By: James W. Boyd, Esq. Zimmerman, Kuhn, Darling, Boyd and Quandt, PLLC, Traverse City, MI

Transcription

1 By: James W. Boyd, Esq. Zimmerman, Kuhn, Darling, Boyd and Quandt, PLLC, Traverse City, MI

2 WHEN THE STAY DOESN T APPLY! Even in the absence of a motion and order for relief from the automatic stay, in some circumstances, Sections 521(a) and Section 362(h) may work together to result in the automatic stay being terminated as to your personal property collateral. Must have an allowed claim for the purchase price of the collateral.

3 WHEN THE STAY DOESN T APPLY! the stay is terminated and the property is no longer property of the bankruptcy estate IF: - the debtor fails to file a timely statement of intention to indicate wither the debtor intends to surrender the property or retain it; and, if the debtor intends to retain it, whether s/he intends to redeem it or reaffirm the debt; AND - the debtor fails to take timely action to perform the stated intention.

4 WHEN THE STAY DOESN T APPLY! The applicable time frame for the debtor s timely filing of a statement of intention is within 30 days after filing the bankruptcy petition, or on or before the Sec. 341 meeting of creditors, whichever is earlier, or within such additional time as the court fixes (for cause shown). Sec. 521(a)(2). The applicable time frame for the debtor s timely action to perform their stated intention is within 30 days after the first date set for the Sec. 341 meeting of creditors, or within such additional time as the court fixes (for cause shown). But note conflicting 45 day period under Sec. 521(a)(6).

5 WHEN THE STAY DOESN T APPLY! In instances where the debtor has not complied with Section 521(a), and by operation of Section 362(h) the stay has been terminated and the property removed from the bankruptcy estate, creditors are again free to avail themselves of state law remedies to repossess the collateral. But what if the debtor is current on payments? Does the ride through option still exist?

6 WHEN THE STAY DOESN T APPLY! There are exceptions to Section 362(h) terminating the stay and removing property from the bankruptcy estate: - where the debtor expresses an intent to reaffirm and the creditor refuses. - where the court refuses to approve a reaffirmation agreement. - where the trustee files a motion for a determination that the property is of consequential value or benefit to the estate.

7 SEC. 502(H) FILING A CLAIM AFTER BEING SUED BY TRUSTEE Most creditors, including credit card companies, are sued by trustees at some time on the theory that they received a preferential transfer under Sec. 547.

8 SEC 502(H) FILING A CLAIM AFTER BEING SUED BY TRUSTEE The Bankruptcy Code vests the trustee with the powers to avoid certain transfers which occur prior to a bankruptcy filing. One such avoiding power is invoked when a creditor receives payment from a debtor within ninety days of the bankruptcy filing. Pursuant to 11 USC 547(b), the Trustee may recapture the funds if: - they were paid to the creditor on account of antecedent debt; - while the debtor was insolvent; - on or within the ninety days before the date of the bankruptcy filing; - the payment enabled the creditor to receive more than it would have received under a bankruptcy distribution. Any creditor who has received such a preferential payment must disgorge the funds so that all creditors receive an equal distribution of the debtor's assets.

9 SEC 502(H) FILING A CLAIM AFTER BEING SUED BY TRUSTEE There are many comment defenses to being sued on a preference. The three most commonly used defenses by creditors are the contemporaneous exchange, new value and ordinary course of business defenses. 11 USC 547(c).

10 SEC 502(H) FILING A CLAIM AFTER BEING SUED BY TRUSTEE There is some relief! If a creditor pays money to the bankruptcy estate in settlement of a trustee s preference claim or as a result of a judgment arising from a preference claim, under Section 502(h) of the Bankruptcy Code, the creditor may file a proof of claim in the bankruptcy case. A claim arising from the recovery of property under section 522, 550, or 553 of this title shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section, or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition. 11 USC 502(h)

11 SEC 502(H) FILING A CLAIM AFTER BEING SUED BY TRUSTEE But move quickly! A claim filed pursuant to 502(h) should be filed within thirty days of the order approving the settlement, or of the Bankruptcy Court judgment allowing the preference recovery: An unsecured claim which arises in favor of an entity or becomes allowable as a result of a judgment may be filed within 30 days after the judgment becomes final if the judgment is for the recovery of money or property from that entity or denies or avoids the entity's interest in property. If the judgment imposes a liability which is not satisfied, or a duty which is not performed within such period or such further time as the court may permit, the claim shall not be allowed. Bankruptcy Rule 3002(3).

12 SEC 502(H) FILING A CLAIM AFTER BEING SUED BY TRUSTEE Practice Pointers: Make sure your settlement agreement with the trustee does not waive your ability to file a claim. Alternatively, determine what your distribution on your claim will be, waive the claim, and pay the trustee a reduced amount.

13 BANKRUPTCY RULE 4003(B)(2) The trustee may file an objection to a claim of exemption at any time prior to one year after the closing of the case if the debtor fraudulently asserted the claim of exemption. The trustee shall deliver or mail the objection to the debtor and the debtor's attorney, and to any person filing the list of exempt property and that person's attorney. Bankruptcy Rule 4003(b)(2) No 30 day deadline if fraud.

14 BANKRUPTCY RULE 4003(B)(2) EXAMPLE: Debtor s antique wooden boat is worth $10,000. Debtor knows this because he took a cash advance on your credit card to buy it for this amount. Debtor lists on her bankruptcy schedules that the value is $2,500 and provides a bogus appraisal to support that amount. Debtor claims the boat as exempt. Trustee closed the case as a no asset case.

15 BANKRUPTCY RULE 4003(B)(2) 8 months later the now ex- husband calls the trustee and alerts him to the boat value. Notwithstanding the closing of the case, and that the 30 day objection period has run, the trustee can object to the fraudulently asserted exemption, take the boat, and sell it for the benefit of creditors.

16 SEC. 503(B)(9) Sec. 503 creates administrative expenses that are paid prior to all other creditors, including The value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debtor's business.

17 SEC. 503(B)(9) This section is a trustee s nightmare because, absent agreement, these claims are paid at the same priority as the trustee s fees. Typically see in Ch. 11 cases, but sometimes see in Ch. 7 retail cases. I was trustee for a chain of 16 supermarkets that filed for Ch. 7 on an emergency basis. Soft drink suppliers who provided goods in the 20 days before the petition had 503(b)(9) claims. Watch for orders establishing bar dates!