Recent Cases Navigate Retirement Account Exemptions

“Several recent bankruptcy cases have considered the circumstances under which funds held in, derived from, or contributed to a retirement account may be exempt from the bankruptcy estate.”

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Karen Jolley

Staff Attorney to Kara L. West, Chapter 12 and 13 Standing Trustee for the Eastern District of Tennessee, Southern Division (Chattanooga, TN)

Karen Jolley is a staff attorney to the Chapter 12 and 13 Trustee for the Eastern District of Tennessee (Southern Division), Kara L. West. Previously, she worked as a judicial law clerk to U.S. Bankruptcy Judge Shelley Rucker, U.S. Magistrate Judge Susan Lee, and Tennessee Court of Appeals Judge Charles Susano, Jr. She is a graduate of the University of Tennessee College of Law, the University of Maryland’s Philip Merrill College of Journalism, and Denison University.

Don’t Be Dismissive – Rule 41

Cathy Moran

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I was the third attorney on this lien avoidance matter. Instead of it being “third time’s the charm”, it came close to being “three strikes and you’re out.” All because of FRBP 7041. This was the set up: debtor’s original counsel filed a number of lien avoidance actions, including the one against a landlord with a large default judgment. The...

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The Academy

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Notice of Continued Recall Service of Judge Thomas J. Tucker

Discharging Student Loans Under §523(a)(8)? Don’t Consolidate After Filing!

Scott Waterman, Josh Cohen

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If you intend to seek to discharge student loans under §523(a)(8), do not consolidate the loans after the case is filed. Prebankruptcy planning is most important if one wishes to discharge student loans. A recent Texas Chapter 7 case highlights the pitfalls if one does not act accordingly. Debtors obtained 27 separate student loans prior to when they filed their...

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Critical Case Comment

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By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) In calculating an above-median income debtor’s projected disposable income, the court may deduct from the debtor’s current monthly income only the expenses as listed in the IRS manual and not the debtor’s actual expenses. (Taylor) In re Rodriguez, 520 B.R. 94 (B.A.P. 9th Cir....

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Nancy B. Rapoport

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“ . . . how can I not write about an opinion that begins, “This is a case of sue first and ask questions later”? We all know that Judge Christopher Klein has a way with words and a precise and methodical way of approaching statutory analysis.”

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By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Wonk Alert This Part 2 wraps up some suggestions about how the parties to residential mortgages may avoid or minimize problems in the structuring and administration of these loans, with a discussion of subsection 1111(b) of Bankruptcy Code.1 This discussion may seem arcane, as indeed many experienced Chapter 11 practitioners...

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Postpetition Borrowing by a Consumer Debtor in Chapter 13 – Part 2 of 2

May 12, 2019

By Judge Michael A. Fagone & Career Law Clerk Ciera S. Dye III. Policy Considerations Where the statute does not provide definitive guidance, courts often turn to policy considerations. How do those considerations weigh out here? One answer is that policy considerations cut against imposing any sort of requirement of preapproval for postpetition borrowing by a consumer debtor. Several reasons...

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Tax Form 1099 Needs A Closer Look: Chances Are It’s Wrong

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By William J. Purdy, III, Simmons & Purdy (Soquel, CA) Hundreds of thousands of taxpayers in the past few weeks have looked at or at least thought about, Form 1099-A or Form 1099-C documents they have received. Some arrived in the tax year a debt was allegedly cancelled. Others are issued by financial instructions many years after they should have...

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The Academy

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FFIEC Issues Statement on Examination Principles Related to Valuation Discrimination and Bias in Residential Lending

Unscheduled Creditor May Not File a Late Proof of Claim

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By Beverly M. Burden, Standing Chapter 13 Trustee (Lexington, KY) An unscheduled creditor without notice of the bankruptcy case was denied an extension of time to file a proof of claim pursuant to Bankruptcy Rule 3002(c)(6)(A) in a recent opinion from the Eastern District of Kentucky. In the case of In re Fryman,1 the debtor did not include creditor Kentucky...

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