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March 29, 2021
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Critical Case Comment
Section 1328(i) requires the court to consider the discharge provisions of §§ 1328(a) through (h) and the fact that incomplete personal residence mortgage payments or a forbearance do not preclude but do not compel a COVID-19 Discharge.
See Also Legislation to Watch below. It appears that extension of the new § 1328(i) provision created under the Consolidated Appropriations Acthas been omitted from the current Bill making its way to the President’s desk. BUT AS OF PRESS TIME, THIS IS STILL LEGISLATION.
United States Trustee Program Alert
“In Summary – Chapter 7 and 13 trustees should not consider recovery rebates or child tax credits in administering estate assets or calculating disposable income in chapter 13 repayment plans.”
Legislation to Watch
- H.R. 1651: COVID–19 Bankruptcy Relief Extension Act of 2021 – Bill passed the House 3/17
- S. 473: COVID–19 Bankruptcy Relief Extension Act of 2021 – Bill passed Senate 3/24 with Amendment (S.Amend. 1407).
Passed the House with Amendment 3/26 and is expected to be signed by the President on 3/28.
From the Editor
Even during spring break, Judge Brown made time to find two cases of interest regarding lien modification:
From the IRS
- Face Masks and Other Personal Protective Equipment to Prevent the Spread of COVID-19 Are Tax Deductible (Nice of the IRS but with current Standard Deductions who does this really help?)
- Tax Day for Individuals Extended to May 17 (From April 15th)
Subchapter V
Reminder – March 27 WAS the Deadline to decrease the cap back to $2,725,625, although an extension has been proposed (Passed the House 3/17; Passed the Senate).
From the Courts
- Middle District of FL – Proposed Local Rules Available for Comment
- District of KS – Revised Local Rules effective 3/17/21
- Northern District of IL – Transitioning to NextGen 5/24/21
- District of MD – Transitioning to NextGen 5/10/21
- Eastern District of OK – Transitioning to NextGen 4/1/21 – CM/ECF will be shut down from Thursday 4/1 through 8 am Monday 4/4
Student Loan Chronicles
- Student Debt “Feels Like Quicksand” Is loan forgiveness the answer?
- An Extremely Important Statistic About Student Debt That Has Never Been Published – Dept. of Education does not actually publish straightforward figures tracking how much money it collects each year. The data the agency releases annually combines the regular principal and interest collections with the massive number of loan consolidation payments borrowers make each year, which doesn’t really tell us how much of their own money Americans are paying toward loans.
Sanctions and Irony and Fraud, Oh My!
IN CASE YOU MISSED IT . . .
6 Steps to Ethical Unbundling of Bankruptcy Representation
The client initialed every paragraph of the 19-paged representation agreement, and the appeals court still sanctioned the attorney over the agreement.Turns out, a long agreement and the client’s initials weren’t enough to protect the lawyer from sanctions for unbundling his services. So, what does it take??
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Door Is Shut to Millions of American Homeowners In Need of Mortgage Relief as Pandemic Enters Year 2 – Some 14.5 million single-family home loans are privately owned, with no federal backing, and occupy a gray area when it comes to government programs delaying foreclosure proceedings and granting payment forbearance
MBA: Share of Mortgage Loans in Forbearance Declines to 5.35% (BlackKnight says 4.9%, hmmm?)
4th Quarter FHFA Foreclosure Prevention and Refinance Report (Forbearance numbers are on page 13)
OF INTEREST (Not password protected)
DEBT AND THE ECONOMY (Not password protected)
How a Federal Agency Excluded Thousands of Viable Businesses from Biden Relief Plan (Definite bankruptcy connection of which you may want to be aware.)
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March 22, 2021
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Archives |
6 Steps to Ethical Unbundling of Bankruptcy Representation
The client initialed every paragraph of the 19-paged representation agreement, and the appeals court still sanctioned the attorney over the agreement.Turns out, a long agreement and the client’s initials weren’t enough to protect the lawyer from sanctions for unbundling his services. So, what does it take??
The American Rescue Plan
The new $1,400 per person stimulus checks could be garnished for unpaid debts. Why this one but not the previous two?
Reconciliation. Reconciliation in this context is a way for Congress to enact legislation on taxes, spending, and the debt limit with only a majority (51 votes, or 50 if the vice president breaks a tie) in the Senate, avoiding the threat of a filibuster, which requires 60 votes to overcome. Because Democrats have 50 seats in the Senate—plus a Democratic vice president—reconciliation is a way to get a tax-and-spending bill to the president’s desk even if all 50 Republicans oppose it.
More information:
- CFPB Steps in to Help Shield Consumers from Having Their Stimulus Check Garnished by Creditors – The agency says banks are willing to help consumers who are affected by this issue
- From the Auto Industry: CFPB Wants Stimulus Payments to Go to Consumers, Not Collectors
Legislation to Watch
- H.R. 1651: COVID–19 Bankruptcy Relief Extension Act of 2021 – Bill passed the House 3/17
- S. 473: COVID–19 Bankruptcy Relief Extension Act of 2021 (Bill is only 2 pages long.)
From the Editor
Judge Brown found some cases of interest regarding plan modification:
Comparison of Annual Change in Chapter 13 Case Filings During the Beginnings of the 2008 and the 2020 Recessions
Coming off the longest economic expansion in U.S. history, Chapter 13 filings were at their lowest levels since 2007. With the country entering a sudden and unanticipated recession in February of 2020, we expected to see Chapter 13 filing rates increase; however, the opposite occurred.
More on Fulton
Judge Wedoff: On Representing Respondents at Supreme Court in Chicago v. Fulton (17-minute substantive and entertaining (I mean, it’s Judge Wedoff!!) interview by Don Swanson)
Chapter 12 Conference Farm Reorganization
July 22, 23 & 29, 30, 2021 – VIRTUAL
From the IRS
- Tax Day for Individuals Extended to May 17 (From April 15th)
- IRS Office of Chief Counsel Unveils National Virtual Settlement Days (From April 15th) – IRS Office of Chief Counsel has embarked on its most far-reaching Settlement Days program ever, declaring the month of March 2021 (nice of them to announce this on March 18th) as “National Settlement Month.”If you have clients with IRS issues, this may be of interest to you.BUT if we are reading this properly, they would have to participate without counsel.
The Advisory Committee on Bankruptcy Rules Needs Your Help
Positions Open
- Sixth Circuit announced final 5 candidates for Eastern District of Michigan judgeship. They request comments in order to narrow 5 to 3.
- District of Minnesota – Term Law Clerk
- District of Maryland – Term Law Clerk
Subchapter V
Reminder – March 27 is the CurrentDeadline to decrease the cap back to $2,725,625, although an extension has been proposed (and passed the House 3/17).
From the Courts
- Middle District of FL – Proposed Local Rules Available for Comment
- District of KS – Revised Local Rules effective 3/17/21
- District of NJ – Zoom Trial Guidelines
- Eastern District of MI – Transitioning to NextGen 6/1/21
- Northern District of IL – Transitioning to NextGen 5/24/21
- District of MD – Transitioning to NextGen 5/10/21
- Eastern District of OK – Transitioning to NextGen 4/1/21 – CM/ECF will be shut down from Thursday 4/1 through 8 am Monday 4/4
For Your Blog
Student Loan Chronicles
Sanctions and Irony and Fraud, Oh My!
- Texas Energy Company that Charged Huge Electric Bills During Storm Files for Bankruptcy (This is all kinds of Oh My!)
IN CASE YOU MISSED IT . . .
Critical Case Comment
Despite a split in authority, funds held by a Chapter 13 trustee at the time a case is dismissed prior to confirmation, are subject to the trustee’s commission before any balance is returned to the debtor.
IN THE NEWS (Not password protected)
FCC Enforces Largest Fine Ever of $225 Million Against Telemarketers Who Made 1 Billion Robocalls (Wahoooo– ‘Aint’ it about time!)
OF INTEREST (Not password protected)
If Ohio Workers Don’t Return to City Offices, What Will Happen to Municipal Income Tax? (An issue most likely playing out across multiple American cities.)
