UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of Chapter 7
Case No. 803-88114-288
FRANCISCO FELIX and
JEANETTE FELIX NOTICE OF PRESENTMENT
Debtors.
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PLEASE TAKE NOTICE that upon the application of KIRSCHENBAUM &
KIRSCHENBAUM, P.C., dated December 31, 2003, the annexed proposed
order will be presented for signature to the Honorable Stan
Bernstein, one of the Judges at the within named Court, at the
United States Bankruptcy Courthouse, located at 290 Federal Plaza,
Room 860, Central Islip, New York on the 30th day of January 2004,
at 9:30 a.m. The relief sought in the order is a denial, pursuant
to Bankruptcy Rule 4003, of the debtors' claimed exemption for
financial accounts in the aggregate sum of $1,139.00, together with
such other and further relief as this Court may deem just and
proper.
PLEASE TAKE FURTHER NOTICE that objections, if any, to the
relief requested by the trustee or the proposed order shall be in
writing, shall set forth with particularity the grounds for such
opposition, and shall be filed electronically with the Clerk of the
Bankruptcy Court. A copy must also be filed with the Clerk
designated for the Chambers of Judge Stan Bernstein; and served
upon KIRSCHENBAUM & KIRSCHENBAUM, P.C., 200 Garden City Plaza,
Garden City, New York, Attention: Steven B. Sheinwald, so as to be
received no later than January 27, 2004. If no objection to the
proposed order is filed and served, the order may be signed and
entered as unopposed.
PLEASE TAKE FURTHER NOTICE if objections are timely filed, a
bearing to consider each objection shall be held before Judge Stan
Bernstein, at the United States Bankruptcy Court, Long Island
Federal Courthouse, 290 Federal Plaza, Room 860, Central Islip, New
York on the 3rd day of February 2004 at 9:30 a.m.
Dated: Garden City, New York
December 31, 2003
KIRSCHENBAUM & KIRSCHENBAUM, P.C.
By:____________________________
KENNETH KIRSCHENBAUM, Esq.
A Member of the Firm
Attorneys for the Trustee
200 Garden City Plaza
Garden City, New York 11530
(516) 747-6700
TO: FRANCISCO & JEANETTE FELIX
Debtors Pro Se
76 Spring Garden Street
Valley Stream, new York 11580
UNITED STATES TRUSTEE
Long Island Federal Courthouse
560 Federal Plaza
Central Islip, New York 11722
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of Chapter 7
Case No. 803-88114-288
FRANCISCO FELIX and
JEANETTE FELIX, AFFIRMATION
Debtors.
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STEVEN B. SHEINWALD, an attorney duly admitted to practice law
in the Courts of the State of New York and in this Court hereby
affirms the following to be true under penalty of perjury:
1. I am member of Kirschenbaum & Kirschenbaum, P.C.,
attorneys for Kenneth Kirschenbaum, the Chapter 7 Trustee in the
above proceeding. I am fully familiar with the facts and
circumstances set forth herein
2. On December 12, 2003, the debtors filed a voluntary
petition under Chapter 7 of Title II of the United States Code.
Kenneth Kirschenbaum was appointed the interim Chapter 7 Trustee on
or about December 12, 2003.
3. I submit this affirmation in support of the Trustee's
application for an order denying the debtors' claimed exemptions
for financial accounts in the aggregate sum of $1,139.00.
4. In Schedule C annexed to the petition, the debtors
claimed a $20,000.00 homestead exemption in connection with the
real property known as 76 Spring Garden Street, Valley Stream, New
York pursuant to Section 5205 of New York Civil Practice Law &
Rules. The debtors also claimed exemptions in the aggregate sum of
$1,139.00 pursuant to Section 283 of New York Debtor and Creditor
Law in connection with the balance of funds in financial accounts.
A copy of Schedule C is annexed hereto as Exhibit A.
5. Pursuant to Section 283 of the Debtor and Creditor Law,
"a debtor who does not elect, claim, or otherwise avail himself of
an exemption described in Section 5206 of the civil practice law
and rules; (b) utilizes to the fullest extent permitted by law as
applied to said debtor's property, the exemptions referred to in
subdivision one of this section which are subject to the five
thousand dollar aggregate limit; and (d) does not reach such
aggregate limit, may exempt cash in the amount by which five
thousand dollars exceeds the aggregate of his exemptions referred
to in subdivision one of this section or in the amount of two
thousand five hundred dollars, whichever amount is less."
6. In other words, under Debtor & Creditor Law, a debtor is
entitled to either a CPLR 5206 real property exemption or a cash
exemption. A debtor, however, is not permitted to claim both a
real property exemption under CPLR 5206 and a cash exemption under
Debtor & Creditor Law Section 283.
7. In view of the fact that the debtors have claimed a
homestead exemption, they are not entitled to claim a cash
exemption under Section 283 of the Debtor & Creditor Law.
8. Based upon the foregoing, the trustee objects to the
debtors' claimed exemptions for the financial accounts in the
aggregate sum of $1,139.00. A copy of the trustee's objection is
annexed hereto as Exhibit B.
9. No prior application for the relief requested herein has
been made to this or any other court.
WHEREFORE, for all of the foregoing reasons, it is
respectfully requested that the court enter an order denying the
debtors' claimed exemptions for the balance in the financial
accounts in the aggregate sum of $1,139.00.
Dated: Garden City, New York
December 31, 2003
_____________________
STEVEN B. SHEINWALD
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of Chapter 7
Case No. 803-88114-288
FRANCISCO FELIX and
JEANETTE FELIX
ORDER
Debtors.
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KENNETH KIRSCHENBAUM, the Chapter 7 trustee, by his attorneys,
KIRSCHENBAUM & KIRSCHENBAUM, P.C, having moved by Notice of
Presentment, dated December 31, 2003, for an Order denying the
debtor's claimed exemptions for the balance in financial accounts
in the aggregate sum of $1,139.00, and proof of service having been
filed,
NOW, upon reading and filing the affirmation of STEVEN B.
SHEINWALD, dated December 30, 2003, in support of the trustee's
application for the relief requested in the proposed order, and the
proposed order having been presented to Judge Stan Bernstein for
signature on January 30, 2004, and there being no opposition to the
proposed order and after due deliberation having been had thereon,
NOW, upon the application of KENNETH KIRSCHENBAUM, by his
counsel, KIRSCHENBAUM & KIRSCHENBAUM, P.C., it is
ORDERED, that the debtors' claimed exemption for financial
accounts in the aggregate sum of $1,139.00 is denied.
Dated: Central Islip, New York
January , 2004
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__________________________
STAN BERNSTEIN
UNITED STATES BANKRUPTCY JUDGE