Bankruptcy Court Addresses Eligibility, Non-formal Notice of Bankruptcy and a Creditor’s Affirmative Duty to Correct Technical Violations of the Automatic Stay

Bankruptcy Court holds Debtor is Entitled to Chapter 13 Discharge even if Co-Debtor is Delinquent on Post-Petition DSO Payments

Bankruptcy Court Rejects Ditech’s Standing to file Mortgage Claim

A bankruptcy court recently expunged a claim of Ditech Financial LLC (Ditech) asserting that it was the creditor and the servicer of a note secured by an investment property (the “Property”) owned by the Debtors. Ditech filed a petition for bankruptcy in Case No. 19-10414 (Bankr. S.D.NY February 11, 2019). The order was entered in another proceeding before a different judge after Ditech’s bankruptcy was filed.

Bankruptcy Court Highlights Broader Discharge Provisions in Chapter 13 and Finds that Converting a Case from 7 to 13 to Utilize the Broader Discharge is Not Bad Faith.

The United States Bankruptcy Court for the Northern District of Georgia recently denied an objection to confirmation concerning the debtors’ conversion to a chapter 13 to take advantage of the broader discharge under 11 U.S.C. § 1328.

Bankruptcy Court Denies USA’s Blanket Request for Tolling of Deadlines During Lapse of Appropriations

In an unpublished opinion, the Bankruptcy Court for the Northern District of Ohio recently denied a motion from the United States Attorney’s Office “requesting a tolling of all deadlines applicable to the United States, its agencies, or its employees, including, without limitation a tolling of all bar dates for the filing of proofs of claim and request for the payment of administrative expenses with respect to the United States and its agencies from December 22, 2018 through January 28, 2019 (the “Appropriations Lapse”).”

Should You Object to that Claim Now or in The Next Bankruptcy Case? A Bankruptcy Court Discusses the Effect of Res Judicata in Claim Allowance and Disallowance

The Bankruptcy Court for the Central District of California recently examined whether a claim, allowed or disallowed in a previously dismissed bankruptcy, has res judicata effect in a subsequent bankruptcy. The court discussed the elements of res judicata in these circumstances.

Bankruptcy Court Clarifies Authentication Standard in Motions for Summary Judgment

The Bankruptcy Court for the District of Delaware recently clarified the authentication standard for an exhibit attached to a motion for summary judgment. The court specifically examined the change in Fed.R.Civ.P. 56(c)(4) in 2010 (made applicable to bankruptcy proceedings in Fed.R.Bankr.P. 7056 and applicable to all contested matters in Fed.R.Bankr.P. 9014(c)).

10th Circuit BAP Says Amending Schedules in a Reopened Case is not Subject to Excusable Neglect Test

The Bankruptcy Appellate Panel for the 10th Circuit recently addressed a thorny issue about amending schedules in reopened cases. See In re Dollman, BAP No. NM-18-030(10th Cir. B.A.P. February 5, 2019). The question is whether a debtor in a reopened case seeking to amend schedules must first move for an extension of time pursuant to Fed.R.Bankr.P. 9006, and demonstrate excusable neglect.

Bankruptcy Court Allows Exemption of Pre-petition Disbursement from 401k

The Bankruptcy Court for the Eastern District of Louisiana recently reviewed an interesting case where the debtor’s pre-petition 401k disbursement was held by a state taxing agency. See In re Bostick, No. 18-10069 (Bankr. E.D.LA. Feb. 1, 2019). The court determined whether the money returned from the state was a tax refund or an exempt asset.

2019 President’s Letter to Membership

As we collectively depart 2018 and begin anew in 2019, it may be an overstatement to apply this famous quote to any portion of our lives, our practices, or of NACBA as a whole. Still, in looking back, one can obviously spot highlights and low lights and, importantly, use that perspective in shaping the path forward.

8th Circuit Addresses Res Judicata and Good Faith in Sanctions Case

In First State Bank of Roscoe v. Stabler, No. 17-1904, 2019 U.S. App. LEXIS 3041 (8th Cir. Jan. 30, 2019), the 8th Circuit affirmed discharge violations against the First State Bank of Roscoe and it’s principal John R. Beyers for concocting a scheme post-discharge that ended with debtors owing the Bank money originally discharged. The court rejected the preclusive effect of an underlying state court action and defendants’ good faith defense.

