National Association of
Consumer Bankruptcy Attorneys
NACBA is the only national organization dedicated to
serving the needs of consumer bankruptcy attorneys and protecting the
rights of consumer debtors in bankruptcy. Formed in 1992,
NACBA now has more than 4,000 members located in all 50 states
and Puerto Rico.
NACBA has also played a critical role in
many important court cases affecting the rights of consumer bankruptcy
debtors by filing amicus briefs in U.S. Courts of Appeal and the
Supreme Court, with many of those case decisions influenced by NACBA's
participation. In addition, NACBA provides the most comprehensive
educational programs in the country for consumer bankruptcy attorneys
with its annual conventions and workshops.
Save The Date!
NACBA President Carey Ebert testifies before House Judiciary Subcommittee
Posted: June 29, 2009
NACBA President Carey Ebert testified before the House Judiciary Subcommittee on Commercial and Administrative Law on June 16, 2009. The Subcommittee Hearing focused on Bankruptcy Judgeship Needs.
NACBA HAILS OBAMA PLAN FOR JUDICIAL MODIFICATIONS OF MORTGAGES, URGES SWIFT HILL ACTION AND INDUSTRY FORECLOSURE FREEZE UNTIL NEW LAW IS IN PLACE
WASHINGTON, D.C.//February 18, 2009///The following statement was issued today on behalf of the 3,500-member National Association of Consumer Bankruptcy Attorneys (NACBA) by bankruptcy attorney and NACBA president Carey Ebert of Fort Worth, TX:
“At a time when an estimated 6,600 American families are losing their homes to foreclosure every day, we welcome the Obama Administration’s support for changes to existing bankruptcy laws that will allow for judicial modification of home mortgages. The Obama Administration is the latest major player in this national debate to recognize the fact that judicial modification must be part of the solution to today’s worsening home mortgage foreclosure crisis.
Data Shows "Foreclosure Prevention" Fixes Fail to Work
Posted: December 18, 2008
PRESS RELEASE: Near Half of Homeowners in “Loan Modification” Programs Face Higher Monthly Payments; Failure of Voluntary Industry Efforts Hikes Pressure on Incoming Obama Administration, New Congress to Clear Way for Court-Supervised Modifications.
WASHINGTON, D.C.//December 19, 2008//Much hyped “foreclosure prevention programs” relying on voluntary loan modifications are failing to reach a significant number of troubled homeowners and are often backfiring when they do so, according to newly updated research released today by the National Association of Consumer Bankruptcy Attorneys (NACBA). The across-the-board failure of these much ballyhooed “fixes” for the foreclosure crisis are expected to result in the new President and Congress facing considerable new pressure to clear the way for court-supervised loan modifications that will prove more beneficial for homeowners. The findings released today by NACBA come on the heels of a dire new projection from Credit Suisse that “over 8 million foreclosures (are now) expected” over the next four years in the U.S. That astounding level accounts for 16 percent of all mortgages –- including 59 percent of all subprime mortgages and more than 11 percent of all other mortgages, including Alt-A, options ARMS and even those in the prime category. This new forecast from Credit Suisse is up sharply from the two to six million foreclosure range cited in previous estimates from industry sources.
Brett Weiss testifies before Senate Committee on credit card abuses
Posted: April 03, 2009
On April 2, 2009, NACBA Member and Maryland State Chair Brett Weiss testified on behalf of NACBA at a House Judiciary Commercial and Administrative Law Subcommittee hearing on credit cards and bankruptcy. At the hearing, there was discussion about certain provisions of the 2005 Act (credit counseling and means test) that make it more costly and burdensome for consumers to file for bankruptcy.
Katherine Porter, a law professor at the University of Iowa and frequent speaker at NACBA programs, recently published an article about the credit solicitations that debtors receive after bankruptcy. Bankrupt Profits: The Credit Industry's Business Model for Postbankruptcy Lending reports Consumer Bankruptcy Project data that show that chapter 7 debtors are inundated with offers for both secured and unsecured credit after bankruptcy. The article was just published in volume 93 of the Iowa Law Review. It may be downloaded at no charge at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004276.
