Central District Consumer Bankruptcy Attorney's Association

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Sorry, technically you are correct. It would be a dismissal.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
L
Sent: Monday, March 09, 2009 10:22 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Bank Freezing Accounts
I believe under the new local rules what was formerly a "withdrawal" of a
motion is now a "dismissal" and is not possible once there has been a
response...

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Ibelieveunder the new local ruleswhat was formerly ahere has been a response...

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The increased availability of the scream or die process has really cut down
on our costs for doing a lot of things - a motion to compel abandonment used
to be a big deal - it required a noticed hearing. Now, it's an office
procedure barring any objection. Of course it is still a big deal if
someone objects, but then the client can decide whether to withdraw the
motion.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Dennis McGoldrick
Sent: Saturday, March 07, 2009 10:38 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Bank Freezing Accounts
Matt:
exemption concept.
Section 541 brings all property of the debtor into the estate. I often tell
clients when they get up the next morning after filing and put on their
socks and underwear, they are wearing the trustee's socks and underwear. It is only when the 60 days runs after the 341a that the property reverts to
the debtor, and then only if there is no objection to the exemption.
In fact, even that statement is suspect. 349 says property only reverts if
the estate is closed and the property was not administered.
Some trustee's take the position the underwear is not really the debtor's
underwear again, unitl they are done administering the estate.
So, an exemption is not really and exemption, it is a claim of exemption,
subject to dispute by the trustee and any other creditor. Consider the ruby
slippers. If you owned the ruby slippers and claimed them exempt as wearing
apparel, the trustee could take the slippers, sell them, and just give the
debtor back the $1050 or so the exemption is worth.
The answer is not a 362 motion it is a motion to compel abandonment. You
can file one as a scream or die and get an order in 15 days (from any
"reasonable" judge).
dennis

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Nick,
Sorry, one more iteration. At the Hayes/Jury lecture Jon talked about claiming an entire asset exempt, without claiming a dollar amount. The new case essentially allows this. I told Jon watch out for 9011 sanctions. I have not gone back and researched the issue, but recall a case where this was considered an intentional manipulation, subject to 9011 sanctions. I will have to look for the case, but be careful out there. If you claim a dollar amout exempt, you get only the dollars. know the asset has more equity than the allowable exemption, watch out for a trustee who objects, and claims you have filed the claim of exemption intentionally to cheat the estate. I don't want to got there.
dennis

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Nick:
There is an old case called In re Hyman, and there is a new case which says the same thing essentially (Prof Hayes can you help with the new case name?). An exemption only gives the debtor the right to the dollar amount of the exemption.
The Hyman case was really eye popping. During a period of inflation, a debtor filed bk. The house continued to inflate. A couple of years later the trustee moved to sell the house. 9th Cir said the trustee wins and only had to pay the debtor the amount of the exemption. Had the debtor done a motion to compel abandonment at the outset, debtor gets the appreciation. Debtor sits on the exemption, trustee sells the house and only gives cash to debtorin the amount of the initial exemption andtrustee gets the appreciation. Look it up, it is scary.
dennis

