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April 14, 2014
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Hey to all the NACBA folks! CONGRATULATIONS for another great annual conference. New York City is always the best. Welcome new Academy members. The Academy specifically thanks Rothschild & Ausbrooks and The Law Offices of James Flexer (both of Nashville, TN) for their generous sponsorship of the Academy’s attendance.
Critical Case Comment
“Replacement value” standard of § 506(a)(2) applies when a Chapter 13 debtor surrenders a vehicle under § 1325(a)(5)(C).
Post-Petition Causes of Action, Inheritances and Windfalls are Property of the Estate and Must Be Reported to the Trustee – Part 2 of 6
Part 2 of Judge Gustafson’s “Windfalls” outline looks at The Duty to Disclose Post-Petition Causes of Action
*On Tuesday, April 8th, ‘our’ Trustee Gustafson took the oath becoming a United States Bankruptcy Judge for the Northern District of Ohio. CONGRATULATIONS Judge! John served as the Chapter 13 Trustee for 7 years. Mr. Gustafson is a prolific author and avid outdoorsman.
From the Editor’s Desk – Two Issues: Reopening Cases and Fair Debt Collection Practices Act
This week, Judge Brown looks at two separate issues:
- Reopening Cases – Appeal of denial of reopening dismissed for lack of standing.
- Fair Debt Collection Practices Act – FDCPA claim may arise from communication to debtor.
Sanctions and Irony and Fraud, Oh My!
We’re From the Government and We’re Here to Help (Not password protected)
MORTGAGE MORASS (Not password protected)
Fannie Mae Cuts Ties With Two Top Denver Foreclosure Law Firms (You may have to sign up for free membership to read this article.)
MILITARY MATTERS (Not password protected)
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April 7, 2014
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Post-Petition Causes of Action, Inheritances and Windfalls are Property of the Estate and Must Be Reported to the Trustee – Part 1 of 6
Enjoy Part 1 of Trustee Gustafson’s latest outline. His look at post-petition causes of action, inheritances and windfalls begins with a section called: Property Acquired After The Filing of The Chapter 13 Case: The Different Approaches.
From the Editor’s Desk – Dismissal and Conversion
This week, Judge Brown focuses on Attorney Fees and Issues:
- Out of state firm, and local counsel, representing debtors failed to provide adequate representation.
- Plan paying debtor’s attorney before mortgage not confirmable.
Supreme Court Denies Certiorari in Sinkfield – Chpt 7 lien strip case (Not password protected)
The Hottest Item From Last Week . . . In case you missed it.
May Trustees Who Happen To Be Lawyers Communicate Directly With Debtors?
From time to time the question arises as to whether a bankruptcy trustee, who happens to also be a lawyer, is ethically prohibited from directly communicating with debtors regarding issues in their bankruptcy. Trustee Sensenich adds this ‘go-to’ answer to the Academy’s Toolbox.
We’re From the Government and We’re Here to Help (Not password protected)
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
Although regionally specific, of interest to other regions . . .What New Bankruptcy Numbers Mean For The Region
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March 31, 2014
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May Trustees Who Happen To Be Lawyers Communicate Directly With Debtors?
From time to time the question arises as to whether a bankruptcy trustee, who happens to also be a lawyer, is ethically prohibited from directly communicating with debtors regarding issues in their bankruptcy. Trustee Sensenich adds this ‘go-to’ answer to the Academy’s Toolbox.
From the Editor’s Desk – Dismissal and Conversion
This week, Judge Brown focuses on Dismissal and Conversion:
- Failure to disclose personal injury lawsuits grounds for conversion.
- Failure to file required documents and tax returns supported dismissal.
- Credit counseling received on date of petition was timely and dismissal denied.
Bankruptcy Judge Appointed To Second Term (Not password protected)
U.S. Bankruptcy Judge Marilyn Shea-Stonum To Retire (Not password protected)
We’re From the Government and We’re Here to Help
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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March 24, 2014
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Shout out to the SBLI attendees in Hot’lanta. As usual, it was a great conference. Welcome New Members: Rex Yancey (Lynchburg, VA); Galen Pierce (Murfreesboro, TN); Orson Woodall (Valdosta, GA); and Marc Levy (Louisville, KY)
In re Rogers and the Discharge of In Personam Liability on Long Term Debts: Why the Conventional Wisdom is Right
“Looking just to the plain language of Sections 1322(b)(5) and 1328, and throwing out pre-conceived notions of what is permitted, it looks like the Rogers court got this right.”
Protecting Trustees From Liability – Part V of V
Trustee Gustafson’s outline on the protection of trustees concludes with miscellaneous, rarities and exceptions – from the Noerr-Pennington Doctrine to privity defenses for staff attorneys. Click here for Part V . . .Click here for Part I. . .
Click here for Part II . . .
Click here for Part III . . .
Click here for Part IV . . .
Click here for Part II . . .
Click here for Part III . . .
Click here for Part IV . . .
From the Editor’s Desk – Property of Estate and Exemptions
This week, Judge Brown focuses on Property of Estate and Exemptions:
- Profit-sharing plan was not exempt.
- Section 1306(a) extends timeline for inclusion in properly of estate.
- Section 522(o) applied to lien.
Chapter 13 Under The Bankruptcy Act And Chandler Amendments
In 2009, Attorney Goering wrote a historical perspective on Chapter 13. It is just as interesting today as it was then. Click here for a look at the origins of the Bankruptcy Code.
