Next Friends
Posted: Fri Jan 25, 2008 6:17 pm
Who makes the determination that a debtor is "incompetent" and needs a "next friend"? In this particular case, there hasn't been any official diagnosis by a doctor, but when I speak with the debtor, it's fairly clear to me that a lot of times she isn't understanding things. If I allow a "next friend" to sign on her behalf, is that tantamount to ME concluding that the debtor is incompetent under FRBP 1004.1? I'm not sure I want to go there. On the other hand, is it better to have a debtor who doesn't understand things sign a document under penalty of perjury?
______________________
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency
___________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication (or in any attachment).
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Tuesday, January 22, 2008 2:02 PM
Subject: Re: [cdcbaa] Next Friends
Fellow member:
It is a very simple process and no motion is required. Contact Kay March who has a great roadmap for filing a petition as "Next Friend". The daughter signs both the petition and the retainer as "next friend".
Keith Higginbotham
In a message dated 1/22/2008 11:51:28 A.M. Pacific Standard Time, bklawr@yahoo.com writes:
re-visiting this issue, since I may have to file a CH. 13 for a demented debtor....My questions are:
1. How do you word the retainer agreement? In other words, who signs it, the next friend (i.e. daughter) or the debtor, or both? This seems more important to me than who signs the bankruptcy petition.
2. Is there a motion that needs to be done to establish the next friend as "official", or is simply signing the petition sufficient?
______________________
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency
___________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication (or in any attachment).
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Wednesday, August 08, 2007 12:16 PM
Subject: RE: [cdcbaa] Next Friends
In my opinion, as a matter of law, the NF stands in the shoes of the debtor for all purposes. They are swearing under penalty of perjury that everything in the petition is true and correct or is based on information and belief. The debtor has signed nothing and makes no written averments. The questioning at the 341 is of the NF, but if the debtor can answer questions, then they should respond. If there responses are expected to be off the wall, then the trustee should be so advised ahead of time. I had a case in the probate court recently where we were transferring the community assets of the spouses from the demented spouse to the well spouse to qualify the ill spouse for MediCal for long term care. The judge asked the demented spouse a number of yes and no questions regarding his approval of the transfer. He answered yes to all the questions, which was good for out petition being granted, but according to his wife, he answers yes to everything. My point is that he could just as well have been in the habit of saying no to everything, with the same lack of relevance. Your debtor could give off the wall answers that could be very damning if they came from a lucid person, but which must be understood to be the answers of someone who is demented and is therefore inherently unreliable.
Patrick T. Green, Esq.
Fitzgerald & Green, Attorneys at Law
1010 E. Union Street Suite 206
Pasadena, CA 91106
Ph: (626) 449-8433
Fax: (626) 449-0565
pat@fitzgreenlaw.com
f Of MJ Markus
Sent: Wednesday, August 08, 2007 10:05 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Next Friends
Thanks. In that case is it acceptable (or necessary) for the Next Friend to answer the questions relating to the petition at the 341a?
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Wednesday, August 08, 2007 9:54 AM
Subject: RE: [cdcbaa] Next Friends
Mark:
If the debtor can safely attend, it is easier to have them there than to go through any extra hoops keep them from having to attend. Be sure to write a letter ahead of time to the trustee explaining why there is a next friend and the limits of the debtors ability to participate in the 341. I currently have a case with a similar dementia issue. My debtor will attend the 341 and will be able to say who he is and probably his address, but the information in the petition did not come from him nor could it have, so he cant answer any of the usual questions.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green, Attorneys at Law
1010 E. Union Street Suite 206
Pasadena, CA 91106
Ph: (626) 449-8433
Fax: (626) 449-0565
pat@fitzgreenlaw.com
alf Of MJ Markus
Sent: Tuesday, August 07, 2007 4:36 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Next Friends
Thanks to all of you who previously responded to using a "next friend" to sign the petition for a debtor who isn't "all there" (e.g. early stage Alzheimer's patients, etc.).
My next question is, does the debtor need to appear at the 341(a) with the "next friend" or does the "next friend" appear alone, or does one need to get a waiver from the court (just trying to assess fees to be charged).
Thanks,
Mark
______________________
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency
___________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication (or in any attachment).
The Law Offices of Keith Alan Higginbotham
255 South Grand Avenue, Suite #2109
Los Angeles, CA 90012-3045
213.620.0176
213.613.1200 Facsimile
HigginbothamLaw@aol.com
Start the year off right. Easy ways to stay in shape in the new year.
Who makes the determination that a
debtor is "incompetent" and needs a "next friend"? In this
particular case, there hasn't been any official diagnosis by a doctor, but when
I speak with the debtor, it's fairly clear to me that a lot of times she isn't
understanding things. If I allow a "next friend" to sign on herbehalf, is that tantamount to ME concluding that the debtor is incompetent under
FRBP 1004.1? I'm not sure I want to go there. On the other
hand, is it better to have a debtor who doesn't understand things sign a
document under penalty of perjury?
______________________Mark J.
MarkusLaw Office of Mark J. Markus11684 Ventura Blvd. PMB #403Studio
City, CA 91604-2652(818)509-1173 (818)509-1460 (fax)web: http://www.bklaw.com/This Firm is aQualified Federal Debt Relief Agency___________NOTICE: This Electronic
Message contains information from the law office of Mark J. Markus that may be
privileged. The information is intended for the use of the addresseeonly. If you are not the addressee, note that any disclosure, copy,
distribution or use of the contents of this message is prohibited.IRS
CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS,
we inform you that any U.S. tax advice contained in this communication (or in
any attachment) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or
matter addressed in this communication (or in any attachment).
----- Original Message -----
From:
higginbothamlaw@aol.com
To: cdcbaa@yahoogroups.com
Sent: Tuesday, January 22, 2008 2:02
PM
Subject: Re: [cdcbaa] Next Friends
Fellow member:
It is a very simple process and no motion is required. Contact Kay March who has a great roadmap for filing a petition as "Next
Friend". The daughter signs both the petition and the retainer as
"next friend".
Keith Higginbotham
In a message dated 1/22/2008 11:51:28 A.M. Pacific Standard Time, bklawr@yahoo.com writes:
re-visiting this issue, since I may have to
file a CH. 13 for a demented debtor....My questions are:
1. How do you word the retainer agreement? In other words, who signs it, the next friend (i.e.
daughter) or the debtor, or both? This seems more important to me than
who signs the bankruptcy petition.
2. Is there a motion that needs to be
done to establish the next friend as "official", or is simply signing the
petition sufficient?
______________________Mark J.
MarkusLaw Office of Mark J. Markus11684 Ventura Blvd. PMB
#403Studio City, CA 91604-2652(818)509-1173 (818)509-1460 (fax)web: http://www.bklaw.com/This Firm is
a Qualified Federal Debt Relief Agency___________NOTICE: This
Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use
of the addressee only. If you are not the addressee, note that any
disclosure, copy, distribution or use of the contents of this message is
prohibited.IRS CIRCULAR 230 NOTICE: To ensure compliance with
requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed in this
communication (or in any attachment).
----- Original Message -----
From: Patrick Green
To:
The post was migrated from Yahoo.