Tag Archives: bankruptcy

What Is Cause To Convert A Chapter 11 Bankruptcy Case To Chapter 7 Bankruptcy Case

By Ryan C. Wood

The short answer is whatever the Bankruptcy Judge assigned to your case thinks “cause” is because what “cause” is, is within the Bankruptcy Judge’s broad “discretion.”  Woo doggy.  Scary stuff.  Of wait, your Bankruptcy Judge went through a rigorous confirmation process to find out they are impartial and will treat you fairly and never ever have any type of bias for favoritism towards any party.  You may get hosed for any number of reasons that have nothing to do with your case or the law.  It all comes down to Money Money Money and not always your money.  Sometimes the money issues go your way.  Sometimes they do not. 

Money Money Money

So, you want to force the conversion of a voluntary Chapter 11 reorganization petition filed to now seek relief voluntarily in Chapter 7 and liquidate all not protected assets of the bankruptcy filer.  That means instead of the debtor, the bankruptcy filer, being in possession of the debtor’s assets, and trying to reorganize those assets for the benefit of all parties, you now want the case to be voluntarily, at your request, converted to a Chapter 7 liquidation and whatever assets cannot be protected are sold off by the Chapter 7 Trustee assigned to the case for the benefit of all parties.  If all parties are not benefiting from the voluntary conversion what is the point?  Creditors are supposed to benefit from the bankruptcy filing.  So, will creditors get more in a Chapter 7 liquidation versus and Chapter 11 reorganization?  Many Chapter 11 reorganizations are nothing more than Chapter 7 liquidations.  A Chapter 11 Plan of liquidation is proposed and the Chapter 11 Plan not a Plan of Reorganization in which the debtor, company/corporation/LLC continues to do business. 

Why File A Chapter 11 Liquidation Plan Versus Filing A Chapter 7 Bankruptcy

There are all kinds of reasons.  One of the most common reasons is because the officers and directors of the insolvent debtor may have fraudulently transferred assets or money prior to the bankruptcy filing.  Or the corporation debtor or LLC debtor is a closely held corporation or LLC and commingling of assets took place raising questions about limited liability the shareholders/owners of the entity.  See these legal entities were created to allow humans to do things to other humans that humans are not allowed to do to other humans on an individualized basis.  The human gets put in jail.  No corporation or LLC can be put in jail.  They are fined money.  Money Money Money

So You Think You Will Get More In A Chapter 7 Liquidation Now

Okay, what does the Money Money Money look like?  As part of the Chapter 11 Plan there will be a liquidation analysis attached to the Chapter 11 Plan providing what the debtor, their bankruptcy attorneys, believe creditors will get in a hypothetical Chapter 7 liquidation of assets.   So, the Chapter 11 Plan liquidation analysis should always provide more Money Money Money for creditors in the Chapter 11 Plan or it would not be proposed to begin with. 

The Law and Voluntary Bankruptcy Case Conversion

Discretion and more discretion is the key to “cause” and voluntarily converting a bankruptcy case to another Chapter of the Bankruptcy Code.  More less “cause” can be anything then if a Bankruptcy Judge says so.

If the lower Bankruptcy Judge’s decision is appealed and challenged, the Ninth Circuit Bankruptcy Appellate Panel or Ninth Circuit Court of Appeals will apply the following standards.   The decision to convert a bankruptcy case to Chapter 7 is within the bankruptcy court’s discretion.  See Pioneer, 264 F.3d at 806.   An appellate court will reverse the bankruptcy court only if the lower Bankruptcy Judge’s decision was “based on an erroneous conclusion of law or when the record contains no evidence on which the Bankruptcy Court rationally could have based its decision.” See Pioneer at 806–07, quoting Benedor Corp. v. Conejo Enters., Inc. (In re Conejo Enters., Inc.), 96 F.3d 346, 351 (9th Cir. 1996)). The standard for converting a Chapter 11 bankruptcy case to Chapter 7 is set out in 11 U.S.C. § 1112. This statute provides that the bankruptcy court “shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause.” 11 U.S.C. § 1112(b)(1). However, even if cause is established, Section 1112(b)(2) prohibits a bankruptcy court from granting relief under Section 1112(b)(1) if the bankruptcy “court finds and specifically identifies unusual circumstances establishing that converting or dismissing the case is not in the best interests of creditors and the estate, and the debtor or any other party in interest establishes one of two enumerated circumstances].  What does this mean?  It means depending on the arguments advanced by the various parties in the bankruptcy case, there are three primary questions: (1) whether cause exists for granting relief under Section 1112(b)(1); (2) whether granting relief is in the creditors’ and the estate’s best interests; and (3) if so, which form of relief best serves the creditors’ and the estate’s interests.