DEBT AND THE ECONOMY (Not password protected)
40 Cities that Could Be Poised for a Housing Crisis (Pretty interesting)
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March 15, 2021
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Critical Case Comment
Despite a split in authority, funds held by a Chapter 13 trustee at the time a case is dismissed prior to confirmation, are subject to the trustee’s commission before any balance is returned to the debtor.
The “Snapshot” Rule – Part 1: The Circuits Begin to Line Up
This week, Larry Ahern starts by summarizing In re Anderson, a March 1 opinion from the Ninth Circuit, and the First Circuit’s In re Rockwell decision, which the Supreme Court declined to review on February 22. In this Part 1, he considers how and why the circuits are finding the petition date determinative of the exempt status of assets (the “snapshot” rule). In Part 2, he will ask when future cases, especially those involving different circumstances, may not apply the rule.
From the Editor
Judge Brown had a little time on his hands this week and brings us two cases of interest:
Serendipity, a Tribute to Judge Jack B. Schmetterer
(Used with expressed permission. Published February 2021 in the Northern District of Illinois Bankruptcy Court Liaison Committee Newsletter.)
“Despite appearing before the Senior Bankruptcy Judge for the Northern District of Illinois perhaps hundreds of times over the last 29 years, I was uncharacteristically nervous to interview him. After all, a person could be quite different personally in an interview setting than they appear professionally.”
Chapter 13 Practice and Procedure
Free Section 5:12 – The forthcoming 2021 edition of Chapter 13 Practice and Procedure, a treatise by Hon. W. Homer Drake, Jr., Hon. Paul W. Bonapfel, and Adam M. Goodman, will include a revised section 5:12 that deals with the Supreme Court’s decision in City of Chicago v. Fulton and its implications for turnover issues in Chapter 13 cases. The publisher, Thomson Reuters, has given permission for posting a draft of section 5:12. Further use of the material is prohibited.
ConsiderChapter13.org thanks the authors and Thomson Reuters for sharing this valuable resource FREE to our readers.
The Advisory Committee on Bankruptcy Rules Needs Your Help
As you know, the Supreme Court recently decided City of Chicago v. Fulton which has opened up much discussion regarding current turnover procedures. The Rules Committee would like to hear from you regarding your current practices. PLEASE take this survey.
Subchapter V
- What Qualifies as “Engaged in Business or Commercial Activities” for Subchapter V Eligibility? (In re U Stop)
- Reminder – March 27 is the Current Deadline to decrease the cap back to $2,725,625, although an extension has been proposed.
Positions Open
- District of Maryland – Term Law Clerk
- Middle District of Alabama – Trustee’s Staff Attorney – Application deadline 3/24/21
- Eastern District of Wisconsin – Two Law Clerks for Judge Blise – Career Law Clerk; Term Law Clerk
- District of Minnesota – Judgeship – Application due date 3/18/21
From the Courts
- District of NJ – New Motion for Discharge Pursuant to § 1328(i)
- Eastern District of TN – New CM/ECF Dictionary Events for Section 1328(i) Discharge
- Middle District of GA – Amendment to LBR 9013-3 Certificate of Service – Motions
- Middle District of NC – New local form Motion for Entry of Discharge Section 1328(i)) and other issues
- Northern District of OK – New policy regarding motions for relief from stay
- District of SC – Revised Conduit Orders (Judges Duncan and Waites)
- Northern District of GA – Transitioning to NextGen 8/9/21
- District of AZ – Transitioning to NextGen 6/28/21
- Eastern District of MI – Transitioning to NextGen 6/1/21
- District of MD – Transitioning to NextGen 5/10/21
- Eastern District of OK – Transitioning to NextGen 4/1/21
Sanctions and Irony and Fraud, Oh My!
IN CASE YOU MISSED IT . . .
Courts Continue to Fill in the Gaps on the Interplay of Bankruptcy and the FDCPA
“. . . the CFPB largely declined to address bankruptcy issues. As a result, the burden will remain on practitioners and the courts to fill in the gaps with respect to the interplay of bankruptcy and the FDCPA. . . . The United States District Court for the Southern District of Ohio recently analyzed correspondence sent by a mortgage servicer in the context of potential FDCPA and discharge violations, providing a helpful catalog of many of the cases previously addressing the FDCPA in bankruptcy.”
IN THE NEWS (Not password protected)
What’s in the $1.9 Trillion Covid Bill Biden Just Signed? You might be surprised. Stimulus checks aside, the law also has relief for indebted students, renters and homeowners, restaurants, minority farmers, pensions and funeral expenses.
MORTGAGES AND DEEDS OF TRUST (Not password protected)
OF INTEREST (Not password protected)
Can You Charge Different Prices For (Nearly) Identical Products That Are Packaged Differently? (Not in the slightest bit bankruptcy related.)
MILITARY MATTERS (Not password protected) 
DEBT AND THE ECONOMY (Not password protected)
HEALTH AND WELLNESS (Not password protected)
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March 8, 2021
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Archives |
Courts Continue to Fill in the Gaps on the Interplay of Bankruptcy and the FDCPA
“. . . the CFPB largely declined to address bankruptcy issues. As a result, the burden will remain on practitioners and the courts to fill in the gaps with respect to the interplay of bankruptcy and the FDCPA. . . . The United States District Court for the Southern District of Ohio recently analyzed correspondence sent by a mortgage servicer in the context of potential FDCPA and discharge violations, providing a helpful catalog of many of the cases previously addressing the FDCPA in bankruptcy.”
An Open Thank You Letter to NACTT – Reflections from a New(er) Trustee: My First Two Years
“I vividly remember getting the call that I was to be appointed as a Standing Chapter 13 Trustee (effective October 1, 2018). I was so honored, and humbled, and excited.”
More on Fulton
The forthcoming 2021 edition of Chapter 13 Practice and Procedure, a treatise by Hon. W. Homer Drake, Jr., Hon. Paul W. Bonapfel, and Adam M. Goodman, will include a revised section 5:12 that deals with the Supreme Court’s decision in City of Chicago v. Fulton and its implications for turnover issues in Chapter 13 cases. The publisher, Thomson Reuters, has given permission for posting a draft of section 5:12. Further use of the material is prohibited.
ConsiderChapter13.org thanks the authors and Thomson Reuters for sharing this valuable resource FREE to our readers.
Other resources on Fulton (Password Protected):
- Turnover by Motion? How About Under Rule 6008?
By Joseph A. Bledsoe, III (“Jody”), Chapter 13 Standing Trustee for the Eastern District of North Carolina (New Bern)
- City of Chicago v. Fulton: What SCOTUS Did Not Say Webinar Recording – Without a doubt, one of the best webinars we have ever produced
Not a subscriber to ConsiderChapter13.org? You are missing out. Click here to subscribe now.
From the Advisory Committee on Bankruptcy Rules
Re: Survey of Bankruptcy Court Procedures for Turnover
Dear Fellow Bankruptcy Practitioners:
I have been asked to reach out on behalf of the Advisory Committee on Bankruptcy Rules which requests your assistance.
As you know, the Supreme Court recently decided City of Chicago v. Fulton which has opened up much discussion regarding current turnover procedures.
The Rules Committee would very much like to hear from you. PLEASE take this survey. It is only 3 questions and then asks for a summary as to whether or not your Court has adopted local rules or general orders on this issue. Please specify whether your Court is contemplating or has adopted local rules revisions or general, procedural, or administrative orders allowing a party to seek turnover of estate property under 11 U.S.C. § 542 by motion as suggested in the concurrence of the Supreme Court opinion in City of Chicago v. Fulton.
I thank you in advance!!
Debra L. Miller, Esq.
Chapter 13 Standing Trustee for the Northern District of Indiana
Of Interest to, Well, Everyone
GA Bankruptcy Judge Lowers Boom on Chapter 7 Trustee and Counsel Fees (Chpt 7 case converted to 13)
Really. You gotta read this one!
