From Tyler at twinfallsattorneys.com Tue Mar 5 15:21:58 2013 From: Tyler at twinfallsattorneys.com (Tyler McGee) Date: Tue, 5 Mar 2013 22:21:58 +0000 Subject: [CLBS] Discharging Tax Liability Message-ID: <68A314F324C1BD41873F05A36DE1AE340FE07CD6@MBX023-W1-CA-1.exch023.domain.local> I've never actually had a client in this situation, but I actually picked up a case where the tax liability seems to be dischargeable (no fraud, filed on time or more than 2 years before bankruptcy, due more than 3 years ago, no willful evasion, etc). What are the additional steps, if any, that I need to take to get this debt discharged? Do I bring an adversary action determining dischargeability? Or if the tax liability meets the requirements is it automatically discharged? Tyler J. McGee ROY, NIELSON, BARINI-GARCIA & PLATTS P.O. Box 487 Twin Falls, Idaho 83303-0487 Phone: (208) 734-4450 Fax:? (208) 734-4452 This firm will not mail a hard copy of this transmission and its attachments to you unless specifically requested. ? CONFIDENTIALITY NOTICE:? This e-mail and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to whom they are addressed. This communication may contain material protected by the Attorney-Client privilege.? If you are not the intended recipient or the person responsible for delivering the e-mail to the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.? If you have received this e-mail in error, please immediately return this e-mail to the sender.? Thank you. From Tyler at twinfallsattorneys.com Tue Mar 5 15:33:12 2013 From: Tyler at twinfallsattorneys.com (Tyler McGee) Date: Tue, 5 Mar 2013 22:33:12 +0000 Subject: [CLBS] Discharging Tax Liability In-Reply-To: <68A314F324C1BD41873F05A36DE1AE340FE07CD6@MBX023-W1-CA-1.exch023.domain.local> References: <68A314F324C1BD41873F05A36DE1AE340FE07CD6@MBX023-W1-CA-1.exch023.domain.local> Message-ID: <68A314F324C1BD41873F05A36DE1AE340FE08D80@MBX023-W1-CA-1.exch023.domain.local> BTW, I'd like to file a ch. 7, and there are no tax liens. -----Original Message----- From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Tyler McGee Sent: Tuesday, March 05, 2013 3:22 PM To: clbs at admws.idaho.gov Subject: [CLBS] Discharging Tax Liability I've never actually had a client in this situation, but I actually picked up a case where the tax liability seems to be dischargeable (no fraud, filed on time or more than 2 years before bankruptcy, due more than 3 years ago, no willful evasion, etc). What are the additional steps, if any, that I need to take to get this debt discharged? Do I bring an adversary action determining dischargeability? Or if the tax liability meets the requirements is it automatically discharged? Tyler J. McGee ROY, NIELSON, BARINI-GARCIA & PLATTS P.O. Box 487 Twin Falls, Idaho 83303-0487 Phone: (208) 734-4450 Fax:? (208) 734-4452 This firm will not mail a hard copy of this transmission and its attachments to you unless specifically requested. ? CONFIDENTIALITY NOTICE:? This e-mail and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to whom they are addressed. This communication may contain material protected by the Attorney-Client privilege.? If you are not the intended recipient or the person responsible for delivering the e-mail to the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.? If you have received this e-mail in error, please immediately return this e-mail to the sender.? Thank you. _______________________________________________ CLBS mailing list CLBS at admws.idaho.gov http://admws.idaho.gov/mailman/listinfo/clbs From RFrench at bauerandfrench.com Tue Mar 5 17:34:40 2013 From: RFrench at bauerandfrench.com (Randal French) Date: Wed, 6 Mar 2013 00:34:40 +0000 Subject: [CLBS] Discharging Tax Liability In-Reply-To: <68A314F324C1BD41873F05A36DE1AE340FE08D80@MBX023-W1-CA-1.exch023.domain.local> References: <68A314F324C1BD41873F05A36DE1AE340FE07CD6@MBX023-W1-CA-1.exch023.domain.local> <68A314F324C1BD41873F05A36DE1AE340FE08D80@MBX023-W1-CA-1.exch023.domain.local> Message-ID: <45AF97379DC9354BA4F5CFECBB5FFD8301F4918B@BFSBS.BFDom.local> You do not need to take any additional steps to get the debt discharged. If the IRS agrees that your client meets the