The new bankruptcy law changed
the debtor's right to use the exemptions of the state where
they are filing their bankruptcy. The debtor may use
Arizona exemptions only if they lived in Arizona for the
full 2 years before filing. Otherwise there is a very
complicated analysis of what exemptions apply. There
is the mother lode of information on this issue is Attorney
John Bates Exemptions Express:
http://www.exemptionsexpress.com/index.html
Amending
Schedule C (and other schedules):
Debtor can amend his Schedules at any time UNLESS another
party has suffered prejudice in relying upon the previously
filed Schedules. See, e.g., In re Howe, 2009
Bankr. LEXIS 2831 (Bkrtcy. N.D.N.Y. 2009):
Debtors may, under
F.R.B.P. 1009(a),
amend
their bankruptcy
schedules,
including
Schedule
C, at
anytime
before their case is closed. Case law supports a debtor's
right to freely
amend
their exemptions. See
Cinelli, 2006 Bankr. LEXIS 3432, 2006 WL 3545444, at *3;
In re Fournier, 169 B.R. 282, 283 (Bankr. D. Conn. 1994).
Nevertheless, contrary [*10] to
the Debtors' assertion, the right to amend is not equivalent
to the right to the exemption.
In re Blaise, 116 B.R. 398, 399 (Bankr. D. Vt. 1990).
While a debtor may have the right to freely amend Schedule
C, this does not equate to a substantive right to the
exemption.
Listing Value of Exemptions:
Schwab v.
Reilly, No. 08–538
U.S. Supreme
Court, June 17, 2010
In a Chapter 7 bankruptcy trustee's appeal from the Third
Circuit's affirmance of the bankruptcy court's order denying
the trustee permission to auction certain equipment so that
the debtor could receive the money she claimed exempt and
the estate could distribute the remaining value to
creditors, the order is reversed where, because debtor gave
“the value of [her] claimed exemption[s]” on Schedule C
dollar amounts within the range the Code allows for what it
defines as the “property claimed as exempt,” the trustee was
not required to object to the exemptions in order to
preserve the estate’s right to retain any value in the
equipment beyond the value of the exempt interest.
Read more...
Therefore, debtors wishing “to exempt property in its
entirety. ..[should] write ‘full fair market value (FMV)’ or
‘100% of FMV’ in Schedule C's value-of-claimed-exemption
column.”
Homestead
vs. acquisition of property, plus post-petition appreciation
of realty.
In re Jacobson, No. 10-60040
(US 9th Cir, 04/23/2012),
In bankruptcy proceedings in which the trustee filed a
complaint claiming that certain money and property belonged
to the bankruptcy estate, the bankruptcy appellate panel's
rejection of all claims is: 1) reversed in part, where
proceeds from the sale of a homestead lost their exempt
status under California law; and 2) affirmed in part, where
a) rental property and its income was solely owned by the
debtor's husband, b) the trustee lacked standing to claim
that the husband's inheritance, which was used to purchase
the rental property, belonged to the bankruptcy estate from
earlier bankruptcy proceedings, and c) judicial and
collateral estoppel did not require turnover of the rental
property. Read
more...
In re:
Greene, No. 07-16067
(US 9th Circuit Court of Appeals, October 5, 2009)
In debtor's appeal from the district court's order affirming
a bankruptcy court's decision limiting the debtor's
homestead exemption in his bankruptcy petition to $125,000
pursuant to 11 U.S.C. section 522(p), the order is affirmed
in part where no pre-petition appreciation of the property
at issue occurred. However, the order is reversed in part
where "any amount of interest that was acquired," as used in
section 522(p)(1), meant the acquisition of ownership of
real property and the monetary cap in section 522(p) did not
apply to property to which a debtor acquired title more than
1215 days before she or he filed a bankruptcy petition.
Read more...
