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May 2, 2022
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She’s baaaaack. . .
This has been a very difficult month. As reported on the 18th, my sweet, wonderful, husband passed away. I want to thank everyone for your thoughts, prayers, hugs, well-wishes, flowers, cards, and overall love. I also want to specifically thank Bill Brown, Mark Leffler and all those who picked up my slack throughout the entire ordeal and continued to get the weekly updates out. With much love, appreciation, and gratefulness, |
The Complex World of Interspousal Claims in Bankruptcy
“. . . One of those traps involves the differing treatment in bankruptcy of debts to a former spouse incurred in the course of a divorce.”
Another excellent piece relevant to your day to day practice.
Special Counsel 101: Getting Paid and Protecting Clients
“ . . . , in In re Smith, a Georgia personal injury attorney received a not so gentle reminder of this duty when his fees were disgorged.”
HAPPY 40th ANNIVERSARY HENRY EDWARD AND GEORGE!!!!
On May 1st just forty short years ago, both Hank and George were appointed as Standing Chapter 13 Trustees.
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George Stevenson, Chapter 13 Standing Trustee for the Western District of Tennessee (Memphis) | |
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Hank Hildebrand, Chapter 13 Standing Trustee for the Middle District of Tennessee (Nashville) |
Judges Appointed
Judge Jason A. Burgess and Judge Tiffany Geyer Sworn in as Middle District of Florida Bankruptcy Judges
Passing of Judge Thomas R. Cornish
Thomas Robert Cornish, retired United States Bankruptcy Judge for the Eastern District of Oklahoma, passed away on February 2, 2022.
Positions Available
- CFPB Multiple Attorney/Supervisory Openings – Application deadlines 5/5 and 5/6
- Eastern District of MO Bankruptcy Judge Vacancy – Application deadline 5/23
- District of UT Notice of Bankruptcy Judge Vacancy – Application deadline 5/19
From NCBRC
From the Courts
Middle District of AL – Effective 4/8 Alliance Credit Counseling, Effective 4/13 Garden State Credit Counseling, Effective 4/26 The Family Center of Columbus, Inc., aka Consumer Credit Counseling Service of West Georgia/East Alabama are no longer an approved provider for creditor counseling or personal financial management courses in the Middle District of Alabama.
Sanctions and Irony and Fraud, Oh My!
- CFPB Obtains Ban Against Debt Relief CEO Daniel Crenshaw – Crenshaw collected nearly $10.5 million in unlawful fees
For Your Blog
Understanding Taxpayer Rights: The right to challenge the IRS’s position and be heard
In Case You Missed It . . .
Cui Pro Bono?
Judge Gustafson and Daniel Tavera explore “Who Benefits” from work done in a Chapter 13 case, and they suggest that the title of this piece comes from an old-time radio show – “Yours Truly, Johnny Dollar” – one of the most popular radio shows in its day. It was a five-part show called “The Cui Bono Matter.” To hear a show, search for “Yours Truly, Johnny Dollar” on YouTube.OF INTEREST (Not password protected)
Not What You’d Call Great Lawyering (Not the slightest bit bankruptcy related but a quick read – or just watch the 5ish second video. Trust me, it’s worth your time!)
DEBT AND THE ECONOMY (Not password protected)
A Major Recession Is Coming, Deutsche Bank Warns (I guess we should feel a little guilty about our initial reaction of WAHOOO!)
Will Rental Assistance Programs End Soon? Residents Brace for End of COVID Emergency Orders
MORTGAGES AND DEEDS OF TRUST (Not password protected)
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April 25, 2022
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May the Chapter 13 Trustee Keep Fees Paid Before Dismissal? – Part 2
Larry Ahern last week began a two-part examination of whether a Chapter 13 trustee may retain fees paid without a confirmed plan before dismissal. The first part was mislabeled as being on arbitration. Part 1 is a detailed analysis of McCallister v. Evans, a recent case accepting the trustee’s position considering a division in the caselaw and analyzing in detail the relevant statutes.
While Chapter 7 Filings Continue to Decline, Chapter 13 Filings are Trending Slightly Upward
Recent headlines noted that March 2022 saw a 33.5% increase in bankruptcy filings over February. This could suggest the coming swell in bankruptcy cases anticipated since the start of the COVID pandemic. However, bankruptcy professionals recognize that consumer filings always spike in March.
Critical Case Comment
A Chapter 13 trustee’s request to dismiss a Chapter 13 case upon discovery of an undisclosed asset held by the debtor cannot be granted after the debtor completes payments under the plan. (Brown)
IN CASE YOU MISSED IT . . .
May the Chapter 13 Trustee Keep Fees Paid Before Dismissal? – Part 1
A detailed analysis of McCallister v. Evans, a recent case accepting the trustee’s position considering a division in the caselaw and analyzing in detail the relevant statutes.
IT’S TIME TO REGISTER
NACTT
57TH ANNUAL SEMINAR
WHEN:
July 6-9, 2022
WHERE:
San Francisco Marriot Marquis
San Francisco, CA
Hot Topics in Chapter 13
Please join David Peake, Marie Ann Greenberg and Jason Wilson-Aguilar for a free Zoom webinar August 17, 2022, 1:00pm EST
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April 18, 2022
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It is with sadness that we let the readers know that our colleague Regina Logsdon’s husband Larry passed away on April 14, 2022, while in the hospital after a heart event. If you attended NACTT’s annual seminars or other events, you would have met Larry as he worked with Regina. Read his obituary here. |
Cui Pro Bono?
Judge Gustafson and Daniel Tavera explore “Who Benefits” from work done in a Chapter 13 case, and they suggest that the title of this piece comes from an old-time radio show – “Yours Truly, Johnny Dollar” – one of the most popular radio shows in its day. It was a five-part show called “The Cui Bono Matter.” To hear a show, search for “Yours Truly, Johnny Dollar” on YouTube.
How My Law Firm Learned to Stop Leaving Money on the Table Part 1 – Looking at Bankruptcy Cases Differently
Mark Leffler, of the Boleman Law Firm in Virginia and also the current President of the Academy for Consumer Bankruptcy Education, begins a series of articles describing his firm’s development of a broader practice on behalf of consumer debtors. Look for subsequent parts of this series over the next few weeks.
Critical Case Comment
A Chapter 13 trustee’s final audit and notice of completion of payments is not necessary or a precondition to the court granting a discharge to a debtor who has satisfied the requirements of § 1328.
IT’S TIME TO REGISTER
NACTT
57TH ANNUAL SEMINAR
WHEN:
July 6-9, 2022
WHERE:
San Francisco Marriot Marquis
San Francisco, CA
Click here to see some of the topics
Free Webinar Opportunity – Hot Topics in Chapter 13
Please join David Peake, Marie Ann Greenberg and Jason Wilson-Aguilar for a free Zoom webinar August 17, 2022, 1:00pm EST
IN CASE YOU MISSED IT . . .