Sidenote: Good Faith Bad Faith = No Faith In Chapter 7 Conversion to Chapter 13

What we are talking about here is Chapter 11 reorganization and filing a motion requesting the Bankruptcy Court to voluntarily convert the bankruptcy case to Chapter 7 liquidation.  As a sidenote let us briefly discuss voluntarily converting a Chapter 7 liquidation case to a Chapter 13 reorganization case.  The difference between Chapter 13 and Chapter 11 is a Chapter 13 reorganization is for individual humans and not corporations or limited liability companies.  I will cut to the chase here.  While the Bankruptcy Code, Federal Rules of Bankruptcy Procedure, and legislative history all provide bankruptcy filers have the right to choose their destiny and voluntarily convert to Chapter 13 reorganization if they do not like how the Chapter 7 liquidation is progressing, humans not elected to Congress created an entirely new Bankruptcy Code through judicial interpretation of the Bankruptcy Code.  Your Supreme Court of the United States of America and the Ninth Circuit Court of Appeals repeatedly and consistently hold Section 105(a) of the Bankruptcy Code cannot be used to create new law that is exactly what has happened regarding converting from Chapter 7 to Chapter 13 reorganization. 

See the problem is some bankruptcy filers committed fraud when filing Chapter 7 and then when things fall apart of the Chapter 7 liquidation bankruptcy case the bankruptcy filer seeks a better deal by converting to Chapter 13 reorganization.  What the Bankruptcy Code does not address is the time and money spent by the Chapter 7 Trustee investigating the finances of the bankruptcy filer prior to seeking conversion.  How does the Chapter 7 Trustee get paid for their time for doing their job in a voluntarily filed Chapter 7 case?  They do not get paid if the case is converted to Chapter 13, normally.  So what did the human Chapter 7 Trustees do along with Bankruptcy Court’s throughout the United States of America?  They made their own law and created a bar to conversion if the debtor/bankruptcy filer acted to bad faith in the filing of their Chapter 7 petition, honesty in listing and valuing assets, or issues with anything the debtor/bankruptcy filer does.  So a debtor/bankruptcy filer amending their bankruptcy petition became bad faith as if a debtor does not have every right to amend their bankruptcy petition.  The law says yes and humans say no.  Any type of mistake is said to be “bad faith” and Chapter 7 Trustee’s and Bankruptcy Court’s decided we will punish humans for these alleged bad acts in filing the Chapter 7 bankruptcy petition.  Well, the problem is the words “bad faith” do not even exist in Chapter 7 of the Bankruptcy Code.  It is made up entirely.  One Chapter 7 Trustee went so far as to take away a bankruptcy filers right to protect the bankruptcy filers assets under state law.  A Chapter 7 Trustee nor Bankruptcy Court has a right to change any state law exemption to protect a bankruptcy filer’s assets.  The bankruptcy filers, if eligible, has a right to that state law exemption period.  The Supreme Court of the United States of America had to say no, this is wrong, no Chapter 7 Bankruptcy Trustee or Bankruptcy Court can create punishments for bankruptcy filers that do not exist in the Bankruptcy Code.

The problem is these professionals become biased or were always jaded against humans that seek protection under our Bankruptcy Code here in the United States of America.  It seems like many Americans  can no longer follow things that made and make the United States of America the greatest nation humans kind has ever known to date.  One is our insolvency laws and throwing yourself on the mercy of the Bankruptcy Code to orderly sift through the financial mess. 

But no one likes to work for free and no human should have to.  The remedy is changing the Bankruptcy Code and not creating law and procedures that do not exist pursuant to Section 105(a) of the Bankruptcy Code. 

Chapter 11 Conversion to Chapter 7

Back to the law and procedure regarding conversion and whether or not to grant conversion.  If the Chapter 11 reorganization is not working out or slowed down due to litigation it may make sense to seek conversion to Chapter 7.  Your bankruptcy attorney and you are more or less throwing in the towel and allowing a Chapter 7 Trustee to takeover all assets of the bankruptcy filer and sell or settlement regarding the assets for the benefit all creditors.  You originally filed a reorganization case so you would be in control of your assets or the assets of the business that filed for bankruptcy protection.  In theory cause exists for the conversion because conversion is in the best interest of all parties.

What Does Bankruptcy Do To Your Life?

By Ryan C. Wood

What does bankruptcy do to your life? It helps your life and will give you your life back without the stress of not affordable monthly payments on your debts.  Bankruptcy will allow you to live in peace and harmony without the stress of not being able to eat and live.  Bankruptcy is the law, written by your Congress and signed into law and enforced by your President.   

Generally, credit card debts, medical debts, other general unsecured debts are discharged [no legal obligation to pay anymore by Federal Court order] and your life is left with expenses like rent, food, cellphone and other reasonable living expenses.  The entire point of seeking relief under the Bankruptcy Code is to improve your life and it does or no one would ever choose to file for bankruptcy protection.  What bankruptcy does to your life is making your life enjoyable again and obtain a fresh start.  This is why bankruptcy laws exist.  To help you have a better life and consequently improve society as a whole.  We need everyone happy. 

