Fw: Warning re B of A
Posted: Fri Mar 20, 2009 7:40 am
group:
hat it was long thought that a marital division was a division, not a transfer as each spouse owned 1/2 of the property at the beginning of the divorce, and 1/2 at the end, but I just lost that argument at the 9th Circuit. I have long thought the concept of a transfer was becomming more and more conservative in favor of creditors, especially since Tveten, which was wholly embraced by the BAP in Beverly.
As Elmer correctly points out, the argument goes on.
Sent: Wednesday, March 18, 2009 5:59 PM
To: Dennis McGoldrick
Subject: Fw: [cdcbaa] Warning re B of A
You're well justified to warn about this case but it was a split decision with one 9th Circuit judge in the majority and that judge was Trott who was a hanging judge. The opinion's justification argument based on a constructive exchange of a claim against the bank for cash is highly contrived given that all that happened was that a debtor transferred cash to himself if you want to call that a transfer which of course Bernard did. There appears to be a split in the circuits and even an en banc review would not likely follow Bernard because there was no transfer in Bernard to anyone other than to the debtor himself. See the following in which one judge accepted Bernard and two rejected it. More likely that the ultimate result is that there has to be a transfer to someone other than the debtor by the debtor.
1998 U.S. App. LEXIS 12213, *
In re: MURRAY L. MILLER, KATHE B. MILLER, Debtors. MURRAY L. MILLER; KATHE B. MILLER, Appellants, v. PEOPLE OF THE STATE OF CALIFORNIA, Appellee.
NO. 97-16223
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
1998 U.S. App. LEXIS 12213
May 12, 1998, Argued and Submitted, San Francisco, California
June 8, 1998, Filed
Elmer Dean Martin III
P. O. Box 4670
Diamond Bar, CA 91765
909 861 6700
elmer@bankruptcytax.net
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