|
December 31, 2012 |
Home |
Happy New Year!
The Academy wishes to thank our loyal members, fabulous authors and regular contributors for a wonderful 2012. You all have made it possible for the Academy to grow and develop into the premier site for all things consumer bankruptcy.
We are looking forward to an exciting 2013. If you are interested in contributing ideas or articles, don’t hesitate to contact us.
And remember that your $$ monetary donation $$ to the Academy is tax deductible.
Four Bankruptcy Forms Changed December 1st (Reprinted with permission from BankruptcyLawNetwork.com)
By Jill Michaux, Kansas Bankruptcy Attorney
The Academy is pleased to reprint Ms. Michaux’ article originally published on the Bankruptcy Law Network. Four official bankruptcy form changes went into effect December 1, 2012. The changed forms are B7, B9, B10, and B21. Be sure you are using the latest version of these forms. (This article is NOT password protected.)
Ms. Michaux was recently appointed to the Advisory Committee on Bankruptcy Rules by Chief Justice John Roberts.
NATIONAL PLAN FORM WEBINAR: A Pro and Con Discussion
Judge Eugene Wedoff, Henry Hildebrand and John Gustafson discuss ups, downs and questions regarding the proposed form. Click here for the archived webinar, click here for a PDF of the PowerPoint, and click here for the most recently revised Form and rules (fresh from the Committee).
See also: Chapter 13 National Plan Form and Rules Amendments: Speak Now or Forever Hold your Peace (This article is NOT password protected.)
Balboa Accepted to American College of Bankruptcy
Congratulations to Isabel Balboa on being accepted as a member of Class 24 of the American College of Bankruptcy. Trustee Balboa is a loyal member and regular contributor to ConsiderChapter13.org. She is a native of Havana, Cuba, and has been the Chapter 13 Standing Trustee for Region 3 assigned to the State of New Jersey, Camden Vicinage, since 1997.
Bankruptcy Mortgage Project
So, have you seen this website? If not, check it out. It is a helpful link for mortgage issues from our friends at NCLC. Click the state you are interested in to find all kinds of mortgage related forms from Local Rules to Loss Mitigation and Mediation. Check it out and let us know if you like it.
Judge Joseph “Jerry” Patchan Passes Away
Our condolences to the family of Judge Patchan who passed away on Christmas day. Judge Patchan’s career spanned more than 40 years. He served as Executive Director of the UST Program. He established the National Bankruptcy Training Institute, was a member of the Advisory Committee of Bankruptcy Rules, was a founding member and former board member of the American Bankruptcy Institute, a Fellow and former Board Member of the American College of Bankruptcy, is the author of Practice Comments from Federal Rules of Bankruptcy and served as a consultant for the International Monetary Fund and World Bank. He will be greatly missed.
MORTGAGE MORASS
IN THE NEWS
|
December 24, 2012
|
A Chris-Spin Carroll: With Apologies To Charles Dickens
By John P. Gustafson, The Ghost of an I minus J Past
“After a late December evening filled with too much pickled herring, eggnog and spiced cider, Ebenezer Hildebrand fell asleep in front of the fire, his Code falling to the floor as he nodded off.” (This article is NOT password protected.)
A Chapter 13 Trustee’s Duty to Object to Claims: An Obligation to Bring Fairness to the System ( Reprinted with permission from the ABI Journal, Vol. XXXI, No. 10, November 2012.)
By Henry E. Hildebrand III, Office of the Chapter 13 Trustee, Nashville, Tennessee
“Recently, however, there has been heightened scrutiny of claims asserted by putative creditors. Many creditors attempt to file proofs of claim without documentation or support for the claim, relying on the statutory presumption that a filed claim is an allowed claim.” (This article is NOT password protected.)
While doing your holiday shopping, don’t forget to utilize the Academy’s link to Amazon (right). Simply link to Amazon through the Academy’s portal and the Academy receives a small commission on each purchase. Painless to you, cash to fund free webinars for us!
CFPB Press Releases
The CFPB wants your comments on the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act).
Click here for the press release.
MORTGAGE MORASS
|
December 17, 2012
|
Critical Case Comment
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
Meyer v. Scholz (In re Scholz). An anti-anticipation clause in a governmental or private retirement plan or trust does not exclude such income from the calculation of current monthly income and projected disposable income under 11 U.S.C. § 1325(b).
Section 363 Sales in Chapter 13© Part 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
This week Trustee Gustafson answers the question: How Do You Set Up A Sale Of Property In Chapter 13?
Supreme Court Corner – Lamie v. United States Trustee, 540 U.S. 526 (2004)
By M. Jonathan Hayes, Certified Bankruptcy Specialist, Northridge, CA
Issue: Does the debtor’s attorney in a chapter 11 case have the right to fees after the case is converted to chapter 7 when his efforts benefit the estate but he has not been retained by the trustee or approved in advance by the court?
Holding: No
When Multiple Filings Become Abuse of the System?
By Danielle N. Gueck-Townsend, Staff Attorney for Chapter 13 Trustee, Kathleen A. Leavitt, Las Vegas, NV
“Multiple filings without any intent of actually completing a Chapter 13 bankruptcy imposes a burden on the bankruptcy system.”
While doing your holiday shopping, don’t forget to utilize the Academy’s link to Amazon (right). Simply link to Amazon through the Academy’s portal and the Academy receives a small commission on each purchase. Painless to you, cash to fund free webinars for us!
CFPB Press Releases
Three Press releases came out this week from the CFPB. (1) CFPB Halts Alleged Nationwide Mortgage Loan Modification Scams (2) CFPB Proposes Allowing Companies to Run Trial Disclosure Programs (3) CFPB Report Details How the Nation’s Largest Credit Bureaus Manage Consumer Data
MORTGAGE MORASS
December 10, 2012
Critical Case Comment
By Henry E. Hildebrand, III, Chapter 13 Trustee for the Middle District of Tennessee
In re Thongta. If stay relief is granted to a mortgage claimholder and the mortgage claimholder withdraws its claim, Rule 3002.1 no longer applies
Section 363 Sales in Chapter 13© Part 5
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
How Do You Handle Non-Filers?
Attention Debtor Attorneys: Dave has a FREE product for your non-filing clients. Click here to read more. (This article is not password protected.)
Mark Twain Has Filed Bankruptcy!
By Leon D. Bayer, Certified Specialist in Bankruptcy with Bayer, Wishman and Leotta in Los Angeles, CA
The Academy is thrilled to welcome back delightful author, Leon Bayer. Attorney Bayer brings us a historical look at Samuel Clemens and reminds us that financial issues are merely a bump in the road, not the end of the road. (This article is not password protected.)
While doing your holiday shopping, don’t forget to utilize the Academy’s link to Amazon (right). Simply link to Amazon through the Academy’s portal and the Academy receives a small commission on each purchase. Painless to you, cash to fund free webinars for us!
Please inform the Academy if your email address changes. If you move, change law firms, or start using a different email address, let us know so your membership can follow you.
MORTGAGE MORASS
December 3, 2012
Chapter 13 National Plan Form and Rules Amendments: Speak Now or Forever Hold your Peace
AND Mark Your Calendar Now for a free, informative webinar on the Form on Wednesday, December 19th, 2:00 Eastern.
Sua Sponte: Who Sponte? Why Sponte? You Sponte? Try Sponte?
By The Honorable Thomas Waldron, Jr., Bankr. S.D. Ohio (Retired) Reprinted with permission.
This week the Academy is pleased to treat members to a detailed piece from the Academy’s original Editor and Advisor, Thomas Waldron. “The focus of this article is the availability . . . desirability, of a bankruptcy judge employing sua sponte actions to ensure ethical and professional conduct . . .”
Critical Case Comment
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
Beaulieu v. Ragos (In re Ragos). Bankruptcy Code excludes Social Security benefits from the calculation of current monthly income, disposable income, and projected disposable income; and it cannot be bad faith to exclude such benefits from the repayment of unsecured creditors through a Chapter 13 plan.
Killing the MERS Boogeyman: a Clarification of a Secured Creditor’s Standing in Bankruptcy
By Sherry A. Moore, Esq., Associate Attorney, McCarthy & Holthus, LLP
The Academy is pleased to introduce new contributing author, creditor attorney Sherry Moore. Everyone will want to read this thorough piece on standing.
While doing your holiday shopping, don’t forget to utilize the Academy’s link to Amazon (right). Simply link to Amazon through the Academy’s portal and the Academy receives a small commission on each purchase. Painless to you, cash to fund free webinars for us!
Transfer of Claim Fee. An Unintended Consequence?
By Raymond P. Bell, Jr.
UPDATE – On Veterans’ Day, the Academy ran this article regarding a new fee on transfers of claim which will be effective May 1, 2013. The proposed fee schedule now appears on the website of the United States Courts. Click here to go to the United States Court site, then scroll down to #20.
Reminder: The Next Round of Rules Changes Are Effective NOW –
Yet Another Round of Rule Changes
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
Changes to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056. NO PASSWORD REQUIRED.
Please inform the Academy if your email address changes. If you move, change law firms, or start using a different email address, let us know so your membership can follow you.
MORTGAGE MORASS
IN THE NEWS
November 26, 2012
While doing your holiday shopping, don’t forget to utilize the Academy’s link to Amazon (right). Simply link to Amazon through the Academy’s portal and the Academy receives a small commission on each purchase. Painless to you, cash to fund free webinars for us!
Yet Another Round of Rule Changes
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
The United States Supreme Court has adopted changes to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056 which will take effect on December 1, 2012.NO PASSWORD REQUIRED for this vital information.
Moving Towards A (Mostly) Worry Free Chapter 13 Law Practice
By Leon D. Bayer, Bayer, Wishman & Leotta, Los Angeles, CA
In August, Certified Specialist Leon Bayer, brought Academy members a delightful and informative three part piece, sharing tried and true words of wisdom to assist debtors’ attorneys in maximizing profitability while complying with the highest of ethical standards. We’ve pulled all three pieces together in this one, NO PASSWORD REQUIRED, article.
Mortgaging Human Capital: Federally Funded Subprime Higher Education
By Jean Braucher, Roger C. Henderson Professor of Law, the University of Arizona
This concise piece, first published in July, is still just applicable today: “Student loans figure more and more as a factor in personal over-indebtedness and bankruptcy.”
In Re Bankruptcy Law Clerks As Mediators In Consumer Matters: An Effective, Cost-Saving Approach
By Joseph C. Barsalona II, Law Clerk to the Hon. Robert N. Opel, II for the U.S. Bankruptcy Court for the Middle District of Pennsylvania.
Click here to read a visionary article on the future utilization of law clerks as Mediators. Ohio State’s Mayhew-Hite Report will feature this article in its upcoming issue.
Discharging Post-Petition Association Dues
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, Virginia
In July, Debtor Attorney Mark Leffler gave Academy members a detailed look at how to respond to the inevitable assertion by a client: “I thought you took care of this in my bankruptcy”? Mr. Leffler has updated this piece including the most recent case decisions.
MORTGAGE MORASS
MILITARY MATTERS
November 19, 2012
HAPPY THANKSGIVING
Yet Another Round of Rule Changes Part 2
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
The United States Supreme Court has adopted changes to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056 which will take effect on December 1, 2012. Changes to Rules 1007, 2015, and 7054, were discussed in a previous post.
Ask Ms. Ps & Qs
By Professor Nancy Rapoport
Dear Ms. Ps & Qs: I often have clients who are married to each other when they file. How do I break it to them that they might not be married at the end of the case? Signed: Not Cynical, Just Practical
The Contours of Bankruptcy Rule 3002.1 One Year Later
By Isabel Balboa, Chapter 13 Standing Trustee, State of New Jersey, Camden Vicinage
“Bankruptcy courts across the country have published approximately a dozen opinions seeking to define the parameters of R. 3002.1. Two interrelated lines of inquiry are developing.”
Section 363 Sales in Chapter 13© Part 4 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
When Chapter 13 Debtors Receive Windfalls
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
In the introduction of Mr. Leffler’s detailed dissection of windfalls he references the case of In re Knupp (Beskin v. Knupp), 461 B.R. 351, 354 (Bankr. W.D. Va. 2011). Although there were no briefs in this case, we are pleased to add the Knupp – Adversary to revoke discharge and Knupp_Stipulations to the newly revised Brief Bank. Click here for Part 1 Here for Part 2 Here for Part 3 of Mr. Leffler’s article.
Formal Loss Mitigation – Friend or Foe?
By Gerard Forgét, III, JD, MBA, LLM(TAXATION), Omaha, NE
“Currently there are no formal loss mitigation procedures enacted or utilized by the bankruptcy court system. However, this has not stopped a few east coast bankruptcy courts from using loss mitigation procedures to spark refinancing negotiations between the mortgagors and debtors.” (No password required – be sure to share your opinion via Disqus at the bottom of the article.)
CFPB Press Release
On 11/14/12 the Consumer Financial Protection Bureau announced the launch of PROJECT CATALYSTto spur consumer-friendly innovation. “We believe that good, consumer-friendly innovation holds great potential for achieving our mission of making the consumer finance market work again for consumers. We want to help as much as we can to stimulate innovation in financial products and services,” stated Richard Cordray.
MORTGAGE MORASS
IN THE NEWS
Prosecutors Want 2½-year Prison Term for Money Laundering and Bankruptcy Fraud
New Underwater Mortgage Relief Has Its Undertows -Though there are still some snares and drawbacks for participants, one of the federal government’s most important financial relief efforts for underwater homeowners started operation on Nov. 1.
November 12, 2012
The Academy wishes to thank all the veterans
for their service and
wish you each a peaceful Veterans’ Day.
Transfer of Claim Fee. An Unintended Consequence?
By Raymond P. Bell, Jr.
