Constitutional Basis for Bankruptcy Laws

By M. Jonathan Hayes. Certified bankruptcy specialist from Northridge, CA, and focuses his practice on bankruptcy, insolvency and general civil litigation.

Article One, Section 8 entitled, “Powers of Congress,” provides that “Congress shall have Power. . . [t]o establish uniform laws upon the subject of bankruptcies.”

Article One, Section 10 entitled, “Powers Prohibited of the States,” provides that “No State shall . . . pass any . . . Law impairing the Obligations of Contract.”
A Brief Statutory History of American Bankruptcy Laws
The government formed by our constitution began on March 4, 1789. At that time, many of the states had “insolvency . . .

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Discharging Student Loans Under §523(a)(8)? Don’t Consolidate After Filing!

Scott Waterman, Josh Cohen

November 12, 2023

If you intend to seek to discharge student loans under §523(a)(8), do not consolidate the loans after the case is filed. Prebankruptcy planning is most important if one wishes to discharge student loans. A recent Texas Chapter 7 case highlights the pitfalls if one does not act accordingly. Debtors obtained 27 separate student loans prior to when they filed their...

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By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) Administrative fees and claims existing when Chapter 13 plan was confirmed would reduce the amounts received by unsecured creditors in a Chapter 7 under the “best interests of creditors test;” unsecured creditors, expected to receive payments over three years, must be paid the “present value” of that stream of...

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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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How to Present an Effective Summary Judgment Motion

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By Hon. Erik P. Kimball, United States Bankruptcy Court for the Southern District of Florida (Used with permission - Originally Published by the Courthouse Beacon, United States Bankruptcy Court for the Southern District of Florida August, 2020) Summary Judgment Applies In Contested Matters Bankruptcy Rule 7056 incorporates all of Federal Rule 56 for purposes of adversary proceedings, adjusting only the...

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New Academy Podcasts

The Academy

December 15, 2024

In the 1979 Steve Martin movie The Jerk, Martin’s character, Navin Johnson, proclaims “I’m somebody” because his name is listed in the phone book. In 2024 to be “somebody” equates to being on Spotify. Well, The Academy is formally SOMEBODY. We have just launched our first 2 podcast episodes – 3002.1 Debtor Attorneys Were Gobsmacked Parts 1 and 2. Join a funny and frank discussion between Podcast Host Jody Bledsoe and our guest Hilary Bonial.

From the Editor

September 27, 2020

By The Honorable William Houston Brown (Retired) Disgorgement of fees for nondisclosure. The Tenth Circuit held that the “default sanction” for an attorney’s failure to satisfy disclosure obligation is full disgorgement of fees paid. While full disgorgement may not be required in particular circumstances, the “default sanction” principle required reversal and remand. The bankruptcy court, affirmed by the BAP, had...

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Expiration of Debt Limits

The Academy

June 23, 2024

Well, they expired . . . As you know, Congress temporarily raised the debt limits for Subchapter V and Chapter 13 debtors. These increased debt limits expired June 21st. For Chapter 13 the maximum is $465,275 for unsecured debt and $1,395,625 for secured debt.

Discharges and the DoD: The Interplay between Bankruptcy & Security Clearances

Emily Connor Kennedy

March 6, 2022

There are several different types of security clearances that an individual might seek as a prerequisite to employment. What each clearance requires depends on many factors, such as whether the person is a civilian or part of the armed forces, whether the clearance is for facility access only (versus access to sensitive documents), and the scope of the access in...

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Student Loans in Existing Chapter 13’s

Josh Cohen, Scott Waterman

October 1, 2023

In conjunction with The Academy’s recent webinar on Student Loans, Scott and Josh offer a follow-up check list – a MUST READ! “With all the new student loan servicing changes, what should debtor attorneys be doing as to pending chapter 13 cases where their clients owe federal student loans? Here’s the short list:”

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From the Editor – Eligibility

August 9, 2020

By The Honorable William Houston Brown (Retired) Disputed claim included in calculation of eligibility. The debtor’s case was dismissed for exceeding § 109(e)’s unsecured debt limit, when the debtor had signed $1,092,000 mortgage note but the mortgage was never recorded. The lender filed an unsecured claim for $1.7 million, and the Bankruptcy Appellate Panel agreed with the bankruptcy court that...

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