An Inherited IRA Is Different From Other Types Of IRAs

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Can an IRA (individual retirement account) inherited from a relative be exempted by a debtor in bankruptcy?  No, says a recent Kansas bankruptcy judge’s decision.  The case was In Re Mosby (14-22981), decided in June 2015 by Judge Dale Somers.  The facts were interesting.

The debtor filed a voluntary petition under Chapter 7 on December 29, 2014. The debtor claimed Jackson Life IRA valued at $15,015.50 as exempt under various Kansas statutes, including K.S.A. 60-2308, 60-2308(b), and 60-2313(a)(1).

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Entrapment In Computer Sex Enticement Cases

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Cases involving law enforcement officers posing as juveniles online are common.  A typical scenario is found in the recent case of State v. Anderson (WD77202) from the Western District of Missouri Court of Appeals, which was decided in May 2015.  In the Anderson case, a law enforcement officer created a female online profile for a dating site, using a profile with the name Kaitlyn that alleged “she” was 19 years old.  The profile was then posted to the site.

Many of these computer “decoy” cases involve scenarios where a law enforcement officer is purporting to be a minor.  The issue then often becomes some version of this question:  did the defendant actively participate in the exchange, or was he tricked into doing something that he might not have done otherwise?

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Arson Cases: Meeting The “Interest” Element Of The Offense

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A recent Kansas Supreme Court ruling showed some of the evidentiary issues faced in the trial of arson cases.  The case was State v. Bollinger, (No. 110,945) and it was decided this month.

The facts of Bollinger are tragic.  The defendant was involved in a marital separation and divorce drama with his spouse.  The dispute escalated in intensity and bitterness.  One night, a fire occurred at the residence of the parties, and the defendant claimed he could not remember how it began.  The defendant’s spouse perished in the fire, and Bollinger was charged with felony murder and arson.

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The Confirmed Chapter 11 Plan, Closing The Case, And Termination Of The Automatic Stay

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One recent decision from the 10th Circuit Bankruptcy Appellate Panel highlights the interplay between a confirmed Chapter 11 plan, the persistence of the automatic stay, and the closing of a case.  The case also brings into focus the need for caution before opting to close a case without awareness of the consequences.  The case in question is In Re Rael, B.A.P. No. WY-14-048, decided February 27, 2015.

The case in question was an individual Chapter 11 case.  The debtors filed an individual Chapter 11 bankruptcy petition in 2008, and their plan was confirmed in January 2010. The plan provided they would not receive a discharge until they completed all payments under their plan. About a year after their plan was confirmed, they filed a final report and motion for final decree, seeking to close their case to avoid paying the United States Trustee’s quarterly fee assessments. Over objections by both the United States Trustee and Wells Fargo, the bankruptcy court entered a Final Decree and Order Closing Case in 2011.

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Exemption Of Funds From Student Loan Proceeds In Bankruptcy

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Are the funds that a debtor deposits in his or her bank account exempt, if those funds are exclusively the proceeds of a federal student loan?  This was the question recently examined by a Kansas bankruptcy court.  The case was In Re Decena, and it was decided on March 30, 2015 (Case no. 14-10668,  Dist. Of Kansas).

In the Decena case, the debtor filed a Chapter 7 bankruptcy and listed on the schedules a bank account that held funds that were exclusively loan proceeds from federally-guaranteed student loans.  There was about $4500 in the account on the day of the filing of the case.

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Commissions From Pre-Petition Real Estate Sales Contracts: Property Of The Bankruptcy Estate?

There are situations in which bankruptcy debtors work in fields that involve “commissions” rather than regular salary.  Examples of these types of employment are real estate agents, insurance brokers, or any other job that pays commissions rather than salary.  Under what circumstances are commissions property of the bankruptcy estate?  What happens, for example, when a real estate agent enters into a sales contract before he files a bankruptcy, but does not “close the sale” until after the bankruptcy is filed?

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Exemption Of Child Tax Credits And Earned Income Credits In Bankruptcy

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To what extent are “child tax credits” from a debtor’s income tax refund considered exempt in a bankruptcy case as a “public assistance benefit”?  This was the question considered by the Eighth Circuit Bankruptcy Appellate Panel (B.A.P.) in the 2013 case of In Re Pepper Hardy (B.A.P. No. 13-6029).  The answer was:  not at all.  The appeal involved a Chapter 13 bankruptcy case coming from the Kansas City-based Chapter 13 Trustee, Richard V. Fink.

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Construction Contracts, Bankruptcy, And Objections To Discharge Under 523(a)(4): Fraud Or Defalcation In A Fiduciary Capacity

Adversary proceedings objecting to the discharge of certain debts sometimes arise in the context of bankruptcy cases.  One such type of adversary proceeding, one based on “fraud or defalcation while acting in a fiduciary capacity,” is based on Section 523(a)(4) of the Bankruptcy Code.  But to prevail under this section requires that certain conditions must exist.  A recent case illustrated how such conditions may in fact exist.  The case was a 10th Circuit B.A.P. case, NM-12-017, Hawks Holding LLC v. Kalinowski, decided in 2012.

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In 2008, Hawks Holdings, LLC (“Hawks”) contracted with K2 Construction Company, LLC (“K2”) to build three homes on property Hawks owned near Santa Fe, New Mexico, for a contract price of more than $3.6 million. K2 was formed in 2007 as a New Mexico limited liability company, and held a general contractor’s license issued under the New Mexico Construction Industries Licensing Act (the “Contractors Act”). K2 neither completed the construction 1 called for by the Hawks contract, nor paid all of the subcontractors and material suppliers that had contributed to the project.

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Curtilage, Search Warrants, And Illegal Drug Seizures In Kansas

What is the “curtilage” of a residence?  Under what circumstances can law enforcement search the outside of a residence without a search warrant?  These are some of the questions considered by the Kansas Supreme Court in its recent decision in State v. Talkington (No. 107,596), decided on March 6, 2015.

The Talkington case involved a drug search in the area outside of a residence.  Three issues were implicated in the case:  (1) whether a residential backyard is part of the “curtilage” under the Fourth Amendment to the United States Constitution; (2) whether a social guest in the residence can challenge the search of host’s residence; and (3) whether drugs found on the defendant’s person after an illegal search of the curtilage should be suppressed as “fruit of the poisonous tree.”  Many search and seizure issues were implicated in this case.  It is an important case and one that deserves careful reading.

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Claiming Missouri’s Head Of Household Exemption In Bankruptcy

The bankruptcy “head of household” exemption in Missouri applies to your children, and not someone else’s children.  The children have to be related to the head of the family (either a man or a woman) either biologically or by adoption.  That was the gist of a ruling by the Eighth Circuit B.A.P. in a recent Missouri case.  The case was In Re Mark Turpen (B.A.P. 12-6039), from the Western District of Missouri.

Turpen was single and lived with his two minor children, an unrelated woman, and the woman’s three minor children. He filed a voluntary Chapter 7 petition in 2011.  He then filed amended schedules B and C on February 20, 2012. The amended schedule B listed a 2011 tax refund of $8,491.00.  The amended schedule C listed claimed exemptions in that refund totaling $3,600.00:  $600.00 under § 513.430.1(3) and $3,000.00 under § 513.440, $1,250.00 for Turpen as head of the family, and $350.00 each for his two minor children and the woman’s three minor children.

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