How Does Bankruptcy Give You Your Life Back?

First, the consequences of not filing for bankruptcy can be significant.  Bankruptcy gives you your life back by giving you the ability to get ahead in life again.  You will no longer be held back by debt your cannot pay back based upon your circumstances. 

Once you stop paying on time each month the phone calls and letters seeking collection start.  At some point one or more of the creditors will sue you and obtain a judgment given there is rarely a defense to simply not paying anymore.  That is a breach of the credit card contract.  Once a judgment is obtained the judgment can be enforced by garnishing your wages, levying on your bank accounts, and recording the judgment so the judgment attaches to your real property or real property you purchase later.  You just went from being able to file a more or less anonymous bankruptcy case to handle your debt problems to your employer, your bank and the county you live in finding out you stopped paying your bills and a judgment was entered against you.  Now that is a significant consequence.  Considering your credit score is already low given the missed payments and/or late payments your credit score will not go lower when filing bankruptcy.  The damage is done.  Considering very few, if any, humans will know you ever filed for bankruptcy how is filing a significant bad consequence as “they” want you to believe?  The truth is there is nothing wrong with following the law when filing for bankruptcy protection and discharging your eligible debts.

Very Few Bankruptcy Filers Ever Lose Property

This is again fake news and a myth passed on from human to human that is not a bankruptcy attorney and should not be giving out advice.  This is especially true in California given California has generous exemptions to protect or exempt your property from the bankruptcy estate.  In California the CCP 703 exemptions includes a Wild Card Exemption totaling over $30,000.00.  If your circumstances are right, yes, you can have $30,000.00 in cold hard cash and discharge all your eligible debts and keep the $30,000.00 in cold hard cash.  Under the 704 exemptions the California Homestead Exemption to protect equity in your home is up to $600,000.00 depending upon the median sale price of homes in your county in the prior calendar year. 

Bankruptcy Will Generally Not Ruin Your Credit

This is a myth like skin color matters.  These myths are passed down from generation to generation poisoning minds and limiting futures.  Skin color does not matter; money matters.  Just ask Will Smith.  See, if you have enough money, you can go around slapping anyone you like without consequence.      

Every now and then I run into a potential client that has not missed a payment yet but unfortunately knows bad things are coming.  When the bad things come, they will no longer be able to pay the credit card bills each month.  The vast majority, say 90 percent or more, already have month after month of negative history on their credit report when they seek the advice of a bankruptcy attorney.  The credit score is already as low as it will ever go.  Bankruptcy can only help that situation getting rid of all the debt so the debit to income ratio skyrockets and no more negative history is recorded in their credit report.  Thank you, bankruptcy law.

You CAN Buy A House Within A Reasonable Amount of Time After Your Bankruptcy Case

This is another myth.  Just Google it.  You become eligible for every form of mortgage loan 18 – 24 months after your bankruptcy case is over.  Bankruptcy never prevents or bars someone from buying a home.  Qualifying for the loan and coming up with a down payment are what prevent humans from purchasing homes.  Not a bankruptcy on a credit report.  That is nonsense. 

Why cure the debt cancer for ever when businesses, corporations can make billions merely treating the debt cancer?  No wonder “they” want you to believe bankruptcy is bad.  They are making money off you struggling each month and care nothing about your personal well-being. 

You Do Not Have To Immediately Dismiss A State Court Lawsuit If The Defendant Files Bankruptcy

By Ryan C. Wood

This issue comes up all the time.  What I always hope is the creditor or plaintiff just dismisses the state court lawsuit without prejudice upon the filing of the bankruptcy petition.  The automatic stay goes into effect stopping any and all collection activity including lawsuits.  It just saves time and money for all parties.  Of course it is not that simple and I will discuss this issue in more detail below.  The important part is continuing status conferences or just maintaining the status quo and not dismissing the state court lawsuit once the defendant files for bankruptcy protection is not a willful violation of the bankruptcy automatic stay.  A recent Ninth Circuit Bankruptcy Appellate Panel decision addressed this issue.  See Jerome E. Perryman v. Karen Dal Pogetto, BAP No. NC-21-1036-BFS, Bk. No. 19-10253 (9th Cir. BAP 2021)

“Continuances like these keep the matter against the debtor ‘on hold’ consistent with the stay; they do not advance the matter in the creditor’s favor.”

See In re Welsch, 602 B.R. 682, 686 (Bankr. N.D. Ill. 2019) (holding that continuances in a prepetition domestic relations proceeding did not violate the automatic stay)

See In re Cobb, 88 B.R119, 120 (Bankr. W.D. Tex. 1988) (holding that a status hearing does not violate the automatic stay because it does not move the case forward to a judicial determination).

