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Preference action before RN
I'll leave the rest up to you. I think your argument has merit,
particularly if you don't meet much resistance. Here are two California
cases on the subject:
Helps your argument:
In re Carlsen, 63 BR 706 - Bankr. Court, CD California 1986.
Hurts your argument:
In re Momentum Computer Systems Intern., 66 BR 512 - Dist. Court, ND
California 1986.
I feel like there is a case that I missed which will straighten this issue
up but only so much I can do on my free time!
At a recent CLE, one of the panelists said he will file a preference action
if he can make a prima facie showing of a preference -- even if he is
fairly certain the action will fail. Why? First of all, it's not improper
to do so because the burden is on the defense if he can make his showing,
second, he is able to obtain settlements that are beneficial to his client
and third, he has economies of scale on his side, meaning per action, it's
pretty cheap because he is filing 100+ actions at a time. I am not tell you
to take this course but that at least one panelist does.
Sincerely,
Michael Avanesian
On Sat, Sep 20, 2014 at 11:30 AM, sam@southbaybk.com [cdcbaa] wrote:
>
>
> Why can't I do an action under 522(h) and 547 - assuming the trustee does
> not bring it? I don't read 706.029 so broadly as to continue to apply to
> funds in the possession of the creditor. Also there was a prior posting on
> this list by Nick where he filed (and, I believe, recovered) a preference
> for garnished wages under 522(h) by motion in front of RK.
>
>
I'll leave the rest up to you. I think your argument has merit, particularly if you don't meet much resistance. Here are two California cases on the subject:Helps your argument:In re Carlsen, 63 BR 706 - Bankr. Court, CD California 1986.Hurts your argument:In re Momentum Computer Systems Intern., 66 BR 512 - Dist. Court, ND California 1986.I feel like there is a case that I missed which will straighten this issue up but only so much I can do on my free time!At a recent CLE, one of the panelists said he will file a preference action if he can make a prima facie showing of a preference -- even if he is fairly certain the action will fail. Why? First of all, it's not improper to do so because the burden is on the defense if he can make his showing, second, he is able to obtain settlements that are beneficial to his client and third, he has economies of scale on his side, meaning per action, it's pretty cheap because he is filing 100+ actions at a time. I am not tell you to take this course but that at least one panelist does.Sincerely, Michael AvanesianOn Sat, Sep 20, 2014 at 11:30 AM, sam@southbaybk.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The post was migrated from Yahoo.
I agree with Steven that 706.029 gives the creditor a lien and a defense
against preferences. If the sheriff has funds he's holding, the lien can be
avoided with respect to those funds under 522(f), and the sheriff should
release the funds to your client at that point. As an alternative to filing
these papers, you could ask the creditor to release the lien. Asking works
sometimes!!
I also agree with Larry that an adversary would have to be brought if a
preference action is to be made. If the wage garnishment began during the
preference period, then the lien can be avoided, and any money during the
preference period should then be turned over to the debtor/trustee if not
exempted.
I disagree though with Steven that a debtor can file a motion for turnover
to the extent that motion is based on 542. It is my understanding that this
section is exclusively for the use of a trustee/dip.
Sincerely,
Michael Avanesian
On Fri, Sep 19, 2014 at 12:46 PM, 'Steven B. Lever' sblever@leverlaw.com
[cdcbaa] wrote:
>
>
> Does the Debtor have standing to do that? I thought we needed to do a
> 522(f) and Motion for Turnover. Remember the creditor has a lien on those
> funds that has to be avoided.
>
>
>
> Steven B. Lever
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Friday, September 19, 2014 12:14 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Preference action before RN
>
>
>
>
>
> I am considering filing a preference action to recover 3 months of wage
> garnishments for the Debtor (assuming trustee abandons the asset or does
> not object to the claimed exemption). Does anyone know if RN will allow
> such an action to be done by motion?
>
>
>
I agree with Steven that 706.029 gives the creditor a lien and a defense against preferences. If the sheriff has funds he's holding, the lien can be avoided with respect to those funds under 522(f), and the sheriff should release the funds to your client at that point. As an alternative to filing these papers, you could ask the creditor to release the lien. Asking works sometimes!!I also agree with Larry that an adversary would have to be brought if a preference action is to be made. If the wage garnishment began during the preference period, then the lien can be avoided, and any money during the preference period should then be turned over to the debtor/trustee if not exempted.I disagree though with Steven that a debtor can file a motion for turnover to the extent that motion is based on 542. It is my understanding that this section is exclusively for the use of a trustee/dip.Sincerely, Michael AvanesianOn Fri, Sep 19, 2014 at 12:46 PM, 'Steven B. Lever' sblever@leverlaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Does the Debtor have standing to do that? I thought we needed to do a 522(f) and Motion for Turnover. Remember the creditor has a lien on those funds that has to be avoided.I am considering filing a preference action to recover 3 months of wage garnishments for the Debtor (assuming trustee abandons theasset or does not object to the claimed exemption). Does anyone know if RN will allow such an action to be done by motion?
The post was migrated from Yahoo.