Creditor's Failure to Cease Automatic Payroll Deduction Violates Stay
Posted: June 03, 2009
The Appellee, Credit Union, continued to make automated payroll deductions from Debtor’s paycheck and apply a portion of the deductions to a loan for her car after Debtor filed bankruptcy and notified the credit union of her intention to surrender the vehicle.The BAP found that the Bankruptcy Court erred in finding that Credit Union did not have the ability to stop payments on the loan. The Court ordered the return of the money collected in violation of stay, plus a determination of appropriate sanctions, including attorney fees. In re Krivohlavek, 8th Cir. BAP, 08-6047 (May 22, 2009)
Failure to Release Transcript Violates Stay and Discharge Injunctions
Posted: April 30, 2009
In In re Kuehn, the Seventh Circuit held that a University’s refusal to provide a student transcript as a result of the student’s pre-petition tuition arrears violated the Bankruptcy Code’s automatic stay, § 362(a)(6), and discharge injunction, §524(a)(2), provisions. NACBA submitted an amicus brief in this case and sponsored a moot court argument for debtor's counsel.
The Fourth Circuit has held that under applicable state law creditors have purchase money security interests in the portion of a debt used to pay off of negative equity on a trade-in vehicle. See In re Price, __ F.3d __, 2009 WL 975796 (4th Cir. Apr. 13, 2009). The Fourth Circuit reasoned that a natural reading of the statute mandated such finding “because that financing enabled the Prices to acquire rights in their new car,” thus the trade-in of the vehicle in which the debtors had negative equity was closely connected to the acquisition of the new vehicle. Additionally, the court found that its decision was supported by Congress’ intent in enacting the hanging paragraph of the Bankruptcy Code, “to protect secured car lenders from having their claims bifurcated in Chapter 13." The court, however, fails to address the fact that purchase money obligations traditionally have not included the payment of antecedent debt.
NACBA Files Brief in Second Circuit Challenging Debt Relief Agency Provisions
Posted: February 26, 2009
NACBA, along with the Connecticut Bar Association and other plaintiffs, has filed its brief in the case of Connecticut Bar Association v. Holder, challenging the application of the Debt Relief Agency provisions, 11 U.S.C. 526-528, to attorneys. The case filed on behalf of all NACBA members, resulted in a mixed result in the district court. That court held the"gag rule" barring advice about incurring debts to be unconstitutional, and struck down the advertising requirements with respect to attorneys who do not represent debtors in bankruptcy. But it held that attorneys were debt relief agencies, and otherwise upheld the requirements of mandatory disclosure, advertising, and having a written contract executed within 5 days. The brief filed in the Second Circuit challenges all of those adverse rulings.
NACBA and NCLC recently submitted joint comments on the United States Trustee’s Notice of Proposed Rulemaking on Application Procedures for Approval of Providers of a Personal Financial Management Instructional Course.While commending the UST for requiring mandatory and early disclosure of fee policies, the comments focused on other areas where additional changes or clarification was needed.These areas included disclosure of fee waivers on websites, language barriers to course completion, mandatory reporting of 111(g)(2) actions, opposition to fees for certificates or replacement certificates and opposition to referral fees.A copy of the comments is available on the NACBA home page.
In In re Sanders, No. 08-1201 (6th Cir. 12/29/2008), the Sixth Circuit addressed the requirement in 11 U.S.C. § 1328(f)(1) that a debtor wait four years before initiating a Chapter 13 proceeding after having received a Chapter 7 discharge, finding that the four-year period begins to run at the time of filing the Chapter 7 action rather than from the date of the issuance of the discharge.Acknowledging that its reading of the statute created certain complications with respect to § 1328(f)(2), which limits the filing of consecutive Chapter 13 cases, the court declined to attempt to unravel Congress’ intent, and instead relied on the plain grammatical meaning of the language of the statute.
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