From the United States Courts
Farmers in the News
Texas Farmers Tally Up Damage from Winter Storm ‘Massacre’ – The state’s agriculture sector has lost an estimated $600 million or more. Crop and livestock damage could mean shortages and higher prices beyond Texas.
New Judge Appointed
The Fifth Circuit has appointed Jamie Wilson to be a U.S. Bankruptcy Judge in the Southern District of Mississippi, stationed in Jackson. Ms. Wilson will replace retiring Judge Neil Olack and assume her position on July 1st.
Positions Open
- Middle District of Alabama – Trustee’s Staff Attorney – Application deadline 3/24/21
- Northern District of Mississippi – Term Law Clerk to Judge Selene D. Maddox – Application due date 3/12/21
- Eastern District of Wisconsin – Two Law Clerks for Judge Blise – Career Law Clerk; Term Law Clerk
- District of Minnesota – Judgeship – Application due date 3/18/21
Subchapter V
- Reminder – March 27 is the Current Deadline to decrease the cap back to $2,725,625, although an extension has been proposed.
From the Courts
- Eastern District of TN – New CM/ECF Dictionary Events for Section 1328(i) Discharge
- Middle District of GA – Amendment to LBR 9013-3 Certificate of Service – Motions
- Middle District of NC – New local form Motion for Entry of Discharge Section 1328(i)) and other issues
- Northern District of OK – New policy regarding motions for relief from stay
- District of OR – Kirsten Wilkinson Selected as Next Clerk of Court
- Northern District of IL – Revised Court-Approved Retention Agreement for cases filed on or after March 15, 2021
- District of SC – Changed Till rate
- District of SC – Revised Conduit Orders (Judges Duncan and Waites)
- Eastern District of OK – Transitioning to NextGen 4/1/21
For Your Blog
- HUD.gov has a good all-in-one-place resource for homeowners – Special COVID-19 Mortgage Relief for Homeowners with FHA-Insured Single Family Mortgages
- New Rules for Self-Employed and Gig Workers Applying for PPP Loans Are Out. Here’s What You Need to Know
IN CASE YOU MISSED IT . . .
Reaffirmations Impose Impossible Demands on Bankruptcy Counsel
One of Attorney Moran’s best! Another MUST READ from ConsiderChapter13.org.
“That’s until the court in Anzaldo dug into the effect of reaffirmation on credit.”
Debtor attorney in this case was not only ‘dinged’ regarding recommending a reaffirmation agreement but also for not having sufficient (in the Court’s mind) information on credit scoring to properly advise his client.
AND more info from last week on credit scores:
NCLC: The Credit Score Pandemic Paradox and Credit Invisibility
Americans Are Struggling, But You’d Never Know It from Their Credit Scores
IN THE NEWS (Not password protected)
Texas Judge Rules Federal Eviction Moratorium Unconstitutional – Lawyers and advocates disagree on what that means for tenants.
MORTGAGES AND DEEDS OF TRUST (Not password protected)
OF INTEREST (Not password protected)
From Justia – Klein v. Anderson – Ninth Circuit BAP concluded that Chpt 7 debtor, who occupied homestead on petition date, was entitled to homestead exemption despite fact that she moved out shortly thereafter and neither re-occupied the property nor filed a declaration of non-abandonment within six months of moving out.
“Diminishing” Returns: A Pre-Petition Change of Life Insurance Beneficiary is Not Subject to Avoidance as a Fraudulent Transfer (Chpt 7 case; life insurance has almost $815,000 cash value)
MILITARY MATTERS (Not password protected) 
DEBT AND THE ECONOMY (Not password protected)
The Pandemic’s Existential Threat to Black-Owned Businesses – Danette Wilder spent years building up her company. Now it has to survive a recession that could put a generation of Black entrepreneurs out of business.
HEALTH AND WELLNESS (Not password protected)
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March 1, 2021
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Turnover by Motion? How About Under Rule 6008?
After his participation in ConsiderChapter13.org’s webinar City of Chicago v. Fulton: What SCOTUS Did Not Say, Trustee Bledsoe examined long-standing common practice in the recovery of assets. This is a MUST READ article!
“In the aftermath of City of Chicago v. Fulton, discussions abound as to whether it is sufficient for a chapter 13 debtor to seek return of his vehicle, repossessed prepetition, via a motion for turnover. Most seem to believe a motion is not sufficient, but that – if pushed- a debtor will be required to file an adversary proceeding. But, let’s analyze the issue using the same methodology the Justices used in Fulton.”
Webinar Recording Now Available
Without a doubt, one of the best webinars we have ever produced.
Chapter 13 Trustee Jody Bledsoe, along with noted attorneys Richard Parker and Tony Sottile, engage in a one-hour presentation on the recent Fulton decision. Our expert panel digs into what the Supreme Court did not rule on in this case. They also drill down into §§ 362 and 542 to look at adversary proceeding vs. motion for turnover.
A few comments we received:
- I think you guys have the most quality programming in bankruptcy-centric circles
- Very interesting webinar
- Webinar had some very practical suggestions for dealing with the complications/extra work created by The Supremes
- Excellent
Not a subscriber to ConsiderChapter13.org? You are missing out. Click here to subscribe now.
Or click here for a discounted offer.
Reaffirmations Impose Impossible Demands on Bankruptcy Counsel
One of Attorney Moran’s best! Another MUST READ from ConsiderChapter13.org.
“That’s until the court in Anzaldo dug into the effect of reaffirmation on credit.”
Debtor attorney in this case was not only ‘dinged’ regarding recommending a reaffirmation agreement but also for not having sufficient (in the Court’s mind) information on credit scoring to properly advise his client.
Farmers in the News
Farm Bankruptcies During 2020 – Filings Drop 7% During 2020, Not Out of the Woods Yet
Legislation to Watch
Durbin, Grassley Introduce Bipartisan Legislation to Extend CARES Act Bankruptcy Relief Provisions ( . . . ‘til March 2022. Oy vey)
Credit Scores in the News
Positions Open
Judgeship Positions
- Middle District of Alabama – Trustee’s Staff Attorney – Application deadline 3/24/21
- Northern District of Mississippi – Term Law Clerk to Judge Selene D. Maddox – Application due date 3/12/21
- Eastern District of Wisconsin – Two Law Clerks for Judge Blise – Career Law Clerk; Term Law Clerk
- District of Minnesota – Judgeship – Application due date 3/18/21
- District of Puerto Rico – Judgeship – Application due date 3/3/21
New Supplemental Proof of Claim Form
Director’s Form 4100S is new, in response to the Consolidated Appropriations Act of 2020, which amended Code sections 501 and 502 to provide that creditors under Federally backed mortgages, qualified under the CARES Act and RESPA, and who entered into forbearance agreements with debtors, may file proofs of claim for the deferred forbearance payments, even when the claim would otherwise be untimely. The Code amendment sunsets one year after enactment; therefore, the form itself is proposed to terminate at that time.
We noticed this week that many, many Courts have adopted this form.
Subchapter V Reminder – March 27, 2021 Current Deadline
In response to the economic consequences of the pandemic, the CARES Act increased the eligibility limit for electing to have a small business Chapter 11 governed by subchapter V from $2,725,625 of debt to $7,500,000. The cap is to return to $2,725,625 on March 27, 2021, although an extension has been proposed.
Subchapter V candidates with debt between $2,725,625 and $7,500,000 should decide whether to file as soon as possible. The extension is included in the legislation to watch above.
From the Courts
- Southern District of Ohio – Increased No Look Fee
- Western District of Michigan – Attn: Debtor Attorneys – To be considered for increased Fee Memorandum rates, you must certify your attendance at 2020 bankruptcy legal education by completing and submitting Exhibit 6.