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Dear Dennis,
Why isn't it 31 days after the conclusion of the 341(a) hearing that the exempt property reverts to the Debtor? After all, FRBP 4003(b)(1) gives up to 30 days after the conclusion of the hearing for objections to exemptions. Doesn't this mean that if no objections have been filed by then the Debtor has the unfettered enjoyment of the exempted asset? See Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) (Bankruptcy trustee held barred, after expiration of 30-day period, from contesting validity of exemption claimed by debtor under 11 U.S.C. 522(l), despite lack of colorable basis for claim).
Therefore, it seems to me that if the bank were to refuse to unfreeze the account after the 30-day bar date, then if the debtor owed the bank a prepetition debt, the debtor would have a cause of action under 11 U.S.C. 362(k).
On a more practical note, if the bank freezes the account and the money in it is clearly exempt, maybe a very polite request to the Trustee to tell the bank to unfreeze the account would be in order. You could draft a letter for the Trustee to sign, abandoning the money as exempt. Depending on who the Trustee is, you might get some help.
All the best,
Nick
Nicholas Gebelt, Ph.D., J.D.
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com
Web: www.goodbye2debt.com
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@goodbye2debt.com and destroy the original message and all copies.
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Saturday, March 07, 2009 10:37 AM
Subject: Re: [cdcbaa] Bank Freezing Accounts
Matt:
exemption concept.
Section 541 brings all property of the debtor into the estate. I often tell clients when they get up the next morning after filing and put on their socks and underwear, they are wearing the trustee's socks and underwear.
It is only when the 60 days runs after the 341a that the property reverts to the debtor, and then only if there is no objection to the exemption.
In fact, even that statement is suspect. 349 says property only reverts if the estate is closed and the property was not administered.
Some trustee's take the position the underwear is not really the debtor's underwear again, unitl they are done administering the estate.
So, an exemption is not really and exemption, it is a claim of exemption, subject to dispute by the trustee and any other creditor. Consider the ruby slippers. If you owned the ruby slippers and claimed them exempt as wearing apparel, the trustee could take the slippers, sell them, and just give the debtor back the $1050 or so the exemption is worth.
The answer is not a 362 motion it is a motion to compel abandonment. You can file one as a scream or die and get an order in 15 days (from any "reasonable" judge).
dennis
--- On Fri, 3/6/09, Matt Resnik wrote:
Subject: Re: [cdcbaa] Bank Freezing Accounts
To: cdcbaa@yahoogroups.com
Date: Friday, March 6, 2009, 9:43 PM
I'm just wondering... so someone shoot me down please...
I often thought of bringing a 362 action since the property is not part of the estate as a proper exemption, that not even the Trustee could attack, has been used to protect said property...now comes WF ---who not only destroys the status quo---but may jeopardize the debtor more then any garnishment or seizure...If a creditor or non creditor can seize property and turnover to whomever, is that not a per se violation?
Where am I so sadly mistaken?
----- Original Message -----
To: cdcbaa@yahoogroups. com
Sent: Friday, March 6, 2009 9:38:38 PM GMT -08:00 US/Canada Pacific
Subject: RE: [cdcbaa] Bank Freezing Accounts
Wells Fargo freezes accounts because the money is property of the estate - it has nothing whatsoever to do with their being a creditor or not. They then wait for direction from the Trustee as to whether the Trustee wants the money turned over.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