Bankruptcy Court defines Surrender Citing Roberto Duran, George Custer and Napoleon

The Bankruptcy Court for the Northern District of Oklahoma recently reviewed the definition of “surrender” in a chapter 13 plan. In re Ball, No. 17-10953 (Bankr. N.D..OK. Jan. 23, 2019).

Bankruptcy Court Says Call First Before Seeking Attorney’s Fees

The Bankruptcy Court for the Eastern District of Michigan recently ruled whether a creditor must pay attorney’s fees to the objecting party when the creditor filed a claim with deficient information. In re Ball, No. 17-22574 (Bankr. E.D.MI. Jan. 22, 2019).

Incarceration Does Not Exempt Debtor From Completing the Credit Counseling Requirement

The Bankruptcy Court of the Northern District of Ohio recently ruled that a debtor incarcerated in federal prison is not entitled to an exemption under 11 § U.S.C. 109(h)(4). In re Heim, No. 18-62067 (Bankr. N.D. Ohio Jan. 16, 2019).

Title Loans Aren’t Valid Deductions on Means Test Says Utah Bankruptcy Court

The Utah Bankruptcy Court recently ruled that a non-purchase money interest in a debtor’s vehicle is not a valid deduction on Form 122C-2 Calculation of Disposable Income. In re Traylor, No. 18-23314, 2019 Bankr. LEXIS 75 (Bankr. D. Utah Jan. 10, 2019).

Consumer Law Changes Taking Effect in 2019

(This article first appeared at NCLC.org) This article lists federal and state consumer law changes that already are scheduled to go […]

In Sanctions Matter Bankruptcy Court Shuts Down Creditor’s Defense of No Notice

The Utah Bankruptcy Court framed the issue as “Is it a credible defense to a motion for sanctions for stay violations for a creditor to claim it lacked notice of the bankruptcy filing, even after service of multiple bankruptcy papers followed by phone calls from the debtors? The Court thinks not.” In re Kelley, No. 17-29915, 2019 Bankr. LEXIS 29, at *1 (Bankr. D. Utah Jan. 4, 2019).

9th Circuit Clarifies Awards of Appellate Attorney’s Fees in Sanctions Case

The Ninth Circuit recently ruled that Section 362(k) of the Bankruptcy Code allows an award of attorney’s fees when the debtor successfully defends or challenges a judgment for violation of the automatic stay.  In Easley v. Collection Serv. of Nev., No. 17-16506, 2018 U.S. App. LEXIS 35857, at *3 (9th Cir. Dec. 20, 2018), the Ninth Circuit Court of Appeals reversed the judgment of the District Court.

Ninth Circuit panel affirms that a Chapter 7 Debtor is not allowed to amend homestead exemption to protect post-petition increase in home value.

In a 2-1 decision, the panel held that the debtor’s exemption is limited to the specific amount of equity in the home as of the petition date. Wilson v. Rigby, No. 17-35716, 2018 U.S. App. LEXIS 33234 (9th Cir. Nov. 27, 2018). The panel distinguished this case from other Ninth Circuit homestead exemptions which allow a debtor to amend a homestead exemption to capture a post-petition increase in value.In a 2-1 decision, the panel held that the debtor’s exemption is limited to the specific amount of equity in the home as of the petition date.  Wilson v. Rigby, No. 17-35716, 2018 U.S. App. LEXIS 33234 (9th Cir. Nov. 27, 2018). The panel distinguished this case from other Ninth Circuit homestead exemptions which allow a debtor to amend a homestead exemption to capture a post-petition increase in value.

NACBA/NCLC Testify Before House Judiciary Subcommittee

WASHINGTON, D.C. On Wednesday, September 26, 2018 NACBA Legislative Committee Member, John Rao, testified before the House Judiciary Subcommittee on […]

Washington Update- September 4, 2018

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

Funds Debtor was Awarded from Ex-Husband’s Retirement Account Could Not be Exempted as Alimony

Law Firm did Not Willfully Violate Automatic Stay, even though its Actions caused Debtor to Spend time in Jail

Debtor with $0 Monthly Student Loan Payment under Income-Based Repayment Plan Survives ECMC’s Motion for Summary Judgment in Student-Loan Discharge Case

Chapter 7 debtor, seeks to discharge her student loans despite enrolling in an income-based repayment plan (“IBR Plan”) that reduced her monthly payments to $0. The Educational Credit Management Corp. (“ECMC”)—a seasoned veteran of this line of litigation—says this should stop her at the summary-judgment stage.

