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June 2012 - Bankruptcy & Real Estate Edition

June 2012 – Bankruptcy & Real Estate Edition

Highlights of the June 2012 Contra Costa Lawyer edition include Keeping A Slice Of The Pie For Yourself: Exempting IRAS, 401KS and 529 Plans – David Arietta; Proprietor Beware: Corporate Refuge Can Ensnare – David Katzen; Family Law Attorneys Beware: Possible Exceptions to the Chapter 7 Bankruptcy Discharge- Marlene Weinstein; Lien Strip Basics And The Evolving Law On “Chapter 20″ – Steven Knuppel; To file or not to file: How the timing of the bankruptcy can impact the exclusion of cancellation of indebtedness income – Mark Ericsson; Unintended Consequences of Preliminary Agreements – Roger Brothers, Dominic Signorotti and Ericka Ackeret

Inside: Bankruptcy & Real Estate

In this edition of the Contra Costa Lawyer, we explore and discuss the impact and significance of both time-tested and newly articulated aspects of both bankruptcy and real estate law. In these (still) troubling and unsettled economic times, it behooves almost all legal practitioners to have at least an awareness of certain basic tenets of bankruptcy law in order to have a general discussion concerning the prospect of a bankruptcy with one’s clients. In this issue, we have selected some of the lesser known, but significant, issues of which practitioners should be aware in the bankruptcy context. We also examine certain established and developing law in the area of real estate and its interaction with bankruptcy law.

Family Law Attorneys Beware: Possible Exceptions to The Chapter 7 Bankruptcy Discharge

Family Law Attorneys Beware: Possible Exceptions to The Chapter 7 Bankruptcy Discharge

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (hereinafter “BAPCPA”) enacted on April 20, 2005, and generally applicable to all cases filed on or after October 17, 2005, made various revisions to Title 11 of the United States Code (hereinafter “Bankruptcy Code”) with regard to divorce-related debts. For example, debts such as child and spousal support were given the new classification of “domestic support obligation” and were given added protection.

To File or Not To File: How the Timing of the Bankruptcy Can Impact the Exclusion of Cancellation of Indebtedness Income

To File or Not To File: How the Timing of the Bankruptcy Can Impact the Exclusion of Cancellation of Indebtedness Income

In this era when homes are often worth less than the loans they secure and of dropping or nonexistent incomes, more and more people are forced to consider walking away from their homes. In a foreclosure or short sale, the banks holding the note and deed of trust will receive less than full value for their note. This gives rise to cancellation of indebtedness income. It has long been tax policy that when a debtor is released from a debt, that person has become wealthier and therefore realizes ordinary income to the extent of that increase of wealth. One of the driving forces in filing for bankruptcy is protection against taxes arising from cancellation of indebtedness income.

The Bankruptcy Trustee - A Creditor’s Friend

The Bankruptcy Trustee – A Creditor’s Friend

How many times have you been involved in state court litigation and your adversary advises you that his/her client has just filed bankruptcy? Don’t fret – it may just be your lucky day!

Pro Bono Spotlight: Katzen & Schuricht aim to preserve important bankruptcy law principle

In Wolfe v. Jacobson (In re Jacobson), 2012 U.S. App. LEXIS 8103 (9th Cir. Apr. 23, 2012), the Ninth Circuit Court of Appeals held that bankruptcy debtors who successfully asserted a homestead exemption nevertheless lost the protected layer of value (here, $150,000), because a judgment creditor forced a postpetition execution sale of the house, and the debtors failed to reinvest their share of the proceeds in a new dwelling within six months. The court effectively reasoned that whenever a California exemption is allowed in a bankruptcy case, the debtor’s right to postpetition proceeds from the exempt value is subject to California’s time-limited protection of proceeds.

Bankruptcy Court Update: With Words of Wisdom From the People Who Matter Most – Our Judges

If you haven’t been to court in the past two years, you’ll notice a big change. All of the judges you knew have retired, and you’ll have to learn the rules and requirements of three new judges. To that end, here is a little information about our current bench.

CoffeeTalk: Should bankruptcy judges be allowed to modify first mortgages (residential deeds of trust)? Why or why not?

Yes, Congress should at least experiment with letting bankruptcy courts treat home mortgages like other secured debts, which can be reworked in chapter 11 or 13 if the creditor is assured the economic value of …

Coffee Talk: What’s your best memory of Mark Ericsson?

Coffee Talk: What’s your best memory of Mark Ericsson?

My best memory of Mark is how, without fail, every single client I sent to him for tax advice came back to me and told me how wonderful he was to work with. Mark was a lawyer of the old school.

Meet Your 2014 Section Leaders

Meet Your 2014 Section Leaders

Meet the chairs of our 20 sections and find out why you should join…

Member-Only Benefits

Member-Only Benefits

Businesses featured here offer discounts to CCCBA members that would not otherwise be available.

Get Involved: Free Legal Workshops and the Education Outreach Program

Get Involved: Free Legal Workshops and the Education Outreach Program

Our free legal workshops are drop-in legal clinics where attorneys help members of the public handle their own legal problems.

So What Is a City Attorney?

So What Is a City Attorney?

The city attorney is there to give legal advice, free from political pressure or undue influence. When these roles are maintained, a city can run like a Swiss watch.

Grape Grower’s Liens – Their Uses and Limitations

The enforcement of a grower’s lien, third-party buyers and bankruptcy are subjects that no grower wants to face. Because grower’s liens are an imperfect remedy in the event of non-payment, it is extremely important for a grower to conduct his or her own due diligence investigation of potential buyers.

Real Estate Ethics

Real Estate Ethics

You have to know going in to the representation that real estate law is the highest legal malpractice claim area right now.

Student Perspectives on Legal Education

Student Perspectives on Legal Education

Since this issue is about the future of legal education, it was decided to ask about the future of the subject directly, by inquiring of today’s law students. The following thoughts are courtesy of several students at Contra Costa’s JFK University College of Law.

The Online LLM

The Online LLM

Courses are taught using asynchronous electronic education, which means that the students access the course lectures on the Web through a link provided by the school. There are different applications that can be used to support different models of online learning. The asynchronous method utilizes tools such as threaded discussion boards, email, small group discussions and chat rooms, which allow users to participate at their convenience. This means that class attendance at a set time is not required. Instead, students can learn anytime and anywhere they have access to a computer and the Internet. Attendance is monitored by the students’ participation on the threaded discussion board.

 The JD Road Less Traveled: Non-Standard Careers for Law School Grads

The JD Road Less Traveled: Non-Standard Careers for Law School Grads

Numerous professional careers are enhanced by legal education. The way law students are trained to write, research, analyze, articulate an argument and comprehend massive amounts of information lends itself to careers in marketing, high-level management, science, economic development, data analysis and technical careers. Community associations, social work organizations, human services departments, government social agencies, employment assistance offices, city planning commissions and family services groups can also greatly benefit from employees with legal expertise.

In the Beginning: The Homeowner Bill of Rights and EADACPA

In the Beginning…the Homeowner Bill of Rights and EADACPA

The Great Real Estate Meltdown of 2008 generated numerous attempts to address the massive uptick in real estate foreclosures. The all-too-common scenario that needs to be addressed is when a borrower is told by a nameless mortgage servicer’s phone representative that they can qualify for a loan modification if they just stop making payments on the loan.

The Last Minute or Late Reaffirmation

The Last Minute or Late Reaffirmation

A reaffirmation agreement is a contract reinstating a debt otherwise dischargeable in bankruptcy. Often debtors in chapter 7 sign reaffirmation agreements related to car loans.