What IS a Principal Residence?

By Phil Lamos, Chief Legal Counsel, Office of the Chapter 13 Trustee Lauren A. Helbling (Cleveland, OH)

Section 1322(b)(2) of the Bankruptcy Code states that a Chapter 13 plan may not modify a claim that is “secured only by a security interest in real property that is the debtor’s principal residence.” But the inverse of this statute is true; if a debtor can prove that a claim is secured by something other than “the debtor’s principal residence” then the claim can be modified in a Chapter 13 plan. A debtor can bifurcate or even . . .

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Impact of COVID-19 and the CARES ACT on Mortgages

April 19, 2020

By Michael McCormick, Senior Partner, McCalla Raymer Leibert Pierce, LLC (Roswell, GA) H.R. 748, also known as the CARES Act (herein, “the Act”), was enacted into law on March 27, 2020. The Act is meant to address the economic fallout of the Coronavirus pandemic. The Act contains numerous consumer protections, including several pertaining to residential mortgages. Relief from Foreclosure Section...

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Supreme Court Grants Certiorari in City of Chicago v. Fulton

December 22, 2019

By William Houston Brown, Editor/Adviser, Academy for Consumer Bankruptcy Education On December 18, 2019, the Supreme Court granted the City of Chicago’s petition for certiorari, 2019 WL 6880702, from the decision of the Seventh Circuit at 926 F.3d 916 (7th Cir. June 19, 2019). The Seventh Circuit’s decision was analyzed in a prior article on this website. In its decision,...

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Critical Case Comment – Sec. 328 vs. Sec. 327 Not Exactly a Smack Down

Henry E. Hildebrand, III

July 17, 2022

A referral fee by retained special counsel paid to debtor’s attorney violates the prohibition in § 504 in that the referral fee constitutes an unauthorized splitting of attorney’s fees. (Williamson) In re Davis, 638 B.R. 198 (Bankr. M.D. Fla. March 31, 2022) Case Summary Four years after Lisa Davis filed her Chapter 13 petition, she was involved in an auto...

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From the Editor – Discharge Injunction

May 31, 2020

By The Honorable William Houston Brown (Retired) Application of Taggart to lien avoidance. When the Chapter 13 confirmed plan bifurcated the secured creditor’s claim and the secured portion had been paid in full with interest, the completion of payments voided any lien, and the creditor violated the discharge injunction by commencing foreclosure. The Panel found the plan’s language, although “inartful,”...

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Lisa L. Lambert Appointed as U.S. Trustee for the Northern and Eastern Districts of Texas

The Academy

December 1, 2024

Lisa L. Lambert has been appointed by Attorney General Merrick B. Garland as the U.S. Trustee for the Northern and Eastern Districts of Texas (Region 6). Lambert replaces Kevin M. Epstein, who filled the Region 6 role in an interim capacity and who continues to serve as the U.S. Trustee for the Southern and Western Districts of Texas (Region 7).

Separately Classifying Student Loans in Chapter 13

Scott Waterman

May 12, 2024

Big news . . . Sneak peak . . . Coming in July . . . You are gonna want this article (just sayin’) Starting July 1st, Chapter 13 debtors in Federal Student Loan income-driven repayment plans will no longer need to classify their student loans separately to receive IDR credit. Credit towards forgiveness will be awarded for each month of trustee payments, regardless of payments made directly to the Department of Education.

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Yet Another Reason Why the Means Test is “Broken”

Thomas D. DeCarlo

December 18, 2022

The Bankruptcy Code produces some difficult results. Sometimes those results pass difficult and extend into problematic. The Bankruptcy Court for the District of Idaho crossed well over difficult in In re Clifford, 2022 WL 16727279 (Bankr. D. Id. 2022). The question addressed in Clifford is one that comes up in every Chapter 13 case – how do we calculate “Current...

Critical Case Comment – Playing the System – Good or Bad Thing??

Henry E. Hildebrand, III

October 8, 2023

Chapter 13 debtor that repeatedly fails to maintain payments to the mortgage servicer directly as provided in the original plan and in all amendments is not acting in good faith and has misled the court as to feasibility of the plan justifying dismissal of the case.

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ABI Commission on Consumer Bankruptcy – Judicial Estoppel

June 30, 2019

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) Over the past twenty years, the judicial estoppel doctrine has had a significant impact on people who file bankruptcy. Judicial estoppel has grown to be a significant issue within the consumer bankruptcy system. The Commission was asked to address it. Judicial estoppel is a doctrine created to protect the...

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Fourth Circuit Examines Tenancy by Entirety

The Honorable William Houston Brown

May 19, 2024

The Fourth Circuit ruled that federal tax debts can affect one spouse's interest in such property, even if the debt isn't jointly held. They also clarified that the value of a debtor's share in this type of property isn't necessarily the fair market value of the whole property, but rather their interest in the tenancy.

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