Arbitration Fairness for Consumers Act
SB 3755 was introduced on March 3, 2022 by Sen. Brown of Ohio. The Act would amend the Consumer Financial Protection Act of 2020 with respect to arbitration. The stated purposes of the Act are to:
(1) Prohibit predispute arbitration agreements that force arbitration of a future consumer financial product or service dispute; and
(2) Prohibit agreements and practices that interfere with the right of consumers to participate in a joint, class, or collective action related to a consumer financial product or service dispute.
See also:
Supreme Court on Arbitration
On March 31, 2022, the Supreme Court decided another arbitration issue, Badgerow v. Walters, et al., 2022 WL 959675, which had no direct implications for bankruptcy matters. The Supreme Court held that when deciding whether it had jurisdiction over an arbitration award the federal court looks only to the application submitted to the court and it does not look beyond the application to the parties’ underlying substantive controversy.
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April 11, 2022
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Arbitration Fairness for Consumers Act
SB 3755 was introduced on March 3, 2022 by Sen. Brown of Ohio. The Act would amend the Consumer Financial Protection Act of 2020 with respect to arbitration. The stated purposes of the Act are to:
(1) Prohibit predispute arbitration agreements that force arbitration of a future consumer financial product or service dispute; and
(2) Prohibit agreements and practices that interfere with the right of consumers to participate in a joint, class, or collective action related to a consumer financial product or service dispute.
See also:
Supreme Court on Arbitration
On March 31, 2022, the Supreme Court decided another arbitration issue, Badgerow v. Walters, et al., 2022 WL 959675, which had no direct implications for bankruptcy matters. The Supreme Court held that when deciding whether it had jurisdiction over an arbitration award the federal court looks only to the application submitted to the court and it does not look beyond the application to the parties’ underlying substantive controversy.
Automatic Stay
Denial of stay relief was final and appealable, although it was “without prejudice.”
NACTT
57TH ANNUAL SEMINAR
WHEN: July 6-9, 2022
WHERE: San Francisco Marriot Marquis, San Francisco, CA
Click here to see some of the topics
New Acting Director of Executive Office of United States Trustees
Ramona D. Elliott was appointed Acting Director of the Executive Office for United States Trustees on April 1, 2022, after having served as its Principal Deputy Director and General Counsel since January 2011. Ms. Elliott has 27 years of federal service, the majority of which has been with the United States Trustee Program, including formerly as the Deputy General Counsel and as the Acting Assistant United States Trustee for the District of Puerto Rico. She also previously was Counsel for Bankruptcy and Redress to the Federal Trade Commission’s Bureau of Consumer Protection and in private practice.
Ms. Elliott graduated from the University of Florida with a B.S. in Accounting and received her J.D. from Emory University School of Law.
Bankruptcy Filing Increase in March
The American Bankruptcy Institute reported that bankruptcy filings increased in March over the February filings, while total filings for the first quarter of 2022 showed a 17% decrease from the first quarter 2021. See www.abi.org.
In the News
On April 7, 2022 the Senate confirmed Judge Ketanji Brown Jackson to the Supreme Court, by a vote 53-47. Justice Jackson will replace Justice Stephen Breyer upon his retirement this summer.
From the CFPB
The Consumer Finance Protection Bureau published its report on Medical Debt Burden in the Unites States, showing that $88 billion of outstanding medical det was in collection, affecting one in five consumers. Subsequent to this report, the three major credit reporting agencies announced that starting in July 2022 paid medical bills would not be included in their credit reports, and unpaid bills would only be reported if they remained unpaid for twelve months or more. See https://www.consumerfinance.gov/about-us/newsroom/cfpb-estimates-88-billion-in-medical-bills-on-credit-reports/
In Case You Missed It . . .
Critical Case Comment – Who is Responsible to Address Eligibility Questions?
Bankruptcy Court is under an obligation to examine the eligibility of a debtor to file Chapter 13 even where no party raises a timely, written objection.
STUDENT LOANS (Not password protected)
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April 4, 2022
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Critical Case Comment – Who is Responsible to Address Eligibility Questions?
Bankruptcy Court is under an obligation to examine the eligibility of a debtor to file Chapter 13 even where no party raises a timely, written objection.
See also:
Meet a New AND Newish Trustee
Tax Deductions Hidden in Chapter 13
True. Most people no longer itemize under the current Tax Code. However, the amount of money involved varies and should be considered.
Selection of Bankruptcy Administrator
Brian C. Behr of Raleigh, N.C., selected to be the next Bankruptcy Administrator for the Eastern District of North Carolina.
Bill Introduced
Bill did NOT pass . . . at least yet.
Sub V debt limit is $2,725,625
Sub V debt limit is $2,725,625
Click here for New Official Forms
SB 3823 introduced on 3/14/22 by Sen. Grassley to raise the ceiling for chapter 13 relief, following the ABI’s Consumer Commission recommendation. It also eliminates the distinction between secured and unsecured debt. The bill would also make the $7.5 million Sub V debt limit permanent.
IT’S TIME TO REGISTER
OH- MY – GOODNESS IT IS GOING TO BE A GREAT CONFERENCE!
Seriously, you want to be there. LIVE. In-person.
Professor Nancy Rapoport with a brand new schtick on Remote Lawyering
Maximizing the Benefits of Virtual Court Hearings
Technology Trends for the Bankruptcy Office
Watch for spotlights of other panels over the next few weeks.
BUT REGISTER NOW!!
New From NCLC
Free Webinar Opportunity
Please join Max Gardner and Modification Consultant Bobby Rivera for a special FREE webinar!
Free Zoom Webinar on Thursday, April 7, 2022 from 4 – 5 p.m. EST
Who Really Makes the Final Decisions on Mortgage Loan Modifications? How are these Decisions Made?
Positions Available
- Eastern District of MO Bankruptcy Judge Vacancy – Application deadline 5/23
- District of UT Notice of Bankruptcy Judge Vacancy – Application deadline 5/19
- District of Maryland – Term Law Clerk
From NCBRC
From the Courts
- Southern District of Texas Conducts Spring Cleaning of Noticing – Creditors need to read this.
- Bankruptcy Administration Improvement Act – Chapter 7
- We have noticed that many courts are going back to in-person hearings – Pay Attention to Those Notices!!
Sanctions and Irony and Fraud, Oh My!
Andrew R. Vara, U.S. Trustee for Region 9 v. Steven P. McDonald – New opinion from the Sixth Circuit Court of Appeals (While the decision itself is no surprise, the opinion/saga is a good Chpt7 read.)
In Case You Missed It . . .
Critical Case Comment – Sex, Lies and the Barton Doctrine
The issuance of a subpoena to a Chapter 7 trustee by a third party was subject to the Barton Doctrine and could not be permitted without the parties seeking bankruptcy court consent.
See also:
IN THE NEWS (Not password protected)
Bankruptcy Forms are Changing as of April 1 – no fooling. Please click here for more information. Attorneys should ensure their filing software systems are up to date.
Biden Proposes a 4.6% Raise for Federal Workers for 2023 – If enacted, the figure would mark the largest pay increase for federal employees in two decades.
