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September 2012 Archives

Rochester Motion Calendars: Double-Check Availability (literally)

Attorneys in the Rochester Bankruptcy Court who file motions need to set the time and date of the hearing on the motion according to the Court's calendar of available motion dates. Our prior bankruptcy judge, Hon. John C. Ninfo II, did not limit the number of motions which could be assigned to one calendar; occasionally many more motions were scheduled for a hearing date than could be accommodated in the time allowed, and so motions would run over into overtime.

Buffalo Bankruptcy Court To Allow Limited Default Motions

The bankruptcy court for the Western District of New York is organized in two separate divisions: Rochester and Buffalo. The judges in each division determine their own court practice for the scheduling of motions, such as motions to remove a lien against the debtor's house or a motion to approve the sale of a bankruptcy asset. Most motions require a written application and a hearing before the bankruptcy judge assigned to the case.

Life Estate, Remainder Interest and the Power to Appoint; How to Avoid Being Stuck with a Bankruptcy Debtor as Holder of a Remainder Interest in Your Homestead

Medicaid planning often includes elderly parents transferring the title to their house to their kids, but retaining the right to own the property while they (the parents) are alive. When this happens, the parents have a "life estate" (that is, they own the house so long as they are alive) and the kids have a "remainder interest" or a "future interest" (that is, they own the right to own the house in the future, after the parents pass.)The bankruptcy problem comes up when one of the kids holding the remainder interest files a bankruptcy. Now the bankruptcy trustee holds the future interest (see my blog of March 8, 2011 as to how the value of a remainder interest is calculated in bankruptcy.)This issue comes up all the time, and is very painful. The parents deed the future interest in their house to their child years ago; the child probably has forgotten all about it. The child comes in for the bankruptcy interview and, with prompting, says "oh yeah, I remember something about that." Even worse is if the child remembers it after the bankruptcy is filed, when it is too late to do anything about it.

Tax refund considered Income for Waiver of Filing Fee Purposes: In re Brooks

A debtor's attempt to have her bankruptcy filing fee waived was ultimately denied by Judge Bucki in Buffalo, after it was revealed the debtor was entitled to a large tax refund when the case was filed. This tax refund was treated as income, at least for the purpose of determining eligibility to have the filing fee waived, and the reasoning of the case could potentially be applied elsewhere. In re Brooks, WDNY Bk #12-10456; Hon. Carl L. Bucki; decision July 19, 2012.The debtor filed bankruptcy February 17, 2012. She was represented by an attorney, who had charged $915 for his services. The debtor filed an application for waiver of the $306 bankruptcy filing fee, under 28 U.S.C. §1930(f)(1), which states "the bankruptcy court may waive the filing fee in a case under chapter 7 of title 11 for an individual if the court determines that such individual has income less than 150 percent of the income official poverty line . . . and is unable to pay that fee in installments". Therefore, the debtor must show both that he or she is under the 150% of the poverty line and is unable to pay the filing fee even in installments. Even then, the waiver is discretionary ("The court MAY waive. . .")

Bankruptcies in Western New York Continue Decline

Through the end of August, 2012, bankruptcy filings in both the Rochester and Buffalo divisions of the Western District of New York continue to decline. In the first eight months of 2012, 1,520 bankruptcy cases were filed in Rochester, a decrease of 13.2% from the same time in 2011. Buffalo saw 2,887 filings, a decrease of 8.8%. 179 bankruptcy cases were filed in Rochester in August this year, compared to 213 in August 2011 and 288 August 2010. August filings in Buffalo declined from 465 to 359 over the same two year period.Nationally, bankruptcy filings dropped 14% during the first half of 2012, compared to 2011.

Charges & Cash Advances & charges Just Prior to Filing Provoke Discharge Complaint

If a debtor has recently run up a credit card account, will the bank seek to have its debt excepted from discharge? How much debt and over what sort of time period might cause a bank to file an exception-to-discharge lawsuit in the bankruptcy case? One review of discharge exception lawsuits filed by one bank in particular would suggest that charges and cash advances of $4,000 or more incurred during the five months prior to filing could provoke a lawsuit.

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