Supreme Court Corner

By M. Jonathan Hayes, Certified Bankruptcy Specialist, Northridge, CA

The Supreme Court has accepted cert in Bank of America, N.A. v. Caulkett agreeing to review the right of a chapter 7 debtor to strip off an entirely unsecured lien. In Los Angeles we call them "Lam Motions." I expect oral argument some time in April, 2015 and I expect to be there. Nearly every court in the country has held that the Supreme Court case of Dewsnup requires denial of the strip off in chapter 7. My brief summary of the cases follow . . .

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Critical Case Comment

January 19, 2020

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) Chapter 7 debtor may successfully discharge student loan obligations by satisfying the basic holding of Brunner v. N.Y. State Higher Education Servs. Corp. rather than satisfying the judicial gloss added by subsequent decisions. Rosenberg v. N.Y. State Higher Education Servs. Corp., 2020 WL 130302...

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Creditors’ Rights and Debtors’ Protections at the Intersection of Consumer Bankruptcy and UCC Article 9 – Part 3

September 13, 2020

By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) PART III – DELAYED PERFECTION OF SECURITY INTERESTS Introduction Current circumstances (a pandemic and dire economic conditions) portend an onslaught of bankruptcy filings. In the consumer bankruptcy field, trustees and debtors' counsel often are uncomfortable with the rules in Article 9 of the Uniform Commercial Code (UCC). In this space,...

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Critical Case Comment – Debtor Bears Burden of Proof to Be Ones Own Disbursing Agent

Henry E. Hildebrand, III

January 21, 2024

There is a presumption that the trustee will make disbursements under a confirmed Chapter 13 plan and the debtor bears the burden of demonstrating sufficient grounds to justify acting as her own disbursing agent.

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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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Do I Really Have to Tell the Trustee About Newly Acquired Assets?

Herbert L. Beskin

January 9, 2022

It has long been a vexing question for Trustees and attorneys alike: do Debtors have to disclose assets acquired post-petition? In a lengthy and well-documented opinion, Chief Bankruptcy Court Judge John Waites of South Carolina has presented his take on this issue and concluded, with some important exceptions, that they do not. The case is In re Thomas L. Boyd,...

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From the Editor – Claims

June 21, 2020

By The Honorable William Houston Brown (Retired) Portion of divorce award was priority domestic support claim and portion dischargeable unsecured claim. Applying Third Circuit’s factors from In re Gianakas, 917 F.2d 759 (3d Cir. 1990), and considering special master’s intent in divorce proceedings, one-third of former spouse’s claim was priority domestic support but two- thirds was reclassified as general unsecured...

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How Guarantors Can Escape Tax on Soured Debt

May 19, 2019

By Cathy Moran, Esq. (Redwood City, CA) and William J. Purdy, III, Simmons & Purdy (Soquel, CA) Ever guarantee the debt of another? Ever meet anyone who has? Chances are if you’re in business and the business is a C-corporation, an S-corporation, an LLC, or a partnership, when that business borrows money, the lender will require one or more persons...

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The Hanging Paragraph – Hanging on Every Word Part 3 of 4

June 28, 2020

By Anthony J. Gomez, CPA, former extern to the Honorable John P. Gustafson, Northern District of Ohio at Toledo Click here for Part 1 Click here for Part 2 IV. The Hanging Paragraph’s effect on Interest Rates When the hanging paragraph is applicable, creditors are entitled to the full value of their secured claims as . . . It looks...

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Hanging Paragraph, Cars for Non-Personal Use, and PMSI

November 3, 2019

By Gretchen Holland, Standing Chapter 13 Trustee for the Greenville/Spartanburg Division of South Carolina The hanging paragraph of § 1325(a)(9) prevents bifurcation of a PMSI claim if the collateral securing it was purchased within certain time periods prepetition. A 910-day limitation applies to motor vehicles acquired for the debtor’s personal use. A one-year limitation applies to all other PMSI collateral,...

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Critical Case Comment – Discharged Junior in 7 Survives in 13

October 17, 2021

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) While in personam liability of a junior mortgage on the debtor’s residence is discharged by a Chapter 7, the lien survives and constitutes an allowed unsecured claim in the debtor’s subsequent Chapter 13 case. In re Hopper, 2021 WL 3435445 (Bankr. E.D. N.Y. Aug....

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