We’re From the Government and We’re Here to Help (Not password protected)
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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March 17, 2014
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Ask Ms. Ps & Qs
“All of us know that emails are discoverable under most circumstances, and yet, you’d be surprised by how many lawyers (and, yes, law professors) put the most damning things in emails.”At some point in their career, you can be certain that each of the indicted Dewey & LeBeouf attorneys said, ‘Oh, I’ll never make that mistake’ but they did. Click here for Ms. Ps & Qs’ March article on ethics and sound decision making.
Protecting Trustees From Liability – Part IV of V
Part 4 of Trustee Gustafson’s outline looks at situations where trustees may lack the legal protections they normally enjoy. Click here for Part IV . . .
From the Editor’s Desk – Avoidance Actions
This week, Judge Brown focuses on Avoidance Actions:
- Trustee may avoid entire charitable contribution, if it exceeds 15% of gross annual income.
- Chapter 13 debtor lacked derivative standing.
- Trustees had constructive record notice of mortgages.
- Trustee could defensively assert avoidance power after expiration of statutory time to file complaint.
Are You Correctly Classifying Workers as Independent Contractors?
“It is very important for a company to know whether its workers are employees or independent contractors.” This article could apply to you as a small business owner or to your clients.
We’re From the Government and We’re Here to Help
- For your clients: Free Tax Help for Military Families
- For you: IRS Encourages Small Employers to Check Out Small Business Health Care Tax Credit: With business tax-filing deadlines fast approaching, the IRS encourages small employers that provide health insurance coverage to their employees to check out the small business health care tax credit and then claim it if they qualify.
In case you missed it…Critical Case Comment
In re Knorr. Child care expenses may only be permitted as reasonable and necessary expenses if they are necessary to provide for a taxpayer’s health and welfare or the production of income; court can permit debtor a year to come into compliance with the IRM’s obligation to trim unnecessary expenses.
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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March 10, 2014
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SUPREME COURT CORNER (Not password protected)
Surcharge of Exemption Violated § 522(k)
Although a Chapter 7 case, the holding and reasoning of the Court is important for Chapter 13 cases . . . opinion contains significant reminders about the limits of the bankruptcy court’s authority, as well as lessons about how the bad result might be avoided in future cases.
Florida Bankruptcy Courts Mortgage Modification Summit
Exciting things are happening in the mortgage modification mediation arena. February brought a first-ever statewide summit. Florida is setting precedents and having great success mediating mortgage modifications through the bankruptcy courts. We should all take note. Click here for more . . .
If you haven’t already, mark your calendar NOW to attend the NACTT annual conference in Chicago July 17-19. We have a very special session planned on making mortgage modification mediation work in your district. See you in Chicago!
Protecting Trustees From Liability – Part III of V
Part 3 of Trustee Gustafson’s outstanding outline on the legal doctrines that protect bankruptcy trustees. This week’s installment looks at the legal defense which provides the primary protection that all bankruptcy trustees rely upon in doing their jobs: Quasi-Judicial Immunity. Click here for Part III . . .
From the Editor’s Desk – Claims
This week, Judge Brown focuses on 3 cases involving claims issues:
- Chapter 7 debtor lacked standing to appeal from order finding no standing to seek claim disallowance
- Interest rate on tax lien certificate determined under state law
- Attorney fees for debtor’s children qualified as domestic support obligation
We’re From the Government and We’re Here to Help
In case you missed it last week . . . Critical Case Comment – Copeland
How does a case about late filed tax returns have an impact on student loan debts? Click here for a ‘must read’ from Trustee Anderson. Copeland v. Fink (In re Moore) has a lot to say.
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
A popular link, in case you missed it last week . . . 8th Circuit BAP Reaffirms It Is Not The Forum For Debtors In Pending Bankruptcy Cases To Take Second Bite At The Apple
A great handout for your clients, plus great advice for everyone . . . 13 Foods You Must Eat If You Want to Be Healthy on a Budget
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March 3, 2014
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A Texas Sized Shout Out to the TexasBarCLE Advanced Consumer Bankruptcy Course in Houston
This was the Academy’s first time at this conference. Thank you Eddie Rodriguez for the invitation. 
The panelists were the cream of the crop and the attendees were delightfully interesting and interested. A bonus, and highlight, was a reception for The Honorable Richard S. Schmidt for 26-1/2 years on the bench! Congratulations Judge Schmidt.
The panelists were the cream of the crop and the attendees were delightfully interesting and interested. A bonus, and highlight, was a reception for The Honorable Richard S. Schmidt for 26-1/2 years on the bench! Congratulations Judge Schmidt.Regina Sanchez
won a one-year free membership to the Academy. Congratulations!! Ms. Sanchez practices in Houston, Texas, as an associate with Swindell & Associates, P.C., where she specializes in bankruptcy matters for consumer cases.
Welcome new Texas members!
Critical Case Comment
How does a case about late filed tax returns have an impact on student loan debts? Click here for a ‘must read’ from Trustee Anderson. Copeland v. Fink (In re Moore) has a lot to say.
Protecting Trustees From Liability – Part II of V
The continuation of Trustee Gustafson’s outstanding outline on the Barton Doctrine. This week’s installation covers: How To Use The Barton Doctrine To Defend A Trustee and When The Plaintiff Actually Seeks Leave Of The Bankruptcy Court To Sue.
Grandfather of Empirical Legal Studies Dies
From the Editor’s Desk – Postconfirmation Modification
This week, Judge Brown focuses on two cases involving postconfirmation modification:
- Decline in value did not permit modification and stripping of junior lien
- No categorical bar to postconfirmation surrender and reclassification, but lack of good faith prevented modification.
