From the Editor – Discharge Injunction

By The Honorable William Houston Brown (Retired)

Only bankruptcy court issuing discharge order can enforce injunction. The Fifth Circuit held that only the bankruptcy court issuing a discharge order has authority to enforce the discharge injunction. The opinion reviews pre-2005 Code provisions and current 28 U.S.C. § 1963, citing other Circuits that “have insisted on a return to the bankruptcy court whose discharge order created the injunction.” This Circuit adopted “the language of the Second Circuit that returning to the issuing bankruptcy court to enforce an injunction is required at least in order to . . .

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The Unintended Filing Bar – Don’t Ignore MFR on Surrendered Property

Molly Simons

June 26, 2022

Consider if you will that your client has just filed a Chapter 13 Bankruptcy. They have intelligently chosen to surrender a luxury item - a boat or 4-wheeler or even that extra vehicle they don’t need. Because the creditor would like to preserve the value of the collateral by obtaining possession quickly, they file a Motion for Relief shortly after...

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From the Editor – Claims

February 9, 2020

By The Honorable William Houston Brown (Retired) Unreasonable fees for proof of claim. $4,000 fee for private mortgagee’s proof of claim and objection to proposed plan was unreasonable, and creditor was denied recovery of $7,500 attorney fee for responding to debtor’s objection to proof of claim. The Court considered Fannie Mae’s guidelines for maximum fees related to proof of claim...

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I Feel A Change Coming On (Song by Bob Dylan, 1964)

January 24, 2021

By Merideth Akers, CPA, PHR, Comptroller for Bradford W. Caraway (Birmingham, AL) The Covid-19 pandemic postponed the 2020 Masters Golf Tournament, originally scheduled for early spring. It was eventually held November 12th through 15th. The winner was Dustin Johnson. Additionally, the 2020 Wimbledon Tennis Tournament was cancelled for the first time since 1945 (due to World War II). For the...

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Best Practices in Bankruptcy: Power of Attorney or Guardian

Michael B. Joseph

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It is always troublesome when an individual bankruptcy petition is filed by power of attorney. It may be less of a concern in a chapter 7 case when the debtor is in the military, incarcerated, or temporarily disabled. More worrisome is the incompetent or advanced aged debtor who has been placed in a chapter 13 by someone holding a power...

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June 23, 2019

By Herbert L. Beskin, Chapter 13 Trustee for the Western District of Virginia (Charlottesville) Let’s take the following set of facts and see how it plays out in the labyrinthian world of hardship discharge of student loan debt. The case is In re Lozada (Lozada v. Educational Credit Management Corporation), 594 B.R. 212 (Bankr. S.D. N.Y. 2018). Years ago (30...

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A Confirmed Plan with a Marijuana Wrinkle

May 19, 2019

By Gretchen D. Holland, Standing Chapter 13 Trustee for the Greenville/Spartanburg Division of South Carolina Although this is a chapter 11 case, it has chapter 13 implications because the confirmation requirement that a plan be “proposed in good faith and not by any means forbidden by law” is identical in both chapters (§ 1129(a)(3) and § 1325(a)(3)). Garvin v. Cook...

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Per Capita Bankruptcy Filings Heat Map

November 24, 2019

____________________________ Prior to his appointment as a bankruptcy judge for the District of Utah in September of 2015, Judge Anderson served for seventeen years as the Standing Chapter 13 Trustee for the District of Utah. During this time, he administered over 70,000 Chapter 13 cases. Judge Anderson was elected president of the National Association of Chapter 13 Trustees (NACTT), and...

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Critical Case Comment – What Does a Tax Return Really Tell Us??

Henry E. Hildebrand, III

May 7, 2023

Chapter 13 debtor has no obligation to voluntarily disclose changes in income or the acquisition of post-petition assets absent a request from a party in interest for such information. (Kendig) In re Poe, 2022 WL 3639415, (Bankr. N.D. Ohio August 22, 2022) Case Summary Mr. Poe filed a Chapter 13 petition in March of 2019. At the time of filing,...

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Never Let a Good Crisis Go to Waste: The Bankruptcy Amendments in the Consolidated Appropriations Acts of 2021

January 10, 2021

By Henry E. Hildebrand, III, Chapter 13 Trustee (Nashville, TN) Other than a recluse without any information of current events, we have been made fully aware of the fact that Congress was fashioning a second stimulus/COVID relief bill. The result is the Consolidated Appropriations Act, 2021; a massive bill with more than 5,300 pages governing a huge expanse of appropriations,...

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The Kill Switch and The Stay

July 11, 2021

Kara K. Gendron, Esquire, Mott & Gendron Law (Harrisburg, PA) A “kill switch” is a device which can be used to disable a machine or program. They have been used for years in a myriad of safety measures, such as shutting down machinery in the event of an emergency, or to prevent the theft of a machine or data. Some...

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