Just Maintaining The Status Quo In The State Court Lawsuit Not Willful Violation of The Automatic Stay

I really do not see the utility in continuing to have status conferences in a state court case that is dead or soon to be dead.  Each status conference requires a pre-conference statement be filed and then only thing to be communicated is the state court lawsuit is stayed until further notice.  It would make sense to then order the plaintiff to only schedule a status conference in the event there is no longer a stay in the bankruptcy case.  For some reason this does not always happen.  The only reason I can come up with is the plaintiff’s attorney wants to incur the time and bill their client.  The thing is more often not an attorney for the plaintiff has no interest in saving time and money.  The state court attorney that filed the lawsuit just got the rug pulled out from under them.  They may very well want to continue to appear for status conferences and have to file preconference statements before every conference.  They want to bill their client for that so …….

It Does Unnecessarily Increase Expenses

It is difficult enough for most bankruptcy attorneys to get paid for their time without complications.  So anything that increases the time I have to spend to get the job done is not good.  This is one of those issues.  I quote a client a fee for their case with the hope certain things play out as I plan and the amount I quoted is an amount I can make money on.  That is the deal.  When a creditor and/or their attorney choose to not dismiss the pre-bankruptcy state court lawsuit I have to spend additional time dealing with and explaining to my client what is going on and why, why a status conference statement continues to be filed in the state court case or why there continue to be status conferences.  It is just so much simpler and cheaper for the plaintiff to dismiss the state court lawsuit without prejudice.  If the defendant bankruptcy filer does not receive a discharge in their bankruptcy case the plaintiff/creditor can file the lawsuit again.  Or even better file a notice of stay of proceedings.  In California this is judicial council form CM-180.  If a defendant/debtor has made an appearance in the state court litigation under California law the defendant/debtor has the duty to file the notice of stay of proceeding.  Plaintiffs rarely if ever file a notice of stay of proceedings in the state court case. 

So in the Chapter 7 case upon entry of the order of discharge the state court lawsuit must be timely dismissed given the underlying claim is in fact legally discharged.

In a Chapter 13 case things get more complicated given a discharge is not received until after completion of the Chapter 13 Plan.  That could be as long as five years after the case is filed.  So in theory for five years a plaintiff could request the state court keep scheduling status conferences until the Chapter 13 Plan is complete and a discharged entered.  This is a common practice for foreclosure sale dates.  Upon the filing of a bankruptcy case a pending foreclosure sale of real property is stayed or stopped. 

Chapter 7 Case Versus Chapter 13 Case

As I began to discuss above there are differences whether the bankruptcy case filed is Chapter 7 or Chapter 13.  In Chapter 7 bankruptcy the debtor will most likely receive their discharge in 3 to 4 months after the petition is filed.  So the state court case can only be an issue for this short period of time even if not dismissed.  So one status conference is held or continued while the Chapter 7 case is still pending.  No big deal and this does not substantially increase bankruptcy attorneys time and expenses.  If the state court law is not dismissed upon entry of the debtor/defendant’s discharge then at some point it has to be a willful violation of the automatic stay.  In a Chapter 13 bankruptcy filing the Chapter 13 Plan is usually either 36 months or the maximum 60 months.  There can be five years for status conferences and status conference statements to deal with?  Potentially yes when the state court lawsuit is not dismissed.  Even of the notice of stay of proceeding is filed the state court could still choose to have periodic status conferences.  The entire point is to be ready to go in state court if for some reason the Chapter 13 case is dismissed.   Some Chapter 13 cases are filed to stop foreclosures or state court lawsuits temporarily with no intent to actually confirm a Chapter 13 Plan of Reorganization.  These case usually use the minimum documents, or a skeletal petition, to get the case started.  If a skeletal petition is filed then it is unclear whether the case will continue and the petition completed.  In this case it is perfectly reasonable to not dismiss the state court lawsuit unless the petition is completed and then a Chapter 13 Plan is confirmed or approved by the Court.  In a Chapter 13 case the end of the rode for creditors should be when a Chapter 13 Plan is confirmed or approved.  After that the debtor/defendant need only complete the plan to receive their discharge so why not dismiss the state court lawsuit at this point?  Well, the debtor/defendant has not completed the Chapter 13 Plan and received their discharge.  This is the, “So you say’ in I got a chance” syndrome.   At the off chance that the Chapter 13 case is dismissed the state court lawsuit is still there to be continued.

Why Is It So Difficult To Discharge Student Loans In Bankruptcy?