OF INTEREST (Not password protected)
Is a By-the-Hour Motel a Single Asset Real Estate for Chapter 11 Purposes? (This will only interest a few of you but wanted to include as it is well written and, if nothing else, the definition of “single asset real estate” is worth the click.)
Sanctions Against Russia and Restrictions on Flow of Capital Lead to First Chapter 11 Filing in the United States and Will Likely Lead to More Filings (Article is a ‘so what’ until the 3rd paragraph. The amount of money and the number of employees involved is startling.)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
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March 28, 2022
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Claim Preclusion and the Opportunities for Mischief
“I’ve been having nightmares about the 9th Circuit’s decision in Siegel for 20 years. . . . The 9th Circuit did not address the point that screams at every consumer bankruptcy lawyer: no one had motivation or need to review claims in a no asset Chapter 7.
Critical Case Comment – Sex, Lies and the Barton Doctrine
The issuance of a subpoena to a Chapter 7 trustee by a third party was subject to the Barton Doctrine and could not be permitted without the parties seeking bankruptcy court consent.
See also:
Meet a New AND Newish Trustee
Yep, two trusteeships. Can you say o-v-e-r-a-c-h-i-e-v-e-r?
Krista M. Preuss was appointed as the Chapter 13 Standing Trustee for the Southern District of New York on February 1, 2018. She succeeded Jeffrey Sapir after his retirement. On October 1, 2021, she was appointed as the Chapter 13 Standing Trustee for the Eastern District of New York, succeeding Marianne DeRosa upon her retirement.
New Bill Introduced
Well, hold the presses . . . SB 3823 was introduced on 3/14/22 by Sen. Grassley to raise the ceiling for chapter 13 relief, following the ABI’s Consumer Commission recommendation. It also eliminates the distinction between secured and unsecured debt. The bill would also make the $7.5 million Sub V debt limit permanent. If enacted, the currently proposed changes set to take effect on 4/1 would be moot.
New Judge Announced
Selection of Heather Z. Cooper to Serve as Bankruptcy Judge in the District of Vermont
Ms. Cooper, who once clerked for Judge Brown, now takes the bench upon retirement of Judge Colleen A. Brown who retired last month after a very distinguished 22 years on the bench. “A Standing Trustee could not have asked for a better judge to work with. Judge Brown was a diligent, thoughtful, intelligent and courageous judge and we already miss her on the bench” commented Jan Sensenich, Chapter 13 Standing Trustee for the District of Vermont.
Judge Announces Retirement
Chief Bankruptcy Judge Thomas J. Catliota has informed the United States Court of Appeals for the Fourth Circuit that he will retire from his position as U.S. Bankruptcy Judge for the District of Maryland on October 3, 2022, after 16 and a half years of outstanding service to the Court.
Lawyers Are People Too
An Interview with Aki Koyama, Staff Attorney to Chapter 13 Standing Trustee Kathy Dockery
Jon: Hi Aki. I can’t believe after knowing you for 30 years now that I don’t know where you were born.
Aki: Ha! I was born in Tokyo, Japan . . .
Positions Available
- Eastern District of MO Bankruptcy Judge Vacancy – Application deadline 5/23
- District of UT Notice of Bankruptcy Judge Vacancy – Application deadline 5/19
- District of Maryland – Term Law Clerk
From NCBRC
Student Loans Chronicles
From the Courts
- Southern District of Texas Conducts Spring Cleaning of Noticing – Creditors need to read this.
- Bankruptcy Administration Improvement Act – Chapter 7
- Central District of IL – Effective April of 2022, Judge Perkins will be resuming in-person hearings for Chapter 13 cases in Urbana and Peoria. Telephonic participation is not permitted. We have noticed that many courts are going back to in-person hearings – Pay Attention to Those Notices!!
- Southern District of GA – Effective 3/28, address change for U.S. Trustee’s Savannah Office: Office of U.S. Trustee; 33 Bull Street, Suite 400, Savannah, GA 31401
Sanctions and Irony and Fraud, Oh My!
- A potentially explosive Chapter 13 . . .Longtime New Richmond Resident Indicted for Storing Blasting Cap Explosives in Attic – Decades-old blasting caps removed by bomb squad. A good thing Chapter 13 trustee did not take possession of property of the estate of this serial filer!!
In Case You Missed It . . .
Bankruptcy Intersecting with Tevis Equals Malpractice Claim
New Jersey attorney is the subject of a legal malpractice complaint for allegedly failing to properly preserve a marital tort claim as an exception to discharge.
IN THE NEWS (Not password protected)
Bankruptcy Forms are Changing as of April 1 – no fooling. Please click here for more information. Attorneys should ensure their filing software systems are up to date. (See also, New Bill Introduced)
OF INTEREST (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
FOR YOUR HEALTH (Not password protected)
What Is Sorghum? A Unique Grain Reviewed (Who knew that stuff your granddaddy put on biscuits is actually good for you?)
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March 21, 2022
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Can Good Facts Also Make Bad Law? Finality of Orders in Bankruptcy Revisited after Ritzen
This week, Larry Ahern is prompted by recent caselaw to return to the subject of the Supreme Court’s opinions in Ritzen Group, Inc. v. Jackson Masonry, LLC (2020) and Bullard v. Blue Hills Bank (2015), both of which attempted to define when a bankruptcy court’s order is “final.”
Bankruptcy Intersecting with Tevis Equals Malpractice Claim
New Jersey attorney is the subject of a legal malpractice complaint for allegedly failing to properly preserve a marital tort claim as an exception to discharge.
Bankruptcy Icon Retires . . . Well, Sort of
From 5 Divisions to 4 Grandchildren, 3+ pets, 2 Hobbies and 1 Private Practice:The “Retirement” of Robert Wilson
“The trouble with retirement is that you never get a day off!”
New Judge Appointed
Bradley Partner Christopher L. Hawkins Appointed United States Bankruptcy Judge for Middle District of Alabama
Academy articles by Chris Hawkins (yep, we are totally name dropping!):
A Free Knowledge Nugget
On March 10, 2022, the Wage and Hour Division of the Department of Labor issued Field Assistance Bulletin No. 2022-02 with the subject line “Protecting Workers from Retaliation.”
While a portion of the Bulletin concerns the FMLA (which probably doesn’t apply to most Academy readers as it requires 50 or more employees), it also addresses the Fair Labor Standards Act which would apply. The Bulletin provides some specific examples which might be helpful to you.
Supreme Court Corner
From the CFPB
CFPB Targets Unfair Discrimination in Consumer Finance – Discrimination or improper exclusion can trigger liability under ban on unfair acts and practices
From NCBRC
Sanctions and Irony and Fraud, Oh My!
- Maryland Woman Pleads Guilty to Fraud Schemes Resulting in Losses of More Than $1.1 Million – Defrauded Her Employer, Fraudulently Obtained Disability Benefits, and Evaded Paying Taxes
From the Courts
- District of North Dakota – UST’s Office advises effective April 1, 2022, chapter 7 panel trustee, Kip Kaler will no longer accept new cases. Given the historically low caseload and continuing remote 341s, the UST does not intend to replace Mr. Kaler’s position at this time. Effective with cases filed April 1, 2022, trustee Gene Doeling will handle all chapter 7 cases in North Dakota.
