Monthly Archives: June 2013

What is Chapter 20 Bankruptcy Case?

By Ryan C. Wood

Every so often I get asked about what the possibilities of are of filing a Chapter 20 bankruptcy. Chapter 20‘s are not usually asked for by name given that not too many people know what a Chapter 20 bankruptcy is. A Chapter 20 bankruptcy is when you have essentially filed a Chapter 7 bankruptcy and then subsequently file a Chapter 13 bankruptcy (7 + 13 = 20). Normally you have to wait 4 years after filing a Chapter 7 bankruptcy before you can file a Chapter 13 bankruptcy case and be eligible to receive a discharge of your debts.

What are the situations where you would need to file a Chapter 20 bankruptcy?

Wouldn’t it be simpler and cheaper to just file a Chapter 13 the first time around? Yes, most of the time it would be simpler if you had just filed a Chapter 13 so there are not as many issues. However, that is sometimes not possible due to the circumstances. People sometimes file for a Chapter 7 first to discharge of all their unsecured debts before filing a Chapter 13 because they may be over the debt limitations under 11 U.S.C. §109(e). You are not eligible to be a debtor under Chapter 13 is your unsecured, liquidated, noncontingent debts exceed $383,175, or secured, liquidated, noncontingent debts exceed $1,149,525. Another scenario may be they file for a Chapter 7 to discharge their unsecured debt but later find themselves with mortgage arrears and are facing foreclosure so they need to file a Chapter 13 bankruptcy case to save their home. If you are considering a Chapter 20 bankruptcy you should consult with an experienced bankruptcy attorney to help you with the case as it may be fairly complicated.

Chapter 20 and Lien Stripping

One of the biggest questions currently is whether you can strip your junior mortgage in your Chapter 13 bankruptcy case if you have already received a discharge of your debt in your previous Chapter 7 case. Since you have already received a discharge of your debts in your Chapter 7 case you will not be receiving a discharge of your debts in the Chapter 13 case. Sometimes a discharge is not necessary though. For example, if you are filing a Chapter 13 case to pay back arrears in the plan there is no need for a discharge. There are some creditors that will argue that you cannot get a lien strip in your current Chapter 13 case if you will not receive a discharge. Fortunately, the Ninth Circuit holds that a lien strip in your current Chapter 13 case is possible so long as you successfully complete your Chapter 13 plan. This means your bankruptcy lawyer can help you strip your underwater junior mortgages, but you have to make sure you make all the Chapter 13 plan payments in order for the lien to be stripped.

Another issue in filing a Chapter 20 bankruptcy case is good faith. You cannot file a Chapter 20 case simply to do a lien strip. There are many factors to determine good faith: 1) whether the debtor misrepresented facts in the petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed the Chapter 13 petition or plan in an inequitable manner; 2) the debtor’s history of filings and dismissals; 3) whether the debtor only intended to defeat state court litigation; and 4) whether egregious behavior is present. In re Leavitt, 171 F.3d 1219 (9th Circuit 1999). The courts will look at the totality of the circumstances to determine whether the case was filed in good faith.

Increased Bankruptcy Exemptions in California as of April 2013

By Ryan C. Wood

In January 2013 California Assembly Bill 929 increased the exemptions available to protect your property in California. As of April 1, 2013, the exemptions available increased even more under California Civil Procedure sections 703 and 704. This is great news to a lot of people who were thinking of filing for bankruptcy protection. Your bankruptcy lawyer will now have more options to protect your assets. It may provide some comfort knowing that more assets can be protected. Here are some of the changes as of April 1, 2013:

California C.C.P. §703.140 Exemptions:
• $25,075 in homestead or burial plot (previously $24,060). This means that if you have any equity in your residential property you can use this exemption to protect the equity.
• $26,425 wildcard exemption: this exemption consists of $1,350 plus any unused portion of the $25,075 homestead or burial plot exemption (previously $25,340).
• $5,100 in one or more motor vehicles (previously $4,800).
• $650 in any single item of household goods (previously $600). Note this is per item; if the current market values of all of your household goods are less than $650 each they are all protected.
• $1,525 jewelry (previously $1,425)
• $7,575 tools of trade (previously $7,175)
• $13,675 unmatured life insurance policies (previously $12,860)
• $25,575 personal injury payments (previously $22,075)

California C.C.P. §704.730 Exemptions:
• $2,900 motor vehicle exemption (previously $2,725)
• $7,625 jewelry, heirlooms, and works of art (previously $7,175)
• $7,625 tools of trade for only one spouse (previously $7,175)
• $15,250 tools of trade for both spouses (previously $14,350)
• $1,525 public benefits for one payee (previously $1,425)
• $2,275 public benefits for joint payees (previously $2,150)
• $3,050 social security benefits for one payee (previously $2,875)
• $4,575 social security benefits for joint payees (previously $4,300)

Since the publishing of this article, the homestead and burial plot exemption under §703 have increased to $25,575 from $25,075. This means that the wildcard exemption can be up to $26,925. The wildcard exemption consists of any unused portion of the homestead exemption above plus $1,350. The tools of trade and professional books exemption has also increased to $7,625 from $7,575.

The exemptions above are only some of the changes; it does not encompass all the changes of exemptions. The homestead exemptions under CCP §704 remain the same: $75,000 for a single person, $100,000 if you are a member of family unit where one or more members of the family do not own an interest in the homestead or whose only interest is a community property interest or $175,000 if: 1) you are 65 years or older, 2) physically or mentally disabled and cannot work as a result, or 3) 55 years or older with gross annual income of less than $25,000 for a single person or $35,000 if married and there is an attempted involuntary sale. With home prices on the rise in most areas your bankruptcy attorney will most likely recommend obtaining an appraisal.