Ya Gotta Get This App
DkT — Access PACER Via iPad or iPhone (Not password protected)
PACER lets you select a mobile option but the experience isn’t ideal – can’t save username, password, difficult to enter case numbers, and the cost – oy vey. Matthew Zorn, an attorney at a large New York law firm, decided to do something about that. He wrote a useful and beautifully designed app that he calls DkT – free and can access PACER for federal appellate, district and bankruptcy courts. DkT (pronounced Docket) allows split screen view and batch downloading.
Sanctions and Irony and Fraud, Oh My!
A popular item you may have missed last week, plus a new article on same topic:
This Could Be The Reason Filings Are Down . . . For Now. (Not password protected)
- New Fed Report Shows Americans Taking on Debt at Scary High Rates – Time Business & Money Article
- New York Fed Report Shows Households Adding Debt – Press Release
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
Celebrity Buzz: Mel Gibson’s Baby Mama Oksana Grigorieva Is Broke and Oksana Grigorieva – “I’ve got $10 to my name”
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February 24, 2014
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If you haven’t already purchased Turbo Tax, utilize the Academy’s Amazon link (right). 
Protecting Trustees From Liability – Part I of V
“The policy behind the Barton Doctrine has been described in various ways. Most simply, the Barton Doctrine allows bankruptcy courts to retain greater control over administration of the estate.” Click here for Part I.
Critical Case Comment
In re Knorr: Child care expenses may only be permitted as reasonable and necessary expenses if they are necessary to provide for a taxpayer’s health and welfare or the production of income; court can permit debtor a year to come into compliance with the IRM’s obligation to trim unnecessary expenses.
From the Editor’s Desk – Classification
Judge Brown looks at one case in which separate classification of student loan debt did not unfairly discriminate.
This Could Be The Reason Filings Are Down . . . For Now.
- New Fed Report Shows Americans Taking on Debt at Scary High Rates – Time Business & Money Article
- New York Fed Report Shows Households Adding Debt – Press Release
- Household Debt and Credit Report – Study
THE NEXT BIG THING (Not password protected)
Warren Takes Oath (Not password protected)
IRS Tax Help ‘en Español’
IRS offers many free and easy-to-use products for taxpayers who speak Spanish. Get answers 24/7 at IRS.gov/espanol which has a wealth of tax information for individuals and businesses. You can check the status of your tax refund through the online tool “¿Dónde está mi reembolso?” Use the Asistente EITC tool to check if you qualify for the Earned Income Tax Credit. The credit is available to many people who earned less than $51,567 in 2013.
In Case You Missed It . . .
Rules of Statutory Re-Construction: BAPCPA and the Supreme Court’s Refinement of the “Plain Meaning” Doctrine
This article explores the ways in which the Supreme Court Justices have used bankruptcy cases as a battleground for fighting out philosophical differences. Bankruptcy courts and practitioners have struggled with how to apply the Lanning and Ransom cases, in particular. Judge Huennekens’ nuanced explanation of these cases should be of great interest to Academy’s members. Though this was written in 2011, it remains timely as we all hold our breath and await the Supreme Court’s next pronouncement on bankruptcy in Executive Benefits Insurance Agency, Inc. v. Arkison.MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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February 17, 2014
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Ask Ms. Ps & Qs
“Let’s talk a little bit about persuasive arguments. . . . With respect to the appearance of impropriety issue, the Court bench-slapped . . . attorney . . .” Click here for more. . .Have a question for Ms. Ps & Qs? Click here (You may remain anonymous if you prefer.)
Predictions on Bellingham – An Eyewitness Account
“I attended oral argument a few weeks ago at the Supreme Court . . . . We got to see Law v. Siegel and . . . EBIA v. Arkinson (In re Bellingham Insurance Agency, Inc.). We sat in the second row where I could almost reach up and shake hands with Justice Sonia Sotomayor.”From the Editor’s Desk – Property of Estate and Exemptions
Judge Brown looks at 2 cases under the category: Property of Estate and Exemptions
- Chapter 7 trustee’s authority to sell residence
- Determination of when causes of action become property of estate
Business Aids
See also, Terminating An Employee (Password removed for 1 week only.)
Webinar: Practical Considerations in Bankruptcy Appeals
Over 200 of you participated in this outstanding webinar! The Honorable Paul Bonapfel, and The Honorable Stanley Birch (retired), along with practitioners Lisa Ritchey-Craig and Michael Holbein treated listeners to a rare, inside look, at the appeals process, rules for oral argument, what a judge looks for in a brief and much, much more.If you are an Academy member and you missed it, click here. Not a member? Either join the Academy or download the pay per view option.
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
Wife of Tennessee Lawyer Dies Two Days After Package Bomb Explodes and Son-In-Law Charged in Fatal Tennessee Bombing
Many of you are Adjunct Professors . . . this is for you: Higher Education Alert: Are Unions Targeting Adjunct Faculty?
Insolvency + Tax Season = Good News? . . . the “income” from cancellation of debt (e.g., from a mortgage modification) is often NOT taxable to the debtor.
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February 10, 2014
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Rules of Statutory Re-Construction: BAPCPA and the Supreme Court’s Refinement of the “Plain Meaning” Doctrine
This article explores the ways in which the Supreme Court Justices have used bankruptcy cases as a battleground for fighting out philosophical differences. Bankruptcy courts and practitioners have struggled with how to apply, in particular, Lanning and Ransom. Judge Huennekens’ nuanced explanation of these cases should be of great interest to Academy’s members. Though this was written in 2011, it remains timely as we all hold our breath and await the Supreme Court’s next pronouncement on bankruptcy in Executive Benefits Insurance Agency, Inc. v. Arkison.