requirements, then the debt is discharged. If not, then it will continue collecting after the discharge is entered and the stay ends. I would wait until you see anything that makes you believe that the IRS believes that the debt is not discharged. If it does do anything that makes you think that it thinks the debt is not discharged, you might ask for an explanation or analysis. You can file an action to determine whether the debt is discharged at any time by re-opening the case. -----Original Message----- From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Tyler McGee Sent: Tuesday, March 05, 2013 3:33 PM To: clbs at admws.idaho.gov Subject: Re: [CLBS] Discharging Tax Liability BTW, I'd like to file a ch. 7, and there are no tax liens. -----Original Message----- From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Tyler McGee Sent: Tuesday, March 05, 2013 3:22 PM To: clbs at admws.idaho.gov Subject: [CLBS] Discharging Tax Liability I've never actually had a client in this situation, but I actually picked up a case where the tax liability seems to be dischargeable (no fraud, filed on time or more than 2 years before bankruptcy, due more than 3 years ago, no willful evasion, etc). What are the additional steps, if any, that I need to take to get this debt discharged? Do I bring an adversary action determining dischargeability? Or if the tax liability meets the requirements is it automatically discharged? Tyler J. McGee ROY, NIELSON, BARINI-GARCIA & PLATTS P.O. Box 487 Twin Falls, Idaho 83303-0487 Phone: (208) 734-4450 Fax:? (208) 734-4452 This firm will not mail a hard copy of this transmission and its attachments to you unless specifically requested. ? CONFIDENTIALITY NOTICE:? This e-mail and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to whom they are addressed. This communication may contain material protected by the Attorney-Client privilege.? If you are not the intended recipient or the person responsible for delivering the e-mail to the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited.? If you have received this e-mail in error, please immediately return this e-mail to the sender.? Thank you. _______________________________________________ CLBS mailing list CLBS at admws.idaho.gov http://admws.idaho.gov/mailman/listinfo/clbs _______________________________________________ CLBS mailing list CLBS at admws.idaho.gov http://admws.idaho.gov/mailman/listinfo/clbs !SIG:513672bf304276506962916! From pgeile at foleyfreeman.com Mon Mar 11 13:18:26 2013 From: pgeile at foleyfreeman.com (Patrick J. Geile) Date: Mon, 11 Mar 2013 19:18:26 +0000 Subject: [CLBS] Homestead Exemption Message-ID: <107542B42C4DE0499C066B016AD527A30B5C4EA7@FF01.ff.local> Has anyone argued and prevailed that you can exempt a right of redemption in real property? Property was sold at a Sherriff's sale. Patrick J. Geile Foley Freeman PLLC 77 East Idaho Street, Suite 100 P.O. Box 10 Meridian, Idaho 83642 Direct line: (208) 947-1563 Phone: (208) 888-9111 Fax: (208) 888-5130 The information contained in this electronic communication, and any electronic attachment(s), contains information belonging to the sender that is legally privileged and confidential. This information is intended only for the use of the named recipient(s) above. If you are not the intended recipient, you are hereby notified that the law strictly prohibits any disclosure, copying, distribution, or action taken on the contents of these documents. If you received this electronic communication in error, immediately notify the sender via reply email and delete this communication. From RFrench at bauerandfrench.com Mon Mar 11 13:53:31 2013 From: RFrench at bauerandfrench.com (Randal French) Date: Mon, 11 Mar 2013 19:53:31 +0000 Subject: [CLBS] Homestead Exemption In-Reply-To: <107542B42C4DE0499C066B016AD527A30B5C4EA7@FF01.ff.local> References: <107542B42C4DE0499C066B016AD527A30B5C4EA7@FF01.ff.local> Message-ID: <45AF97379DC9354BA4F5CFECBB5FFD8301F524E0@BFSBS.BFDom.local> Don't know about exempting it but I would think that you could file a motion to abandon that right of redemption and have the opportunity to exercise it. -----Original