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
>
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>
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>
>
>
>
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.