DMI vs Assets for one spouse filing

[boochase]

I read Beal case as well as the commentary. Since we meet the "unities" and the intent of our joint institutional accounts, I have a good chance for "immunity" for the assets within those accounts. Thanks to everyone who contributed.

[OHBOY]

Quote by 'boochase':
"OK. I am less confused. So, if our cash accounts (checking, brokerage) did not give the option of TBE (which they didn't) and we meet the criteria of TBE, then all of our cash is now exempt (in the state of Florida). Am I understanding this to be correct?"

Please see more on this TBE link: asset protection florida, tenants by entireties, joint ownership
Florida law provides quick and effective asset protection for
married persons who own real and personal property either as...

http://www.alperlaw.com/joint_ownership.html Similar pages

While the law may be going in your favor, I doubt very much that a trustee would not challenge it where an account is not specifically set up as a TBE.... and... I would assume that it would be costly to fight him/her (?)
__________________________________________________ ________________________

Quote: " Am I understanding this to be correct? If I am getting it wrong and only half the cash is protected, then the greater of the asset test vs DMI will kick in--is this the right answer? "

Any assets that are protected under TBE are exempt..not 'half'... it would be the whole 'shebang', but...again, I would doubt that the assets you are talking about will go unchallenged.
__________________________________________________ ________________________

Quote: " I do qualify for ch7, but I was told that I would have to give up the cash. So, apparently, TBE is irrelevant when filing ch7--is this correct? "

I believe TBE applies to either chapter...attorney should be able to give input.
__________________________________________________ ________________________

Quote: "My attorney said he has a great relationship with the trustee and mostly gets what he asks for. We will see."

As trustees are assigned to cases on a random basis, I don't understand how any attorney can make that statement...
Attorney I went to see stated that "...it all depends on who the trustee is..."
__________________________________________________ _____________________

(Please understand that just like you, I am trying to learn about bk, and therefore anything coming from my direction is just what I believe... does not mean that it's correct..only an attorney can 'set you straight')

[SunshineGal]

There is a good explanation regarding TBE on this site.

http://www.alperlaw.com/asset_protection.html

If you Google Tenancy by entireties + Beal Bank, you will get links to rulings in the FL BK court.

[catleg]

I may be wrong here, but I would not expect TBE to provide any protection inside bankruptcy court, whether chapter 7 or 13. Chapter 13 provides for the codebtor stay, which is almost the same thing.

My impression of TBE is that it's only operative in state court actions, anyone disagree?

After all bankruptcy court generally does not order your house to be sold, it merely lifts the automatic stay allowing that action to occur in state court.

Bankruptcy court is generally a paper exercise, so TBE isn't going to shield anything from a trustee's calculation of what you should turn over in order to get a bankruptcy discharge. Since a non debtor spouse is involved, even if TBE is honored and the court doesn't compel you to turnover an asset, they would most likely IMHO deny a discharge.

[boochase]

OK. I am less confused. So, if our cash accounts (checking, brokerage) did not give the option of TBE (which they didn't) and we meet the criteria of TBE, then all of our cash is now exempt (in the state of Florida). Am I understanding this to be correct? If I am getting it wrong and only half the cash is protected, then the greater of the asset test vs DMI will kick in--is this the right answer? The only unsecured debt I have is my CC debt. My house is not totally underwater, and I am paying the mortgages on time. I have no other debt. I do qualify for ch7, but I was told that I would have to give up the cash. So, apparently, TBE is irrelevant when filing ch7--is this correct? So, the way I see it--when filing ch13 by myself, all of our cash accounts are protected by TBE, and I would have to pay based on DMI, which it about $200/mo. I will be meeting with the attorney within the next month to complete the paperwork and file. I will report the results once the paperwork is completed. When we have the Meeting, I will know how the trustee will proceed. My attorney said he has a great relationship with the trustee and mostly gets what he asks for. We will see.

[SunshineGal]

Oops... "joking" should be joint in the post above, sometimes I just love spell check, lol.

[catleg]

Wouldn't any real estate be covered by Florida's homestead? Or are we talking about 2nd homes/rental properties? Why are you filing the 13 in the first place?
Tax debt? Mortgage arrears? Above median?