Post-petition appreciation in value:
In re: Gebhart
United States Ninth Circuit, 09/14/2010
In consolidated Chapter 7 bankruptcy petitions in which the
value of debtors' homes increased so that they had equity in
excess of the homestead exemptions, the bankruptcy court's
order approving the appointment of a real estate broker to
sell the home for the benefit of the estate is affirmed
where the fact that the value of the claimed exemption plus
the amount of the encumbrances on the debtor’s residence
was, in each case, equal to the market value of the
residence at the time of filing the petition did not remove
the entire asset from the estate. Read
more...
Domicile:
"Domicile" is the requirement under section 522(b)(3)
regarding exemptions. It is a well established principal
that every person has in law a domicile, or put another way,
"everybody belongs somewhere." Walters v. Weed,
45 Cal. 3d 1, 752 P.2d 443, 246 Cal. Rptr.5 (California
Supreme Court 1988). It is a fundamental principal that a
domicile is not lost until an new one is acquired. Id.
A new domicile is not established by intent to acquire a
new domicile if the person has not yet moved to a place
where he intends to remain. Id. "For purposes
of §522(b), ‘domicile’ means actual residence coupled with a
present intention to stay there."
In re Urban,
375 B.R. 882 (9th Cir. BAP 2007) "For adults, domicile is
established by physical presence in a place in connection
with a certain state of mind concerning one’s intent
to remain there." Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597,
104 L.Ed.2d 29 (1989).
Educational IRA - 529 and 530:
IRS section 529 college plans and
educational IRAs for the benefit of the debtor’s child,
stepchild, grandchild or stepgrandchild are not property of
the bankruptcy estate to some extent, which is similar to an
exemption. 0% exempt for contributions made less than 365
days before bankruptcy.$5,850 exempt limit for all accounts
with the same beneficiary for contributions made 365 - 720
days before bankruptcy. 100% for contributions made more
than 720 days before bankruptcy. 11 USC 541 (b)(5) and 541
(b)(6)(B) NOTE:
11 521(c) In addition to meeting
the requirements under subsection (a), the debtor shall file
with the court a record of any interest that a debtor has in
an education individual retirement account (as defined in
section 530(b)(1) of the Internal Revenue Code of 1986) or
under a qualified State tuition program (as defined in
section 529(b)(1) of such Code).
Converting
non-exempt property into exempt:
In re: Addison, No. 07-2064, 07-2727
(U.S. 8th Circuit Court of Appeals, August 07, 2008)
In a bankruptcy case, rulings against debtor and denial of
discharge are affirmed in part and reversed in part where:
1) the bankruptcy court clearly erred in finding that debtor
converted nonexempt property into his homestead with the
intent to hinder, delay, or defraud a creditor; 2) it erred
similarly in finding debtor transferred nonexempt funds into
a Roth IRA with such intent; 3) the resultant denial of
discharge required reversal; and 4) two 26 U.S.C. section
529 tuition savings accounts opened for the benefit of his
children were nonexempt property of his bankruptcy estate.
Read more...
Money
in bank accounts.
ARS 33-1126(a) protects up to $150 (for each debtor) in one
bank account on the day of filing the bankruptcy case. If
the debtor has issued checks, but the funds have not yet
been physically paid out of their bank account prior to the
filing of the bankruptcy – these funds are property of the
estate and the Trustee will demand surrender of the funds.
The Debtor must reimburse the Trustee for the funds that
were in the account on the date of filing, minus their
exemption of $150.00.
In re Sawyer, Judge Curley 3/06 (9th Circuit).
Why
aren't wages protected once deposited into a bank account?
Ryan v. Smith, 184 Ariz. 181 (App.1995), 907 P.2d
1384, "In summary, the earnings protection of §§
33-1131 and
12-1598.10 does not extend to monies disbursed to the
debtor's bank account. We acknowledge that the earnings
exemption is thus diluted, at least for debtors who deposit
their earnings in bank accounts. But as we have said on
other occasions, "An upholding is not an endorsement."
