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Community Property States

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  • #61
    You know I bet he said this because we are keeping two cars. I will make sure though before we file in May.

    Thanks for the reply!
    Filed CH 7 - 5/21/10, 341 Meeting - 7/9/10, Report of no distribution - 7/12/10
    Last day to object - 9/7/10
    Discharged - 9/14/10
    Closed - 9/21/10

    Comment


    • #62
      My hubby wants to file ch 7. We have been married 5 yrs, and I had a bk discharged a few months before we married. Since we live in California, can he still file ch 7 and have my debts(that were acquired during the marriage) discharged too?

      Comment


      • #63
        There is an argument to that, and it would be if the trustee/judge caught it or not. I remember reading in the code somewhere about it wouldnt be, because technically you cant discharge yours because you filed 8 years ago, even though you aren't on the petition. That is exactly what I am trying to do, but its a very complicated question that only highly experienced lawyers could tell you. I have not come across many of those, but they do exist.
        As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

        Comment


        • #64
          I thought maybe because ca was a community prop state, that the court would see his filing as that of the community and not that of an individual. Am I wrong? Would he have to list my debt on his paperwork as well or not? It wouldn't matter too much as I don't have a lot of debt, and we could manage it fine. Thanks for the input.

          Comment


          • #65
            Youre right, but the hypothetical discharge for the community spouse who isnt filing, the creditors have an argument, to which they probably wont argue anything. You would be getting through two loopholes if that was the case, I just wouldnt be so optimistic at this point. You are where I am.
            As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

            Comment


            • #66
              Thanks for the info. Keep us up to date , I would really like to know how things turn out for you. Is your case still open, if so, when do you expect it to be resolved? Thanks

              Comment


              • #67
                commenced within six years of the date of the filing of the petition in the case concerning the debtor; and

                (B) the court does not grant the debtor’s spouse a discharge in such case concerning the debtor’s spouse; or

                (2)

                (A) the court would not grant the debtor’s spouse a discharge in a case under chapter 7 of this title concerning such spouse commenced on the date of the filing of the petition in the case concerning the debtor; and

                (B) a determination that the court would not so grant such discharge is made by the bankruptcy court within the time and in the manner provided for a determination under section 727 of this title of whether a debtor is granted a discharge.


                The way I read this, is its holding you to two rules here, one is a 6 year rule, but then it goes on to say if you would be filing with your spouse, and you filed within 8 years then you would not receive a discharge either.

                This is the main reason why I am doing a Chapter 13, because I would not be protected, the same would go for you.

                The question is,

                Would the creditors know about this, probably not, so its worth a chance. Because, on the creditor schedules in the petition, no names would be listed, just account #'s and address's. Only your income would be included, and asset's.

                Here are some more helpful links.

                Case law,

                http://www.wieb.uscourts.gov/index.p...wnload&gid=286

                Community discharge article, read where it talks about 524.

                http://www.marleneweinstein.com/inde...ticles_2.shtml
                Last edited by optimistic1; 02-01-2010, 09:00 AM.
                As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                Comment


                • #68
                  Also,

                  This case show you how it can prove to protect non filing spouses to certain extents. It also highlights how, if creditors do not object to dischargeability it will relinquish the non-filing spouse. Pay close attention to pages 9-12 as this where it highlights how a creditor lost their rights to object to the non-filing spouse's dischargeability. This case in particular shows you that you can always try to file a 7, and if creditors dont object, you get away with it.


                  http://207.41.19.15/web/bap.nsf/F261D6E4B839EE2E8825739A0004C2B1/$file/Kimmel-07-1152.pdf?openelement
                  As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                  Comment


                  • #69
                    Love this ruling!

                    These provisions for nondischargeability and objection-to discharge actions directed at the nondebtor spouse are, however, subject to a diligent creditor requirement. The failure by creditors to raise nondischargeability and discharge objection issues in a timely manner in the case of the debtor spouse will allow the community property discharge to be effected.
                    As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                    Comment


                    • #70
                      Originally posted by optimistic1 View Post
                      There is an argument to that, and it would be if the trustee/judge caught it or not. I remember reading in the code somewhere about it wouldnt be, because technically you cant discharge yours because you filed 8 years ago, even though you aren't on the petition. That is exactly what I am trying to do, but its a very complicated question that only highly experienced lawyers could tell you. I have not come across many of those, but they do exist.
                      I was wrong here, but who knows, from the case law I am reading, it really has nothing to do with the trustee or judge, it has to do with whether or not the creditors will pay attention, and object or not. If they dont object, you get away with it.
                      As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                      Comment


                      • #71
                        Wow, this gives me a lot to think about. If my debt is included in my hubby,s case and my creditors don't notice my prior bk, or fail to object to the dischargeability of my debt during my hubby's case, then my debt would be forever extinguished through his bk. Am I getting this right? And I wouldn't be doing anything illegal by adding my debt to his bk. What if my creditors did notice my prior bk and objected to the discharge of my debt, could I be charged with fraud because I knew I had a prior bk?

                        Comment


                        • #72
                          Originally posted by shaedes View Post
                          Wow, this gives me a lot to think about. If my debt is included in my hubby,s case and my creditors don't notice my prior bk, or fail to object to the dischargeability of my debt during my hubby's case, then my debt would be forever extinguished through his bk. Am I getting this right? And I wouldn't be doing anything illegal by adding my debt to his bk. What if my creditors did notice my prior bk and objected to the discharge of my debt, could I be charged with fraud because I knew I had a prior bk?

                          No you would not be charged with fraud. However in thinking about this stipulation in the code more thouroughly and reviewing the case law. You would not be able to do this, as you posted this,

                          Originally posted by shaedes View Post
                          My hubby wants to file ch 7. We have been married 5 yrs, and I had a bk discharged a few months before we married. Since we live in California, can he still file ch 7 and have my debts(that were acquired during the marriage) discharged too?
                          does not apply if--
                          (1)

                          (A) the debtor’s spouse is a debtor in a case under this title, or a bankrupt or a debtor in a case under the Bankruptcy Act, commenced within six years of the date of the filing of the petition in the case concerning the debtor; and

                          (B) the court does not grant the debtor’s spouse a discharge in such case concerning the debtor’s spouse; or

                          (2)

                          (A) the court would not grant the debtor’s spouse a discharge in a case under chapter 7 of this title concerning such spouse commenced on the date of the filing of the petition in the case concerning the debtor; and

                          (B) a determination that the court would not so grant such discharge is made by the bankruptcy court within the time and in the manner provided for a determination under section 727 of this title of whether a debtor is granted a discharge.
                          As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                          Comment


                          • #73
                            So is it ok for hubby to not list my debt in his case. We can manage my debt ok, and I really have no sole and separate property for creditors to come after anyway.

                            Comment


                            • #74
                              I would still list your debt, as any of it, he is liable for, until discharge. If you divorced one another, or if you die by chance, they could have the right to collect from him, if you don't list them on the schedule. Just keep paying your debts as normal. Its up to you though, and your attorney to help decide.
                              As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

                              Comment


                              • #75
                                Thanks Optimistic1, you've been a great help.

                                Comment

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