Central District Consumer Bankruptcy Attorney's Association

The last time I faced the issue, I waited until the trustee filed the no asset report and then forwarded a copy to the creditor explaining what that meant. I further explained that since the trustee was not seeking to avoid the setoff and my client claimed it as an expempt asset my client was entitled to recover the setoff and then threaten an adversary proceeding. You can seek the trustee to abandon the setoff claim as well. Otherwise, you file an adversary proceeding against the creditor.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
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On Wed Apr 2 12:29 , 'Patrick Green' sent:

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Mark:
How do you determine when the (h)(2) trigger- the trustee does not attempt
to avoid such transfer- occurs? Or to put it another way, what if the
creditor says that they cant give it you, because they dont yet know
whether the trustee is going avoid the transfer?
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com

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But 522(h) does help the debtor allowing debtor to recover a setoff from the creditor to the extent debtor exempted it and if the trustee does not avoid the setoff and could have under section 553....
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
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On Tue Apr 1 12:20 , 'David A. Tilem' sent:

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but that doesn't help the debtor
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.
James R. Selth
Sent: Monday, March 31, 2008 7:36 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Any Right to Recover Bank Setoff?
It would seem that if the bankruptcy was filed within 90 days it's a
preference which could be recovered by the Chapter 7 Trustee (but might not
be large enough to get the Trustee to act if it was the only asset), or by
the Debtor in a Chapter 13 case.
James R. Selth
Weintraub & Selth, APC
12424 Wilshire Blvd., Suite 1120
Los Angeles, CA 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
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To: cdcbaa@yahoogroups.com
Sent: 3/28/2008 11:43AM
Subject: [cdcbaa] Any Right to Recover Bank Setoff?
>> Hi Everyone,
>>
>> Bank of America just took $5k out of potential clients account today to
>> setoff $15k B of A credit card. Anyone know if she can file a
>> bankruptcy immediately and recover this money?
>>
>> Thanks!!!!
>> Ty Takeuchi
>>
>>
>>
charset="windows-1251"
Message
but that doesn't help the
debtor


David A.
Tilem
Certified Bankruptcy
Specialist*
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cannot. It is a possessory lien so no 522(f)
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.

The post was migrated from Yahoo.

It would seem that if the bankruptcy was filed within 90 days it's a preference which could be recovered by the Chapter 7 Trustee (but might not be large enough to get the Trustee to act if it was the only asset), or by the Debtor in a Chapter 13 case.
James R. Selth
Weintraub & Selth, APC
12424 Wilshire Blvd., Suite 1120
Los Angeles, CA 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.
To: cdcbaa@yahoogroups.com
Sent: 3/28/2008 11:43AM
Subject: [cdcbaa] Any Right to Recover Bank Setoff?
>> Hi Everyone,
>>
>> Bank of America just took $5k out of potential clients account today to
>> setoff $15k B of A credit card. Anyone know if she can file a
>> bankruptcy immediately and recover this money?
>>
>> Thanks!!!!
>> Ty Takeuchi
>>
>>
>>
It would seem that if the bankruptcy was filed within 90 days it's a preference which could be recovered by the Chapter 7 Trustee (but might not be large enough to get the Trustee to act if it was the only asset), or by the Debtor in a Chapter 13 case.

James R. Selth
Weintraub & Selth, APC
12424 Wilshire Blvd., Suite 1120
Los Angeles, CA 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.


--- Original Message---
To: cdcbaa@yahoogroups.com
Sent: 3/28/2008 11:43AM
Subject: [cdcbaa] Any Right to Recover Bank Setoff?

>> Hi Everyone,
>>
>> Bank of America just took $5k out of potential clients account today to
>> setoff $15k B of A credit card. Anyone know if she can file a
>> bankruptcy immediately and recover this money?
>>
>> Thanks!!!!
>> Ty Takeuchi
>>
>>
>>


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Yes she can recover the money if she claims it as exempt via 522(h) as it is an involuntary transfer recoverable pursuant to 553(b)(1). I had this happen last year with BofA and recovered every penney after a couple letters and follow up calls. BofA was not exactly efficient in returning the monies but its representative in its BK department (Taronda Cobb) at least understood and agreed my client was entitled to recovery the setoff funds. After I threatened an adversary proceeding because of the slothful pace the monies were finally returned. A copy of the (redacted) letter contents follows:
As set forth in my July 24, 2007 correspondence, this firm represents xxxxx in the above referenced Chapter 7 Bankruptcy Case filed on xxxx in the Central District of California, San Fernando Valley Division.
To reiterate the content of my July 24, 2007 correspondence Bank of America set off $9,203.01 from my clients checking account number xxxxxx on June 18, 2007 to pay a balance owed on account xxxxx. This set off was an involuntary transfer occurring within 90 days (1 day) prior to the bankruptcy cases filing. Pursuant to 11 U.S.C. 553(b)(1) the Chapter 7 trustee may recover from Bank of America the $9,203.01 if he determines this to be an asset case and those proceeds not to be exempt. The chapter 7 trustee Brad D. Krasnoff declared this to be a no asset case and filed the applicable electronic notice with the Bankruptcy Court on August 3, 2007. A copy of said notice and the case docket is enclosed. Pursuant to 11 U.S.C. 522(h) my clients as the debtors may recover the set off funds instead of the Chapter 7 trustee if as here the trustee does seek recovery and the debtor claims the funds, like my clients have, as exempt property. Enclosed please find another copy of the bankruptcy Schedules B & C in which my clients asserts their exemption in the levied funds.
Again demand is made that the $9,203.01 be returned to my clients as an exempt asset of the Bankruptcy Estate on or before August 23, 2007. Unless the funds are promptly returned I will file the appropriate action on my clients behalf in the Bankruptcy Court in order to recover these funds from Bank of America.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
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LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,
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US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
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On Fri Mar 28 10:43 , 'Tyson Takeuchi' sent:

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Hi Everyone,
Bank of America just took $5k out of potential clients account today to
setoff $15k B of A credit card. Anyone know if she can file a
bankruptcy immediately and recover this money?
Thanks!!!!
Ty Takeuchi

The post was migrated from Yahoo.