Generally, when a person files a petition for bankruptcy, an automatic stay will be entered that bars anyone from filing claims seeking damages from the party in state or federal court. In some instances, however, a bankruptcy court can lift the automatic stay, allowing litigation to proceed. Recently, a California bankruptcy court discussed what constitutes just cause for lifting a stay, in a case in which the debtor appealed a retroactive annulling of an automatic stay. If you are a California resident seeking a reprieve from your debts, it is prudent to confer with a capable California bankruptcy attorney to assess whether bankruptcy may be an option for you.

Facts of the Case

It is reported that the debtor filed a petition for Chapter 13 bankruptcy, after which the bankruptcy court issued an automatic stay. Subsequently, the defendants, who were unaware of the claimant’s bankruptcy proceedings, filed a wrongful death lawsuit against the claimant in state court. After the defendants were advised of the debtor’s bankruptcy, they moved to annul the stay in order to validate the filing of their complaint in state court and to liquidate their claims against the debtor. The bankruptcy court granted the motion and retroactively lifted the stay, after which the debtor appealed.

Grounds for Lifting an Automatic Stay in a Bankruptcy Case

Pursuant to the bankruptcy code, when a party in interest moves to lift an automatic stay and a hearing is held, a bankruptcy court must grant relief from an automatic stay upon showing of cause. Cause is not specifically defined by the bankruptcy code; rather, whether cause exists must be determined on a case by case basis. In determining whether a stay should be lifted to allow a case filed in state court to proceed, the court should assess the judicial economy, potential for prejudice, the expertise of the state court, and whether only bankruptcy issues are involved. Continue reading

The bankruptcy code aims to provide relief to people unable to manage their debts. Thus, even if a trustee files a motion to dismiss a person’s bankruptcy petition and a court grants the petition and dismisses a bankruptcy action, the law provides a right to appeal the dismissal. While an appeal must generally be filed within the specified time frame, the court will excuse a delay in filing an appeal under certain circumstances. Recently, a California court discussed what a petitioner seeking relief from a dismissal must show in order to be granted leave to file an untimely appeal. If you live in California and are interested in seeking relief of your debts via bankruptcy, you should contact a skillful California bankruptcy attorney to discuss your case.

Facts of the Case

Allegedly, the petitioner filed a Chapter 13 bankruptcy petition. In response, the trustee filed a motion to dismiss and requested a one year bar to any refiling of a petition due to the deficiencies in the petitioner’s proposed Chapter 13 plan, and her failure to make ongoing payments to her debts. The notice for the motion was mailed to the petitioner but she did not file a response or appear at the hearing. Thus, the court granted the motion and dismissed the petition. Thirty-four days later, the petitioner filed a motion to reopen or extend the time to file an appeal, arguing that she did not receive notice of the dismissal, and her failure to file an appeal was based on excusable neglect. The court denied the motion, after which the petitioner appealed.

Demonstrating Excusable Neglect

After an order has been entered in a bankruptcy case, a party has fourteen days to appeal the order. If the party cannot meet that deadline, he or she can file a motion asking or an extension of the time to file an appeal; however, the deadline for seeking an extension is fourteen days from the entry of the order as well, unless the moving party can demonstrate that the delay in filing the motion was caused by excusable neglect.

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When a person files for bankruptcy, an automatic stay is entered, preventing creditors from taking further actions to collect debts from the person. Further, the law provides that if a creditor willfully violates a stay, anyone injured by the violation can recover actual damages, which includes attorneys’ fees and costs. As discussed in a recent bankruptcy case arising out of California, in some circumstances, however, a court may decline to grant a person an award of the true costs associated with seeking damages caused by the violation. If you are a resident of California seeking debt relief, it is advisable to speak with a trusted California bankruptcy attorney regarding your options.

Factual and Procedural History

Reportedly, the plaintiff filed for bankruptcy on October 1, 2018. At the same time, she filed a stay of proceedings in pending state court actions. Per the defendant’s admission, it became aware of the bankruptcy petition by October 2, 2018. Regardless, on October 2, 2018, the defendant sent the sheriff instructions to enforce the writ of execution. Although an attorney that worked for the defendant reportedly directed an assistant to advise the sheriff to terminate the levy on October 10, 2018, the sheriff never received notification of the termination and levied funds from the plaintiff’s bank accounts. The plaintiff attempted to withdraw funds following the levy and was charged an overdraft fee.