Message----- From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Patrick J. Geile Sent: Monday, March 11, 2013 1:18 PM To: clbs at admws.idaho.gov Subject: [CLBS] Homestead Exemption Has anyone argued and prevailed that you can exempt a right of redemption in real property? Property was sold at a Sherriff's sale. Patrick J. Geile Foley Freeman PLLC 77 East Idaho Street, Suite 100 P.O. Box 10 Meridian, Idaho 83642 Direct line: (208) 947-1563 Phone: (208) 888-9111 Fax: (208) 888-5130 The information contained in this electronic communication, and any electronic attachment(s), contains information belonging to the sender that is legally privileged and confidential. This information is intended only for the use of the named recipient(s) above. If you are not the intended recipient, you are hereby notified that the law strictly prohibits any disclosure, copying, distribution, or action taken on the contents of these documents. If you received this electronic communication in error, immediately notify the sender via reply email and delete this communication. _______________________________________________ CLBS mailing list CLBS at admws.idaho.gov http://admws.idaho.gov/mailman/listinfo/clbs !SIG:513e2e1e207751735538587! From ngh at moffatt.com Mon Mar 11 14:07:10 2013 From: ngh at moffatt.com (Noah Hillen) Date: Mon, 11 Mar 2013 14:07:10 -0600 Subject: [CLBS] Homestead Exemption In-Reply-To: <107542B42C4DE0499C066B016AD527A30B5C4EA7@FF01.ff.local> References: <107542B42C4DE0499C066B016AD527A30B5C4EA7@FF01.ff.local> Message-ID: It you haven't filed a declaration of homestead, the automatic homestead statute has an occupancy requirement, which may be difficult to establish with a right of redemption. On Mar 11, 2013, at 3:18 PM, "Patrick J. Geile" wrote: > Has anyone argued and prevailed that you can exempt a right of redemption in real property? Property was sold at a Sherriff's sale. > > Patrick J. Geile > Foley Freeman PLLC > 77 East Idaho Street, Suite 100 > P.O. Box 10 > Meridian, Idaho 83642 > Direct line: (208) 947-1563 > Phone: (208) 888-9111 > Fax: (208) 888-5130 > The information contained in this electronic communication, and any electronic attachment(s), contains information belonging to the sender that is legally privileged and confidential. This information is intended only for the use of the named recipient(s) above. If you are not the intended recipient, you are hereby notified that the law strictly prohibits any disclosure, copying, distribution, or action taken on the contents of these documents. If you received this electronic communication in error, immediately notify the sender via reply email and delete this communication. > _______________________________________________ > CLBS mailing list > CLBS at admws.idaho.gov > http://admws.idaho.gov/mailman/listinfo/clbs > NOTICE: This e-mail, including attachments, constitutes a confidential attorney-client or other confidential communication. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this communication in error, do not read it. Please delete it from your system without copying it, and notify the sender by reply e-mail or by calling (208) 345-2000, so that our address record can be corrected. Thank you. NOTICE: To comply with certain U.S. Treasury regulations, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this e-mail, including attachments, is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service. From jsteadman at merrillandmerrill.com Mon Mar 11 15:10:40 2013 From: jsteadman at merrillandmerrill.com (Jared Steadman) Date: Mon, 11 Mar 2013 15:10:40 -0600 Subject: [CLBS] Discharging Tax Liability In-Reply-To: <68A314F324C1BD41873F05A36DE1AE340FE07CD6@MBX023-W1-CA-1.exch023.domain.local> References: <68A314F324C1BD41873F05A36DE1AE340FE07CD6@MBX023-W1-CA-1.exch023.domain.local> Message-ID: <008701ce1e9c$e301f1d0$a905d570$@merrillandmerrill.com> Folks: I have always filed bankruptcies jointly for spouses, but I am now looking at a case that is making me wonder... If Husband makes a personal guaranty on a loan for his business from Bank and Husband (but not Wife) declares bankruptcy, can Bank sue Wife to collect on Husband?s personal guaranty? What about on other debts which