- Southern District of FL – April 4 is your turn for NextGen
IN THE NEWS (Not password protected)
District Court Upholds Georgia Bankruptcy Court’s Restrictions on Chapter 7 Trustee Attorneys’ Fees (Order includes denial of fees for opposing conversion to Chapter 13.)
Why ‘Stay Interviews’ Might Help Law Firms and Companies Retain Legal Talent (Not just legal talent. This concept could have much broader implications.)
Bankruptcy forms are changing as of April 1 – no fooling. Please click here for more information. Attorneys should ensure their filing software systems are up to date.
CHAPTER 12 (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
OF INTEREST (Not password protected)
Death by a Thousand Cuts – Cumulative Trustee-Friendly Rulings on Bankruptcy Code Claw Back Provisions Are Unfairly Burdening Subsequent Transferees
SUB V (Not password protected)
HUMOR FOR YOUR MENTAL HEALTH (Not password protected)
Federal Judiciary Asked to PLEASE Not Crash the Servers Watching March Madness – Good to know the gears of justice can jam up over a 5-12 upset. (Not in the slightest bit bankruptcy related but too funny not to post.)
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March 14, 2022
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Critical Case Comment – Debtor Not Current But May Invoke CARES Remedies
In order to invoke remedies granted under the CARES Act, Chapter 13 debtor need not have been current on the date of enactment as long as the debtor satisfies the conditions in the CARES Act.
Delaware Trustee Michael Joseph to Retire
The debtors will miss him. The creditors will miss him. Even more, his colleagues will miss him.
Debt Limits on the Rise
Section 109(e)—debt limits for individual filing bankruptcy under chapter 13.
From $419,275 for unsecured debtors to $465,275 for unsecured creditors.
From $1,257,850 for secured debts to $1,395,875 for secured debts.
Click here for all dollar amount increases as of 4/1/22.
A Free Knowledge Nugget
Metro Homeowners Locked into 40 Year Contracts with Real Estate Company (Oy vey)
MV Realty contacts homeowners usually in low-income areas and offers them $500-1,000 cash and in exchange, the homeowner gives them the exclusive right to sell their home –and locks them into this for 40 years. (You may want to blog about this.)
Supreme Court Corner
New Reg F
Below resources pulled together by NCLC:
Positions Available
- Chapter 13 Standing Trustee for the Southern District of Alabama (Mobile) – Application Deadline 3/18/22
- Chapter 7 Panel Trustee – Eastern District of Pennsylvania Application Deadline 3/31/22
- Southern District of Ohio – Term Law Clerk Application Deadline 3/24/22
Student Loans Chronicles
For Your Blog
From the Courts
- District of North Dakota – UST’s Office advises effective April 1, 2022, chapter 7 panel trustee, Kip Kaler will no longer accept new cases. Given the historically low caseload and continuing remote 341s, the UST does not intend to replace Mr. Kaler’s position at this time. Effective with cases filed April 1, 2022, trustee Gene Doeling will handle all chapter 7 cases in North Dakota.
- Southern District of FL – April 4 is your turn for NextGen
IN CASE YOU MISSED IT. . .
Discharges and the DoD: The Interplay between Bankruptcy & Security Clearances
“Despite having needed to file two bankruptcies within seven years, the applicant was able to meet her burden of demonstrating that it was clearly consistent with the national interest to continue her security clearance.”
IN THE NEWS (Not password protected)
Bankruptcy forms are changing as of April 1 – no fooling. Please click here for more information. Attorneys should ensure their filing software systems are up to date.
MILITARY MATTERS (Not password protected)
House Passes Bill to Help Veterans Exposed to Toxic Burn Pits (Not bankruptcy related.)
DEBT AND THE ECONOMY (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Lender Liability is Not a Thing of the Past: Texas Bankruptcy Court Slams Lender with $17 Million in Damages for Exercising Improper Control Over Borrower
OF INTEREST (Not password protected)
Opinion: The Larger Risk from a Barely Noticed CFPB Lawsuit – In CFPB vs NCSLT, the CFPB is attempting to assert that a trust has liability for the mistakes of a servicer
Adversary Proceedings and Section 523(a)(6) – Bar room brawls and bankruptcy don’t often overlap, but they do in this bankruptcy adversary proceeding. (Chpt 11 case but a fun set of facts and entertainingly written.)
SUB V (Not password protected)
FOR YOUR MENTAL HEALTH (Not password protected)
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March 7, 2022
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Archives |
Lenders Can’t Hide from Consequences of Misapplication of Mortgage Payments
“So, my thought is to make a RESPA RFI anytime the servicing of a loan changes hands.”
See also:
Discharges and the DoD: The Interplay between Bankruptcy & Security Clearances
“Despite having needed to file two bankruptcies within seven years, the applicant was able to meet her burden of demonstrating that it was clearly consistent with the national interest to continue her security clearance.”
Attorney Kennedy always thinks outside the box. When asked by ConsiderChapter13.org to write an article, she produced this detailed look at how bankruptcy can (or more importantly, shouldn’t) effect a debtor’s application for security clearance. Like Ms. Kennedy, anyone who practices in or near a “military town” or other governmental employers should pay particular attention to this reference piece.
A Free Knowledge Nugget
COVID-19 Forbearance Option Charts Federally-Backed Mortgages
Diane Cipollone, attorney and qualified expert on mortgage servicing and loan origination matters, created these charts from various announcements from FHA, VA, USDA, Fannie Mae and Freddie Mac over the past two years. She was gracious enough to update this resource, for ConsiderChapter13.org readers, to include some borrowers whose loans were previously owned by Fannie or Freddie.
Reyes Bordeaux Appointed Judge
The Ninth Circuit Court of Appeals has appointed a new Bankruptcy Judge to serve the Central District of California.
From the CFPB
- CFPB Estimates $88 Billion in Medical Bills on Credit Reports (This item is the set up for the next item below.)
- Prepared Remarks of Director Rohit Chopra on New CFPB Medical Debt Report (The first 9 paragraphs are what you already know – medical debt is bad. But if you begin reading at: The CFPB will be taking several steps in light of the report: . . . you will get to the good stuff.)
Passing of Judge
Positions Available
- Chapter 13 Standing Trustee for the Southern District of Alabama (Mobile) – Application Deadline 3/18/22
- Chapter 7 Panel Trustee – Eastern District of Pennsylvania Application Deadline 3/31/22
- Southern District of Ohio – Term Law Clerk Application Deadline 3/24/22
Student Loans Chronicles
- Opinion of Interest – In re Wolfson: A Potential Re-Evaluation of the “Undue Hardship” Test for Student Loan Borrowers
- 93% of Student Loan Borrowers Aren’t Prepared to Start Paying Again – Inflation could make it even worse
For Your Blog
Understanding the Child and Dependent Care Credit – Taxpayers who are paying someone to take care of their children or another member of household while they work, may qualify for child and dependent care credit regardless of their income.
