Court Awards Debtor $2,080 in Compensatory Damages and $25,000 in Punitive Damages against Creditor that Coerced Debtor into Paying Discharged Debt

Court Awards NACBA Member $11,000 in Attorney’s Fees in Student Loan Discharge action, since the Work was Reasonably likely to Benefit the Debtor at the time that it was Performed

On October 13, 2016, Debtor filed this Chapter 13 case. On June 12, 2017, the Court confirmed the Debtor’s plan. On June 18, 2017, the Debtor filed an adversary proceeding against Educational Credit Management Corporation (“ECMC”) under § 523(a)(8) of the Bankruptcy Code, seeking to discharge over $223,000.00 of student loans that the Debtor took out to pay for law school and for her daughters to go to college.

Above-Median Debtor Need Not Use Actual Monthly Rental Expense on Means Test Form to Determine Disposable Income

As a matter of first impression, the question before this Court is whether an above-median income earner must, on Official Form 122C-2, account for his actual monthly rent expense in calculating his net rent expense for purposes of determining his monthly disposable income.

Debtor’s Settlement for Injuries Caused by Trans-vaginal Mesh was Property of the Estate Since the Claim Existed Pre-Petition

Co-debtor in this case (“Debtor”), filed a Motion for the court to “Determine Product Liability Settlement Is Not Property Of The Bankruptcy Estate.”  Chapter 7 Trustee (“Trustee”), filed an Opposition to the Motion.

Garnishment of Debtor’s Bank Account by Judgment Creditor did Not Extinguish Debtor’s Interest in Account; Debtor Could Recover Funds under 522(f)

Creditor obtained a judgment against the Debtor in state court on April 7, 2017 in the amount of $85,203.00 in damages, plus $30,000.00 in attorney’s fees. Thereafter, Creditor filed a request with the state court for issuance of a garnishment summons and writ of execution on the judgment.

Debtor with $700,000 in Student Loans Was Not Eligible to file Chapter 13 Since Debts Exceeded Limits Under 11 U.S.C. §109(e)

Debtor wants to be a chapter 13 debtor and use her future income to repay her substantial debts through a court-approved plan. Under 11 U.S.C. §109(e), only an individual with non-contingent, liquidated, unsecured debts of less $394,725 can be a chapter 13 debtor. The Debtor’s student loan debts alone exceed that amount. When she filed her chapter 13 petition, the Debtor’s unsecured debts totaled more than $870,000, an amount that is more than double section 109(e)’s debt limit.

Debtors’ use of a portion of Property for Commercial Purposes (Airbnb rental) did Not Remove the Property from the protection of Homestead Exemption

The Debtors filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code  on December 15, 2017 (the “Petition Date”). In their bankruptcy schedules, the Debtors disclosed their ownership interest in the Property, listing the value as $195,400, subject to a mortgage with an outstanding balance of $162,125 as of the Petition Date. On their amended Schedule C, the Debtors claimed a $500,000  homestead exemption in the Property.

Debtor’s Ability to Participate in an Income Based Repayment (IBR) plan does Not prevent a debtor from Obtaining a Hardship Discharge of Student Loan

A 58-year-old Debtor filed an adversary proceeding to discharge her student loans, which she had obtained in her mid-forties. She was trying to improve her job prospects by attending a local community college.

Washington Update- May 25, 2018

This is the latest update from Washington, designed to keep NACBA members informed about significant and relevant activity on the part of Congress, regulatory agencies and interest groups/think tanks. 

NACBA Urges U.S. Department of Education to Assess & Approve Undue Hardship in Student Loan Bankruptcy Discharge

The National Association of Consumer Bankruptcy Attorneys (NACBA) submitted comments to the U.S. Department of Education (ED) on May 17, 2018, ahead of ED’s May 22, 2018, deadline requesting information on factors to be considered in evaluating undue hardship claims asserted by student loan borrowers in adversary proceedings filed in bankruptcy cases.

Same-Sex Couple with Certificate of Civil Union Can File Joint Bankruptcy Petition

Debtors filed a joint petition under chapter 13 of the Bankruptcy Code on February 5, 2018. On March 5, 2018, they attended their section 341 meeting with the office of the chapter 13 trustee. During the meeting, the Debtors were questioned about their marital status and responded by showing the trustee’s attorney a copy of their “Certificate of Civil Union.”

Condo Association was Bound by Confirmed Chapter 13 Plan where it Failed to File a Claim, and Objected Only After the Debtor Completed the Plan Payments

The confirmed the Debtor’s Chapter 13 plan commonly referred to as a “cure and maintain” plan. In the plan, the Debtor listed the amount of the prepetition arrearage she believed she owed to the Association. The plan provides for monthly payments to cure that arrearage over the life of the plan and provides for payment of the regular Association payments each month.

Don’t File Bankruptcy Without An Attorney: Pro Se, No Way!

“Pro se” means that individuals can file bankruptcy without an attorney. NACBA has launched its latest campaign, “Pro Se, No Way!”, to encourage debtors to seek the advice of a qualified attorney when filing bankruptcy.

NACBA Board Announcement

The National Association of Consumer Bankruptcy Attorneys (NACBA) is announcing the latest election results for the Board of Directors. Carol A. Colliersmith, Esq., from Marietta, GA, and Edward C. Boltz, Esq., from Durham, NC were re-elected to the Board of Directors. NACBA congratulates Jenny L. Doling, Esq. on being elected to the Board of Directors for 2018.