Chapter 13 Plan Which Excluded Social Security Income from Funding was Proposed in Good Faith

The Debtors proposed a Chapter 13 plan that excluded their Social Security income from the funding of the plan. The Chapter 13 Trustee objected, arguing that the plan was not proposed in good faith because of the exclusion of such income.

Court Grants Chapter 13 Debtors’ Motion to Incur Student Loan Debt for Daughter

Chapter 13 debtors moved the court for authority to borrow money, specifically to incur student loan debt on behalf of their daughter. The Trustee Objected to the motion.

63-Year-Old Debtor with $0 Monthly Payment under IBR Could Not Discharge Student Loans, Notwithstanding Tax Consequences of the Repayment Program

Debtor attended several colleges starting in 1972. She took out student loans in pursuit of her undergraduate degree; those loans were discharged when she filed for bankruptcy in 1984.

After Debtors Voluntarily Dismissed Chapter 13 Case, Court Approved Attorney’s Fee Application as Administrative Expense to be Paid from Funds Held by Chapter 13 Trustee

Seeking relief from mounting business debts, the Debtors retained Attorney Parker to file a joint Chapter 13 bankruptcy. After Debtors voluntarily dismissed their case—and three days before filing Chapter 7 on their behalf-Attorney Parker submitted an application for pre-confirmation attorney fees. The Chapter 7 Trustee and a creditor object.

NFL Player’s Concussion Injury Litigation Settlement Qualified as a Disability Policy and was therefore Exempt under 11 U.S.C. § 522(d)(10)(C)

THIS CASE came before the Court for a hearing on April 4, 2018, upon Trustee’s Objection to Claim of Exemption in National Football League Player’s Concussion Injury Litigation Settlement (the “Disputed Exemption”).

Debtor Could Not Reaffirm Lease on Automobile Since §524 Does Not Apply to Leases

This matter comes on to be heard upon the Reaffirmation Agreement (“Reaffirmation Agreement”) filed by American Honda Finance Corporation (“Honda”) and the Debtor.

Student Loan Discharged since ECMC Failed to Produce Evidence that a Loan or Signature ever Existed

The Debtor/Plaintiff  filed a chapter 7 petition and, shortly after, he filed this adversary proceeding seeking a determination of dischargeability under 11 U.S.C. § 523(a)(8). He then received a discharge.

Funds Paid by GAP Insurance Provider After Debtor Totaled Car Were Not Property of the Estate and Belonged to Creditor

This matter requires deciding which party should receive funds paid by a Guaranteed Auto Protection (GAP) provider after Debtor  totaled his car. Debtor and the Chapter 13 Trustee contend that the GAP proceeds should flow to the bankruptcy estate. Creditor Credit Acceptance Corporation, which received the GAP funds directly from the GAP provider, argues that it is entitled to keep those funds.

Debtor’s Liability from Judgment for Taking Son’s Inheritance was Partially a “Consumer” Debt for §707 Analysis

This matter presents what would appear to be a relatively simple question—i.e., what qualifies as a “consumer debt” under the U.S. Bankruptcy Code.  But appearances can be deceiving. The Code defines a consumer debt as one incurred for a personal, family, or household purpose.

Trustee Who Hired Herself as Attorney had Attorneys Fees Slashed since Trustee’s Ordinary Duties are routinely Performed by a Chapter 7 Trustee Without the Assistance of Counsel

Trustee was appointed as the Chapter 7 Trustee in this reopened case and hired herself as an attorney. Before the Court is her First and Final Fee Application for Attorney Fees (the “Application”) requesting $6,270.00 for attorney fees and $14.70 for expenses.

Debtor’s Counsel Fee Request Reduced by Court Where Adversary Proceeding was Not Required and Lawyer and Paralegal Both Billed at Same Hourly Rate

The Debtors, by counsel, filed a voluntary Chapter 7 petition on May 18, 2017 at which time the automatic stay of 11 U.S.C. §362(a) went into effect. A motion to quash garnishment was filed the next day, on May 19, 2017, against Wellmont, which apparently had a judgment against the Plaintiff. An order to quash the garnishment was entered by this Court on May 22, 2017. 

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

The Plaintiff/debtor brings this adversary proceeding against Defendants (PPR and DE III), alleging they sought to coerce the Plaintiff into paying her discharged loan in violation of the discharge injunction of 11 U.S.C. §524(a). The parties filed cross-motions for summary judgment on liability.

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.

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 […]