McPeak v. Industrial Comm'n, 154 Ariz. 232,
235, 741 P.2d 699, 702 (App. 1987). Those who believe
that the earnings exemption should endure beyond
disbursement to the employee must direct their remedial
efforts to the legislature, not the courts. The trial court
correctly granted Frazer judgment on its writ of
garnishment."
HOMESTEAD POST BARF:
In re Smith __ B.R __ (9th Cir. BAP 2006)
HELD: FAILURE TO REINVEST HOMESTEAD PROCEEDS LEAVES FUNDS
UN-EXEMPT
Exemptions are generally determined as of the petition date.
However, where an applicable state law requires compliance
with a pre-condition to maintain exempt status. The debtors'
failure to reinvest homestead proceeds within the State law
statutory time frame (which expired postpetition)
extinguished the exemption even though no timely exemption
exemption was filed. The funds thus became subject to
turnover.
In re
Virissimo, 332 B.R. 201 (Bkrtcy.Nev. 2006) LINDA B. RIEGLE,
Bankruptcy Judge. HOMESTEAD CAP APPLIES IN ALL STATES (IN
THIS CASE NEVADA) § 522(p)
11 U.S.C. § 522(p) is applicable even though Nevada does not
allow the choice of federal exemptions. Because the debtors
acquired their homes within the 1215 days before the filing
they are limited to the $125,000 homestead set forth in that
§ notwithstanding the fact that the Nevada homestead is
higher.
In re
Greene 346 B.R. 835
(Bkrtcy.D.Nev. 2006) HOMESTEAD "EXEMPTION" - NOT HOMESTEAD
"PROPERTY" - MUST BE ACQUIRED MORE THAN 1,215 DAYS TO AVOID
CAP ON EXEMPTION § 522(p)1) Debtor purchased residence
before 1,215 days prior to filing the bankruptcy, but did
not acquire a "homestead exemption" under state law until he
filed a declaration of homestead, which was filed within
1,215 days; the court observed that the language of §
522(p)(1) provides that " ... a debtor may not exempt any
amount of interest that was acquired by the debtor during
the 1215 day period ..." The court appears to have
interpreted this to mean lean interest, as opposed to
equity, in the property. "The homestead interest is not to
be equated with the underlying property." The cited cited
for support holdings in In re Brent 68 B.R. 893, 895 (Bkrtcy.D.Vt.
1987) and In re Charles, 25 B.R. 331 (9th Cir. BAP 1982).
In re Landahl, __ B.R. __, 2006 WL 506034 (Bankr. M.D.
Fla. 3/2/06) HELD, HOMESTEAD CAP APPLIES IN ALL STATES
Another Florida bankruptcy judge, this time in Tampa, has
given broad application to the new BAPCPA provision capping
the exemption for homesteads acquired less than 1,215 days
before bankruptcy. Judge May joined several other judges who
have held that the BAPCPA amendment limiting the homestead
exemption to $125,000 applies in all states and not only
those which give their residents a choice between the
federal and state exemption schemes.
In re Virissimo and In re Heisel,
(BK Ct District of NV) 10/31/05 -
11
U.S.C. § 522(p) is applicable even though Nevada does not
allow the choice of federal exemptions. Because the debtors
acquired their homes within the 1215 days before the filing
they are limited to the $125,000 homestead set forth in that
§ notwithstanding the fact that the Nevada homestead is
higher.
In re McNabb (D.Az
6/23/05 - J. Haines) re:
homestead exemption - AZ is
an opt out state, therefore
$125,000 cap provided in Section
522(p) does not apply.
In re
Summers, 344 B.R. 108 (Bkrtcy.D.Ariz.
