Arizona Bankruptcy Court Rules Homestead Exception Cap Not Applicable in Opt-out States
by Hon. Dennis R. Dow, U.S. Bankruptcy Court for the Western District of Missouri
In the first published opinion interpreting a provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Judge Randolph Haines has held that the limitation on homestead exemption amounts contained in §522(p) is inapplicable in states that do not permit their residents to elect federal exemptions. In re McNabb, 2005 WL 1525101 (Bankr. D. Ariz. June 23, 2005). In the context of an objection to the debtor’s claimed homestead exemption, Judge Haines was called upon to determine the applicability of several new provisions regarding exemptions contained in BAPCPA as well as interpret the $125,000 cap on homestead exemption contained in §522(p).
When Is an Attorney Not an Attorney?
by Thomas J. Yerbich, Anchorage, Alaska
All ye attorneys, lend me your ear
For tis bad tidings of which I fear
I am the bearer
Beware lest ye be a bankruptcy petition preparer.
One of the little noticed changes wrought by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) was the amendment to §110(a) defining a bankruptcy petition preparer (“BPP”). Under existing law, the definition of a BPP excludes any attorney. As amended, §110(a)(1) defines a bankruptcy petition preparer as “a person other than an attorney for the debtor or an employee of such attorney under the direct supervision of such attorney, who prepares for compensation a document for filing” (added language emphasized). The definition of a document for filing in §110(a)(2) remains unchanged: “a petition or any other document prepared for filing by a debtor in a United States bankruptcy court or a United States district court in connection with a case under [Title 11].”