On this Veterans’ Day, the Academy offers an informative article by an American Veteran, Sergeant Raymond P. Bell, Jr. USAR 1960-1966. Mr. Bell is the Vice President of Bankruptcy Management Services of Mercantile Adjustment Bureau LLC and the Academy thanks him for his service to our country and for bringing the Transfer of Claim Fee to our attention. “A new fee was added to charge $25 for all transfers of claim effective May 1, 2013.”
Critical Case Comment
By Henry E. Hildebrand, III, Chapter 13 Trustee for the Middle District of Tennessee
Anderson v. Cranmer (In re Cranmer). Failure of a Chapter 13 debtor to include and commit Social Security income in calculating projected disposable income does not constitute bad faith.
AND, check out the Cranmer briefs under the heading Social Security in the newly reformatted Brief Bank.
When Chapter 13 Debtors Receive Windfalls – Part 3 of 3
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
In the conclusion of Mr. Leffler’s examination of windfalls, he examines the effects of Res Judicata on plan confirmation. Click here for Part 1 Here for Part 2
Section 363 Sales in Chapter 13© Part 3 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
Supreme Court Corner – Re Wood and Henderson, 210 U.S. 246 (1908)
By M. Jonathan Hayes, Certified Bankruptcy Specialist, Northridge, CA
Issue: Where the Bankruptcy Code gives “the court” power to re-examine (and avoid) prepetition transactions between the debtor and his attorneys, may the bankruptcy referee do that in a summary proceeding even when the attorneys are outside of the state and not subject to personal jurisdiction in the state?
Holding: No.
Banks Pushing Into Small Loans Compete With Payday Shops
PLEASE VOTE: Is this a good thing or no? Click here to give a quick response(less than 30 seconds).
MORTGAGE MORASS
IN THE NEWS
LIES, DAMNED LIES AND STATISTICS
November 5, 2012
Critical Case Comment
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
Wells Fargo Home Mortgage v. Oparaji. In filing a postpetition arrearage claim under § 1305, the mortgage creditor is not required to include all postpetition arrearages. If the first bankruptcy case is dismissed and the debtor later refiles, the mortgage creditor is not judicially estopped from asserting arrearages in the second case that could have been asserted as postpetition arrearages in the first case.
When Chapter 13 Debtors Receive Windfalls – Part 2 of 3
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
In this, part 2 of 3, Mr. Leffler examines windfalls in the form of inheritance or life insurance received more than 180 days after filing. Are these property of the estate or not? Click here for Part 1
Section 363 Sales in Chapter 13© Part 2 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
In Part 2 of Trustee Gustafson’s 6 part outline, he looks at: Sale Proceeds And The Requirement That A Chapter 13 Debtor Have Regular Income. See Part 1 here.
Supreme Court Grants Cert in Bullock v. BankChampaign
On Monday, October 29th the Supremes agreed to consider the following question: What degree of misconduct by a trustee constitutes “defalcation” under § 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge – and does it include actions that result in no loss of trust property? Click here for a summary of the case (No password required)
CFPB Press Release
On 10/31/12 the Consumer Financial Protection Bureau released its first Supervisory Highlights report highlighting problems CFPB examiners discovered through the agency’s supervision process. The Bureau also released an appeals policy for supervised institutions as well as an updated version of the CFPB Supervision and Examination Manual, a field guide used by examiners.
How Much Home Equity Is Too Much?…
Introduction by Gerard Forgét, III, JD, MBA, LLM(TAXATION), Omaha, NE
“BAPCPA introduced additional limitations on debtors exempting their residences utilizing the particular state homestead exemption.” (No password required)
Banks Pushing Into Small Loans Compete With Payday Shops
Academy Members: Is this a good thing or no? Click here to give a quick response
MORTGAGE MORASS
October 29, 2012
When Chapter 13 Debtors Receive Windfalls
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
For the next three weeks the Academy will feature a detailed, thoroughly researched examination of windfalls received after confirmation. This week, Mr. Leffler explains “vesting.” What the heck is it anyway? “The disagreement on the proper treatment of most post-petition windfalls in Chapter 13 can be generally attributed to the inconsistency between §§ 1327(b) and 1306(a).”
Section 363 Sales in Chapter 13© Part 1 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
The Academy is excited to begin the next series by Trustee Gustafson. This week, he expertly inspects: (1) Who Sells Estate Property By The Seashore In Chapter 13? (2) Why Sell Estate Property In Chapter 13?
Underwater Junior Mortgage Strip Off: Should a Court Strip Off a Wholly Unsecured Lien When the Debtor is Ineligible for Discharge?
By Vera Kanova, J.D. Candidate, May 2013, The Pennsylvania State University, The Dickinson School of Law
“This article suggests that the reasoning of the latter courts is more compelling because it aligns with Congress’s intent behind BAPCPA, the application of Section 506(a) and the plain language of Section 1325(a)(5).”
The Academy thanks Ms. Kanova and the NACTT Student Writing Contest for sharing this detailed article with us.
CFPB Press Release
On Wednesday, October 24th the Consumer Financial Protection Bureau published a rule that will allow the agency to federally supervise the larger consumer debt collectors for the first time. The CFPB also released the field guide that examiners will use to ensure that companies and banks engaging in debt collection are following the law.
More on Mortgage Modification Mediation
Cases of the Day Are Back
After a short break, Cases of the Day are back.
SAVE THE DATE –
NACTT 48th Annual Conference, August 4-6, 2013
Mark Your Calendar Now: 48th Annual NACTT Conference **New York City** Educational Program Begins Sunday, August 4 through Tuesday, August 6, 2013
MORTGAGE MORASS
IN THE NEWS
Know They Neighbor: Zillow Adds Public Data On Homes In Foreclosure But Not Yet For Sale (requires free registration)
(Of personal interest to us all) Foreclosure Fallout Cost Nearby Homeowners $2 Trillion, Report Finds
Sheila Bair Called It – Foreclosure Lookback Reviews Are A “Ruse” – Be sure to purchase her book – Bull By the Horns – via the Academy’s link to Amazon above/right
October 22, 2012
Attention Attendees of the Mortgage Modification Mediation webinar: Handouts are now available.
For more information see MortgageModificationEducation.com and MortgageOversight.com.
The Archived Webinar is Available: Mortgage Modification Mediation: Talking Can Correct Math Errors. Learn how utilizing the mediation process can speed up the mortgage modification process, resulting in a win/win for all parties, even the creditor.
Audio or Video Coverage of NACTT New Orleans – Order NOW
Be one of the first 10 to order and receive Recent Developments in Chapter 13 by Judges Lundin and Brown and Trustee Henry Hildebrand. Orders will ship in 24 hours!! ORDER your complete media coverage of the conference NOW.
Mortgage Ethics and Loan Modifications
As a sample of the stellar information you will receive from the 47th Annual NACTT Conference, we are pleased to give you a sneak peak at the volumes of written materials you will receive. Read the materials for a panel entitled Mortgage Ethics and Loan Modifications. Or order the DVD to enjoy the presentation by the same name. Panelists include Marie-Ann Greenberg, Chapter 13 Standing Trustee, Fairfield, NJ., Hon. Elizabeth Magner, U.S. Bankruptcy Judge, E. D. of Louisiana; Edward J. Boll, III, Esq., Lerner, Sampson & Rothfuss, LPA, and Johnnie Patterson, Esq., Walker & Patterson, P.C.
Payday Loans
Payday loan legislation is back in the news and on the minds of both state and federal legislators. “The legalization of payday loans has been one of the most emotional topics debated in the state [Pennsylvania] Capitol this year. That debate continues but it may end up being just more pointless political rambling, regardless of the outcome.” Because in July, U.S. Representative Blaine Leutkemeyer (Missouri Republican) introduced the Consumer Credit Access, Innovation and Modernization Act. ” . . . allowing lenders to obtain federal charters is in the national interest and will greatly benefit the millions of underserved consumers who have pressing needs for better and more affordable credit options.”
The Academy published the results of a study by Nathalie Martin, Professor of Law at University of New Mexico School of Law, 1,000% Interest – Good While Supplies Last: A Study of Payday Loan Practices and Solutions
Change of Venue: Inquiring Minds Want to Know
By The NACTT Academy
We only received a few responses. Does that mean you don’t see this very often??? Inquiring minds want to know whether your cases remain in the district where they were originally filed or are transfers for change of venue ever made? Click here for a full explanation and respond in the Disqus box at the bottom of the page (no password required).
Cases of the Day Are Back
After a short break, Cases of the Day are back. The Academy wishes to sincerely thank Derrick Bolen and the other fine folks at Ch13online.com for this valuable service.THE NEXT BIG THING
MORTGAGE MORASS
IN THE NEWS
October 15, 2012
Ask Ms. Ps & Qs
By Professor Nancy Rapoport
“We have a grab bag of questions this month (thank you!):” (1) objection to attendance of an attorney at a Rule 2004 exam; (2) employee of debtor attorney files 13, is it okay for employer to defer raise; and (3) texting in business.
Farm Financial Implications of the Drought of 2012
By Patrick Westhoff, Director, Food and Agricultural Policy Research Institute at the University of Missouri
” . . . a recent USDA forecast suggests that U.S. net farm income could hit record levels in 2012.”
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part VI
By John Gustafson, Chapter 13 Trustee, Toledo, OH
This week we conclude Trustee Gustafson’s dissection of Social Security and Chapter 13. Part VI examines “An Anti-Debtor Consequence Flowing From The Pro-Debtor Exclusion Of Social Security Benefits: Everything Else Is Part Of Current Monthly Income.” Click here for Part I, Part II, Part III, Part IV, Part V
How, In the World, Did We Get Here?
By Larry Loheit, Chapter 13 Trustee Retired, Charter Member of NACTT
In a follow-up to last week’s A History of the Credit Card, Trustee Loheit continues his historical look at consumer finance. “Lenders were happy to make loans secured by real estate and the lending/banking industry jumped in on the new growth market just as they had on the credit card market.”
Data Just In…Total Bankruptcy Filings Down in 2012 – Both Commercial and Individual!
By Gerard Forgét,III, JD, MBA, LLM(TAXATION), Omaha, NE
Archived Webinar Now Available – Mortgage Modification Mediation: Talking Can Correct Math Errors
Learn how utilizing the mediation process can speed up the mortgage modification process, resulting in a win/win for all parties, even the creditor. Other helpful resources: www.mortgageoversight.com and www.mortgagemodificationeducation.com
Do Introverts Make Good Employees?
In January, Professor Michaela White, Academy Editor and Advisor, wrote an article pointing readers to Susan Cain’s article “Quiet: The Power of Introverts in a World that Can’t Stop Talking.” This week, McClatchydc.com ran a similar article which also indicates the talents of an introvert are often underestimated. (No password required.)
Change of Venue: Inquiring Minds Want to Know
By The NACTT Academy
Inquiring minds want to know whether your cases remain in the district where they were originally filed or are transfers for change of venue ever made? Click here for a full explanation and respond in the Disqus box at the bottom of the page (no password required).
MORTGAGE MORASS
IN THE NEWS
Bankruptcy Reform: 7 Years Ago this Week (Celebration or Mourning?)Using a Plaintiff’s Prior Bankruptcy Favorably In A Product Liability Action (Good article but you will have to register with the site to gain access – free for legal professionals.)
Marijuana Dispensary’s Chapter 11 Case Burns Out (Comical at first glance, but a truly interesting set of circumstances.)
October 8, 2012
Critical Case Comment
By Henry E. Hildebrand, III, Chapter 13 Trustee for the Middle District of Tennessee
Allen v U.S. Bank, N.A. – Where a mortgage creditor does not have actual possession of an original note, the creditor could still enforce the claim if it possessed a lost note affidavit with a copy of the original note.
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part V
By John Gustafson, Chapter 13 Trustee, Toledo, OH
A History of the Credit Card
By Larry Loheit, Chapter 13 Trustee Retired, Charter Member of NACTT
“Bank of America introduced the BankAmericard as a means to earn three or four times the rate of interest on debt than what they had been earning on their ‘sophisticated’ loans.” .. Click here . . .
Student Loan Discharge
By Professor Michaela M. White, Professor of Law, Creighton Law School
“Interestingly, Congress was willing to lend help to lenders in distress but not to student loan borrowers in distress.”
Change of Venue: Inquiring Minds Want to Know
By The NACTT Academy
Inquiring minds want to know whether your cases remain in the district where they were originally filed or are transfers for change of venue ever made? Click here for a full explanation and respond in the Disqus box at the bottom of the page (no password required).
In Re Bankruptcy Law Clerks As Mediators In Consumer Matters: An Effective, Cost-Saving Approach
By Joseph C. Barsalona II, Law Clerk to the Hon. Robert N. Opel, II for the U.S. Bankruptcy Court for the Middle District of Pennsylvania.
Mediation is the Academy’s buzz work of the week. Click here to read a visionary article on the future utilization of law clerks as Mediators. And be sure to attend the substantive webinar this Friday on mediating mortgage modifications.
REGISTER NOW
Free Academy Webinar
Mortgage Modification Mediation: Talking Can Correct Math Errors – Learn how utilizing the mediation process can speed up the mortgage modification process, resulting in a win/win for all parties, even the creditor. THIS Friday (10/12 at 2:00 Eastern).
MORTGAGE MORASS
October 1, 2012
Critical Case Comment
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
The Tenth Circuit ruled that the lien strip of a wholly-unsecured Trust Deed on a debtor’s residence cannot be accomplished through § 506(d) but might be possible under § 1322(b)(2). Read more . . .
The Impact of the Automatic Stay on Domestic Relations Proceedings – Part II of II
By Professor Michaela M. White
Prof. White concludes her article on the stay as it related to DSOs specifically regarding stay violations and more. See Part 1
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part IV
By John Gustafson, Chapter 13 Trustee, Toledo, OH
Read Trustee Gustafson’s dissection of Social Security and Chapter 13. Part IV examines “Putting Social Security Income In Voluntarily – Is It Ado Annie’s ‘All Or Nothing’, Or Is A Partial Commitment OK?” and “Where It Gets Interesting: At The Edges Of The Social Security Exclusion.” Click here for Part I, Part II, Part III
Graduated and Living with Mom and Dad
Click here for a graphic which shows the facts and figures behind the struggles of recent college graduates.