Business bankruptcy specialist cert. by Amer. Bd. of Certification
-----Original Message-----
n Behalf Of Margaret Norman
Sent: Thursday, March 05, 2009 11:17 AM
To: cdcbaa@yahoogroups. com; ashaghzo@gmail. com
Subject: Re: [cdcbaa] Bank Freezing Accounts
Is Wells Fargo for example, freezing accounts where the debtor owed
them money on a credit card or a line of credit? Or is the bank
attempting to prevent the debtor from creating overdrafts or bouncing
checks?
Margaret Norman
On Thu, 5 Mar 2009 16:32:28 +0000
ashaghzo@gmail. com wrote:
> I know someone in Union Bank's legal department. I had a discussion
>with that person regarding this matter a few months ago when the were
>trying to make a decision on whether or to freeze client accounts
>that had filed for bankruptcy. I can only infer that they decided to
>freeze the accounts the same as Wells Fargo Bank. Any other banks
>that are we should be aware of doing the same?
> Sent via BlackBerry by AT&T
>
> -----Original Message-----
>
> Date: Thu, 5 Mar 2009 08:16:26
> To:
> Subject: RE: [cdcbaa] Bank Freezing Accounts
>
>
> This needs watching. I have been having my clients not use Wells
>Fargo
> Checking and go to Union Bank. This is a problem if it continues.
>
>
>
> _____
>
n
>Behalf Of
> Jim Selth
> Sent: Wednesday, March 04, 2009 7:46 PM
> To: cdcbaa@yahoogroups. com
> Subject: RE: [cdcbaa] Bank Freezing Accounts
>
>
>
> Union Bank did it last month for one of my clients, as well. A >whopping $17
> was frozen.
>
>
>
> James R. Selth
>
> Weintraub & Selth, APC
>
> 12121 Wilshire Boulevard, Suite 1300
>
> Los Angeles, California 90025
>
> Telephone: (310) 207-1494
>
>Facsimile: (310) 442-0660
>
> E-Mail: jim@wsrlaw.net
>
>
>
> NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED >RECIPIENT
> OF THE TRANSMISSION AND THIS COMMUNICATION IS INTENDED TO BE
>PRIVILEGED BY
> LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE,
>DISSEMINATION,
> DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. > PLEASE
> NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN-E-MAIL AND PLEASE >DELETE THIS
> MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION
>
>
>
>
>
> _____
>
n
>Behalf Of
> David A. Tilem
> Sent: Wednesday, March 04, 2009 3:01 PM
> To: cdcbaa@yahoogroups. com
> Subject: [cdcbaa] Bank Freezing Accounts
>
> Just heard my first case where a bank other than Wells Fargo has
>frozen a
> debtor's account post filing.
>
> It's UNION BANK of CALIFORNIA. It may be a little premature to >sound the
> alarm bells, but be on the lookout and let us all know.
>
>
>
> David A. Tilem
>
> Certified Bankruptcy Specialist*
>
> Law Offices of David A. Tilem (a debt relief agency)
>
> 206 N. Jackson Street, #201, Glendale, CA 91206
>
> Tel: 818-507-6000 Fax: 818-507-6800
>
>
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal
> Specialization.
>
> Business bankruptcy specialist cert. by Amer. Bd. of >Certification
>
>
>
>
>
>
>
>
>
>
>
Margaret Norman, Attorney
111 N. Sepulveda Blvd. #355
Manhattan Beach, Ca. 90266
310-376-7873
Fax-310-798- 9846
WWW:Margeslaw. com
Circular 230: To assure complaince with Treasury Dept regs., be
informed that any advice contained in this communication and/or
attachments was not written and cannot be used for the purpose of avoiding any federal tax penalties that may be imposed on taxpayer.
The advice and/or suggestions may not be used in connection with promoting, marketing, or recommending to any person any transaction or
matter mentioned herein. All opinions are for purposes of discussion
on this forum only.
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Matthew D. Resnik
Attorney at Law
Simon and Resnik LLP
449 S. Beverly Drive
Suite 210
Beverly Hills, Ca
90212
T:310-788-9777
F: 310-788-0017
Matt@resniklaw. com
www.simonresnik. com
tp://www.w3c.org/TR/1999/REC-html401-19991224/loose.dtd">

