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Agreeing to Fraud-- Or an Admission in sale of stream of

Posted: Mon Nov 10, 2014 3:28 pm
by Yahoo Bot

Steve,
It seems to me that this is just an executory contract to be rejected. I would try to frame it that way. Paragraph 4.2 is clearly not enforeceable in the BK courts. You didn't give us the rest of paragraph 4, but 4.3 is just an attempt to convert a breach of contract into a tort claim.
Vernon L. Ellicott, Esq.
Certified Family Law Specialist
California State Bar Board of Legal Specialization
Family Law, Bankruptcy, and Estate Planning
Law Offices of Vernon L. Ellicott
325 E. Hillcrest Drive, Suite 150 23929 Valencia Blvd., Suite 411
Thousand Oaks, CA 91360-7799 Valencia, CA 91355
(805) 446-6262 (661) 222-2922
(805) 446-6264 Fax
This e-mail transmission and any documents, files, or previous e-mail messages attached to it, may contain confidential information from the LAW OFFICES OF VERNON L. ELLICOTT that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you received this transmission in error, please immediately notify us by reply e-mail, or by telephone at (805) 446-6262, and destroy the original transmission and its attachments and all copies of any kind, without reading them or saving them in any way. Thank you.
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The post was migrated from Yahoo.

Agreeing to Fraud-- Or an Admission in sale of stream of

Posted: Mon Nov 10, 2014 3:17 pm
by Yahoo Bot

I agree with you in so far as I think it's fine to file bk solely based on
that contract. Things I don't know about, but which should concern you is
the other parts of the contract.
For example. If lender gave your client money in exchange for an assignment
of stream of payments, how can your client take that assignment back? Is
there state law prohibiting such assignment? If so, can lender put a lien
on the stream of payments? If not, then what actually happened? Did the
lender give your potential client an unsecured loan + promise to pay using
future payments from pension plan?
Sincerely,
Michael Avanesian
On Mon, Nov 10, 2014 at 12:46 PM, 'Steven B. Lever' sblever@leverlaw.com
[cdcbaa] wrote:
>
>
> Hi Michael:
>
>
>
> He hasnt filed bankruptcy hes only contemplating filing with me. It
> would be disclosed of course.
>
>
>
> I dont see how this is enforceable. He let them have it for a year
> before he defaulted and took back his pension payments from CALPERS, and
> only because he had to, he had no other source of funds after trying a
> startup business in Africa that failed.
>
>
>
> Steve
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Monday, November 10, 2014 12:33 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Agreeing to Fraud-- Or an Admission in sale of
> stream of payments from pension
>
>
>
>
>
> This is one of those (rare) times I hesitate to reply because I haven't
> thoroughly investigated this type of situation.
>
>
>
> I would say that it is perjury not to include the obligation in the
> bankruptcy. How can you sign a petition stating you listed all debts when
> you purposefully excluded this one? I also believe the clause is
> unenforceable in bk court.
>
>
>
> I also wouldn't worry about 4.3. If this were a valid clause, every
> contract would contain it. "I acknowledge that I will pay this credit card
> debt, if I don't, I admit that at the time I signed the contract I was
> committing fraud within the meaning of 523(a)(2)."
>
>
>
> I don't think these clauses are conclusive or persuasive.
>
>
>
> I am not saying you don't have other problems though. It depends on how
> the transaction is structured. I mean, why is this your client's debt? What
> remaining interest does your client have in the pension? In other words, is
> the pension an asset of the estate? Is the remaining stream of payments
> your client's liability?
>
>
>
> Obviously the drafter of the contract thinks the pension is an asset and
> that there is a debtor/creditor relationship here.
>
>
> Sincerely,
>
> Michael Avanesian
>
>
>
> On Mon, Nov 10, 2014 at 12:06 PM, 'Steven B. Lever' sblever@leverlaw.com
> [cdcbaa] wrote:
>
>
>
> I have a consult this afternoon with someone who pledged their CALPERS
> pension in order to receive a lump sum.
>
>
>
> The 2 following paragraphs are in the purchase agreement for the cash flow
> from the pension:
>
>
>
> 4.2 The obligations created by this Agreement shall be excluded from
> Pensioners bankruptcy estate should Pensioner file for bankruptcy during
> the term of this Agreement, and/or criminal action against Pensioner.
>
>
>
> 4.3 Pensioner understands that any violation of the representation in this
> Section 4 will result in the perpetration of fraud, which could result in
> damages against the Pensioner in favor of Buyer.
>
>
>
> QUESTION: Does this amount to an admission under 11 U.S.C. 523(a)(2)?
> Or is it merely an agreement?
>
>
>
> Thank you.
>
>
>
> Steve
>
>
>
>
>
> Law Offices of Steven B. Lever
>
> >
>
> > Steven B. Lever
>
> >( Tel. (562) 436-5456 ext. 1
>
> >( Fax (562) 485-6886
>
> >* sblever@leverlaw.com
>
> > www.leverlaw.com
>
> > ******************************************************
>
> > This Internet e-mail contains confidential information
>
> > which is intended only for the addressee and which may
>
> > be privileged under applicable law. Do not read, copy
>
> > or disseminate it if you are not the addressee. If you
>
> > have received this message in error, please notify the
>
> > sender immediately and delete it. Thank you.
>
> > ******************************************************
>
>
>
>
>
>
>
I agree with you in so far as I think it's fine to file bk solely based on that contract. Things I don't know about, but which should concern you is the other parts of the contract.For example. If lender gave your client money in exchange for an assignment of stream of payments, how can your client take that assignment back? Is there state law prohibiting such assignment? If so, can lender put a lien on the stream of payments? If not, then what actually happened? Did the lender give your potential client an unsecured loan + promise to pay using future payments from pension plan?Sincerely, Michael Avanesian
The post was migrated from Yahoo.