2006)
CAP ON HOMESTEAD EXEMPTION
IMPOSED BY BAPCPA APPLIES TO
OPT-OUT STATES TOTAL
OF CAP ON HOMESTEAD
EXEMPTION PLUS "SAFE HARBOR"
EQUITY CANNOT EXCEED THE
TOTAL HOMESTEAD EXEMPTION
ALLOWED UNDER ARIZONA LAW
Where debtors acquired home
within 1,215 days of filing
the petition, but some of
the proceeds for purchase
came from sale of previous
homestead acquired before
1,215 days, debtors argued
that the "safe harbor"
provision of § 522(p)(2)(B)
provided that the $125,000
cap does not apply any of
the equity in their home.
The court disagreed, saying
the Code puts a cap of
$125,000 in equity on the
home purchased within 1,215
days, including the equity
which came from the sale of
a home purchased beyond the
1,215-day period, but the
combined exemption could not
exceed the $150,000
homestead exemption provided
under Arizona law.
Distinguished result in
Wayrynen due to unlimited
Florida homestead exemption.
In re Sainlar, 344 B.R. 669
(Bkrtcy.M.D.Fla. 2006)
HELD: BAPCPA CAP ON HOME
EQUITY DOES NOT APPLY TO
EQUITY ACQUIRED BY NATURAL
INCREASE DUE TO MARKET §
522(d), 522(p)
In a case in which the
residence was purchased more
than 1,215 days prior to
filing bankruptcy, and
accordingly, the $125,000
cap on equity purchased
within 1,215 days did not
apply, as prescribed under
BAPCPA [Code section
522(p)], the court held that
the cap did not apply to
substantial equity arising
within 1,215 days due to
appreciation not caused by
the debtor's “purchased” or
“acquired” equity during
that time period.
[ed. note: in this case The
National Association of
Consumer Bankruptcy
Attorneys (NACBA) filed an
amicus brief in support of
the debtor's position]
In re Laconte, 342 B.R. 809
(Bkrtcy.D.Mont. 2005) (Dec.
8). HELD: UNDER BAPCPA
DEBTOR'S CONVERSION OF
NON-EXEMPT PROPERTY TO
OSTENSIBLY EXEMPT HOMESTEAD
EQUITY WAS FRAUDULENT.
The debtor filed bankruptcy
on April 21, 2005 . . . just
one day after the effective
date of that portion of
BAPCPA dealing with
homestead exemptions.
Acting pursuant to a
bankruptcy attorney's
advice, debtor then sold
several non-exempt motor
vehicles and an interest in
a non-exempt farm and used
the cash proceeds to pay
down some of the debt on the
home, thus increasing the
amount of equity claimed
exempt.
The court held " ...
Debtors' sale of nonexempt
assets and application of
the proceeds to the
principal balance of their
home mortgage was a
violation of 11 U.S.C. §
522(o).
Section 522(o) provides that
the homestead exemption ". .
. shall be reduced to the
extent that such value is
attributable to any portion
of any property that the
debtor disposed of in the
10-year period ending on the
date of the filing of the
petition with the intent to
hinder, delay, or defraud a
creditor and that the debtor
could not exempt, or that
portion that the debtor
could not exempt ..."
The court discussed the
meaning of the phrase
"hinder, delay, or defraud"
within the context of §
522(o).
HOMESTEAD
IN A MOTOR HOME?
In re Irwin, 293
B.R. 28 (Bkrtcy.D.
Ariz. 2003) – a judge Haines
decision – held that the
term “mobile home” as used
in the statute is broad
enough to include a motor
home in which the debtors
actually reside.
WAGES:
In re
PALIDORA, No. 2-03-15494-PHX-RJH. 5/24/04, Amded 6/7/04, RJ.
HAINES, Bankruptcy Judge. The
Court must here determine whether the cash derived from
wages paid prepetition retains the status of a wage
exemption, and whether cash derived from child support paid
to the debtor prepetition is property of the estate. The
Court concludes that the Arizona exemption for wages does
not apply once they are paid, but that Arizona statutes and
case law deem child support payments to be for the benefit
of the child and therefore not property of the parent
debtor's estate, and in any event are exempt, even after
receipt and deposit.