- Northern District of Illinois – Revised Court-Approved Retention Agreement for cases filed on or after March 15, 2021
- District of South Carolina – Changed Till rate
- District of South Carolina – Revised Conduit Orders (Judges Duncan and Waites)
- Western District of Pennsylvania – Increase in Loss Mitigation Program Fee Limits
- District of Nevada – Mortgage Modification Program Fee Updates
- Middle District of Florida – Judge Colton Only Chpt 13 Hearing Procedures effect 3/1/21 – IMPORTANT
- District of Minnesota – Proposed Abrogation of Local Rule 1007-4(b) and Proposed New Local Rule and Form 2016-2 regarding disclosure of atty fees in adversaries.
- Northern District of New York – Loss Mitigation Procedures revised to clarify the process for participation when a motion to terminate the automatic stay has been granted as to real property. The revisions to Part V (A) and (B) provide for uniformity in practice across the divisions. Click here for a redline of the revisions.
- Middle District of Georgia – Proposed LBR 9072-1 and Proposed LBR 9073-1 regarding Final Disposition Calendar Procedures
- Middle District of Alabama – Transitioning to NextGen 3/8/21 – ECF will be unavailable from noon on Friday the 5th through 7am Monday
- District of Maryland – Transitioning to NextGen 5/10/21
- Eastern District of Michigan – Transitioning to NextGen 6/1/21
Student Loan Chronicles
Sanctions and Irony and Fraud, Oh My!
- Millions Are Hounded for Debt They Don’t Owe. One Victim Fought Back, With a Vengeance This is not a typical debt collector story. It reveals an atypical scam, the depths of which you need to have a passing knowledge of.
IN CASE YOU MISSED IT . . .
Chapter 13 – It’s Good To Have A Plan
The next in our series “Chapter 13 – It’s Good to Have a Plan” is a poignant, personal story of a debtor attorney in response to the recent desire to modify the Bankruptcy Code based upon perceptions that debtors’ attorneys get rich off the backs of minorities by inordinately steering minorities toward Chapter 13.
“The banker asked whether I could then expect a regular, monthly payment at confirmation. I chuckled and replied that while I kept track of what I would get paid, I might not see a penny for many years, if at all.”
IN THE NEWS (Not password protected)
HUD Announces Disaster Assistance for Victims of Texas Severe Winter Storm – Foreclosure Protections in Place for Homeowners in Presidentially Declared Major Disaster Areas
MORTGAGES AND DEEDS OF TRUST (Not password protected)
OF INTEREST (Not password protected)
MILITARY MATTERS (Not password protected)
Repeat from last week 124,000 Retirees and Family Members Were Dropped from Tricare Select. Here’s What You Can Do
DEBT AND THE ECONOMY (Not password protected)
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February 22, 2021
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Archives |
SBRA – The Sequel: Leases in Bankruptcy Under the Consolidated Appropriations Act, 2021
Larry Ahern has previously reported on bankruptcy-related legislation passed in 2019 and amended in response to the COVID-19 pandemic. This week, he returns to the subject and focuses on a much-needed patch in the treatment of small business debtors’ leases under the Consolidated Appropriations Act, 2021 (“CAA”).
Form 1099G – How to Fight Back Against Scams
Although written for Californians, the issue is national. Simply replace the acronym EDD for your state’s unemployment entity.
Many taxpayers believe any form 1099 writ from on high. They figure such forms are unchallengeable, immutable, all powerful, and require full and docile submission. Poppycock. In the Great Recession, banks issued millions of Forms 1099-A and 1099-C that were inspired fiction. Many taxpayers attached the erroneous forms to their tax returns and using a well drafted Plain Paper Attachment, explained why the forms were wrong and the potential tax increase was short circuited right then and there!
See also: Massive Fraud Slows Legitimate Unemployment Claims, State Says
Chapter 13 – It’s Good To Have A Plan
The Chapter 13 Business Model
The next in our series “Chapter 13 – It’s Good to Have a Plan” is a poignant, personal story of a debtor attorney in response to the recent desire to modify the Bankruptcy Code based upon perceptions that debtors’ attorneys get rich off the backs of minorities by inordinately steering minorities toward Chapter 13.
“The banker asked whether I could then expect a regular, monthly payment at confirmation. I chuckled and replied that while I kept track of what I would get paid, I might not see a penny for many years, if at all.”
Foreclosures: The New Date is July 1
New Judge Appointed in the Eastern District of Wisconsin
From the Supreme Court: Case to Watch
- Amicus Brief: McCoy Student Debt Bankruptcy Discharge
On Bankruptcy’s Promethean Gap: Building Enslaving Capacity into the Antebellum Administrative State
“. . . by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered system that nationalized bankrupts’ assets, some of which featured prominently in the business of slavery.”
New Proof of Claim Form
Director’s Form 4100S is new, in response to the Consolidated Appropriations Act of 2020, which amended Code sections 501 and 502 to provide that creditors under Federally backed mortgages, qualified under the CARES Act and RESPA, and who entered into forbearance agreements with debtors, may file proofs of claim for the deferred forbearance payments, even when the claim would otherwise be untimely. The Code amendment sunsets one year after enactment; therefore, the form itself is proposed to terminate at that time.
Passing of Judge Shapiro
James E. Shapiro was a bankruptcy court judge for the Eastern District of Wisconsin from 1986 to September of ’96 when he was elevated to Chief Judge. He served as Chief Judge for four years and retired from the court on December 31, 2012. He passed away Feb. 5, 2021 at the age of 90.
Subchapter V Reminder – March 27, 2021 Deadline
In response to the economic consequences of the pandemic, the CARES Act increased the eligibility limit for electing to have a small business Chapter 11 governed by subchapter V from $2,725,625 of debt to $7,500,000. The cap is to return to $2,725,625 on March 27, 2021 (unless extended).
Subchapter V candidates with debt between $2,725,625 and $7,500,000 should decide whether to file as soon as possible.
Bitcoin
How are Bitcoin Created? An illustrated guide to bitcoin mining, blockchains, and the “minting” process of cryptocurrency’s most popular coin.
- See also this ConsiderChapter13.org resource from 2016: Bitcoins and Bankruptcy By Phil Lamos, Chief Legal Counsel, Office of the Chapter 13 Trustee (Cleveland, OH)
From the Courts
- Middle District of Florida – Judge Colton Only Chpt 13 Hearing Procedures effect 3/1/21 – IMPORTANT
- District of Minnesota – Proposed Abrogation of Local Rule 1007-4(b) and Proposed New Local Rule and Form 2016-2 regarding disclosure of atty fees in adversaries.
- Northern District of New York – Loss Mitigation Procedures revised to clarify the process for participation when a motion to terminate the automatic stay has been granted as to real property. The revisions to Part V (A) and (B) provide for uniformity in practice across the divisions. Click here for a redline of the revisions.
- Middle District of Georgia – Proposed LBR 9072-1 and Proposed LBR 9073-1 regarding Final Disposition Calendar Procedures
- Middle District of Alabama – Transitioning to NextGen 3/8/21
- District of Maryland – Transitioning to NextGen 5/10/21
- Eastern District of Kentucky – NextGen went into effect over the weekend
For Your Blog
- Your clients need to know this . . . Lost a Job or Income? Don’t lose access to key tax credits – Earned Income Tax Credit and the Child Tax Credit.
Student Loan Chronicles
- Student Debt Crisis Hits Black Borrowers Hardest – These debtors say Biden’s plan to tackle it isn’t enough
Sanctions and Irony and Fraud, Oh My!
IN CASE YOU MISSED IT . . .
Recent Trends in the Interpretation of Midland v. Johnson and the Applicability of the FDCPA to Bankruptcy Cases – Part 2 of 2: Thomas v. Midland Funding, LLC
In order to “eliminate abusive debt collection practices by debt collectors . . .”, the Fair Debt Collection Practices Act (“FDCPA”) bars debt collectors from using any “false, deceptive, or misleading representation or means in connection with the collection of any debt . . .” 15 U.S.C. § 1692e.