Reference Guide to Selling Property in Chapter 13
By Beverly Burden, Chapter 13 Trustee, Lexington, KY
Check out the new “Selling Property While in Chapter 13 – FINAL for Toolbox,” which is housed in the Toolbox section of the website. This Guide gives practitioners a quick overview of the requirements, summarizes all relevant statutes and rules, and includes a few sample forms.
Save the Date
Free Academy Webinar
Mortgage Modification Mediation: Talking Can Correct Math Errors – Mark your calendar NOW for Friday, October 12th 2:00 Eastern.
Webinar – Community Outreach: Developing a Chapter 13 Friendly Environment
Webinar recording now available. Check out the variety of training videos available by clicking here.
MORTGAGE MORASS
IN THE NEWS
September 24, 2012
The Impact of the Automatic Stay on Domestic Relations Proceedings Part I of II
By Professor Michaela M. White
“Taken as a whole, it could be said that the 2005 Amendments granted DSOs the bankruptcy equivalent of “most favored nation status.” This is particularly so where the automatic stay is concerned, the first topic covered by this paper.” Read more . . .
Critical Case Comment
By Henry E. Hildebrand, III
In re Sacko , 394 B.R. 90 (Bankr. E.D. Pa, Sept. 17, 2008) (Frank) – A mortgage creditor may amend a claim filed on its behalf by a debtor pursuant to Rule 3004, F.R.B.P., even though the time has expired for the creditor to file a claim on its own behalf..
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part III
By John Gustafson, Chapter 13 Trustee, Toledo, OH
Just for Fun
A Day in Bankruptcy Court
By Vijay Malik
Read this delightful account of a surprise visit to a BAP docket. “. . . informed me that the Bankruptcy Appellate Panel was in town for one day and one day only, and that it was my lucky day. Three hearings would start in an hour.”
In the News
In Prosecutors, Debt Collectors Find a Partner
“The practice, which has spread to more than 300 district attorneys’ offices in recent years, shocked Angela Yartz when she was threatened with conviction over a $47.95 check to Walmart.”
Read more . . .
PRACTITIONERS EMAIL NOW: If you practice in one of these 300 districts and have run across this, we want to hear from you about your experience. Email: MemberAccounts@ConsiderChapter13.org
In the News and Save the Date
Bankruptcy Mortgage Mediation Program Is Gaining Momentum
A great article to introduce an upcoming free Academy webinar – Mortgage Modification Mediation: Talking Can Correct Math Errors – So mark your calendar NOW for Friday, October 12th 2:00 Eastern.
ONLY 2 DAYS LEFT TO REGISTER for the September 26th, 2:00 eastern, Webinar
Community Outreach: Developing a Chapter 13 Friendly Environment
Please join the NACTT Academy for a free webinar and learn how you can assist in creating a culture which readily embraces Chapter 13. Veteran Trustee Mary Viegelahn (San Antonio, TX) joins ‘newby’ Trustee Christopher Micale (Roanoke, VA) in a candid discussion on how Trustees and attorneys can assist in enhancing and developing a strong Chapter 13 program. This webinar is directed toward everyone with an interest in Chapter 13 bankruptcy.
MORTGAGE MORASS
IN THE NEWS
September 17, 2012
Critical Case Comment
By Henry E. Hildebrand, III
Danielson v. Flores (In re Flores) – Debtors with no “projected disposable income” as calculated on Form 22C do not have a mandatory applicable commitment period and can propose Chapter 13 plans less than 60 months, even after Lanning.
A Conversation About Chapter 13 Debt Limitations of 11 U.S.C. § 109(e)
By Sarah E. Smith, Esq., Senior Staff Attorney, Kathleen A. Leavitt, Chapter 13 Bankruptcy Trustee
“Typically, the conversation starts with me pointing out that the debtor . . . exceeds the debt limitations . . . The debtor’s attorney will pause, presumably to summon the list of arguments in an effort to overcome my objection, take a breath, and begin . . .”
Social Security Benefits Under §101(10A) (B): Excluded Means What?© Part II
By John Gustafson, Chapter 13 Trustee, Toledo, OH
Part II of Trustee Gustafson’s dissection of Social Security and Chapter 13 as it relates to above-median income debtors, below-median income debtors, a potential difference of rules on a motion to modify under 1329, and much, much more.
Ethical Issues in Bankruptcy Cases Part VII
By Paul W. Bonapfel, United States Bankruptcy Judge, Northern District of Georgia
Supreme Court Corner
By M. Jonathan Hayes, Certified Bankruptcy Specialist, Northridge, CA
Wright v. Vinton Branch of Mountain Trust Bank of Roanoke, 300 U.S. 440 (1937)
Issue: 1. Did the amendments to the Frazier-Lemke Act cure the deficiencies cited by the Supreme Court in Louisville Joint Stock Land Bank v. Radford? 2. Do the rights of the debtor in a bankruptcy case amount to an unconstitutional taking prohibited by the Fifth Amendment? Holding: 1. Yes. 2. No
Holding: No.
The Composite Consumer Debtor (Reprinted with permission from the ABI Journal, Vol. XXXI, No. 7, August 2012.)
By Leslie E. Linfield, Institute for Financial Literacy
“If we were to draw a composite sketch of the consumer bankruptcy debtor, what would he or she look like?”
Barriers to Entry: How the Bankruptcy Bar Guarantees Poorly Filed Petitions
Last week’s article by Justin Lawrence (Florence, KY) created a brief but interesting Disqus buzz. Check it out and weigh in. (Scroll to the bottom of the article.)
September 26th, 2:00 eastern
Community Outreach: Developing a Chapter 13 Friendly Environment
Please join the NACTT Academy for a free webinar and learn how you can assist in creating a culture which readily embraces Chapter 13. Veteran Trustee Mary Viegelahn (San Antonio, TX) joins ‘newby’ Trustee Christopher Micale (Roanoke, VA) in a candid discussion on how Trustees and attorneys can assist in enhancing and developing a strong Chapter 13 program. This webinar is directed toward everyone with an interest in Chapter 13 bankruptcy.
IN THE NEWS
Fed Study Indicates Benefits from Speeding Foreclosure Process or click here for the entire study
MORTGAGE MORASS
MILITARY MATTERS
LIES, DAMNED LIES AND STATISTICS
JUST FOR FUN
September 10, 2012
Barriers to Entry: How the Bankruptcy Bar Guarantees Poorly Filed Petitions
By Justin Lawrence, Florence, KY
” . . . trustees and judges often complain about poorly educated attorneys filing petitions that fail to conform to basic bankruptcy law and procedure. Poorly conceived Chapter 13s fail. Unintentionally un-exempted assets are seized in Chapter 7s. The unspoken consensus of these complaints is that the fault lies in the attorneys themselves.”
Social Security Benefits Under §101(10A) (B): Excluded Means What?©
By John Gustafson
“Conceptually and technically, BAPCPA corrupted the disposable income test in § 1325(b) in so many ways it takes restraint not to laugh and cry at the same time.” 6 Keith M. Lundin, Chapter 13 Bankruptcy § 466.1 at 466-1 (3d ed. 2000 & Supp. 2007-1). In Trustee Gustafson’s excogitative manner, he now begins a dissection of Social Security benefits and Chapter 13.
State and Federal Concurrent Jurisdiction of the Dischargeability of Family Law Obligations – Part II of II
By Professor Michaela M. White
The “Who, What, Where and How” of Marital Debt Status Determination
To GIVE or Not to GIVE “Notice” – That is the Question…
By Gerard T. Forgét III, JD, MBA, LLM(TAXATION), Omaha, NE
A must read. The Academy’s newest addition, Gerard Forgét brings us an IRS issued memorandum which addresses 3 specific bankruptcy issues you need to know about.
Bankruptcy Judges Juggle People, Businesses and Creditors in Hard Times
By Steve Green, Las Vegas Sun and VEGAS, INC. (Reprinted with permission – Vegas, Inc. July 23, 2012)
“With unemployment and foreclosures soaring during the recession, bankruptcy judges in Nevada have had to make tough decisions trying to balance the rights of bankrupt people and businesses with the rights of creditors.”
Yet Another Round of Rule Changes – Part I
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
Mr. Ghazvini outlines three of the five changes to the Federal Rules of Bankruptcy Procedure which, barring intervention, will go into effect December 1st (and, yes, that is only 3 short months away!). Attention: NON-ACADEMY members. We have made a rare exception and Mr. Ghazvini’s article is not password protected. Check it out and see the type of timely information you are missing. Click here for an informative Academy membership video.
360 Degree Leader Webinar
The long-awaited 360⁰ Leader presented by Ronnie LeFevers (we apologize to Mr. LeFevers for misspelling his name last week) is now available. This webinar comes to you courtesy of the NACTT. Thank you NACTT for your support of the Academy. This, and other webinars, is archived free for members and via pay per view for non-Academy members.
IN THE NEWS
MORTGAGE MORASS
September 4, 2012
Yet Another Round of Rule Changes – Part I
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
Mr. Ghazvini outlines three of the five changes to the Federal Rules of Bankruptcy Procedure which, barring intervention, will go into effect December 1st (and, yes, that is only 3 short months away!).
Ethical Issues in Bankruptcy Cases Part V
By Paul W. Bonapfel, United States Bankruptcy Judge, Northern District of Georgia
State and Federal Concurrent Jurisdiction of the Dischargeability of Family Law Obligations
By Professor Michaela M. White
“We are bankruptcy geeks with the Code on our Kindles who love nothing more than a good statute to take on vacation. Onward, then, to the thrilling tale of two courts with concurrent jurisdiction!”
OMSO Holds Webinar/Encourages Complaints
“The OMSO web site contains an easy-to-read, self-explanatory form for use by consumers and professionals and requires several minutes to complete.”
Bankruptcy Attorneys: Seven Factors in Choosing the Right Course Provider for Clients
By Beth Mason
“Simply handing clients a fistful of postcards and letting them choose may not be providing the best counsel, because it’s not always cost that is key.”
Critical Case Comment
By Henry E. Hildebrand, III
Last week’s CCC on Parks v. Drummond (In re Parks) sparked adverse opinions being shared via Disqus. Check out the comments and weigh in with your own thoughts. Click here for Trustee’s Brief
360 Leadership Webinar
The long-awaited 360⁰ Leader video presented by Ronnie LeFevers is now available. This webinar comes to you courtesy of the NACTT. Thank you NACTT for your support of the Academy. This, and other webinars, is archived free for members and via pay per view for non-Academy members.
MORTGAGE MORASS
IN THE NEWS
| December 31, 2012 | Home |
Four Bankruptcy Forms Changed December 1st (Reprinted with permission from BankruptcyLawNetwork.com)
By Jill Michaux, Kansas Bankruptcy Attorney
The Academy is pleased to reprint Ms. Michaux’ article originally published on the Bankruptcy Law Network. Four official bankruptcy form changes went into effect December 1, 2012. The changed forms are B7, B9, B10, and B21. Be sure you are using the latest version of these forms. (This article is NOT password protected.)
Ms. Michaux was recently appointed to the Advisory Committee on Bankruptcy Rules by Chief Justice John Roberts.
Balboa Accepted to American College of Bankruptcy
Congratulations to Isabel Balboa on being accepted as a member of Class 24 of the American College of Bankruptcy. Trustee Balboa is a loyal member and regular contributor to ConsiderChapter13.org. She is a native of Havana, Cuba, and has been the Chapter 13 Standing Trustee for Region 3 assigned to the State of New Jersey, Camden Vicinage, since 1997.
Bankruptcy Mortgage Project
So, have you seen this website? If not, check it out. It is a helpful link for mortgage issues from our friends at NCLC. Click the state you are interested in to find all kinds of mortgage related forms from Local Rules to Loss Mitigation and Mediation. Check it out and let us know if you like it.
MORTGAGE MORASS
IN THE NEWS
| December 24, 2012 |
A Chris-Spin Carroll: With Apologies To Charles Dickens
By John P. Gustafson, The Ghost of an I minus J Past
“After a late December evening filled with too much pickled herring, eggnog and spiced cider, Ebenezer Hildebrand fell asleep in front of the fire, his Code falling to the floor as he nodded off.” (This article is NOT password protected.)
A Chapter 13 Trustee’s Duty to Object to Claims: An Obligation to Bring Fairness to the System ( Reprinted with permission from the ABI Journal, Vol. XXXI, No. 10, November 2012.)
By Henry E. Hildebrand III, Office of the Chapter 13 Trustee, Nashville, Tennessee
“Recently, however, there has been heightened scrutiny of claims asserted by putative creditors. Many creditors attempt to file proofs of claim without documentation or support for the claim, relying on the statutory presumption that a filed claim is an allowed claim.” (This article is NOT password protected.)
CFPB Press Releases
The CFPB wants your comments on the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act). Click here for the press release. Click here for the Request for Information. Click here to Comment.
MORTGAGE MORASS
| December 17, 2012 |
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
Meyer v. Scholz (In re Scholz). An anti-anticipation clause in a governmental or private retirement plan or trust does not exclude such income from the calculation of current monthly income and projected disposable income under 11 U.S.C. § 1325(b).
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
This week Trustee Gustafson answers the question: How Do You Set Up A Sale Of Property In Chapter 13?
Supreme Court Corner – Lamie v. United States Trustee, 540 U.S. 526 (2004) By M. Jonathan Hayes
When Multiple Filings Become Abuse of the System?
By Danielle N. Gueck-Townsend, Staff Attorney for Chapter 13 Trustee, Kathleen A. Leavitt, Las Vegas, NV
“Multiple filings without any intent of actually completing a Chapter 13 bankruptcy imposes a burden on the bankruptcy system.”