By Ryan C. Wood

Our media and politicians love to discuss and complain about student loan debt.  Student loan debt should be no different, better or worse, than home mortgages.  Home mortgages and student loans both allow someone to obtain something expensive now and pay for it later over a long period of time to make it affordable.  For homes it allows people who otherwise could not purchase a home purchase a home.  Student loans likewise allow someone to obtain an expensive education now that they cannot afford.  As long as the home appreciates in value the home loan is a good deal and there is a return on the investment.  Student loans are also supposed create a return on investment.  The problem is student loans are approved with no real analysis of the likelihood of the borrower paying them back.  What is the potential return on investment?  At the moment for student loans it does not matter.  Why scrutinize the borrower’s chances of paying the student loans back if the loan is federally subsidized and almost impossible to get rid of?  Why scrutinize the institution the borrower is attending.  

Brief Summary of the Problem Discharging Student Loans

Fake news and social media warps the truth. The truth is the Bankruptcy Code permits debtors showing undue hardship to discharge student loan debt when filing for bankruptcy. The problems is showing an undue hardship is dreadfully different depending upon what circuit you live in given the circuits are divided on how to determine whether undue hardship exists. The First Circuit and Eighth Circuit use the totality of the circumstances test. Many circuits, like the Ninth Circuit, use a three-part test developed by the Second Circuit in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395, 396 (2d Cir. 1987). Then there is the application of the three-part Brunner test by circuits that apply Brunner. Application and results vary widely. According to many bankruptcy lawyers the Fifth Circuit is needlessly harsh in its application of the Brunner test rendering it virtually impossible to satisfy. This is why the Bankruptcy Code’s language providing for the discharge of student loan debt is fake news for most bankruptcy filers even though

Money Matters Given You Have to Sue the Student Loan Company to Prove Undue Hardship and Discharge Student Loans

Money matters when speaking about attempting to discharge student loans when filing for bankruptcy. A typical Chapter 7 Bankruptcy filer in the State of California is living paycheck to paycheck and has less than $10,000 in assets, not including their car or retirement account. How can a bankruptcy attorney get paid for suing the bankruptcy filers student loan company? With no guarantee of success and a client with almost no ability to pay their attorney to litigate whether their student loans are an undue hardship what happens? Lawsuits or adversary proceedings to try and discharge student loans are rare on this basis alone. In California we have Civil Code Section 1717 awarding attorneys fees and expenses to the prevailing party. What about if you lose and the student loan company is awarded their fees/expenses for the litigation? That is going to be anywhere from $15,000 – $60,000 added to whatever student loans must paid back post-discharge. The cost benefit analysis almost always on balance results in not suing the student loan company.

Income Based Repayment (IBR) and The Supreme Court of the United States

There is an appeal before the Supreme Court of the United States from the United States Court of Appeals of the Fifth Circuit; Thelma G. McCoy, Petitioner, vs. United States, Case No. 20-886. The facts of this include income based repayment and the three prong Brunner Test. Ms. McCoy’s student loan payments were set at $0.00 at the time she filed for bankruptcy and sued here student loan company due to being enrolled in an income based repayment plan. If she did not obtain a higher paying job she would not have to make a higher student loan payment in the future. Begs the question how can student loans be an undue hardship if the monthly payment is limited to $0.00 each month? If your income increases you may have to pay more than $0.00 each month. What is also missing in the fake news and social media is a discussion or analysis about all the programs in real world for those having problems paying back student loans. Depending upon the IBR program, after 25 years in the IBR program and making the required payments, the remaining principal and interest are cancelled. See Code of Federal Regulations; 34 C.F.R. 685.221(f)(2).

People Interpreting The Law Is Always The Problem

The U.S. Constitution from day one provided we are all entitled to equal protection under the law and due process.  How has that worked out?  It comes down to human interpretation.  It is almost always human interpretation of the law that is problem and not the law itself.  The argument begins at the macro level [President, Vice President, Senator, Congressman, Supreme Court] when the real issue is the interpretation of the law at the micro level [Gov. Employee, Administrative Judge, Attorney, Corporation].  Who are the one or two human beings that will make the interpretation of the law you are addressing at your level?  It is not the Supreme Court of the United States.  Not the President of the United States or any part of your elected Congress.  You need to be concerned about the decision making person that was never appointed by the President of the United States or ever elected to office.  This person was hired to do a job and their interpretation and opinion is the most important at your micro level. 

Brief History of Student Loans and Discharge When Filing Bankruptcy

The last major change to student loans and the ability to discharge student loans when filing bankruptcy was 2005.  The BAPCPA Bankruptcy A Protection Consumer Protection Act.

Section 523(a)(8) of the Bankruptcy Code provides:

(a)A discharge under section 727, 1141, 1192 [1] 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—

(8) unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents, for—

(A) (i)an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or (ii)an obligation to repay funds received as an educational benefit, scholarship, or stipend; or

(B) any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual;

Debt Not Excepted From Discharge Under § 523(a)(8)(A)(ii) Because it was Not an Obligation For “Funds Received”

Prior to the Bankruptcy Consumer Protection Act of 2005, the language of Section 523(a)(8) was different. The words “funds changing hands” or “funds received” are now a separate category delinked from the phrases “educational benefit or loan.”