Recent Trends in the Interpretation of Midland v. Johnson and the Applicability of the FDCPA to Bankruptcy Cases – Part 1 of 2
IN THE NEWS (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Repeat – HUD Extends Waivers for FHA Reverse Mortgages – Provisions not set to expire until Dec. 31, 2021
OF INTEREST (Not password protected)
2021 Ninth Circuit Civics Contest! High school students in the Ninth Circuit are invited to participate in the 2021 essay and video contests. Deadline for submissions 3/17/21
Michigan Updates and Expands Its Receivership Act – “Now it is applicable to all operating businesses in Michigan, and commercial and industrial loans irrespective of whether real estate collateral is involved.” (Obviously more of an 11 thing, but we wanted our creditor readers to be aware of this change.)
MILITARY MATTERS (Not password protected)
124,000 Retirees and Family Members Were Dropped from Tricare Select. Here’s What You Can Do
DEBT AND THE ECONOMY (Not password protected)
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February 15, 2021
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2020 Vision
“Before the murder of George Floyd, I thought I understood institutional racism. I did not deny that it existed, and I knew it was a terrible thing. I believed that by supporting politicians who called for social reforms aimed at correcting institutional racism, I was doing my part.”
Judges on Race: Reducing Implicit Bias in Courtrooms
In December and January Law360 ran a series of free articles entitled Judges on Race. While they are all very good, we want you to particularly note Judge Donald’s article: With unconscious biases deeply embedded in the court system, judges must take steps to guard against the power and influence of stereotypes during jury selection, evidence admissibility hearings, bail proceedings and other areas of judicial decision making, says Sixth Circuit Judge Bernice Donald.
The National Association of Chapter Thirteen Trustees is pleased to announce that The Honorable Bernice Donald will be the keynote speaker at its summer conference (hopefully) in Washington, D.C. Mark your calendar now for July 7-10 for an in person or virtual seminar.
Autherine Lucy: Failed Integration Bid Left Lasting Legacy
Before Brown v. Board of Education there was Autherine Lucy.
On Bankruptcy’s Promethean Gap: Building Enslaving Capacity into the Antebellum Administrative State
“. . . by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered system that nationalized bankrupts’ assets, some of which featured prominently in the business of slavery.”
Still Time to Register for Free Webinar
City of Chicago v. Fulton: What SCOTUS Did Not Say
This Friday, February 19th – 2:00 eastern/1:00 central/12:00 mtn/11:00 pacific
Join Chapter 13 Trustee Jody Bledsoe along with noted attorneys Rich Parker and Tony Sottile in a one-hour presentation on the recent Fulton decision. Our expert panel will dig into what the Supreme Court did not rule on in this case. They will also drill down into Sections 362 and 542.
Can’t attend on Friday? It is ConsiderChapter13.org’s practice to record all webinars. Although we offer live webinars FREE, access to the recordings is a benefit of subscription. Only $275/year for access to ALL of the resources! Click her to subscribe.
(If you are a solo practitioner and have been impacted by the pandemic, contact us for a discount.)
Forbearance Period Extended
FHFA Extends Foreclosure and REO Eviction Moratoriums and COVID Forbearance Period
Note the fine print regarding forbearances – three-month extension only applies to those already in a forbearance by 2/28/21 and it is not an automatic extension – one must request it.
Subchapter V Reminder – March 27, 2021 Deadline
In response to the economic consequences of the pandemic, the CARES Act increased the eligibility limit for electing to have a small business Chapter 11 governed by subchapter V from $2,725,625 of debt to $7,500,000. The cap is to return to $2,725,625 on March 27, 2021 (unless extended).
Subchapter V candidates with debt between $2,725,625 and $7,500,000 should decide whether to file as soon as possible.
Webinar Recording Now Available
Recent Legislation January 2021
Join The Honorable William H. Brown (retired), and Chapter 13 Trustees Henry Hildebrand and Debra Miller in a one hour discussion regarding consumer bankruptcy implications of the Bankruptcy Administration Improvement and Consolidated Appropriations Acts, along with some thoughts on pending legislation.
New Information: During the webinar Trustee Miller mentioned a not yet available Director’s Form – several of you have emailed asking for it. The form has now been released: Supplemental Proof of Claim for CARES Forbearance Claim
From the National Consumer Law Center
NCLC is partnering with Consumer Reports to hold credit reporting agencies accountable for errors and need your help.
At least one in four of us probably has an error in our credit report. And the COVID-19 financial crisis has made that bad situation even worse.
Can you check your credit report for errors, and let Consumer Reports know what you find? You’ll be a key part of a groundbreaking Consumer Reports’ people-powered research project, where thousands of consumers like you use their credit report to finally hold these powerful credit agencies accountable.
From the Courts
- Middle District of Georgia – Proposed LBR 9072-1 and Proposed LBR 9073-1 regarding Final Disposition Calendar Procedures
- Northern and Southern Districts of Mississippi – ChapMobile app now available – To download the app, go to the Apple App Store or Google Play App Store and search for “chapmobile”
- Northern District of Georgia – Northern District of Georgia Bankruptcy Court is interested in your input in planning how to conduct hearings when it returns to normal operations post-pandemic. Please complete survey by 2/16/21.
- Eastern District of Michigan – Notice Regarding Updated System Banner – Although we only saw this notice on one court’s website, it is probably the policy for all CM/ECF users – the message: You Are Being Recorded
- Middle District of Alabama – Transitioning to NextGen 3/8/21
- Eastern District of Kentucky – Transitioning to NextGen 2/22/21
- District of Maryland – Transitioning to NextGen 5/10/21
From Fannie Mae
Worth repeating: You Don’t Have to Repay the Forbearance Amount All at Once Upon Completion of Your Forbearance Plan: Get the Facts
IN CASE YOU MISSED IT . . .
Is 1328(i) Ultimately Terrible for Debtors?
Attorney Siomos focuses on how 1328(i) can hurt debtors.
“The December 2020 Consolidated Appropriations Act, 2021, more commonly known as the second covid-19 stimulus bill, contains a few bankruptcy related provisions, but none stood out more with respect to Chapter 13 than the newly created § 1328(i).”
See also:
MORTGAGES AND DEEDS OF TRUST (Not password protected)
HUD Extends Waivers for FHA Reverse Mortgages – Provisions not set to expire until Dec. 31, 2021
Some Mortgage Companies Misled Borrowers About Forbearance, Regulators Say (Article does not name names but still of interest.)
OF INTEREST (Not password protected)
Bankruptcy Provisions Contained in the Consolidated Appropriations Act, 2021 – The Act includes nine bankruptcy related amendments. See §§320, 1001, 134 Stat., at 2015, 3216. The District of Rhode Island Court has prepared this training document outlining the amendments to the bankruptcy laws contained in the CAA, most of which sunset in one or two years.
DEBT AND THE ECONOMY (Not password protected)
Unpaid Rent Is Piling Up – Landlords Can’t Hold on Forever
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February 8, 2021
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Recent Trends in the Interpretation of Midland v. Johnson and the Applicability of the FDCPA to Bankruptcy Cases – Part 2 of 2: Thomas v. Midland Funding, LLC
In order to “eliminate abusive debt collection practices by debt collectors . . .”, the Fair Debt Collection Practices Act (“FDCPA”) bars debt collectors from using any “false, deceptive, or misleading representation or means in connection with the collection of any debt . . .” 15 U.S.C. § 1692e.
Recent Trends in the Interpretation of Midland v. Johnson and the Applicability of the FDCPA to Bankruptcy Cases – Part 1 of 2
Is 1328(i) Ultimately Terrible for Debtors?
Attorney Siomos focuses on how 1328(i) can hurt debtors.
“The December 2020 Consolidated Appropriations Act, 2021, more commonly known as the second covid-19 stimulus bill, contains a few bankruptcy related provisions, but none stood out more with respect to Chapter 13 than the newly created § 1328(i).”
See also:
On 1/29/21 ConsiderChapter13.org hosted its first webinar of the year with many to come. All webinars are free is viewed live; however, access to the webinar recordings are a benefit of subscription to ConsiderChapter13.org. Not a subscriber? Click here to join now.
The Recording of “Recent Legislation January 2021” is now available.