From the Courts
- Pending Changes in the Bankruptcy Forms – Revised Dollar Amounts in Official Forms 106C, 107, 122A-2, 122C-2, 201, 207, 410, Director’s Forms 2000 and 2830, and certain instructions, effective April 1, 2022
- Southern District of AL – return to in-person motion dockets, confirmation hearings, trials – March 7th
- Eastern District of OK – Hearing and Meeting of Creditors Calendars Now Available on smartphones and tablets
- Southern District of FL – April 4 is your turn for NextGen
IN CASE YOU MISSED IT. . .
Critical Case Comment – Bad Faith to Not Pay Both Tests?
Chapter 13 debtor is not obligated to pay both the disposable income pool and the best interest of creditors test pool to achieve confirmation, only the larger of the two; it is not a manifestation of bad faith that the debtor does not pay both the disposable income pool and the best interest of creditors test amounts.
IN THE NEWS (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
FHA Inches Closer to Offering a 40-Year Loan Modification – Government agency’s goal is to reduce payments in 25% for borrowers exiting forbearance and still struggling
OF INTEREST (Not password protected)
Merlin Integrated Search – New Technology from a Familiar Name: eDiscovery Trendsitration (Claims to be the fastest legal document search tool ever.)
Who Is Liable When Bank Accounts Are Used in Fraud? That’s a Lawsuit Question after Marin County Ponzi Case
SUB V (Not password protected)
FOR YOUR HEALTH (Not password protected)
Tips and Picks for Vitamin Deficiency Tests You Can Order Online (This is cool – sort of a consumer reports on at home medical tests.)
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February 28, 2022
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Can a Secured Claim Still “Ride-Through” Bankruptcy Despite BAPCPA? Part 2: Looking Beyond In re Rhodes
Larry Ahern this week concludes a two-part examination of whether encumbered property can still “ride through” a bankruptcy case since 2005. Part 1 was a detailed analysis of In re Rhodes, a recent case in which a debtor’s attorney withdrew his certification of the debtor’s reaffirmation agreement, prompting a thorough consideration of the ride-through doctrine. This Part 2 reviews some further nuances explored in that opinion and considers whether and how this preservation of the ride-through doctrine might affect other cases.
Critical Case Comment – Bad Faith to Not Pay Both Tests?
Chapter 13 debtor is not obligated to pay both the disposable income pool and the best interest of creditors test pool to achieve confirmation, only the larger of the two; it is not a manifestation of bad faith that the debtor does not pay both the disposable income pool and the best interest of creditors test amounts.
In Honor of Black History Month
From NCBRC
Retirement of Chief Judge Dana L. Rasure
The United States Bankruptcy Court for the Northern District of Oklahoma announces that Chief Judge Dana L. Rasure will retire from the bench effective May 1, 2022. Judge Rasure has served as a bankruptcy judge for the Northern District of Oklahoma since January 1997.
Positions Available
- Chapter 13 Standing Trustee for the Southern District of Alabama (Mobile) – Application Deadline 3/18/22
- Chapter 7 Panel Trustee – Eastern District of Pennsylvania Application Deadline 3/31/22
- Southern District of Ohio – Term Law Clerk Application Deadline 3/24/22
- Eastern District of Tennessee – Term Law Clerk Application Deadline 3/7/22
Student Loans Chronicles
For Your Blog
From the Courts
- Southern District of AL – return to in-person motion dockets, confirmation hearings, trials – March 7th
- Eastern District of OK – Hearing and Meeting of Creditors Calendars Now Available on smartphones and tablets
- Central District of CA – Note reassignment of Judges Wallace and Clarkson cases
- Northern District of FL – Public Comment Period Open for the 2022 Proposed Local Rules – 3/9 deadline
- Southern District of FL – April 4 is your turn for NextGen
- Eastern District of TN – NextGen Live March 7th
Sanctions and Irony and Fraud, Oh My!
IN CASE YOU MISSED IT. . .
Ending a COVID Forbearance – A Knowledge Nugget from Max Gardner and The NCLC
What happens at the end of a COVID forbearance? Can servicers demand a large balance?
Generally, the servicers should not be demanding full payment following a COVID forbearance. There are a number of loss mitigation options for people coming out of a COVID forbearance. In order to know which may apply one needs to know who owns the loan (who is the investor). Is it a GSE, FHA or private label loan?
Click here for the NCLC chart showing various options.
IN THE NEWS (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
PHH Mortgage Honored by Freddie Mac for Superior Loan Servicing (Nice to have a positive Servicer item to run!)
DEBT AND THE ECONOMY (Not password protected)
OF INTEREST (Not password protected)
Reading an Adversary’s Papers Can Be Brutal (This article could almost go under a “For Your Mental Health” category – no matter what category, it’s a good read.)
FOR YOUR HEALTH (Not password protected)
And Now for Something Completely Different … Not – The stigma around mental health issues still exists and must be addressed.
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February 21, 2022
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Critical Case Comment – No Such Thing as “Technical” Violation of the Stay
Bankruptcy Court found violation of automatic stay to be “technical”, thus no damages. Ninth Circuit BAP did not agree.
Drilling Down on Consumer Debt: A Closer Look at the $52 Billion Increase in Credit Card Debt
The New York Fed just released its consumer debt report for the period ending December 2021. One of the headlines to come from this report is that credit card debt increased by $52 billion in the 4rd Qtr. 2021—the largest increase in 22 years. This is statistically true, but it does not tell the whole story of the pandemic’s impact on consumer debt.
Judge Anderson breaks down these numbers and explains them including auto loan debt.
I Was Just Following Orders
During his tenure as Editor/Advisor for ConsiderChapter13.org, Judge Waldron wrote many extraordinary reference pieces. This week, we re-bring you one of these. Although written using a 2008 case, our research indicates this is still a very timely resource.
In this article, Judge Waldron explains why the “I was just following orders” defense doesn’t hold up.
Titles 11 and 28 Monetary Changes for 2022
The monetary amounts in various Code sections of Titles 11 and 28 were adjusted, effective April 1, 2022, to reflect cost of living adjustments. These adjustments occur every three years, pursuant to 11 U.S.C. section 104.
The New Paradigm: How to Build an Effective Remote and Hybrid Work Environment
From Above the Law: Prof. Ben Sachs of the University of Virginia School of Law lays out three types of techniques for effective management.
From NCBRC
Ending a COVID Forbearance – A Knowledge Nugget from Max Gardner and The NCLC
What happens at the end of a COVID forbearance? Can servicers demand a large balance?
Generally, the servicers should not be demanding full payment following a COVID forbearance. There are a number of loss mitigation options for people coming out of a COVID forbearance. In order to know which may apply one needs to know who owns the loan (who is the investor). Is it a GSE, FHA or private label loan?
Click here for the NCLC chart showing various options.