Easily Available Electronic Information (EAEI) and Ethics – Part II of II
The conclusion to Judge Waldron’s original article.Click here for Part I . . .
From the Editor’s Desk – Automatic Stay
Judge Brown looks at 3 cases regarding the automatic stay.
Webinar: Practical Considerations in Bankruptcy Appeals
Over 200 of you participated in this outstanding webinar! The Honorable Paul Bonapfel, and The Honorable Stanley Birch (retired), along with practitioners Lisa Ritchey-Craig and Michael Holbein treated listeners to a rare, inside look, at the appeals process, rules for oral argument, what a judge looks for in a brief and much, much more.If you are an Academy member and you missed it, click here. Not a member? Either join the Academy or download the pay per view option.
CONGRATULATIONS MARGOT PICKERING – Attorney Pickering won the free copy of Chapter 13: Practice and Procedure by Drake, Bonapfel & Goodman * A $290 value courtesy of Thomson Reuters*Ms. Pickering is a recent graduate of Kansas University Law School and practices with the Pickering Law Firm where her emphasis is assisting in corporate disputes litigation. In additional to working at Pickering Law Firm, Margot is an attorney at Gary E. Hinck P.A. in Topeka, KS, where she assists individual consumers and small businesses prepare for filing Chapter 7, 11, and 13 bankruptcies.
MORTGAGE MORASS (Not password protected)
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February 3, 2014
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Easily Available Electronic Information (EAEI) and Ethics – Part I of II
The Academy is pleased to publish an original article by the Academy’s inaugural Editor and Advisor, the Honorable Thomas F. Waldron.“. . . the ease and efficiency of EAEI . . . increases, rather than decreases, the opportunities for violations of various provisions of the Code of Professional Conduct by incompetent, indifferent or merely negligent attorneys and requires constant vigilance even by competent, concerned and attentive attorneys to assure that all aspects of bankruptcy practice are consistent with applicable legal and ethical requirements.”
The Debt and the Lien: Two Completely Different Problems
From the Bankruptcy Law Network, Attorney Jacobs gives debtor attorneys an excellent hand-out for clients with a mortgage. (Not password protected.)
From the Editor’s Desk – Jurisdiction and Authority of Bankruptcy Court
“Bankruptcy court had constitutional authority to determine fees but lacked authority to enter final judgment on debtor’s counterclaim under Deceptive Trade Practices Act.”
Sanctions and Irony and Fraud, Oh My!
- Sycamore Attorney’s Law License Suspended
- CFPB Takes Action Against PHH Corporation For Mortgage Insurance Kickbacks – Bureau Seeking Injunction, Restitution, and Penalties For Long-Lasting Scheme
Hottest Item From Last Week
Post-Marrama: Allowing Chapter 13 Trustees to Unwind a Debtor’s Conversion to Chapter 7
“For Chapter 13 trustees, the “notice conversion” permitted under Bankruptcy Rule 1017(f) can be frustrating. . . . Since Marrama was handed down, at least two circuit courts have dealt with its impact on application of § 1307(b), …”Another excellent case dissection from Attorney Cumings. Click here . . .
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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January 27, 2014
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Critical Case Comment
Carroll v. Logan: A post-petition inheritance received by a Chapter 13 debtor more than 180-days after the filing of the petition constitutes property of the estate and can be committed to fund a modified Chapter 13 plan.See also: When Chapter 13 Debtors Receive Windfalls
Post-Marrama: Allowing Chapter 13 Trustees to Unwind a Debtor’s Conversion to Chapter 7
“For Chapter 13 trustees, the “notice conversion” permitted under Bankruptcy Rule 1017(f) can be frustrating. . . . Since Marrama was handed down, at least two circuit courts have dealt with its impact on application of § 1307(b), …”Another excellent case dissection from Attorney Cumings. Click here . . .
From the Editor’s Desk – Attorney Fees and Issues
This week, Judge Brown looks at 2 cases involving attorney fees:
- Requiring attorney to return properties to estate not sustained under § 329
- Postpetition retainer and out-of-court settlement improper
From the NCLC: Tax-Time Consumer Troubles
Click here to read this very informative report from the National Consumer Law Center . . . “A free or inexpensive alternative for low-income taxpayers are free tax preparation sites, including VITA sites . . . and AARP . . .”
IN THE NEWS (Not password protected)
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January 20, 2014
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When Silence Does Not Equal Consent: Implied Consent, Espinosa, and the Chapter 13 Trustee
Attorney Lamos adds another excellent ‘definition’ piece to the Academy’s growing Toolbox. “Section 1325(a)(5)(A) of the Bankruptcy Code states that a plan shall be confirmed if, among many other conditions, the secured creditors have “accepted” the plan. But how does a secured creditor “accept” a plan?”See also: Critical Case Comment – United Student Aid Funds, Inc. v. Espinosa
Weeding Out Marijuana From Bankruptcy Proceedings: The Intersection Between State Laws Legalizing Marijuana and Federal Bankruptcy Law
The Academy first published this article back in September. With January 1 bringing legalized marijuana use in Colorado, we felt it prudent to re-run. Although the case law is miniscule, Attorney Cumings addresses this state vs. federal issue.If you have anecdotal or case law experience in this arena, the Academy would like to hear from you. Please send comments to MemberAccounts@ConsiderChapter13.org or leave your comments in the ‘Comments’ section at the end of the article.
From the Editor’s Desk – Fair Debt Collection Practices Act
From the Editor’s Desk is back. This week Judge Brown focuses on a case showing that an FDCPA claim may arise from communication to debtor.
