The Marital Deduction: Returning to Common Sense and Eliminating the “Contractual Liability” Test under § 101(10A)(B)

By Kenneth Siomos, Attorney Representing Chapter 13 Trustee John H. Germeraad, Petersburg, IL

The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) substantively changed the structure of the consumer bankruptcy system in 2005. A major part of this restructuring included implementation of the “means test” which standardized expenses for above median income individuals. The first step in determining if an individual is above median income is to determine the individual’s “current monthly income.” This is defined as the average of all of the individual’s income in the six months prior to the month of filing, excluding . . .

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Max’s Knowledge Nugget

Max Gardner

November 13, 2022

Question: May a servicer charge to generate a payoff quote? Answer: 1026.36(c)(3) Payoff statements. In connection with a consumer credit transaction secured by a consumer's dwelling, a creditor, assignee or servicer, as applicable, must provide an accurate statement of the total outstanding balance that would be required to pay the consumer's obligation in full as of a specified date. The...

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Arbitration in Bankruptcy: Reading Opinions & Tea Leaves in Recent Supreme Court & Lower Court Actions

January 20, 2019

By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) PART I: Statutes, Rules & Supreme Court (In)actions Introduction Click here for Part II Click here for Part III Click here for Part IV What is the effect of an arbitration clause in bankruptcy? When . . . It looks like you are not signed in or registered! This content...

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Weighted Caseload: Why It Matters and How It Works and Doesn’t Work

Honorable Brian D. Lynch

December 31, 2023

“Currently, if a district’s weighted caseload is below one-thousand per the number of judges in that district . . . in all probability, recommend that the circuit not replace the judge.”

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Critical Case Comment – Post-Petition/Pre-Conversion Equity

Henry E. Hildebrand, III

July 30, 2023

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) Post-petition, pre-conversion equity that accrues in a debtor’s residence during the pendency of a Chapter 13 plan is property of the estate in the Chapter 7 estate following conversion. (Hastings) Goetz v. Weber (In re Goetz), 651 B.R. 292 (8th Cir. BAP, June 1,...

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The Case for Conduit Mortgage Payments

Max Gardner

January 23, 2022

Max Gardner’s Top Ten Reasons The late Waylon Jennings had a hit song years ago called “Sick and Tired of Getting Up Sick and Tired.” The song related to the chronic consumption of alcohol but the analogy to the need for a mandatory rule for mortgage payments through the Chapter 13 Trustee is not that far-fetched. As a debtor’s attorney...

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The Kill Switch and The Stay

July 11, 2021

Kara K. Gendron, Esquire, Mott & Gendron Law (Harrisburg, PA) A “kill switch” is a device which can be used to disable a machine or program. They have been used for years in a myriad of safety measures, such as shutting down machinery in the event of an emergency, or to prevent the theft of a machine or data. Some...

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Critical Case Comment – What Does a Tax Return Really Tell Us??

Henry E. Hildebrand, III

May 7, 2023

Chapter 13 debtor has no obligation to voluntarily disclose changes in income or the acquisition of post-petition assets absent a request from a party in interest for such information. (Kendig) In re Poe, 2022 WL 3639415, (Bankr. N.D. Ohio August 22, 2022) Case Summary Mr. Poe filed a Chapter 13 petition in March of 2019. At the time of filing,...

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Small Business Reorganization Act…(“SBRA”) H.R. 3311 – Part Three

October 6, 2019

By Jan Hamilton, Chapter 13 Standing Trustee (Topeka, KS) Click here for Part One Click here for Part Two What needs to be in a plan filed in a case under the SBRA? Start with the statute…1 A. Contents of Plan2 Comparison of “Contents . . . It looks like you are not signed in or registered! This content is...

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When is Enough, Enough? Pro Se Dismissed with Extended Prejudice (and Violates Bar)

Jeff LeForce

January 16, 2022

When do the facts justify a long bar to refiling over the 180-day period in § 109(g)? Sometimes it is Justice Stewart’s infamous words from Jacobellis v. Ohio, 378 U.S. 187 (1964)–“I know it when I see it.” Even so, a Trustee must provide evidence and authority to the Court for a long prejudice period. In In re Parson 2021...

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Tax Projections and the Means Test – Parts I and II

Cathy Moran

December 17, 2023

Part I discusses projecting income tax deductions on the means test when the year of filing situation looks much like last year. Part II looks at things when they aren’t the same year over year.

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