Chapter 13 Debtor’s Counsel Could Not be Reimbursed for Costs Advanced to Clients Since the Filing Fee, Credit Report Fees and the Like are Not Administrative Expenses

This case involves whether or not debtor’s counsel in Chapter 13 bankruptcy proceedings in this District will be reimbursed money advanced to their debtor clients for filing their bankruptcy petitions, taking required credit counseling course prior to filing bankruptcy, and for credit reports obtained by counsel prior to the petition being filed.

Washington Update- April 13, 2018

This is the latest update from Washington, designed to keep NACBA members informed about significant and relevant activity on the part of Congress, regulatory agencies and interest groups/think tanks. 

Above Median Income Debtor Who Contributed to 401(k) and Who Over-withheld Income Taxes Beat the UST’s to Dismiss Case for Abuse

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64-Year-Old Debtor who Could Barely Fund her Spartan Lifestyle Could Discharge Student Loans, Even Though She Did Not Take Advantage of Income-Contingent Repayment Plan

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Were this Court to Grant Sanctions each time a Party Set Forth an Incorrect Legal Argument in its pleadings, it would Not Do Much of anything Else

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Trustee may Avoid Fraudulent Transfer under § 548(e) even if the Property was Exempt as Debtor’s homestead at the Time of Transfer

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A Liquidated, Noncontingent Claim is considered a Secured Claim in Debtors’ chapter 13 case for purposes of § 109(e), even if the Collateral for Claim is Not Property of Debtors’ Bankruptcy Estate.

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“True Consumer Debtor” should be afforded the Benefit of Chapter 13, even if her Student Loan Debt is Above the Limits in 109(e)

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Ocwen Sanctioned $5,875.00 representing Debtors’ Reasonable Attorney Fees and Expenses Incurred in 210-day effort to get Ocwen to Clarify the Escrow Shortage in Proof of Claim

Debtors who “Surrendered” Condominium in Chapter 7 did Not Discharge Post-Petition Condo Assessments where Title was Never Transferred

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Debtor, who was Not a Repeat Filer, and Whose Chapter 13 Plan Paid Secured Creditors, Survived Creditors’ Motion to Dismiss Based on Bad Faith

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Washington Update- March 19, 2018

This is the latest update from Washington, designed to keep NACBA members informed about significant and relevant activity on the […]

Confirmation of Chapter 13 Plan was Not an Adjudication of Debt Buyer’s Claims on the Merits

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NACBA Weighs in On Student Loan Debt

During the NACBA Legislative Committee’s Hill Day visits, Board Member Ed Boltz was able to discuss the restoration of #bankruptcy […]

Melissa Linville Receives the 2018 Henry J. Sommer Scholarship

The National Association of Consumer Bankruptcy Attorneys (NACBA) is honored to award the prestigious Henry J. Sommer Scholarship every year […]

Court Granted Credit Union Stay Relief in order to Set-off Children’s “Lil’ Sweet Pea” Savings Accounts, on which Debtor was Co-owner

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Creditor’s Motion to Reopen and Compel Surrender of Home Denied Where No Relief was Justified (since Husband had Died and Wife Not on Note)

Court Reopened Chapter 7 Case in Order to Compel Debtors to Surrender Home, and to Order Debtors to Stop Fighting Foreclosure Action

Chapter 13 Trustee was Justified in Not Paying Pre-confirmation Adequate Protection Payments Without a Motion and Order

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) made significant changes to §1326 of the Code. 11 […]

District Court Reverses Bankruptcy Court’s Decision to Deny Attorney’s Fee Application Where Debtor Intended to Convert to Chapter 7

11 USC 521(e) allows the Debtor to Avoid Dismissal of Case if the Failure to Provide Required Tax Return is Attributable to Circumstances Beyond her Control

Reasonable Voluntary Retirement Contributions are Not Disposable Income when the Debtor has made those Contributions on a Consistent Basis Prior to the Filing of the Chapter 13

Disposable income is determined under 11 U.S.C. § 1325(b)(2) and is based upon debtor’s current monthly income less amounts reasonably […]

Court Dismissed Trustee’s A.P. for Fraudulent Transfer Against University Since Proceeds of Parent PLUS Loans were Not Property of the Debtor that was Available for the Benefit of Creditors

Debtor’s Claim Against Johnson & Johnson for Defecitve Transvaginal Mesh Claim Not “Sufficiently Rooted” in her Pre-bankruptcy past to be brought into the Estate

Tuition Debt was Not Dischargeable, Notwithstanding the Lack of a Formal Exchange of Money

Washington Update- February 26, 2018

This is the latest update from Washington, designed to keep NACBA members informed about significant and relevant activity on the […]

Court Granted Discharge to Chapter 13 Debtors Who Made Pro-Rata Payment on Mortgage and Avoided the Lien, Since Mortgage-holder Failed to Object to Plan or Confirmation Order

Chapter 13 Debtors Made Pro-Rata Payment on Mortgage and Avoided the Lien, Since Mortgage-holder Failed to Object to the Plan or Confirmation Order

NACBA EVENTS

An integral part of NACBA’s mission is enhancing the ability of its members to represent their clients effectively by holding […]