In order to modify a plan confirmed under Chapter 12 pursuant to § 1229, the movant must demonstrate that there was a substantial change in circumstances that is sufficient to justify modification of a plan.  (Norton) Farm Credit Services of America PCA v. Swackhammer, 2023 WL 3591920 (8th Cir. BAP May 23, 2023) Case Summary The Swackhammers were farmers who...

Background - In re Taggart In 2019, the Supreme Court rendered its opinion in In re Taggart,1 which was the subject of earlier analyses: (1) Is a Finding of Contempt Precluded by a "Good Faith" but Unreasonable Belief that an Action Does Not Violate the Discharge Injunction?; (2) Looking Beyond . . . It looks like you are not signed...

By The Honorable William Houston Brown (Retired) Class action certification on predominance. The Eleventh Circuit remanded, finding that the District Court had abused its discretion in refusing to certify a class on a predominance theory for former debtors who had obtained discharge of personal liability on residential mortgages and who asserted violations of the FDCPA by a loan servicer. The...

Bankruptcy Court found violation of automatic stay to be “technical”, thus no damages. Ninth Circuit BAP did not agree. Continuing to pursue state court fraudulent transfer action after transfer or filed for Chapter 7 relief violated the automatic stay; even if the violation of the stay is “technical”, damages, including attorneys’ fees and costs, should be assessed against the violator....

By The Honorable William Houston Brown (Retired) Punitive damages reduced for FDCPA and RESPA violations. The mortgage servicer violated FDCPA, RESPA and the Illinois Consumer Fraud and Deceptive Business Practices Act by treating account as delinquent after Chapter 13 debtor had cured arrears, brought account current and obtained discharge. The servicer mistakenly marked the Chapter 13 case as dismissed rather...

By The Honorable William Houston Brown (Retired) Junior mortgage lienholder not affected by modifications of senior mortgage. Under Pennsylvania law, the prepetition modification of terms of the senior mortgage had recapitalized interest and costs already owed but had not created new liabilities. As a result, the junior mortgage holder was not materially prejudiced. The Chapter 13 debtors could avoid the...

In these times of fewer case filings, it may be helpful to look at ways that debtor attorneys may build and strengthen their chapter 13 bankruptcy practice. The following are some recommendations and ideas from the Emeritus Trustee Committee:

By Leo G. Spanos, Senior Staff Attorney to Martha G. Bronitsky, Chapter 13 Trustee, Northern District of California (Oakland Division) 1. Background & Purpose of Means Test One of the most significant changes introduced BAPCPA is the requirement of a means test to determine whether a debtor qualifies for Chapter 7 relief or, if not, how much a debtor must...

By Scott Waterman, Standing Chapter 13 Trustee Eastern District of Pennsylvania (Reading) Citing Pennsylvania law, a Federal District Court in In re Hamilton (Hamilton v. Pennsylvania Housing Finance Agency), ___ B.R. ____ (E.D. Pa. 2020) refused to apply the equitable subordination doctrine to reorder the priority of mortgages after the first mortgage lender granted the debtors a loan modification prior...

By Wayne Silver, Wayne Silver Law (Redwood City, CA) There you are, client on the witness stand, judge listening intently, story being told on direct exactly the way you prepared her, things going just swimmingly. And then opposing counsel stands and utters those two lovely words…”Objection, hearsay.” Huh? That’s ridiculous, you confidently think to yourself, just as you hear the...