Ask Mr. Civil Procedure Man

Mr. Civil Procedure Man is gratified to have questions for this column that do not involve service of process in odd kinds of bankruptcy proceedings, though Mr. Procedure Man admits that most bankruptcy proceedings seem odd to him.

Question No. 1: My question has to do with the real party in interest requirement in Rule 17 (FRBP 7017). Generally, the question is, how does that requirement apply to mortgage servicers? But I’m curious about two different scenarios.

The first scenario is the common one. The servicer collects payments on behalf of another party. The servicer . . .

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From the Editor

March 17, 2019

By Wm. Houston Brown, United States Bankruptcy Judge (Retired) Confirmation - Bankruptcy court could not sua sponte object to confirmation. Distinguishing between “self-executing” provisions of the Code and those sections that were not “self-executing,” and discussing Espinosa’s impact on that distinction, District Court held that the bankruptcy court could not sua sponte object to confirmation based on the above- median...

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These Summer Activities Can Affect Next Year’s Tax Returns

August 11, 2019

Summertime activities often affect the tax returns people file the following year. Here are some things taxpayers do during the summer along with tips they should consider now: Getting married. Newlyweds should report any name change to the Social Security Administration. They should also report an address change to the United States Postal Service, their employers, and the IRS. This...

Avoidance Powers in Chapter 13 – Part 5 of 6

January 27, 2019

By John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio, Western Division (Toledo, OH) Click here for Part 1 Click here for Part 2 Click here for Part 3

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Weighted Caseload: Why It Matters and How It Works and Doesn’t Work

Honorable Brian D. Lynch

December 31, 2023

“Currently, if a district’s weighted caseload is below one-thousand per the number of judges in that district . . . in all probability, recommend that the circuit not replace the judge.”

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Is This Corporation Really Separate from Its Owners: A Checklist

Cathy Moran

October 1, 2023

In a perfectly executed world, clients who do business via an entity like a corporation or LLC would arrive with their business lives neatly separated from their personal lives. However, that’s not the world I practice in. It’s probably not yours, either. Instead, I have to sleuth out the facts, and compare them to the individual’s version. I see prospective...

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NCLC Seeks Signers Urging Foreclosure Pause When HAF Applied For

The Academy

January 16, 2022

NCLC seeking non-profit organizations to sign two letters (one to the CFPB and one to FHFA, FHA, VA, and USDA) urging the agencies to require servicers to pause foreclosure activity for at least 60 days after being notified that a borrower has applied for HAF assistance and meets conditional program eligibility. We ask organizations to sign both letters, and the...

Critical Case Comment

June 13, 2021

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of TN (Nashville) In awarding attorneys’ fees in a Chapter 13 case, a court is not limited to establishing the fee by use of the lodestar method; fees for services rendered should be based on the reasonable and customary fees charged by other attorneys performing the same...

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Critical Case Comment

September 20, 2020

By Henry E. Hildebrand, III, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) A Non-Governmental Private Student Loan Obligation is not always excepted from discharge by § 523(a)(8). (Holmes) McDaniel v. Navient Solutions, LLC, 2020 WL 5104560 (August 31, 2020) Case Summary Bryon and Laura McDaniel filed a Chapter 13 petition in 2009. They acknowledged that, among...

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“Lien Stripping” Based on Claim Disallowance by Default: Ninth Circuit Clarifies its Rule

June 7, 2020

By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Introduction Chapter 13 practitioners certainly do not need to be told that a lender with a mortgage1 on the debtor's principal residence has a special position in a Chapter 13 case. A chapter 13 plan may "modify the rights of holders of secured claims, other than a claim secured only...

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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)...

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