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E.R.I.S.A. Contingent award exemption in Fl

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  • E.R.I.S.A. Contingent award exemption in Fl

    I filed a Pro Se chapter 7-had my 341 last week-all went well,standard questions. Trustee asked about lawsuits and I told him about a civil suit that's currently waiting for oral briefs in 4th circuit court of appeals. Contingent award should be exempt as the case is about a former employer who stole money taken from my pay but never deposited into a mandatory 401k plan. I gave trustee lawyers info-should I be concerned about losing this 30,000.00? If I made an error in exemption statute,am I screwed? Meeting lasted maybe 10 minutes and Trustee says okay,that's all. Any thoughts would be greatly appreciated.

  • #2
    Can't speculate on the Trustee or what they may believe. You'll need to wait out up to 30 days to see if they object to your exemptions or they just go ahead and file a Report of No Distribution (no assets). It is certainly an interesting case as the money is not actually "in" the 401(k). The Trustee will likely review if it's really protected and whether the term "held" means it's actually in the account.

    It's one thing if they stole the money from the 401(k) account, but it may be another if they never put it into the 401(k) account.

    Have you obtained any free consultations and asked that question before filing (or even just after you learned of the Trustee's interest)?
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog

    I am not an attorney. Any advice provided is not legal advice.


    • #3
      Before I filed,I researched online the best that I could and I spoke with my attorney who is handling our class action suit-The consensus is that it should be protected. That suit goes in front of appeals court in Sept and decision is expected by years end-however defendant may appeal to Supreme Court-I filed bankruptcy now versus later, at my wife's insistence to get it out of the way.
      I haven't filed my second credit counseling certificate as of yet and plan on doing so in the next couple of days,but am wondering-if I don't file it,will that end my bankruptcy and guarantee the safety of my contingent award? I can always file in the future-I can live with potentials liens against me a lot easier than losing my award.
      Again,any thoughts would be greatly appreciated.


      • #4
        Once you file a Chapter 7, and specially when there are assets, the case will proceed with or without you. In fact, they could deny your discharge, and still liquidate your assets. I was talking about speaking with a bankruptcy attorney, not an employment or compensation attorney. You may still want to ask around.

        I don't see an issue, but because the Trustee asked and obtained the phone number of the attorney, that means that it is, in fact, interesting. This is certainly the first time I have read of this type of issue in the last 9 years. It has some unique facts that certainly peaks my curiosity so I'm sure it has the Trustee wondering the same. The question is, are 401(k) contributions that were deducted from an employees earnings, but never deposited into an ERISA account and subsequently awarded in a lawsuit during the pendancy of the employee's bankruptcy, still afforded protection by any bankruptcy (law) exemption for the employee (not employer).

        There are other ways "around" this if the Trustee is both interested and wins on any motion to include the non-deposited funds. One is conversion to Chapter 13. The other may be a settlement with the Trustee.

        This is just too much of a rarity that I can't think of any guaranteed way to protect these funds. I looked and can't find a single case which is exactly on point with this issue.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog

        I am not an attorney. Any advice provided is not legal advice.


        • #5
          My bankruptcy petition was successfully discharged almost a week ago-my E.R.I.S.A civil suit concluded the day before scheduled trial when defendants agreed to a 90% settlement.
          Just wanted to update you and say thanks for information.


          • #6
            Did the Trustee abandon any pursuit of the ERISA funds?
            Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
            Status: (Auto) Discharged and Closed! 5/10
            Visit My BKForum Blog: justbroke's Blog

            I am not an attorney. Any advice provided is not legal advice.


            • #7
              Yes- Trustee abandoned pursuit of my ERISA funds-My exemptions held.


              • #8
                Very nice to hear! I hope you have a wonderful fresh start.
                Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                Status: (Auto) Discharged and Closed! 5/10
                Visit My BKForum Blog: justbroke's Blog

                I am not an attorney. Any advice provided is not legal advice.


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