CFPB Press Releases
Three Press releases came out this week from the CFPB. (1) CFPB Halts Alleged Nationwide Mortgage Loan Modification Scams (2) CFPB Proposes Allowing Companies to Run Trial Disclosure Programs (3) CFPB Report Details How the Nation’s Largest Credit Bureaus Manage Consumer Data
MORTGAGE MORASS
December 10, 2012
Critical Case Comment
By Henry E. Hildebrand, III, Chapter 13 Trustee for the Middle District of Tennessee
In re Thongta. If stay relief is granted to a mortgage claimholder and the mortgage claimholder withdraws its claim, Rule 3002.1 no longer applies
Section 363 Sales in Chapter 13© Part 5
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
How Do You Handle Non-Filers?
Attention Debtor Attorneys: Dave has a FREE product for your non-filing clients. Click here to read more. (This article is not password protected.)
Mark Twain Has Filed Bankruptcy!
By Leon D. Bayer, Certified Specialist in Bankruptcy with Bayer, Wishman and Leotta in Los Angeles, CA
The Academy is thrilled to welcome back delightful author, Leon Bayer. Attorney Bayer brings us a historical look at Samuel Clemens and reminds us that financial issues are merely a bump in the road, not the end of the road. (This article is not password protected.)
MORTGAGE MORASS
December 3, 2012
By The Honorable Thomas Waldron, Jr., Bankr. S.D. Ohio (Retired) Reprinted with permission.
This week the Academy is pleased to treat members to a detailed piece from the Academy’s original Editor and Advisor, Thomas Waldron. “The focus of this article is the availability . . . desirability, of a bankruptcy judge employing sua sponte actions to ensure ethical and professional conduct . . .”
Critical Case Comment
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
Beaulieu v. Ragos (In re Ragos). Bankruptcy Code excludes Social Security benefits from the calculation of current monthly income, disposable income, and projected disposable income; and it cannot be bad faith to exclude such benefits from the repayment of unsecured creditors through a Chapter 13 plan.
Killing the MERS Boogeyman: a Clarification of a Secured Creditor’s Standing in Bankruptcy
By Sherry A. Moore, Esq., Associate Attorney, McCarthy & Holthus, LLP
The Academy is pleased to introduce new contributing author, creditor attorney Sherry Moore. Everyone will want to read this thorough piece on standing.
Transfer of Claim Fee. An Unintended Consequence?
By Raymond P. Bell, Jr.
UPDATE – On Veterans’ Day, the Academy ran this article regarding a new fee on transfers of claim which will be effective May 1, 2013. The proposed fee schedule now appears on the website of the United States Courts. Click here to go to the United States Court site, then scroll down to #20.
MORTGAGE MORASS
IN THE NEWS
November 26, 2012
Yet Another Round of Rule Changes
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
The United States Supreme Court has adopted changes to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056 which will take effect on December 1, 2012.NO PASSWORD REQUIRED for this vital information.
Moving Towards A (Mostly) Worry Free Chapter 13 Law Practice
By Leon D. Bayer, Bayer, Wishman & Leotta, Los Angeles, CA
In August, Certified Specialist Leon Bayer, brought Academy members a delightful and informative three part piece, sharing tried and true words of wisdom to assist debtors’ attorneys in maximizing profitability while complying with the highest of ethical standards. We’ve pulled all three pieces together in this one, NO PASSWORD REQUIRED, article.
Mortgaging Human Capital: Federally Funded Subprime Higher Education
By Jean Braucher, Roger C. Henderson Professor of Law, the University of Arizona
This concise piece, first published in July, is still just applicable today: “Student loans figure more and more as a factor in personal over-indebtedness and bankruptcy.”
In Re Bankruptcy Law Clerks As Mediators In Consumer Matters: An Effective, Cost-Saving Approach
By Joseph C. Barsalona II, Law Clerk to the Hon. Robert N. Opel, II for the U.S. Bankruptcy Court for the Middle District of Pennsylvania.
Click here to read a visionary article on the future utilization of law clerks as Mediators. Ohio State’s Mayhew-Hite Report will feature this article in its upcoming issue.
Discharging Post-Petition Association Dues
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, Virginia
In July, Debtor Attorney Mark Leffler gave Academy members a detailed look at how to respond to the inevitable assertion by a client: “I thought you took care of this in my bankruptcy”? Mr. Leffler has updated this piece including the most recent case decisions.
MORTGAGE MORASS
MILITARY MATTERS
November 19, 2012
Yet Another Round of Rule Changes Part 2
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
The United States Supreme Court has adopted changes to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056 which will take effect on December 1, 2012. Changes to Rules 1007, 2015, and 7054, were discussed in a previous post.
Ask Ms. Ps & Qs
By Professor Nancy Rapoport
Dear Ms. Ps & Qs: I often have clients who are married to each other when they file. How do I break it to them that they might not be married at the end of the case? Signed: Not Cynical, Just Practical
The Contours of Bankruptcy Rule 3002.1 One Year Later
By Isabel Balboa, Chapter 13 Standing Trustee, State of New Jersey, Camden Vicinage
“Bankruptcy courts across the country have published approximately a dozen opinions seeking to define the parameters of R. 3002.1. Two interrelated lines of inquiry are developing.”
Section 363 Sales in Chapter 13© Part 4 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
When Chapter 13 Debtors Receive Windfalls
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
In the introduction of Mr. Leffler’s detailed dissection of windfalls he references the case of In re Knupp (Beskin v. Knupp), 461 B.R. 351, 354 (Bankr. W.D. Va. 2011). Although there were no briefs in this case, we are pleased to add the Knupp – Adversary to revoke discharge and Knupp_Stipulations to the newly revised Brief Bank. Click here for Part 1 Here for Part 2 Here for Part 3 of Mr. Leffler’s article.
Formal Loss Mitigation – Friend or Foe?
By Gerard Forgét, III, JD, MBA, LLM(TAXATION), Omaha, NE
“Currently there are no formal loss mitigation procedures enacted or utilized by the bankruptcy court system. However, this has not stopped a few east coast bankruptcy courts from using loss mitigation procedures to spark refinancing negotiations between the mortgagors and debtors.” (No password required – be sure to share your opinion via Disqus at the bottom of the article.)
CFPB Press Release
On 11/14/12 the Consumer Financial Protection Bureau announced the launch of PROJECT CATALYST to spur consumer-friendly innovation. “We believe that good, consumer-friendly innovation holds great potential for achieving our mission of making the consumer finance market work again for consumers. We want to help as much as we can to stimulate innovation in financial products and services,” stated Richard Cordray.
MORTGAGE MORASS
IN THE NEWS
Prosecutors Want 2½-year Prison Term for Money Laundering and Bankruptcy Fraud
New Underwater Mortgage Relief Has Its Undertows – Though there are still some snares and drawbacks for participants, one of the federal government’s most important financial relief efforts for underwater homeowners started operation on Nov. 1.
November 12, 2012
The Academy wishes to thank all the veterans
for their service and wish you each a peaceful Veterans’ Day.
Transfer of Claim Fee. An Unintended Consequence?
By Raymond P. Bell, Jr.
On this Veterans’ Day, the Academy offers an informative article by an American Veteran, Sergeant Raymond P. Bell, Jr. USAR 1960-1966. Mr. Bell is the Vice President of Bankruptcy Management Services of Mercantile Adjustment Bureau LLC and the Academy thanks him for his service to our country and for bringing the Transfer of Claim Fee to our attention. “A new fee was added to charge $25 for all transfers of claim effective May 1, 2013.”
Critical Case Comment
By Henry E. Hildebrand, III, Chapter 13 Trustee for the Middle District of Tennessee
Anderson v. Cranmer (In re Cranmer). Failure of a Chapter 13 debtor to include and commit Social Security income in calculating projected disposable income does not constitute bad faith.
AND, check out the Cranmer briefs under the heading Social Security in the newly reformatted Brief Bank.
When Chapter 13 Debtors Receive Windfalls – Part 3 of 3
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
In the conclusion of Mr. Leffler’s examination of windfalls, he examines the effects of Res Judicata on plan confirmation. Click here for Part 1 Here for Part 2
Section 363 Sales in Chapter 13© Part 3 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
Supreme Court Corner – Re Wood and Henderson, 210 U.S. 246 (1908)
By M. Jonathan Hayes, Certified Bankruptcy Specialist, Northridge, CA
Issue: Where the Bankruptcy Code gives “the court” power to re-examine (and avoid) prepetition transactions between the debtor and his attorneys, may the bankruptcy referee do that in a summary proceeding even when the attorneys are outside of the state and not subject to personal jurisdiction in the state?
Holding: No.
MORTGAGE MORASS
IN THE NEWS
U.S. Orders 90-Day Suspension of FHA Foreclosures In Disaster Areas No Means Test For Converted Chapter 13 Cases, Florida Bankruptcy Judge Says
LIES, DAMNED LIES AND STATISTICS
November 5, 2012
Critical Case Comment
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
Wells Fargo Home Mortgage v. Oparaji. In filing a postpetition arrearage claim under § 1305, the mortgage creditor is not required to include all postpetition arrearages. If the first bankruptcy case is dismissed and the debtor later refiles, the mortgage creditor is not judicially estopped from asserting arrearages in the second case that could have been asserted as postpetition arrearages in the first case.
When Chapter 13 Debtors Receive Windfalls – Part 2 of 3
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
In this, part 2 of 3, Mr. Leffler examines windfalls in the form of inheritance or life insurance received more than 180 days after filing. Are these property of the estate or not? Click here for Part 1
Section 363 Sales in Chapter 13© Part 2 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
In Part 2 of Trustee Gustafson’s 6 part outline, he looks at: Sale Proceeds And The Requirement That A Chapter 13 Debtor Have Regular Income. See Part 1 here.
Supreme Court Grants Cert in Bullock v. BankChampaign
On Monday, October 29th the Supremes agreed to consider the following question: What degree of misconduct by a trustee constitutes “defalcation” under § 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge – and does it include actions that result in no loss of trust property? Click here for a summary of the case (No password required)
CFPB Press Release
On 10/31/12 the Consumer Financial Protection Bureau released its first Supervisory Highlights report highlighting problems CFPB examiners discovered through the agency’s supervision process. The Bureau also released an appeals policy for supervised institutions as well as an updated version of the CFPB Supervision and Examination Manual, a field guide used by examiners.
How Much Home Equity Is Too Much?…
Introduction by Gerard Forgét, III, JD, MBA, LLM(TAXATION), Omaha, NE
“BAPCPA introduced additional limitations on debtors exempting their residences utilizing the particular state homestead exemption.” (No password required)
MORTGAGE MORASS
October 29, 2012
When Chapter 13 Debtors Receive Windfalls
By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
For the next three weeks the Academy will feature a detailed, thoroughly researched examination of windfalls received after confirmation. This week, Mr. Leffler explains “vesting.” What the heck is it anyway? “The disagreement on the proper treatment of most post-petition windfalls in Chapter 13 can be generally attributed to the inconsistency between §§ 1327(b) and 1306(a).”
Section 363 Sales in Chapter 13© Part 1 of 6
By John P. Gustafson, Chapter 13 Trustee, Northern District of Ohio, Western Division
The Academy is excited to begin the next series by Trustee Gustafson. This week, he expertly inspects: (1) Who Sells Estate Property By The Seashore In Chapter 13? (2) Why Sell Estate Property In Chapter 13?
Underwater Junior Mortgage Strip Off: Should a Court Strip Off a Wholly Unsecured Lien When the Debtor is Ineligible for Discharge?
By Vera Kanova, J.D. Candidate, May 2013, The Pennsylvania State University, The Dickinson School of Law
“This article suggests that the reasoning of the latter courts is more compelling because it aligns with Congress’s intent behind BAPCPA, the application of Section 506(a) and the plain language of Section 1325(a)(5).”
The Academy thanks Ms. Kanova and the NACTT Student Writing Contest for sharing this detailed article with us.
CFPB Press Release
On Wednesday, October 24th the Consumer Financial Protection Bureau published a rule that will allow the agency to federally supervise the larger consumer debt collectors for the first time. The CFPB also released the field guide that examiners will use to ensure that companies and banks engaging in debt collection are following the law.
More on Mortgage Modification Mediation
MORTGAGE MORASS
IN THE NEWS
Know They Neighbor: Zillow Adds Public Data On Homes In Foreclosure But Not Yet For Sale (requires free registration)
(Of personal interest to us all) Foreclosure Fallout Cost Nearby Homeowners $2 Trillion, Report Finds
Sheila Bair Called It – Foreclosure Lookback Reviews Are A “Ruse” – Be sure to purchase her book – Bull By the Horns – via the Academy’s link to Amazon above/right
October 22, 2012
Attention Attendees of the Mortgage Modification Mediation webinar: Handouts are now available.
For more information see MortgageModificationEducation.com and MortgageOversight.com.
The Archived Webinar is Available: Mortgage Modification Mediation: Talking Can Correct Math Errors. Learn how utilizing the mediation process can speed up the mortgage modification process, resulting in a win/win for all parties, even the creditor.
Mortgage Ethics and Loan Modifications
As a sample of the stellar information you will receive from the 47th Annual NACTT Conference, we are pleased to give you a sneak peak at the volumes of written materials you will receive. Read the materials for a panel entitled Mortgage Ethics and Loan Modifications. Or order the DVD to enjoy the presentation by the same name. Panelists include Marie-Ann Greenberg, Chapter 13 Standing Trustee, Fairfield, NJ., Hon. Elizabeth Magner, U.S. Bankruptcy Judge, E. D. of Louisiana; Edward J. Boll, III, Esq., Lerner, Sampson & Rothfuss, LPA, and Johnnie Patterson, Esq., Walker & Patterson, P.C.
