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In re Jewell 347 B.R. 120 (Bkrtcy.W.D.N.Y. 2006) JOHN C. NINFO, II, Bankruptcy Judge DEBTOR WHO WAS NOT DOMICILED IN STATE OF FILING FOR PRECEDING 730 DAYS AND IS NOT ELIGIBLE FOR EXEMPTIONS OF STATE OF PREVIOUS RESIDENCE MAY CLAIM THE FEDERAL EXEMPTIONS
Debtor moved from Colorado to New York less than 730 days prior to filing chapter 7 in New York, thus debtor was not eligible for N.Y. exemptions. Debtor claimed Colorado exemptions. Colorado was an “opt-out” state and its exemptions under Colorado law were available only to debtors who resided in Colorado at the time the bankruptcy was filed. The court ruled that N.Y. exemptions were not available due to the 730-day rule, and the Colorado exemptions were not available due to the Colorado exemption statute, but that the language of § 522(b)(3) permitting debtors in those circumstances to elect the Federal exemptions.
In re Hernandez, 9th Cir BAP 4/17/117 Debtor filed chapter 7 – listing both first and second mortgages on her residence. Then filed chapter 13 in order to lien strip the second. She listed the second in Schedule D as “0” and in Schedule F for the full debt. Creditor, Asset Management Holdings objected to confirmation for lack of good faith and moved to dismiss the chapter 13 case on eligibility grounds (over the secured debt limit). “The bankruptcy court ruled that Debtor’s debts did not place her over the eligibility limits because the debt to AMH did not need to be included in the eligibility calculation. The court found that the debt should not be treated as secured because the lien was avoidable under § 506(a), nor should it be treated as unsecured because Debtor’s personal liability on the debt had been discharged in her prior chapter 7 case. The bankruptcy court also found that the plan was filed in good faith. Accordingly, the court denied the motion to dismiss and confirmed the plan, and AMH appealed. We AFFIRM.”
In re Umali (10/03/03 – No. 02-15010/16379) (9th Cir) A bankruptcy petition filed in violation of a court-imposed 180-day bar is properly excluded from the automatic stay provisions of the Bankruptcy Code, even though the Court later modified the Order removing the 180-day bar. http://caselaw.lp.findlaw.com/data2/circs/9th/0215010p.pdfBank of China v. Huang (01/14/02 – No. 00-57056) (9th Cir. Ct App) Settlement agreement where party agreed not to declare bankruptcy does not have collateral estoppel effect on a later bankruptcy petition for fraud claims where fraud claims were not incorporated into the original settlement agreement. http://caselaw.lp.findlaw.com/data2/circs/9th/0057056p.pdf
Can the Debtor file a new 13 while his 7 is open? In re Keach, 243 B.R. 851 (Bankr. 1st Cir. 2000); In re Turner, 207 B.R. 373 (Bankr. 2nd Cir. 1997); In re Strohscher, 278 B.R. 432 (Bankr. N.D. Ohio 2002). In re Strohscher (Bankr. N.D. Ohio) (6th Cir) Rule 1015 Debtor allowed to maintain Chapter 13 case filed prior to closing of same debtor’s Chapter 7 case.