Navigating Secured Creditors Who File Unsecured Chapter 13 Claims

By Eric K. Fox, Esq. (Hendersonville, TN)

Jane Debtor has a home with a mortgage. An unsecured creditor obtains a judgment against Jane for, say, a credit card debt. Creditor’s attorney records a certified copy of the judgement order with the county register of deeds, thereby converting the unsecured claim against Jane in personam, to a secured claim against her personally and her real property in rem.

Debtor then files a Chapter 13 plan which provides for all her debt, including the secured judgement lien claim. The plan provides that after . . .

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Critical Case Comment

February 24, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) It was impermissible and contrary to the provisions of the Bankruptcy Code for the bankruptcy clerk to enter an order which dismissed a Chapter 13 case based only upon the trustee’s certification that the debtor did not make a timely first payment. (Duncan). No...

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Critical Case Comment– Absolute Right to Dismiss But Not the End of the Story

Henry E. Hildebrand, III

December 5, 2021

Although a Chapter 13 debtor has the absolute right to voluntarily dismiss her Chapter 13 case, even after a motion to convert is filed, the Court retains the rights to impose restrictions on the dismissal. (Waites) In re Brittany Frances Minogue, 2021 WL 4453589 (Bankr. D. S.C. September 29, 2021) Summary Brittany Minogue filed a voluntary petition under Chapter 13...

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Trustee Cannot Require Debtor to Treat Nondischargeable Student Loan Debts in a Separate Class

August 25, 2019

By Gretchen D. Holland, Standing Chapter 13 Trustee for the Greenville/Spartanburg Division of South Carolina The Bankruptcy Code does not – and thus a trustee cannot – require a debtor to treat nondischargeable student loan debts in a separate class from other general unsecured claims under § 1322(b)(1), even when including them all in the same pool will result in...

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From the Editor – Lien Issues

September 15, 2019

By The Honorable William Houston Brown (Retired) Chapter 13 debtor had no authority under § 544. Discussing the split of authority, the Court adopted the majority view that the Code gives § 544 avoidance authority exclusively to the trustee, and the Chapter 13 debtor could not use that power to avoid a mortgage lien. In re Dobbs, _________B.R._________, 2019 WL...

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Motions to Extend or Impose the Automatic Stay

Erik P. Kimball

October 8, 2023

“In most cases, debtor’s counsel addresses only the argument that the debtor’s personal or financial affairs have substantially changed since dismissal of the preceding case.”

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How to Build and Strengthen Your Chapter 13 Debtor Practice

The NACTT Emeritus Trustees

July 3, 2022

In these times of fewer case filings, it may be helpful to look at ways that debtor attorneys may build and strengthen their chapter 13 bankruptcy practice. The following are some recommendations and ideas from the Emeritus Trustee Committee:

Critical Case Comment – Funds on Hand at Dismissal Go to Debtor. Not So Fast. 13 Trustee May Be Subject to State Court Proceedings

Henry E. Hildebrand, III

January 16, 2022

While a 13 trustee is partially insulated by the Barton doctrine from being dragged into state court, if a movant seeks authority from the Bankruptcy Court to pursue the trustee and satisfies the conditions of the Barton doctrine, the trustee may be subject to state court judicial proceedings. (Hall) In re Alexander Louis Bednar, 2021 WL 1625399 (Bankr. W.D. Okla....

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Five Things Trustees Should Know About the Small Business Reorganization Act of 2019

September 8, 2019

By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Introduction Four bankruptcy-related bills were enacted during the 116th Congress and signed into law on August 23, 2019.1 The legislation affected both business and consumer cases. One bill, the Small Business Reorganization Act of 2019 (SBRA),2 deals on its face with a non-consumer topic. However, it will be of great...

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Eviction Diversion Programs and Chapter 13 Bankruptcy

February 3, 2019

By Edward C. Boltz, The Law Offices of John T. Orcutt (Durham, NC) (Originally published in pertinent part at ncbarblog.com, December 19, 2018) With the publication of Evicted: Poverty and Profit in the American City, author Matthew Desmond has brought increasing attention both nationwide and in North Carolina to the growing eviction crisis. With . . . It looks like...

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Credit Scores Trend Upward After Bankruptcy

November 3, 2019

By Cathy Moran, Esq. (Redwood City, CA) After bankruptcy, credit scores go steadily up, says a 17 year study released by the Consumer Financial Protection Bureau. Got that? Go UP. Every year. Importantly, credit scores start improving the same year that the bankruptcy is filed. Think on that for a moment. How collectors stoke fears about bankruptcy Creditors and their...