Central District Consumer Bankruptcy Attorney's Association

Dennis your amazing! Tom Bleich
>Reply-To: cdcbaa@yahoogroups.com
>To: cdcbaa@yahoogroups.com
>Subject: RE: [cdcbaa] 401k
>Date: Wed, 26 May 2004 21:09:15 -0700 (PDT)
>
>a
>--- Tom Bleich <tombleich@hotmail.com> wrote:
> > Dennis, the trustee that's wants to sell off part of
> > my client's 401k is
> > Rosendo Gonzalez, please let me know your thoughts.
> > thanks, tom.
> >
> > Tom:
>
>
>Tell the client to order a copy of the 401k. The plan
>administrator will want to give the debtor a summary.
>Tell them not to accept a summary. By law, they are
>entitled to an actual copy (don't remember the cite).
>We can review the plan to find the antialienation
>clause. David Tilem reports a session at the recent
>national convention reported there are a few 401k's
>out there without antialientation clauses. I still
>haven't seen one, but they wouldn't report the issue
>if there are none on the planet, so we have to check.
>Once we have the antialienation clause in hand, you
>can write to Ross, send him a copy, and (if you want,
>and after we both review it) tell Ross you had me
>review it.
>
>I represent Ross, sometimes, so he trusts my opinion.
>
>dennis
>
>
>
>
>__________________________________
>Do you Yahoo!?
>Friends. Fun. Try the all-new Yahoo! Messenger.
>http://messenger.yahoo.com/

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a
> Dennis, the trustee that's wants to sell off part of
> my client's 401k is
> Rosendo Gonzalez, please let me know your thoughts.
> thanks, tom.
>
> Tom:
Tell the client to order a copy of the 401k. The plan
administrator will want to give the debtor a summary.
Tell them not to accept a summary. By law, they are
entitled to an actual copy (don't remember the cite).
We can review the plan to find the antialienation
clause. David Tilem reports a session at the recent
national convention reported there are a few 401k's
out there without antialientation clauses. I still
haven't seen one, but they wouldn't report the issue
if there are none on the planet, so we have to check.
Once we have the antialienation clause in hand, you
can write to Ross, send him a copy, and (if you want,
and after we both review it) tell Ross you had me
review it.
I represent Ross, sometimes, so he trusts my opinion.
dennis
__________________________________
Do you Yahoo!?
Friends. Fun. Try the all-new Yahoo! Messenger.
http://messenger.yahoo.com/

The post was migrated from Yahoo.

Dennis, the trustee that's wants to sell off part of my client's 401k is
Rosendo Gonzalez, please let me know your thoughts. thanks, tom.
>Reply-To: cdcbaa@yahoogroups.com
>To: cdcbaa@yahoogroups.com
>Subject: [cdcbaa] 401k
>Date: Mon, 03 May 2004 17:13:04 -0000
>
>Tom: As David and others have been reporting, 401k's have an
>antialienation clause. Antialienation clauses are enforceable in
>bankruptcy (See Patterson v. Schumate).
>
>Who is the trustee?
>
>dennis
>

The post was migrated from Yahoo.

dave thanks for taking the time to get back to me on this, it is greatly
appreciated. tom.
>Reply-To: cdcbaa@yahoogroups.com
>To: <cdcbaa@yahoogroups.com>
>Subject: RE: [cdcbaa] 401K
>Date: Mon, 3 May 2004 08:51:41 -0700
>
>Tom:
>
>I think the 401k is not property of the estate under Section 541(c).
>You probably need to check the 401k documents and do some research on
>this. If this is correct, then the Trustee has no right to invade it.
>
>If the 401k is property of the estate and must be exempted, then any
>transaction undertaken by the Trustee should be taxable to the estate,
>not the debtor. In other words, the estate should pay the associated
>tax.
>
>Finally, if the 401k is property of the estate, the exemption analysis
>is very fact intensive. What is the age/health/earning capacity of your
>client. What other retirement assets are, or are likely to become
>available? What do the actuarial tables say about your client's life
>expectancy?
>
>These suggestions are not a substitute for your own legal research.
>
>David A. Tilem
>Certified Bankruptcy Specialist*
>Law Offices of David A. Tilem
>500 N. Brand Blvd., #460, Glendale, CA 91203
>Tel: 818-507-6000 Fax: 818-507-6800
>
>* Personal & small business bankruptcy specialist cert. by State
Bar of
>CA Bd of Legal Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
>
>
>
>-----Original Message-----
>Sent: Sunday, May 02, 2004 1:22 PM
>To: cdcbaa@yahoogroups.com
>Subject: [cdcbaa] 401K
>
>
>Hi have anyone ever been in a situation where your client has a sizeable
>
>401k, about $130,00.00 Client is 44. The trustee wants to sell about
>$30k
>of the 401k and distribute to creditors including a federal guaranteed
>student loan. Originally client believed his 401k was about 60k, he
>later
>amended the petiion to show the 130K value. If the trustee files an
>objection, what are the chances of the debtor winning in terms of
>preventing
>the 30K selling off of his 401k, or is the 30K a good compromise, and
>second, will the debtor incur any penalties for early withdraw of his
>401k,
>i assume he won't because it is an involuntary withdraw but now sure,
>any
>help and guidance would be greatly appreciated.
>
>Thank you
>Tom Bleich, Esq.
>9200 Sunset Blvd. PH2
>Los Angeles, CA 90069
>310-276-5297
>

The post was migrated from Yahoo.

