Payments just before filing ...

[stanpendula]

OK, thanks.

[help4mydebts]

Des, by any chance are you an atty in AZ?? I am in need of a good, knowledgeable atty!

[AngelinaCat]

When I'll be done, I'll write everything in a blog, because I made every mistake in the book, worse than if I would have been alone.

Sorry, you don't get the prize. 'Hub and I do. You might be a close runner-up, though.

[despritfreya]

Des, by any chance are you an atty in AZ?? I am in need of a good, knowledgeable atty!

Yes, but unfortunately I cannot become yours. I post here anonymously and have no wish to give my anonymity away. If you have a question you may PM me and, if I can assist I will.

Des.

[daylate]

Just a quick question-When you buy a cashiers check isn't that the same as a money order in that the bank takes your money immediately and the check is drawn on the bank and not your account? I'm not sure why it is an asset of the bk estate?

[despritfreya]

Just a quick question-When you buy a cashiers check isn't that the same as a money order in that the bank takes your money immediately and the check is drawn on the bank and not your account? I'm not sure why it is an asset of the bk estate?

Cashier's checks and m.o's necessarily mean the $$ is out of your account, however, until the "instrument" is out of your possession, it is an asset as it can be turned back in for cash. Typically the instrument must be out of your "possession, dominion and control" - in other words, already in the US Postal Service's possession (mailbox rule) or the payee's.

Des.

[helpmeout]

Cashier's checks and m.o's necessarily mean the $$ is out of your account, however, until the "instrument" is out of your possession, it is an asset as it can be turned back in for cash. Typically the instrument must be out of your "possession, dominion and control" - in other words, already in the US Postal Service's possession (mailbox rule) or the payee's.

Des.

That would depend on the bank. A money order is easy to take back and get a refund. When I got a bank check for my security deposit, I asked about it bringing it back if I ended up not getting the apartment. The bank told me that the Landlord would have to sign it back to me, they couldn't just give me the money back even if I gave them the check. Perhaps it's the same at the OP's bank.

[daylate]

So the issue here is no proof of mailing? OP said it was mailed but apparently didn't send with a way to prove mailing? Interesting twist to the "pay by money order" advice. learn something new here everyday.

[despritfreya]

So the issue here is no proof of mailing? OP said it was mailed but apparently didn't send with a way to prove mailing? Interesting twist to the "pay by money order" advice. learn something new here everyday.

Now, I have not looked back at the original post but I think OP sent a personal check. The "mail box" rule technically does not apply since the $$ is still in the account.

As it relates to "helpmeout's" comment, it may be bank specific but I have never heard of a bank refusing to take back a cashier's check which is endorsed "not used for purpose intended". Not sure if there is a UCC provision addressing this.

Des.

[debee]

Sounds like trustee is claiming the check is a post-petition transfer.

In the 9th Circuit (OP's Circuit) there is binding case law establishing that a transfer via cashier's check under section 549(a) only occurs once the payee physically controls the check. That is why the trustee told OP it wouldn't matter if he had proof of mailing.

Proof of delivery (had it actually been delivered prior to OP's petition being filed) would have prevented the trustee from taking the money.

See In re Mora, 218 B.R. 71 (BAP 9th Cir. 1998) here.

[help4mydebts]

Yes, but unfortunately I cannot become yours. I post here anonymously and have no wish to give my anonymity away. If you have a question you may PM me and, if I can assist I will.

Des.

I completely understand, Des. I think it is wonderful that as an attorney, you post on the board to help people. I am going to PM you with a few questions! Thank You!