Since you have to choose CCP §703 or CCP §704 exemptions (you cannot use both) it is generally beneficial to use the CCP §703 exemptions because there is the generous wildcard exemption to protect more of your assets unless you have a home that has a lot of equity that needs to be protected. Your bankruptcy attorney would be able to help you determine which of these exemptions to use to benefit your situation the most.

What Mental State is Required for Defalcation While Acting in a Fiduciary Capacity?

By Ryan C. Wood

It has long been understood that under 11 U.S.C. §523(a)(4), you would not be able to receive a discharge of your debts in bankruptcy if those debts were incurred due to a fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. On May 13, 2013, the Supreme Court described the scienter (state of mind) necessary to be considered “defalcation” in the case of Bullock v. BankChampaign, N.A., 569 U.S. _____ (2013).

In Bullock, Bullock’s dad made him the trustee in a trust that was established for Bullock and his four other siblings. Bullock borrowed money from the trust but he made sure the trust was repaid with interest every time he borrowed money. Bullock’s siblings sued him for a breach of fiduciary duty in state court and won. The state court imposed constructive trusts for the judgment and BankChampaign served as the trustee for the trusts. Bullock had to file bankruptcy because he was not able to liquidate his assets to pay for the judgment. BankChampaign opposed the discharge of the debt because it claimed the debt was for defalcation while acting in a fiduciary duty. After the bankruptcy court, federal court, and court of appeals all affirmed that the debt was not dischargeable, Bullock sought certiorari to decide whether defalcation applied even if there was no ill intent.

The Supreme Court concluded that defalcation requires an intentional wrong. “We include as intentional not only conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often treats as equivalent…Where actual knowledge of wrongdoing is lacking, we consider conduct as equivalent if the fiduciary ‘consciously disregards’ (or is willfully blind to) ‘a substantial and unjustifiable risk’ that his conduct will turn out to violate a fiduciary duty.” Bullock v. BankChampaign, N.A., 569 U.S. _____ (2013).

The Supreme Court decided to hear this case because there were different rulings throughout the country on whether a mental state was necessary to determine if there was defalcation. In the Ninth Circuit a bankruptcy lawyer only had to prove an innocent mistake took place by a fiduciary. Some circuits considered an act to be defalcation if the person did or fail to do something they were required to do in their fiduciary capacity. Whether the person knew the act or failure to act was wrong or not did not matter. Then there were some circuits that required a showing of extreme recklessness. The Supreme Court wanted to be sure that all the circuits applied the same standards and their ruling are more consistent. This also means that creditors objecting to the discharge of certain debts due to defalcation have more to prove. Their bankruptcy attorney cannot just claim that there was a wrongdoing, but now must prove actual intent to harm or recklessness. Did the debtor act in a way that a law abiding person would in the same circumstances? There are many questions that remain to be answered regarding this new defalcation requirement.

Should I Have Bank Accounts At the Same Bank I Owe Money To?

By Ryan C. Wood

Most people have at least one bank they are loyal to and have multiple types of accounts with that bank. I am sure that whatever bank you currently do business with (such as Bank of America, Wells Fargo, Chase, Citibank, San Mateo Credit Union, Fremont Bank, credit unions, or any other bank) offers you incentives and seemingly great deals to open another type of account with them. The new account could be a credit card, car loan, a mortgage or home equity loan, or home equity line of credit. This is a great opportunity for the banks to easily obtain more business from you since you are already a customer. Unless you hate your bank you would most likely take the bank up on the offer if you need that additional service. You are probably thinking that you need that service anyway so why not with a bank that you already know and trust? You can see all your accounts on one screen and take care of the payments easier and more efficiently. That is exactly what the banks want you to think and feel.

If everything in your life is going great there would be no issues with having multiple bank accounts, a credit card, car loan or a mortgage and line of credit with the same bank. What happens once you have a financial setback though? What happens if you are unable to continue paying on one or more of the debts owed to the bank? At this point you should highly consider speaking with a bankruptcy lawyer to assess your situation. Think of it this way: your accounts are a one-stop-shop for the banks as well. Are your credit cards cross collateralized with your vehicle loan? If so then you will not get the pink slip to the vehicle unless you pay all the credit card debt too. If you are unable to make your credit card payments for a period of time, guess what? Under certain circumstances banks can take the money you owe them from your bank accounts. How can the banks do this, you ask? This process is called a “setoff” and you gave them permission to do this when you signed up for the extra credit card, car loan or home mortgage. You don’t remember giving them permission? It is probably part of the small print under the terms and conditions of the loan or credit card that you probably never read and never knew that you would be giving the banks permission to do this.

If you have a credit card with a bank that you do not have a bank account with, the bank would need to sue you first and obtain a judgment against you before they can levy your bank account. This is not necessary if you have a bank account with the bank you owe money to. They can just take it from your bank account. It will get worse if you wrote a check to pay a bill not knowing that the bank already took some money out of the bank account and then the check bounces. You would then be hit with an NSF and be charged multiple fees by the bank. Most of my clients have the same response when I advise them of this practice. They say, “Oh, the bank will never do that to me! I’ve been a loyal customer for 20 years!” As a bankruptcy attorney that has filed hundreds and hundreds of bankruptcy cases I can tell you that banks are not people; they do not have feelings. They do not care if you have been a customer for 1 year or 10 years. Banks are in the business to make money. Bottom line: do not have bank accounts at the same bank where you owe money.