Positions Available
- Chapter 13 Standing Trustee for the Southern District of Alabama (Mobile) – Application Deadline 3/18/22
- Middle District of Louisiana – Bankruptcy Judge (Baton Rouge) Application Deadline 2/25/22
- Eastern District of Tennessee – Term Law Clerk Application Deadline 3/7/22
- District of Colorado – Career or Term Law Clerk
- District of Wyoming – Term Law Clerk – Open until filled
- Western District of Virginia – Programmer/System Administrator
Student Loans Chronicles
For Your Blog
- 3 in 10 Couples Have Experienced Financial Infidelity in the Past Year — Here are the most common lies – The biggest money-related lies in relationships deal with spending, debt and income.
From the Courts
- Central District of CA – Note reassignment of Judges Wallace and Clarkson cases
- Northern District of FL – Public Comment Period Open for the 2022 Proposed Local Rules – 3/9 deadline
- Middle District of LA – Fees for Chpt 13 Debtors’ Counsel
- Southern District of FL – April 4 is your turn for NextGen
- Eastern District of TN – NextGen Live March 7th
- District of Puerto Rico – NextGen Live February 28
IN CASE YOU MISSED IT. . .
Conflicting Interpretations: A Chapter 13 Trustee’s Compensation After Pre-Confirmation Dismissal or Conversion – Part 3 of 3
In Part 1 of Bushman’s detailed outline, she introduces the topic and looks at the statutory overview.
Part 2 begins her analysis of contrasting the majority and minority interpretations by looking at illustrative decisions of the majority approach.
In Part 3, Bushman concludes this topic by outlining minority interpretations.
Thank you, Ms. Busham for this excellent outline!
IN THE NEWS (Not password protected)
Bankruptcy Court Won’t Dabble in Case Concerning a Marijuana Business (If nothing else, this article contains “Cliffs Notes” on the process of cannabis extraction. It is a Chapter 13 case.)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
DEBT AND THE ECONOMY (Not password protected)
OF INTEREST (Not password protected)
From Weil Restructuring: Are Consequential Damages Recoverable for Breach of a Contractual Obligation to Pay a Sum of Money?
Retired Bankruptcy Judge Judith K. Fitzgerald Testifies Before the Senate Judiciary Subcommittee Meeting on Possible Abuses of the Bankruptcy System Through the Use of the ‘Texas Two-Step’ (Business bankruptcy related but interesting.)
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February 14, 2022
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Leading a Winning Team
In our “Staff Corner” series, the affable, insightful, sapientMerideth Akersbrings us a playbook of how to effectively manage a team that always scores.
“Certainly, the success of the team is partly determined by finding and retaining the best talent for our teams. This is not as easy as it may sound.”
Who Gets Grannie’s Cash – Grannie or the Bankruptcy Trustee?
“Who doesn’t have a joint bank account with someone they care about?”
As a debtor attorney, this should be an issue you are watching for at every intake. An alert trustee will win the cash every time if you don’t advise your client appropriately.
Conflicting Interpretations: A Chapter 13 Trustee’s Compensation After Pre-Confirmation Dismissal or Conversion – Part 3 of 3
In Part 1 of Bushman’s detailed outline, she introduces the topic and looks at the statutory overview.
Part 2 begins her analysis of contrasting the majority and minority interpretations by looking at illustrative decisions of the majority approach.
Judge to Retire
The Central District of California’s Judge Mark S. Wallace will retire from the bench on March 1, 2022.
Farmers in the News
Chapter 12 Trustees Free Webinar
Federal Participation in Farming – Partner, Benefactor, Creditor or CEO? How FSA funding affects reorganization of family farms
February 17 at 2:00PM (ET)
Presented By:
Joseph Newton Callaway, United States Bankruptcy Judge, Greenville, NC
David F. Mills, Narron Wenzel, P.A., Smithfield, NC
John C. Bircher III, Davis Hartman Wright, PLLC, New Bern, NC
Mortgage Backed Securities Anyone?
Click here for the Federal Reserve Bank’s February 2022 report on MBS.
Positions Available
- Chapter 13 Standing Trustee Eastern District of Virginia – Norfolk/Newport News Divisions Application Deadline 2/18/22
- Middle District of Louisiana – Bankruptcy Judge (Baton Rouge) Application Deadline 2/25/22
- Eastern District of Tennessee – Term Law Clerk Application Deadline 3/7/22
- District of Colorado – Career or Term Law Clerk
- District of Minnesota – Term Law Clerk Application Deadline 2/18/22
- District of Wyoming – Term Law Clerk – Open until filled
- Western District of Virginia – Programmer/System Administrator
Student Loans Chronicles
For Your Blog
From the Courts
- Central District of CA – Note reassignment of Judges Wallace and Clarkson cases
- Northern District of FL – Public Comment Period Open for the 2022 Proposed Local Rules – 3/9 deadline
- Middle District of FL – Administrative Order Prescribing Procedures for Student Loan Management Program
- Middle District of LA – Fees for Chpt 13 Debtors’ Counsel
- District of SC – Relocation of Divisional Office from Spartanburg to Greenville
- District of SC – Erroneous Transfer of Cases Affecting the Spartanburg Division
- Southern District of FL – April 4 is your turn for NextGen
- Eastern District of TN – NextGen Live March 7th
- District of Puerto Rico – NextGen Live February 28
Sanctions and Irony and Fraud, Oh My!
- Utah Attorney Who Embezzled More Than A Quarter-Million Dollars From Clients Is Sentenced – Plead guilty to bankruptcy fraud
IN CASE YOU MISSED IT. . .
Critical Case Comment – Debtor’s Counsel’s Fee Reduced to $48k
Chapter 13 debtor’s counsel’s fee award was reduced to $48,116 from the requested $95,480 due to pre-petition payments, confusing and “lumped” time entries, and excessive hourly rates for some services performed, even though the debtor’s Chapter 13 plan was never even proposed much less confirmed. The debtor never attended a meeting of creditors, but the debtor managed to recover his home that had been transferred prior to the filing of the petition.
IN THE NEWS (Not password protected)
MILITARY MATTERS (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Foreclosures Rise in Ohio, Elsewhere, as COVID-19 Moratoriums Lift (Whoop whoop – great news!!)
DEBT AND THE ECONOMY (Not password protected)
‘I’m Scared’: Thousands in New York Public Housing Are Behind on Rent – NYCHA is pledging to avoid evictions. But many tenants in arrears are anxious. . . . More than 68,000 households, roughly 42 percent of all of those in public housing, had overdue rent as of November 2021 (You will have to create a free account to read the entire article – if you practice in/around NYC, it’s probably worth it.)
BY THE NUMBERS (Not password protected)
January 2022 New Bankruptcy Filings Continue Decline – “Chapter 13 individual bankruptcies had 10,336 new filings in January, up 3.4% over December 2021”
OF INTEREST (Not password protected)
FOR YOUR HEALTH (Not password protected)
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February 7, 2022
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When the Duty to Provide Tax Returns Collides with Confidentiality
“Must the debtor provide copies that contain personal identifying information . . . social security numbers of dependents including minor children? Or a redacted version that only includes financial information?”
