Ask Ms. Ps & Qs

By Professor Nancy Rapoport

Dear Readers:

Thanks to the ever-wonderful Regina, here are this month’s questions.

Dear Ms. Ps & Qs:

Debtor is a 1099-commissioned employee and meets with his attorney towards the end of the month. Debtor attorney knows that there is no way to get the petition filed in this monthly cycle, but learns in the interview that the Debtor is about to sign and close some big deals which will affect the DMI on Form 22. The Debtor is then advised by his attorney to intentionally hold deals in his . . .

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Critical Case Comment – You Gotta Tell SOMEBODY!

Henry E. Hildebrand, III

December 18, 2022

Where a debtor fails to disclose to the Court or the trustee a forbearance on his mortgage that he was to pay directly, the Court would grant the trustee’s motion to modify to recapture as much as possible of the surplus funds the forbearance generated. (Kenney) In re Ilyev, 2022 WL 2965029 (Bankr. E.D. Va. July 26, 2022) Case Summary...

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Critical Case Comment – No Mulligans for Gardners

Henry E. Hildebrand, III

October 30, 2022

In order for a debtor to succeed in setting aside a dismissal in a motion filed under Rule 9024, F.R.B.P., the debtor must prove specific grounds as outlined in Federal Rule of Civil Procedure 60(b). (Oxholm) In re Gardner, 2022 WL 654410 (Bankr. E.D. Mich. May 24, 2022) Case Summary Carl and Taisha Gardner filed Chapter 13 in September of...

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Thoughts on the Law: Stay at the Crossroads – The Code of the Wild, Wild West?

February 23, 2020

By The Honorable John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio (Toledo) There are two legal battles going on that may end up being dysfunctionally related…. 1. What Happens If The Automatic Stay Is Not Extended In A “Second Case Pending Within One Year”? A split of authority has been percolating since 2005, involving the all too...

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Looking Beyond Taggart: Is the Contempt Standard for a Stay Violation the Same as for a Discharge Injunction Violation?

May 5, 2019

By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Background Last year, the Ninth Circuit in In re Taggart1 ruled that an act in violation of the discharge injunction did not empower a court to find a creditor in contempt, if the creditor believed in good faith that the discharge injunction did not apply—even if the creditor's belief was...

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U.S. Trustee Program to Implement Virtual Section 341 Meetings of Creditors Nationwide

The Academy

September 10, 2023

These virtual 341 meetings via Zoom will be implemented on a rolling basis through early 2024. YEP, this means you, y’all, all y’all, you guys, and yoos guys. Doesn’t matter if you have been doing 341’s via telephone for 100 years . . . it’s ZOOM as soon as implemented in your district. For Debtor Atty’s, this may require having clients...

Post-Petition Causes of Action, Inheritances and Windfalls Are Property of the Estate and Must Be Reported to the Trustee – Part 5 of 5

August 11, 2019

By John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio, Western Division Click here for Part 1 Click here for Part 2

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Ask Ms. Ps & Qs

Nancy B. Rapoport

June 25, 2023

Dear Readers: By now, I’m hoping that all of you are aware of the sad story of the plaintiff’s lawyers in Mata v. Avianca, Inc., Case No. 22-cv-1461 (PKC) (S.D.N.Y). Lawyer A used ChatGPT to “research” a brief; Lawyer A was not admitted in the jurisdiction, so Lawyer B (same firm) entered a notice of appearance; Lawyer B filed Lawyer...

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Bankruptcy Court Broadly Interprets “Engaged in Business” Requirement for Subchapter V Eligibility

May 23, 2021

By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Introduction The Bankruptcy Court for the District of Colorado ruled recently, in a case styled In re Ikalowych,1 that while eligibility for subchapter V of Chapter 112 requires that 50% of a debtor's debt must arise from commercial or business activities, the debtor was not required to be directly involved...

Members

Critical Case Comment – Sec. 328 vs. Sec. 327 Not Exactly a Smack Down

Henry E. Hildebrand, III

July 17, 2022

A referral fee by retained special counsel paid to debtor’s attorney violates the prohibition in § 504 in that the referral fee constitutes an unauthorized splitting of attorney’s fees. (Williamson) In re Davis, 638 B.R. 198 (Bankr. M.D. Fla. March 31, 2022) Case Summary Four years after Lisa Davis filed her Chapter 13 petition, she was involved in an auto...

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Paying the Car Loan Directly vs. Through the Plan: Till Debt Us do Part?

January 31, 2021

By Herbert L. Beskin, Chapter 13 Trustee for the Western District of Virginia (Charlottesville) In a recent case out of the Sixth Circuit, the Appeals Court heard an appeal by the Chapter 13 Trustee concerning direct payments by the debtor on a car loan and the applicable interest rate. The case is In re Chambers, 6th Circuit, # 20-1376, Appeal...

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Ask Ms. Ps & Qs

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Related Articles

Critical Case Comment – You Gotta Tell SOMEBODY!

Critical Case Comment – No Mulligans for Gardners

Thoughts on the Law: Stay at the Crossroads – The Code of the Wild, Wild West?

Looking Beyond Taggart: Is the Contempt Standard for a Stay Violation the Same as for a Discharge Injunction Violation?

U.S. Trustee Program to Implement Virtual Section 341 Meetings of Creditors Nationwide

Post-Petition Causes of Action, Inheritances and Windfalls Are Property of the Estate and Must Be Reported to the Trustee – Part 5 of 5

Ask Ms. Ps & Qs

Bankruptcy Court Broadly Interprets “Engaged in Business” Requirement for Subchapter V Eligibility

Critical Case Comment – Sec. 328 vs. Sec. 327 Not Exactly a Smack Down

Paying the Car Loan Directly vs. Through the Plan: Till Debt Us do Part?

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