From the Editor’s Desk – Plan Modification

By The Honorable William Houston Brown (Retired)

Change of circumstances required for post-confirmation modification. Reviewing issues concerning the requirements for modification of confirmed plans, the court noted first that § 1329 provides for the court’s discretion in whether to approve modification, and that there was a split of authority on whether a change in circumstances is required as a threshold. The court held that in considering motions to modify, it would consider whether the proposed modification fits within the statutory grounds of § 1329, whether the circumstances giving rise to the proposed modification were unknown or . . .

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Escrow 102 – Part 1 of 4

September 26, 2021

By Michael J. McCormick, Esq., McCalla Raymer Leibert Pierce, LLC (Roswell, GA) Introduction In the prior articles (i.e., Escrow 101 Part 1, Escrow 101 Part 2, and Escrow 101 Part 3), I outlined the proper steps in conducting an escrow analysis, as well as some of the mortgage servicer’s obligations and options for having a borrower cure an escrow shortage...

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Critical Case Comment–The Not DSO POC

Henry E. Hildebrand, III

June 5, 2022

The bankruptcy rights of an ex-member of anunmarrieddomestic couple, now separated are not the same as those of an ex-spouse; the language of a domestic arbitration can clearly dictate if property is vested in the ex or is a simple money judgment. (Hamilton) In re Harshaw, 2022 WL 533701 (7th Cir. February 23, 2022) Case Summary Donald Harshaw was married...

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Reasonable Fees and/or Questionable Attorney

May 17, 2020

By Marsha M. Brown, Staff Attorney to Chapter 13 Trustee Douglas W. Neway (Jacksonville, FL) We talk about it daily - emailing issues back and forth as to what is reasonable and what is not. Should every Court have a basic reasonable fee structure or should every attorney be required to file an application to prove the reasonableness of his/her...

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6 Steps to Ethical Unbundling of Bankruptcy Representation

March 21, 2021

By Cathy Moran, Esq. (Redwood City, CA) No matter how many hoops the client dutifully jumped through, without adequate inquiry and communication, the bankruptcy attorney was slammed for unbundling his services. The representation agreement at issue excluded representation in any adversary proceeding filed, as do most such agreements, I imagine. The client initialed every paragraph of the 19-paged representation agreement,...

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Small Business Chapter 11 Update, Where Are We Eight Months In?

November 22, 2020

By M. Jonathan Hayes We are now eight months into the Small Business Reorganization Act of 2019, which took effect in February. The act attempted to establish a cheaper, quicker route for small businesses to reorganize under new Subchapter V of the bankruptcy code. Here are a few of my observations over the past several months. First, some small businesses...

FDIC and OCC Proposals Threaten Expansion of Predatory Lending

January 19, 2020

Two new proposals from the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) could make it easier for payday and other high-cost lenders to use banks as a fig leaf, allowing online lenders to offer predatory loans at interest rates that are prohibited under state law. Online lenders have become increasingly bold in...

Critical Case Comment – How Many Cats?

Henry E. Hildebrand, III

August 7, 2022

Even though the Chapter 13 debtor’s 36 cats were property of the estate, the county animal control office could pursue possession of the cats and resulting disposition (by way of adoption). (Hagenau) In re Karen Mitchell-Smith, 2022 WL 2195466 (Bankr. N.D. Ga. June 17, 2022) Case Summary Sometime in 2021, Henry County Animal Control took possession of 36 cats that...

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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Brace & Beyond: Joint Tenancy & Transmutation

November 8, 2020

By Cathy Moran, Esq., Moran Law Group (Redwood City, CA) For Californians, the CA Supreme Court’s decision in Brace this summer upended our understanding of joint tenancy and community property. For decades, we “knew” that a property couldn’t be . . . It looks like you are not signed in or registered! This content is only available to members. Join...

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Critical Case Comment – Siegel v. Fitzgerald

Henry E. Hildebrand, III

June 19, 2022

Congress’ enactment of differing fees for U.S. Trustee states and Bankruptcy Administrator states violated the uniformity provision of the Bankruptcy Clause of Article I of the Constitution. (Sotomayer) Siegel v. Fitzgerald, 2022 WL 1914098 (S.Ct. June 6, 2022) Case Summary In 2008, the retail chain, Circuit City Stores, filed a Chapter 11 petition. In 2010, Circuit City’sliquidating plan was confirmed...

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