Yes, you read that correctly.  Debit audits are officially back as of May 12, 2008.  This is despite the fact that the panel trustee already examines the debtor, and despite the fact that the U.S. Trustee already reviews every petition filed with the Clerk.  The new notice from the office of the U.S. Trustee, dated May 9, 2008, clearly states that the U.S. Trustee will resume debtor audits.

Isn’t the U.S. Trustee technically doing debtor audits when bringing 2004 Exam Subpoenas?  Isn’t the U.S. Trustee already seeking tax documentation and proof of income through these 2004 Exam Subpoenas?  Of course.  However, they are not technically considered audits as mandated in Section 603(a) of Public Law 109-8, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Personally, I am still looking for the consumer protection portion of the Act.  I know I saw it somewhere, but I just don’t see how the consumers are really being protected.  I suppose that the reaffirmation hearings are some sort of consumer protection.  Or you could say that the hearings are just another burden placed on the debtor to convince the court that the debtor can afford his or her car.  This often requires additional time off of work, but that’s the debtor’s problem.  It will just make it a little harder to pay for the car on time.

I would have simply called the Act the Bankruptcy Code and I would have subtitled a section of that Code, Abuse Prevention.  Anyway, sorry for my digression.  The reason that the debtor audits were suspended was due to budgetary reasons.  I suppose everyone associated with bankruptcy, including myself, is spending more money than they did prior to bankruptcy reform.  As for the upcoming audits, they will be limited to 1 out of every 1000 cases as opposed to 1 out of every 250 cases as before.

Lastly, I don’t recall how many cases were dismissed or how many discharges were denied due to a debtor’s failure to pass the audit.  Were these audits simply attempts to demonstrate the type and extent of abuse promulgated by debtors?  If so, will auditing 1 out of 1000 cases have any impact at all?

The truth is simply that the U.S. Trustee is doing just what the Act mandates.  I would suggest that instead of robotically adhering to all provision of the Act, we should instead, make some revisions.  The reforms laws may have looked good on paper to those who lobbied eight years for the changes.  But looking good on paper and having an actual positive result are two different things.  It’s o.k. to admit that and to acknowledge that.  Now, an effort should be made to smooth over the rough spots and to clarify some of the ambiguities.  Otherwise, we will continue to wade in the minutia, all the while pretending to be walking on soft, sandy beach.  If the debtor audits produced little fruit and if the cost of said audits was prohibitive, why not look to make a change.  Throw it back to the lawmakers to make it right.  If everyone works together, it can probably get done within the next eight years.

Beware of the dangers in co-signing for another person:
In a hypothetical case of Joseph Debtor, a creditor was listed on the Petition and notice was properly sent.  However, in addition to Joseph Debtor, there is also a co-debtor, Courtney Co-Debtor.  The creditor can pursue the debt against the non-filing party, in this case, Courtney Co-Debtor.  People often assume that the underlying debt has been eliminated in a Chapter 7 bankruptcy case.  Actually, the liability of a particular debtor has been discharged in a bankruptcy.  The underlying debt still remains as to any liable party who does not file for bankruptcy protection. 

We see this often in the case of a co-signer to an auto loan.  One party fails to make timely payments and the creditor pursues both the signer and the co-signer.  If only one party files for Chapter 7 bankruptcy, the creditor is free to pursue the debt against the co-signer who has not filed.
 

The Clerk of the U.S. Bankruptcy Court for the Northern District of Illinois has just issued an updated version of the form required to accompany all motions for relief from stay.  The form includes the following items:

Debtor, Creditor, Relief Sought, Chapter 13 Confirmation Date Hearing or Date Confirmed;

Chapter 7  Report of No-Assets or Date of 341 Meeting of Creditors, Type of Collateral, Balance Owed, Other Liens Against Collateral, Estimate Value of Collateral;

Default, Pre-Petition, Post-Petition, Number of Months, On Direct Payments, On Payments to Trustee;

Other Allegations, Lack of Adequate Protection, No Insurance, Taxes Unpaid, Rapidly Depreciating Asset, Other;

No Equity, Not Necessary For An Effective Reorganization, Other Cause, Bad Faith, Multiple Filings;

Debtor’s Statement of Intention Regarding the Collateral, Reaffirm, Redeem, Surrender, No Statement Filed.

After close scrutiny, you will notice that there are some additional line items that were not present in the prior version of the form.  I think that creditors will have an easy time adjusting to the new, updated form.

Even if a court meets jurisdictional criteria, it may decline to exercise its jurisdiction, and it must in some cases if it finds that it is an inconvenient forum for making such determinations under the circumstances of the case and that a court of another state is a more appropriate forum.  Klumpner v. Klumpner.

This Act requires that the trial court decline jurisdiction once it is aware that it may be an inconvenient forum, and that the court of another state is more appropriate.  In re Pavelcik.

Even where the requirements of 750 ILCS 35/4 are met and the court has jurisdiction to make a child custody determination, it may decline to exercise it if it finds that court to be an inconvenient forum for the determination under the circumstances of the case, and that a court of another state is a more appropriate forum.  Noga v. Noga.   

This Act involves a process in which the court must first resolve whether it has jurisdiction under 750 ILCS 35/4, and after such a finding, it must determine under this section and 750 ILCS 35/7 whether it should decline to exercise jurisdiction.  In re Levy.

                                                Atty. No. 
 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
 MUNICIPAL DEPARTMENT - SECOND DISTRICT

                                                      
Z AN ILLINOIS                  

CORPORATION,                      
               Plaintiff,       v.                               

 No.  2002 
TAMMY   

Defendant.       

