How Much Home Equity Is Too Much?…

Introduction by Gerard Forgét, III, JD, MBA, LLM(TAXATION), Omaha, NE

Homestead exemptions are tantamount to any Chapter 13 filing. Several bankruptcy attorneys have stated that the primary reason for a debtor filing a Chapter 13 bankruptcy is to retain possession of their home. Depending on the state in which they file, the applicable homestead exemption will apply. In some states, the federal exemption may be elected; as an alternative to the state.

BAPCPA introduced additional limitations on debtors exempting their residences utilizing the particular state homestead exemption. These limitations examine pre-petition homestead acquisitions (n.b. “look-back . . .

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Critical Case Comment–“No Realistic Future Prospects”

Henry E. Hildebrand, III

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A 34-year-old Chapter 7 debtor could discharge his student loan obligation by establishing that he could not reasonably make payments on the balance, could not maintain a reasonable standard of living, and because the expiration of his payment term had already passed, his standard of living was likely to persist, with no realistic future prospects. (Silverstein) In re Wolfson, No....

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Critical Case Comment–Tardy Filed Stay Extension: Too Bad Too Sad

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Max’s Knowledge Nugget

Max Gardner

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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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Passing of the Honorable Randall L. Dunn

The Academy

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Retired United States Bankruptcy Judge Randall (Randy) Lawson Dunn, District of Oregon, died at home on June 7, 2023.

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By Cathy Moran, Esq. (Redwood City, CA) We all get sucked in, at some time, to try and rescue a Chapter 13 bankruptcy case gone bad. Make sure that you don’t let a bad situation get worse. Get your arms around §109(g). When only a do-over will do, don’t wait around. No Payments for Months The debtor came to me...

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Representing Elderly Clients in Bankruptcy – Part 1 of 3

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By David Cox,1 Cox Law Group, PLLC (Lynchburg, VA) Overview Filing considerations. Perfect Storm! Pensions going down. Healthcare costs going up. Home Equity high. Medical debts increasing. Limited income. Common considerations. Embarrassment. Many of the elderly are from a generation which regards bankruptcy as an indication of moral failure and shame. Confidentiality. May not want family members, including a spouse,...

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Progeny of Law v. Siegel: Sixth and Ninth Circuits Say Right to Dismiss Chapter 13 Case is Absolute, Not Qualified by Section 105

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By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) "Equity is not an old man, with a long grey beard, sitting under a tree. Equity has rules."1 Introduction Section 105 When enacted in 1978, the Bankruptcy Code in section 105 included an "all writs" statute for the Bankruptcy Courts: The court may issue any order, process, or judgment that...

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By Joseph A. Bledsoe, III, Chapter 13 Standing Trustee for the Eastern District of North Carolina (New Bern) Under section 1113(b)(1)(C) of the CARES Act, upon the request of a debtor, and after notice and a hearing, a plan confirmed may be extended up to 7 years from the date the first payment under the original plan came due if...

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Engaging a Non-Profit to Solve the Chapter 13 Trustees PSLF Conundrum

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Tenancy by the Entireties and the § 522(f) Calculation

James M. Davis

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“Over the years courts have struggled to apply the lien-avoidance provisions under § 522(f) to jointly owned property. . . .Things get even more confusing when the debtor owns property as a tenancy by the entireties. That antiquated form of ownership has odd characteristics that do not fit well into the § 522(f) calculation.”

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