REAL ESTATE
COMMISSIONS:
In
re Roetman,
405 B.R. 335 (Bankr.D.Ariz.
2009) held that real estate
commissions are included
among the types of wage
earnings exempt pursuant to
A.R.S. 33-1131.
Warfield v.
Alaniz, 2008 WL 700160 (D.
Ariz. 2008); contra In re
Osworth , 234 B.R. 497 (9th
Cir. BAP 1999).
RETIREMENT and ANNUITY ACCOUNTS:
Notes from Pugzies: 12/10 - be careful with annuities. I
agree that you must get copy of the annuity. Determine owner
and beneficiary and whether it is qualified as a retirement
account under the IRS code.I know of a case where the debtor
was the beneficiary of an annuity that was set up to settle
an automobile accident personal injury claim. The other
driver's insurance company remained the owner of the
annuity, as is standard practice. There was about a 9 month
period a few years ago when Arizona exempted all annuities,
regardless of who was the owner. The legislature then jammed
through a law with an emergency clause that went into effect
immediately and required that the debtor be the owner of the
annuity for 2 years to exempt it. The debtor in the case
filed chapter 7 shortly after the law changed, not being
aware of the change. Judge Baum reluctantly ruled that the
annuity was not exempt. The chapter 7 trustee sold the
annuity future income stream to an investor at a cash
discount.
Under the current law an ordinary non-retirement annuity is
exempt where the debtor is the owner for two full year and
there are certain specified beneficiaries. ARS
33-1126(A)(7) requires this: An annuity contract where for a
continuous unexpired period of two years such contract has
been owned by a debtor and has named as beneficiary the
debtor, debtor's surviving spouse, child, parent, brother or
sister, or any other dependent family member.
In re Hummel, __ B.R. __, 2010 WL5076421 (9th
Cir. BAP, Nov. 19, 2010) "ARS Section 20-1131(D) and
33-1126(A)(6) and (7) require that the child of a debtor
named as a beneficiary be a dependent in order for the
debtor to obtain an exemption under those sections"
It will be exempt per 522(b)(3)(C) if the annuity is
"retirement funds to the extent that those funds are in a
fund or account that is exempt from taxation under section
401, 403, 408, 408A, 414, 457, or 501(a) of the Internal
Revenue Code of 1986."
In addition or in the alternative it will be exempt per ARS
33-1126 (B) if it is "Any money or other assets payable to
a participant in or beneficiary of, or any interest of any
participant or beneficiary in, a retirement plan under
section 401(a), 403(a), 403(b), 408, 408A or 409 or a
deferred compensation plan under section 457 of the United
States internal revenue code of 1986, as amended, shall be
exempt from any and all claims of creditors of the
beneficiary or participant. This subsection shall not apply
to any of the following: 1. an alternate payee under a
qualified domestic relations order, as defined in section
414(p) of the United States internal revenue code of 1986,
as amended. The interest of any and all alternate payees is
exempt from any and all claims of any creditor of the
alternate payee. 2. Amounts contributed within one hundred
twenty days before a debtor files for bankruptcy. 3. The
assets of bankruptcy proceedings filed before July 1, 1987.
By the way, it is my position that 522(b)(3)(C) provides
broader protection than ARS 33-1126 (B) because
522(b)(3)(C) has no exception for contributions within 120
days before filing bankruptcy. On the other hand, I believe
that the $1,171,650 limit on IRAs (sections 408 and 408A of
internal revenue code) in 522(n) controls over 33-1126 (B),
which has no dollar limit.
In Re: Krebs, No. 06-2959
(U.S.
