We currently have a case before the United States Court of Appeals for the Sixth Circuit in which we argue that recharacterization, under section 105 of the Bankruptcy Code, of a claim against a bankruptcy estate is not within the powers of a bankruptcy court. (To recharacterize a claim means, in effect, to subordinate it to other claims without complying with the section of the Bankruptcy Code that expressly governs subordination. Section 105 is a general provision that does not mention recharacterization.) Although this must seem obscure to most non-lawyers, it’s been a hot topic for several decades among bankruptcy practitioners, particularly those involved in chapter 11 reorganizations where debt owed to insiders is at issue. The Sixth Circuit, in a 2001 case called AutoStyle Plastics, said that recharacterization is allowed, and several other circuit courts of appeals have agreed, but several recent cases in the Supreme Court have shown that the bankruptcy courts do not have the authority to invent remedies or causes of action such as recharacterization. Call us if you have a recharacterization case or require representation in any bankruptcy litigation. We have considerable experience in bankruptcy litigation, and have had considerable involvement in the cutting-edge issues.
Do you trust your trust to afford asset protection?
The federal inheritance tax estate exemption used to be relatively low, for example $675,000 in 2001. This prompted many married couples to transfer their jointly-owned real property to a trust for the purpose of dividing ownership of the property upon the death of one spouse so that it did not pass to the survivor. The intended effect was to increase the inheritance-tax exemption so that less of the estate would go to the federal government in the form of inheritance tax.
Under Michigan law, real property as well as certain personal property (including stocks, bonds and mutual funds) can be owned by spouses as tenants by the entirety (TBE). TBE property is exempt from the claims of creditors of only one of the spouses. This is one of the most important creditor protections available under Michigan law to married persons.
Although the law of several other states permits, or arguably permits, property held in a trust to remain in a TBE, no court has held that property owned in trust governed by Michigan law can be protected as TBE property. We are currently handling a case which may test whether a trust governed by Michigan law can hold property in a TBE. Unless the law changes, if you own significant assets in a trust, you may want to consider whether protection from inheritance tax that no longer applies to most estates is more important than protection from creditors. Call us for advice on protecting your assets.
This is a topic that I have been told only a commercial lawyer could love, but I retain my optimism that it will someday, rightfully, gain a wider audience. The topic is secret liens. That means a lien that is evident neither from the creditor’s possession of the collateral, nor the public record. It is a trap for the unwary. It is the enemy of the commercial lawyer who wants for the legal system to be transparent and predictable, to play by a set of rules that anyone who went to law school can learn. They are impurities in the carefully constructed, meticulously maintained and periodically purified pool that is our commercial law. Here’s a link to the article, which I dedicate to Professor J. J. White, one of the leaders in American commercial law. TRM
The history of Michigan (debtor) exemptions.
Exemptions are an important issue in any debtor-creditor practice involving individual debtors. A creditor’s attorney needs to know what assets are available to satisfy the client’s claim. A debtor’s attorney needs to know what assets are safe from creditors, and which are not. A good creditor or debtor’s attorney needs to know the state and federal bankruptcy and non-bankruptcy exemptions backwards and forward and upside down.
A few years ago, I looked for an article about the history of Michigan exemptions. What were the first exemptions in Michigan law, and how did they develop over time? How did our odd collection of exemptions come to be? There was no such article, so I wrote one. I hope that you enjoy it. TRM
Asset protection strategies.
Anyone who has or hopes to accumulate any wealth, even modest savings, and who might face liability, can benefit from an asset-protection plan. It’s possible to protect your assets from creditors without planning to, but that’s not a plan. We can quickly review your situation to determine whether you are taking advantage of the asset-protection options available to you.
For many people, awareness of the types of assets that are exempt from the claims of creditors may be most of the planning they need. For example, most retirement assets (such as a 401(k) or 403(b) plan and an IRA) are exempt from most creditors.
Many of our clients benefit from our planning advice. It’s best given and taken before an unexpected liability comes to visit, but many don’t think to ask until the liability is on the doorstep. We’re here to help either way.
An asset protection trust, available under Michigan law since 2017, can afford more complete and sophisticated protection for a larger estate. This is not for everyone, but let’s discuss whether it may work for you.
The new subchapter V of chapter 11 of the Bankruptcy Code.
A lot has been written about Subchapter V. It makes chapter 11 reorganization more feasible and more affordable for a small business if the circumstances are right. To discuss whether this may be a remedy for your small business, contact the lawyers who wrote “Representing Small Business Debtors in Bankruptcy”, a chapter in “Handling Consumer and Small Business Bankruptcies in Michigan”, published by ICLE. The authors are Thomas R. Morris and Geoffrey L. Silverman.
Choosing a bankruptcy attorney
A lot of people choose a bankruptcy attorney based upon his or her efforts at self-promotion. Many attorneys spend a lot of effort and money on advertising, which now includes paying for search-engine optimization, meaning that their name appears when you do an internet search. I am surprised when I do such a search because the search results are often headed by attorneys who do little or no bankruptcy work, but who are willing to take your money and farm out the work. This type of attorney might also advertise on billboards. Often the attorney who does the work on your case is not the attorney who’s on the billboard.
Another way to select a bankruptcy attorney is price. This is fine for someone who only needs the basic task done. You will pay extra if the case gets complicated, and if the attorney’s practice is based upon volume, your case might not get the attention it requires.
Our firm does not handle a high volume of cases, and we don’t do a lot of advertising. Most of our work comes from other attorneys who are familiar with the quality of our work, and past clients whose lives and livelihoods we have helped to get back on track. Call us if experience, personal attention and attention to details matters.