Payday Loans
Payday loan legislation is back in the news and on the minds of both state and federal legislators. “The legalization of payday loans has been one of the most emotional topics debated in the state [Pennsylvania] Capitol this year. That debate continues but it may end up being just more pointless political rambling, regardless of the outcome.” Because in July, U.S. Representative Blaine Leutkemeyer (Missouri Republican) introduced the Consumer Credit Access, Innovation and Modernization Act. ” . . . allowing lenders to obtain federal charters is in the national interest and will greatly benefit the millions of underserved consumers who have pressing needs for better and more affordable credit options.”
The Academy published the results of a study by Nathalie Martin, Professor of Law at University of New Mexico School of Law, 1,000% Interest – Good While Supplies Last: A Study of Payday Loan Practices and Solutions
THE NEXT BIG THING
MORTGAGE MORASS
IN THE NEWS
October 15, 2012
Ask Ms. Ps & Qs
By Professor Nancy Rapoport
“We have a grab bag of questions this month (thank you!):” (1) objection to attendance of an attorney at a Rule 2004 exam; (2) employee of debtor attorney files 13, is it okay for employer to defer raise; and (3) texting in business.
Farm Financial Implications of the Drought of 2012
By Patrick Westhoff, Director, Food and Agricultural Policy Research Institute at the University of Missouri
” . . . a recent USDA forecast suggests that U.S. net farm income could hit record levels in 2012.”
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part VI
By John Gustafson, Chapter 13 Trustee, Toledo, OH
This week we conclude Trustee Gustafson’s dissection of Social Security and Chapter 13. Part VI examines “An Anti-Debtor Consequence Flowing From The Pro-Debtor Exclusion Of Social Security Benefits: Everything Else Is Part Of Current Monthly Income.” Click here for Part I, Part II, Part III, Part IV, Part V
How, In the World, Did We Get Here?
By Larry Loheit, Chapter 13 Trustee Retired, Charter Member of NACTT
In a follow-up to last week’s A History of the Credit Card, Trustee Loheit continues his historical look at consumer finance. “Lenders were happy to make loans secured by real estate and the lending/banking industry jumped in on the new growth market just as they had on the credit card market.”
Data Just In…Total Bankruptcy Filings Down in 2012 – Both Commercial and Individual!
By Gerard Forgét,III, JD, MBA, LLM(TAXATION), Omaha, NE
Do Introverts Make Good Employees?
In January, Professor Michaela White, Academy Editor and Advisor, wrote an article pointing readers to Susan Cain’s article “Quiet: The Power of Introverts in a World that Can’t Stop Talking.” This week, McClatchydc.com ran a similar article which also indicates the talents of an introvert are often underestimated. (No password required.)
MORTGAGE MORASS
IN THE NEWS
Bankruptcy Reform: 7 Years Ago this Week (Celebration or Mourning?)
Using a Plaintiff’s Prior Bankruptcy Favorably In A Product Liability Action (Good article but you will have to register with the site to gain access – free for legal professionals.)
Marijuana Dispensary’s Chapter 11 Case Burns Out (Comical at first glance, but a truly interesting set of circumstances.)
October 8, 2012
Critical Case Comment
By Henry E. Hildebrand, III, Chapter 13 Trustee for the Middle District of Tennessee
Allen v U.S. Bank, N.A. – Where a mortgage creditor does not have actual possession of an original note, the creditor could still enforce the claim if it possessed a lost note affidavit with a copy of the original note.
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part V
By John Gustafson, Chapter 13 Trustee, Toledo, OH
A History of the Credit Card
By Larry Loheit, Chapter 13 Trustee Retired, Charter Member of NACTT
“Bank of America introduced the BankAmericard as a means to earn three or four times the rate of interest on debt than what they had been earning on their ‘sophisticated’ loans.” .. Click here . . .
Student Loan Discharge
By Professor Michaela M. White, Professor of Law, Creighton Law School
“Interestingly, Congress was willing to lend help to lenders in distress but not to student loan borrowers in distress.”
In Re Bankruptcy Law Clerks As Mediators In Consumer Matters: An Effective, Cost-Saving Approach
By Joseph C. Barsalona II, Law Clerk to the Hon. Robert N. Opel, II for the U.S. Bankruptcy Court for the Middle District of Pennsylvania.
Mediation is the Academy’s buzz work of the week. Click here to read a visionary article on the future utilization of law clerks as Mediators. And be sure to attend the substantive webinar this Friday on mediating mortgage modifications.
MORTGAGE MORASS
October 1, 2012
Critical Case Comment
By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
The Tenth Circuit ruled that the lien strip of a wholly-unsecured Trust Deed on a debtor’s residence cannot be accomplished through § 506(d) but might be possible under § 1322(b)(2). Read more . . .
The Impact of the Automatic Stay on Domestic Relations Proceedings – Part II of II
By Professor Michaela M. White
Prof. White concludes her article on the stay as it related to DSOs specifically regarding stay violations and more. See Part 1
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part IV
By John Gustafson, Chapter 13 Trustee, Toledo, OH
Read Trustee Gustafson’s dissection of Social Security and Chapter 13. Part IV examines “Putting Social Security Income In Voluntarily – Is It Ado Annie’s ‘All Or Nothing’, Or Is A Partial Commitment OK?” and “Where It Gets Interesting: At The Edges Of The Social Security Exclusion.” Click here for Part I, Part II, Part III
Graduated and Living with Mom and Dad
Click here for a graphic which shows the facts and figures behind the struggles of recent college graduates.
Reference Guide to Selling Property in Chapter 13
By Beverly Burden, Chapter 13 Trustee, Lexington, KY
Check out the new “Selling Property While in Chapter 13 – FINAL for Toolbox,” which is housed in the Toolbox section of the website. This Guide gives practitioners a quick overview of the requirements, summarizes all relevant statutes and rules, and includes a few sample forms.
MORTGAGE MORASS
IN THE NEWS
September 24, 2012
The Impact of the Automatic Stay on Domestic Relations Proceedings Part I of II
By Professor Michaela M. White
“Taken as a whole, it could be said that the 2005 Amendments granted DSOs the bankruptcy equivalent of “most favored nation status.” This is particularly so where the automatic stay is concerned, the first topic covered by this paper.” Read more . . .
Critical Case Comment
By Henry E. Hildebrand, III
In re Sacko , 394 B.R. 90 (Bankr. E.D. Pa, Sept. 17, 2008) (Frank) – A mortgage creditor may amend a claim filed on its behalf by a debtor pursuant to Rule 3004, F.R.B.P., even though the time has expired for the creditor to file a claim on its own behalf..
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part III
By John Gustafson, Chapter 13 Trustee, Toledo, OH
Just for Fun
A Day in Bankruptcy Court
By Vijay Malik
Read this delightful account of a surprise visit to a BAP docket. “. . . informed me that the Bankruptcy Appellate Panel was in town for one day and one day only, and that it was my lucky day. Three hearings would start in an hour.”
In the News
In Prosecutors, Debt Collectors Find a Partner
“The practice, which has spread to more than 300 district attorneys’ offices in recent years, shocked Angela Yartz when she was threatened with conviction over a $47.95 check to Walmart.” Read more . . .
PRACTITIONERS EMAIL NOW: If you practice in one of these 300 districts and have run across this, we want to hear from you about your experience. Email: MemberAccounts@ConsiderChapter13.org
In the News and Save the Date
Bankruptcy Mortgage Mediation Program Is Gaining Momentum
A great article to introduce an upcoming free Academy webinar – Mortgage Modification Mediation: Talking Can Correct Math Errors – So mark your calendar NOW for Friday, October 12th 2:00 Eastern.
MORTGAGE MORASS
IN THE NEWS
September 17, 2012
Critical Case Comment
By Henry E. Hildebrand, III
Danielson v. Flores (In re Flores) – Debtors with no “projected disposable income” as calculated on Form 22C do not have a mandatory applicable commitment period and can propose Chapter 13 plans less than 60 months, even after Lanning.
A Conversation About Chapter 13 Debt Limitations of 11 U.S.C. § 109(e)
By Sarah E. Smith, Esq., Senior Staff Attorney, Kathleen A. Leavitt, Chapter 13 Bankruptcy Trustee
“Typically, the conversation starts with me pointing out that the debtor . . . exceeds the debt limitations . . . The debtor’s attorney will pause, presumably to summon the list of arguments in an effort to overcome my objection, take a breath, and begin . . .”
Social Security Benefits Under §101(10A) (B): Excluded Means What?© Part II
By John Gustafson, Chapter 13 Trustee, Toledo, OH
Part II of Trustee Gustafson’s dissection of Social Security and Chapter 13 as it relates to above-median income debtors, below-median income debtors, a potential difference of rules on a motion to modify under 1329, and much, much more.
Ethical Issues in Bankruptcy Cases Part VII
By Paul W. Bonapfel, United States Bankruptcy Judge, Northern District of Georgia
Supreme Court Corner
By M. Jonathan Hayes, Certified Bankruptcy Specialist, Northridge, CA
Wright v. Vinton Branch of Mountain Trust Bank of Roanoke, 300 U.S. 440 (1937)
Issue: 1. Did the amendments to the Frazier-Lemke Act cure the deficiencies cited by the Supreme Court in Louisville Joint Stock Land Bank v. Radford? 2. Do the rights of the debtor in a bankruptcy case amount to an unconstitutional taking prohibited by the Fifth Amendment? Holding: 1. Yes. 2. No
Holding: No.
The Composite Consumer Debtor (Reprinted with permission from the ABI Journal, Vol. XXXI, No. 7, August 2012.)
By Leslie E. Linfield, Institute for Financial Literacy
“If we were to draw a composite sketch of the consumer bankruptcy debtor, what would he or she look like?”
IN THE NEWS
Fed Study Indicates Benefits from Speeding Foreclosure Process or click here for the entire study
MORTGAGE MORASS
MILITARY MATTERS
LIES, DAMNED LIES AND STATISTICS
JUST FOR FUN
September 10, 2012
Barriers to Entry: How the Bankruptcy Bar Guarantees Poorly Filed Petitions
By Justin Lawrence, Florence, KY
” . . . trustees and judges often complain about poorly educated attorneys filing petitions that fail to conform to basic bankruptcy law and procedure. Poorly conceived Chapter 13s fail. Unintentionally un-exempted assets are seized in Chapter 7s. The unspoken consensus of these complaints is that the fault lies in the attorneys themselves.”
Social Security Benefits Under §101(10A) (B): Excluded Means What?©
By John Gustafson
“Conceptually and technically, BAPCPA corrupted the disposable income test in § 1325(b) in so many ways it takes restraint not to laugh and cry at the same time.” 6 Keith M. Lundin, Chapter 13 Bankruptcy § 466.1 at 466-1 (3d ed. 2000 & Supp. 2007-1). In Trustee Gustafson’s excogitative manner, he now begins a dissection of Social Security benefits and Chapter 13.
State and Federal Concurrent Jurisdiction of the Dischargeability of Family Law Obligations – Part II of II
By Professor Michaela M. White
The “Who, What, Where and How” of Marital Debt Status Determination
To GIVE or Not to GIVE “Notice” – That is the Question…
By Gerard T. Forgét III, JD, MBA, LLM(TAXATION), Omaha, NE
A must read. The Academy’s newest addition, Gerard Forgét brings us an IRS issued memorandum which addresses 3 specific bankruptcy issues you need to know about.
Bankruptcy Judges Juggle People, Businesses and Creditors in Hard Times
By Steve Green, Las Vegas Sun and VEGAS, INC. (Reprinted with permission – Vegas, Inc. July 23, 2012)
“With unemployment and foreclosures soaring during the recession, bankruptcy judges in Nevada have had to make tough decisions trying to balance the rights of bankrupt people and businesses with the rights of creditors.”
Yet Another Round of Rule Changes – Part I
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
Mr. Ghazvini outlines three of the five changes to the Federal Rules of Bankruptcy Procedure which, barring intervention, will go into effect December 1st (and, yes, that is only 3 short months away!). Attention: NON-ACADEMY members. We have made a rare exception and Mr. Ghazvini’s article is not password protected. Check it out and see the type of timely information you are missing. Click here for an informative Academy membership video.
IN THE NEWS
MORTGAGE MORASS
September 4, 2012
Yet Another Round of Rule Changes – Part I
By Nima Ghazvini, Staff Attorney for Martha G. Bronitsky, Standing Chapter 13 Trustee, Northern District of California, Oakland Division
Mr. Ghazvini outlines three of the five changes to the Federal Rules of Bankruptcy Procedure which, barring intervention, will go into effect December 1st (and, yes, that is only 3 short months away!).
Ethical Issues in Bankruptcy Cases Part V
By Paul W. Bonapfel, United States Bankruptcy Judge, Northern District of Georgia
State and Federal Concurrent Jurisdiction of the Dischargeability of Family Law Obligations
By Professor Michaela M. White
“We are bankruptcy geeks with the Code on our Kindles who love nothing more than a good statute to take on vacation. Onward, then, to the thrilling tale of two courts with concurrent jurisdiction!”
Critical Case Comment
By Henry E. Hildebrand, III
Last week’s CCC on Parks v. Drummond (In re Parks) sparked adverse opinions being shared via Disqus. Check out the comments and weigh in with your own thoughts. Click here for Trustee’s Brief
MORTGAGE MORASS
IN THE NEWS
Critical Case Comment
Meyer v. Scholz (In re Scholz). An anti-anticipation clause in a governmental or private retirement plan or trust does not exclude such income from the calculation of current monthly income and projected disposable income under 11 U.S.C. § 1325(b).
Section 363 Sales in Chapter 13© Part 6
This week Trustee Gustafson answers the question: How Do You Set Up A Sale Of Property In Chapter 13?
Supreme Court Corner – Lamie v. United States Trustee, 540 U.S. 526 (2004)
Issue: Does the debtor’s attorney in a chapter 11 case have the right to fees after the case is converted to chapter 7 when his efforts benefit the estate but he has not been retained by the trustee or approved in advance by the court?
