From the Editor – Fair Debt Collection Practices Act

By The Honorable William Houston Brown (Retired)

Proof of claim by debt collector did not trigger FDCPA violation. Granting debt collector’s motion to dismiss the Chapter 13 debtor’s putative class action, which alleged violations of the FDCPA when the debt collector was not licensed in the State of Florida, the district court held that proofs of claim were “formal pleadings in a civil action for purposes of the FDCPA.” As a result, proofs of claim are specifically excluded from the “initial communication” requirements of the Act’s § 1692. The Bankruptcy Code precludes causes of . . .

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Consumer Bankruptcy Reform Act of 2020 Introduced

December 13, 2020

By Hon. William Houston Brown, Adviser, Academy for Consumer Bankruptcy Education and Margaret A. Burks, Chapter 13 Trustee (Cincinnati, OH) Senator Elizabeth Warren (D. Mass.) and House Judiciary Committee Chairman Jerrold Nadler (D. N.Y.) have introduced the Consumer Bankruptcy Reform Act of 2020. Introduction of the Act is only the beginning of the legislative process, and no action toward enactment...

Supreme Court Revisits Finality of Orders in Bankruptcy: Comment on Ritzen and Review of “Finality”

February 9, 2020

By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Introduction The Supreme Court unanimously held on January 14 that an order denying stay relief was final in Ritzen Group, Inc. v. Jackson Masonry, LLC.1 Thus, the creditor should have appealed the denial instead of waiting until later in the case to seek again to pursue its pre-bankruptcy litigation against...

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Bankruptcy Court Finds Jurisdiction to Hear Discharge-Injunction Violation Class Action

May 9, 2021

By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Introduction The Bankruptcy Court for the Eastern District of New York ruled last month, in a case styled In re Ajasa,1 that bankruptcy courts have subject matter jurisdiction to consider nationwide class actions that allege contempt of discharge injunctions. The broader effect of the opinion is that a discharge injunction...

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IRS Updates Guidance for Deductible Business, Charitable, Medical and Moving Expenses

November 17, 2019

11/14/19, the IRS issued guidance for taxpayers with certain deductible expenses to reflect changes resulting from the Tax Cuts and Jobs Act (TCJA). Revenue Procedure 2019-46, posted today on IRS.gov, updates the rules for using the optional standard mileage rates in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes. The guidance also...

Evidentiary Issues Arising from Attempts to Prove Alleged “Facts” Stated in The Monster Mash

October 27, 2019

By Alexander Schmidt1, Law Clerk, and The Honorable John P. Gustafson, United States Bankruptcy Court for the Northern District of Ohio (Toledo) You have never heard – or seen – the Monster Mash. What have you heard, is a song ABOUT the Monster Mash. Let that sink in for a minute. Inevitably, that leads to the obvious question: What facts...

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ABI Commission on Consumer Bankruptcy – What Does It Mean to Surrender?

November 24, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) One of the most confusing elements in consumer bankruptcy practice is the effect of electing the option given in § 1325(a)(5)(C) or § 521(a)(2). Section 521(a)(2) requires every debtor to file a statement of intent that indicates whether the debtor intends to “surrender or retain” estate property which secured...

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Critical Case Comment – Nothing Requires a Plan to Provide for All Secured Claims

Henry E. Hildebrand, III

December 12, 2021

If a Chapter 13 plan makes no provision for a mortgage obligation, omits any treatment of the mortgage claims, and prohibits the Trustee from making disbursements toward the claims, the claims are not provided for by the plan and the plan can be confirmed over the objection of the creditor and the trustee; nothing requires a plan to provide for...

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From the Editor – Claims

February 9, 2020

By The Honorable William Houston Brown (Retired) Failure to include creditor on matrix not grounds to extend time for proof of claim. The Chapter 13 debtor had timely filed her list of creditors, pursuant to Rule 1007(a), but she failed to include a creditor either on that list or in the schedules, resulting in the creditor not receiving notice of...

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Post-Petition Causes of Action, Inheritances and Windfalls Are Property of the Estate and Must Be Reported to the Trustee – Part 1 of 5

July 14, 2019

By John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio, Western Division A. Property Acquired After The Filing Of The Chapter 13 Case: The Different Approaches. 1. Property Acquired Post-Petition vs. Property “Vesting In The Debtor”. Click here for Part 2 The broad issue of what becomes property of the Chapter 13 estate post-petition involves consideration of two...

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ABI Commission on Consumer Bankruptcy – Dischargeability of Homeowner Association Fees

May 19, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) Homeowner association fees that obligate homeowners of condominium and planned unit developments can be a substantial obligation that accrue on a monthly basis. These obligations are generally a burden when a debtor files for bankruptcy relief. To be fair, homeowners’ associations provide a significant benefit to homeowners. Exterior maintenance,...

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