Join The Honorable William H. Brown (retired), and Chapter 13 Trustees Henry Hildebrand and Debra Miller in a one hour discussion regarding consumer bankruptcy implications of the Bankruptcy Administration Improvement and Consolidated Appropriations Acts, along with some thoughts on pending legislation.
Farmers In The News
- USDA Suspends Debt Collections, Foreclosures, Other Activities on Farm Loans Due to COVID-19 In place “until further notice.”
- Cadillac Area Farmers Glad 2020 Over, Nervous About 2021 (Now, that’s a lot of bull!)
New NY Judges Appointed
From the IRS
- Business Aid: For eligible employers, paid sick and family leave credits have been extended for leave taken through March 31- IRS Updates FAQs on Paid Sick Leave Credit and Family Leave Credit
From the Courts
- Northern District of Georgia – Northern District of Georgia Bankruptcy Court is interested in your input in planning how to conduct hearings when it returns to normal operations post-pandemic. Please complete survey by 2/16/21.
- District of Maryland – Transitioning to NextGen 5/10/21
- District of Oregon – On February 1, the court will implement a new calendar program (CHAP) that will affect how hearings are scheduled
- Eastern District of Michigan – Notice Regarding Updated System Banner – Although we only saw this notice on one court’s website, it is probably the policy for all CM/ECF users – the message: You Are Being Recorded
- Middle District of North Carolina – Standing Order re Ch 13 Notices Rule 2002(h)
- District of Nevada – Administrative Order 2021-01 – Order Adopting Chapter 13 Presumptive Attorney’s Fees Guidelines
- Middle District of Alabama – Transitioning to NextGen 3/8/21
- Eastern District of Kentucky – Transitioning to NextGen 2/22/21
Positions Open
Judgeship Positions
- Western District of Texas – San Antonio – Application due date 2/26/21
- District of Minnesota – Application due date 3/18/21
- District of Puerto Rico – Application due date 3/3/21
Chapter 13 Standing Trustee
- District of South Carolina, Columbia Division – Application due date 2/19/21
On the CFPB
- Struggling During the Pandemic? COVID-19 Financial Relief and Protections Extended (Not a great title – this article spells out all the deadlines as of 2/1/21 – i.e. no payment on federally backed student loans until 10/1/21; evictions for renters stayed until 4/1/21; FHA or USDA backed loans 4/1/21; etc.
- Acting Director David Uejio Issues Warning: CFPB Will Take Aggressive Action with Regard to COVID-19
Student Loan Chronicles
- Biden Supports Cancelling Student Debt, Expresses Openness to Executive Action
(There are lots of articles out there on this topic – bottom line seems to be two proposals: (1) $10k per borrower forgiven if via executive order; (2) $50k per borrower forgiven if via law (a/ka/ the ever looming “Act of Congress”).)
Sanctions and Irony and Fraud, Oh My!
- WA Launches Investigation Into 200,000 Missing Cows at Center of Easterday Bankruptcy, Legal Fight (headline pretty much says it all – couldn’t resist running a story on 200,000 missing cows!!!)
IN CASE YOU MISSED IT . . .
Legal Aid and Who Are Our Chapter 13 “Customers”
DON’T SKIP THIS ONE JUST BECAUSE YOU THINK YOU KNOW WHO OUR CLIENTELE IS!
“I would argue that for the Debtors living in poverty, Trustees need to take a more panoramic approach and be mindful of the issues impacting individuals in extreme poverty. On the face of the petition and schedules, it may certainly appear some Debtors are making bad choices.”
Additional recommended reading:
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Are We Trapped in Another Housing Bubble? A rapid rise in home prices has some experts worried.
OF INTEREST (Not password protected)
Introduced Bill of Interest: S.146 – A bill to amend title 11, United States Code, to provide bankruptcy protections for medically distressed debtors, and for other purposes. (VERY early in the process – similar bills have been introduced many times before but have never passed.)
The Big Lie in Bifurcated Chapter 7 Fees – The controversial use of bifurcated attorney fees in Nebraska chapter 7 cases has reached critical mass.
MILITARY MATTERS (Not password protected)
DEBT AND THE ECONOMY (Not password protected)
America’s Seniors in Debt: A Growing Problem (Article isn’t really new info but it contains several good links.)
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February 1, 2021
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Paying the Car Loan Directly vs. Through the Plan: Till Debt Us Do Part?
Debtor owed $13,000 to Dort Federal Credit Union on a car loan. The confirmed plan called for her to repay the loan directly to DFCU at the contract interest rate of 15%. The Trustee challenged this provision on two grounds.
Fulton’s Aftermath – What Do Chapter 13 Practitioners Need To Know?
The Geraci firm takes a different approach in looking at Fulton.
“Chapter 13 practitioners are urged to examine this decision more closely because the holding in Fulton is quite narrow: . . .”
See also:
City of Chicago v. Fulton And the Turnover Conundrum
By Kara K. Gendron, Esquire, Mott & Gendron Law (Harrisburg, PA)
Legal Aid and Who Are Our Chapter 13 “Customers”
DON’T SKIP THIS ONE JUST BECAUSE YOU THINK YOU KNOW WHO OUR CLIENTELE IS!
“I would argue that for the Debtors living in poverty, Trustees need to take a more panoramic approach and be mindful of the issues impacting individuals in extreme poverty. On the face of the petition and schedules, it may certainly appear some Debtors are making bad choices.”
Additional recommended reading:
From the Courts
- District of Oregon – On February 1, the court will implement a new calendar program (CHAP) that will affect how hearings are scheduled
- Eastern District of Michigan – Notice Regarding Updated System Banner – Although we only saw this notice on one court’s website, it is probably the policy for all CM/ECF users – the message: You Are Being Recorded
- Middle District of North Carolina – Standing Order re Ch 13 Notices Rule 2002(h)
- Northern District of Georgia – Public Notice Regarding Reassignment of Judge Homer Drake Cases
- District of North Carolina – Sandy Davis is Judge Aron’s new Courtroom Contact – her number is 336-358-4028
- District of Nevada – Administrative Order 2021-01 – Order Adopting Chapter 13
Middle District of Alabama – Transitioning to NexGen 3/8/21 - Eastern District of Kentucky – Transitioning to NextGen 2/22/21
Positions Open
Judgeship Positions
- Western District of Texas – San Antonio – Application due date 2/26/21
- District of Minnesota – Application due date 3/18/21
- District of Puerto Rico – Application due date 3/3/21
Chapter 13 Standing Trustee
- District of South Carolina, Columbia Division – Application due date 2/19/21
- Northern District of Illinois, Eastern Division – Application due date 2/5/21
On the CFPB
- Supervisory Highlights COVID-19 Prioritized Assessments Special Edition – This 28-paged Special Edition inform of observations in its prioritized assessment supervisory work conducted last year after the sudden onset of the COVID-19 pandemic – focused on assessing risks to consumers resulting from the pandemic.
Sanctions and Irony and Fraud, Oh My!
- Calabasas Real Estate Developer Indicted for Bankruptcy Fraud – Mark Handel was indicted for fraud, money laundering, and falsely testifying under oath.
- Judge Wants Payday Loan Firm to Pay $132.5M to Victims (same case as above)
IN CASE YOU MISSED IT . . .
Delinquent Utilities and Disconnection Under New Bankruptcy Provision
Another great, practical piece from Board Member Cathy Moran: “Bankruptcy debtors with delinquent utility bills got a measure of protection from interruption in their service under an amendment to the Bankruptcy Code in the omnibus spending bill enacted December 27, 2020.”
IN THE NEWS (Not password protected)
Another Blow to Bankruptcy Relief for Marijuana-Adjacent Debtors (Colorado specific and doesn’t appear to be much new.)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Biden Issues Executive Order on Foreclosures; HUD Updates DACA Regulations (We are now at 3/31/21 on federally backed loans.)
BUSINESS AIDS (Not password protected)
Continued Remote Working Guidance for Employees (Article addresses employee withholding – particularly if your employee is now working from home in a different state than your physical location is/was.)