3rd Circuit Court of Appeals, May 19, 2008)
In an appeal addressing whether a debtor's right to receive
payment from an individual retirement account (IRA) may be
exempt from the bankruptcy estate under 11 U.S.C. section
522(d)(10)(E), even though the debtor has not yet reached
retirement age, the circuit court rules that an intervening
Supreme Court decision implicitly overrules prior precedent,
and thus the debtor's right to receive payments from her IRA
may be exempt from the bankruptcy estate under section
522(d)(10)(E).
Read more...
IN RE PAYNE (9th Cir. BAP 2005) ANNUITY
MAY BE EXEMPT AS LIFE INSURANCE -
Single-premium annuity may qualify for bankruptcy exemption
as life insurance under California state law only if primary
purpose is insurance and not investment. (Note- this is not
an Arizona case.)
Patterson vs. Shumate,
504 U.S. 753 (1992), the Supreme Court was presented with
the question whether the debtor’s interest in an employer
pension plan that contained the anti-alienation provision
required by Title I of the Employee Retirement Income
Security Act of 1974 (ERISA) was included or excluded from
the bankruptcy estate under section 541. The Court held
that the term “applicable nonbankruptcy law” in section
541(c)(2) was not limited to state law (and thus included
ERISA and other federal law) and that the anti-alienation
provision required for qualification under Title I of ERISA
was enforceable under applicable nonbankruptcy law. The
Court concluded that under section 541(c)(2) the debtor’s
interest in the pension plan was excluded from the
bankruptcy estate. 504 U.S. at 760.
ROUSEY
ET UX.
v.
JACOWAY,
(8th Cir CT APP) No. 031407. April 4, 2005. Cite
as: 544 U. S. ____ (2005) HELD: The Rouseys can exempt IRA
assets from the bankruptcy estate because the IRAs fulfill
both of the §522(d)(10)(E) requirements at issue here―they
confer a right to receive payment on account of age and they
are similar plans or contracts to those enumerated in
§522(d)(10)(E). Pp. 414. (a) The Court reaffirms its
suggestion in
Patterson
v.
Shumate,
504 U.
S. 753, 762763, that IRAs like the Rouseys’ can be exempted
from the bankruptcy estate pursuant to §522(d)(10)(E). Pp.
45. (b) The Rouseys’ IRAs provide a right to payment “on
account of . . . age” within §522(d)(10)(E)’s meaning. The
quoted phrase requires that the right to receive payment be
“because of” age.
Bank of
America Nat. Trust and Sav. Assn.
v.
203
North LaSalle Street Partnership,
526 U.
S. 434, 450451. This meaning comports with the common,
dictionary understanding of “on account of,” and
§522(d)(10)(E)’s con-text does not suggest another meaning.
The statutes governing IRAs persuade the Court that Jacoway
is mistaken in arguing that there is no causal connection
between that right and age or any other factor because the
Rouseys’ IRAs provide a right to payment on demand. Their
right to receive payment of the entire balance is not in
dispute. Because their accounts qualify as IRAs under 26 U.
S. C. §408(a), they have a nonforfeitable right to the
balance held in those accounts, §408(a)(4). That right is
restricted by a 10 percent tax penalty on any withdrawal
made before age 59½, §72(t). Contrary to Jacoway’s
contention, this 10 percent penalty is substantial. It
applies proportion-ally to any amounts withdrawn and
prevents access to the 10 percent that the Rouseys would
forfeit should they withdraw early. It therefore effectively
prevents access to the entire balance in their IRAs and
limits their right to “payment” of the balance. And because
this condition is removed when the accountholder turns age
59½, the Rouseys’ right to the balance of their IRAs is a
right to payment “on account of” age. Pp. 58.
(c) The
Rouseys’ IRAs are “similar plan[s] or contract[s]” to the
“stock bonus, pension, profit sharing, [or] annuity . . .
plan[s]” listed in §522(d)(10)(E). To be “similar,” an IRA
must be like, though not identical to, the listed plans or
contracts, and consequently must share characteristics
common to them. Because the Bankruptcy Code does not define
the listed plans, the Court looks to their ordinary
meaning.