Tom: As David and others have been reporting, 401k's have an
antialienation clause. Antialienation clauses are enforceable in
bankruptcy (See Patterson v. Schumate).
Who is the trustee?
dennis

The post was migrated from Yahoo.

Tom:
I think the 401k is not property of the estate under Section 541(c).
You probably need to check the 401k documents and do some research on
this. If this is correct, then the Trustee has no right to invade it.
If the 401k is property of the estate and must be exempted, then any
transaction undertaken by the Trustee should be taxable to the estate,
not the debtor. In other words, the estate should pay the associated
tax.
Finally, if the 401k is property of the estate, the exemption analysis
is very fact intensive. What is the age/health/earning capacity of your
client. What other retirement assets are, or are likely to become
available? What do the actuarial tables say about your client's life
expectancy?
These suggestions are not a substitute for your own legal research.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem
500 N. Brand Blvd., #460, Glendale, CA 91203
Tel: 818-507-6000 Fax: 818-507-6800
* Personal & small business bankruptcy specialist cert. by State Bar of
CA Bd of Legal Specialization.
Sent: Sunday, May 02, 2004 1:22 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] 401K
Hi have anyone ever been in a situation where your client has a sizeable
401k, about $130,00.00 Client is 44. The trustee wants to sell about
$30k
of the 401k and distribute to creditors including a federal guaranteed
student loan. Originally client believed his 401k was about 60k, he
later
amended the petiion to show the 130K value. If the trustee files an
objection, what are the chances of the debtor winning in terms of
preventing
the 30K selling off of his 401k, or is the 30K a good compromise, and
second, will the debtor incur any penalties for early withdraw of his
401k,
i assume he won't because it is an involuntary withdraw but now sure,
any
help and guidance would be greatly appreciated.
Thank you
Tom Bleich, Esq.
9200 Sunset Blvd. PH2
Los Angeles, CA 90069
310-276-5297

The post was migrated from Yahoo.

Hi have anyone ever been in a situation where your client has a sizeable
401k, about $130,00.00 Client is 44. The trustee wants to sell about $30k
of the 401k and distribute to creditors including a federal guaranteed
student loan. Originally client believed his 401k was about 60k, he later
amended the petiion to show the 130K value. If the trustee files an
objection, what are the chances of the debtor winning in terms of preventing
the 30K selling off of his 401k, or is the 30K a good compromise, and
second, will the debtor incur any penalties for early withdraw of his 401k,
i assume he won't because it is an involuntary withdraw but now sure, any
help and guidance would be greatly appreciated.
Thank you
Tom Bleich, Esq.
9200 Sunset Blvd. PH2
Los Angeles, CA 90069
310-276-5297

The post was migrated from Yahoo.

Tom:
Trustee cannot generally reach a 401k, and yes, your client would get
hit with the tax consequences if your client cooperates with the
trustee. Ask your client for copies of the 401k documents and them look
for the necessary elements under 541(c). Even if 401k is not outside of
the estate under 541(c), which would be a shock, did you exempt it and
has the time passed on the exemption claim?
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem
500 N. Brand Blvd., #460, Glendale, CA 91203
Tel: 818-507-6000 Fax: 818-507-6800
* Personal & small business bankruptcy specialist cert. by State Bar of
CA Bd of Legal Specialization.
Sent: Monday, April 26, 2004 11:22 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] 401K
I have a client who has a 401(k) valued at about $130,000.00. Client
filed
for chapter 7. The trustee desires to sell off $30,000.00 and
distribute
the $ to creditors including a creditor for a student loan. client is
about
44. Have any of you ever been involved in a case where the trustee
wants to
sell off a portion of client's 401(k), also will the debtor be penalized
by
the IRS for early withdrawal of his 401(k) retirement, I assume he will
not
because this is an involuntary withdrawal, but not sure, any assistance
would be appreciated. Thanks, P.S. This is a great service, I really
get a
lot out of the posted questions and responses. Thank you. Tom.

The post was migrated from Yahoo.

I have a client who has a 401(k) valued at about $130,000.00. Client filed
for chapter 7. The trustee desires to sell off $30,000.00 and distribute
the $ to creditors including a creditor for a student loan. client is about
44. Have any of you ever been involved in a case where the trustee wants to
sell off a portion of client's 401(k), also will the debtor be penalized by
the IRS for early withdrawal of his 401(k) retirement, I assume he will not
because this is an involuntary withdrawal, but not sure, any assistance
would be appreciated. Thanks, P.S. This is a great service, I really get a
lot out of the posted questions and responses. Thank you. Tom.

The post was migrated from Yahoo.