Except from discharge means not dischargeable or not discharged. Debts excepted from discharge and types of debts that would normally be discharge but for specific law providing certain types of debts are not discharged or excepted from discharge. Student loans are general unsecured debts and generally unsecured debts are dischargeable.

Section 523(a)(8) excepts from discharge four types of student debt: (1) 523(a)(i) an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit; or (2) made under any program fund in whole or in part by a governmental unit or nonprofit institution, or (3) an obligation to repay funds received as an educational benefit, scholarship, or stipend; or (4) any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor that is an individual. Meridian concedes it is not a governmental unit and the credit is not a qualified education loan as defined by section 221(d)(1) of the Internal Revenue Code. So that leaves number (3) above. Christoff received two tuition credits totaling $11,000 and she signed a promissory note with interest of 9%. She agreed to repay the tuition credits upon graduation at $350 per month. Christoff did not receive any funds and did not complete the program and graduate.

In 2013, Christoff filed for bankruptcy protection under Chapter 7 and Meridian filed an adversary proceeding lawsuit to determine if the tuition credits are excepted from discharge under Section 523(a)(8). This case addresses the language of Section 523(a)(8)(A)(ii) which provides “an obligation to repay funds received as an educational benefit, scholarship or stipend” is excepted from discharge. Meridian argued that Christoff received a loan in the form of a tuition credit and received an education. Christoff’s bankruptcy attorney argued that she never received any funds from Meridian and Meridian did not receive any funds from a third-party financing source. Judge Montali focuses on the language “funds received” in Section 523(a)(8)(A)(ii). The Court analyzed a number of cases from other circuits and the Ninth Circuit regarding Section 523(a)(8). Again, the main distinction between the various cases and decisions is whether the debtor/student actually “received funds.”

In the Christoff case in the Northern District of California, Judge Montali ruled that because the debtor’s obligations arose from funds not received by the debtor or Meridian from any other source, the underlying debt is not covered by Section 523(a)(8)(ii) and eligible for discharge. On June 26, 2014, Meridian College appealed Judge Montali’s ruling to the Bankruptcy Appellate Panel, Case No. NC14-1336.

Hawkins v. Franchise Tax Bd. of Cal., 769 F.3d 662, 666 (9th Cir. 2014) The plain language of this prong of the statute (Section 523(a)(8)) requires that a debtor receive actual funds in order to obtain a nondischargeable educational benefit.” Cazenovia Coll. v. Renshaw (In re Renshaw), 229 B.R. 552, 555 n.5 (2d Cir. BAP 1999), aff’d, 222 F.3d 82 (2d Cir. 2000)) Again, no funds were received so Section 528(a)(8)(A)(ii) did not except from discharge the tuition credits Ms. Christoff received.


3rd Prong of Brunner Test: Good Faith Effort to Repay the Student Loans


The main issue in the case was the 3rd prong of the Bruner Test, good faith effort to repay the loans. Whether someone has made a good faith effort to repay the student loans is more complicated and involves more issues that just making a monthly payment. A thorough conversation with your bankruptcy attorney should be had regarding these issues. Good faith can be measured by student loan holder’s efforts to obtain employment, the type of employment, the level of pay of the employment. The good faith prong also involves the student loan holder expenses. Did they minimize their expenses? Are their expenses for certain things too high given their income? The good faith prong also evaluates whether the student loan holder took advantage of payment plan options of the student loan company.

It was found that Hedlund was maximizing his employment income with his current employment in Klamath Falls. Heldund had also applied to two higher paying jobs. The Court noted that Hedlund had attempted to take the bar exam unsuccessfully three times. Not that passing the bar would have increased his income. Next the Court reviewed Hedlund’s expenses and found that his clothing, recreation and miscellaneous budgets including childcare and haircuts could be reduced.

Again, the District Court reviewed the original trial case de novo and found that Hedlund had not used his best efforts to maximize his income or minimize his expenses. The District Court notably criticized Hedlund for choosing to live as a single-income family, “a lifestyle that few today an afford.” Hedlund v. Educ. Res. Inst. Inc, 468 B.R. 901, 916 (D. Or. 2012). In the end the District Court should have reviewed the good faith prong of the test for clear error. The Ninth Circuit Court of Appeals found there was not clear error in the original bankruptcy court’s judgment to partially discharge Hedlund’s student loans.