Sanctions and Irony and Fraud, Oh My!
(NOT password protected.)
MORTGAGE MORASS (Not password protected)
Article: Fannie Mae, Freddie Mac May Be Too Profitable To Shut Down – Obama and some in Congress want to close the bailed-out mortgage finance giants, but their huge dividend checks to the U.S. are complicating the effort.
IN THE NEWS (Not password protected)
Bankruptcy Homestead Exemption Did Not Apply To Deceased Father’s House – Under a Chapter 7 bankruptcy filing, homestead exemptions exist which may protect a filer’s home, although there are limits to the amount protected.
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January 13, 2014
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Ask Ms. Ps & Qs
“I should have waited for a scary tale until right before Halloween, but this case just came out, and you should know about it.” A must-read from Ms. Ps & Qs . . . local rules are RULES . . . not suggestions.Have a question for Ms. Ps & Qs? Click here (You may remain anonymous.)
Quick Reference Guide to Selling Property in Chapter 13
During the course of a chapter 13, it is not unusual for a debtor to sell property. Perhaps the debtor is relocating or maybe the debtor has an old car with no liens that s/he wants to sell to a family member. Can the chapter 13 debtor sell property? Who needs to get notice of the proposed sale? Is an order of the Bankruptcy Court required?Check out the “Quick Reference Guide to Selling Property While in Chapter 13,” which is housed in The Toolbox/Debtor Attorney. This Guide gives practitioners a quick overview of the requirements, summarizes all relevant statutes and rules, and includes a few sample forms.
Should We Be Playing It Close To The Vest?
A pair of recent bankruptcy decisions make strange bedfellows, while still managing to cause bankruptcy attorneys some sleepless nights. But what do the Sixth Circuit’s decision in Kimberlin, and the Rosa decision out of Hawaii have in common?
This Week at the CFPB
In Case You Missed It Last Week . . . We’re there . . . “The CFPB issued the 2013 RESPA and TILA Final Rules in January 2013 and they take effect on January 10, 2014.“ In addition to the Academy’s archived webinar Oy Vey, More Rule Changes: The CFPB and Regulations X & Z, the Consumer Financial Protection Bureau offers assistance in weeding through this voluminous material. Click here for a table of all the mortgage rules. Note that within this table are links to short summary videos which you may find informative.
. . . And note your calendar for a special session on this topic at the NACTT Annual Conference in Chicago . . . July 17-19.
New: From the NCLC Regarding CFPB
Sanctions and Irony and Fraud, Oh My!
Stern Disbarred:
4TH Circuit to Beneficiaries in Chapter 13: Pay Up
FOLLOW-UP . . . While we generally do not run an article 3 weeks in a row, Mr. Leffler has included follow-up in answering the question: “How do the vesting provisions of 1327(b) impact this issue.” Click here and scroll to the bottom of the article for the latest info.
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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January 6, 2014
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The Affordable Care Act: Effects on Small Business
“What else do you need to know? Be sure to read your plan document thoroughly, especially the subrogation and indemnification clauses.” Ms. Waters’ article offers much needed insight and advice for choosing an insurance plan under Obamacare.
Flexible Spending Account Options
Another insurance option for small businesses is Flexible Spending. Click here for more information on this option.
Practice Pointers for Lawyers
Although written for practitioners in his court, Judge Williamson proposes excellent practice pointers for attorneys nationwide. (This item is not password protected.)
This Week at the CFPB
We’re there . . . January 10th is right around the corner . . . “The CFPB issued the
2013 RESPA and TILA Final Rules in January 2013 and they take effect on January 10, 2014.“ In addition to the Academy’s archived webinar Oy Vey, More Rule Changes: The CFPB and Regulations X & Z, the Consumer Financial Protection Bureau offers assistance in weeding through this voluminous material. Click here for a table of all the mortgage rules. Note that within this table are links to short summary videos which you may find informative.. . . And note your calendar for a special session on this topic at the NACTT Annual Conference in Chicago . . . July 17-19.
2013 RESPA and TILA Final Rules in January 2013 and they take effect on January 10, 2014.“ In addition to the Academy’s archived webinar Oy Vey, More Rule Changes: The CFPB and Regulations X & Z, the Consumer Financial Protection Bureau offers assistance in weeding through this voluminous material. Click here for a table of all the mortgage rules. Note that within this table are links to short summary videos which you may find informative.. . . And note your calendar for a special session on this topic at the NACTT Annual Conference in Chicago . . . July 17-19.
Sanctions and Irony and Fraud, Oh My!
FFIEC Social Media Guidelines
FFIEC published Guidance to address the applicability of federal consumer protection and compliance laws, regulations, and policies to activities conducted via social media by banks, savings associations, and credit unions, as well as by nonbank entities supervised by the CFPB.
MORTGAGE MORASS (Not password protected)
Prosecutors want BofA to pay $864 million over a program called ‘The Hustle’ – The bank already has shouldered about $50 billion in losses, settlements and other costs related to its Countrywide purchase
IN THE NEWS (Not password protected)
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December 30, 2013
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4TH Circuit to Beneficiaries in Chapter 13: Pay Up
The 4th Circuit Court of Appeals recently provided answers to many questions regarding windfalls in Carroll v. Logan. Click here for the latest info.
The Mortgage-Follows-the-Note Rule – Part IV of IV
In the conclusion of this four part series, Staff Attorney Davis gets into the real ‘meat’ of separation of notes and mortgages – MERS, ramifications, and potential ramifications.
