From the Editor - Automatic Stay • NACTT Academy

From the Editor – Automatic Stay

By The Honorable William Houston Brown (Retired)

Effect of defective mailing address. Discussing the presumption of receipt of mailed notice of the bankruptcy filing, the court discussed the factors to consider when there was a defect in the address. The address used by the debtor was to the correct street address but contained no suite or floor number, and the address was an office building with 100 other companies. With a weakened presumption of delivery, the testimony of the creditor established that the notice was not delivered, and stay was annulled to retroactively validate foreclosure, in . . .

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Courts are Expanding the Protections of Bankruptcy Rule 3002.1

Debbie Langehennig, Cameron Kelly

October 9, 2022

As a prerequisite to a claim’s payment, Rule 3002.1 requires certain secured creditors to provide to the trustee and the debtor notice of the full value of the secured creditor’s claim, including any “fees, expenses, and charges” related to the claim. Two bankruptcy courts have demonstrated a willingness to expand the reach of Rule 3002.1’s noticing requirements. These courts generally...

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

R. Michael Smith

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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...

Fastest Way to Check Tax Refund Is ‘Where’s My Refund?’ Tool at IRS.Gov

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Good or Bad Faith?

Hale Andrew Antico

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The Ninth Circuit BAP held that the chapter 13 debtors converted their case to Chapter 7 in good faith and therefore a post-petition inheritance was not property of the chapter 7 estate.

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Retirement of the Honorable John E. Hoffman, Jr., Chief Judge

The Academy

February 18, 2024

Retirement of the Honorable John E. Hoffman, Jr., Chief Judge

Chapter 13 Trustee Duties, Powers, And Limitations – Part 4

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By James J. Robinson, Chief United States Bankruptcy Judge, Northern District of Alabama Exactly whose interests does the trustee represent, and when should the trustee object or move to modify? Hope v. Acorn Financial, Inc., 731 F.3d 1189 (11th Cir. 2013). The Eleventh Circuit held that a chapter 13 trustee who was aware of defects with a secured claim before...

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Objection: Hearsay

July 12, 2020

By Wayne Silver, Wayne Silver Law (Redwood City, CA) There you are, client on the witness stand, judge listening intently, story being told on direct exactly the way you prepared her, things going just swimmingly. And then opposing counsel stands and utters those two lovely words…”Objection, hearsay.” Huh? That’s ridiculous, you confidently think to yourself, just as you hear the...

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Taxes, Offset, and Mutuality

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By Cathy Moran, Esq. (Redwood City, CA) Bankruptcy lawyers are accustomed to evaluating the dischargeability of taxes when deciding when to file a client's bankruptcy case. But as we approach the end of the tax year, a client’s current year tax situation becomes another moving part in the “when do we file” analysis. In the simplest situation, the client owes...

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Critical Case Comment – Fair Discrimination: A Win/Win

Henry E. Hildebrand, III

December 11, 2022

A Chapter 13 plan can be confirmed to pay a 100% dividend to unsecured creditors while maintaining payments to a student loan creditor as a long-term debt (which will not satisfy the student loan in the commitment period) without committing all available disposable income. (Mullin) In re Victoria Florita Durand-Day, 2022 WL 14938726 (Bankr. N.D. Tex. October 26, 2022) Case...

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Comparison of Annual Change in Chapter 13 Case Filings During the Beginnings of the 2008 and the 2020 Recessions

March 21, 2021

By The Honorable Kevin R. Anderson, United States Bankruptcy Court for the District of Utah Coming off the longest economic expansion in U.S. history, Chapter 13 filings were at their lowest levels since 2007. With the country entering a sudden and unanticipated recession in February of 2020, we expected to see Chapter 13 filing rates increase; however, the opposite occurred....

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