OF INTEREST (Not password protected)
MILITARY MATTERS (Not password protected)
FOR YOUR HEALTH (Not password protected)
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January 25, 2021
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“If the creditor is likely to lose the turnover action, it would make more sense from a cost-benefit analysis simply to turn over the property as soon as possible, without requiring a formal turnover action.”
Delinquent Utilities and Disconnection Under New Bankruptcy Provision
Another great, practical piece from Board Member Cathy Moran: “Bankruptcy debtors with delinquent utility bills got a measure of protection from interruption in their service under an amendment to the Bankruptcy Code in the omnibus spending bill enacted December 27, 2020.”
In The Staff Department
I Feel A Change Coming On (Song by Bob Dylan, 1964)
This week we launch the first in a new, ongoing series of articles directed to staff – particularly staff of trustees’ offices but many of the lessons conveyed will transfer to support staff of any office type.
“Every Trusteeship has encountered unexpected change during the past year.”
Meet a Newish Trustee
On October 1, 2019, John G. Jansing was appointed Chapter 13 Standing Trustee for the Southern District of Ohio at Dayton. John took over from Jeff Kellner, who retired and moved to New Hampshire.
From the Courts
- District of Nevada – Administrative Order 2021-01 – Order Adopting Chapter 13
Middle District of Alabama – Transitioning to NexGen 3/8/21 - Eastern District of Kentucky – Transitioning to NextGen 2/22/21
- Middle District of Alabama – New 11 U.S.C. 1328(i) Discharges new local form, not a 9007 motion.
- District of Minnesota – Congratulations to recipients of the Judge Nancy C. Dreher Pro Bono Distinguished Service Award: Attorneys Peter Greenlee, Yvonne Michaud Novak and Dennis Ryan
- Southern District of Mississippi – Bankruptcy filings for 2020 down 31.5% over prior year
Positions Open
Judgeship Positions
- District of Minnesota – Application due date 3/18/21
- District of Puerto Rico – Application due date 3/3/21
- Middle District of Florida at Orlando and Jacksonville – Application due date 2/1/21
- Eastern District of Tennessee – Application deadline extended to 1/29/21
Chapter 13 Standing Trustee
- District of South Carolina, Columbia Division – Application due date 2/19/21
- Northern District of Illinois, Eastern Division – Application due date 2/5/21
On the CFPB
- FTC Commissioner Rohit Chopra to be Named CFPB Director – A Strong Consumer Advocate and Aggressive Law Enforcer
For Your Blog
Congress Approves $25 Billion in Rental Assistance. Here’s How to Apply
Sanctions and Irony and Fraud, Oh My!
IN CASE YOU MISSED IT . . .
The Proposed Consumer Bankruptcy Reform Act: A Political Analysis
“This memorandum provides a brief description of the reasons that the legislation is likely to fail and proposes that the Chapter 13 trustees best chance to defeat the legislation comes from aligning themselves with other interests opposed to its passage.”
IN THE NEWS (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
DEBT AND THE ECONOMY (Not password protected)
Biden Stimulus Plan Framework (Good summary of third stimulus proposal)
OF INTEREST (Not password protected)
TCPA For Dummies (From Mondaq so actually written to larger companies – this is a really good, short (key word s-h-o-r-t) outline of what the Telephone Consumer Protection Act says.)
MILITARY MATTERS (Not password protected)
BUSINESS AIDS (Not password protected)
FOR YOUR HEALTH (Not password protected)
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January 18, 2021
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SCOTUS Decision: Section 362(a)(3) Is Not Violated by Retention of Repossessed Propert
On January 14, 2021, the Supreme Court held in City of Chicago v. Fulton, 592 U.S. _____ (2021), that “mere retention” of estate property after the filing of a bankruptcy petition does not violate § 362(a)(3) of the Bankruptcy Code. Essentially, in order to recover property from a repossessing creditor, turnover under § 542 would be required. Watch for more about the opinion and its ramifications coming soon.
Creditors’ Rights and Debtors’ Protections at the Intersection of Consumer Bankruptcy and UCC Article 9 – Part VII
In the consumer bankruptcy field, practitioners are often uncomfortable with the rules in UCC Article 9. Ahern has written a series for the Academy, designed to review Article 9’s rules related to consumer transactions. This week, he concludes his review of Article 9’s rules related to consumer transactions with an essential analysis of penalties imposed on creditors for violations of rules regulating their exercise of remedies.
Click here for Part I
Click here for Part II
Click here for Part III
Click here for Part IV
Click here for Part V
Click here for Part VI
The Proposed Consumer Bankruptcy Reform Act: A Political Analysis
“This memorandum provides a brief description of the reasons that the legislation is likely to fail and proposes that the Chapter 13 trustees best chance to defeat the legislation comes from aligning themselves with other interests opposed to its passage.”
1/12/21 – Bankruptcy Administration Improvement Act Signed Into Law
Bill modifies administrative provisions related to the bankruptcy trustee system. Specifically: (1) provides for the distribution of bankruptcy fees made to the U.S. Trustee System Fund for the costs of administering payments and trustee compensation, (2) establishes the Chapter 7 Trustee Fund and associated fees, and (3) extends the temporary office of bankruptcy judges in specified judicial districts.
From the Courts
- Eastern District of Kentucky – Transitioning to NextGen 2/22/21
- Western District of Kentucky – Welcome new judge – Honorable Charles R. Merrill
- Northern District of Oklahoma – Policy Regarding Relief from Stay During the COVID-19 Crisis
From the IRS
- Recovery Rebate Credit – No Double Dipping – this credit is ONLY for folks who did NOT receive their stimulus payments ($1,200 and $600)
Positions Open
Judgeship Positions
- Middle District of Florida at Orlando and Jacksonville – Application due date 2/1/21
- Eastern District of Tennessee – Application deadline extended to 1/29/21
Chapter 13 Standing Trustee
- Northern District of Illinois, Eastern Division – Application due date 2/5/21
For Your Blog
- Congress Approves $25 Billion in Rental Assistance. Here’s How to Apply
- Notice: If You Are a Former Member of Members 1st Federal Credit Union Who Was Charged Overdraft Fees between March 29, 2015 and January 14, 2019, and who had closed their accounts prior to January 14, 2019, You May Be Eligible For Benefits Under a Class Action Settlement.
From the Judiciary
ChapMobile App Not Working as of 1/15/21
On January 14, 2021, updates were made on Google servers which affected the display of Hearing and 341 Calendars for the ChapMobile App. Although the main display of the hearing and 341 calendars will not produce data, the Search functions within these areas will produce results. This is a national problem, but the Judiciary has isolated the issue and has adjusted the ChapMobile App code to match the changes made by this Google update. The Judiciary will be deploying an updated ChapMobile App to the Apple and Google App Stores as soon as possible. We anticipate the new app will be released by the App Stores in the next few days. Users will receive the update via their devices.
Sanctions and Irony and Fraud, Oh My!
Bankruptcy Trustee Sues Mom, Family of Westchester Funeral Home Director in Fraud Case (Chpt 7 case – big money – worth the read)
IN CASE YOU MISSED IT . . .
Just the Facts, Ma’am – Consolidated Appropriations Act, December 27, 2020
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Biden Calls for $30 Billion More in Rental Assistance and Extending Eviction (and Foreclosure) Ban. . . Through September – note that his is asking for this but it is not law . . . yet)
Fannie Mae Update: Mortgage Servicer Sentiment Amid Pandemic Challenges
DEBT AND THE ECONOMY (Not password protected)
OF INTEREST (Not password protected)
Bankruptcy Court Rules Bankruptcy Code Does Not Permit Extended Rent Holiday for Retail Debtors – A recent Chuck E. Cheese decision denies the debtor’s/tenant’s request to defer paying rent after the 60-day “rent holiday.”
Federal Consolidated Appropriations Act Alters Commercial Landlord Rights Under Bankruptcy Code – (Chapter 11 issues, but you might want to glance at this concise article)
Commercial Landlords Take Note – COVID Relief Bill Contains Important Bankruptcy Code Amendments – (Same as above – may be a little more detailed)
Op-Ed by Prof. Adam Levitin: Reform Our Bankruptcy Laws Before Tsunami of Covid Debt Comes Due (Note: This article represents the ‘other’ side.)