Click here for Part I
Click here for Part II
Click here for Part III
Click here for Part I
Click here for Part II
Click here for Part III
This Week at the CFPB
- CFPB And Dept. of Justice Order Ally To Pay $80 Million To Consumers Harmed By Discriminatory Auto Loan Pricing – Ally to Pay Additional $18 Million in Civil Penalties for Harming More Than 235,000 Minority Borrowers
- CFPB, State Authorities Order Ocwen To Provide $2 Billion In Relief To Homeowners For Servicing Wrongs – Largest Nonbank Servicer Will Also Refund $125 Million to Foreclosure Victims and Adhere to Significant New Homeowner
- Article: Ocwen Settles For $2.1 B
- Article: New Mortgage Rules Not Too Restrictive
Sanctions and Irony and Fraud, Oh My!
- Old Republic National Title Ins. Co. v. Levasseur – On Appeal, U.S. District Court Judge Douglas Woodlock (Massachusetts) affirmed the Bankruptcy Court’s order that pre-petition judgment was not dischargeable due to false pretenses, fraud, or willful and malicious behavior.
From the NCLC (Not password protected)
- Consumer Advocates Urge Senate to Extend Mortgage Forgiveness Tax Relief Act – Passage Would Ensure that Homeowner Mortgage Forgiveness Is Not Taxed As Income
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
In the, Hmm Department: Bank of America: Sorry About the Foreclosure. Here, Have an Applebee’s Gift Card on Us.
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December 23, 2013
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Critical Case Comment
After a brief absence, Hildebrand is back with a very important Critical Case Comment . . . In re Rogers – Mortgage obligation treated in a debtors’ plan as current and paid directly by the debtors is nonetheless discharged pursuant to 11 U.S.C. 1328(a) and mortgage creditor cannot pursue deficiency. Click here to see what this case means to debtors, creditors, trustees.
Post Confirmation Issues In Chapter 13 Cases
(Used with permission. Originally prepared for State Bar of Texas Advanced Consumer Bankruptcy Seminar)
Attorney Rodriguez outlines duties and responsibilities of debtor and debtor’s counsel after the case is confirmed. “Don’t fall asleep at the wheel of your chapter 13 cases.”
The Mortgage-Follows-the-Note Rule – Part III of IV
Part three of four in a series by Staff Attorney Davis offers a brief look at the limitations on the mortgage-follows-the-note rule from state real property law.Click here for Part IClick here for Part II
This Week at the CFPB
- CFPB SUES CASHCALL FOR ILLEGAL ONLINE LOAN SERVICING – Bureau’s First Online Lending Action Seeks Refund of Illegally Collected Money
- CFPB CALLS ON FINANCIAL INSTITUTIONS TO PUBLICLY DISCLOSE CAMPUS FINANCIAL AGREEMENTS – Bureau Finds a Continued Decline in College Credit Card Agreements
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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December 16, 2013
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Ask Ms. Ps & Qs
Essentially, 2013 is gone. In this month’s article, Ms. Ps & Qs points us toward 10 excellent new year’s resolutions. From technology to bullies, Ms. Ps & Qs has her finger on the pulse of the everyday lawyer. Click here for her great tips for 2014.
The Mortgage-Follows-the-Note Rule – Part II of IV
Part two of a four part series by Staff Attorney Davis concentrates on applying the mortgage-follows-the-note rule in light of the distinction between ownership and entitlement to enforce notes.Click here for Part I
DSOs Anyone?
An interesting issue was presented to the US Bankruptcy Court for the Southern District of Texas which changes the way Chapter 13 plans are proposed when it comes to DSOs.This item also adds a brief to the Academy’s ever growing Brief Bank. Click here for Debtor’s Memorandum of Law in Support of Plan Confirmation.
This Week at the CFPB
- CFPB Orders GE CareCredit To Refund $34.1 Million For Deceptive Health-Care Credit Card Enrollment – More than 1 Million Consumers Were Potential Victims of Misleading Practices
- CFPB To Oversee Nonbank Student Loan Servicers – Rule Brings New Oversight to Rapidly Growing Market Affecting Tens of Millions of Consumers
From the IRS
All Legal Same-Sex Marriages Will Be Recognized For Federal Tax Purposes – Legally-married same-sex couples generally must file their 2013 federal income tax return using either the married filing jointly or married filing separately filing status.
Executive Benefits Insurance Agency v. Arkison
A report analyzing one of the issues before the Supreme Court: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? By Elizabeth Gibson (University of North Carolina at Chapel Hill – School of Law) and Jonathan M. Landers (Scarola Malone & Zubatov LLP) (This item is not password protected.)
Latest Webinar Recording Now Available – Saving Homes and Stripping Liens: Recent Exemption Developments
Academy Editor & Advisor William Houston Brown and his writing and law partner, Certified Bankruptcy Specialist Lawrence R. Ahern III do an outstanding job catching listeners up on the latest in exemptions.All webinars are archived for free viewing or re-viewing by Academy members. Not a member? Each webinar is offered via pay-per-view for the low price of $19.99MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
STATISTICS (Not password protected)
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December 9, 2013
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Archives |
The Mortgage-Follows-the-Note Rule – Part I of IV
In this, the first of a four part series, Attorney Davis concentrates on the Common Law and Article 9 aspects of this all-important, controversial topic.
The 3-3-3 Rule
Although written in a light-hearted style, Judge Williamson provides stellar guidance for attorneys. “Avoid Legalese. Plain language is easier to understand. As Justice Scalia once said, ‘A good test is, if you use the word at a cocktail party, will people look at you funny?’”
