When Silence Does Not Equal Consent: Implied Consent, Espinosa, and the Chapter 13 Trustee

By Phil Lamos, Attorney Representing Chapter 13 Trustee Craig Shopneck, Cleveland, OH

Regarding Henry is a terrible movie. It’s predictable, saccharine, and it stands for the idea that the only good lawyer is one who’s had the supply of oxygen to his brain cut off for awhile. There is, however, one brief scene in the movie that’s relevant to the Chapter 13 process. Early in the movie, the evil lawyer played by Harrison Ford is disciplining his daughter, and he browbeats her with some kind of action plan. She says nothing, so he . . .

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How to Manage Unprofessional and Discourteous Attorneys

The NACTT Emeritus Trustees

December 4, 2022

Many have had the unpleasant experience of coping with an ill-mannered and disrespectful opposing counsel. Unnecessary motions are filed and unfounded allegations are asserted. Relief requested has no basis in fact or law. Temperatures rise. The volume of argument is loud. Your staff and you are upset. What to do?We asked the Emeritus Trustees and here are some recommendations: First,...

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Section 302: Joint but Separate

Queneshia Fleming

September 24, 2023

“The ambiguity of § 302 raises the question:are jointly administered cases two separate estates? If jointly administered cases are two separate estates, are trustees doing it wrong?”

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Topp – Upending Till??

Jody Bledsoe

August 27, 2023

The Eighth Circuit recently released its Topp opinion. At issue was the appropriate starting point for determining the discount rate to be used when paying secured claims under a chapter 12 plan. The debtor, who had gained confirmation of his plan before the bankruptcy court, proposed paying claims to Farm Credit Services over 20 years at a rate based on the...

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Critical Case Comment – Stay Violation: Repossession No, Sale Yes

Henry E. Hildebrand, III

November 6, 2022

Although the retention of collateral validly repossessed prior to the filing of the petition does not violate the stay, the sale of that property does violate the stay and the sale is void. (Bonapfel) In re Rakestraw, 2022 WL 4085881 (Bankr. N.D. Ga. Sept. 6, 2022) Case Summary Ms. Rakestraw filed Chapter 13 on August 12, 2022, listing her ownership...

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Small Business Reorganization Act…(“SBRA”) H.R. 3311 – Part Two

September 22, 2019

By Jan Hamilton, Chapter 13 Standing Trustee (Topeka, KS) I. The Plan1 A. Notions to Consider before the Plan is Filed… Time for Filing of the Plan. No later than 90 days after the filing of the case, the debtor is required to file a plan, unless the court extends the time if the “need is attributable to circumstances for...

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Diaz: Is it Really a Tax Refund?

December 20, 2020

By Cathy Moran, Esq., Moran Law Group (Redwood City, CA) On its face, Diaz (Diaz v. Viegelahn, No. 19-50982 (5th Cir. Aug. 26, 2020)) is a pretty straightforward decision that struck down a local form plan as violating a below-median income debtor's right to use her tax refund to finance necessary expenses for maintenance and support. On a deeper level,...

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Preferences: When does the Clock Start Running?

Alan C. Hochheiser

February 19, 2023

Creditors may now be subject to more preference actions, especially for those cases filed in Indiana. The Seventh Circuit recently overturned long-standing precedent that the preference period on garnishment of attachment would no longer run from the date of service or knowledge of the attachment but when the funds were paid over. The Seventh Circuit Court of Appeals in Mark...

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Federal Payments for Foster Care and Adoption Assistance in Bankruptcy

April 11, 2021

By Kara K. Gendron, Esquire, Mott & Gendron Law (Harrisburg, PA) If a Chapter 13 Debtor has adopted a child who is eligible for assistance under Title IV-E of the Social Security Act, should those funds which were received in the six months prior to filing the petition be included in the Official Form 122C–1 Chapter 13 Statement of Current...

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Here’s What People Should Know About Taking Early Withdrawals from Retirement Plans

April 21, 2019

Taxpayers may need to take money out of their individual retirement account or retirement plan early. However, this can trigger an additional tax on top of other income tax they may owe. Here are a few key things for taxpayers to know: Early Withdrawals. An early withdrawal normally is taking cash out of a retirement plan before the taxpayer is...

Bankruptcy Court Broadly Interprets “Engaged in Business” Requirement for Subchapter V Eligibility

May 23, 2021

By Lawrence R. Ahern, III, Brown & Ahern (Nashville, TN) Introduction The Bankruptcy Court for the District of Colorado ruled recently, in a case styled In re Ikalowych,1 that while eligibility for subchapter V of Chapter 112 requires that 50% of a debtor's debt must arise from commercial or business activities, the debtor was not required to be directly involved...

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