From the Editor’s Desk – Automatic Stay • NACTT Academy

From the Editor’s Desk – Automatic Stay

By The Honorable William Houston Brown (Retired)

No stay relief to pursue dischargeable claim. The creditor’s prepetition state court actions for malpractice and negligence were dischargeable claims, and the creditor did not timely file a dischargeability complaint on fraud claim; therefore, there was no point in granting requested stay relief to pursue discharged debts. Chae v. Bennett (In re Bennett), 501 B.R. 93 (BAP 8th Cir. 2013).

Debtor wife bound by in rem relief in husband’s prior case. Applying § 362(d)(4), a properly recorded order granting in rem . . .

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Pump the Brakes: Bad Faith Debtors Are Not Gaming the System

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By Kathryne M. Shaw,1 Boleman Law Firm, P.C. (Virginia Beach, VA) Click here for Part 2 The bankruptcy system requires good faith on the part of a debtor in exchange for the promise of a fresh start, and responsible members of the bankruptcy bar constantly work to ensure that no one “games” this powerful system. So, how does a debtor...

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Henry E. Hildebrand, III

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I never set out to be a bankruptcy lawyer, much less a trustee. It was always my intent to be trial lawyer. The thrill of victory, the agony of defeat, and the captive audience of a jury; having to think fast on your feet was exciting. Facing jurors and witnesses with a modicum of confidence was what my view of...

Postpetition Borrowing by a Consumer Debtor in Chapter 13 – Part 2 of 2

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By Judge Michael A. Fagone & Career Law Clerk Ciera S. Dye III. Policy Considerations Where the statute does not provide definitive guidance, courts often turn to policy considerations. How do those considerations weigh out here? One answer is that policy considerations cut against imposing any sort of requirement of preapproval for postpetition borrowing by a consumer debtor. Several reasons...

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Henry E. Hildebrand, III

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The Academy

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Judges of the U.S. Court of Appeals for the 9th Circuit have appointed J. Barrett Marum as the next bankruptcy judge on the U.S. Bankruptcy Court for the Southern District of California.

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By Ken Siomos, Staff Attorney for Marsha L. Combs-Skinner (Newman, IL) The December 2020 Consolidated Appropriations Act, 2021, more commonly known as the second covid-19 stimulus bill, contains a few bankruptcy related provisions, but none stood out more with respect to Chapter 13 than the newly created § 1328(i). This provision provides that a court may grant a full 1328(a)...

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Ashley Baxter Curry

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In a recent case out of South Carolina, rather than a debtor seeking sanctions against a creditor, it was the creditor’s counsel who sought sanctions against counsel for a Chapter 13 debtor in an adversary proceeding. Ruling on a Motion for Sanctions in James Defoe v. Winyah Surgical Specialists, P.A. doing business as Winyah Surgical Specialists (In re Defoe), 632...

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Rules, Means-Test Amounts and Miscellaneous Fees: Changes Wrap Up 2020

November 15, 2020

Lawrence R. Ahern, III Brown & Ahern Nashville, Tennessee Appendix B Adjustments to Means Test Amounts (Cases Filed On or After November 1, 2020) The tables on the following page provide median family income adjustments reproduced in a format designed for ease of use in completing Bankruptcy Forms 122A-1 and 122C-1. STATE 1 EARNER FAMILY SIZE 2 PEOPLE 3 PEOPLE...

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Critical Case Comment – Fourth Circuit Says Easy-Peasy

Henry E. Hildebrand, III

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In calculating projected disposable income, 13 debtor may deduct entire mortgage payment notwithstanding amount exceeds the housing allowance as established by the IRS Financial Standards Allowance.

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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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