Mortgage Servicing Abuses – Max’s Nifty Fifty
Although known to most of you, Max Gardner is new as an Academy contributor. This is the author’s, a debtor practitioner, checklist of potential issues to investigate.
Sanctions and Irony and Fraud, Oh My!
- Foreclosure Lawyer Babcock Suspended From Practicing In U.S. District Court
- Bank Of America Sanctioned After Violating Bankruptcy Court Order
- Servicing company blamed for threatening to foreclose home seeks removal
- Bankruptcy Judge Bans St. Louis Attorney From E-Filing – Privileges For Practice To Be Restored On Payment Of $35K In Sanctions
Saving Homes and Stripping Liens: Recent Exemption Developments
(Prepared to accompany webinar)
Although prepared as a handout for the webinar, this article also stands alone and serves as a tremendous ‘cheat sheet.’
Latest Webinar Recording Now Available – Saving Homes and Stripping Liens: Recent Exemption Developments
Academy Editor & Advisor William Houston Brown and his writing and law partner, Certified Bankruptcy Specialist Lawrence R. Ahern III do an outstanding job catching listeners up on the latest in exemptions.All webinars are archived for free viewing or re-viewing by Academy members. Not a member? Each webinar is offered via pay-per-view for the low price of $19.99MORTGAGE MORASS (Not password protected)
Article: FHA Changes May Aid Those Who Lost Homes – FHA has shortened mandatory waiting periods for FHA-insured mortgage loans for those who have undergone foreclosure, deed-in-lieu, taken a short sale or declared bankruptcy during the economic recession.
Article: A Key to Housing Recovery? Out-Of-Court Foreclosures – Home real-estate markets have bounced back significantly faster in states where the law allows foreclosures to move ahead quickly, putting houses into new owners’ hands sooner.
IN THE NEWS (Not password protected)
As Hospital Prices Soar, a Stitch Tops $500 – An eye-opening look at hospital charges.
STATISTICS (Not password protected)
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December 2, 2013
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Archives |
Greatest Hits
A few times a year, the Academy publishes Greatest Hits – articles that garnered a lot of attention. Below are just a few of the best of the best articles from the past eight months. Enjoy!
A Modest Proposal for the Care & Fee’ding of Debtor’s Counsel
“I have a good idea how the case will go just by knowing who is representing the debtor.”
Critical Case Comment (not password protected)
As a Thanksgiving treat to our non-members, this Critical Case Comment is NOT Password protected. Enjoy and see a sample benefit of membership.In re Rosa. Assuming adequate notice, a Chapter 13 plan may propose to both surrender real property to a mortgage holder and vest title of the property in that mortgage holder for the purpose of cutting off any future personal liability of the debtor for homeowners association fees.
Ninth Circuit Overturns Kagenveama
An en banc panel of the Ninth Circuit Appellate Court overturned Maney v. Kagenveama in Danielson v Flores (In re Flores).
Cases That Caught My Eye
Proving again that sequels stink, Cases That Caught My Eye is back with even worse jokes and more than your recommended daily allowance of shamelessly bad puns.
Strong Arm Powers – The National League Chapter 13 Trustees vs. The American League Chapter 13 Debtors
Trustee Jan Hamilton (of Hamilton v. Lanning fame) brings us a delightful yet instructive piece using a baseball metaphor you won’t soon forget. As a gift to non-members, this article is NOT password protected, giving non-Academy members a glimpse of what you are missing. Join Now.
Mort Ranta and the Threshold Question of Jurisdiction: An Appealing Holding on Appellate Review
More from Mort Ranta. In its multi-faceted decision, the Court made a ruling regarding the debtor’s ability to appeal the bankruptcy court’s order denying confirmation of the plan creating a circuit split. Bankruptcy expert Mark Leffler explains this aspect of Mort Ranta.
See also: Critical Case Comment by Henry E. Hildebrand, III
See also: Critical Case Comment by Henry E. Hildebrand, III
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November 25, 2013
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Critical Case Comment – 4th Circuit Limits Lien Stripping
Alvarez v. HSBC Bank USA. When spouses own real property as tenants by the entirety, the bankruptcy filing of one spouse does not sever the unity of the tenancy, and the interest of the non-filing spouse does not become property of the estate. Therefore, the bankruptcy court is without jurisdiction to modify a lienholder’s rights as to the non-debtor’s interest in the real property.
From the Editor’s Desk – Discharge Reprise
On November 11th, Judge Brown wrote about In re Rogers wherein a claim for personal liability for post-discharge deficiency was discharged. What started out as a brief comment to Judge Brown’s synopsis, turned into a detailed article. Click here for Trustee Gustafson’s thoughts. Hint: Beware the typo in the opinion.
Cash Collateral, the Hanging Paragraph, and Trustee Liability
“Assuming that Chapter 13 Debtors total their cars at the same rate as the rest of the population, each case where a vehicle is being valued through the Plan has a 2% chance of the collateral being totaled each year of the Plan.” Click here for more . . .
The Importance of Social Media in the Job Search
For Debtor Attorneys – Ever have a client in need of a job? This article is a perfect handout for individuals who may be having a difficult time landing a good-paying job. It teaches, in a non-condemning way, proper social media etiquette and more. Download now for future use.
This Week at the CFPB
- CFPB Finalizes “Know Before You Owe” Mortgage Forms – New Forms Improve Consumer Understanding, Aid Comparison Shopping, and Help Prevent Surprises
- Statement of NCLC at CFPB Hearing in Boston – CFPB’s New Mortgage Disclosure Rules Disappoint
- Could New Mortgage Rules Implementation Deadline Be Delayed?