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Matt:
exemption concept.
Section 541 brings all property of the debtor into the estate. I often tell clients when they get up the next morning after filing and put on their socks and underwear, they are wearing the trustee's socks and underwear.
It is only when the 60 days runs after the 341a that the property reverts to the debtor, and then only if there is no objection to the exemption.
In fact, even that statement is suspect. 349 says property only reverts if the estate is closed and the property was not administered.
Some trustee's take the position the underwear is not really the debtor's underwear again, unitl they are done administering the estate.
So, an exemption is not really and exemption, it is a claim of exemption, subject to dispute by the trustee and any other creditor. Consider the ruby slippers. If you owned the ruby slippers and claimed them exempt as wearing apparel, the trustee could take the slippers, sell them, The answer is not a 362 motion it is a motion to compel abandonment. You can file one as a scream or die and get an order in 15 days (from any "reasonable" judge).
dennis

The post was migrated from Yahoo.

Is Wells Fargo for example, freezing accounts where the debtor owed
them money on a credit card or a line of credit? Or is the bank
attempting to prevent the debtor from creating overdrafts or bouncing
checks?
Margaret Norman
On Thu, 5 Mar 2009 16:32:28 +0000
ashaghzo@gmail.com wrote:
> I know someone in Union Bank's legal department. I had a discussion
>with that person regarding this matter a few months ago when the were
>trying to make a decision on whether or to freeze client accounts
>that had filed for bankruptcy. I can only infer that they decided to
>freeze the accounts the same as Wells Fargo Bank. Any other banks
>that are we should be aware of doing the same?
> Sent via BlackBerry by AT&T
>
> -----Original Message-----
>
> Date: Thu, 5 Mar 2009 08:16:26
> To:
> Subject: RE: [cdcbaa] Bank Freezing Accounts
>
>
> This needs watching. I have been having my clients not use Wells
>Fargo
> Checking and go to Union Bank. This is a problem if it continues.
>
>
>
> _____
>
>Behalf Of
> Jim Selth
> Sent: Wednesday, March 04, 2009 7:46 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Bank Freezing Accounts
>
>
>
> Union Bank did it last month for one of my clients, as well. A
>whopping $17
> was frozen.
>
>
>
> James R. Selth
>
> Weintraub & Selth, APC
>
> 12121 Wilshire Boulevard, Suite 1300
>
> Los Angeles, California 90025
>
> Telephone: (310) 207-1494
>
>Facsimile: (310) 442-0660
>
> E-Mail: jim@wsrlaw.net
>
>
>
> NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED
>RECIPIENT
> OF THE TRANSMISSION AND THIS COMMUNICATION IS INTENDED TO BE
>PRIVILEGED BY
> LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE,
>DISSEMINATION,
> DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED.
> PLEASE
> NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN-E-MAIL AND PLEASE
>DELETE THIS
> MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION
>
>
>
>
>
> _____
>
>Behalf Of
> David A. Tilem
> Sent: Wednesday, March 04, 2009 3:01 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Bank Freezing Accounts
>
> Just heard my first case where a bank other than Wells Fargo has
>frozen a
> debtor's account post filing.
>
> It's UNION BANK of CALIFORNIA. It may be a little premature to
>sound the
> alarm bells, but be on the lookout and let us all know.
>
>
>
> David A. Tilem
>
> Certified Bankruptcy Specialist*
>
> Law Offices of David A. Tilem (a debt relief agency)
>
> 206 N. Jackson Street, #201, Glendale, CA 91206
>
> Tel: 818-507-6000 Fax: 818-507-6800
>
>
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal
> Specialization.
>
> Business bankruptcy specialist cert. by Amer. Bd. of
>Certification
>
>
>
>
>
>
>
>
>
>
>
Margaret Norman, Attorney
111 N. Sepulveda Blvd. #355
Manhattan Beach, Ca. 90266
310-376-7873
Fax-310-798-9846
WWW:Margeslaw.com
Circular 230: To assure complaince with Treasury Dept regs., be
informed that any advice contained in this communication and/or
attachments was not written and cannot be used for the purpose of
avoiding any federal tax penalties that may be imposed on taxpayer.
The advice and/or suggestions may not be used in connection with
promoting, marketing, or recommending to any person any transaction or
matter mentioned herein. All opinions are for purposes of discussion
on this forum only.
This mail was scanned by BitDefender
For more information please visit http://www.bitdefender.com

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so far citibank or u.s. bank havn't been freezing funds and i'm having my clients go there.
Vicki L. Temkin Law Office of Vicki L. Temkin 15030 Ventura Blvd., Ste. 19-780 Sherman Oaks, Ca 91403
Subject: RE: [cdcbaa] Bank Freezing Accounts
To: cdcbaa@yahoogroups.com
Date: Thursday, March 5, 2009, 8:16 AM
This needs watching. I have been having
my clients not use Wells Fargo Checking and go to Union Bank. This is a
problem if it continues.

The post was migrated from Yahoo.

charset="windows-1251"
This needs watching. I have been having my clients not use Wells Fargo
Checking and go to Union Bank. This is a problem if it continues.
_____

The post was migrated from Yahoo.