BANKRUPTCY LAW FOR FAMILY COURT JUDGES. Senior Judge John C. Lenderman St. Petersburg, Florida

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1 BANKRUPTCY LAW FOR FAMILY COURT JUDGES Senior Judge John C. Lenderman St. Petersburg, Florida

2 Bankruptcy Overview Chapter 7- Fresh Start Time- 4-6 months Cost- filing fee $306 Attorney s fee $1200-$1500 Chap 7 & 13 Require credit counseling

3 Chapter 7 Overview POT OF MONEY---includes all stuff-- House, car, tax refund. pension, clothes, stuff ----not income Schedule C all state and federal exempt stuff can be pulled out of pot. Pot of Money less claimed exemptions are sold to pay creditors

4 Chapter 13 Wage Earner Overview Time-- 3 to 5 years Cost-- $281 filing fee $4100 max attorney fee for a 60 month plan

5 Chapter 13 assumptions Assume $25,000 behind in mortgage payments; $1200 fee paid and $1200 owed atty. $25,000 = $ months $1200 = $20/mo 60

6 Chapter 13 Plan Example Ex of Allowable living expenses: Mortgage/rent $850/mo car pmt/lease $500/mo child support $700/mo IRS $300/mo Atty fee $20/mo Arrearage pmts $416/mo food $400/mo Total $3270

7 No wine, beer, cigs, pot, poker or movies Total austerity Chapter 13 Plan Example All disposable income must be committed to Plan Example: Income $3270/mo -allowable living expenses $6000/mo Disposable income $2730 $2730 must be committed to plan, even though only $416 minimum is needed

8 Chap 13 end result All estate property vests back to debtor upon dismissal, OR confirmation of plan All Chap 13 monthly payments to trustee via epay, check, by first of month

9 Bankruptcy Supremacy Clause Supersedes State Law

10 WHAT CAN YOU DO? Question 1 - Does automatic stay allow you to go forward? Question 2 - If you can go forward, what can you proceed against?

11 Automatic Stay Automatic Stay = Injunction upon filing You may not proceed against the property of the Bankrupt Estate. Bankruptcy Estate = trust corpus Bankruptcy is an in rem proceeding

12 IN REM PROCEEDINGS ADOPTION MORTGAGE FORCLOSURE DIVORCE ONLY PROBATE BANKRUPTCY

13 11 U. S. C automatic stay provisions 1. Does not operate to stay enforcement or continuation of a proceeding for: (i) the establishment of paternity; or (ii) the establishment or modification of an order for alimony, maintenance or support; or

14 (i) Of the collection of alimony, maintenance, or support from property that is not property of the bankruptcy estate.

15 THUS Automatic stay does not apply to 1) establishment of paternity, 2) establishment or modification of support or 3) collection from non-estate property. Same rule for Chapter 7 or Chapter 13

16 Automatic Stay Exceptions: Automatic stay does not apply to 4) Collection of support through state income deduction order, even if income is estate property. 5) Does not stop state/federal refund intercepts 6) Does not stop license suspensions.

17 Same rule for Chapter 7 or Chapter 13

18 Chap 7 fact Example Robert is before you in a child support arrearage collection case. His lawyer tells you Robert filed a Chapter 7 petition last week. Robert won the $1000 lottery yesterday and is still employed. Judge, rule!

19 Voluntary Chapter 7 Post filing income, after acquired & exempt Property are not estate property in a Chap 7 Not in Pot of Money

20 Chapter 7: What is collection from property that is not part of bankruptcy estate? post-filing income-ok property acquired after filing -OK exempt property-ok

21 FLA. Chapter 222 Exemptions: Homestead Life insurance CSV IRA Pensions/profit sharing 401K Annuities These exemptions and after-acquired INCOME AND PROPERTY are fair game for all collection techniques in Chapter 7 & 13.

22 FEDERAL EXEMPTIONS Federal employee benefits and pensions Railroad retirement Social Security Veterans benefits Motor vehicles & some jewelry 11 USC 522 (b) (2)

23 SOME NEVADA EXEMPTIONS Homestead equity up to $550,000 $125,000 Real Property Limited Annuities Some life insurance proceeds Property of business partnerships ERISA benefits One gun Vehicle to $1500

24 How do you know what is exempt property? * Ask debtor under oath what exemptions claimed. * Require parties to bring copy of petition with the Schedule C (claims for exemptions) * Continue hearing and require Creditor s atty to get info via phone or Pacer.

25 Chap 13 fact Example Robert is before you in a child support arrearage collection case. His lawyer tells you Robert filed a Chapter 13 petition yesterday. What do you do?

26 Chapter 13: Individual reorganization Property of estate Pot of Money includes post filing income and all real & personal property

27 Chapter 13:. 1) continuing, post filing income 2) non-exempt property Contempt: If purge can only come from the estate of the bankruptcy STOP For example: If only from current income, the party must seek relief from stay. If no exempt property: STOP

28 Chapter 13-The good news Debtor must pay current support to remain in Chapter 13. State Court collections would only be for BACK support from exempt property & non-income sources.

