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nonfiling spouse
Pat:
524(a)(3) is a community property discharge. An interest in community property at the outset of the case is a property interest of the debtor. (a)(2) prohibits collection against the debtor's interest, so prepetition cp is protected by (a)(2) and postpetition cp is protected by (a)(3)
I would not read personal liability that thinly. If you take my community property for something my wife did, I would take it personally.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Jul 31, 2014, at 4:01 PM, "'Patrick T. Green' pat@fitzgreenlaw.com [cdcbaa]" wrote:
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> I think apples and oranges are being mixed in this discussion, so I want to weigh in with what I hope will clarify some issues.
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> 1. As I have said many times before, beware of the term community debt. Use of it will screw up the analysis every time. In divorce there is such a concept. In bk we have community claims, but that is not community debt. A community claim means a claim for which the community property of the debtor(s) can be applied. As always this addresses the important distinction is between personal liability and the liability of property. CA Fam Code 910. The community property is liable for the debts of either spouse incurred before or during the marriage.
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> a. 524(a) addresses this distinction: 524(a)(2) addresses personal liability and 524(a)(3) addresses liability of community property.
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> 2. Implicit in 910 is the notion that spouses have an undivided one-half interest in community property. This is confirmed in the Estate of Wilson, 183 Cal.App.3d 67, 227 Cal.Rptr. 794, 798 (1986), which states "[e]ach spouse has a vested undivided one-half interest in the community property." See also Cal. Fam.Code 751. "[t]he respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing, and equal interests".
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> 3. Therefore, when one spouse has a debt for which the community property is liable, there is no only his, but not hers or vice versa, from which the creditor can collect. They get a shot at all the community property.
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> 4. Also there is no community property discharge. Debts are discharged or they are not. Sections 523, 727, 1141, 1128 and 1328 say nothing about community property. The discharge injunction in 524(a)(3) is where the magic is, but it only applies to community property pted from discharge under 523, 1228(a)(1) or 1328(a)(1). This raises the question of whether the community property that existed on the date of filing is protected. The specific language of 524(a)(3) only addresses after acquired community property. Of course this does not matter for the filing spouse, as their debts were discharged, so they have no creditors to worry about as to those discharged debts. But what about the evil nonfiling spouse. The debts for which they are personally liable were not discharged in Snow Whites bk. Can their creditors go after preexisting community property? As the masthead on one of Americas flagship newspapers says enquiring minds want to know?
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> If you have any questions or concerns, please contact me.
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> Pat
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> Patrick T. Green
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> Attorney at Law
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> Fitzgerald & Green
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> 1010 E. Union St. Ste. 206
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> Pasadena, CA 91106
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> Tel: 626-449-8433
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> Fax: 626-449-0565
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> pat@fitzgreenlaw.com
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> Sent: Thursday, July 31, 2014 9:48 AM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Re: nonfiling spouse
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> The creditors can pursue the non-filing spouse's separate property. Community debts are discharged whether incurred by the filing or non-filing spouse.
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> Stella
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> -----Original Message-----
> Sent: Jul 31, 2014 8:39 AM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Re: nonfiling spouse
>
> Dennis - can you elaborate on "nonfiling spouse getting community property discharge"? I always understood this to mean that the nonfiling spouse's community property is not liable to pay (1) the filing spouse's debt, and (2) the joint debt of the filing and nonfiling spouses. But can't the nonfiling spouse's own creditors pursue their collection rights against the separate or community property of the nonfiling spouse for debts incurred solely by the nonfiling spouse? (BTW my spell checker is having a nervous breakdown due to the absence of hyphens).