Any Change In Internal Revenue Service Tax Liability Should Be Reported To The California Franchise Tax Board

By Ryan C. Wood

What is this madness?  No, this is not madness.  It is just the layer upon layer of law that exists.  Let me begin by informing you that filing for bankruptcy protection and owing the Internal Revenue Service or the California Franchise Tax Board unpaid taxes, fees or penalties is treacherous.  Taxes can be discharged when filing for bankruptcy protection under certain circumstances, or better put, the taxes owed fulfill the requirements to be discharged.  There are so many rules and layers upon layers of Tax Code versus Bankruptcy Code versus California State Law that it is treacherous.  One little obscure overlooked, previously not enforced or not known rule could result in the tax obligation not being discharged when filing for bankruptcy protection.  Or some rule not previously defined a certain way could be used to seek a different result not previously known.   That could be what happened to two bankruptcy filers in California and the subject of two recently published opinions by the Ninth Circuit Bankruptcy Appellate Panel.  The opinions were published given this issue had not yet been addressed at the appellate level.  That seems hard to believe so something must have changed.  The various laws below did not change so it must be how they are being enforced or used.  I think that change was the California Franchise Tax Board choosing to define or try and enforce California Revenue Tax Code Section 18622(a)(2) differently.  Unfortunately the lower Bankruptcy Court judges and then the Ninth Circuit Bankruptcy Appellate Panel agreed with the California Franchise Tax Board.  They are going to broadly defined “report” and “change” so that people seeking bankruptcy protection and a discharge pursuant to the Federal Bankruptcy Code cannot discharge unpaid taxes.  Another way to look at it is if you have not fulfilled your obligations to the taxing authorities then taxes owed should not be discharged when filing for bankruptcy protection.   Bankruptcy attorneys everywhere have an entire new set of questions to ask regarding unpaid taxes.         

See: In re: RUDOLF P. SIENEGA, BAP No. EC-19-1334-FLS

The Sienega bankruptcy case was originally filed in the Easter District of California and heard by Judge Christopher D. Jaime.  This case is distinguishable from the Voloshin case listed below.  In this case the bankruptcy filer notified the California Franchise Tax Board of the increased IRS assessments but admittedly he did not actually file “returns” with the California Franchise Tax Board for the same years he was seeking to discharge his tax liability.  See In re Hatton, 220 F.3d 1070 (9th Cir. 2000) regarding what is a “return.”  This case is a good example of arguably the proper application of RTC Section 18622(a) and Section 523(a)(1)(B) of the Bankruptcy Code.  You have to at least file a “return” to have a shot at discharge.   See In re Hatton, 220 F.3d 1070 (9th Cir. 2000).  How to you define what is “an honest and reasonable attempt to satisfy the requirements of the tax law?”


The Berkovich bankruptcy case was originally heard in the Central District of California and heard by Judge Maureen A. Tighe.  Now this case is far different.  The bankruptcy filers in this case had an increase in tax assessment by the IRS of $145,000 for a tax year but did not report to the California Franchise Tax Board of the change.  Eventually the California Franchise Tax Board did learn of the IRS change of assessment and increased the bankruptcy filers’ taxes owed by $45,000 for that tax year.  The taxes owed to the California Franchise Tax Board remained unpaid at the time the bankruptcy case was filed and the taxes met the requirements to be discharged notwithstanding RTC Section 18622(a) and Section 523(a)(1)(B) of the Bankruptcy Code. Unfortunately no [report] of the [change] was made.

When Must This [Report} of the [Change] Take Place?

California RTC Section 18622(a) provides within six months after the date of each final federal determination of the change or correction or renegotiation, or as required by the Franchise Tax Board, and shall concede the accuracy of the determination or state wherein it is erroneous.

Wow, what a mess this temporal or time requirement will hopefully turn into for the sake of bankruptcy filers. When was the federal determination of the [change] final? Can it issue be reopened to as to not be final?

California Revenue and Tax Code Section 18622(a)

This section provides: “requires a taxpayer to make a [report] to the California Franchise Tax Board FTB if the Internal Revenue Service [changes] the taxpayer’s federal income tax liability.

There is actually no language that says increase or decrease. I suppose if there was a decrease in any tax liability that in theory would never create a larger tax liability with the California Franchise Tax Board so who cares. Section 18622(a) is about encompasses increases of tax liability with the IRS and then increasing the California Franchise Tax Board liability accordingly. What if the [change] that is supposed to be [reported] decreased the federal income tax liability of the filer and the bankruptcy filer failed to [report] this decrease to the California Franchise Tax Board? Would this result in some tax not being discharged as well? What if it is only a penny change?  Or a one hundred dollar change?  A tiny change that was not reported?  Would it still be equitable to not allow the discharge of $100,000 in unpaid taxes due to not [reporting] a $0.01 change of assessment by the IRS? It is never so simple and defining terms then applying them to real world circumstances becomes even more difficult.  

Bankruptcy Code Section 523(a)(1)(B)

Section 523(a)(1)(B)1 of the Bankruptcy Code provides that if a taxpayer fails to file a required “return, or equivalent report or notice,” the relevant tax debt is not discharged.  So without knowing more this is about filing a tax return or an equivalent tax return report or notice.  It has nothing to do with informing the California Franchise Tax Board of a “change” in tax liability by the Internal Revenue Service.  Is the “change” an increase or decrease by the way? 