Wife is not personally obligated on? I would love a little guidance on this. Thanks, Jared Steadman Merrill & Merrill, Chtd. P.O. Box 991 109 N. Arthur Ave., 5th Floor Pocatello, ID 83204 Phone: (208) 232-2286 Fax: (208) 232-2499 The information contained in this email and any attachments is information protected by the attorney-client and/or the attorney work product privilege.? It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by email.? If the person actually receiving this email or any other reader of the email is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited.? If you have received this communication in error, please delete the email and immediately notiy us by telephone at 208-232-2286. From dgbballard at cableone.net Mon Mar 11 19:53:44 2013 From: dgbballard at cableone.net (David Ballard) Date: Mon, 11 Mar 2013 19:53:44 -0600 Subject: [CLBS] Discharging Tax Liability In-Reply-To: <008701ce1e9c$e301f1d0$a905d570$@merrillandmerrill.com> References: <68A314F324C1BD41873F05A36DE1AE340FE07CD6@MBX023-W1-CA-1.exch023.domain.local> <008701ce1e9c$e301f1d0$a905d570$@merrillandmerrill.com> Message-ID: <026401ce1ec4$6f89fae0$4e9df0a0$@net> Jared, From a previous post, take a look at the "phantom" discharge discussion in this article. David Ballard -----Original Message----- From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Jared Steadman Sent: Monday, March 11, 2013 3:11 PM To: clbs at admws.idaho.gov Subject: Re: [CLBS] Discharging Tax Liability Folks: I have always filed bankruptcies jointly for spouses, but I am now looking at a case that is making me wonder... If Husband makes a personal guaranty on a loan for his business from Bank and Husband (but not Wife) declares bankruptcy, can Bank sue Wife to collect on Husband?s personal guaranty? What about on other debts which Wife is not personally obligated on? I would love a little guidance on this. Thanks, Jared Steadman Merrill & Merrill, Chtd. P.O. Box 991 109 N. Arthur Ave., 5th Floor Pocatello, ID 83204 Phone: (208) 232-2286 Fax: (208) 232-2499 The information contained in this email and any attachments is information protected by the attorney-client and/or the attorney work product privilege.? It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by email.? If the person actually receiving this email or any other reader of the email is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited.? If you have received this communication in error, please delete the email and immediately notiy us by telephone at 208-232-2286. _______________________________________________ CLBS mailing list CLBS at admws.idaho.gov http://admws.idaho.gov/mailman/listinfo/clbs -------------- next part -------------- A non-text attachment was scrubbed... Name: 79 Community Property, Divorce & Bankruptcy.pdf Type: application/pdf Size: 256492 bytes Desc: not available URL: From jrolig at roliglaw.com Fri Mar 15 16:28:33 2013 From: jrolig at roliglaw.com (Jeff Rolig) Date: Fri, 15 Mar 2013 16:28:33 -0600 Subject: [CLBS] (no subject) Message-ID: Question--Creditor has a judgment against both an individual who has filed Ch. 7, and a corporation owned by the debtor. Is it a violation of the stay for the creditor to garnish funds collected by and belonging to the corporation? If it makes any difference, the corporation has been administratively dissolved. Jeffrey E. Rolig Jeffrey E. Rolig, P.C. P.O. Box 5455 Twin Falls, ID 83303 Tele. 208-733-0075 Fax 208-733-0717 From dbc at dbclarklaw.com Fri Mar 15 16:23:28 2013 From: dbc at dbclarklaw.com (D. Blair Clark) Date: Fri, 15 Mar 2013 16:23:28 -0600 Subject: [CLBS] (no subject) In-Reply-To: References: Message-ID: <033101ce21cb$b8439e80$28cadb80$@com> Usually not, unless it's been commingled in the individual's funds. But if it's still in the corporate account, you should be OK. D. Blair Clark LAW OFFICES OF D. BLAIR CLARK PLLC 1513 Tyrell Lane, Suite 130 Boise, ID 83706 Telephone: (208) 475-2050 Fax: (208) 475-2055 -----Original Message----- From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Jeff Rolig Sent: Friday, March 15, 2013 4:29 PM To: clbs at admws.idaho.gov Subject: [CLBS] (no subject) Question--Creditor has a