Critical Case Comment – Debtor’s Counsel’s Fee Reduced to $48k
Chapter 13 debtor’s counsel’s fee award was reduced to $48,116 from the requested $95,480 due to pre-petition payments, confusing and “lumped” time entries, and excessive hourly rates for some services performed, even though the debtor’s Chapter 13 plan was never even proposed much less confirmed. The debtor never attended a meeting of creditors, but the debtor managed to recover his home that had been transferred prior to the filing of the petition.
Conflicting Interpretations: A Chapter 13 Trustee’s Compensation After Pre-Confirmation Dismissal or Conversion – Part 2 of 3
In Part 1 of Bushman’s detailed outline, she introduces the topic and looks at the statutory overview.
Part 2 begins her analysis of contrasting the majority and minority interpretations by looking at illustrative decisions of the majority approach.
From the Middle District of North Carolina
“After careful consideration, the Court has made the difficult decision to consolidate its three standing chapter 13 offices into two standing chapter 13 offices. As a first step, beginning in approximately 75 days*, all new or converted Durham division chapter 13 cases will be assigned to Trustee Troxler. Around September 2022, Trustee Hutson’s pending cases will be transferred to Trustee Troxler in connection with the staged wind down of Trustee Hutson’s office. As more information is available, it will be shared with the bankruptcy bar.”
*Notice dated 2/2/22
From the Courts
Bankruptcy Filings Drop 24 Percent
(But the good news is that some districts are seeing an uptick in consumer filings.)
District of Maryland
The United States District Court has designated the Honorable David E. Rice to serve as Chief Judge of the Bankruptcy Court, effective April 30, 2022
Southern District of New York
U.S. Bankruptcy Judge Martin Glenn will take over as the next chief judge of the U.S. Bankruptcy Court for the Southern District of New York, starting his five-year term in March in one of the most sought-after bankruptcy venues. Has served as bankruptcy judge for roughly 15 years
Chapter 12 Trustees Free Webinar
Federal Participation in Farming – Partner, Benefactor, Creditor or CEO? How FSA funding affects reorganization of family farms
February 17 at 2:00PM (ET)
Presented By:
Joseph Newton Callaway, United States Bankruptcy Judge, Greenville, NC
David F. Mills, Narron Wenzel, P.A., Smithfield, NC
John C. Bircher III, Davis Hartman Wright, PLLC, New Bern, NC
MARK YOUR CALENDAR NOW
NACTT 2022 – LIVE
(Yes, the goal is live, in-person, in the room with the speakers –
what a great concept!!!)
July 6-9
San Francisco Marriott Marquis
Agenda in brief:
- Contempt Powers Post Gravel
- Ethical Implications of Remote Lawyering Post-Pandemic
- Discharge or Not – Dealing with Post-Expiration Debtor Payments
- Windfalls in Chpt 13
- Virtual Hearings – Maximize Benefits/Avoid Pitfalls
- Dismiss with Prejudice – When appropriate/what conditions apply
- Conversion Issues
- Abusive Lending Statues and Remedies
- AND MORE
Of course, mortgage issues, student loans, and the ever-popular Case Law Update – Judge Lundin, Trustee Hildebrand, and special guest: TARA TWOMEY!!
From the CFPB
- Guide to Filing Your Taxes in 2022 (Yes, this is in the proper category – fairly easy to navigate information. You may want to glance at this not only for your clients but for your own tax filing preparation.)
- Know Your Data: Our Updated List of Reporting Companies (You can probably find items in this article to use as a springboard For Your Blog.)
Positions Available
- Middle District of Louisiana – Bankruptcy Judge (Baton Rouge) Application Deadline 2/25/22
- Northern District of Ohio – Term Law Clerks Application Deadline 2/11/22
- Eastern District of Tennessee – Term Law Clerk Application Deadline 3/7/22
- District of Colorado – Career or Term Law Clerk
- District of Minnesota – Term Law Clerk Application Deadline 2/18/22
- District of Wyoming – Term Law Clerk – Open until filled
- Western District of Virginia – Programmer/System Administrator
Student Loans Chronicles
For Your Blog
- More People Qualify for Emergency Rent Funding Amid Pandemic, Inflation – Program helps residents with financial hardships (This program is in Clermont County, OH; wonder how many other counties have similar money?)
From the Courts
- Middle District of FL – Administrative Order Prescribing Procedures for Student Loan
Management Program
- Middle District of LA – Fees for Chpt 13 Debtors’ Counsel
- District of SC – Relocation of Divisional Office from Spartanburg to Greenville
- District of SC – Erroneous Transfer of Cases Affecting the Spartanburg Division
- Southern District of AL – Don’t file pleadings using another attorney’s CM/ECF account!A pleading filed in CM/ECF must have a signature block in the name of the same person whose login and password are being used for the filing. Bankruptcy Rule 5005(a)(2)(C) states: “A filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.” [Emphasis added.] In other words, you can’t file a pleading under your name using someone else’s CM/ECF account; either get your own account or have that person sign it.
- Warren E. Burger Federal Building and U.S. Courthouse in St. Paul will be closed through approx. February 18, 2022 due to a criminal trial.
- District of Rhode Island – NEW Homeowner Assistance Fund
- Eastern District of TN – NextGen Live March 7th
- District of Puerto Rico – NextGen Live February 28
- District of MD – NextGen Live February 14th
Sanctions and Irony and Fraud, Oh My!
- Wells Fargo Pays $12M for Wrongly Denying Mortgage Modifications – More than 1,800 mortgage borrowers will receive a compensation in class action lawsuit settlement
IN CASE YOU MISSED IT. . .
If You’re Gonna Bet the Farm, Maybe Play Against the House
“In the opinion, Judge Barnes provided some suggestions as to what evidence might have been helpful in the Debtor’s situation. . . .The more corroborating evidence, the better.”
IN THE NEWS (Not password protected)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
Ginnie Mae has First Senate-confirmed Leader in Nearly 5 Years (And it’s a girl!)
DEBT AND THE ECONOMY (Not password protected)
Bankruptcy Filings Continue to Decline Despite Skyrocketing Credit Balances (Decent article directed toward consumers; the only real take-away for Academy readers is: Revolving credit balances have grown nearly every month of 2021, rising from $961.5 billion in January to $1.04 trillion in November – um, that’s billion to TRILLION!)
OF INTEREST (Not password protected)
Stigmatizing Stigmas – The first step in figuring out what to do about stigmas is being aware of what they are.
Little of the Paycheck Protection Program’s $800 Billion Protected Paychecks – Only about a quarter of the funding went to jobs that would have been lost, new research found. A big chunk lined bosses’ pockets.
FOR YOUR HEALTH (Not password protected)
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January 31, 2022
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Can a Secured Claim Still “Ride-Through” Bankruptcy Despite BAPCPA? – Part 1 In re Rhodes Says, “Let Me Count the Ways”
Larry Ahern this week begins a two-part examination of whether an encumbrance can still “ride through” a bankruptcy case after BAPCPA. Part 1 is a detailed analysis of In re Rhodes, a recent case in which a debtor’s attorney withdrew his certification of the debtor’s reaffirmation agreement, prompting a thorough consideration of the ride-through doctrine.
