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LegalGround >> Attn: Steve72


4/14/09 10:06 AM
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Member Since: 3/28/05
Posts: 8613
 
Came across a case you may find interesting while doing some research. 

Reference is made to footnote 15 of In re Brajkovic, 151 B.R. 402 (W.D. Tex. 1993)
4/16/09 12:47 PM
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Steve72
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 Sorry did not see this.  I'll pull the case.
4/16/09 12:49 PM
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Steve72
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 LOL.  Thanks!

 cardinal rule of logic is that an argument fails to prove anything if it somehow takes for granted what it is supposed to prove. Such an argument begs the question asked. See generally Stephen F. Barker, The Elements of Logic 178-79, 201 (McGraw-Hill, Inc. 1965). The argument in Atchison suffers from just such a circularity of reasoning. In Atchison, the court recognizes that, immediately prior to the execution of a disclaimer, there resides in the debtor/beneficiary an interest in property, and that the debtor disposes of that interest by executing a disclaimer. The court further recognizes that this analysis would bring the execution of the disclaimer within the ambit of section 548(a). The court then seeks to avoid that consequence by announcing that the debtor did not dispose of an interest of the debtor in property, because the debtor did not have an interest in property. How does the court reach this conclusion? By presuming that, immediately after the execution of the disclaimer, the property interest which existed prior to the disclaimer disappears, by virtue of the relation back doctrine. Therefore, the argument concludes, nothing existed before the transaction, so nothing was transferred. Of course, the transfer has to be executed in order for nothing to be transferred, and that is the faulty premise in Atchison's logic. There is a proper role for the "relation-back" feature to play, but it is not the one assigned to it by the Atchison court. See discussion infra.
4/16/09 12:53 PM
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Edited: 04/17/09 11:09 AM
Member Since: 3/28/05
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 Stephen F. Barker, a/k/a Steve72 

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