Allegedly, the plaintiff’s attorney then filed a motion for contempt against the defendant for violating the automatic stay. Following a hearing, the court found that the defendant clearly violated the stay and that its violation was willful. The court then ruled that the plaintiff was entitled to recover reasonable attorneys’ fees and costs, but not the full amount claimed. The plaintiff appealed. Continue reading

In many bankruptcy actions, the court will appoint officers to oversee certain aspects of the case. Any officer appointed by a court must remain neutral, and if a conflict is revealed, the officer usually must recuse his or her self from the case. When a party in a bankruptcy proceeding believes that a bankruptcy officer unjustly affected the outcome of the case due to a conflict, the party may be able to seek damages from the officer via a civil lawsuit. There are requirements the party must comply with, however, and if the party fails to file the lawsuit properly, his or her claims may be dismissed, as demonstrated in a recent case arising out of California. If you live in California and are in need of assistance with a bankruptcy matter, it is prudent to consult a skillful California bankruptcy attorney to discuss your case.

Factual and Procedural Background of the Case

It is reported that a debtor filed for bankruptcy, seeking in part to discharge a judgment from a defamation lawsuit. Creditors subsequently filed an adversary complaint, arguing that the debt was not dischargeable due to the debtor’s willful and malicious acts. Subsequently, the court-appointed a special discovery master to assist with the proceeding. After several months had passed, the creditor informed the master of a conflict of interest, namely that the master’s firm previously represented another party in a case against the creditor. The master recused herself but refused to refund the fees paid by the creditor. The creditor then filed a motion for a declaration that leave was not required to file a lawsuit against the master in State court, or alternatively, seeking leave to sue the master. The court denied the motion, and the creditor appealed.

Filing a Lawsuit Against an Officer Appointed by the Bankruptcy Court

Pursuant to the Barton doctrine, a plaintiff who wishes to institute a lawsuit against a bankruptcy officer in another forum, for actions taken by the officer in his or her official capacity, must first obtain the authorization of the bankruptcy court. The main criterion of an inquiry under the Barton doctrine is whether the suit the party seeks to file challenges the acts taken by an officer were within his or her authority as an officer of the court and were undertaken in his or her official capacity. The doctrine arose out of the fact that bankruptcy law requires that all matters that affect the administration of a bankruptcy estate must either be filed in bankruptcy court or with leave from the bankruptcy court. Continue reading

The Federal Appellate Panel for the 8th Circuit Court of Appeal recently held if a Debtor makes payments toward home improvements in an attempt to defraud a creditor, that those payments may not be exempt.  The issue for decision in this case was whether a debtor can claim home improvement payments as being exempt from the bankruptcy estate in a Chapter 7 bankruptcy case?

The facts in this case were actually quite typical and could apply to a number of people. The Debtors (Wife and Husband) made improvements to their principal residence over a period of time before filing for Chapter 7 Bankruptcy. During that time their daughter opened a bank account whereby Debtors began to make large deposits amounting to approximately $60,000.00 into their daughter’s bank account who then made payments toward the home improvements as well – in addition to other family members.

Debtor’s eventually filed for protection under Chapter 7 of the bankruptcy code after having engaged in this course of conduct for some time. In their Petition they attempted to take advantage of the homestead exemption by claiming that they had roughly $60,000.00 of equity in their home. The “homestead exemption” prevents the court from seizing and distributing that property to any creditors or the Court which may exist as equity in a personal residence. Using Title 11 of United States Code section 522(o) the Bankruptcy Trustee objected to the debtors’ exemption claiming that the improvements did not qualify under the homestead exemption since the money had come through their daughter’s account and was being claimed by the debtors as exempt to delay, hinder, and/or defraud their creditors.

Sacramento Bankruptcy NewsflashAccording to the Eastern District of California that handles all Chapter 7 and Chapter 13 Bankruptcy cases in the Sacramento Metropolitan Area, data shows that filings in the region have fallen consistently over the last few years. As we all have probably noticed, the economy has improved significantly since the Great Recession of 2009. The bankruptcy filing statistics are proof that the economy is now stronger than it has been over the last several years. Sacramento saw a record number of filings in 2010 with a whopping 54,365 cases filed that year. Every year subsequent saw fewer cases filed than the previous year. Last year the Eastern district of California saw only 14,328 new cases filed and includes all Chapter 7, Chapter 13, and Chapter 11 bankruptcies. These numbers even predate filings before the Bankruptcy Laws were modified significantly in 2005 under the Bankruptcy Abuse and Consumer Protection Act (BAPCA).

Although the economy has improved substantially and the unemployment rate has dropped from 9% to less than 5% since 2010, there are still a significant number of people who need to consider taking advantage of the bankruptcy laws in order to confront and resolve the economic turbulence they face. Historically, the number one reason people needed to file for bankruptcy were unexpected medical bills. The recent filings during the height of the Great Recession were due to the mortgage and foreclosure situation many people faced with their homes. Fortunately, many people have already made great use of the bankruptcy code to shield themselves from the banks and to reorganize debts into a much more manageable situation and to stop the foreclosure process in its tracks.

