Bankruptcy Flashcards
(33 cards)
________ is available to individuals and entities. It requires the debtor to _______. All debts that are dischargeable may be wiped out completely if ________. There is an income requirement dependent on which state the debtor lives in.
Chapter 7
liquidate all of his/her/its assets to disburse those funds to creditors
there are not enough assets to cover debts owed to creditors
_______ is only available to individuals, and it requires ___________ under a plan.
Chapter 13
monthly payments to a Chapter 13 trustee who disburses those funds to creditors
________ Is proposed by the debtor to the trustee and is/is not confirmed by the court if no agreement.
Chapter 13 Plan
An application for bankruptcy creates an _______ against the debtor.
automatic stay of all actions
11 U.S.C. 362(a)
A _____ authorizes the debtor to seek damages, costs, and attorney’s fees.
willful violation of the automatic stay
11 U.S.C. 362(b)
Emotional distress damages may be claimed for violation of the automatic stay. To claim, an individual must _______
(1) suffer significant harm,
(2) clearly establish the significant harm, and
(3) demonstrate a causal connection between that significant harm and the violation of the automatic stay (as distinct, for instance, from the anxiety and pressures inherent in the bankruptcy process).
In re Dawson (9 Cir. 2004) 390 F.3d 1139
The automatic stay does not stop the commencement or continuation of a civil action for ________
(1) establishment of paternity;
(2) establishment or modification of support;
(3) proceedings for child custody/visitation;
(4) dissolution of marriage (except for division of assets apart of the bk estate);
(5) DV;
(6) collection of support that is not apart of the state; and
(7) withholding income for a support order.
11 U.S.C. 362(b)(2)
Property of the estate is created upon filing. It includes: ______
(1) all legal or equitable interests in property;
(2) all interest in CP;
(3) any interest in property recovered by the trustee,
(4) any interest in property acquired within 180 days that would have been property (i.e. inheritance, divorce settlement, etc.);
(5) proceeds, rents, products from property of the estate; and
(6) any interest in property that the estate acquires after commencement of the case.
11 U.S.C. 541(a)
If CP has not been divided, the entire CP is part of the estate, even if ________
there is a potential SP reimbursement by the non-filing spouse.
In re Mantle (9 Cir 1998) 153 F.3d 1082
Evidence Code section 662 does not apply to property acquired during marriage when ______.
it conflicts with Family Code section 760
In re Brace (2020) 9 Cal.5th 903
_______ is a debt that accruals before, on, or after the date of the order for relief, including interest, including a debt owed to a spouse, former spouse, or child of debtor or such child’s parent, legal guardian or responsible relative, or governmental unit in the nature of alimony, maintenance, or support without regard to whether such debt is expressly so designated established by a separation agreement, divorce judgment, or property settlement agreement or order of the court.
Domestic Support Obligation
11 U.S.C. 101(14A)
A chapter 7 discharge does not discharge an individual debtor from a ______
domestic support obligation and have priority (i.e. get paid first)
11 U.S.C. 523(a)(5)
To determine a DSO, the bankruptcy court must look beyond the language of the decree _______. They may do so even if state court law does not allow for “alimony” or support.
to the intent of the parties and the substance of the obligation
Shaver v. Shaver (9 Cir. 1984) 736 F.2d 1314
The party seeking to make a finding of DSO and nondischargeable has ______.
the burden of proving the DSO
In re Smith (1 Cir. 2009) 586 F.3d 69
The court must look to the parties’ or the state court’s intent and the purpose of the obligation in light of the circumstances at the time such as _______
(1) labels in the agreement or order;
(2) income and needs of the parties;
(3) amount and outcome of property division;
(4) whether obligation terminates on payee’s death or remarriage or emancipation of children;
(5) number and frequency of payments;
(6) waiver of alimony or support rights in agreement;
(7) ability to modify or enforce through contempt; and
(8) tax treatment.
In re Sternberg (9 Cir. 1996) 85 F.3d 1400
DSO can include ______, whether or not to be paid directly to the payee or a third party (i.e. their attorney).
attorney’s fees and expert fees where incurred to litigate support
In re Chang (9 Cir. 1998) 163 F.3d 1138
This does not extend to attorney’s fees of third parties who _________.
are not a spouse, former spouse, or child of the debtor
In re Gunness (9 Cir. BAP 2014) 505 B.R. 1
If the court awards attorney’s fees that does not indicate it is based on need (i.e. equal to support), _______.
it may be discharged as not being a domestic support obligation
In re Gibson (9 Cir. BAP 1989) 103 B.R. 218
A chapter 7 discharge does not discharge an individual debtor from a _______ and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit and do not have priority (i.e. treated like all other unsecured general creditors).
debt to a spouse, former spouse, or child of the debtor
11 U.S.C. 523(a)(15)
The court may only confirm a chapter 13 Plan if the debtor has ______
paid all amounts that are required to be paid under a domestic support obligation post-filing
11 U.S.C. 1325(a)(8)
______ must be paid in full through the Chapter 13 Plan unless agreed/waived by the creditor otherwise.
DSOs
11 U.S.C. 1322(a)(2)
The Chapter 13 debtor may only receive their discharge if they are ______
current on their post-petition DSOs.
11 U.S.C. 1328(a)
_______ ARE dischargeable in a Chapter 13.
Equalizations
A prepetition transfer of the debtor’s property to a creditor within _______ , on an antecedent debt while the debtor was insolvent, may be avoided by the trustee as a preferential payment. The trustee may obtain a judgment against the creditor who received the payments.
90 days of the bankruptcy filing (a year if an insider i.e. family member)
11 U.S.C. 547
