Archived - November 2013 - December 2013

December 30, 2013

4TH Circuit to Beneficiaries in Chapter 13: Pay Up

By Mark C. Leffler, Boleman Law Firm, P.C., Richmond, Hampton, and Va. Beach, VA
The 4th Circuit Court of Appeals recently provided answers to many questions regarding windfalls in Carroll v. LoganClick here for the latest info.

The Mortgage-Follows-the-Note Rule – Part IV of IV

By James M. Davis, Staff Attorney Office of the Chapter 13 Bankruptcy Trustee (Nashville, TN)
In the conclusion of this four part series, Staff Attorney Davis gets into the real ‘meat’ of separation of notes and mortgages – MERS, ramifications, and potential ramifications.
Click here for Part I

Click here for Part II
Click here for Part III

This Week at the CFPB


Sanctions and Irony and Fraud, Oh My!

(The following link is NOT password protected.)
  • Old Republic National Title Ins. Co. v. Levasseur – On Appeal, U.S. District Court Judge Douglas Woodlock (Massachusetts) affirmed the Bankruptcy Court’s order that pre-petition judgment was not dischargeable due to false pretenses, fraud, or willful and malicious behavior.

From the NCLC (Not password protected)

December 23, 2013

Critical Case Comment

By Henry E. Hildebrand, III, Chapter 13 Trustee for the Middle District of Tennessee
After a brief absence, Hildebrand is back with a very important Critical Case Comment . . . In re Rogers – Mortgage obligation treated in a debtors’ plan as current and paid directly by the debtors is nonetheless discharged pursuant to 11 U.S.C. 1328(a) and mortgage creditor cannot pursue deficiency. Click here to see what this case means to debtors, creditors, trustees.

Post Confirmation Issues In Chapter 13 Cases

(Used with permission. Originally prepared for State Bar of Texas Advanced Consumer Bankruptcy Seminar)

By Eduardo V. Rodriguez, Malaise Law Firm, Brownsville, Texas
Attorney Rodriguez outlines duties and responsibilities of debtor and debtor’s counsel after the case is confirmed. “Don’t fall asleep at the wheel of your chapter 13 cases.”

The Mortgage-Follows-the-Note Rule – Part III of IV

By James M. Davis, Staff Attorney Office of the Chapter 13 Bankruptcy Trustee (Nashville, TN)
Part three of four in a series by Staff Attorney Davis offers a brief look at the limitations on the mortgage-follows-the-note rule from state real property law.Click here for Part IClick here for Part II

This Week at the CFPB

December 16, 2013

Ask Ms. Ps & Qs

By Professor Nancy Rapoport
Essentially, 2013 is gone. In this month’s article, Ms. Ps & Qs points us toward 10 excellent new year’s resolutions. From technology to bullies, Ms. Ps & Qs has her finger on the pulse of the everyday lawyer. Click here for her great tips for 2014.

The Mortgage-Follows-the-Note Rule – Part II of IV

By James M. Davis, Staff Attorney Office of the Chapter 13 Bankruptcy Trustee (Nashville, TN)
Part two of a four part series by Staff Attorney Davis concentrates on applying the mortgage-follows-the-note rule in light of the distinction between ownership and entitlement to enforce notes.Click here for Part I

DSOs Anyone?

By Eduardo V. Rodriguez
An interesting issue was presented to the US Bankruptcy Court for the Southern District of Texas which changes the way Chapter 13 plans are proposed when it comes to DSOs.This item also adds a brief to the Academy’s ever growing Brief Bank.   Click here for Debtor’s Memorandum of Law in Support of Plan Confirmation.

This Week at the CFPB


From the IRS

All Legal Same-Sex Marriages Will Be Recognized For Federal Tax Purposes – Legally-married same-sex couples generally must file their 2013 federal income tax return using either the married filing jointly or married filing separately filing status.

Executive Benefits Insurance Agency v. Arkison

A report analyzing one of the issues before the Supreme Court: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid? By Elizabeth Gibson (University of North Carolina at Chapel Hill – School of Law) and Jonathan M. Landers (Scarola Malone & Zubatov LLP) (This item is not password protected.)

