The Debtor’s Right to Dismiss Under § 1307(b) after Marrama (Can We Play Dismissal-rama? Absolutely Not!)

(Can We Play Dismissal-rama? Absolutely Not!)

A Collaborative Effort By John Gustafson and Michaela White.

John was appointed Standing Chapter 13 Trustee for the Northern District of Ohio, Western Division on October 1, 2007. Prof. White is Editor and Advisor to the NACTT Academy and has taught at Creighton University School of Law since 1990.

In Jacobsen v. Moser (In re Jacobsen), 609 F.3d 647 (5th Cir. 2010), the Fifth Circuit joined an increasing number of courts in holding Marrama v. Citizens Bank, 549 U.S. 365 . . .

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Rule 3002.1, Contempt and Sanctions – How a Lender Can Create a Mess

Thomas D. DeCarlo

October 16, 2022

The facts in In re DeWitt, 2022 WL 4588320 (Bankr. S.D. Ohio 2022), are a bit “unusual”. Debtor filed Chapter 13 to reinstate her mortgage. The mortgage was “non-escrowed” and Debtor was required to pay property taxes directly. Surprisingly, she did not pay her property taxes. The first time, the Lender paid the property taxes but decided not to pursue...

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Representing Elderly Clients in Bankruptcy – Part 2 of 3

January 12, 2020

By David Cox,1 Cox Law Group, PLLC (Lynchburg, VA) Click here for Part 1 of 3 C. Determining whether to file. Collection considerations outside of bankruptcy. Is the debtor judgment-proof? Are assets and income exempt? How active are creditors? Is the current situation likely to change? Has there been a previous filing, and if so, are there stay or exhausted...

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2022 Bankruptcy Procedure Year in Review: Revised Statute and Rules and Selected Cases – Part 1 Amended Statute and Rules Amendments Not Related to SBRA

Lawrence R. Ahern, III

November 6, 2022

Introduction This year sees changes in the Code and numerous new and amended Rules of BankruptcyProcedure that are to be effective December 1. The statutory amendments and the changes in therules that do not relate to cases under subchapter V of Chapter 11 are summarized below. They will be followed, by a digest of other new and amended rule and...

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“How Long, O Lord?”

November 29, 2020

By Angela M. Scolforo, Staff Attorney to Herbert L. Beskin, Chapter 13 Trustee for the Western District of Virginia “How long?” is a common plea. When my children were young and we travelled they would ask, “how long before we get there?” In scripture we find David, Habakkuk and Zechariah (none of whom were Debtors’ attorneys) all crying out, “how...

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Critical Case Comment

June 16, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee Mortgage creditor may not withdraw a notice of fees, costs, and charges filed in a case after the supplement to the claim has been challenged without court approval; the allowance of such a notice will not be permitted where a state statute forbids it. Quicken...

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From the Editor

September 27, 2020

By The Honorable William Houston Brown (Retired) Debtors’ attorney fees not authorized under Equal Access to Justice Act (EAJA). Although the Chapter 13 debtors had prevailed before the Ninth Circuit, In re Sisk, 962 F.3d 1133 (9th Cir. 2020), their application for attorney fees as prevailing parties under EAJA was denied. That Act did not authorize awards of attorney fees...

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Critical Case Comment – The Plan Rules

Henry E. Hildebrand, III

December 4, 2022

Chapter 13 plan which provided a specific amount to be cured on a reverse mortgage under § 1322(b)(5) would be controlled by the specific term of the plan provision and not by the larger proof of claim filed by the creditor. (Baer) In re Edelstein, 2022 WL 16730027 (Bankr. N.D. Ill. November 7, 2022) Case Summary The Edelsteins filed Chapter...

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Eleventh Circuit Adopts the Path of Leased Resistance in Chapter 13

August 2, 2020

By Chris Hawkins, Bradley Arant Boult Cummings LLP (Birmingham, AL) The United States Court of Appeals for the Eleventh Circuit recently issued an opinion that may have far-reaching procedural implications for debtors and trustees in Chapter 13 cases. In Microf LLC v. Cumbess, the court articulated multiple canons of statutory interpretation in holding that a chapter 13 debtor’s proposal to...

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Student Loans Debacle-Part II: Failure to Forgive – The Ticking Time-Bomb

R. Michael Smith

October 23, 2022

The recent push for student loan forgiveness has been met with increasing opposition. The rationales for not providing a generally applicable path for student loan forgiveness or cancellation have included arguments based upon imagined unfairness to those previously able to pay off their loans, which seems to be both short-sighted, as well as a “red herring” argument. It does not...

What, Exactly, Is the Trustee’s Percentage Fee

Rebecca Herr

April 23, 2023

In recent years, a handful of cases have discussed the issue of what happens to the trustee’s percentage fee, collected from debtor plan payments, upon the dismissal or conversion of a case prior to confirmation. This is an emerging area of law, with decisions on both sides. However, with this new issue, there appears to be at least some confusion...

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