Best Practices in Bankruptcy: Power of Attorney or Guardian

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 of attorney (POA). What sort of inquiry is necessary and proper in those cases?See generally Keith M. Lundin, Lundin on Chapter 13, Section 10.9 “Petitions on Behalf of Others: Incompetents, Next Friends, Powers of Attorney, and the . . .

It looks like you are not signed in or registered! This content is only available to members.

Or Sign In Below:

Michael B. Joseph

Former Chapter 13 Trustee

Michael B. Joseph was the Chapter 13 Trustee for the District of Delaware (appointed in 1987) and has served as a Chapter 7 Bankruptcy Trustee (appointed in 1981) and a Chapter 12 Case Trustee. He also is a founding Director of the Wilmington, Delaware law firm of Ferry, Joseph, P.A. Mr. Joseph received his B.A. from Rutgers University (1972) and his J.D. from Widener University (1975). He is admitted to practice in Delaware (1976), New Jersey (1977), United States District Court for the District of Delaware (1977) and the Third Circuit Court of Appeals (1990). Mr. Joseph is a Fellow of the American College of Bankruptcy. Mr. Joseph is a Past President of the National Association of Chapter 13 Trustees (2010-2011) He also has served as a member of the Liaison Committee to the U.S. Department of Justice Executive Office for United States Trustees in Washington, D.C. (2006-2011). He is a member of the Bankruptcy Section of the Delaware State Bar Association, and the American Bankruptcy Institute.

Surrender of Collateral in a Plan- What Is the Court to Do if the Debtor Doesn’t Follow Through?

June 2, 2019

By Tammy E. Stickley and Francis J. DiCesare, Staff Attorneys for Margaret A. Burks, Esq. Chapter 13 Standing Trustee (Cincinnati, OH) In a media age in which people expect to be told when “spoilers” are ahead, this summary needs no such warning. Courts have little patience for debtors who surrender collateral – especially real estate – then oppose the foreclosure...

Members

Why Listening Is a Bankruptcy Lawyer’s Superpower

Cathy Moran

February 18, 2024

The initial meeting with a prospective bankruptcy client is the most important work I do as a bankruptcy lawyer. It’s also the hardest.

Members

Critical Case Comment – 3002.1 and Reverse Mortgages

Henry E. Hildebrand, III

January 23, 2022

Requirements and remedies in Rule 3002.1 apply to reverse mortgages as well as conventional mortgages; while discharge of Chapter 13 plan does not discharge a mortgage obligation treated pursuant to § 1325(b)(5), the court may prohibit prospective use of a nondisclosed obligation as grounds for a default. (Waites) In re Legare-Doctor, 2021 WL 5712149 (Bankr. D. S.C. Dec. 1, 2021)...

Members

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

January 20, 2019

By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) PART I: Statutes, Rules & Supreme Court (In)actions Introduction Click here for Part II Click here for Part III Click here for Part IV What is the effect of an arbitration clause in bankruptcy? When . . . It looks like you are not signed in or registered! This content...

Members

Critical Case Comment – Objection to Entire Housing Allowance Overruled

Henry E. Hildebrand, III

March 3, 2024

This is a potential BIGGIE . . . Where a Chapter 13 debtor incurs one relatively small expense covered by the IRS Local Standards, the debtor is entitled to deduct from CMI the entire allowance to calculate Projected Disposable Income.

Members

Critical Case Comment – “Extraordinary” Key to Set Aside Dismissal

Henry E. Hildebrand, III

November 13, 2022

Chapter 13 debtor must demonstrate extraordinary circumstances to justify the extraordinary relief of setting aside or “reconsidering” an order dismissing a Chapter 13 case. (Cary) In re Canas, 2022 WL 10707000 (Bankr. D. Ma. October 18, 2022) Case Summary Nelson and Annemarie Canas filed a Chapter 13 petition in August of 2019. The debtors immediately fell behind on their proposed...

Members

IRS Issues Standard Mileage Rates For 2019

January 6, 2019

IRS issued the 2019 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes. Beginning on Jan. 1, 2019, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be: 58 cents per mile driven for business use, up 3.5 cents from...

May the Chapter 13 Trustee Keep Fees Paid Before Dismissal?

Lawrence R. Ahern, III

April 10, 2022

Larry Ahern this week begins a two-part examination of whether a Chapter 13 trustee may retain fees paid without a confirmed plan before dismissal. Part 1 is a detailed analysis of McCallister v. Evans, a recent case accepting the trustee's position considering a division in the caselaw and analyzing in detail the relevant statutes. May the Chapter 13 Trustee Keep...

Members

341s: The Good, the Bad and the Ugly

Brandi Manuel Jolley

November 19, 2023

“The chief obstacle we have had since starting Zoom revolves around the lack of high-speed internet in our division.”

Critical Case Comment–Sex, Lies and the Barton Doctrine

Henry E. Hildebrand, III

March 27, 2022

The issuance of a subpoena to a Chapter 7 trustee by a third party was subject to the Barton Doctrine and could not be permitted without the parties seeking bankruptcy court consent. (Clarkson) In re Eagan Avenatti, LLP, 2022 WL 630332 (Bankr. C.D. Cal. March 3, 2022) Case Summary Eagan Avenatti, LLP, was the California law firm of the somewhat...

Members