[CLBS] Ch. 13 Question

[Alexandra Caval]

They are property of the estate but they don't necessary get turned over to
the trustee. In chapter 13 the plan controls and there's a budget that's
proposed to make the chapter 13 work. Also, the debtor has possession over
estate property in chapter 13 (see 1306). If these are post-petition funds
then you can either demand they be turned over to you and your client or
they can be turned over to the trustee. If they get turned over to the
trustee and your debtor's are current on plan payments as proposed in the
plan then you can ask the trustee to return the money to the debtors because
the debtor is performing the terms of the plan. Alternatively, you can have
the trustee apply the funds toward the plan payments (good idea if your
debtors fell behind as a result of the post-petition garnishments). If you
don't do either of these then expect the trustee to include as a provision
in the confirmation order that treats the post-petition garnishments as
additional funds that will be disbursed to creditors. 


Alexandra O. Caval
Caval Law Office, P.C.
P.O. Box 1716
Twin Falls, ID 83303-01716
T: 208.733.2035
F: 208.733.3919
alex at cavallawoffice.com


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-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Jeff Wilson
Sent: Monday, February 8, 2016 2:31 PM
To: Tyler Wirick <tyler.wirick at wiricklaw.com>
Cc: BK listserve <clbs at admws.idaho.gov>
Subject: Re: [CLBS] Ch. 13 Question

I would tend to agree

Jeffrey M. Wilson

> On Feb 8, 2016, at 12:43 PM, Tyler Wirick <tyler.wirick at wiricklaw.com>
wrote:
> 
> My position, by the way, is that pursuant to 11 USC 541 and 1306(a)(2),
they are property of the estate and must be returned to the trustee even
though the creditor did not receive notice. 
> 
>> On Feb 8, 2016, at 12:30 PM, Tyler Wirick <tyler.wirick at wiricklaw.com>
wrote:
>> 
>> Creditor is actively garnishing pre-filing. Debtor files a Chapter 13 but
fails to schedule the creditor. Creditor continues garnishment post filing,
but then finds out through a third party about the BK. Who gets the
post-petition garnishment funds?
>> 
>> Best,
>> 
>> Tyler Wirick
>> 
>> PLEASE SEE UPDATED CONTACT INFORMATION, BELOW
>> 
>> Best regards,
>> 
>> Tyler S. Wirick
>> Law Offices of Tyler S. Wirick
>> PO Box 910116
>> Saint George, UT 84791
>> Telephone: (435) 243-5885
>> Fax: (435) 214-2480
>> tyler.wirick at wiricklaw.com <mailto:tyler.wirick at wiricklaw.com>
>> 
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