judgment against both an individual who has filed Ch. 7, and a corporation owned by the debtor. Is it a violation of the stay for the creditor to garnish funds collected by and belonging to the corporation? If it makes any difference, the corporation has been administratively dissolved. Jeffrey E. Rolig Jeffrey E. Rolig, P.C. P.O. Box 5455 Twin Falls, ID 83303 Tele. 208-733-0075 Fax 208-733-0717 _______________________________________________ CLBS mailing list CLBS at admws.idaho.gov http://admws.idaho.gov/mailman/listinfo/clbs From dbc at dbclarklaw.com Sat Mar 16 16:12:27 2013 From: dbc at dbclarklaw.com (D. Blair Clark) Date: Sat, 16 Mar 2013 16:12:27 -0600 Subject: [CLBS] Interesting decision on loan modifications and the discharge injunction Message-ID: <04f801ce2293$584c37d0$08e4a770$@com> I found this decision on the Oregon BK Court's website; it was listed in the "headnotes" portion of the ABI Journal this month. Two things come to mind: 1) Judge Dunn's statement, which may be dicta, that entering into a loan modification agreement for an existing, discharged loan, may revive the mortgage loan as a debt, at least in part; 2) the proof and expert testimony considered to determine the damages for breach of the discharge injunction. For those of you who don't know Judge Dunn, he's excellent. I've had several cases before him. He's also on the BAP with Judge Pappas. D. Blair Clark LAW OFFICES OF D. BLAIR CLARK PLLC 1513 Tyrell Lane, Suite 130 Boise, ID 83706 Telephone: (208) 475-2050 Fax: (208) 475-2055 -------------- next part -------------- A non-text attachment was scrubbed... Name: Culpepper--decision Judge Dunn OR re contempt and loan modification.pdf Type: application/pdf Size: 62700 bytes Desc: not available URL: From refasu at gmail.com Sun Mar 17 08:08:59 2013 From: refasu at gmail.com (Ryan F) Date: Sun, 17 Mar 2013 08:08:59 -0600 Subject: [CLBS] Interesting decision on loan modifications and the discharge injunction Message-ID: For the last 3 years, the U.S. Treasury rules say otherwise for most debtors. See the section beginning at the bottom of page 7 on this published rule. I think that even if the lender left the required language out, the fact that it was supposed to be included would be to the debtor's benefit in case of post-discharge collection efforts. https://www.hmpadmin.com//portal/programs/docs/hamp_servicer/sd1002.pdf Kindest regards, Ryan Farnsworth On Sat, Mar 16, 2013 at 4:12 PM, D. Blair Clark wrote: > I found this decision on the Oregon BK Court's website; it was listed in > the > "headnotes" portion of the ABI Journal this month. Two things come to > mind: > 1) Judge Dunn's statement, which may be dicta, that entering into a loan > modification agreement for an existing, discharged loan, may revive the > mortgage loan as a debt, at least in part; > > 2) the proof and expert testimony considered to determine the damages for > breach of the discharge injunction. For those of you who don't know Judge > Dunn, he's excellent. I've had several cases before him. He's also on the > BAP with Judge Pappas. > > > > > > D. Blair Clark > > LAW OFFICES OF D. BLAIR CLARK PLLC > > 1513 Tyrell Lane, Suite 130 > > Boise, ID 83706 > > Telephone: (208) 475-2050 > > Fax: (208) 475-2055 > > > > > > > > > _______________________________________________ > CLBS mailing list > CLBS at admws.idaho.gov > http://admws.idaho.gov/mailman/listinfo/clbs > > From jon at boiselaw.org Wed Mar 20 13:42:13 2013 From: jon at boiselaw.org (Jon Wilson) Date: Wed, 20 Mar 2013 13:42:13 -0600 Subject: [CLBS] The assets of a Spendthrift Trust are not property of the bankruptcy estate, but what if the Trust with the spendthrift provisions designates beneficary-debtor receives $s on 50th B-Day? Message-ID: Hypothetical: Trust assets in correctly established Trusts with a spendthrift clause are not property of the bankruptcy estate [11 USC 541(c)(2)]. However, what if there is a provision in the spend thrift trust which directs a set amount of funds ($50K) must be paid to the beneficiary/debtor when he/she has their 50th birthday? Does a bankruptcy trustee have the authority to keep the bankruptcy open until debtor's 50th birthday (years down the road) or be able to sell that contingent interest that matures in 12 years? Would 541(c)(2) and Idaho Trust Law prevent it? I have not found any case law on this type of spendthrift trust provision. Thanks everybody ahead of time for your input. Jon R. Wilson Attorney at Law Wilson Law Offices, P.C. 4614 W. Emerald St. Boise, ID 83706 Tel. (208)343-8400 Fax (208)424-5006 Email: jon at boiselaw.org CONFIDENTIALITY NOTICE: The preceding message (including any attachment, if any) is coverby the Electronic Communication Privacy Act, 18 U.S.C. sections 2510-2521, is CONFIDENTIAL, and may also be protected by the ATTORNEY/CLIENT OR OTHER PRIVILEGE. If you believe that this message has been sent to you in error, do not read any further portion of the message other than the remainder of this notice, please reply to the sender that you have received the message in error, and delete the message. If you are not the intended recipient,you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. We do not waive any attorney/client or work privilege by the transmission of this message. Thank you. From Suzanne_Hickok at id.uscourts.gov Wed Mar 20 16:46:12 2013 From: Suzanne_Hickok at id.uscourts.gov (Suzanne_Hickok at id.uscourts.gov) Date: Wed, 20 Mar 2013 16:46:12 -0600 Subject: [CLBS] Fw: Notice on Change in Dollar Amounts Message-ID: ______________________________________ Good Afternoon Members of the Bankruptcy Bar, Please be advised that the dollar amounts in several Official Bankruptcy Forms will be changing on April 1, 2013. The change in dollar amounts is due to an automatic adjustments as required in various provisions of Bankruptcy Code 11 USC ?104. For more information on these changes, please go to the following link on the Court's homepage: http://www.id.uscourts.gov/announcements/Notice%20on%20Official%20Forms%20and%20Dollar%20Amounts%2003.18.13.pdf James M. Kim Chief Deputy of Operations U.S. District & Bankruptcy Courts james_kim at id.uscourts.gov (208) 334-9464 -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/jpeg Size: 8184 bytes Desc: not available URL: From RFrench at bauerandfrench.com Thu Mar 21 09:50:51 2013 From: RFrench at bauerandfrench.com (Randal French) Date: Thu, 21 Mar 2013 15:50:51 +0000 Subject: [CLBS] The assets of a Spendthrift Trust are not property of the bankruptcy estate, but what if the Trust with the spendthrift provisions designates beneficary-debtor receives $s on 50th B-Day? In-Reply-To: References: Message-ID: <45AF97379DC9354BA4F5CFECBB5FFD8301F60CF9@BFSBS.BFDom.local> Has the case been filed yet? If so, I would wait until the discharge is entered and see whether the case closes at that time. I would not think that the trustee could or would keep the estate open for that. By definition, the spend thrift trust assets that exist now are excluded from the estate and beyond the reach of any creditor of the debtor. At age 50, The funds must be distributed to the debtor. Any creditors that exist as of that time could try to garnish any accounts into which the funds were deposited, but could not force the trust to pay the funds to said creditor. By the time that happens, the debts included in the bk would have been discharged and those creditors would be enjoined from taking any action to collect, due to the discharge injunction. If the trustee appears to be holding the case open for just this trust, you might file a motion to abandon the spend thrift trust or get a ruling that it is not part of the estate. Good luck. Randy French www.bauerandfrench.com Bauer & French Attorneys at Law 1501 Tyrell Lane 1P.O. Box 2730 PBoise, ID 83701-2730 (208) 383-0090 ( Fax: (208) 383-0412 IMPORTANT NOTICE: This communication, including any attachments, may contain information that may be confidential or privileged and is intended solely for the entity or individual to whom it is addressed. If you are NOT the intended recipient, you must delete this message and attachments and are hereby notified that any disclosure, copying, or distribution of this message is strictly prohibited. Nothing in this email, including any attachment, is to be a legally binding signature. -----Original