STATISTICS (Not password protected)

December 9, 2013

The Mortgage-Follows-the-Note Rule – Part I of IV

By James M. Davis, Staff Attorney Office of the Chapter 13 Bankruptcy Trustee (Nashville, TN)
In this, the first of a four part series, Attorney Davis concentrates on the Common Law and Article 9 aspects of this all-important, controversial topic.

The 3-3-3 Rule

By The Honorable Michael G. Williamson, United States Bankruptcy Court, Middle District of Florida
Although written in a light-hearted style, Judge Williamson provides stellar guidance for attorneys. “Avoid Legalese. Plain language is easier to understand. As Justice Scalia once said, ‘A good test is, if you use the word at a cocktail party, will people look at you funny?'”

Mortgage Servicing Abuses – Max’s Nifty Fifty

By O. Max Gardner III, Shelby NC
Although known to most of you, Max Gardner is new as an Academy contributor. This is the author’s, a debtor practitioner, checklist of potential issues to investigate.

Saving Homes and Stripping Liens: Recent Exemption Developments

(Prepared to accompany webinar)

By William Houston Brown and Lawrence R. Ahern, III
Although prepared as a handout for the webinar, this article also stands alone and serves as a tremendous ‘cheat sheet.’

MORTGAGE MORASS (Not password protected)

Article:  FHA Changes May Aid Those Who Lost Homes – FHA has shortened mandatory waiting periods for FHA-insured mortgage loans for those who have undergone foreclosure, deed-in-lieu, taken a short sale or declared bankruptcy during the economic recession.
Article:  A Key to Housing Recovery? Out-Of-Court Foreclosures – Home real-estate markets have bounced back significantly faster in states where the law allows foreclosures to move ahead quickly, putting houses into new owners’ hands sooner.
December 2, 2013

A Modest Proposal for the Care & Fee’ding of Debtor’s Counsel

By Peter C. Fessenden, Chapter 13 Trustee – District of Maine
“I have a good idea how the case will go just by knowing who is representing the debtor.”

Ninth Circuit Overturns Kagenveama

By Kathleen McCallister, Chapter 13 Trustee for the District of Idaho
An en banc panel of the Ninth Circuit Appellate Court overturned Maney v. Kagenveama in Danielson v Flores (In re Flores).

Cases That Caught My Eye

By John Gustafson, Chapter 13 Trustee
Proving again that sequels stink, Cases That Caught My Eye is back with even worse jokes and more than your recommended daily allowance of shamelessly bad puns.
November 25, 2013

Critical Case Comment – 4th Circuit Limits Lien Stripping

By Kevin R. Anderson, Chapter 13 Trustee for the District of Utah
Alvarez v. HSBC Bank USA. When spouses own real property as tenants by the entirety, the bankruptcy filing of one spouse does not sever the unity of the tenancy, and the interest of the non-filing spouse does not become property of the estate. Therefore, the bankruptcy court is without jurisdiction to modify a lienholder’s rights as to the non-debtor’s interest in the real property.

From the Editor’s Desk – Discharge Reprise

By Wm Houston Brown and John Gustafson
On November 11th, Judge Brown wrote about In re Rogers wherein a claim for personal liability for post-discharge deficiency was discharged. What started out as a brief comment to Judge Brown’s synopsis, turned into a detailed article. Click here for Trustee Gustafson’s thoughts. Hint: Beware the typo in the opinion.

Cash Collateral, the Hanging Paragraph, and Trustee Liability

By Katherine Iskin, Staff Attorney for Debra Miller, South Bend and Fort Wayne, IN
“Assuming that Chapter 13 Debtors total their cars at the same rate as the rest of the population, each case where a vehicle is being valued through the Plan has a 2% chance of the collateral being totaled each year of the Plan.” Click here for more . . .

The Importance of Social Media in the Job Search

By Julie Waters, PHR, Human Resources/Operations Manager for the Office of the Chapter 13 Trustee, Eastern District of Washington
For Debtor Attorneys – Ever have a client in need of a job? This article is a perfect handout for individuals who may be having a difficult time landing a good-paying job. It teaches, in a non-condemning way, proper social media etiquette and more. Download now for future use.
November 18, 2013

Disposable Income and 100% Plans: A Different Perspective

By Beverly M. Burden, Chapter 13 Trustee for the Eastern District of Kentucky, Lexington, KY
Trustee Burden takes a detailed look at how a 100% plan may not be enough to satisfy the Code.