PROFESSIONAL BEHAVIOR (Not password protected)
FOR YOUR HEALTH (Not password protected)
Apps for mental health? Yes. Apps: 5 Mental Health Apps to Help Manage Coronavirus Anxiety
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January 11, 2021
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Just the Facts, Ma’am – Consolidated Appropriations Act, December 27, 2020
Judge Brown looks at the “Stimulus Bill”
“Consumer bankruptcy issues are addressed in Title X of the Act, section 1001, which amends Bankruptcy Code § 541(b)’s exclusions from property of the estate, adding subsection 11 for certain coronavirus relief, defined as “recovery rebates made under section 6428 of the Internal Revenue Code.” . . . Section 1001 also amends Bankruptcy Code § 1328 to add subsection (i)(1), . . .”
Never Let a Good Crisis Go to Waste: The Bankruptcy Amendments in the Consolidated Appropriations Acts of 2021
“While several of the bankruptcy provisions are to be expected – such as excluding stimulus payments made under the Internal Revenue Code from being considered property of the estate or disposable income – the law creates, for a one-year period, a substantial modification in § 1328 . . .”
Legal Aid and Who Are Our Chapter 13 “Customers”
Attorney Jones looks takes a graceful look at poverty in America. “What I found most troubling about low-income representation is how one, seemingly minor but frustrating, episode to the middle or upper classes, can be devastating for a low-income individual.”
Passing of Judge Bernstein
“Intellectually curious and committed to helping develop a generation of excellent attorneys, Bernstein continued to teach while building his own career, including courses at the University of Toledo, Wayne State and the University of Detroit law schools.”
From the Courts
- Western District of Kentucky – Welcome new judge – Honorable Charles R. Merrill
- Northern District of Georgia – Public Notice Regarding Virtual Celebration for the Retiring Hon. W. Homer Drake, Jr.
- Northern District of Oklahoma – Policy Regarding Relief from Stay During the COVID-19 Crisis
- District of Arizona – Changes to Courtroom Deputy Assignments
- District of Nevada – Effective 1/1/21, updated Mortgage Modification Program is in effect.
Positions Open
Judgeship Positions
- Middle District of Florida at Orlando and Jacksonville – Application due date 2/1/21
Chapter 13 Standing Trustee
- Northern District of Illinois, Eastern Division – Application due date 2/5/21
On the CFPB
- CFPB/Santander Consent Order (previously reported agreement)
IN CASE YOU MISSED IT . . .
Recent Trends in the Interpretation of Midland v. Johnson and the Applicability of the FDCPA to Bankruptcy Cases
“Derby III is important to debtor’s attorneys, trustees, and creditors, because it demonstrates the broad powers Rule 3001 affords bankruptcy courts to govern the claims process.”
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Negative Equity InfoGraphic (you will have to scroll down to the 3rd graphic)
October District Court Case Warning to Debtors and Counsel Re Changing Homestead During Chapter 13 (probably a rare set of facts but interesting nonetheless)
IN THE NEWS (Not password protected)
OF INTEREST (Not password protected)
Passing of Ted Moskowitz – Member of McCarter & English and a well-known and respected bankruptcy practitioner
Proofs of Claim: Don’t Rely on the Mailbox Presumption – Be Sure Claims are Filed by the Bar Date with the Court Clerk or the Claims Agent (article contains some very basic information but the underlying case – In re North Carolina New Schools, Inc. – may be of interest)
SUBCHAPTER V (Not password protected)
FOR YOUR HEALTH (Not password protected)
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January 4, 2021
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Recent Trends in the Interpretation of Midland v. Johnson and the Applicability of the FDCPA to Bankruptcy Cases
“Derby III is important to debtor’s attorneys, trustees, and creditors, because it demonstrates the broad powers Rule 3001 affords bankruptcy courts to govern the claims process.”
Chapter 13 Discharge Expanded by COVID Relief Legislation
“While generous in intent, the drafting of amended 1328(i) is sketchy and its other bankruptcy provisions only marginally coordinate with other bankruptcy provisions of the CARES Act of March, 2020. . . . Maybe I’m wrong, but I suspect we’re going to spend a bunch of time speculating on what the drafters intended.”
From the Courts
- Northern District of Oklahoma – Policy Regarding Relief from Stay During the COVID-19 Crisis
- District of Arizona – Changes to Courtroom Deputy Assignments
- Northern District of Illinois – Congratulations to Elizabeth Peterson, the David S. Yen Bankruptcy Help Desk Volunteer of the Year
- Middle District of Florida, Fort Myers Division – In order to align the Court’s case numbering system with that of the District Court, effective January 1, 2021, the “location code” for cases filed in the Fort Myers Division will be changed from “9” to “2” – attorneys should use the “2” location code in all filings in Fort Myers Division cases.
- District of Nevada – Effective 1/1/21, updated Mortgage Modification Program is in effect.
- District of Nevada – Chapter 13 Presumptive Fees – Request for Public Comment
- District of South Carolina – 2020 South Carolina Bankruptcy Law Association Awards
Consumer Attorneys Work and Fee Survey
Your assistance is requested.
This is the 21st year that Ron Burdge has undertaken the herculean task of surveying consumer attorneys about their work and fees. The last published Consumer Bankruptcy Survey Report was 371 pages of detailed city and state data, that breaks down the fees that different courts allow and that attorneys charge for the various aspects of consumer rights and bankruptcy cases. There has never been any charge for the survey reports that are published and generously posted online for everyone’s use.
Previous reports have been used in Courts nationwide to award more than thirty million dollars in attorney fees to consumer advocates all over the country, including consumer bankruptcy attorneys. State and Federal Courts routinely rely on this report in awarding hourly fees in consumer cases. (If they aren’t using this report in your cases, you should be using it as evidence!) It is one of the primary resources that has been used to increase presumptive fees set by bankruptcy courts in Chapter 13 cases and also invaluable for attorneys in setting their fees for Chapter 7 cases.
The more people that participate the more accurate and useful the data becomes, so please feel free to share this with your local listservs and Google groups.
Go to www.AttorneyFeeStudy.com to fill out the online questionnaire. The survey does not obtain any personal information and there is no charge to participate and no charge for obtaining the published survey results.
CARES Act FFCRA Tax Credit Extended
Congress Extends FFCRA Tax Credit into 2021, Declines to Extend FFCRA Leave
For employers with under 500 employees . . . beginning 1/1/21, employers are no longer required to provide Covid leave; however, covered employers who voluntarily offer such leave may utilize payroll tax credits to cover the cost of benefits paid to employees through the end of March.
Click here for more information.
State-By-State Guide to Litigation Financing Disclosure
Not the normal kind of thing you would see at ConsiderChapter13.org, but a very informative resource from Mondaq.
“. . . , we now share an overview of similar procedures for determining whether a plaintiff has taken out a loan in 12 other states.”
Positions Open
Judgeship Positions
- Eastern District of Michigan – Application due date 1/8/21
- Middle District of Florida at Orlando and Jacksonville – Application due date 2/1/21
On the CFPB
- You need to glance at this one. Our guess is that Debtor Attys will see debts from these cards in the future. . . . CFPB Issues Approval Order to Facilitate the Use of Dual Usage Credit Cards “The card is designed for consumers with a limited or damaged credit history as a tool that can be used to establish or reestablish a favorable credit history. Synchrony intends to offer a lower rate on secured use with the opportunity for eligible accountholders to graduate to unsecured use after 12 months.”
IN CASE YOU MISSED IT . . .
Critical Case Comment
An important, “critical” case analysis for each player in the bankruptcy arena – trustees, creditors and debtor attorneys.
Section 506(d) does not allow the voiding of a lien when the underlying claim, filed by the debtor, has been disallowed; when notice is provided to a corporation it must be addressed to the individual who holds the office of an officer, manager, or general agent.
