Offset by Credit Union After Chapter 7 is Filed
Posted: Wed Aug 04, 2010 6:43 pm
I would assume the Debtor has standing. We exempted the funds that are inquestion.
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California 91364-2203
Telephone: (818) 226-1205
Facsimile: (818) 226-1213
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________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Wed, August 4, 2010 6:29:57 PM
Subject: [cdcbaa] Offset by Credit Union After Chapter 7 is Filed
>Sorry, In re Edgins is 36 BR 480. It was a Bank of America case, involving a
>checking account, in a Chapter 13. The Court held that a freeze was not an
>offset and B of A had the right to maintain a the status quo, i.e., the freeze
>during the bk.
>
>In the Bank of Maryland case the facts involved a creditor filing a motion for
>relief. However, the analysis did not address said fact. It was not relevant.
>
>There are other cases that have held that a debtor must either have standing,
>i.e., be a trustee or debtor in possession, to file a motion to use cash
>collateral or the creditor must agree to the use of case collateral.
>
>Hope this helps.
>
>
>
>
>-----Original Message-----
>>Sent: Aug 4, 2010 8:36 PM
>>To: cdcbaa@yahoogroups. com
>>Subject: Re: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed>>
>>
>>Ken:
>>
>>What adequate protection are you going to offer the bank? If you do anything,
>>they file mrs.
>>
>>dennis
>>
>>--- On Wed, 8/4/10, Kenneth Jay Schwartz wrote:
>>
>>
>>>Subject: Re: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
>>>To: cdcbaa@yahoogroups. com
>>>Date: Wednesday, August 4, 2010, 3:51 PM
>>>
>>>
>>>
>>>Judge Neiter. I have no problem with the freeze pending a motion, but they
>>>have no intention of filing one. They will just wait out the termination of the
>>>stay upon discharge.
>>> Kenneth Jay Schwartz, Esq.
>>>LAW OFFICE OF KENNETH JAY SCHWARTZ
>>>21031 Ventura Boulevard, 12th Floor
>>>Woodland Hills, California 91364-2203
>>>Telephone: (818) 226-1205
>>>Facsimile: (818) 226-1213
>>>
>>>
>>>
>>>
>>>THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
>>>CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE
>>>AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL.
>>>IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT>>>RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY
>>>NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW,
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>>>IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY.
>>>THANK YOU.
>>>
>>>
>>>
>>>
>>>
>>>
________________________________
>>>To: cdcbaa@yahoogroups. com
>>>Sent: Wed, August 4, 2010 3:48:07 PM
>>>Subject: RE: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
>>>
>>>
>>>My reading of Bank of Maryland is that they can freeze it pending the stay
>>>motion. Without a stay motion I think they are in violation. Who is the
>>>judge?
>>>
>>>If you have any questions or concerns, please contact me.
>>>
>>>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
>>>
>>>
>>>From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of
>>>Kenneth Jay Schwartz
>>>Sent: Wednesday, August 04, 2010 3:08 PM
>>>To: cdcbaa@yahoogroups. com
>>>Subject: Re: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
>>>
>>>
>>>362(a)(7) stays a post-petition offset. To take the money they have frozen,
>>>they need to make a motion. If they fail to do so during the pendency of the
>>>stay, and then take the money out of their "hold status", I think a good>>>argument could be made that they actually offset the money post-petition in
>>>violation of the stay.
>>>
>>>Kenneth Jay Schwartz, Esq.
>>>LAW OFFICE OF KENNETH JAY SCHWARTZ
>>>21031 Ventura Boulevard, 12th Floor
>>>Woodland Hills, California 91364-2203
>>>Telephone: (818) 226-1205
>>>Facsimile: (818) 226-1213
>>>
>>>
>>>
>>>THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
>>>CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE
>>>AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL.
>>>IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT>>>RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY
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>>>THANK YOU.
>>>
>>>
>>>
________________________________
>>>From:Giovanni Orantes
>>>To: cdcbaa@yahoogroups. com
>>>Sent: Wed, August 4, 2010 2:57:35 PM
>>>Subject: Re: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
>>>
>>>
>>>Let me correct that last sentence. If they're entitled to the offset now, they
>>>will be able to take it after the case is closed without the need for a specific
>>>order for relief from stay. As to whether they are entitled to the offset, you
>>>have to hit the books, but my recollection is that they indeed are entitled to
>>>it, which is why I have my clients open fresh accounts and move virtually all
>>>their money into those accounts before filing a case.
>>>On Wed, Aug 4, 2010 at 2:54 PM, Giovanni Orantes wrote:
>>>They won't need relief from stay to take it at that point because the relief
>>>from stay will be dissolved upon discharge (and replaced by the entry of the
>>>Section 524 injunction). If they can take it now, they will be able to take it
>>>then.
>>>
>>>On Wed, Aug 4, 2010 at 2:46 PM, Kenneth Jay Schwartz >>yahoo.com> wrote:
>>>
>>>Credit Union claims they put an "administrative freeze" on the account, and that
>>>without doing more, they will take the funds once the discharge is entered.
>>>
>>>I agree that 362(a)(7) requires them to make a motion for rfs--should I just
>>>wait it out and see if they ultimately take the money upon discharge without
>>>filing the motion, and then go after them for violation of the stay? >>>
>>>
>>>
>>>Kenneth Jay Schwartz, Esq.
