Ask Ms. Ps & Qs

By Professor Nancy Rapoport

Dear Readers:

I just finished reading a disgorgement case (In re D’Arata, Case No. 18-10524-shl, United States Bankruptcy Court for the Southern District of New York, Docket No. 39.) Although D’Arata is a chapter 7 case, you might be interested in the Court’s take on appearance counsel.

In this case, the first appearance counsel (yes, there was more than one) showed up at the 341 without knowing anything about the debtor’s situation, which had included the debtor’s claim that his counsel (not the . . .

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Escrow 101 and 102

Michael J. McCormick, Esq.

August 13, 2023

In the fall of 2021, Michael McCormick provided subscribers with an EXCELLENT, expository, seven-part outline on mortgage escrow. This information is just as relevant today as when we first published it with one important update . . . When the next escrow analysis is performed and the servicer has received less than 12 payments of escrow (and often zero, as is often the case after the borrower received a forbearance during the COVID pandemic), the escrow balance will be far less than anticipated!!

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Critical Case Comment – Stay Violation: Repossession No, Sale Yes

Henry E. Hildebrand, III

November 6, 2022

Although the retention of collateral validly repossessed prior to the filing of the petition does not violate the stay, the sale of that property does violate the stay and the sale is void. (Bonapfel) In re Rakestraw, 2022 WL 4085881 (Bankr. N.D. Ga. Sept. 6, 2022) Case Summary Ms. Rakestraw filed Chapter 13 on August 12, 2022, listing her ownership...

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What Defines a Petition Preparer

Henry E. Hildebrand, III

May 26, 2024

A person or entity need not physically prepare a bankruptcy petition for a pro se debtor in order to be a bankruptcy petition preparer, but a debtor must have paid some compensation for the “services” provided.

Passing of the Honorable Randall L. Dunn

The Academy

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Retired United States Bankruptcy Judge Randall (Randy) Lawson Dunn, District of Oregon, died at home on June 7, 2023.

Vesting Victories: Chapter 13 Debtors’ Shielded Against Unlisted Asset Claims

Henry E. Hildebrand, III

August 25, 2024

Once a Chapter 13 case is completed and the debtor receives a discharge, the trustee cannot seek to reopen the case for the purpose of grabbing an undisclosed, prepetition asset and then converting the case to a Chapter 7 so it could be administered.

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

R. Michael Smith

October 23, 2022

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...

Critical Case Comment– Secured Creditor Granted Relief from Stay. But, Wait There’s More . . . No Proof of Claim.

Henry E. Hildebrand, III

July 24, 2022

Secured creditor in a Chapter 13 case entitled to relief from the stay due to lack of adequate protection where the creditor neglects to file a proof of claim and, as a consequent, received no payments under a Chapter 13 plan. (Conley) Weyer v. Valley Communities Credit Union, 2022 WL 1597293 (W.D. Wis. May 19, 2022) Case Summary Dana and...

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Eastern District of Michigan

The Academy

July 21, 2024

Notice of Continued Recall Service of Judge Thomas J. Tucker

Think Beyond The Means Test

August 23, 2020

By Cathy Moran, Esq. (Redwood City, CA) It started as a means test question: could emergency medical expenses be deemed non consumer debt. It ended up as a step back to get the bigger picture. Well-seasoned bankruptcy counsel brought the fact pattern to a list serve of colleagues. The prospective debtors’ income in a small consulting corporation is declining, his...

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Is an Unemployment Compensation Payment Exempt?

May 17, 2020

By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Introduction As of April 16, 2020, more than 22,000,000 people in the United States were reported to have filed for unemployment aid, "a staggering loss of jobs that has wiped out a decade of employment gains and pushed families to line up at food banks as they await government help."1...

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Related Articles

Escrow 101 and 102

Critical Case Comment – Stay Violation: Repossession No, Sale Yes

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Vesting Victories: Chapter 13 Debtors’ Shielded Against Unlisted Asset Claims

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