Can A Bankruptcy Trustee Search Your Home?

by Jed Berliner, Western & Central Massachusetts Consumer Lawyer

April 30, 2009

“I can’t file bankruptcy. I heard that a trustee will come into my home and take what he wants.”

Is there anything more frightening than this sentence? It isn’t true, of course, but the fear is real.

Yes, there is a remote one-in-a-bazillion chance that a trustee can get an order allowing seizure of unprotected property, but note how this sentence compares with the stated fear. A court order is required, and only unprotected assets may be taken. This was the ruling of Youngman v Bursztyn (In re Bursztyn), 366 BR 353 (Bankr DNJ 2007). It held that the Fourth Amendment’s protection from unreasonable searches applies in bankruptcy, but there was a lower privacy expectation in bankruptcy where a debtor’s documents contain disclosure of all assets in great detail and under penalties of perjury. In that case, the debtor had recently been held by her divorce court judge to have lied about her possession of $250,000 of jewelry which wasn’t disclosed in her bankruptcy papers. This gave the bankruptcy judge reason to allow the trustee’s search (with the assistance of the U.S. Marshals).

Careful pre-filing planning should lead to protection of all your assets. Please consult with the trusted Bankruptcy Law Network attorney of your choice.

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Jed Berliner practices exclusively in consumer bankruptcy, foreclosure defense, and related consumer protection litigation such as credit card defenses and suing debt collectors. He established his Springfield, MA practice in 1988. Attorney Berliner is a regular and active contributor to the Bankruptcy Law Network, the Bankruptcy Roundtable, and the National Association of Consumer Bankruptcy Attorneys, three specialized consumer bankruptcy forums on the Internet, and is an informal mentor to regional practitioners. He is recognized by his peers as an expert in consumer bankruptcy issues. He thoroughly enjoys being rated "excellent" in his client surveys.

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Last modified: February 9, 2013