Friday, April 27, 2012

Community Property And Phantom Bankruptcy Discharges

I am not an attorney, I am a debt and judgment referral specialist (Judgment and Collection Agency Broker). This article is my opinion, from my experience in California, and laws are different in each state. If you need legal advice or a strategy to use, please contact an attorney. What if one has a judgment debtor, and their non-debtor spouse has filed for Chapter 7 no-asset Federal BK court protection? What if just the non-debtor spouse filed for bankruptcy, and the spouse-debtor did not?

How can you enforce a judgment against the debtor spouse, if their non-debtor spouse filed for BK protection, or has previously discharged their debts in bankruptcy? How does this interfere with one attempting to enforce a judgment from the non-BK community property state-based debtor spouse?

After the non-debtor spouse has initiated a BK, or has already discharged their debts; attempts to satisfy the debtor spouse's debt using community property becomes stayed (forbidden and illegal).

The debtor spouse's sole and separate property is usually available for levies to pay off a judgment. However, one need to stay extra mindful not to violate a BK court's order, and do the homework. With a tiny judgment, or when the judgment debtor is and will stay broke, it might be best to give up, and forget about the judgment.

BK stay violations can bring severe penalties, so you must take care to have sheriffs or marshals garnish only non-dischargeable and/or non-stayed assets. For extra safety, youshould make double-sure which assets are legally and actually available first. A good way to look before you leap, is by using a debtor examination (often with a request for document production). This is accomplished by scheduling and serving an OEX (Order to appear for EXamination) on the debtor.

When bankruptcy is involved, it's a very good idea to first obtain permission from the BK court, prior to trying any recovery or discovery actions against a judgment debtor.

To help to determine what your current or future enforcement tactic could be, one could begin by requesting of the bankruptcy court for leave (permission from) their bankruptcy court, to permit you to get a state court issued OEX (Order to appear for EXamination), served on the debtor, with the included (at least in California) OEX lien against just the debtor spouse's separate and sole property.

In most states, serving an OEX on a judgment debtor starts a lien against their personal property assets. In California, serving an OEX on a judgment debtor spouse creates a 1-year silent lien against any personal (however not real-estate based) and community property shared by the other spouse, if it isn't stayed by a BK protection.

The judgment debtor and their spouse have a one hundred percent indivisible interest in their community property of the marital assets, as long as they remain married to each another. In a community property state, when one spouse's debts are discharged by a bankruptcy, the community property that was acquired pre-petition (and usually pre-discharge), is immune to levy due to the "phantom discharge" created by current laws. (I am not a lawyer.)

The word "phantom" in the phrase "phantom discharge" means that in community property states, there can be an extra BK protection after one spouse files for bankruptcy protection, that can protect the assets of the other judgment debtor spouse. Most often, "phantom discharges" occur only in community property states (currently Arizona, California, Louisiana, Idaho, Nevada, New Mexico, Texas, Washington, and probably Wisconsin).

A phantom discharge occurs when personal and real estate-based community property becomes immune to judgment recovery against a judgment debtor spouse, because the non-debtor bankrupt spouse owns a 100% and indivisible interest in the community property estate, and that spouse's indebtedness has been discharged.

Phantom discharges are an undeserved shield from creditors for the community property assets of both spouses of a married couple, even if only one spouse discharged their debts in bankruptcy. (See bankruptcy codes 11 US 541 and 11 US 524).

While the couple remains married, the phantom discharge remains, which is many times a huge injustice for judgment creditors of the (non-bankrupt) judgment debtor spouse.

If the married couple benefitting from a phantom discharge becomes divorced, one can petition the family court to enjoin the divorce proceedings, and levy the nonexempt part of the debtor spouse's portion of their marital estate, if any.

Only entities or people may get bankruptcy discharges. Property is not an entity, so it cannot get a discharge. Sometimes a debtor does not win in BK court, and one or all, of their debts are declared non-dischargeable.

In many community property states; and in California, family code section 910 (a), specifies that any personal and real property of the community estate can be used to satisfy the debts of either spouse incurred during or before marriage. This means that real or personal property of the community estate may be used to pay a non-dischargeable debt. This is the opposite of a phantom discharge, so creditors get a clear path to all of the community assets of the judgment debtor.

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