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Nov 21st
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Home General Interest Atty. Larry Yang

Atty. Larry Yang

Bankruptcy petition: Single or joint

MARRIED people are allowed by the bankruptcy code to file joint petitions. A husband and wife can file one joint chapter 7 case and pay only one filing fee, not two. However, all assets and liabilities whether community, joint, or separate must be listed in the petition. On the other hand, a husband or wife may file a single bankruptcy petition by his or herself without including spouse. In this case, only joint and community assets need to be listed in the petition. Separate property of the non-filing spouse does not have to be listed, and of course, debts of the non-filing spouse are not listed in the bankruptcy petition. In other words, a married person may file a joint bankruptcy petition together with his or her spouse, or a single petition by himself or herself. How do these situations happen?

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Converting Chapter 13 to Chapter 7

LAST week we discussed the conversion of a chapter 7 case into chapter 13. Today we discuss converting a chapter 13 case to chapter 7. Many debtors who want chapter 7 relief are not eligible either because they fail the chapter 7 means test, or the liquidation analysis, which shows that they have substantial, that are not exempt. These debtors usually have household incomes that are above the median in California. The means test is an objective way of computing disposable income based on IRS standards. This device has many critics because sometimes the result of its application is ridiculous. For instance, a debtor with several dependents will benefit from its application because debtor can claim the higher IRS allocation for rent even if debtor’s actual rent is lower. If debtor has 4 dependents his means test rent is at least $1,400 monthly. If the rent he actually pays is only $700, he can claim the difference of $700 as additional expense when determining disposable income under the means test. On the other hand, a debtor who is married without dependents who actually pays rent of $2,900 can only deduct the amount of $1,100 for rent under the means test. In this situation, the difference of $1,800 of non deductible expense can knock the chapter 7 case into a chapter 13 unless debtor has more qualifying expenses to offset $1,800 because substantial disposable income may result from the fact that only $1,100 of the $2,900 rent is deductible under the means test.

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Converting bankruptcy cases

A BANKRUPTCY petition filed under one chapter of the bankruptcy code may be converted into a petition under a different chapter of the code. The debtor himself can request the conversion, or the court itself by its own motion or the US Trustee or the trustee administering the bankruptcy estate, or any interested party may move to have a case converted to a different chapter of the code. § 706 states that the debtor may convert a case under chapter 7 to a case under chapter 11, 12, or 13 at any time, if the case has not been previously converted under § 1112, 1208, or 1307. Debtor’s right to convert case is almost absolute if there has been no prior conversion. However, there have been cases where the court has denied debtor the right to convert where debtor has been found to be in bad faith. Hence, the right to convert is not 100% bulletproof. But a debtor who has filed his original case in good faith should not see any obstacle to converting case if he so chooses as long as no prior conversions have occurred.

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Converting bankruptcy cases

A BANKRUPTCY petition filed under one chapter of the bankruptcy code may be converted into a petition under a different chapter of the code. The debtor himself can request the conversion, or the court itself by its own motion or the US Trustee or the trustee administering the bankruptcy estate, or any interested party may move to have a case converted to a different chapter of the code. § 706 states that the debtor may convert a case under chapter 7 to a case under chapter 11, 12, or 13 at any time, if the case has not been previously converted under § 1112, 1208, or 1307. Debtor’s right to convert case is almost absolute if there has been no prior conversion. However, there have been cases where the court has denied debtor the right to convert where debtor has been found to be in bad faith. Hence, the right to convert is not 100% bulletproof. But a debtor who has filed his original case in good faith should not see any obstacle to converting case if he so chooses as long as no prior conversions have occurred.

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Delaware catholic diocese files for bankruptcy relief

THE Catholic diocese of Wilmington, Delaware filed for Chapter 11 bankruptcy protection earlier this week on the eve of a civil trial involving clergy sex abuse. With this bankruptcy filing, the first Catholic diocese to file in the East Coast, the Wilmington diocese joins six other dioceses, which have sought bankruptcy court protection under the weight of clergy sex abuse lawsuits leveled against the Catholic Church. Other Catholic dioceses that have filed for bankruptcy protection in the past are dioceses in San Diego, Portland, Oregon, Spokane, Washington, Tucson, Arizona, Davenport, Iowa and Fairbanks, Alaska.

Certainly, clergy sexual molestation is the work of the devil to discredit and damage the Catholic Church. The church now has a zero tolerance of sexual predators masquerading as priests. Hopefully, it will eventually rid itself of the very small minority of errant priests who have no business being men of the cloth and give the majority of holy men who are truly ministers of Christ in this world a bad name.

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Balikbayan Magazine Issue 9 Vol. 1 November

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