Holding: No
When Multiple Filings Become Abuse of the System?
“Multiple filings without any intent of actually completing a Chapter 13 bankruptcy imposes a burden on the bankruptcy system.”
CFPB Press Releases
Three Press releases came out this week from the CFPB. (1) CFPB Halts Alleged Nationwide Mortgage Loan Modification Scams (2) CFPB Proposes Allowing Companies to Run Trial Disclosure Programs (3) CFPB Report Details How the Nation’s Largest Credit Bureaus Manage Consumer Data
MORTGAGE MORASS
December 10, 2012
Critical Case Comment
In re Thongta. If stay relief is granted to a mortgage claimholder and the mortgage claimholder withdraws its claim, Rule 3002.1 no longer applies
How Do You Handle Non-Filers?
Attention Debtor Attorneys: Dave has a FREE product for your non-filing clients. Click here to read more. (This article is not password protected.)
Mark Twain Has Filed Bankruptcy!
The Academy is thrilled to welcome back delightful author, Leon Bayer. Attorney Bayer brings us a historical look at Samuel Clemens and reminds us that financial issues are merely a bump in the road, not the end of the road. (This article is not password protected.)
MORTGAGE MORASS
December 3, 2012
Sua Sponte: Who Sponte? Why Sponte? You Sponte? Try Sponte?
This week the Academy is pleased to treat members to a detailed piece from the Academy’s original Editor and Advisor, Thomas Waldron. “The focus of this article is the availability . . . desirability, of a bankruptcy judge employing sua sponte actions to ensure ethical and professional conduct . . .”
Critical Case Comment
Beaulieu v. Ragos (In re Ragos). Bankruptcy Code excludes Social Security benefits from the calculation of current monthly income, disposable income, and projected disposable income; and it cannot be bad faith to exclude such benefits from the repayment of unsecured creditors through a Chapter 13 plan.
Killing the MERS Boogeyman: a Clarification of a Secured Creditor’s Standing in Bankruptcy
The Academy is pleased to introduce new contributing author, creditor attorney Sherry Moore. Everyone will want to read this thorough piece on standing.
Transfer of Claim Fee. An Unintended Consequence?
UPDATE – On Veterans’ Day, the Academy ran this article regarding a new fee on transfers of claim which will be effective May 1, 2013. The proposed fee schedule now appears on the website of the United States Courts. Click here to go to the United States Court site, then scroll down to #20.
MORTGAGE MORASS
IN THE NEWS
November 26, 2012
Yet Another Round of Rule Changes
The United States Supreme Court has adopted changes to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056 which will take effect on December 1, 2012.NO PASSWORD REQUIRED for this vital information.
Moving Towards A (Mostly) Worry Free Chapter 13 Law Practice
In August, Certified Specialist Leon Bayer, brought Academy members a delightful and informative three part piece, sharing tried and true words of wisdom to assist debtors’ attorneys in maximizing profitability while complying with the highest of ethical standards. We’ve pulled all three pieces together in this one, NO PASSWORD REQUIRED, article.
Mortgaging Human Capital: Federally Funded Subprime Higher Education
This concise piece, first published in July, is still just applicable today: “Student loans figure more and more as a factor in personal over-indebtedness and bankruptcy.”
In Re Bankruptcy Law Clerks As Mediators In Consumer Matters: An Effective, Cost-Saving Approach
Click here to read a visionary article on the future utilization of law clerks as Mediators. Ohio State’s Mayhew-Hite Report will feature this article in its upcoming issue.
Discharging Post-Petition Association Dues
In July, Debtor Attorney Mark Leffler gave Academy members a detailed look at how to respond to the inevitable assertion by a client: “I thought you took care of this in my bankruptcy”? Mr. Leffler has updated this piece including the most recent case decisions.
MORTGAGE MORASS
MILITARY MATTERS
November 19, 2012
Yet Another Round of Rule Changes Part 2
The United States Supreme Court has adopted changes to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056 which will take effect on December 1, 2012. Changes to Rules 1007, 2015, and 7054, were discussed in a previous post.
Ask Ms. Ps & Qs
Dear Ms. Ps & Qs: I often have clients who are married to each other when they file. How do I break it to them that they might not be married at the end of the case? Signed: Not Cynical, Just Practical
The Contours of Bankruptcy Rule 3002.1 One Year Later
“Bankruptcy courts across the country have published approximately a dozen opinions seeking to define the parameters of R. 3002.1. Two interrelated lines of inquiry are developing.”
When Chapter 13 Debtors Receive Windfalls
In the introduction of Mr. Leffler’s detailed dissection of windfalls he references the case of In re Knupp (Beskin v. Knupp), 461 B.R. 351, 354 (Bankr. W.D. Va. 2011). Although there were no briefs in this case, we are pleased to add the Knupp – Adversary to revoke discharge and Knupp_Stipulations to the newly revised Brief Bank. Click here for Part 1 Here for Part 2 Here for Part 3 of Mr. Leffler’s article.
Formal Loss Mitigation – Friend or Foe?
“Currently there are no formal loss mitigation procedures enacted or utilized by the bankruptcy court system. However, this has not stopped a few east coast bankruptcy courts from using loss mitigation procedures to spark refinancing negotiations between the mortgagors and debtors.” (No password required – be sure to share your opinion via Disqus at the bottom of the article.)
CFPB Press Release
On 11/14/12 the Consumer Financial Protection Bureau announced the launch of PROJECT CATALYSTto spur consumer-friendly innovation. “We believe that good, consumer-friendly innovation holds great potential for achieving our mission of making the consumer finance market work again for consumers. We want to help as much as we can to stimulate innovation in financial products and services,” stated Richard Cordray.
MORTGAGE MORASS
IN THE NEWS
Prosecutors Want 2½-year Prison Term for Money Laundering and Bankruptcy Fraud
New Underwater Mortgage Relief Has Its Undertows -Though there are still some snares and drawbacks for participants, one of the federal government’s most important financial relief efforts for underwater homeowners started operation on Nov. 1.
November 12, 2012
Transfer of Claim Fee. An Unintended Consequence?
On this Veterans’ Day, the Academy offers an informative article by an American Veteran, Sergeant Raymond P. Bell, Jr. USAR 1960-1966. Mr. Bell is the Vice President of Bankruptcy Management Services of Mercantile Adjustment Bureau LLC and the Academy thanks him for his service to our country and for bringing the Transfer of Claim Fee to our attention. “A new fee was added to charge $25 for all transfers of claim effective May 1, 2013.”
Critical Case Comment
Anderson v. Cranmer (In re Cranmer). Failure of a Chapter 13 debtor to include and commit Social Security income in calculating projected disposable income does not constitute bad faith.
AND, check out the Cranmer briefs under the heading Social Security in the newly reformatted Brief Bank.
When Chapter 13 Debtors Receive Windfalls – Part 3 of 3
In the conclusion of Mr. Leffler’s examination of windfalls, he examines the effects of Res Judicata on plan confirmation. Click here for Part 1 Here for Part 2
Supreme Court Corner – Re Wood and Henderson, 210 U.S. 246 (1908)
Issue: Where the Bankruptcy Code gives “the court” power to re-examine (and avoid) prepetition transactions between the debtor and his attorneys, may the bankruptcy referee do that in a summary proceeding even when the attorneys are outside of the state and not subject to personal jurisdiction in the state?
Holding: No.
Banks Pushing Into Small Loans Compete With Payday Shops
PLEASE VOTE: Is this a good thing or no? Click here to give a quick response(less than 30 seconds).
MORTGAGE MORASS
LIES, DAMNED LIES AND STATISTICS
November 5, 2012
Critical Case Comment
Wells Fargo Home Mortgage v. Oparaji. In filing a postpetition arrearage claim under § 1305, the mortgage creditor is not required to include all postpetition arrearages. If the first bankruptcy case is dismissed and the debtor later refiles, the mortgage creditor is not judicially estopped from asserting arrearages in the second case that could have been asserted as postpetition arrearages in the first case.
When Chapter 13 Debtors Receive Windfalls – Part 2 of 3
In this, part 2 of 3, Mr. Leffler examines windfalls in the form of inheritance or life insurance received more than 180 days after filing. Are these property of the estate or not? Click here for Part 1
Section 363 Sales in Chapter 13© Part 2 of 6
In Part 2 of Trustee Gustafson’s 6 part outline, he looks at: Sale Proceeds And The Requirement That A Chapter 13 Debtor Have Regular Income. See Part 1 here.
Supreme Court Grants Cert in Bullock v. BankChampaign
On Monday, October 29th the Supremes agreed to consider the following question: What degree of misconduct by a trustee constitutes “defalcation” under § 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge – and does it include actions that result in no loss of trust property? Click here for a summary of the case (No password required) CFPB Press Release
On 10/31/12 the Consumer Financial Protection Bureau released its first Supervisory Highlights report highlighting problems CFPB examiners discovered through the agency’s supervision process. The Bureau also released an appeals policy for supervised institutions as well as an updated version of the CFPB Supervision and Examination Manual, a field guide used by examiners.
How Much Home Equity Is Too Much?…
“BAPCPA introduced additional limitations on debtors exempting their residences utilizing the particular state homestead exemption.” (No password required)
MORTGAGE MORASS
October 29, 2012
When Chapter 13 Debtors Receive Windfalls
For the next three weeks the Academy will feature a detailed, thoroughly researched examination of windfalls received after confirmation. This week, Mr. Leffler explains “vesting.” What the heck is it anyway? “The disagreement on the proper treatment of most post-petition windfalls in Chapter 13 can be generally attributed to the inconsistency between §§ 1327(b) and 1306(a).”
Section 363 Sales in Chapter 13© Part 1 of 6
The Academy is excited to begin the next series by Trustee Gustafson. This week, he expertly inspects: (1) Who Sells Estate Property By The Seashore In Chapter 13? (2) Why Sell Estate Property In Chapter 13?
Underwater Junior Mortgage Strip Off: Should a Court Strip Off a Wholly Unsecured Lien When the Debtor is Ineligible for Discharge?
“This article suggests that the reasoning of the latter courts is more compelling because it aligns with Congress’s intent behind BAPCPA, the application of Section 506(a) and the plain language of Section 1325(a)(5).”
The Academy thanks Ms. Kanova and the NACTT Student Writing Contest for sharing this detailed article with us.
CFPB Press Release
On Wednesday, October 24th the Consumer Financial Protection Bureau published a rule that will allow the agency to federally supervise the larger consumer debt collectors for the first time. The CFPB also released the field guide that examiners will use to ensure that companies and banks engaging in debt collection are following the law.
More on Mortgage Modification Mediation
MORTGAGE MORASS
IN THE NEWS
Know They Neighbor: Zillow Adds Public Data On Homes In Foreclosure But Not Yet For Sale (requires free registration)
(Of personal interest to us all) Foreclosure Fallout Cost Nearby Homeowners $2 Trillion, Report Finds
Sheila Bair Called It – Foreclosure Lookback Reviews Are A “Ruse” – Be sure to purchase her book – Bull By the Horns – via the Academy’s link to Amazon above/right
October 22, 2012
Attention Attendees of the Mortgage Modification Mediation webinar: Handouts are now available.
For more information see MortgageModificationEducation.com and MortgageOversight.com.
The Archived Webinar is Available: Mortgage Modification Mediation: Talking Can Correct Math Errors. Learn how utilizing the mediation process can speed up the mortgage modification process, resulting in a win/win for all parties, even the creditor.
Mortgage Ethics and Loan Modifications
As a sample of the stellar information you will receive from the 47th Annual NACTT Conference, we are pleased to give you a sneak peak at the volumes of written materials you will receive. Read the materials for a panel entitled Mortgage Ethics and Loan Modifications. Or order the DVD to enjoy the presentation by the same name. Panelists include Marie-Ann Greenberg, Chapter 13 Standing Trustee, Fairfield, NJ., Hon. Elizabeth Magner, U.S. Bankruptcy Judge, E. D. of Louisiana; Edward J. Boll, III, Esq., Lerner, Sampson & Rothfuss, LPA, and Johnnie Patterson, Esq., Walker & Patterson, P.C.
Payday Loans
Payday loan legislation is back in the news and on the minds of both state and federal legislators. “The legalization of payday loans has been one of the most emotional topics debated in the state [Pennsylvania] Capitol this year. That debate continues but it may end up being just more pointless political rambling, regardless of the outcome.” Because in July, U.S. Representative Blaine Leutkemeyer (Missouri Republican) introduced the Consumer Credit Access, Innovation and Modernization Act. ” . . . allowing lenders to obtain federal charters is in the national interest and will greatly benefit the millions of underserved consumers who have pressing needs for better and more affordable credit options.”
The Academy published the results of a study by Nathalie Martin, Professor of Law at University of New Mexico School of Law, 1,000% Interest – Good While Supplies Last: A Study of Payday Loan Practices and Solutions
THE NEXT BIG THING
MORTGAGE MORASS
IN THE NEWS
October 15, 2012
Ask Ms. Ps & Qs
“We have a grab bag of questions this month (thank you!):” (1) objection to attendance of an attorney at a Rule 2004 exam; (2) employee of debtor attorney files 13, is it okay for employer to defer raise; and (3) texting in business.
Farm Financial Implications of the Drought of 2012
” . . . a recent USDA forecast suggests that U.S. net farm income could hit record levels in 2012.”
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part VI
This week we conclude Trustee Gustafson’s dissection of Social Security and Chapter 13. Part VI examines “An Anti-Debtor Consequence Flowing From The Pro-Debtor Exclusion Of Social Security Benefits: Everything Else Is Part Of Current Monthly Income.” Click here for Part I, Part II, Part III, Part IV, Part V
How, In the World, Did We Get Here?
In a follow-up to last week’s A History of the Credit Card, Trustee Loheit continues his historical look at consumer finance. “Lenders were happy to make loans secured by real estate and the lending/banking industry jumped in on the new growth market just as they had on the credit card market.”