E.g.,
United States
v.
LaBonte,
520 U. S. 751, 757. Dictionary definitions reveal that,
although the listed plans are dissimilar to each other in
some respects, their common feature is that they provide
income that substitutes for wages earned as salary or hourly
compensation. That the income the Rouseys will derive from
their IRAs is likewise income that substitutes for wages
lost upon retirement is demonstrated by the facts that (1)
regulations require distribution to begin no later than the
calendar year after the year the accountholder turns 70½;
(2) taxation of IRA money is deferred until the year in
which it is distributed; (3) withdrawals before age 59½ are
subject to the 10 percent penalty; and (4) failure to take
the requisite minimum distributions results in a 50 percent
tax penalty on funds improperly remaining in the account.
The Court rejects Jacoway’s argument that IRAs cannot be
similar plans or contracts because the Rouseys have complete
access to them. This argument is premised on her view that
the 10 percent penalty is modest, a premise with which the
Court does not agree. The Court also rejects Jacoway’s
contention that the availability of IRA withdrawals exempt
from the early withdrawal penalty renders the Rouseys’ IRAs
more like savings accounts. Sections 522(d)(10)(E)(i)
through (iii)―which preclude the debtor from using the
§522(d)(10)(E) exemption if an insider established his plan
or contract; the right to receive payment is on account of
age or length of service; and the plan does not qualify
under specified Internal Revenue Code sections, including
the section governing IRAs―not only suggest generally that
the Rouseys’ IRAs are exempt, but also support the Court’s
conclusion that they are “similar plan[s] or contract[s]”
under §522(d)(10)(E).
KAELIN v.
BASSETT (10/21/02 - No. 02-1119) (8th Cir)
Bankruptcy court erred in denying debtor leave to amend his
exemptions as the court's findings that debtor was acting in
bad faith, and that amendment would prejudice the creditors,
were not supported by the record.
http://caselaw.lp.findlaw.com/data2/circs/8th/021119p.pdf
IRA: DUDLEY v. ANDERSON, No
99-55756 (9th Cir. May 23, 2001) Under California Code of
Civil Procedure 704.115(a)(3), an Individual Retirement
Account may be exempt from a bankruptcy estate even if it is
used primarily for retirement purposes rather than solely for
retirement purposes.
http://caselaw.lp.findlaw.com/data2/circs/9th/9955756p.pdf
LITTLE v. REAVES, No. 00-57110
(9th Cir. April 08, 2002) Petitioner who sought and was denied
exemption for her vehicle from enforcement of a secured debt
could still pursue special vehicle exemptions when later
filing a bankruptcy petition.
NELSON v. RAMETTE (03/21/02 - No.
01-6072MN) (8th Cir Ct Appeals) Debtor's undistributed
interest in his former spouse's ERISA-qualified retirement
plan, obtained pursuant to a qualified domestic relations
order, is not property of his Chapter 7 bankruptcy estate.
http://caselaw.lp.findlaw.com/data2/circs/8th/016072p.pdf
Hebbring v. U.S. Trustee
(09/11/06 - No. 04-16539) (9th Cir) The Bankruptcy Code does
not, per se, disallow voluntary contributions to a
retirement plan as a reasonably necessary expense in
calculating a debtor's disposable income, but rather
requires courts to examine the totality of the debtor’s
circumstances on a case-by-case basis to determine whether
retirement contributions are a reasonably necessary expense
for that debtor.
http://caselaw.lp.findlaw.com/data2/circs/9th/0416539p.pdf
TAX REFUNDS/OFFSETS:
Nichols v. Birdsell, No. 05-15554
U.S. 9th Circuit Court of Appeals, May 09, 2007
Debtors' pre-bankruptcy application of their right to tax
refunds to post-bankruptcy tax obligations constitutes an
asset that must be turned over to the bankruptcy trustee
pursuant to the Bankruptcy Code, 11 U.S.C. section 542.
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