Cases That Caught My Eye

By John Gustafson, Chapter 13 Trustee for the Northern District of Ohio, Western Division

More cases have caught my eye for Cases That Caught My Eye! It’s getting too cold for the beach, so feel free to print this out as bathroom reading.

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In Leitch, the Eight Circuit BAP held that Health Savings Accounts (“HSAs”) are not exempt under the Bankruptcy Code’s federal exemptions. See, Leitch v. Christians (In re Leitch), 494 B.R. 918 (8th Cir. BAP 2013). And, it appears they are not exempt under the laws of most states . . .

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Can a Secured Claim Still “Ride-Through” Bankruptcy Despite BAPCPA? – Part 1 In re Rhodes Says, “Let Me Count the Ways”

Lawrence R. Ahern, III

January 30, 2022

Background A recent Chapter 7 case out of the Bankruptcy Court for the Southern District of California, In re Rhodes,1 addresses reaffirmation in a context that is very significant and should be of interest to all debtor's attorneys. It points out that the "ride-through" of a debtor's secured debt in Chapter 7—which Congress tried to eliminate in 2005—still exists. In...

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ABI Commission on Consumer Bankruptcy – Collateral Repossessed Pre-Petition

October 6, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) One of the most difficult situations faced by a debtor and debtors’ counsel is the repossession of important collateral securing a debt owed to a creditor. These items, such as automobiles, furniture, boats, and mowers which have been pledged to a creditor are important – often critical – to...

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Postpetition Borrowing by a Consumer Debtor in Chapter 13 – Part 1 of 2

May 5, 2019

By Judge Michael A. Fagone & Career Law Clerk Ciera S. Dye Although our Nation’s bankruptcy laws are uniform, chapter 13 practice in our Nation’s bankruptcy courts varies to a significant extent in the different judicial districts. One example of this variation is the treatment of postpetition borrowing by a consumer debtor in chapter 13.i Neither the Bankruptcy Code nor...

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Five More Things Debtors Should Know About the SBRA – Part VIII

February 16, 2020

By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Introduction This series has focused on the four bankruptcy-related bills that were enacted during the 116th Congress and signed into law on August 23, 2019. One bill, the Small Business Reorganization Act of 2019 (SBRA), will be effective February 19, 2020. It appears in its entirety in Appendix B to...

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Critical Case Comment – Don’t File a Individual Chapter 13 If the Assets Are Owned by an LLC; It Will Cost You – BIG

Henry E. Hildebrand, III

September 25, 2022

Where a debtor and debtor’s counsel initiated a Chapter 13 petition in an effort to halt a foreclosure against property held by the debtor’s LLC, and where the debtor took no steps to correct the filing, sanctions would be imposed against debtor’s counsel. (Grabill) In re Scaccia, 2022 WL 1216284 (Bankr. E.D. La. April 25, 2022) Case Summary Scaccia owned...

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ABI Commission on Consumer Bankruptcy – Post-Petition Changes in Value

July 14, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) One of the issues raised at the public hearings of the Commission concerned Chapter 7 trustees that would not take prompt action to abandon exempt or partially exempt assets but, would retain assets in the hope that there might be equity in the future to sell the asset for...

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Why Your Bankruptcy Client Doesn’t Understand You (And How to Fix the Problem)

Cathy Moran

August 1, 2023

By Cathy Moran, Moran Law Group (Redwood City, CA) Bankruptcy attorneys and their clients often seem to be a pair, divided by their common language. Even without legal jargon, we talk past each other. How do we misunderstand each other? Let me count the ways: Property: I don’t have any property, lost the house to foreclosure last year. Property 2:...

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From the Editor

April 7, 2019

By Wm. Houston Brown, United States Bankruptcy Judge (Retired) Confirmation - Debtors could not deduct ownership costs for vehicle secured by non-purchase money lien. The above-median debtors claimed ownership deduction of $497 from projected disposable income, when the title loan payments on the vehicle were only $66.67. The difference in these amounts meant unsecured creditors could receive $25,819.80 over the...

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Critical Case Comment

October 18, 2020

By Henry E. Hildebrand, III, Chapter 13 Trustee (Nashville, TN) There is no requirement to show a change in circumstance in order to modify a Chapter 13 plan pursuant to § 1329. Whaley v. Guillen (In re Guillen), 2020 WL 5015287 (11th Cir. Aug. 25, 2020) (Marcus) Case Summary Rachel Guillen filed a Chapter 13 petition in August of 2015....

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Reaffirmations Impose Impossible Demands on Bankruptcy Counsel

February 28, 2021

By Cathy Moran, Esq. (Redwood City, CA) When BAPCA gutted the ipso facto clause, reaffirmation was left as the only way a debtor could be assured of retaining his wheels. Car lenders took sides back then, then changed sides, on whether they would automatically repossess a vehicle when the debt was not reaffirmed. Some wanted the in terrorem effect of...

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