Do Introverts Make Good Employees?
In January, Professor Michaela White, Academy Editor and Advisor, wrote an article pointing readers to Susan Cain’s article “Quiet: The Power of Introverts in a World that Can’t Stop Talking.” This week, McClatchydc.com ran a similar article which also indicates the talents of an introvert are often underestimated. (No password required.)
MORTGAGE MORASS
IN THE NEWS
Bankruptcy Reform: 7 Years Ago this Week (Celebration or Mourning?)
Using a Plaintiff’s Prior Bankruptcy Favorably In A Product Liability Action (Good article but you will have to register with the site to gain access – free for legal professionals.)
Marijuana Dispensary’s Chapter 11 Case Burns Out (Comical at first glance, but a truly interesting set of circumstances.)
October 8, 2012
Critical Case Comment
Allen v U.S. Bank, N.A. – Where a mortgage creditor does not have actual possession of an original note, the creditor could still enforce the claim if it possessed a lost note affidavit with a copy of the original note.
A History of the Credit Card
“Bank of America introduced the BankAmericard as a means to earn three or four times the rate of interest on debt than what they had been earning on their ‘sophisticated’ loans.” .. Click here . . .
Student Loan Discharge
“Interestingly, Congress was willing to lend help to lenders in distress but not to student loan borrowers in distress.”
In Re Bankruptcy Law Clerks As Mediators In Consumer Matters: An Effective, Cost-Saving Approach
Mediation is the Academy’s buzz work of the week. Click here to read a visionary article on the future utilization of law clerks as Mediators. And be sure to attend the substantive webinar this Friday on mediating mortgage modifications.
MORTGAGE MORASS
October 1, 2012
Critical Case Comment
The Tenth Circuit ruled that the lien strip of a wholly-unsecured Trust Deed on a debtor’s residence cannot be accomplished through § 506(d) but might be possible under § 1322(b)(2). Read more . . .
The Impact of the Automatic Stay on Domestic Relations Proceedings – Part II of II
Prof. White concludes her article on the stay as it related to DSOs specifically regarding stay violations and more. See Part 1
Social Security Benefits Under §101(10A) (B): Excluded Means What?© – Part IV
Read Trustee Gustafson’s dissection of Social Security and Chapter 13. Part IV examines “Putting Social Security Income In Voluntarily – Is It Ado Annie’s ‘All Or Nothing’, Or Is A Partial Commitment OK?” and “Where It Gets Interesting: At The Edges Of The Social Security Exclusion.” Click here for Part I, Part II, Part III
Graduated and Living with Mom and Dad
Click here for a graphic which shows the facts and figures behind the struggles of recent college graduates.
Reference Guide to Selling Property in Chapter 13
Check out the new “Selling Property While in Chapter 13 – FINAL for Toolbox,” which is housed in the Toolbox section of the website. This Guide gives practitioners a quick overview of the requirements, summarizes all relevant statutes and rules, and includes a few sample forms.
MORTGAGE MORASS
IN THE NEWS
September 24, 2012
The Impact of the Automatic Stay on Domestic Relations Proceedings Part I of II
“Taken as a whole, it could be said that the 2005 Amendments granted DSOs the bankruptcy equivalent of “most favored nation status.” This is particularly so where the automatic stay is concerned, the first topic covered by this paper.” Read more . . .
Critical Case Comment
In re Sacko , 394 B.R. 90 (Bankr. E.D. Pa, Sept. 17, 2008) (Frank) – A mortgage creditor may amend a claim filed on its behalf by a debtor pursuant to Rule 3004, F.R.B.P., even though the time has expired for the creditor to file a claim on its own behalf..
Just for Fun
A Day in Bankruptcy Court
Read this delightful account of a surprise visit to a BAP docket. “. . . informed me that the Bankruptcy Appellate Panel was in town for one day and one day only, and that it was my lucky day. Three hearings would start in an hour.”
In the News
In Prosecutors, Debt Collectors Find a Partner
“The practice, which has spread to more than 300 district attorneys’ offices in recent years, shocked Angela Yartz when she was threatened with conviction over a $47.95 check to Walmart.” Read more . . .
PRACTITIONERS EMAIL NOW: If you practice in one of these 300 districts and have run across this, we want to hear from you about your experience. Email: MemberAccounts@ConsiderChapter13.org
MORTGAGE MORASS
IN THE NEWS
September 17, 2012
Critical Case Comment
Danielson v. Flores (In re Flores) – Debtors with no “projected disposable income” as calculated on Form 22C do not have a mandatory applicable commitment period and can propose Chapter 13 plans less than 60 months, even after Lanning.
A Conversation About Chapter 13 Debt Limitations of 11 U.S.C. § 109(e)
“Typically, the conversation starts with me pointing out that the debtor . . . exceeds the debt limitations . . . The debtor’s attorney will pause, presumably to summon the list of arguments in an effort to overcome my objection, take a breath, and begin . . .”
Social Security Benefits Under §101(10A) (B): Excluded Means What?© Part II
Part II of Trustee Gustafson’s dissection of Social Security and Chapter 13 as it relates to above-median income debtors, below-median income debtors, a potential difference of rules on a motion to modify under 1329, and much, much more.
Supreme Court Corner
Wright v. Vinton Branch of Mountain Trust Bank of Roanoke, 300 U.S. 440 (1937)
Issue: 1. Did the amendments to the Frazier-Lemke Act cure the deficiencies cited by the Supreme Court in Louisville Joint Stock Land Bank v. Radford? 2. Do the rights of the debtor in a bankruptcy case amount to an unconstitutional taking prohibited by the Fifth Amendment? Holding: 1. Yes. 2. No
Holding: No.
The Composite Consumer Debtor (Reprinted with permission from the ABI Journal, Vol. XXXI, No. 7, August 2012.)
“If we were to draw a composite sketch of the consumer bankruptcy debtor, what would he or she look like?”
Barriers to Entry: How the Bankruptcy Bar Guarantees Poorly Filed Petitions
Last week’s article by Justin Lawrence (Florence, KY) created a brief but interesting Disqus buzz. Check it out and weigh in. (Scroll to the bottom of the article.)
IN THE NEWS
Fed Study Indicates Benefits from Speeding Foreclosure Process or click here for the entire study
MORTGAGE MORASS
MILITARY MATTERS
LIES, DAMNED LIES AND STATISTICS
JUST FOR FUN
September 10, 2012
Barriers to Entry: How the Bankruptcy Bar Guarantees Poorly Filed Petitions
” . . . trustees and judges often complain about poorly educated attorneys filing petitions that fail to conform to basic bankruptcy law and procedure. Poorly conceived Chapter 13s fail. Unintentionally un-exempted assets are seized in Chapter 7s. The unspoken consensus of these complaints is that the fault lies in the attorneys themselves.”
Social Security Benefits Under §101(10A) (B): Excluded Means What?©
“Conceptually and technically, BAPCPA corrupted the disposable income test in § 1325(b) in so many ways it takes restraint not to laugh and cry at the same time.” 6 Keith M. Lundin, Chapter 13 Bankruptcy § 466.1 at 466-1 (3d ed. 2000 & Supp. 2007-1). In Trustee Gustafson’s excogitative manner, he now begins a dissection of Social Security benefits and Chapter 13.
State and Federal Concurrent Jurisdiction of the Dischargeability of Family Law Obligations – Part II of II
The “Who, What, Where and How” of Marital Debt Status Determination
To GIVE or Not to GIVE “Notice” – That is the Question…
A must read. The Academy’s newest addition, Gerard Forgét brings us an IRS issued memorandum which addresses 3 specific bankruptcy issues you need to know about.
Bankruptcy Judges Juggle People, Businesses and Creditors in Hard Times
“With unemployment and foreclosures soaring during the recession, bankruptcy judges in Nevada have had to make tough decisions trying to balance the rights of bankrupt people and businesses with the rights of creditors.”
Yet Another Round of Rule Changes – Part I
Mr. Ghazvini outlines three of the five changes to the Federal Rules of Bankruptcy Procedure which, barring intervention, will go into effect December 1st (and, yes, that is only 3 short months away!).
IN THE NEWS
MORTGAGE MORASS
September 4, 2012
Yet Another Round of Rule Changes – Part I
Mr. Ghazvini outlines three of the five changes to the Federal Rules of Bankruptcy Procedure which, barring intervention, will go into effect December 1st (and, yes, that is only 3 short months away!).
State and Federal Concurrent Jurisdiction of the Dischargeability of Family Law Obligations
“We are bankruptcy geeks with the Code on our Kindles who love nothing more than a good statute to take on vacation. Onward, then, to the thrilling tale of two courts with concurrent jurisdiction!”
Critical Case Comment
Last week’s CCC on Parks v. Drummond (In re Parks) sparked adverse opinions being shared via Disqus. Check out the comments and weigh in with your own thoughts. Click here for Trustee’s Brief
MORTGAGE MORASS
IN THE NEWS
August 27, 2012
Critical Case Comment
Parks v. Drummond (In re Parks), 2012 WL 3193342 (9th Circuit BAP, August 6, 2012) (Jury) – Section 541(b)(7)(A) does not authorize Chapter 13 debtors to exclude voluntary post-petition retirement contributions in any amount for purposes of calculating their disposable income. Click here for Trustee’s Brief
How To Brush Off The Means Test
Veteran ConsiderChapter13.org author and Mountain View, California, debtors’ attorney offers a ‘detour’ around the means test.
IN THE NEWS
Mediation of Home Foreclosures Can Work
Mediation is an option being utilized more and more. Save the Date for a free webinar October 12th on helping Debtors modify their mortgage loans and taking advantage of the DOJ settlement.
Another One Bites the Dust? Debtor Attorneys Sanctioned for Objections
“The sanctions imposed in these cases were severe: in each the debtor’s attorney was suspended from practice for a minimum of 31 days.”
Prevailing Through The Pitfalls Webinar
If you missed Friday’s free webinar Prevailing Through The Pitfalls: A Behind The Scenes Look At Getting Cases To Completion, you still have a chance. This, and other webinars, is archived free for members and via pay per view for non-Academy members.Case of the Day
Don’t miss the New and Improved Format of Case of the DayPlease inform the Academy if your email address changes
MORTGAGE MORASS
IN THE NEWS
LIES, DAMNED LIES AND STATISTICS
August 20, 2012
Ask Ms. Ps & Qs
This month Ms. Ps & Qs shares a “top ten” of what she would like her law students to remember when talking with clients and this “top ten” is equally applicable to beginning and seasoned practitioners. Ms. Ps & Qs’ tips coordinate nicely with Certified Bankruptcy Specialist Leon Bayer’s practice tips below.
Moving Towards A (Mostly) Worry Free Chapter 13 Law Practice – Part 2
In part two of Leon Bayer’s three part article, we learn tried and true words of wisdom dealing with pre-filing troubles . . . “EXPECT TROUBLE WHEN A PROSPECTIVE CLIENT SAYS, ‘LET’S FORGET I TOLD YOU THAT’.” Read Part 1, Grab Control Over Pre-Filing Issues, here.
Ethical Issues in Bankruptcy Cases Part III
This week’s installment of Judge Bonapfel’s treatise focuses on the attorney-client privilege.
Guns-n-Exemptions – Is a gun a “household good” for purposes of exempting under Section 522(d)(3)?
That is a very good question. Carol A. Pettit, Legislative Attorney, and Vastine D. Platte, Information Research Specialist, on behalf of the Congressional Research Service (CRS) answer this question in great detail in a 2011 paper entitled Exemptions for Firearms in Bankruptcy. CRS is a “think tank” that provides reports and memoranda to members of Congress on a variety of topics relevant to current policy issues and events. Comprehensive analyses of complex topics are provided to Congress upon request. The agency also provides workshops, seminars and expert congressional testimony. Its first duty is to help Congress meet its responsibilities at every stage of the legislative process.
The Toolbox: Some Basic Concepts Under the Bankruptcy Code, Rules
“These principles are reflected in the provisions of the statute and in many court decisions. . . . transparency, creditor participation, protection of the status quo ante, fair value to the estate, equitable distribution and the debtor’s fresh start.”
Missouri Improves Bankruptcy Exemptions
Attention Missouri Practitioners: On August 6th the Academy featured an article on the new exemptions in Missouri. There has been an update to this article – scroll to the bottom of the page and see the Disqus comments. Please feel free to weigh in
New Addition to the Brief Bank
Three timely briefs representing varying arguments on Social Security in determining PDI.
Case of the Day
After a brief hiatus the Academy is pleased to announce that the Case of the Day is back. Check it out!Please inform the Academy if your email address changes
MORTGAGE MORASS
IN THE NEWS
MILITARY MATTERS
August 13, 2012
Moving Towards A (Mostly) Worry Free Chapter 13 Law Practice – Part 1
In this delightful and informative three part piece, Certified Specialist Leon Bayer shares tried and true words of wisdom to assist debtors’ attorneys in maximizing profitability while complying with the highest of ethical standards. Read Part 1, Grab Control Over Pre-Filing Issues, here.
Ethical Issues in Bankruptcy Cases Part II
This week Judge Bonapfel brings us ethical issues related to conflicts of interest.
The Subjectivity of Excusable Neglect
Charles Schaffner, Appellant vs. United States Trustee, Appellee – “The district court concluded that the bankruptcy judge erred in denying Schaffner’s motion for an extension of time and motion for reconsideration.”
Doing the “End Around” To Evade 401(k) Contributions…? No Chance Says The Bankruptcy Court!
“The case involved both a current contribution (Post-Petition) to the Plan and “contributions” for a loan from the Plan (Pre-Petition) by the Debtor.”
LIES, DAMNED LIES AND STATISTICS
Bankruptcy Filings Fall 14 Percent, AOUSC Reports
“Cases in the year ending June 30, 2012 totaled 1,311,602, down 14 percent from the 1,529,560 petitions filed the year before.”