[OHBOY]

Quote by 'momofthree': "I believe a large part of his asset total is cash though, and you can be sure the trustee will try to fight for it to be considered non-exempt...."


I would not doubt it...
but, I merely wanted to point out that original poster considered his 35K assets exempt by TBE. He did not (the way I read it...) consider them 'non exempt', and he based his calculation thereafter on splitting those assets in half and basing his repayment on his assets....
Now, THAT'S where I don't follow... seems to me that any repayment would be based on his income (taking his spouses income into consideration) & what his disposable monthly income is, and thereafter what his debt is. Seems quite clear cut to me, assuming that the 35K in assets are considered to be held in TBE.

Again, I am not very informed about a chpt. 13...b-u-t logic tells me that's how it would work.....?

[momofthree]

Quote 'SMinGA': ..There are rules to filing a ch. 13, as you pointed out the key one is about how creditors must get as much as they would in a ch. 7. So in order to keep your non-exempt assets of $17.5k, you must pay in at least $17.5k."


Please note that original poster stated that the assets ARE EXEMPT BY TBE...

I believe a large part of his asset total is cash though, and you can be sure the trustee will try to fight for it to be considered non-exempt....

[OHBOY]

Quote 'SMinGA': ..There are rules to filing a ch. 13, as you pointed out the key one is about how creditors must get as much as they would in a ch. 7. So in order to keep your non-exempt assets of $17.5k, you must pay in at least $17.5k."


Please note that original poster stated that the assets ARE EXEMPT BY TBE...

[SunshineGal]

We haven't filed yet, but since only one spouse is filing and there aren't any joking unsecured creditors, I've done a lot of research regarding TBE.

If you can find the Beal Bank ruling, it will explain when JT accounts are presumed to be held as TBE. As I understand, it all comes down to the signature card, if TBE was available, and JT was selected, the trustee is usually successful. However, there is a presumption that property held by husband and wife is owned as TBE and it is up to the trustee to prove otherwise.

By the way, we saw three attorneys, one told us about TBE, the next said it only applies to real property and the 3rd quoted NY case law so we got out of there quick, lol.

I should note this applies to Florida law.

[boochase]

Another point he made that I think isn't clear: Even if the property is titled JTWRS, it will qualify for TBE if the property meets the above criteria. He said that he gets this exemption 90% of the time. He made another point--many bank/brokerage accounts do not have the option of TBE as well as other assets. This is true. So, FL law seems to provide for this dilemma. Just wanted to see if others were successful with classifying their assets this way.

[SunshineGal]

[B] A creditor could rebut this presumption by showing that the property ownership does not possess all six entireties characteristics or that the husband or wife indicated an intent to own the property in some other manner."

That's what I meant by TBE can get kind of tricky. Titled property with "and" will presume TBE, where "or" will presume JTWFRS.

You can research the local opinions online through the court website; there are quite a few that apply to TBE property. It's my understanding that unless both spouses owe the unsecured debt, TBE is exempt from creditors. Some of the cases I've seen where the trustee won included bank accounts opened prior to marriage, cars with "or" instead of "and" and one where the couple selected JT vs TBE on a signature card when they opened the account. Beal Bank is the main case law.

[boochase]

Here is what I was told by an attorney: "Most states with entireties protection afford the protection only to real property. In Florida, unlike most other states, all types of property, including all real property, tangible personal property, and intangible personal property, may be owned by a married couple as tenants by entireties. Whether a married couple owns property as unprotected joint tenants with survivorship or as protected tenants by entireties depends on the intent of the spouses. The Florida Supreme Court has said that any real or personal property owned jointly by a hustand and wife is presumed to be owned as tenants by entireties. A creditor could rebut this presumption by showing that the property ownership does not possess all six entireties characteristics or that the husband or wife indicated an intent to own the property in some other manner."

[SunshineGal]

If the accounts are titled TBE they are exempt...meaning, they would not be calculated in the amount your creditors would receive. TBE can get a little but tricky, there are a ton of rules that apply. If the married couple had the option of selecting TBE and chose joint tenants with rights of survivorship, TBE is protection is lost. Also, for titled property, it must read "and" vs. "or".