Legal Question in Bankruptcy in New York

Re: Filing bankruptcy while living in Europe

The issue of filing for Bankruptcy when not actually living in the locality, is a complicated issue of determining what your "Domicile" is pursuant to 28 U.S.C. 1408, which can depend upon where your principal place of business or principal assets in the United States are located.

28 U.S.C. 1408 States:

Except as provided in section 1410 of this title, a case under title 11 may be commenced in the district court for the district�

(1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principal place of business, in the United States, or principal assets in the United States, of such person were located in any other district; or

(2) in which there is pending a case under title 11 concerning such person�s affiliate, general partner, or partnership.

To avoid litigation over this vague area, it is best to move to the State for the longer period of 180 days, which is Only 91 days and file bankruptcy there.

You should be advised however that the new bankruptcy law will prohibit you from taking advantage of the states exemptions if you have not lived there for 2 years, but then again maybe you don't need them anyway.

Jacob Silver

Attorney At Law

26 Court Street

Suite 2511

Brooklyn, NY 11242

[email protected]

http://www.silverbankruptcy.com

Re: Filing bankruptcy while living in Europe

Bankruptcy, unfortunately for you, is bound by the physical location of the court where you plan to file your petition. You must actually reside and be physically present in the place where you intend to file the bankruptcy for a statutory period determined by each location (in NY that's 180 days) before you can take advantage of the courts in that location to file your bankruptcy petition. You must then be available to attend all of the Meetings of Creditors held by the Trustee under 11 USC 341(a). Those meetings will happen in or near the courthouse where the bankruptcy court sits (in the Northern District of NY, for example, most 341(a) meetings happen in the Federal Building in Albany, about 2 blocks from the courthouse).

After your case is finished (very often, this involves only one 341(a) meeting of creditors), either through discharge (which you want) or dismissal (which you do not want), you are free to live wherever you choose.

Be aware that if you file a Chapter 13 petition, which the new bankruptcy laws that took effect last October may force you to do, you will remain under the thumb of the Court for up to five years while you pay into your Chapter 13 plan.

Working for a US-based company in Europe does not do the trick to bring you under the jurisdiction of the bankruptcy courts in NY; the question is where do YOU LIVE, not where is your employer's company based.

I do not know whether effective bankruptcy protection would be available to you in your location in Europe. You should consult a European attorney in your country for help with that one.

If I can be of further assistance, please feel free to contact me offline.

Best wishes,

Nancy Delain

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.