DMI vs Assets for one spouse filing

[boochase]

OK. I am less confused. So, if our cash accounts (checking, brokerage) did not give the option of TBE (which they didn't) and we meet the criteria of TBE, then all of our cash is now exempt (in the state of Florida). Am I understanding this to be correct? If I am getting it wrong and only half the cash is protected, then the greater of the asset test vs DMI will kick in--is this the right answer? The only unsecured debt I have is my CC debt. My house is not totally underwater, and I am paying the mortgages on time. I have no other debt. I do qualify for ch7, but I was told that I would have to give up the cash. So, apparently, TBE is irrelevant when filing ch7--is this correct? So, the way I see it--when filing ch13 by myself, all of our cash accounts are protected by TBE, and I would have to pay based on DMI, which it about $200/mo. I will be meeting with the attorney within the next month to complete the paperwork and file. I will report the results once the paperwork is completed. When we have the Meeting, I will know how the trustee will proceed. My attorney said he has a great relationship with the trustee and mostly gets what he asks for. We will see.

[catleg]

I may be wrong here, but I would not expect TBE to provide any protection inside bankruptcy court, whether chapter 7 or 13. Chapter 13 provides for the codebtor stay, which is almost the same thing.

My impression of TBE is that it's only operative in state court actions, anyone disagree?

After all bankruptcy court generally does not order your house to be sold, it merely lifts the automatic stay allowing that action to occur in state court.

Bankruptcy court is generally a paper exercise, so TBE isn't going to shield anything from a trustee's calculation of what you should turn over in order to get a bankruptcy discharge. Since a non debtor spouse is involved, even if TBE is honored and the court doesn't compel you to turnover an asset, they would most likely IMHO deny a discharge.

[SunshineGal]

There is a good explanation regarding TBE on this site.

http://www.alperlaw.com/asset_protection.html

If you Google Tenancy by entireties + Beal Bank, you will get links to rulings in the FL BK court.

[OHBOY]

Quote by 'boochase':
"OK. I am less confused. So, if our cash accounts (checking, brokerage) did not give the option of TBE (which they didn't) and we meet the criteria of TBE, then all of our cash is now exempt (in the state of Florida). Am I understanding this to be correct?"

Please see more on this TBE link: asset protection florida, tenants by entireties, joint ownership
Florida law provides quick and effective asset protection for
married persons who own real and personal property either as...

http://www.alperlaw.com/joint_ownership.html Similar pages

While the law may be going in your favor, I doubt very much that a trustee would not challenge it where an account is not specifically set up as a TBE.... and... I would assume that it would be costly to fight him/her (?)
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Quote: " Am I understanding this to be correct? If I am getting it wrong and only half the cash is protected, then the greater of the asset test vs DMI will kick in--is this the right answer? "

Any assets that are protected under TBE are exempt..not 'half'... it would be the whole 'shebang', but...again, I would doubt that the assets you are talking about will go unchallenged.
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Quote: " I do qualify for ch7, but I was told that I would have to give up the cash. So, apparently, TBE is irrelevant when filing ch7--is this correct? "

I believe TBE applies to either chapter...attorney should be able to give input.
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Quote: "My attorney said he has a great relationship with the trustee and mostly gets what he asks for. We will see."

As trustees are assigned to cases on a random basis, I don't understand how any attorney can make that statement...
Attorney I went to see stated that "...it all depends on who the trustee is..."
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(Please understand that just like you, I am trying to learn about bk, and therefore anything coming from my direction is just what I believe... does not mean that it's correct..only an attorney can 'set you straight')

[boochase]

I read Beal case as well as the commentary. Since we meet the "unities" and the intent of our joint institutional accounts, I have a good chance for "immunity" for the assets within those accounts. Thanks to everyone who contributed.