Mar 14, · United States Bankruptcy Court, N.D. Iowa. March 14, * * * Michael Malleney, Des Moines, IA, for debtors. In making the disclaimer, he channeled an inheritance worth at least $85, from the bankruptcy estate into the hands of Debtors' children. The result is that unsecured creditors are denied distribution of this asset and. United States Bankruptcy Code Edition Home > Chapter 5 – Creditors, the Debtor, and the Estate (Sections to ) > Subchapter II – Debtor’s Duties and Benefits > Section – Exemptions. The United States Bankruptcy Court for the Northern District of Iowa, is committed to working together to assist in the judicial administration of bankruptcy cases by providing professional, efficient, and courteous service.
Related videosBankruptcy Basics - Part 5: Creditors' Meeting
A husband and wife may file a joint petition or individual petitions. Even if filing jointly, a husband and wife are subject to all the document filing requirements of individual debtors. The Official Forms may be purchased at legal stationery stores or download.
They are not available from the court. Normally, the fees must be paid to the clerk of the court upon filing. With the court's permission, however, individual debtors may pay in installments. The number of installments is limited to four, and the debtor must make the final installment no later than days after filing the petition. For cause shown, the court may extend the time of any installment, provided that the last installment is paid not later than days after filing the petition.
If a joint petition is filed, only one filing fee, one administrative fee, and one trustee surcharge are charged. Debtors should be aware that failure to pay these fees may result in dismissal of the case. In order to complete the Official Bankruptcy Forms that make up the petition, statement of financial affairs, and schedules, the debtor must provide the following information:. Married individuals must gather this information for their spouse regardless of whether they are filing a joint petition, separate individual petitions, or even if only one spouse is filing.
In a situation where only one spouse files, the income and expenses of the non-filing spouse are required so that the court, the trustee and creditors can evaluate the household's financial position.
Among the schedules that an individual debtor will file is a schedule of "exempt" property. The Bankruptcy Code allows an individual debtor 4 to protect some property from the claims of creditors because it is exempt under federal bankruptcy law or under the laws of the debtor's home state.
Many states have taken advantage of a provision in the Bankruptcy Code that permits each state to adopt its own exemption law in place of the federal exemptions.
In other jurisdictions, the individual debtor has the option of choosing between a federal package of exemptions or the exemptions available under state law.
Thus, whether certain property is exempt and may be kept by the debtor is often a question of state law. The debtor should consult an attorney to determine the exemptions available in the state where the debtor lives. Filing a petition under chapter 7 "automatically stays" stops most collection actions against the debtor or the debtor's property.
But filing the petition does not stay certain types of actions listed under 11 U. The stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even telephone calls demanding payments.
The bankruptcy clerk gives notice of the bankruptcy case to all creditors whose names and addresses are provided by the debtor.
Between 21 and 40 days after the petition is filed, the case trustee described below will hold a meeting of creditors. If the U. During this meeting, the trustee puts the debtor under oath, and both the trustee and creditors may ask questions. The debtor must attend the meeting and answer questions regarding the debtor's financial affairs and property. If a husband and wife have filed a joint petition, they both must attend the creditors' meeting and answer questions.
Within 10 days of the creditors' meeting, the U. It is important for the debtor to cooperate with the trustee and to provide any financial records or documents that the trustee requests.
The Bankruptcy Code requires the trustee to ask the debtor questions at the meeting of creditors to ensure that the debtor is aware of the potential consequences of seeking a discharge in bankruptcy such as the effect on credit history, the ability to file a petition under a different chapter, the effect of receiving a discharge, and the effect of reaffirming a debt.
Some trustees provide written information on these topics at or before the meeting to ensure that the debtor is aware of this information. In order to preserve their independent judgment, bankruptcy judges are prohibited from attending the meeting of creditors. In order to accord the debtor complete relief, the Bankruptcy Code allows the debtor to convert a chapter 7 case to a case under chapter 11, 12, or 13 6 as long as the debtor is eligible to be a debtor under the new chapter.
However, a condition of the debtor's voluntary conversion is that the case has not previously been converted to chapter 7 from another chapter. Thus, the debtor will not be permitted to convert the case repeatedly from one chapter to another.
When a chapter 7 petition is filed, the U. If all the debtor's assets are exempt or subject to valid liens, the trustee will normally file a "no asset" report with the court, and there will be no distribution to unsecured creditors. Most chapter 7 cases involving individual debtors are no asset cases. But if the case appears to be an "asset" case at the outset, unsecured creditors 7 must file their claims with the court within 90 days after the first date set for the meeting of creditors.
A governmental unit, however, has days from the date the case is filed to file a claim. In the typical no asset chapter 7 case, there is no need for creditors to file proofs of claim because there will be no distribution. If the trustee later recovers assets for distribution to unsecured creditors, the Bankruptcy Court will provide notice to creditors and will allow additional time to file proofs of claim.
Although a secured creditor does not need to file a proof of claim in a chapter 7 case to preserve its security interest or lien, there may be other reasons to file a claim. He notified the prior beneficiaries that he suspected that there was a new will disinheriting them. The disinherited beneficiaries filed a claim against the estate alleging that the will should be set aside due to undue influence by the niece.
The trial court held that the disinherited beneficiaries were notified of the undue influence in the letter and their claim for tortuous interference had accrued at that time. Because the filed their claim more than five years after the claim accrued, their suit was time-barred. The appellate court disagreed with the trial court, and held that the beneficiaries had no actual knowledge that they had been disinherited based on the letter — there was no actual notice that the prior will had been revoked.
In re Estate of Bader, No. In June , the son was arrested for drug abuse and defaulted on the loan. Some months later, the father tragically committed suicide. The estate claimed that this was a loan. There are three requirements to constitute a gift in Iowa: donative intent, delivery and acceptance. The trial court did not find enough evidence to establish a gift and ordered the son to pay the loan back to the estate, plus interest.
On appeal, the Iowa Court of Appeals agreed. D alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;.
E a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless—. B a payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;.
E a payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. A waiver by the debtor of a power under subsection f or h of this section to avoid a transfer, under subsection g or i of this section to exempt property, or under subsection i of this section to recover property or to preserve a transfer, is unenforceable in a case under this title.
A a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section a 5 ; or. A For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of—. B In the case of a property subject to more than 1 lien, a lien that has been avoided shall not be considered in making the calculation under subparagraph A with respect to other liens.
C This paragraph shall not apply with respect to a judgment arising out of a mortgage foreclosure. A permits a person to voluntarily waive a right to claim exemptions under subsection d or prohibits a debtor from claiming exemptions under subsection d ; and.
B either permits the debtor to claim exemptions under State law without limitation in amount, except to the extent that the debtor has permitted the fixing of a consensual lien on any property or prohibits avoidance of a consensual lien on property otherwise eligible to be claimed as exempt property;.