Ask Mr. Civil Procedure Man

Mr. Civil Procedure Man is gratified to have questions for this column that do not involve service of process in odd kinds of bankruptcy proceedings, though Mr. Procedure Man admits that most bankruptcy proceedings seem odd to him.

Question No. 1: My question has to do with the real party in interest requirement in Rule 17 (FRBP 7017). Generally, the question is, how does that requirement apply to mortgage servicers? But I’m curious about two different scenarios.

The first scenario is the common one. The servicer collects payments on behalf of another party. The servicer . . .

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ABI Commission on Consumer Bankruptcy – A Chapter 7 Trustee’s Sale of Encumbered Property

July 7, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) The Commission heard from several individuals and attorneys that related tales of Chapter 7 trustees negotiating a “carve out” with a lienholder on the debtor’s real property when there was no equity available in the property. The way this works is that when property came into a Chapter 7...

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From the Editor – Classification

August 9, 2020

By The Honorable William Houston Brown (Retired) Separate classification and preferential treatment of student loan debt. The Chapter 13 trustee and debtors’ attorney attempted to change the traditional approach in the District, seeking approval of a permissible fair discrimination in favor of student loan debt in plans so long as the preferential treatment and discrimination was no more than 20%....

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Some Federal Protections are Stronger Than Others – Sovereign Immunity, Criminal Restitution, and the Automatic Stay

Jeffrey S. Fraser

August 13, 2023

In this brief synopsis, Fraser compares Lac du Flambeauto a case from the Middle District Court of North Carolina and its connection to the automatic stay.

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Chapter 13 No-Look Fees – Additional Thoughts

The NACTT Emeritus Trustees

January 7, 2024

As a follow-up to The Academy’s December 3, 2023, issue, three Emeritus Trustees weighed in. The 12/3/23 issue included Cathy Moran’s Chapter 13 NoLook Fees: The Horns of a Dilemma and Trustee Hildebrand’s Critical Case Comment, You Gotta Fix Your Own Screw-ups, On Your Own Dime. You may also want to take note of comments on each article and add your own. Today, we offer the thoughts of two additional Emeritus Trustees. Thus a follow-up to our follow-up. 😊

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Critical Case Comment – Pre to Pre and Post to Post

Henry E. Hildebrand, III

March 5, 2023

Mortgage loan servicer violated mortgage agreement with debtor, the automatic stay, the confirmation order and Rule 3002.1 by applying debtor’s post-petition monthly mortgage payments pursuant to the contractual terms of the loan, thereby applying post-petition payments to the debtor’s pre-petition mortgage arrearage. (Cary) In re Pope, 647 B.R. 597 (Bankr. D. N.H. August 15, 2022) Case Summary In November of...

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Bankruptcy Lawyer Must Have Otherworldly Powers

Cathy Moran

November 5, 2023

Just for fun . . .

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Critical Case Comment – Debtor’s Counsel’s Fee Reduced to $48k

Henry E. Hildebrand, III

February 4, 2022

Chapter 13 debtor’s counsel’s fee award was reduced to $48,116 from the requested $95,480 due to pre-petition payments, confusing and “lumped” time entries, and excessive hourly rates for some services performed, even though the debtor’s Chapter 13 plan was never even proposed much less confirmed. The debtor never attended a meeting of creditors, but the debtor managed to recover his...

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Passing of Memphis’ Beloved Judge Kennedy

The Academy

December 3, 2023

The Honorable David S. Kennedy, retired Chief U. S. Bankruptcy Judge, Western District of Tennessee, passed away on November 26, 2023.

The Bankruptcy Moot Court Experience – Duberstein 2019

August 25, 2019

By Cameron Kelly & Michael Carroll, Law Students, The University of Texas School of Law I. Starting the Journey Instead of starting class by cold-calling people, Professor Westbrook chose to suspend my terror briefly. While I was thankful for the reprieve from what would inevitably be a disappointing cold call, I was more thankful for what he had to say....

Supreme Court on Statute of Limitations Under Fair Debt Collection Practices Act

December 15, 2019

By William Houston Brown, Editor/Adviser Academy for Consumer Bankruptcy Education Construing the statute of limitations for actions against debt collectors under the Fair Debt Collection Practices Act (FDCA), the Supreme Court held on December 10, 2019, that “absent the application of an equitable doctrine, the statute of limitations in § 1692k(d) begins to run on the date on which the...

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