Problem
Set 6, p.145
- 6.1
- Joe is getting paid tomorrow. If he files for chapter 7 now the money still goes to the estate if he is paid in arrears, they are already earned.
- Garnishment is lifted. The whole amount of money should go to the estate. §362(a)(6) — this is an act to collect.
- What about the over-drawn check? Criminal actions are not stayed. §362(b)(1).
- Can't turn off utilities basically, but under 366 utilities can ask for a deposit.
- §362(b)(2)(C): Domestic support obligation is not stayed.
- So far as the last month's pay check goes, it doesn't matter if you file before or after you receive it b/c the work is already done. But if you get the paycheck before you can spend it all now! Or buy exempt property.
- See §§362(a), (b)(2), (b)(22), (b)(23); 366.
- 6.2
- Puja arrives in your office in tears. She shows you a notice that her house has been posted for sale by foreclosure at non tomorrow. She explains that she is in the middle of a divorce, and that her ex-husband lied about making mortgage payments. She called him about earlier notices, but he said they were “mistakes: that he would straighten out. For the past month she hasn’t been able to find him, fears he has fled the state. She tried calling mortgage company, but her loan had been sold from one servicer to another and she could never tack down the noteholder. Now the sheriff’s dep’t says the sale is going forward.
- Puja has filed out all of the schedules in your office today, but she didn’t know to bring paychecks stubs, tax returns, or any other paper work w/ her, nor has she sought credit counseling. She lives an hour away and doesn’t know where all of the paper work is at home. What can you do for her today? Make a list of what you need and how you can get it. See 11 USC §§521(a), b), (i); 101(12A); 109(h); 526; 707(b)(4)(C); (D). When your paralegal points to the car price she listed ($250), does that raise an issue beyond asking her if she is sure of it?
- Have to watch out for the $250 valuation of the car. Attorney has to watch this under §707(b) (4)(D).
- §521(i) you have 45 days to file your case. But how to read this article: it is correctable in 45 days; or you cannot file the petition without such materials
- §109(h) — You can't be a debtor without getting credit counseling. Has to be within 180 days before filing. You can get a waiver of this §109(h)(3), but it is hard to meet three conditions and not likely to work here.
- §521(b) — Submit the certificate from the credit counseling and the debt repayment plan; otherwise, ineligible to file for bankruptcy.
- 6.3
- He took the car before he filed bankruptcy. He should still return the car to the bankruptcy estate. §362(a)(3). This is an act to obtain control of property of the estate. Repossession does not make the creditor the owner of the property; it is still the debtor's property and part of the estate.
- §362(a)(h); 521(a)(2).
- 6.4
- How can I know whom I should send to? Designated person.
- There should be a public record or posting in the website about the key creditors.
- Even if you cannot figure out who is the designated person, you can still argue the theory of agency, like you can assume the corporate lawyer or a higher official is the agency of the company.
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