Message----- From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Jon Wilson Sent: Wednesday, March 20, 2013 1:42 PM To: clbs at admws.idaho.gov Subject: [CLBS] The assets of a Spendthrift Trust are not property of the bankruptcy estate, but what if the Trust with the spendthrift provisions designates beneficary-debtor receives $s on 50th B-Day? Hypothetical: Trust assets in correctly established Trusts with a spendthrift clause are not property of the bankruptcy estate [11 USC 541(c)(2)]. However, what if there is a provision in the spend thrift trust which directs a set amount of funds ($50K) must be paid to the beneficiary/debtor when he/she has their 50th birthday? Does a bankruptcy trustee have the authority to keep the bankruptcy open until debtor's 50th birthday (years down the road) or be able to sell that contingent interest that matures in 12 years? Would 541(c)(2) and Idaho Trust Law prevent it? I have not found any case law on this type of spendthrift trust provision. Thanks everybody ahead of time for your input. Jon R. Wilson Attorney at Law Wilson Law Offices, P.C. 4614 W. Emerald St. Boise, ID 83706 Tel. (208)343-8400 Fax (208)424-5006 Email: jon at boiselaw.org CONFIDENTIALITY NOTICE: The preceding message (including any attachment, if any) is coverby the Electronic Communication Privacy Act, 18 U.S.C. sections 2510-2521, is CONFIDENTIAL, and may also be protected by the ATTORNEY/CLIENT OR OTHER PRIVILEGE. If you believe that this message has been sent to you in error, do not read any further portion of the message other than the remainder of this notice, please reply to the sender that you have received the message in error, and delete the message. If you are not the intended recipient,you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. We do not waive any attorney/client or work privilege by the transmission of this message. Thank you. _______________________________________________ CLBS mailing list CLBS at admws.idaho.gov http://admws.idaho.gov/mailman/listinfo/clbs !SIG:514a1132207757339811836! From jon at boiselaw.org Tue Mar 26 11:10:27 2013 From: jon at boiselaw.org (Jon Wilson) Date: Tue, 26 Mar 2013 11:10:27 -0600 Subject: [CLBS] Important Decision issued by 9th Circuit 3-25-13 regarding "Good Faith" in chapter 13 cases Message-ID: Dear List Mates, attached is the 9th Circuit's decision in Welsh regarding "good faith" in chapter 13 plans. To quote Robin Miller and her excellent electronic service pertaining to BK decisions across the country: On Monday the Ninth Circuit Court of Appeals decided In re Welsh, Case No. 12-60009. The court held that, where a Chapter 13 plan pays unsecured creditors the amount calculated as the debtor's projected disposable income in accordance with the Bankruptcy Code, the debtor's calculations cannot support a finding that the plan was not proposed in good faith for the purpose of Code section 1325(a)(3). The court was categorical in holding that income exclusions or expense deductions allowed under the Code have been explicitly authorized by Congress and therefore cannot be in bad faith: "We cannot conclude, however, that a plan prepared completely in accordance with the very detailed calculations that Congress set forth is not proposed in good faith. To hold otherwise would be to allow the bankruptcy court to substitute its judgment of how much and what kind of income should be dedicated to the payment of unsecured creditors for the judgment of Congress." Therefore, here, the debtors' plan could not be found to be lacking good faith, where the debtors (1) excluded Social Security income and (2) deducted secured debt expenses for items that could be considered luxury items. And this was a pretty egregious case, in that the debtors deducted payments for six motor vehicles: three cars, two ATVs, and a trailer. What a life. With respect to the court's consideration of the debtors' Social Security income in particular, the Ninth Circuit's decision goes beyond other cases in holding that the income cannot be considered at all as a factor showing a lack of good faith--other cases have held that the exclusion of Social Security income, in itself, does not support a