From the Editor – Automatic Stay

By The Honorable William Houston Brown (Retired)

Creditor violated stay by serving debtor with state suit at meeting of creditors. When the Chapter 7 debtor appeared for the meeting of creditors, a creditor served the debtor with summons and complaint filed in state court, for a cause of action filed postpetition but related to prepetition debt. Finding that the creditor willfully violated the stay by initiating the suit, serving the debtor and then refusing to discontinue the state suit, the debtor was entitled to attorney fees as actual damages. In re Leiba, 529 B . . .

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When The Marital Community Doesn’t Get a Bankruptcy Discharge

Cathy Moran

November 13, 2022

Community property works differently in bankruptcy. I probably don’t have to tell you that. On the issue of assets and debts, community property is pretty straightforward. All of the community property comes into the estate upon the commencement of a bankruptcy case, even when only one spouse files. §541(a)(2). Every creditor with a right to be paid from the community...

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Is Voluntary Dismissal of a Chapter 13 Case an Absolute Right?

July 12, 2020

By Daryl J. Smith, Senior Staff Attorney to Sylvia Ford Brown, Chapter 13 Trustee (Memphis, TN) and Katherine L. Rea, Staff Attorney to Pamela Simmons-Beasley, Chapter 13 Trustee (Columbia, SC) Is there ever a reason to oppose a voluntary dismissal of a chapter 13 that has not been converted from a chapter 7? Maybe. But will you be successful? Probably...

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The Untouchables – Starring Social Security Income

Nicole P. Novak

March 5, 2023

In a recent opinion, an Ohio bankruptcy court joined the majority of other courts by holding the Code excludes Social Security Act (“SSA”) benefits from disposable income.i The issue was brought before the Court by the Chapter 13 Trustee’s objection to confirmation. The objection to confirmation asserted the Debtors failed to commit all disposable income to their plan and included...

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ABI Commission on Consumer Bankruptcy – Student Loans – Suggested Regulatory and Judicial Changes

May 5, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) Section I. Student Loans, Part II – Suggested Regulatory and Judicial Changes In our last installment of the Academy Report on the ABI Commission on Consumer Bankruptcy we dealt with the ABI Commission’s suggested statutory modifications which could address some of the problems facing borrowers confronted with substantial student...

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Critical Case Comment – Frontloading Attorney’s Fees

Henry E. Hildebrand, III

August 6, 2023

Nothing prohibits the confirmation of a Chapter 13 plan which frontloads the payment of attorney’s fees ahead of payments to secured and other creditors.

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Cui Pro Bono?

The Honorable John P. Gustafson

April 17, 2022

Judge Gustafson and Daniel Tavera explore “Who Benefits” from work done in a Chapter 13 case, and they suggest that the title of this piece comes from an old-time radio show – “Yours Truly, Johnny Dollar” – one of the most popular radio shows in its day. It was a five-part show called “The Cui Bono Matter.” To hear a...

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Arbitration in Bankruptcy: Reading Opinions & Tea Leaves in Recent Supreme Court & Lower Court Actions Part IV

March 24, 2019

By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) PART IV: What's an Attorney to Do? Considerations for Counsel on all Sides of the Arbitration Question Click here for Part I Click here for Part II

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Critical Case Comment – Funds on Hand at Dismissal Go to Debtor. Not So Fast. 13 Trustee May Be Subject to State Court Proceedings

Henry E. Hildebrand, III

January 16, 2022

While a 13 trustee is partially insulated by the Barton doctrine from being dragged into state court, if a movant seeks authority from the Bankruptcy Court to pursue the trustee and satisfies the conditions of the Barton doctrine, the trustee may be subject to state court judicial proceedings. (Hall) In re Alexander Louis Bednar, 2021 WL 1625399 (Bankr. W.D. Okla....

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From the Editor – Dismissal

August 2, 2020

By The Honorable William Houston Brown (Retired) Chapter 13 debtor had absolute right to dismiss. Facing a contested confirmation hearing, the debtor moved to dismiss the case, and his estranged spouse objected. Concluding that § 1307(b) provides an absolute right to dismiss a case that had not been previously converted, the court posed questions about whether there should be limits...

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Critical Case Comment

June 16, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee Mortgage creditor may not withdraw a notice of fees, costs, and charges filed in a case after the supplement to the claim has been challenged without court approval; the allowance of such a notice will not be permitted where a state statute forbids it. Quicken...

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