29 Chap 13 Collecting back support Support is a Priority 1 debt. Priority 1 debts must be paid in full Back support must be repaid in a Chap 13 up to 5 years.

30 Always ask yourself 1 st question: What is the Pot of Money? 2 nd question: What is outside of the Pot to proceed against?

31 Relief from Stay Any creditor/spouse may move for relief from automatic stay. Preliminary hearing within 30 days Automatic relief from stay after 30 days from preliminary hearing unless bankruptcy court says otherwise.

32 Relief from Stay The Family Judge does not receive any notice from the Bankruptcy Court

33 Criminal Contempt any criminal prosecution is not stayed. REMEMBER: Civil Contempt to compel Criminal Contempt to punish Other available remedies: Only against Schedule C exempt property: - QDRO PENSION HOMESTEAD, etc

34 What is this? Ordered: The wife shall pay the husband $10,000, payable at the rate $1,000 per year for 10 years. This obligation is not discharable in bankruptcy. Support or property settlement?

35 Chap. 7 Dischargeability of Support Is it support or a property debt? While obligation to make payments to effect a property division may be dischargeable [ 523(a)(15)] 523(a)(5): Concurrent jurisdiction to determine only if payment is spousal/child support.

36 Standard of Concurrent Review to Determine if Support: de novo subject to contingencies such as death or remarriage? was payment to balance disparate incomes? installments or lump sum? 11 U.S.C. 523(a)(5)

37 Are there minor children in need of support? respective health & earning ability of parties Is there a real need for support?

38 THUS Concurrent jurisdiction If the state court determines that it is support, then it is non-dischargeable. If not dischargeable in a Chap 7, collectable from non-estate or exempt property. 11 U.S.C. 523(a)(5)

39 PERMITTED ENFORCEMENT CHAPTER 7 CHAPTER 13 Post-filing income and acquired property OR Exempt property Enforce only from exempt property

40 Question The father fails to pay child support. the mother files enforcement proceedings. At the beginning of the hearing, the father tells the court that he just filed a Chapter 7 bankruptcy proceeding. What do you do? 1 st questions are what is the estate & what is the stay?

41 Child support exempt from auto stay Enforcement only against property NOT part of estate OK to go after post filing wages OK to go after post-filing property OK to go after exempt property REMEMBER THIS IS A CHAP. 7

42 How is Exempt Property determined? * Exempt property must be claimed by debtor in Schedule C of petition. 341 hearing is First Meeting of Creditors. 341 hearing 30 days after filing Exemptions automatic unless contested within 30 days of 341 hearing.

43 The father fails to pay child support. The mother files enforcement proceedings. At the beginning of the hearing, the father tells the court that he just filed a Chapter 13 bankruptcy proceeding. What do you do? What is 1 st question? Example

44 Can you proceed? Chapter 13---What is stayed? What is the bankruptcy estate? You can not proceed to enforce against income as it is the estate!

45 Chapter 13 Analysis Debtor s Chapter 13 plan must include current support to remain in Chapter 13. Remember pre-and post-filing income are assets of Chapter 13.

46 Example As part of a property division and equalization of property, the husband is obligated to pay the wife $10, cash by a date certain. He does not. The wife commences enforcement proceedings. At the hearing, the court notices a suggestion of bankruptcy in the court file. May the court proceed to enforce the obligation?

47 Analysis Is he in a Chapter 7 or Chapter 13? Is the debt in the nature of support? State court has concurrent jurisdiction to determine if obligation is support or strictly property.

48 Chapter 13: If support, not subject to automatic stay, however: Collectible only against exempt property: pre and post filing income & property part of bankruptcy estate. Need relief from stay. If not support STOP you can do nothing.

49 Chapter 7: Collections If collecting support Not subject to automatic stay. Collectible only from post filing income and post acquired and exempt property. If not for support Need relief from stay.

50 EXAMPLE As part of an equitable distribution plan, the wife is obligated to pay the husband s lawyer $5, as part of the husband s attorney s fees. She does not timely pay and the husband brings an enforcement proceeding. At the hearing, the court learns the wife has filed a Chapter 7 bankruptcy proceeding. What can the court do and how should the court proceed?

51 Analysis Is this support? If yes, proceed. If no, need relief from stay.

52 EXAMPLE Sara files a paternity suit against Joe seeking the establishment of paternity and the establishment of a child support obligation. At the final hearing, Joe advises the court that he just filed a Chapter 13 proceeding. What can the court do at that point?

53 This is an initial establishment action NOT STAYED OK TO PROCEED Enforcement Only against property that is not property of the bankruptcy estate.

54 Question The obligor parent brought a motion to terminate the IDO as he has filed a Chapter 13 petition. He tells you his income is part of the bankruptcy estate and you cannot take his income. He says if you don t terminate the IDO he ll file a motion in bankruptcy court to hold you in contempt. Judge, think this through and rule properly.

55 Aren t you glad you have a job and don t have to worry about going bankrupt?

56

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