The best use of the Bankruptcy laws are to get your debts discharged that enable a person to start over with a “clean slate” financially. The ultimate discharge of all debt is granted by a federal bankruptcy court that issues a stay to prevent a creditor from any further attempt to collect a debt from the individual. While most debts such as credit cards, medical bills, and other unsecured debts can be extinguished in bankruptcy, other types of debts cannot be discharged: these include child and spousal support, tax debts, and sadly most types of student loans.

Many people going through bankruptcy or divorce in the Sacramento area find that these two distinct legal fields can actually run hand in hand. Often times, financial problems can lead to the breakdown of a marriage, or conversely, the breakdown of a marriage and division of assets can lead to a need for filing Chapter 7 or Chapter 13.

Ideally, if Chapter 7 or Chapter 13 rests in a couple’s best financial interests it makes sense for the couple to file a joint bankruptcy petition. This, however, requires: (1) that the parties are able to continue to work together and cooperate in the bankruptcy; and (2) they have not received a judgment of dissolution restoring them to their status as single persons.

Since many couples going through divorce proceedings cannot work together the bankruptcy process can become very complicated. A recent case filed out of New Jersey typifies the problems created when a divorcing couple decides to file bankruptcy separately but before they have actually received their judgment of dissolution of marriage.

Many people considering filing Chapter 7 or Chapter 13 bankruptcy in the Sacramento metropolitan area are interested to know the statistics associated with filing for protection from their creditors and elimination of their debts. These people are relieved when they find that most individual bankruptcy cases are not caused by reckless spending. The number one reason that causes a person to file bankruptcy is financial hardship.

As we have seen over the last few years, peaks in bankruptcy petitioner typically occur during times of economic downturn. Interestingly, states with the least consumer friendly laws ordinarily receive the most bankruptcy petition filings. This is because those laws make it easier for creditors to collect unpaid debts from the individual. The United States saw the highest number of bankruptcy filings in 2005 (likely due to a change in the law making it more difficult to file bankruptcy). That year the Courts processed over 2 million bankruptcy cases. Since reform of the bankruptcy laws in 2005 the statistics have gone up and down. Over the last 5 years the Courts have seen the highest number of filings in 2010, with over 1.5 million cases filed. Last year, the federal bankruptcy courts saw less than 950,000 cases filed.

California has typically seen the highest number of bankruptcy cases filed throughout the nation. This is in large part due to our high population. Conversely, Alaska typically sees the fewest number of bankruptcy filings. For example, Alaska residents accounted for less than 1,000 bankruptcy filings in 2011 whereas California saw more than 240,000.

As a Sacramento Bankruptcy Attorney, my potential clients are often concerned with the ramifications of filing a Chapter 7 or Chapter 13 bankruptcy Petition. It is my job to help people understand and explain some of the myths that surround this process. Some potential filers may be concerned with the effect bankruptcy may have on any security clearance as a condition of his or her employment. My short answer is: Bankruptcy will have little impact on a security clearance.

The major reason that the Bankruptcy has no negative impact on a security clearance is because it makes a person less of a security risk. The United States Department of Defense states: “The purpose of a security clearance is to determine whether a person is willing and able to safeguard classified national security information, based on his or her loyalty, character, trustworthiness, and reliability.” The fact of the matter is that when a person files for Chapter 7 or Chapter 13 for a legitimate reason, it shows that this individual is making a responsible choice and confronting whatever economic situations are troubling them.

“All available, reliable information about a person, past and present, favorable and unfavorable, is considered in reaching a clearance determination. When an individual’s life history shows evidence of unreliability or untrustworthiness, questions arise whether the individual can be relied on and trusted to exercise the responsibility necessary for working in a secure environment where protection of classified information is paramount.

Sacramento area residents considering a Chapter 7 or Chapter 13 Bankruptcy should be aware the Eastern District of California has decided to raise the costs of filing a case effective June 01, 2014. The new Chapter 7 filing fee for the Sacramento jurisdiction is now $335.00. The Chapter 13 filing fee has also been raised to $310.00.

The Judicial Conference of the Administrative Office of the United States Courts approved the increase earlier this year. This fee increase reinforces the Federal Court’s continuing policy of shifting costs from the general population to the people who actually use the courts. In the context of a bankruptcy, this shift can be problematic, however, since the individuals seeking protection of the bankruptcy code have difficulty coming up with the filing fee to begin with, much less, paying the increased fees.

Every time the court Imposes a fee increase, we find less people being able to take advantage of the protection offered by the Bankruptcy Code. Supporters of the fee increase would argue that a debtor who cannot afford to pay the increased fees may apply for a fee waiver or alternatively request to make the fee in installments over the course of several months.

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