Trustee's motion for turnover of property

[justbroke]

Yes of course you are right justbroke. I just think that if the child support was exempt before it was in the bank account that it wrong of the trustee to take it.

You're thinking like a Debtor, not a Trustee. As I've written before, many of them will just do blanket oppositions to transfers and exemptions, just to see if you'll fight. I think that's just as wrong as the Middle District Trustee who sends the appraiser to 99% of all Chapter 7 debtor's homes. It's all about the Benjamins.

[backtoschool]

Could only exacerbate the situation. The Trustee could then, state that you spent/liquidated property that was not exempt, and move to dismiss for bad faith. personally, I wouldn't play games. I'd listen to my attorney, or look for other opinions from attorneys practicing in that District. Maybe a specialist who comes in Pro Hac Vice.

Yes of course you are right justbroke. I just think that if the child support was exempt before it was in the bank account that it is wrong of the trustee to take it.

[justbroke]

gunner01... who are you asking that question? For what it's worth, no appraiser came to my home and the value of my personal belonging was listed at $4,700.

[gunner01]

I see you are in the Middle District of Florida as well. Did the trustee send an appraiser to your house? What kind of dollar value did they place on your non exept assets? It looks as if I am having an appraiser visit my house soon. On pacer I was able to see where the trustee has made the request. I am so confused because she also filed a 707(b) motion. Why send an appraiser if you are trying to dismiss my case, convert it, or grant my 7...

Please share..

Gunner01

[justbroke]

Couldn't the OP spend in now on necessary items and then contest the objection?

Could only exacerbate the situation. The Trustee could then, state that you spent/liquidated property that was not exempt, and move to dismiss for bad faith. personally, I wouldn't play games. I'd listen to my attorney, or look for other opinions from attorneys practicing in that District. Maybe a specialist who comes in Pro Hac Vice.

[backtoschool]

Right. If the OP had spent it prior to filing, on necessities, this would certainly have reduced or eliminated the balance in the bank. With a smaller balance, it could be argued that there was a need (medicine, food, clothing). I just hope the attorney can work magic, but it reads as if the attorney is now saying... turn it over.

Couldn't the OP spend in now on necessary items and then contest the objection?

[justbroke]

Right. If the OP had spent it prior to filing, on necessities, this would certainly have reduced or eliminated the balance in the bank. With a smaller balance, it could be argued that there was a need (medicine, food, clothing). I just hope the attorney can work magic, but it reads as if the attorney is now saying... turn it over.

[backtoschool]

I'm probably wrong, but from what I've read and from what I know, this is a State law issue, so you're right to ask about Florida specifically.

I think the key to it is the "reasonably necessary". If you haven't spent it yet, then it probably wasn't "necessary" for your support at that time. The reason doesn't appear simple, but Congress could have left the words "to the extent reasonably necessary" in order to cover it 100%, as they did in the other parts of 11 USC 522(d)(10).

I think you only need look to (d)(11) to see how it (d)(10) would have been written if it were for anything that came from support. For example, (d)(11) starts with "debtor's right to receive, or property that is traceable to"... which is a big difference. Right to receive means future, and traceable implies something that already occurred in the past.

I really, just don't know. You may have to just settle with the thoughts that your lawyer is probably right.

Justbroke, wouldn't the solution be to spend it on necessary items for the children like clothes, check-ups, etc? It seems to me that the OP should not be penalized for not spending the money immediately, but I did have a question about that in my first post on the thread. I think it would considered a cash asset if not spent, but if the OP spends it on necessary items for the children and retains receipts, the trustee will not have an argument.

[justbroke]

But I guess this may be a moot point, do I have a case at all to fight to exempt this? I don't feel comfortable putting this hearing in her hands but maybe I have no choice and I have to just give this stuff up and move on. I don't want to lose my cash, I cannot afford to.

I'm probably wrong, but from what I've read and from what I know, this is a State law issue, so you're right to ask about Florida specifically.

I think the key to it is the "reasonably necessary". If you haven't spent it yet, then it probably wasn't "necessary" for your support at that time. The reason doesn't appear simple, but Congress could have left the words "to the extent reasonably necessary" in order to cover it 100%, as they did in the other parts of 11 USC 522(d)(10).

I think you only need look to (d)(11) to see how it (d)(10) would have been written if it were for anything that came from support. For example, (d)(11) starts with "debtor's right to receive, or property that is traceable to"... which is a big difference. Right to receive means future, and traceable implies something that already occurred in the past.

I really, just don't know. You may have to just settle with the thoughts that your lawyer is probably right.

[beachymama]

I don't understand everything I just read, but I can tell you that my bank statements do not show that the money has been sitting as savings for a long time building up. I have an every two weeks direct deposit and the monthly amounts vary as they are used monthly for the support of the children. I get $2100 a month and I only had one month in there. In the summer it goes quickly with summer camp activities.

Same thing with the paycheck. I pretty much spend my income monthly, some months more than others. I only had about one months pay sitting in there, not really a savings.

But I guess this may be a moot point, do I have a case at all to fight to exempt this? I don't feel comfortable putting this hearing in her hands but maybe I have no choice and I have to just give this stuff up and move on. I don't want to lose my cash, I cannot afford to.

[justbroke]

Yes but the exemption is on the "right to receive" and for "need", not for child support payments just sitting in a banking account. I read these carefully before, and find no caselaw that says that they can't be considered income.

11 USC 522(d)(10) does not appear to exempt money already received because of the wording. I believe that caselaw would argue that (d)(10) covers only that amount which is reasonably necessary for the support of the debtor and dependents. Not amounts that were "saved".

[mtbc]

The Federal child support exemption in (d)(10) at http://www.law.cornell.edu/uscode/ht...2----000-.html appears to be permitted under http://www.leg.state.fl.us/STATUTES/...n 201#0222.201 and wages are covered by http://www.leg.state.fl.us/STATUTES/...ion 11#0222.11. Googling for "florida bankruptcy exemptions" seems to confirm this, as does page 326 of the 2010 Nolo chapter 7 book. I am in Massachusetts though so somebody with more local knowledge may be able to clarify.

It does seem that you may need to get a second opinion, though switching lawyer mid-stream can be non-trivial.

[beachymama]

talked to the attorney today. She tells me that she told me, her assistant told me and the trustee told me that my child support is income and that my pay is not being garnished so I do not get to exempt it. She was very rude and did not want to discuss it.

How can I do this on my own or does anyone have an attorney in SW or South Florida that knows the Florida law and the Middle District of Florida trustees, so that I can pay them to handle it? PLEASE!!!

Is she just ignorant of the law or is this made up, she told me to look up the law, can anyone tell me where I can quote her the law you are using?? So tired of this mess.

Is the $250 check a retainer for the attorney or money to pay the trustee?

Tell your attorney you want to amend your petition to exempt your pay and child support.

The court cost to amend a petition is under 50 dollars. Anything else is what your attorney is adding on top of that.

[backtoschool]

Attorney ignores my email requests to have my pay and child support exempted. Is it too late to do this? and just asks me for a $250 check to negotiate with the Trustee.

Is the $250 check a retainer for the attorney or money to pay the trustee?

Tell your attorney you want to amend your petition to exempt your pay and child support.

The court cost to amend a petition is under 50 dollars. Anything else is what your attorney is adding on top of that.

[beachymama]

Attorney ignores my email requests to have my pay and child support exempted. Is it too late to do this? and just asks me for a $250 check to negotiate with the Trustee.