>>>LAW OFFICE OF KENNETH JAY SCHWARTZ
>>>21031 Ventura Boulevard, 12th Floor
>>>Woodland Hills, California 91364-2203
>>>Telephone: (818) 226-1205
>>>Facsimile: (818) 226-1213
>>>
>>>
>>>
>>>THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
>>>CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE
>>>AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL.
>>>IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT>>>RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY
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>>>THANK YOU.
>>>
>>>
>>>
________________________________
>>>From:Patrick Green
>>>To: cdcbaa@yahoogroups. com
>>>Sent: Wed, August 4, 2010 12:49:15 PM
>>>
>>>Subject: RE: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
>>>
>>>
>>>553 allows the offset post petition, but it is subject to 362(a)(7). However th
>>>CU may temporarily hide behind 542(b), per the Supremes. See Bank of Maryland,
>>>116 SCt 286. They still must be bring the MFRS.
>>>
>>>
>>>If you have any questions or concerns, please contact me.
>>>
>>>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
>>>
>>>
>>>From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of
>>>Steven B. Lever
>>>Sent: Wednesday, August 04, 2010 9:28 AM
>>>To: cdcbaa@yahoogroups. com
>>>Subject: RE: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
>>>
>>>
>>>But the question was posed postpetition. How can they get around the automatic
>>>stay? I dont see that in 550. Does the S.Ct. decision uphold postpetition?
>>>
>>>From:cdcbaa@yahoogroups. com [mailto:cdcbaa@ yahoogroups. com] On Behalf Of
>>>californiadebtrelie fagency
>>>Sent: Tuesday, August 03, 2010 11:59 PM
>>>To: cdcbaa@yahoogroups. com
>>>Subject: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
>>>
>>>
>>>Agree with Dennis. It's a permissible offset. There is a Supreme Court decision
>>>upholding offsets. There is mutuality of obligation giving rise to the right of
>>>offset.
>>>
>>>Lou Esbin
>>>
>>>--- In cdcbaa@yahoogroups. com, Dennis wrote:
>>>>
>>>> Look @ 550. Might be ok. Lisa, can you comment?
>>>>
>>>> Sent from my iPhone
>>>>
>>>> On Aug 3, 2010, at 9:52 AM, "Steven B. Lever" wrote:
>>>>
>>>> No. The automatic stay prevents it. Write them a letter that they have violated
>>>>the automatic stay and give them a date certain to return the funds to the
>>>>account that is reasonable. If they do not, then bring a motion for violation.
>>>>
>>>>
>>>>
lf Of
>>>>Kenneth Schwartz
>>>> Sent: Tuesday, August 03, 2010 7:37 AM
>>>> To: cdcbaa@yahoogroups. com
>>>> Subject: [cdcbaa] Offset by Credit Union After Chapter 7 is Filed
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> Is a credit union entitled to exercise an offset after a Chapter 7 is filed? In
>>>>this instance, it hit the Debtor's account approximately 10 days after the
>>>>filing.
>>>>
>>>
>>>
>>>
>>>--
>>>Giovanni Orantes, Esq.
>>>Orantes Law Firm, P.C.
>>>3435 Wilshire Blvd. Suite 1980
>>>Los Angeles, CA 90010
>>>Tel: (213) 389-4362
>>>Phone: (888) 619-8222 x101
>>>Fax: (877) 789-5776
>>>e-mail: go@gobklaw.com
>>>website: www.gobklaw. com
>>>
>>>WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
>>>
>>>SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND
>>>SANTA BARBARA.
>>>
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>>
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I would assume the Debtor has standing. We exempted the funds that are in question. Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818) 226-1205Facsimile: (818) 226-1213THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW,
DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.From: ALS <alssim@earthlink.net>To: "cdcbaa@yahoogroups.com" <cdcbaa@yahoogroups.com>Sent: Wed, August 4, 2010 6:29:57 PMSubject: [cdcbaa] Offset by Credit Union After Chapter 7 is Filed
Sorry, In re Edgins is 36 BR 480. It was a Bank of America case, involving a checking account, in a Chapter 13. The Court held that a freeze was not an offset and B of A had the right to maintain a the status quo, i.e., the freeze during the bk.In the Bank of Maryland case the facts involved a creditor filing a motion for relief. However, the analysis did not address said fact. It was not relevant.There are other cases that have held that a debtor must either have standing, i.e., be a trustee or debtor in possession, to file a motion to use cash collateral or the creditor must agree to the use of case collateral.Hope this helps.-----Original Message-----
Sent: Aug 4, 2010 8:36 PM
To: cdcbaa@yahoogroups. com
Subject: Re: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is Filed
Ken:
What adequate protection are you going to offer the bank? If you do anything, they file mrs.
dennis--- On Wed, 8/4/10, Kenneth Jay Schwartz <kennethjschwartz@ yahoo.com> wrote:
neth Jay Schwartz <kennethjschwartz@ yahoo.com>Subject: Re: [cdcbaa] Re: Offset by Credit Union After Chapter 7 is FiledTo: cdcbaa@yahoogroups. comDate: Wednesday, August 4, 2010, 3:51 PM
Judge Neiter. I have no problem with the freeze pending a motion, but they have no intention of filing one. They will just wait out the termination of the stay upon discharge. Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818) 226-1205Facsimile: (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.
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