From the Editor – Modification

By The Honorable William Houston Brown (Retired)

Postconfirmation modified plan not required to comply with projected disposable income test. After confirmation of above-median debtor’s plan, debtor’s income decreased and he moved to modify to reduce term of plan and distribution to unsecured creditors. The court concluded that § 1329(a)(2) permits shortening of plan term and that § 1325(b)’s projected disposable income is not enumerated in § 1329(b)(1)’s modification requirements. The split of authority on the issue was discussed, concluding that “the inclusion of section 1325(b) in the requirements . . .

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Small Business Reorganization Act…(“SBRA”) H.R. 3311 – Part Three

October 6, 2019

By Jan Hamilton, Chapter 13 Standing Trustee (Topeka, KS) Click here for Part One Click here for Part Two What needs to be in a plan filed in a case under the SBRA? Start with the statute…1 A. Contents of Plan2 Comparison of “Contents . . . It looks like you are not signed in or registered! This content is...

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When the Duty to Provide Tax Returns Collides with Confidentiality

Michael B. Joseph

February 6, 2022

Bankruptcy Code Section 521(e)(2)(A)(i) and (ii) provides that a debtor must supply tax returns to the trustee in a chapter 7 or 13 case, and to a creditor who timely requests such copy. Must the debtor provide copies that contain personal identifying information such as names, addresses and social security numbers of dependents including minor children? Or a redacted version...

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Here’s What People Should Know About Taking Early Withdrawals from Retirement Plans

April 21, 2019

Taxpayers may need to take money out of their individual retirement account or retirement plan early. However, this can trigger an additional tax on top of other income tax they may owe. Here are a few key things for taxpayers to know: Early Withdrawals. An early withdrawal normally is taking cash out of a retirement plan before the taxpayer is...

From the Editor – Claims

October 20, 2019

By The Honorable William Houston Brown (Retired) Claim allowed after reopening of no-asset case. The Chapter 7 case filed as no-asset was reopened after discovery of assets for distribution, and debtors objected to a claim on basis of statute of limitations. Affirming, the Bankruptcy Appellate Panel held that the time to commence action on the claim had been tolled under...

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City of Chicago v. Fulton And the Turnover Conundrum

January 24, 2021

By Kara K. Gendron, Esquire, Mott & Gendron Law (Harrisburg, PA) The recent Supreme Court decision in City of Chicago v. Fulton1 will change the law in most Circuits. Prior to this case, there was a split among the circuits as to whether the post-petition retention of property taken pre-petition constitutes a violation of the automatic stay under §362(a)(3) of...

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Critical Case Comment – Ignoring 3002.1 Will Cost You

Henry E. Hildebrand, III

February 5, 2023

Mortgagee’s failure to disclose payment changes resulting from escrow adjustments and interest rate modifications compels the Court to order mortgagee to credit all undisclosed increases and subject it to sanctions, including attorney’s fees. (Somers) In re Kinderknecht, 2023 WL 320984 (Bankr. D. Kan. January 19, 2023) Case Summary Kyle and Chasity Kinderknecht filed a Chapter 13 petition in December of...

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Fourth Circuit Overrules Own Precedent, Holds Certain Primary Residence Claims Can be Crammed Down in Chapter 13 Bankruptcies

October 20, 2019

(First published here on August 19, 2019. Used with permission.) By Daniel Cohn, Esq., Legal Department, Wells Fargo Bank, N.A. General Rule: No Primary Residence Mortgage Changes The general rule in bankruptcy is that debtors cannot cram down loans secured only by mortgages on their primary residences. But wait, “what’s a cram down?” you ask. For non-bankruptcy folks, a cram...

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Critical Case Comment – Don’t File a Individual Chapter 13 If the Assets Are Owned by an LLC; It Will Cost You – BIG

Henry E. Hildebrand, III

September 25, 2022

Where a debtor and debtor’s counsel initiated a Chapter 13 petition in an effort to halt a foreclosure against property held by the debtor’s LLC, and where the debtor took no steps to correct the filing, sanctions would be imposed against debtor’s counsel. (Grabill) In re Scaccia, 2022 WL 1216284 (Bankr. E.D. La. April 25, 2022) Case Summary Scaccia owned...

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Small Business Reorganization Postscript 2

April 12, 2020

SMALL BUSINESS REORGANIZATION ACT POSTSCRIPT #2 Recommendation of Technical Amendment to Repair Flaw in CARES Act Attempt to Increase Small Business Eligibility under SBRA Introduction In a bulletin published March 30, the Academy announced enactment on March 27 of the "Coronavirus Aid, Relief, and Economic Security Act" (the "CARES Act"),1 and that the Act (applying only to cases commenced on...

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Congress, It’s Time to Get Rid of That Stupid Means Test

May 31, 2020

(Reprinted with permission: https://www.dailyjournal.com/) By M. Jonathan Hayes, Resnik Hayes, Moradi LLP (Los Angeles) I met with my best friend Jim King, consumer bankruptcy attorney extraordinaire, during the Thanksgiving break in 2014, several weeks before his untimely death. We met at his office in Glendale to do his oral history. Somewhere in there I told him he could borrow my...

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