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Scam Targets Bankruptcy Filers

Scam Targets Bankruptcy Filers by Spoofing the Caller ID System

Published on October 20, 2015

Phone scammers are targeting bankruptcy filers in several states, using personal information from filings and posing as attorneys to get intended victims to immediately wire money to satisfy a debt.

The National Association of Consumer Bankruptcy Attorneys issued a warning that “Under no circumstances would a bankruptcy attorney or staff member telephone a client and ask for a wire transfer immediately to satisfy a debt. Nor would the bankruptcy attorney and staff ever threaten arrest if a debt isn’t paid.”

Bankruptcy filers in Vermont and Virginia reportedly have received calls. Vermont’s Attorney General says scammers use software to “spoof” the Caller ID system so the call appears to be originating from the phone line of the consumer’s bankruptcy attorney. Typically the calls come late in the evening or during non-business hours to make it difficult for intended victims to verify the call by contacting their attorney.

Consumers receiving this kind of call are advised to hang up and contact their bankruptcy attorney as soon as possible. Do not give any personal or financial account information to the caller.

The California Supreme Court Rules on Date of Separation

On July 20, 2015, the California Supreme Court’s Chief Justice Tani Cantil-Sakauye shared in a unanimous decision that the definition of “legal separation” is the date you and your spouse actually live in separate residences. This is huge. Many couples in California, either for the sake of the children, or the sake of financial planning, agree to separate living conditions in the same household/residence.
Remember the anecdotes about a separated couple “drawing a white line in the middle of the house“, and living on their separate sides? That is no longer an effective separation. One or the other spouse, according to In Re Marriage of Davis (2015) Case Number S215050, only can consider their income and retirement earnings separate “while living separate and apart from the other spouse.” Sharing a residence but having “separate lives“, in the eyes of the Court, means you are not separated. Continue reading

Bankruptcy News

Chapter 7 cannot be used to “strip off” a wholly unsecured

lien on principal residence

The United States Supreme Court has reversed the U.S. Court of Appeals for the Eleventh Circuit.  In reversing the U.S. Court of Appeals for the Eleventh Circuit, the United States Supreme Court ruled that a Chapter 7 debtor cannot ”strip off” a wholly-undersecured lien under Bankruptcy Code section 506(d).  The case is  Bank of America, N.A. v. Caulkett, ___ U.S. ___, 2015 WL 2464049 (No. 13-1421, June 1, 2015).

As a result of this ruling, debtors must rely on Chapter 13 bankruptcy filings in order ”strip off” a wholly-undersecured lien under U.S. Bankruptcy laws.

Are attorneys Fees ordered in my divorce dischargeable in Bankruptcy?

1)   Even where the attorney’s fees are payable to a spouse, they must be pursuant to an award based on need before they are non-dischargeable. In re Gibson, 103 B.R. 218, 221 (9th Cir.BAP 1989).

 

2)  Like all other exceptions to discharge, analysis under section 523(a)(5) begins with the principle that discharge is favored under the Bankruptcy Code and the party asserting nondischargeability has the burden of demonstrating that the obligation at issue is actually in the nature of alimony, maintenance or support. Norris v. Norris (In re Norris), 94 I.B.C.R. 233, 234 (Bankr. D. Idaho 1994) (citing Gard v. Gibson (In re Gibson), 103 B.R. 218, 220 (9th Cir. B.A.P. 1989)).

 

3)  Whether an obligation is actually in the nature of support, and therefore non-dischargeable in bankruptcy, is determined under federal law. Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984). As a question of federal bankruptcy law, the Court is therefore compelled to look beyond the language of the divorce decree to the substance of the obligation to determine whether such an obligation is non-dischargeable. Id. This Court is not bound by labels applied to debts in a divorce decree by a state court for purposes of determining whether a debt is excepted from discharge. Id. Additionally, the Court must also consider that Section 523(a)(5) implements the “‘overriding public policy favoring the enforcement of familial obligations.'” Id.

 

4)  “What constitutes support within the meaning of section 523(a)(5) implicates a number of factors that are potentially relevant on a case-by-case basis to this federal question.” Gionis v. Wayne (In re Gionis), 170 B.R. 675, 682 (9th Cir. B.A.P. 1994).

Welcome to the official website of Cristiano & Lillard

Temecula & Covina attorneys skilled in Family law & Bankruptcy

Child Custody Visitation & Support Attorneys

Combining a high level of compassion and knowledge is how the attorneys at Cristiano & Lillard represent clients. It is important to us that our clients understand all the issues and the options in front of them. Continue reading