 AFFIDAVIT REGARDING ATTORNEY’S FEES
I, Attorney of Record, being duly sworn on oath, having personal knowledge of the relevant herein, and if called as a witness would competently testify as follows:

1. That Affiants are attorneys, licensed to practice law in the State of Illinois since 1988, and 1990 respectively, and that they is paid $100.00 per hour for office time and $125.00 per hour for court time.

2. That Affiants have rendered the usual and customary services as the attorneys for the Plaintiff in regards to the above action and other relief.

3. That the attached itemized statement, marked Exhibit “A”, attached hereto and incorporated herein, as to the services rendered regarding this case is correct to the best of our knowledge.
FURTHER AFFIANTS SAYETH NOT.              

                                                                
                                         Attorney

STATE OF ILLINOIS  )
                              )  SS
COUNTY OF C O O K )

Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.
                                                                         Attorney
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Gift
 The circuit court’s conclusion that the bracelet given to petitioner by respondent’s mother, who carried insurance on it, belonged to the petitioner was contrary to the manifest weight of the evidence; therefore, bracelet was not included in marital property.  In re Simmons
 The trial court erred in awarding gold cross to petitioner wife as her separate non-marital property where the evidence established that it was given to husband by his uncle many years prior to the marriage and there was no affirmative proof of an intention to make a gift to the wife.  In re Uluhogian
Improvement
 The stores owned by a husband prior to the marriage remained non-marital despite their absorption of some marital resources because it was permissible for one spouse to improve the other spouse’s non-marital property without making that property marital.  In re Kennedy
Individual Retirement Account
 Where an Individual Retirement Account was treated as the exclusive property of husband since he used the account as an adjustment to income on his separate tax return, this was property acquired solely by husband during the marriage and fell within the exclusion of the prenuptial agreement.  In re Burgess
Investment
 The interest earned during the marriage on one spouse’s investment account was her non-marital property, as an increase in the value of property acquired before marriage remained non-marital property.  In re Deem
Legislative Intent
 The intent of this section as a whole was designed to eliminate disparity between the marriage partners; however, the exceptions (1) through (6) of subsection 9a) of this section manifest the legislative purpose to preserve the character of non-marital property in those situations where the actions of the parties have not created ambiguity.  In re Smith
Test
 Where property was acquired before marriage, title is a relevant indicator to determine at the time of dissolution whether the property has remained non-marital.  In re Drennan

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Custodial parent who removed children from Illinois to Louisiana and obtained a Louisiana court order that prohibited visitation by the other parent the day prior to a scheduled visitation was properly found in contempt of the Illinois visitation order because the Louisiana order did not excuse the custodial parent’s noncompliance where it was intentionally procured as a way not to follow the order with which the custodial parent disagreed and because the Illinois court retained exclusive jurisdiction over the matter regardless of where the children were taken.  In re Marriage of Kneitz.

STATE OF ILLINOIS    ) 
                                ) SS
COUNTY OF C O O K   )

 AFFIDAVIT OF LMD IN SUPPORT OF PETITION TO VACATE JUDGMENT

LMD, being duly sworn on oath, and having personal knowledge of the relevant facts presented herein, states as follows:  
1. Affiant, LMD, the Defendant in the above-entitled action, makes this Affidavit in support of the Petition to vacate the judgment entered therein on November 8, 1991, in favor of Plaintiff and against Affiant in the amount of $741.06, and costs.

2.   That said judgment should not have been entered and should not be allowed to stand because I nor my automobile was involved in the accident that is the basis of the underlying lawsuit.

3.   That said judgment was entered aforesaid without any fault or negligence of Affiant.

4. That upon receipt of the summons and complaint I immediately telephoned the Plaintiff’s attorney and was informed by the Plaintiff’s attorney that if I sent a letter stating I nor my automobile was involved in the accident he would dismiss the case. 

5.   That further, my automobile was Beige and not blue.

6.   That further, my license plate number for my automobile at the time of the accident was PM2631 and not PM.

7.   That at all times herein material Affiant has exercised due care and diligence in that I contacted Plaintiff’s attorney and was assured that the mistake would be corrected thus the
lawsuit would be dismissed.

8.  Promptly on learning of entry of said judgment, Affiant
immediately said Petition to vacate said judgment.

9.  Affiant has on the merits, a valid defense to Plaintiff’s purported cause of action therein, in that my automobile was not involved in the accident that is the underlying justification and  cause of this lawsuit herein.

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Application and Construction
 In order to preserve a property’s non-marital status one must prove that the entire property was acquired exclusively by one of the methods listed in subsection (a), and that its character was not subsequently altered by action of the owner; the interpretation of the effect of subsection (b) upon subsection (a) of this section is consistent with the Act’s expressed preference for the classification of property as marital and the shifting of the burden of proof to the party seeking control of the property.  In re Smith
Evidence
 Where wife testified she told husband prior to the marriage that she wanted to continue paying the mortgage, insurance premiums and real estate taxes, she expressed an intention to maintain the residence as her separate property, and placed in trust the title to the residence with her daughters as beneficiaries, testimony rebutted the presumption of marital property raised.  In re Holman
Federal Employer’s Liability Action
 The cause of action set forth in count II of the husband’s Federal Employer’s Liability Action complaint was a separate property right and non-marital in nature where it arose following the entry of the judgment of dissolution; it could not properly have been considered part of the property settlement agreement.  In re Waeckerle
Future Acquisition of Assets
 The court must consider non-marital property, even where the non-marital property will be received in the future, when it determines the relevant economic circumstances of each spouse and the amount and sources of income of the parties, as well as the reasonable opportunity of each spouse for future acquisition of capital assets and income.  In re Smith
Future Earning Capacity
 Future earning capacity flowing from an education was not considered a marital asset and, thus, not divided by the court in a dissolution of marriage proceeding.  In re Goldstein

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