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Casenotes: 2011 WDNY Bankruptcy Cases Archives

Trustee Can't Compel Buffalo Debtor to Turn Over Tax Refund in Converted Case: Schick

A debtor cannot be compelled to turn over tax refunds she no longer has, in a Buffalo case where the debtor originally filed Chapter 13, spent the refunds, and then converted to Chapter 7. In re Schick Bankruptcy WDNY (Buffalo) #09-15602 (Judge Bucki; decision July 26, 2011.)

Abuse Determined as of Petition Date in Buffalo Case converted to 13 then back to 7: Karlstrom

Courts are divided as to whether Chapter 13 cases converted to Chapter 7 are subjected to the Chapter 7 'means test' of Bankruptcy Code Section 707(b). However, a Buffalo bankruptcy judge has determined that a case originally filed in Chapter 7, then converted to chapter 13 to avoid an abuse dismissal, then reconverted to chapter 7 due to a change in circumstances, will be considered abusive based on the circumstances at the time of the original filing. In re Karlstrom; Bankruptcy WDNY (Buffalo) #09-12267 (Judge Bucki; decision August 18, 2011).

Disability Payments No Longer Exempt Once Received, Says Judge Ninfo: In re Widner

Rochester Bankruptcy Judge John C. Ninfo has ruled that Worker's Compensation disability payments are not exempt from a bankruptcy trustee if received before the filing of the bankruptcy petition. In re Widner; Western District of New York Bankruptcy # 10-20209; decision dated July 11, 2011. In an earlier decision, In re Herald(294 BR 440, WDNY Bank. 2003), Judge Ninfo had ruled that Worker's Compensation benefits were 'disability benefits', and, therefore, could be exempted in bankruptcy under NY D&C 282 (2)( c ). In Herald, the benefits in question were payments the debtor was entitled to after filing the petition. In Widner, the question was whether the debtor could exempt $57,500 remaining from a lump sum Worker's Compensation award received before the filing of the bankruptcy. The funds had been held In a separate bank account, not commingled with any other money.

Figuring Factors: Paying Suppliers Probably OK: Dommer

As a consumer bankruptcy attorney, I rarely need to get involved in complicated commercial financing issues, so Judge Kaplan's most recent decision was a primer on factoring in the construction industry. In re Dommer Construction Corporation WDNY Ch. 11 Bk 10-12764; Judge Kaplan decision Feb. 22, 2011.) 

Residual inheritance interest in a house not exempt under New York law: Wisotzke (II)

This is a continuation (the dropping of the second show, if you will) of the Wisotzke case; a Rochester Chapter 13 (case #08-21178.) Last August, I posted a blog in the WDNY case notes for 2008 Category about the first decision in this case, 392 B.R. 39 (Bky.W.D.N.Y. 2008), where Rochester Judge John C. Ninfo ruled that in an In Rem tax foreclosure in New York State, the debtor's interest in the property was extinguished, at the latest, 30 days after the foreclosure order. In this new decision, the court ruled that the debtor's inheritance interest in the proiperty was never sufficient to claim it as an exempt homestead.

Trustee May Sell Car Over Debtor's Objection, Says Judge Bucki (in re Burgio)

Judge Bucki in Buffalo has fully supported a bankruptcy trustee's motion to have a partially exempt car turned over, and denied the debtor's motion that the asset be abandoned, in a case released January 11 (In re Burgio; WDNY Ch. 7 Bk #10-12259; decision Dec. 23, 2010.) 


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