finding of bad faith, but those cases have not categorically precluded consideration of Social Security income under a totality of the circumstances analysis. Thoughts on how this decision will help chapter 13 debtors/your clients or will be opposed by the chapter 13 Trustee (Calling Alex) are appreciated. Jon Jon R. Wilson Attorney at Law Wilson Law Offices, P.C. 4614 W. Emerald St. Boise, ID 83706 Tel. (208)343-8400 Fax (208)424-5006 Email: jon at boiselaw.org CONFIDENTIALITY NOTICE: The preceding message (including any attachment, if any) is coverby the Electronic Communication Privacy Act, 18 U.S.C. sections 2510-2521, is CONFIDENTIAL, and may also be protected by the ATTORNEY/CLIENT OR OTHER PRIVILEGE. If you believe that this message has been sent to you in error, do not read any further portion of the message other than the remainder of this notice, please reply to the sender that you have received the message in error, and delete the message. If you are not the intended recipient,you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. We do not waive any attorney/client or work privilege by the transmission of this message. Thank you. -------------- next part -------------- A non-text attachment was scrubbed... Name: 9th Cir. Welsh.3-25-13.pdf Type: application/pdf Size: 89262 bytes Desc: not available URL: From pgeile at foleyfreeman.com Thu Mar 28 15:19:34 2013 From: pgeile at foleyfreeman.com (Patrick J. Geile) Date: Thu, 28 Mar 2013 21:19:34 +0000 Subject: [CLBS] FW: Roth IRAs Post from George DeFord. Message-ID: <107542B42C4DE0499C066B016AD527A30B5EDFE5@FF01.ff.local> Patrick J. Geile Foley Freeman PLLC Direct line: (208) 947-1563 Phone: (208) 888-9111 From: George DeFord [mailto:rgdeford at qwest.net] Sent: Thursday, March 28, 2013 3:16 PM To: Patrick J. Geile Subject: Roth IRAs Pat: I'm not sure how the link works, so I'm starting with you. I have a client with approx. $12000 in Roth IRA investments, with no additional deposits within the past 3-4 years. IC 11-604A appears to be broad enough to exempt the Roth IRAs; however, the only case I located on point anywhere was out of North Dakota, which ruled Roths were not exempt because of the different tax treatment compared to traditional IRAs. I found nothing on point in the Idaho bankruptcy opinions index. The client is contemplating withdrawing from the Roths and reinvesting in traditional IRAs. Any suggestions? Thanks. DeFord Law R. George DeFord, Jr. 317 12th Avenue South Nampa, Idaho 83651 (208) 461-3667 The information contained in this transmission is attorney-client privileged, confidential and intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, the reader is hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, please notify me immediately by calling (208) 461-3667 and return the original to me at the address indicated above. Thank you. !SIG:5154b322207751643018819! From gugino at cableone.net Fri Mar 29 08:36:39 2013 From: gugino at cableone.net (Jeremy Gugino) Date: Fri, 29 Mar 2013 08:36:39 -0600 Subject: [CLBS] Documents from QuikDocs for Case: 13-00590 (NU MECHANICAL, INC.) Message-ID: <001201ce2c8a$d42beac0$7c83c040$@cableone.net> Folks: If you represent Wells Fargo in this case, please contact me right away. Jeremy J. Gugino 208-342-1590 -------------- next part -------------- A non-text attachment was scrubbed... Name: ECF_DOC_1_18787674.PDF Type: application/pdf Size: 234928 bytes Desc: not available URL: From diane at jdredal.com Wed Mar 20 12:32:29 2013 From: diane at jdredal.com (Diane Redal) Date: Wed, 20 Mar 2013 18:32:29 -0000 Subject: [CLBS] 341 Hearing Message-ID: I filed a bankruptcy for a couple and shortly thereafter one of the spouses was arrested and jailed. The charges are serious and there is little likelihood that the arrested spouse will be released. The jailed spouse will not be able to attend the 341 hearing or have the ability to take the debtor education class from jail. I am trying to decide if I should dismiss the arrested spouse, or go forward and ask the court to waive the debtor education class for the jailed spouse. I believe I can set up a telephone conference from the jail for the 341 hearing. Thoughts?