse forever discharged the entire community from then-existing community claims and . . . after-acquired community property could not later be liable for such a claim, notwithstanding a subsequent judgment against the non-filing spouse in his separate individual capacity;
I conclude that only the husband's separate property is liable for the debt. All of the community property is protected from the depredations of the husband's creditor.
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Board Certified Bankruptcy Specialist
[Description: cid:image003.jpg@01CC076B.B14D73C0]
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
Web: www.goodbye2debt.com
Blog: www.southerncaliforniabankruptcylawblog.com/
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

The post was migrated from Yahoo.