Here are the elements of judicial estoppel: The doctrine of judicial estoppel is “a common law doctrine by which a party who has assumed one position in his pleadings may be estopped from assuming an inconsistent position,” particularly in situations where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Courts in the Fifth Circuit generally consider three criteria when evaluating a defense of judicial estoppel, including whether (1) the party against whom judicial estoppel is sought has asserted a legal position that is “plainly inconsistent” with a position asserted in a prior case; (2) the court in the prior case accepted that party’s original position, thus creating the perception that one or both…

In a Texas case, a Debtor received full value for prepetition payments made to a creditor for purposes of defense under Code § 548(c) to avoid an alleged fraudulent transfers. The bankruptcy court did not err in concluding that, under Code § 548(c), a creditor holding a security interest in the building in which the Chapter 7 debtor conducted its business “gave value” to the debtor for the full $367,681 the creditor received from the debtor in the two-year lookback period under § 548, although the rental value of that period was only $253,333. In In re Hannover Corp., 310 F.3d 796 (5th Cir. 2002), the Fifth Circuit recognized that “value” for purposes of § 548(c) is viewed from the perspective of the transferee (here the…

The US Trustee’s guide to the Chapter 7 Means Test states that household size is the debtor, spouse and any dependents that the debtor could claim under IRS dependency tests. IRS publication 501 which shows the requirements for claiming exemptions for a dependent. “Qualifying Relative” can be parents who do not live with the debtors if the gross income and half of total support tests are met. Many attorneys mention the “heads in beds” test. In other words, I have you hav a bed for a head in your house, you can claim that individual as a member of your household. The one additional requirement is some type of filial relationship. In other words, there has to be a blood or legal relationship to claim…

The debtor’s surrender of property does not divest debtor of title to property in a Bankruptcy proceeding in Michigan. A Chapter 13 debtor’s surrender of real property collateral has no impact on the debtor’s status as record owner of the property. Under the Bankruptcy Code, the debtor’s “surrender” merely establishes she will not oppose the transfer of collateral. Absent some further action—such as foreclosure, deed in lieu of foreclosure, or short sale of the property—surrender does not divest a debtor of ownership and its obligations. In re Spencer, 457 B.R. 601 (E.D. Mich. 2011).  

If you file a Chapter 7, you have the option to redeem tangible personal property that is subject to a secured claim by paying that creditor the value of that property. The value of the redemption amount is determined by Section 506(a)(2) of the Bankruptcy Code. This section establishes that value as that price that a retail merchant would charge given the age and condition of the property at the time of the redemption.

Congress did one thing right in their last minute wranglings over the federal budget and their efforts to avoiding falling over the fiscal cliff – they extended the The Mortgage Forgiveness Debt Relief Act and Debt Cancellation through 2013. That means if your mortgage company forgives any indebtedness in the case of a short sale or principal reduction – you will not get taxed on the debt that is cancelled as if it were income. So – even if you get a 1099 C – you can still avoid any negative tax implications. Just make sure that you address your 1099 C with your income tax preparer.

The short answer is no. The Bankruptcy laws are mandated by the US Constitution. The purpose of bankruptcy is to allow you to get a “fresh start.” Often, circumstances beyond our control put you in a position where you become insolvent – you are unable to meet your obligations as they become due. I have met with many people who have stubbornly resisted talking to a knowledgeable lawyer about filing for bankruptcy. Instead, they rely on advice give to them by friends and relatives who have no idea how to spell bankruptcy – much less understand how it works. 200 years ago, there was no Chapter 7 or Chapter 13 bankruptcy. People who were broke were left to survive their financial devastation as bravely and…