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On Jul 31, 2014, at 4:01 PM, "'Patrick T. Green' pat@fitzgreenlaw.com [cdcbaa]" <cdcbaa@yahoogroups.com> wrote:
As I have said many times before, beware of the term community debt. Use of it will screw up the analysis every time. In divorce there is such a concept. In bk we have community claims, but that is not community debt. A community claim means a claim for which the community property of the debtor(s) can be applied. As always this addresses the important distinction is between personal liability and the liability of property. CA Fam Code 910. The community property is liable for the debts of either spouse incurred before or during the marriage. 524(a) addresses this distinction: 524(a)(2) addresses personal liability and 524(a)(3) addresses liability of community property. 2. Implicit in 910 is the notion that spouses have an undivided one-half interest in community property. This is confirmed in the Estate of Wilson, 183 Cal.App.3d 67, 227 Cal.Rptr. 794, 798 (1986), which states "[e]ach spouse has a vested undivided one-half interest in the community property." See also Cal. Fam.Code 751. "[t]he respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing, and equal interests". 3. Therefore, when one spouse has a debt for which the community property is liable, there is no itor can collect. They get a shot at all the community property. 4. Also there is no community property discharge. Debts are discharged or they are not. Sections 523, 727, 1141, 1128 and 1328 say nothing about community property. The discharge injunction in 524(a)(3) is where the magic is, but it only applies to community property that is acquired after the commencement of the case). This raises the question of whether the community property that existed on the date of filing is protected. The specific language of 524(a)(3) only addresses after acquired community property. Of course this does not matter for the filing spouse, as their debts were discharged, so they have no creditors to worry about as to those discharged debts. But what about the evil nonfiling spouse. The debts for which they are personally liable were not discharged in Snow Whites bk. Can their creditors go after preexisting community property? As the masthead on one of Americas flagship newspapers says enquiring minds want to know? If you have any questions or concerns, please contact me. Pat From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] Sent: Thursday, July 31, 2014 9:48 AMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa] Re: nonfiling spouse The creditors can pursue the non-filing spouse's separate property. Community debts are discharged whether incurred by the filing or non-filing spouse. Stellasam@southbaybk.com [cdcbaa]" Sent: Jul 31, 2014 8:39 AM To: cdcbaa@yahoogroups.com Subject: Re: [cdcbaa] Re: nonfiling spouse Dennis - can you elaborate on "nonfiling spouse getting community property discharge"? I always understood this to mean that the nonfiling spouse's community property is not liable to pay (1) the filing spouse's debt, and (2) the joint debt of the filing and nonfiling spouses. But can't the nonfiling spouse's own creditors pursue their collection rights against the separate or community property of the nonfiling spouse for debts incurred solely by the nonfiling spouse? (BTW my spell checker is having a nervous breakdown due to the absence of hyphens).
The post was migrated from Yahoo.
I think apples and oranges are being mixed in this discussion, so I want to weigh in with what I hope will clarify some issues.
1. As I have said many times before, beware of the term community debt. Use of it will screw up the analysis every time. In divorce there is such a concept. In bk we have community claims, but that is not community debt. A community claim means a claim for which the community property of the debtor(s) can be applied. As always this addresses the important distinction is between personal liability and the liability of property. CA Fam Code e incurred before or during the marriage.
a. 524(a) addresses this distinction: 524(a)(2) addresses personal liability and 524(a)(3) addresses liability of community property.
2. Implicit in 910 is the notion that spouses have an undivided one-half interest in community property. This is confirmed in the Estate of Wilson, 183 Cal.App.3d 67, 227 Cal.Rptr. 794, 798 (1986), which states "[e]ach spouse has a vested undivided one-half interest in the community property." See also Cal. Fam.Code 751. "[t]he respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing, and equal interests".
3. Therefore, when one spouse has a debt for which the community property is liable, there is no only his, but not hers or vice versa, from which the creditor can collect. They get a shot at all the community property.
4. Also there is no community property discharge. Debts are discharged or they are not. Sections 523, 727, 1141, 1128 and 1328 say nothing about community property. The discharge injunction in 524(a)(3) is where the magic is, but it only applies to community property that is acquired after the commencement of the case unless excepted from discharge under 523, 1228(a)(1) or 1328(a)(1). This raises the question of whether the community property that existed on the date of filing is protected. The specific language of 524(a)(3) only addresses after acquired community property. Of course this does not matter for the filing spouse, as their debts were discharged, so they have no creditors to worry about as to those discharged debts. But what about the evil nonfiling spouse. The debts for which they are personally liable were not discharged in Snow Whites bk. Can their creditors go after preexisting community property? As the masthead on one of Americas flagship newspapers says enquiring minds want to know?
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.
The creditors can pursue the non-filing spouse's separate property. Community debts are discharged whether incurred by the filing or non-filing spouse.
Stella
-----OrigPS.COM>Sent: Jul 31, 2014 8:39 AM To: cdcbaa@yahoogroups.com Subject: Re: [cdcbaa] Re: nonfiling spouse Dennis - can you elaborate on "nonfiling spouse getting community property discharge"? I always understood this to mean that the nonfiling spouse's community property is not liable to pay (1) the filing spouse's debt, and (2) the joint debt of the filing and nonfiling spouses. But can't the nonfiling spouse's own creditors pursue their collection rights against the separate or community property of the nonfiling spouse for debts incurred solely by the nonfiling spouse? (BTW my spell checker is having a nervous breakdown due to the absence of hyphens).
The post was migrated from Yahoo.
Kimmel applies, last sentence of prior post is incorrect. Nonfiling spouse gets community property discharge.
"Non" is a prefix, and must be affixed.
Keep in mind we don't file cases for devils, we file their spouses. It is in nonfiling spouses interest to cooperate.
D
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Jul 30, 2014, at 12:53 PM, "sam@southbaybk.com [cdcbaa]" wrote:
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> I file individual spouses all of the time - I mean literally hundreds of cases over the years. No problems - the trustees just ask: "did you list all of your spouses income and assets". As long as the answer is yes, the case is good to go. And as I said, I usually don't worry about the non-filer's individual debt. It is discharged as to the filer in a no-asset case, and, as far as I know, it is not discharged as to the non-filer.
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The post was migrated from Yahoo.