So Is This “Report” Required By California Revenue Tax Code Section 18622(a) What Section 523(a)(1)(B) of the Bankruptcy Code Encompasses?

Sadly the answer was yes in both of the published opinions referenced above. 

The Ninth Circuit Bankruptcy Appellate Panel held that the “report” required under RTC section 18622(a) is an “equivalent report” within the meaning of § 523(a)(1)(B).   So otherwise dischargeable taxes owed to the California Franchise Tax Board are not dischargeable unless a “report” of a change in the taxpayers’ federal income tax liability.

What qualified as fulfilling this obligation to report?  Can you call up the FTB and verbally “report” a change in federal income tax liability?  An email?  A facsimile?  What will fulfill the obligation of RTC Section 18662(a) be?   This is what will come next and how it works.  First a term is broadly defined to encompass something or create a circumstance that was never intended by the legislature then good faith compliance with the new interpretation is deemed not sufficient.  Someone will in fact “report” their change in federal income tax liability and how they chose to “report” will be deemed not a “report.”  This is how it works.  Oh by the way, RTC Section 18622(a) does not make the distinction between an increase in tax liability or decrease in tax liability.  It just says you need to “report” a change in federal income tax liability.  As the plain language of these words provides that is any change.  So you are telling me that a bankruptcy filers federal tax liability could be reduced by hundreds of thousands of dollars but fail to “report” this decrease or change to the California Franchise Tax Board and as it stands right now that failure to “report” would make a tax liability owed to the California Franchise Tax Board not dischargeable when seeking bankruptcy protection?  Is this not absurd?  When the language of a statute is plain, courts must enforce the statute according to its terms unless doing so would produce absurd results.  See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004).  How is an absurd result defined as not absurd?  The court just says the result is not absurd.  

Section 523(a) Full Text

(a)A discharge under section 727, 1141, 1192 [1] 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—

(1)for a tax or a customs duty—

(A) of the kind and for the periods specified in section 507(a)(3) or 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed;

(B)with respect to which a return, or equivalent report or notice, if required—

(i) was not filed or given; or

(ii) was filed or given after the date on which such return, report, or notice was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition; or

(C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax;

California Revenue and Tax Code RTC § 18622

(a) If any item required to be shown on a federal tax return, including any gross income, deduction, penalty, credit, or tax for any year of any taxpayer is changed or corrected by the Commissioner of Internal Revenue or other officer of the United States or other competent authority, or where a renegotiation of a contract or subcontract with the United States results in a change in gross income or deductions, that taxpayer shall report each change or correction, or the results of the renegotiation, within six months after the date of each final federal determination of the change or correction or renegotiation, or as required by the Franchise Tax Board, and shall concede the accuracy of the determination or state wherein it is erroneous.  For any individual subject to tax under Part 10 (commencing with Section 17001 ), changes or corrections need not be reported unless they increase the amount of tax payable under Part 10 (commencing with Section 17001 ) for any year.

(b) Any taxpayer filing an amended return with the Commissioner of Internal Revenue shall also file within six months thereafter an amended return with the Franchise Tax Board which shall contain any information as it shall require.  For any individual subject to tax under Part 10 (commencing with Section 17001 ), an amended return need not be filed unless the change therein would increase the amount of tax payable under Part 10 (commencing with Section 17001 ) for any year.

(c) Notification of a change or correction by the Commissioner of Internal Revenue or other officer of the United States or other competent authority, or renegotiation of a contract or subcontract with the United States that results in a change in any item or the filing of an amended return must be sufficiently detailed to allow computation of the resulting California tax change and shall be reported in the form and manner as prescribed by the Franchise Tax Board.

(d) For purposes of this part, the date of each final federal determination shall be the date on which each adjustment or resolution resulting from an Internal Revenue Service examination is assessed pursuant to Section 6203 of the Internal Revenue Code . 

The real absurdity or tragedy is that bankruptcy attorneys that know such distinctions and actually properly represent their clients rarely get paid properly for this knowledge and expertise.  The lowest common denominator effect and advertising have ruined the market.  Any attorney can put up a website then use pay-per-click and have fake reviews placed on the internet and sadly it works.  Honest attorneys receive reviews organically over a period of time. Dishonest attorneys have a bunch of reviews with few words in a short period of time on one online platform and it is not organic. A ten out of ten rating on some online website is bought and paid for regardless of experience and knowledge. How can certain entities take money to recommend attorneys with absolutely ZERO knowledge of that attorney? Nothing is being done about this by any organization. Hopefully you read this article and my other articles to know what I am about and how I represent my clients. If you dare try and make things better you will be the nail that sticks out you will get hammered by all those on board with “the system.”