Max’s Knowledge Nugget

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 statement shall be sent within a reasonable time, but in no case more than seven business days, after receiving a written request from the consumer or any person acting on behalf of . . .

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O. Max Gardner, III

Attorney

O. Max Gardner, III, currently limits his practice to consumer bankruptcy cases and all consumer claims arising with respect to those cases. He has been widely recognized as the leading consumer attorney in America on “predatory mortgage servicing” in Chapter 13 bankruptcy cases. The National Association of Consumer Bankruptcy Lawyers (NACBA) recognized Mr. Gardner as a Champion of Consumer Rights in 2003; named him the Outstanding Consumer Lawyer of 2004 and awarded him The Distinguished Service Award in April of 2013. Gardner has been elected five times as a member of the “Legal Elite” of North Carolina lawyers by his fellow attorneys in a state-wide poll conducted by Business North Carolina magazine. He is the only consumer lawyer who has been named as a North Carolina “Super Lawyer” in the field of consumer law for five consecutive years by Law & Politics and the Charlotte Magazine. Mr. Gardner was named a Top Lawyer in N.C. in 2013 by The Legal Network. Gardner has received the AV Preeminent Award from Martindale Hubbell for the past 22 years, the highest ethical rating for lawyers. He is a long-time member of NACBA and the National Association of Consumer Advocates (NACA) and a frequent national speaker on bankruptcy law, mortgage servicer abuses, and consumer representation. Gardner has also trained thousands of consumer lawyers and legal professionals since 2005, and is the Chief Executive Officer of Max Gardner’s Consumer Defense Academy (pka Max Gardner’s Bankruptcy Boot Camps). Gardner is also “Of Counsel” to the Dallas, Texas firm of Kellett and Bartholow. The firm focuses on major cases against mortgage servicers in consumer bankruptcy cases and on discharge violations by original creditors and the debt-buying industry.

Chapter 12 and Act2/Conference Update

August 18, 2019

By Rebecca Garcia and Jan Sensenich, Chapters 12 and 13 Standing Trustees The Association of Chapter 12 Trustees (ACT2) had a wonderful day and a half conference in advance of the NACTT Seminar on July 15 and 16 in Indianapolis. In addition to Trustee participants, we had judges, debtors, and creditors counsel and representatives attend and participate. We kicked off...

Surrender of Collateral in a Plan- What Is the Court to Do if the Debtor Doesn’t Follow Through?

June 2, 2019

By Tammy E. Stickley and Francis J. DiCesare, Staff Attorneys for Margaret A. Burks, Esq. Chapter 13 Standing Trustee (Cincinnati, OH) In a media age in which people expect to be told when “spoilers” are ahead, this summary needs no such warning. Courts have little patience for debtors who surrender collateral – especially real estate – then oppose the foreclosure...

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An Argument in Favor of the Mid-Case Audit: B.R. 3002.1 Proposed Changes

Molly Simons

August 28, 2022

If you put your ear to the ground you may hear the rumblings regarding a change to Bankruptcy Rule 3002.1 requiring the institution of a mid-case bankruptcy audit. This mid-case audit would be like the Notice of Final Cure but would be performed by a trustee’s office in the middle of a pending Chapter 13, rather than at the end,...

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Cars, Fines, and Chapter 13 in the Windy City

January 12, 2020

By Herbert L. Beskin, Chapter 13 Trustee for the Western District of Virginia (Charlottesville) The Seventh Circuit thought that it had finished dealing with the intersection of cars, fines, Chapter 13, and the City of Chicago when it rendered its decision earlier in 2019 in “Steenes I.” In re Steenes, 918 F.3d 554 . Alas, it was not to be,...

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In Re Carter: A Hard Case (Maybe) Making Bad Law?

Owen W. Katz

May 21, 2023

Chapter 13 plans and confirmation orders will occasionally include post-confirmation disclosure and turnover requirements for tax returns and refunds and for other types of post-petition recoveries and income. Debtors are expected, on their own and without the need for rigorous trustee oversight, to fulfill the turnover requirements as a condition of plan completion and discharge. What happens when the case...

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Extensions of CARES Act Provisions By COVID-19 Bankruptcy Relief Extension Act of 2021

April 4, 2021

The CARES Act, Public Law 116-136 had amended several parts of the Bankruptcy Code, but included sunset provisions terminating March 27, 2021. The COVID-19 Bankruptcy Relief Extension Act of 2021, H.R.1651, passed by the House and Senate and signed by the President on March 27, 2021, extended some provisions for another year. Section 1113 of the CARES Act had amended...

Claim Preclusion and the Opportunities for Mischief

Cathy Moran

March 27, 2022

I’ve been having nightmares about the 9th Circuit’s decision in Siegel for 20 years. Broad strokes, Siegel (143 F.3d 525 (9th Cir. 1998) holds that a filed claim in a no asset bankruptcy case to which no one objects is entitled to preclusive effect in subsequent litigation by . . . It looks like you are not signed in or...

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The Uneasy Co-Existence of Federal and State Consumer Remedies in Bankruptcy Cases – the Fourth Circuit Weighs In

Mark C. Leffler

October 15, 2023

“Why do I need the FDCPA if there’s already a remedy under Rule 3001?” This is what the bankruptcy judge asked me when I brought an adversary proceeding against a claims buyer, alleging potential class claims under both the Fair Debt Collection Practices Act (“FDCPA”) and Bankruptcy Rule 3001(c)(2). The defendant had a business practice of filing high volumes of...

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Critical Case Comment– Secured Creditor Granted Relief from Stay. But, Wait There’s More . . . No Proof of Claim.

Henry E. Hildebrand, III

July 24, 2022

Secured creditor in a Chapter 13 case entitled to relief from the stay due to lack of adequate protection where the creditor neglects to file a proof of claim and, as a consequent, received no payments under a Chapter 13 plan. (Conley) Weyer v. Valley Communities Credit Union, 2022 WL 1597293 (W.D. Wis. May 19, 2022) Case Summary Dana and...

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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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