What is property of the estate: current case law

As a bankruptcy attorney in Mount Vernon, IL for over 20 years, I read through and analyze court rulings throughout the country, and pay particular attention to cases close to home!

It is brought to you by Consumer Bankruptcy Abstracts & Research (www.cbar.pro) and the National Consumer Bankruptcy Rights Center (www.ncbrc.org).


Property of the estate: Because, on the petition date, a cause of action by the Chapter 7 debtor was barred by the statute of limitations, neither the cause of action nor a payment offered to the debtor in connection to the personal injury he suffered were property of the estate, and the Chapter 7 trustee had no authority to administer the payment on behalf of the debtor’s creditors. In re Cibella, 560 B.R. 494 (Bankr. N.D. Ohio Nov. 18, 2016) (case no. 4:08-bk-41807).

Property of the estate—Avoidance of lien impairing exemption: Reversing In re O’Sullivan, 544 B.R. 407 (8th Cir. B.A.P., Jan. 19, 2016), the Eighth Circuit Court of Appeals emphasized that there is a distinction between an extant but unenforceable lien and a non-existent lien for the purpose of avoidance of the lien under Code § 522(f)(1). When state law does not allow a lien to attach to exempt property, § 522(f) is superfluous and without application. In re O’Sullivan, 841 F.3d 786 (8th Cir. Nov. 14, 2016) (case no. 16-1526).

Reopening of case: The bankruptcy court abused its discretion in denying the debtor’s motion to reopen a Chapter 7 case that had been closed for nearly four years. While the debtor sought relief—avoidance of judicial liens on his residence—that he could have pursued while the case was open, delay alone did not necessarily constitute prejudice. There had been no objection by the creditors holding the judicial liens, and the bankruptcy court did not find that any prejudice would result from the reopening of the case. In re McCoy, 560 B.R. 684 (6th Cir. B.A.P., Nov. 29, 2016) (case no. 15-8056).


About the blogger:

Michael Curry of Curry Law Office in Mount Vernon, Illinois (http://michaelcurrylawoffice.com/) has helped thousands of individuals, family and small businesses in southern Illinois find protection under the Bankruptcy Code for almost twenty-five years. He is also available to help individuals and families with their estate planning (wills, power-of-attorney) and real estate and other sales transactions.

He is also the author of books on finance and bankruptcy available on Kindle through Amazon!

Whether you live in Salem, Centralia, Nashville, Fairfield, Cisne, Carmi or anywhere in Southern Illinois call Curry Law Office today at (618) 246-0993 and Finally Be Financially Free!

You can also find his website at http://www.mtvernonbankruptcylawyer.com.