Bankruptcy Case Law: Qualifying as a Debtor

BANKRUPTCY CASE LAW:
QUALIFYING AS A DEBTOR
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POST-BAPCPA:
In re Jewell 347 B.R. 120 (Bkrtcy.W.D.N.Y. 2006) JOHN C. NINFO, II, Bankruptcy Judge DEBTOR WHO WAS NOT DOMICILED IN STATE OF FILING FOR PRECEDING 730 DAYS AND IS NOT ELIGIBLE FOR EXEMPTIONS OF STATE OF PREVIOUS RESIDENCE MAY CLAIM THE FEDERAL EXEMPTIONS

Debtor moved from Colorado to New York less than 730 days prior to filing chapter 7 in New York, thus debtor was not eligible for N.Y. exemptions. Debtor claimed Colorado exemptions. Colorado was an "opt-out" state and its exemptions under Colorado law were available only to debtors who resided in Colorado at the time the bankruptcy was filed. The court ruled that N.Y. exemptions were not available due to the 730-day rule, and the Colorado exemptions were not available due to the Colorado exemption statute, but that the language of § 522(b)(3) permitting debtors in those circumstances to elect the Federal exemptions.

WARNING: PRE-BAPCPA
IN RE: UMALI (10/03/03 - No. 02-15010/16379) (9^th Cir) A bankruptcy petition filed in violation of a court-imposed 180-day bar is properly excluded from the automatic stay provisions of the Bankruptcy Code, even though the Court later modified the Order removing the 180-day bar. http://caselaw.lp.findlaw.com/data2/circs/9th/0215010p.pdf

BANK OF CHINA v. HUANG (01/14/02 - No. 00-57056) (9^th Cir. Ct App) Settlement agreement where party agreed not to declare bankruptcy does not have collateral estoppel effect on a later bankruptcy petition for fraud claims where fraud claims were not incorporated into the original settlement agreement. http://caselaw.lp.findlaw.com/data2/circs/9th/0057056p.pdf

Can the Debtor file a new 13 while his 7 is open? In re Keach, 243 B.R. 851 (Bankr. 1^st Cir. 2000); In re Turner, 207 B.R. 373 (Bankr. 2nd Cir. 1997); In re Strohscher, 278 B.R. 432 (Bankr. N.D. Ohio 2002). In re Strohscher (Bankr. N.D. Ohio) (6^th Cir) Rule 1015 Debtor allowed to maintain Chapter 13 case filed prior to closing of same debtor's Chapter 7 case.

OPINION SUMMARIES ARCHIVE FindLaw archives case law summaries of opinion issued since September 2000 by the U.S. Supreme Court, all thirteen Federal Circuit Courts, the California Supreme Court, the California Appellate Courts, and the New York Court of Appeals. http://caselaw.lp.findlaw.com/casesummary/index.html