From the Editor’s Desk – Disposable Income

By The Honorable William Houston Brown (Retired)
This week, Judge Brown looks at 3 disposable income issues: retirement plan contributions, social security income of non-filing spouse, and secured payments on second mortgage. Click here for details . . .

Outline and Forms of Chapter 13 Practice and Procedures

By Charles Maglieri, Bloomfield, CT

Nationally recognized, veteran debtor attorney Charles Maglieri shares an excellent aid, primarily for newer attorneys but useful for all, which includes:

  • a master case checklist including items such as
    • “Other Thorny Issues?—-Illogic of Sec. 506 Inapplicability in General”
    • “Convincing the Trustee that you are right!”
    • “Anticipate Need for Modification After Confirmation”
  • a sample plan with multiple contingencies and options
  • a form for calculating DMI
  • 341 case summary checklist
  • helpful definitions
  • and much much more

SBA: Did You Know

Based on the definition of The Small Business Administration, many of you operate a ‘small business.’ The SBA defines a small business concern as one that is independently owned and operated, is organized for profit, and is not dominant in its field. . . . Attorneys would fall into the Services category. . . .The Small Business Administration is not only a resource for your clients but potentially a resource for you. Click here for more information.

Sanctions and Irony and Fraud, Oh My!

(The following link is NOT password protected.)
November 11, 2013

Ask Ms. Ps and Qs

By Professor Nancy Rapoport
” . . . thinking about you and your firms: do you have a social media policy in place? For all sorts of good reasons, you need to figure out what your policy should be.” Think you’ve heard it all regarding “social” media? What about “professional” media? Click here for cutting edge thoughts on various media formats.

From the Editor’s Desk – Eligibility, Best Interests Test, and Discharge

By The Honorable William Houston Brown (Retired)
This week, Judge Brown looks at three separate issues dealt with in three separate cases. (1) Eligibility and In re Scovis; (2) Best Interests Test and In re Engle; and (3) Discharge and In re RogersClick here for details . . .

Maximizing Your Social Security Benefits Requires a Strategy

(Article and links are not password protected.)

Key Points to Know:

  • How much are you (or your clients) leaving behind?
  • Social Security Techniques – ‘Show me the money’
  • Are you familiar with ‘File and Suspend’ and ‘Claim now Claim more later?

Additional Article of Interest: How Social Security Keeps Divorcées and Widows in the Dark About Their Benefits


Sanctions and Irony and Fraud, Oh My!

(The following link is NOT password protected.)

MORTGAGE MORASS (Not password protected)

STATISTICS (Not password protected)

November 4, 2013

Terminating An Employee

By Jack Gooding, Chapter 13 Standing Trustee for the Eastern and Western Districts of Arkansas

Chapter 13 Trustee Jack Gooding brings members another in our series of business aids. Terminating an employee is never pleasant but it is a business decision that sometimes has to be made. Click here for a resource you will want to share with your Human Resources or Office Management.”Evaluations are a two edged sword. They can be a valuable tool, but only if you are willing to be honest and potentially hurt some feelings.”Additional Resources:


Perceptions, Reality, and a Debtor’s Desire to Change Venue

By Beverly M. Burden, Chapter 13 Trustee for the Eastern District of Kentucky
At first glance, this article appears to be a ‘nice little story about a pro se debtor.’ In fact, it is an excellent, serious, well written, ethical resource.”‘In matters of ethics, appearance and reality often converge as one.” After all, we have to strive to avoid the ‘appearance’ of impropriety; the ‘potential’ conflict of interest. ‘Justice must satisfy the appearance of justice.'”

From the Editor’s Desk – Conversion and Dismissal

This week, Judge Brown looks at two cases. (1) Debtor did not have absolute right to dismiss; and (2) When case dismissed prior to confirmation, trustee must return payments to debtor. Click here for details . . .