Bufete Emmanuelli, C.S.P. Reciba orientación gratis y confidencial por un abogado o abogada, sobre la necesidad o conveniencia de una quiebra bajo los Capítulos 13 y 7. Además, tramitamos reclamaciones bajo el Seguro Social Federal. 787-848-0666. Agencia de Alivio de Deudas/Debt Relief Agency. Le ayudamos a radicar su quiebra bajo el Código de Quiebras Federal. Urbanización Constancia Calle San Francisco 2803 Ponce, Puerto Rico 00732-0779
El número de personas empleadas se redujo 1.3% en un año, según los datos de la encuesta de Empleo Asalariado No Agrícola que publica el Departamento del Trabajo y Recursos Humanos. La caída representa la pérdida de 11,900 empleos en un periodo de 12 meses.
Bonuses Paid to Debtor After Chapter 7 Filing Can't be Taken by Bankruptcy Trustee
The Bankruptcy Appellate Panel for the U.S. Court of Appeals, Eighth Circuit, ruled that employment bonuses paid to a debtor shortly after she filed for chapter 7 bankruptcy could not be considered part of her bankruptcy case. The court's ruling allowed the debtor to keep $24,072.00 in bonuses, and it reversed a lower court's order revoking her bankruptcy discharge for failing to list the bonuses in her bankruptcy papers.
In this case, Seaver v. Klein-Swanson, No. 12-6054 (8th Cir.BAP March 22, 2013), the debtor filed chapter 7 bankruptcy on January 19, 2009. She was a long-time employee of IBM. On the date of filing, she was eligible for both a quarterly Excellence Award bonus and an annual Growth Driven Profit Award bonus, for the last quarter of 2008 and also for the calendar year 2008.
IBM's bonus program documents stated that "[n]o employee earns or otherwise becomes entitled to payment, or any portion of a payment, under the GDP program prior to payment by IBM." The IBM bonus program documents stated that this restriction applied to both bonus programs. Bonuses were usually announced and then paid by IBM about sixty days after the close of the quarter for the Excellence Award, and about sixty days after the close of the calendar year for the GDP Award.
IBM paid the debtor an $8,000.00 Excellence Award bonus, for the last quarter of 2008, after the chapter 7 was filed but prior to the creditors meeting with the trustee. IBM also paid her a $16,072.00 GDP bonus, for the year 2008, a few weeks later, after the creditors meeting. Neither of these bonuses were listed in the debtor's bankruptcy papers, and she did not inform the trustee that IBM had paid her the $8,000.00 bonus prior to the creditors meeting. After the meeting, the debtor did have some correspondence with the trustee about the $8,000.00 bonus, without mentioning the GDP bonus.
Upon learning more about the bonuses, the chapter 7 trustee asked the bankruptcy court to order turnover of the $24,072.00 received by the debtor, as well as fees and costs. The trustee also asked the bankruptcy court to revoke the debtor's discharge of debts due to her failure to list the possible bonuses in her original bankruptcy papers. The bankruptcy court granted the trustee's request.
The debtor appealed, and the appeals court reversed the bankruptcy court on all counts. The appeals court held that under IBM's bonus program documents, the debtor had possessed no ownership interest, whether contingent or otherwise, in either bonus, until actual payment of the bonus by IBM. Although some employer bonus plans give the employee a vested interest in a bonus once employee goals are met, the IBM program specifically stated otherwise.
IBM's bonus program stated that IBM had the absolute discretion to make or not make a bonus award, and the employee had no right to a bonus until it was paid. Here, the bonuses were both paid after the chapter 7 was filed. Therefore, the bonuses became the property of the debtor after the filing. The appeals court noted that property received by the debtor after the filing date is excluded from the bankruptcty case as part of the debtor's fresh start in chapter 7.
The appeals court ruled that the debtor's discharge should be granted, and also that she could keep the $24,072.00 in bonuses.
It should be noted that in cases where bonus plan language gives the employee a vested right to payment of a bonus even before it is paid, and a chapter 7 case is filed before receipt of such a bonus, the result would likely be different. In such cases, care should be taken to list the as yet unpaid bonus in the bankruptcy papers, and the debtor likely would have to turn the bonus over to the trustee to be paid to creditors.
Image courtesy of 401(k) 2013′s photostream, Flickr.
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Los desempleados de larga duración, los que llevan 15 semanas o más sin trabajar, disminuyeron, de 60,000 personas en enero de 2012 a 44,000 en enero de 2013. Pero la cifra de estos desempleados ha aumentado cuando se compara con el mes de diciembre de 2012, cuando había 40,000 personas que llevaban desempleados 15 semanas o más.
EMPLEO Y DESEMPLEO EN PUERTO RICO ENERO 2013 (REVISADO CENSO 2010)
La economía de Puerto Rico he perdido la capacidad de crecer y no se espera que aumente por encima del 1% en los próximos tres años. Pero la indecisión política podría empeorar las cosas.
Post-Petition Property in Chapter 13
People spend between three and five years in Chapter 13 bankruptcy, paying back creditors in whole or in part, curing mortgage and tax defaults, and accomplishing the many other things that Chapter 13 allows a person to do while reorganizing. Due to the length of the journey, at times an issue arises when a debtor has the good fortune to be the recipient of some extra money during the case. It usually doesn't come up, but what happens when it does?
Well, first of all there is a difference in bankruptcy between property and income. The "best interests" test deal with property, and essentially says that creditors in a Chapter 13 should get what they would have gotten had the case been filed under Chapter 7. So, to check this test, one looks at the property, real or personal, tangible or intangible, of the debtor when the case was filed and nets out exempted property and hypothetical trustee fees and expenses. The result of this math is the minimum money that unsecured creditors get under a Chapter 13 plan.
Moving on, income is the focal point of the "best efforts" test in Chapter 13. The nuts and bolts of this get complicated and sometimes involve a means test, but the basic gist is that debtors must pay in their plan what's left over during their stay in Chapter 13 after they pay their essential bills.
So let's imagine your aunt gives you $50,000 while you're in a Chapter 13 bankruptcy. Is that income or property? The answer is that it's both, but the more relevant question is how does it fit in with the two tests mentioned above. First, we are assuming that this windfall comes to the attention of the court through the trustee or your own lawyer. In practice, this often doesn't happen because people don't always share good news. However, let's assume that the matter does come to the Chapter 13 trustee's attention and there is a motion to modify your plan filed under Section 1329 of the Bankruptcy Code to increase the amount of your payout to your creditors.
First of all, it is improper to re-do the best interest test by factoring in the gift money like it existed on the filing date. It didn't, and that new money has nothing whatsoever to do with what creditors would have received in a hypothetical Chapter 7 case. Some Chapter 13 trustee's will ask for money on this basis, but it doesn't stand much of a chance if you have a reasonably informed lawyer. What about the best efforts test?
This is more murky. Ever since the United States Supreme Court stated in Lanning that 11 U.S.C. 1325(b) was only a starting point for determining projected disposable income in a Chapter 13 case, the door has been open slightly wider for trustees to argue that a debtor with unexpected income should just pay more based on fairness. However, the trustee should not prevail in such an attempt when faced with knowledgeable and determined opposition. That is because the best efforts test is a test for confirming a plan. Once a plan is confirmed, it can only be modified under Section 1329 of the Code. That section does not make compliance with the Section 1322(b) "best efforts" test a requirement. See, e.g., IN RE COAY, Bankr.CD Ill. (2012). The bottom line is that this is an area in which a debtor's attorney really proves their value by knowing the law and being ready to fight a trustee's request for more money than they are legally entitled to obtain.
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