- CFPB Takes Action Against Payday Lender For Robo-Signing – Cash America to Refund up to $14 Million for Robo-Signing and Illegally Overcharging Servicemembers
Webinar Recording Now Available
Escrow Analysis Beyond the Basics: A continuation of Demystifying Mortgage Escrow, this resource drills down beyond the basics and analyzes common problems found in deciphering escrow statements. Experts Ramona Daniels, Joel Ackerman and Denise Carlon look at case law and statutes and answer viewer questions.All webinars are archived for free viewing or re-viewing by Academy members. Not a member? Each webinar is offered via pay-per-view for the low price of $19.99
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
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November 18, 2013
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Archives |
Disposable Income and 100% Plans: A Different Perspective
Trustee Burden takes a detailed look at how a 100% plan may not be enough to satisfy the Code.
From the Editor’s Desk – Disposable Income
This week, Judge Brown looks at 3 disposable income issues: retirement plan contributions, social security income of non-filing spouse, and secured payments on second mortgage. Click here for details . . .
Outline and Forms of Chapter 13 Practice and Procedures
Nationally recognized, veteran debtor attorney Charles Maglieri shares an excellent aid, primarily for newer attorneys but useful for all, which includes:
- a master case checklist including items such as
- “Other Thorny Issues?—-Illogic of Sec. 506 Inapplicability in General”
- “Convincing the Trustee that you are right!”
- “Anticipate Need for Modification After Confirmation”
- a sample plan with multiple contingencies and options
- a form for calculating DMI
- 341 case summary checklist
- helpful definitions
- and much much more
SBA: Did You Know
Based on the definition of The Small Business Administration, many of you operate a ‘small business.’ The SBA defines a small business concern as one that is independently owned and operated, is organized for profit, and is not dominant in its field. . . . Attorneys would fall into the Services category. . . .The Small Business Administration is not only a resource for your clients but potentially a resource for you. Click here for more information.
Sanctions and Irony and Fraud, Oh My!
From The Supreme Court
(Not password protected)
- Lenders Miss Chance as U.S. High Court Housing-Bias Case Settles
- Discrimination Case Settles Credit Clips Blog Post by Alan White
MORTGAGE MORASS (Not password protected)
Blog: The Frontiers of Mortgage Servicing, Part I Posted by Katie Porter
IN THE NEWS (Not password protected)
STATISTICS (Not password protected)
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November 11, 2013
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Archives |
Ask Ms. Ps and Qs
” . . . thinking about you and your firms: do you have a social media policy in place? For all sorts of good reasons, you need to figure out what your policy should be.” Think you’ve heard it all regarding “social” media? What about “professional” media? Click here for cutting edge thoughts on various media formats.
From the Editor’s Desk – Eligibility, Best Interests Test, and Discharge
This week, Judge Brown looks at three separate issues dealt with in three separate cases. (1) Eligibility and In re Scovis; (2) Best Interests Test and In re Engle; and (3) Discharge and In re Rogers. Click here for details . . .
Maximizing Your Social Security Benefits Requires a Strategy
(Article and links are not password protected.)
Key Points to Know:
- How much are you (or your clients) leaving behind?
- Social Security Techniques – ‘Show me the money’
- Are you familiar with ‘File and Suspend’ and ‘Claim now Claim more later?
Additional Article of Interest: How Social Security Keeps Divorcées and Widows in the Dark About Their Benefits
Sanctions and Irony and Fraud, Oh My!
(The following link is NOT password protected.)
This Week at the CFPB
- CFPB Considers Debt Collection Rules – Bureau Also Releases 5,000 Debt Collection Complaints
- CFPB Takes Action Against Castle & Cooke For Steering Consumers Into Costlier Mortgages – Company to Pay $9 Million in Restitution and $4 Million in Civil Penalties
(Each week, the Academy brings readers only the actions/notices of the CFPB most important to consumer practice. For complete information see www.consumerfinance.gov)
MORTGAGE MORASS (Not password protected)
IN THE NEWS (Not password protected)
(New article on a case reported last week.) Debtors’ Inheritance Received Before Ch. 13 Case Closed Is Property of Bankruptcy Estate
STATISTICS (Not password protected)
2012 Report Shows More Repeat Bankruptcy Filers
Click here for the text of the report
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November 4, 2013
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Archives |
Terminating An Employee
Chapter 13 Trustee Jack Gooding brings members another in our series of business aids. Terminating an employee is never pleasant but it is a business decision that sometimes has to be made. Click here for a resource you will want to share with your Human Resources or Office Management.”Evaluations are a two edged sword. They can be a valuable tool, but only if you are willing to be honest and potentially hurt some feelings.”Additional Resources:
- 8 Things You Should Never Say in a Termination Meeting
- When You Fire Employees, Tell Them the Reason
- In Search of Excellence by Thomas J. Peters and Robert H. Waterman, Jr.
Perceptions, Reality, and a Debtor’s Desire to Change Venue
At first glance, this article appears to be a ‘nice little story about a pro se debtor.’ In fact, it is an excellent, serious, well written, ethical resource.”‘In matters of ethics, appearance and reality often converge as one.” After all, we have to strive to avoid the ‘appearance’ of impropriety; the ‘potential’ conflict of interest. ‘Justice must satisfy the appearance of justice.’”
From the Editor’s Desk – Conversion and Dismissal
This week, Judge Brown looks at two cases. (1) Debtor did not have absolute right to dismiss; and (2) When case dismissed prior to confirmation, trustee must return payments to debtor. Click here for details . . .