New Addition to the Brief Bank
Issue Added: Does § 1322(b)(2) permit or prohibit the strip-off of an undersecured trust deed on a debtor’s principal residence? Both Db’s Supplemental Brief and Tr Rsp re 1322 – Appeal Template.
Additionally, along with the briefs, Chapter 13 Trustee Kevin Anderson offers us a detailed outline of the Woolsey case.
Supreme Court Corner
Louisville Joint Stock Land Bank v. Radford
Issue: Is an amendment to the bankruptcy code which permits the bankruptcy court to force a secured creditor to give up its lien without payment in full constitutional?
Holding: No.
Case of the Day
After a brief hiatus the Academy is pleased to announce that the Case of the Day is back. Check it out!MORTGAGE MORASS
August 6, 2012
|
Judge Paul W. Bonapfel’s article, Ethical Issues in Bankruptcy, will appear over the course of the next several weeks. Part I concerns the lawyer’s duties of competence, diligence and communication and the duty not to participate or assist the client in fraudulent or criminal activity. The Academy thanks Judge Bonapfel for his contribution to our coverage of bankruptcy ethics.
|
|
The Academy is proud to announce our newest guest columnist, John Gustafson, Chapter 13 Trustee in Toledo, Ohio. John is a regular and faithful contributor to our e-zine. His most recent contribution was the multi-part article on the Chapter 13 means test as embodied in Official Form 22C. It was your reaction to this article that inspired the Academy’s editor and advisor to implore Mr. Gustafson to answer any and all questions our members may have on the intricacies of the means test in Chapter 13. It is with great pleasure that “Dear Abner22C” makes its debut.
Dear Abner22C: With a garnishment looming, I filed a borderline Chapter 7 for clients but had to convert to a Chapter 13. I was in the process of filing the plan and now one of my clients just got laid off. I want to file a motion to convert back to a 7. Even though there is a presumption of abuse based on the means test, what is the likelihood of converting back to a 7 and keeping the trustee at bay on the presumption of abuse issue based on a change in circumstance (loss of job)? /s/ Bewildered |
|
|
|
Although this article pertains to Chapter 11 reorganizations, the topic will interest Chapter 13 practitioners as well. “Courts are split as to whether the absolute priority rule applies to individual debtors due to the awkward language used in §§ 1115 and 1129(b)(2)(B)(ii).”
|
|
 |
Last year, the Academy ran an article by Prof. Michael Kelly which is just as timely today. Prof. Kelly introduces us to a free research tool . . . The Social Science Research Network (SSRN) is a fully searchable database of papers in the social science fields including law.
|
July 30, 2012
 |
Order Recordings
Order recordings of the NACTT seminar in New Orleans. These DVDs and CDs can be ordered by anyone, but our members will get a special discount.
|
|
Ask Ms. Ps and Qs
This month Ms. Ps & Qs admonishes professionals to be guardians for consumers and oust the VBLs!
|
 |
Mortgaging Human Capital: Federally Funded Subprime Higher Education
“Student loans figure more and more as a factor in personal over-indebtedness and bankruptcy.”
|
 |
“COD” Income and the IRS
Proper and appropriate tax planning, has everything to do with timing. This is especially true in bankruptcy proceedings. An effective tax attribute (e.g. “Net Operating Loss”) can be utilized to offset income if the timing of each coincides. One such type of income (especially in a bankruptcy proceeding) is “COD” or “Cancellation of Debt” income. The issue in a bankruptcy proceeding revolves around the timing of recognition for income tax purposes. In a recently released IRS Private Letter Ruling, the IRS discusses the timing of “COD” income in a bankruptcy proceeding.
|
|
Bank of America Sues Nashville Bankruptcy Trustee
The Academy’s Critical Case Comment author, Henry Hildebrand, has been sued by banking giant.
|
|
Cordray Testifies
Click here for the July 24, 2012, Written Testimony of Richard CordrayBefore the House Oversight and Government Reform Subcommittee on TARP, Financial Services, and Bailouts of Public and Private Programs.
|
| William A. “Bill” Chatterton Dies at 85
Mr. Chatterton was a founding member of the NACTT.
|
New This Week In Mortgage Morass:
Just For Fun
Lies, Damned Lies and Statistics
The Next Big Thing
Military Matters
July 23, 2012
 |
The Means Test – Line by Line – Part IX Lines 59-End
This week John brings us the conclusion to his masterful outline which dissects the Means Test. Watch for other such tools from SuperTrustee John Gustafson in the future!
|
|
Res Cap Order Entered
“The Residential Capital bankruptcy pending in the Southern District of New York, could have had a significant impact on the administration of chapter 13 cases . . .”
|
 |
Mortgage Industry Forward – Part III
“In this article we will take a look at some additional paradigms being employed to select law firms to perform legal work related to defaulting mortgage loans.”Read Part II Here.
|
New This Week In Mortgage Morass:
In The News
Lies, Damned Lies and Statistics
The Next Big Thing
July 16, 2012
|
The Means Test – Line by Line – Part VIII Lines 52-58
Subpart D: Total Deductions from Income
|
|
Discharging Post-Petition Association Dues
“How do you respond to the inevitable assertion by your client that “I thought you took care of this in my bankruptcy”?”
|
 |
From NACTT in the Big Easy
A summary of some of the excitement at NOLA, a downloadable PDF, and a chance to order the seminars.
|
|
Supreme Court Corner:
First National Bank of Jacksboro v. Lasater, 196 U.S. 115 (1905) Issue: When the debtor does not disclose an asset to the chapter 7 trustee, what happens to the asset when the case is closed? Holding: It remains with the estate.
|
 |
|
Mortgage Industry Forward – Part II of II
“. . . we cannot have an honest conversation about change absent a general discussion about the FNMA & FHLMC attorney selection and retention process history.” In this week’s installment of William LeRoy’s series on needed change in the mortgage servicing industry, he examines the attorney selection process. Read Part I Here.
|
New This Week In Mortgage Morass:
July 9, 2012
|
The Means Test – Line by Line – Part VII Lines 47-51
After taking the holiday week off, John’s Means Test dissection continues with Subpart C: Deductions for Debt Payment.
|
|
Critical Case Comment: Miller v. Deutsche Bank National Trust Company, 2012 WL 286865 (10th Cir, Feb. 1, 2012) (Portfilio) A creditor, seeking relief from the automatic stay, must establish its right to enforce the underlying note and where that note is endorsed in blank, the creditor generally must produce the original Note; the Rooker-Feldman Doctrine does not preclude a debtor from challenging the standing of the creditor when that creditor obtained a judgment of foreclosure in state court. |
|
Supreme Court Corner:
Kontrick v. Ryan, 540 U.S. 443 (2004) Issue: Is Rule 4004 requiring that suit to deny the discharge be filed within 60 days of the first meeting of creditors jurisdictional or can it be waived?
Holding: Rule 4004 is not jurisdictional. It is an affirmative defense and therefore can be waived.
|
 |
|
Mortgage Industry Forward – Part I of II
“The inexorable fact is that to experience real change, we need a true Paradigm Shift; not just new lipstick on the proverbial pig.”
|
New This Week In Mortgage Morass:
Lies, Damned Lies and Statistics
July 2, 2012
 |
Something Might Be Broke, but Abolishing Chapter 13 Ain’t the Fix
In December of 2011 the Academy reported on Professor Katherine Porter’s study, The Pretend Solution: An Empirical Study of Bankruptcy Outcomes and Henry Hildebrand’s response to the Professor’s study.
|
|
 |
The conversation will continue next week in New Orleans at the NACTT Annual conference with a debate between Prof. Jean Braucher, Hank Hildebrand and moderator, The Hon. Bruce Markell. DON’T MISS IT!…More. |  |
 |
No Look Budgets – Developing An Objective Guide For Reasonable And Necessary Expenses
“So once again it comes down to reasonable and necessary expenses. We have come full circle back to the beginning.”
|
 |
Locating & Identifying Financial Institutions and Their Officers
“. . . we are often called upon to commence contested matters and adversary proceedings against financial institutions. At first glance, obtaining proper notice in such matters appears to be simple. But it really isn’t.” In this detailed article, Mark gives us a host of website links that will simplify this process.
|
|
The Means Test – All of Trustee John Gustafson’s Means Test remains on the top of our reader list. All can be found by clicking here or from the homepage, click The Toolbox in the gray menu bar, then Means Test in the drop down. |
|
DIDN’T SEE THAT COMING: RECENT SUPREME COURT DECISIONS AND ETHICS
We are honored to reprint this article by Judge Thomas F. Waldron, former Advisor to the Academy, which originally appeared in the Norton Bankruptcy Advisor. Judge Waldron was appointed U.S. Bankruptcy Judge for the Southern District of Ohio, at Dayton, in 1985 and served as Chief Judge of the Bankruptcy Court. He was the first Chief Judge of the Bankruptcy Appellate Panel of the Sixth Circuit. …More.
|
 |
UST Allows Unprecedented Fees
In re Antonacci(1) Trustee is not entitled to administrative fees under 11 U.S.C. § 503(b) and (2) Trustee can collect percentage fee on all payments received from debtors even if plan is not confirmed.
|
|
Critical Case Comment: Massey v. Pappalardo, 2012 WL 616587 (1st Cir. BAP, Feb. 27, 2012) (Tester)
Where a Chapter 13 Debtor is allowed an exemption up to a specified dollar amount, claiming an exemption of “100% of FMV” is facially defective and the exemption must be disallowed.
|
 |
Ms. Ps & Qs
Dear Readers: It’s time for a grab-bag of questions . . . I love thinking about conflicts of interest, so I’m glad that we’ve gotten a question on that topic and When is it OK to sleep with my client?…More.
|
New This Week In Mortgage Morass:
June 25, 2012
|
PNC Mortgage v Rhiel, 2011 WL 1043949 (S.D. Ohio, Mar. 18, 2011) (Sargus) Service of an adversary proceeding or contested matter on an insured depository institution must be addressed to the attention of an officer; including in the service “managing or general agent” renders the service defective.
|
|
The Means Test – Line by Line – Part VI Lines 39-46
This week, John looks at Subpart B: Additional Living Expense Deductions.
|
 |
Value Investing – From Graham to Buffett and Beyond
“In addition to some illustrations of value investing, Greenwald provides profiles of successful value investors.” Be Sure To Make Your Amazon Purchases Via the Academy Portal.
|
 |
New This Week In Mortgage Morass:
June 18, 2012
|
The Means Test – Line by Line – Part V Lines 30-38
“Other Necessary Expenses” are the focus of this week’s means test dissection.
|
|
Critical Case Comment: In re Keele, 2012 WL 893351 (Bankr. D. Kan, March 14, 2012) (Somers) A secured creditor is entitled to pre-confirmation adequate protection payment under §§ 361, 362 and 363 only where the creditor makes a request for it. |
|
THE NEW BANKRUPTCY MATH:[Your Chapter 13 Case] + [No Lawyer] = [Zero Success Rate]
Chapter 13 Bankruptcy and the self-represented individual
|
 |
The Vulture Investors
Be Sure To Make Your Amazon Purchases Via the Academy Portal.
|
New This Week In Mortgage Morass:
June 11, 2012
|
Critical Case Comment: Drummond v. Welsh (In re Welsh), 465 B.R. 843 (Ninth Cir. BAP, Feb. 17, 2012) (Perris) The means test allows a debtor to deduct from current monthly income payments on secured debts regardless of whether the collateral is necessary; a debtor need not take into account Social Security income to satisfy the good faith requirements of § 1325. |
|
The Means Test – Line by Line – Part IV Lines 24-29
John continues this week with the means test dissection and takes a close look at calculation of deductions from income.
|
 |
Loeffler – Avoidance Actions Left to Sound Discretion of Trustee
“The Debtor is under no duty to personally fund distribution to creditors of the hypothetical value of any such recovery.”
|
 |
The Essays of Warren Buffet: Lessons for Corporate America
Be Sure To Make Your Amazon Purchases Via the Academy Portal.
|
 |
 |
New Addition to Brief Bank – Issue Added:
Kirby – Trustee’s brief modifying plan to repay creditors in full with proceeds from post confirmation personal injury claim
|
 |
Check out THE NEW AND IMPROVED Webinar Page. Academy webinars archived in one place. New Feature – Pay Per View – Not a member, no problem, pay as you view archived webinars. But, as always, live webinars remain FREE! |
New This Week In Mortgage Morass:
In The News
Lies, Damned Lies, Statistics
June 5, 2012
|
|
Ask Mr. Civil Procedure Man
Dear Mr. Civ Pro Man, Judicial estoppel is frequently employed in bankruptcy cases these days especially where a debtor omits from his list of assets a pending lawsuit and then tries to litigate it later, usually after the bankruptcy case is closed. What is judicial estoppel and how does it differ from issue and claim preclusion in other contexts? Sincerely, As Dazed and Confused as I was in Law School
|
 |
|
The Means Test – Line by Line – Part III Lines 18-23
Application of §1325(B)(3) For Determining Disposable Income
|
 |
Hall v. U.S.: Chapter 12 Debtors Liable for Post-Petition Taxes
In a 5-4 decision issued on May 14, 2012, the U.S. Supreme Court ruled that federal income taxes resulting from the post-petition sale or other disposition of farm assets are not “incurred by the estate” under section 503(b) of the Bankruptcy Code (all “section” references are to the Bankruptcy Code unless otherwise indicated) and, thus, are neither collectible nor dischargeable in a Chapter 12 plan.
|
| Also from ‘the Supremes’ a Ruling in RadLAX |
 |
Welcome New 13 Trustee to the Western District of Virginia
Christopher T. Micale has been appointed Chapter 13 Trustee for the Western District of Virginia effective June 1st.
|
|
New Addition to Brief Bank – Issue Added:
Trustee’s brief regarding if the bankruptcy court can consider Social Security income for purposes of determining PDI and/or good faith.
|
New This Week In Mortgage Morass:
