Home

Pliler v. Stearns (In re Pliler): Joining the Sixth, Eighth, Ninth, and Eleventh Circuits, the Fourth Circuit held that above-median debtors, even with zero or negative disposable income on Form 22C, must remain in Chapter 13 for 60 months to ensure they repay creditors the maximum they can afford.

Another shout out to the NACBA folks!The Academy sponsored two drawings during the NACBA conference:

• Winner of a free Academy membership – Robert Colliersmith practices exclusively consumer bankruptcy law with his law partner and wife, Carol A. Colliersmith in Marietta, GA.
• Winner of a Starbucks gift card – Jess T. Schwidde of Glinka & Schwidde in Rutland, VT. Jess practices in various areas of the law including business and bankruptcy law, both debtor and creditor rights.

Apology: Last week, The Academy made an error in misnaming the law firm of Rothschild & Ausbrooks. Both Edgar Rothschild and Mary Beth Ausbrooks are Board Certified Specialist in Consumer Bankruptcy. Their partnership is devoted 100% to representation of debtors in consumer bankruptcy in Middle Tennessee with offices in Nashville. Mr. Rothschild was a member of NACBA prior to its inception! He has been an associate member of the NACTT since 1983. Ms. Ausbrooks has just completed her tenure on the NACBA Board of Directors and currently serves as State Chair. Each are active NACTT members as well as members and supporters of The Academy. We appreciate their sponsorship and regret our error.

Our humblest apologies to Mr. Rothschild, Ms. Ausbrooks and Ms. Salas for the error.

Part 3 of Judge Gustafson’s “Windfalls” outline continues looking at The Duty To Disclose Post-Petition Causes Of Action, specifically Consequences For The Debtor Where A Cause Of Action Is Not Disclosed.Click here for Part 1
Click here for Part 2

This week, Judge Brown looks at 3 cases pertaining to the automatic stay:

• No stay relief to pursue dischargeable claim.
• Debtor wife bound by in rem relief in husband’s prior case.
• Creditor entitled to reopen case to determine if tax sale void.

Favorite Academy author John P. Gustafson was appointed as United States Bankruptcy Judge for the Northern District of Ohio. He took the oath of office on Tuesday, April 8. John served as Chapter 13 Trustee for the Northern District of Ohio, Western Division for almost 7 years. Prior to being appointed Trustee, he served as Staff Attorney to Trustee Anthony B. DiSalle for 4 years. As regular ConsiderChapter13.org readers know, he is a prolific author. He has been an active member of the National Association of Chapter 13 Trustees and serves on the Board of Directors of The Academy. He enjoys kayaking, running, bicycling, gardening and juggling – even though he says he does none of them well. He and his wife, Annette, are school-year empty-nesters this year as their son, Matthew, completes his first year of college at Ohio State University, where he is majoring in water polo and some school stuff. CONGRATULATIONS John, um, Judge!

In February, the Academy re-published (with permission) Attorney Jacobs’ Bankruptcy Law Network article The Debt and the Lien: Two Completely Different Problems as a client hand-out. The article was so popular, we asked Mr. Jacobs to re-write, as a piece for the Academy’s Toolbox. Discharge of Debt Does Not, Necessarily, Remove Secured Lien is now a permanent resource under Definitions in The Toolbox.

• Eight Facts About Penalties for Filing and Paying Late
• What your clients may ask you: Qualifying for a Health Insurance Coverage Exemption

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.

“Replacement value” standard of § 506(a)(2) applies when a Chapter 13 debtor surrenders a vehicle under § 1325(a)(5)(C).

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.

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.

• CFPB Orders Bank of America to Pay $727 Million in Consumer Relief For Illegal Credit Card Practices

• Lawyer’s ‘Tactic’ in Bankruptcy Cases Draws Judge’s Ire
• Erie Judge Weighs Sanctions for Bankruptcy Lawyer

• Ten Facts about Amended Tax Returns
• IRS Debunks Frivolous Tax Arguments
• Four Tips If You Can’t Pay Your Taxes on Time
• IRS Intensifies Work on Identity Theft and Refund Fraud; Criminal Investigation Enforcement Actions Underway Across the Nation

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.

See also:

When Chapter 13 Debtors Receive Windfalls Part 1 of 3; Part 2 of 3; Part 3 of 3

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.

• Bank of America Near Credit Card Deal With U.S. Regulator
• One Payday Loan Likely To Lead To Another
  • In a related topic . . .Payday Loans Today, Online Loans Tomorrow

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.

• New Law Offers Special Tax Option for Philippines Relief Donations; Cash Contributions Until April 14 Can Be Claimed On 2013 Returns

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.

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.

• IRS Warns of New Email Phishing Scheme Falsely Claiming to be from the Taxpayer Advocate Service

“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.”

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 . . .

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.

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.

• The Individual Shared Responsibility Payment – An Overview

“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.

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 . . .

Click here for Part I. . .
Click here for Part II . . .
Click here for Part III . . .

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.

“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.

• 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 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.

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.

See also: Scalia Throws Bankruptcy Surcharging To The Mat

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!

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 . . .

Click here for Part I . . .
Click here for Part II . . .

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

• Ten Things to Know about the Taxpayer Advocate Service

• Average Tax Refund So Far This Year: $3,034

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.

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.

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!

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.

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.

Click here for Part I.

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.

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.

• Appellate Court Finds Blixseth Accusations Against Bankruptcy Judge Unfounded
• Bankruptcy Petition Preparer Gets Sentenced To Nearly 4 Years In Prison

• 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

• New Item:  Household Borrowing Picks Up As Economy Recovers

“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.

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.

Judge Brown looks at one case in which separate classification of student loan debt did not unfairly discriminate.