Agreeing to Fraud-- Or an Admission in sale of stream of

Posted: Mon Nov 10, 2014 12:33 pm
by Yahoo Bot

This is one of those (rare) times I hesitate to reply because I haven't
thoroughly investigated this type of situation.
I would say that it is perjury not to include the obligation in the
bankruptcy. How can you sign a petition stating you listed all debts when
you purposefully excluded this one? I also believe the clause is
unenforceable in bk court.
I also wouldn't worry about 4.3. If this were a valid clause, every
contract would contain it. "I acknowledge that I will pay this credit card
debt, if I don't, I admit that at the time I signed the contract I was
committing fraud within the meaning of 523(a)(2)."
I don't think these clauses are conclusive or persuasive.
I am not saying you don't have other problems though. It depends on how the
transaction is structured. I mean, why is this your client's debt? What
remaining interest does your client have in the pension? In other words, is
the pension an asset of the estate? Is the remaining stream of payments
your client's liability?
Obviously the drafter of the contract thinks the pension is an asset and
that there is a debtor/creditor relationship here.
Sincerely,
Michael Avanesian
On Mon, Nov 10, 2014 at 12:06 PM, 'Steven B. Lever' sblever@leverlaw.com
[cdcbaa] wrote:
>
>
> I have a consult this afternoon with someone who pledged their CALPERS
> pension in order to receive a lump sum.
>
>
>
> The 2 following paragraphs are in the purchase agreement for the cash flow
> from the pension:
>
>
>
> 4.2 The obligations created by this Agreement shall be excluded from
> Pensioners bankruptcy estate should Pensioner file for bankruptcy during
> the term of this Agreement, and/or criminal action against Pensioner.
>
>
>
> 4.3 Pensioner understands that any violation of the representation in this
> Section 4 will result in the perpetration of fraud, which could result in
> damages against the Pensioner in favor of Buyer.
>
>
>
> QUESTION: Does this amount to an admission under 11 U.S.C. 523(a)(2)?
> Or is it merely an agreement?
>
>
>
> Thank you.
>
>
>
> Steve
>
>
>
>
>
> Law Offices of Steven B. Lever
>
> >
>
> > Steven B. Lever
>
> >( Tel. (562) 436-5456 ext. 1
>
> >( Fax (562) 485-6886
>
> >* sblever@leverlaw.com
>
> > www.leverlaw.com
>
> > ******************************************************
>
> > This Internet e-mail contains confidential information
>
> > which is intended only for the addressee and which may
>
> > be privileged under applicable law. Do not read, copy
>
> > or disseminate it if you are not the addressee. If you
>
> > have received this message in error, please notify the
>
> > sender immediately and delete it. Thank you.
>
> > ******************************************************
>
>
>
>
>
This is one of those (rare) times I hesitate to reply because I haven't thoroughly investigated this type of situation.I would say that it is perjury not to include the obligation in the bankruptcy. How can you sign a petition stating you listed all debts when you purposefully excluded this one? I also believe the clause is unenforceable in bk court.I also wouldn't worry about 4.3. If this were a valid clause, every contract would contain it. "I acknowledge that I will pay this credit card debt, if I don't, I admit that at the time I signed the contract I was committing fraud within the meaning of 523(a)(2)."I don't think these clauses are conclusive or persuasive.I am not saying you don't have other problems though. It depends on how the transaction is structured. I mean, why is this your client's debt? What remaining interest does your client have in the pension? In other words, is the pension an asset of the estate? Is the remaining stream of payments your client's liability?Obviously the drafter of the contract thinks the pension is an asset and that there is a debtor/creditor relationship here.Sincerely, Michael Avanesian
On Mon, Nov 10, 2014 at 12:06 PM, 'Steven B. Lever' sblever@leverlaw.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
I have a consult this afternoon with someone who pledged their CALPERS pension in order to receive a lump sum.The 2 following paragraphs are in the purchase agreement for the cash flow from the pension:4.2 The obligations created by this Agreement shall be excluded from Pensioners bankruptcy estate should Pensioner file for bankruptcy during the term of this Agreement, and/or criminal action against Pensioner. 4.3 Pensioner understands that any violation of the representation in this Section 4 will result in the perpetration of fraud, which could result in damages against the Pensioner in favor of Buyer. QUESTION: Does this amount to an admission under 11 U.S.C. 523(a)(2)? Or is it merely an agreement?u>Steve Law Offices of Steven B. Lever>> Steven B. Lever>( Tel. (562) 436-5456 ext. 1>( Fax (562) 485-6886>* sblever@leverlaw.com>e"color:blue">www.leverlaw.com> ******************************************************> This Internet e-mail contains confidential information> which is intended only for the addressee and which may> be privileged under applicable law. Do not read, copy
The post was migrated from Yahoo.