If You’re Gonna Bet the Farm, Maybe Play Against the House
“In the opinion, Judge Barnes provided some suggestions as to what evidence might have been helpful in the Debtor’s situation. . . .The more corroborating evidence, the better.”
Conflicting Interpretations: A Chapter 13 Trustee’s Compensation After Pre-Confirmation Dismissal or Conversion – Part 1 of 3
In Part 1 of Bushman’s detailed outline, she introduces the topic and looks at the statutory overview.
2022 Poverty Index
On January 12, the Department of Health and Human Services issued the updated poverty guidelines to account for last calendar year’s increase in prices as measured by the Consumer Price Index.
Chapter 12 Trustees Free Webinar
Federal Participation in Farming – Partner, Benefactor, Creditor or CEO? How FSA funding affects reorganization of family farms
February 17 at 2:00PM (ET)
Presented By:
Joseph Newton Callaway, United States Bankruptcy Judge, Greenville, NC
David F. Mills, Narron Wenzel, P.A., Smithfield, NC
John C. Bircher III, Davis Hartman Wright, PLLC, New Bern, NC
Webinar Recordings Available
3002.1 Proposed Rule Changes: The Webinar 12/16/21
3002.1 The Dialogue Continues Produced 1/14/22
Click here to Submit Your Comments
to the Rules Committee
Access to webinar recorders is benefit of subscription. Not a Subscriber? JOIN NOW!
From the CFPB
CFPB Launches Initiative to Save Americans Billions in Junk Fees – Agency Seeks Public Input on Fees on Bank Accounts, Credit Cards, and Other Financial Products
Positions Available
- Middle District of Louisiana – Bankruptcy Judge (Baton Rouge) Application Deadline 2/25/22
- Northern District of Ohio – Term Law Clerks Application Deadline 2/11/22
Student Loans Chronicles
From NCBRC
For Your Blog
- Taxpayers Beware: Tax season is prime time for phone scams
From the Courts
- Middle District of LA – Fees for Chpt 13 Debtors’ Counsel
- Southern District of AL – Don’t file pleadings using another attorney’s CM/ECF account!A pleading filed in CM/ECF must have a signature block in the name of the same person whose login and password are being used for the filing. Bankruptcy Rule 5005(a)(2)(C) states: “A filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.” [Emphasis added.] In other words, you can’t file a pleading under your name using someone else’s CM/ECF account; either get your own account or have that person sign it.
- Warren E. Burger Federal Building and U.S. Courthouse in St. Paul will be closed starting January 20 through approx. February 18, 2022 due to a criminal trial.
- District of Rhode Island – NEW Homeowner Assistance Fund
- Eastern District of TN – NextGen Live March 7th
- District of MD – NextGen Live February 14th
Sanctions and Irony and Fraud, Oh My!
IN CASE YOU MISSED IT. . .
Of Grace Periods and Mortgage Payments
“The no man’s land between the mortgage due date and late payment is a persistent trouble spot for Chapter 13 practitioners.Are there arrears when the case is filed during the grace period and the payment made before it was late?” Seems a little akin to Who’s On First.
IN THE NEWS (Not password protected)
In re McLauchlan – The Supreme Court held that a recorded judgment lien attaches to homestead property where the judgment debtor has equity in excess of the amount exempt under Arizona law.
MORTGAGES AND DEEDS OF TRUST (Not password protected)
DEBT AND THE ECONOMY (Not password protected)
Inflation 2022: Sticker shock a new concept for most shoppers as prices skyrocket (If you aren’t the regular grocery shopper for your household, you need to do it . . . at least once. It’s an eye opener!)
OF INTEREST (Not password protected)
Wharton Students Think the Average American Makes Six Figures. Here’s the reality – The huge pay gap among workers at the top and bottom makes the middle more difficult to calculate.
Michiganders Are Still Facing Steep Bills from an Unemployment Agency Error. Experts worry their tax returns could be seized
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January 24, 2022
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Archives |
The Case for Conduit Mortgage Payments
“One can certainly make the case without any reservations that Trustee records are always better than the ‘records’ of debtors.”
Of Grace Periods and Mortgage Payments
“The no man’s land between the mortgage due date and late payment is a persistent trouble spot for Chapter 13 practitioners.Are there arrears when the case is filed during the grace period and the payment made before it was late?” Seems a little akin to Who’s On First.
Critical Case Comment – 3002.1 and Reverse Mortgages
Requirements and remedies in Rule 3002.1 apply to reverse mortgages as well as conventional mortgages; while discharge of Chapter 13 plan does not discharge a mortgage obligation treated pursuant to § 1325(b)(5), the Court may prohibit prospective use of a nondisclosed obligation as grounds for a default.
Selection of U.S. Bankruptcy Judge
U.S. Court of Appeals for the Fourth Circuit selected Elisabetta G.M. Gasparini to fill the judgeship being vacating by retiring John E. Waites.
Chapter 12 Trustees Free Webinar
Federal Participation in Farming – Partner, Benefactor, Creditor or CEO? How FSA funding affects reorganization of family farms
February 17 at 2:00PM (ET)
Presented By:
Joseph Newton Callaway, United States Bankruptcy Judge, Greenville, NC
David F. Mills, Narron Wenzel, P.A., Smithfield, NC
John C. Bircher III, Davis Hartman Wright, PLLC, New Bern, NC
3002.1 Webinar Recordings Available
3002.1 Proposed Rule Changes: The Webinar 12/16/21
3002.1 The Dialogue Continues Produced 1/14/22
24 Days Left to Submit Your Comments
to the Rules Committee
Access to webinar recorders is benefit of subscription. Not a Subscriber? JOIN NOW!
In Sympathy – The Honorable Jerome Feller
- Click here for Official Announcement
- Click here for Obituary
Positions Available
- Middle District of Louisiana – Bankruptcy Judge (Baton Rouge) Application Deadline 2/25/22
- Northern District of Ohio – Term Law Clerks Application Deadline 2/11/22
Student Loans Chronicles
- CFPB to Examine Colleges’ In-House Lending Practices – CFPB Publishes Oversight Protocols for Institutional Student Lending
From NCBRC
For Your Blog
- Navy Program Providing Financial Assistance for Military Families – With the end of the Child Tax Credit, a program offers assistance to military families in need of financial help and guidance.
From the Courts
- Warren E. Burger Federal Building and U.S. Courthouse in St. Paul will be closed starting January 20 through approx. February 18, 2022 due to a criminal trial.
- District of Rhode Island – NEW Homeowner Assistance Fund
- Eastern District of TN – NextGen Live March 7th
- District of MD – NextGen Live February 14th
- Western District of PA – January 18 is your turn to upgrade to NextGen
Sanctions and Irony and Fraud, Oh My!
- CFPB Sues United Holding Group, Its Affiliates, and Its Owners for Illegal Debt Collection Practices – The debt collection company and its owners knowingly used third-party collectors that engaged in unlawful and deceptive tactics
IN CASE YOU MISSED IT. . .
When is Enough, Enough? Pro Se Dismissed with Extended Prejudice (and Violates Bar)
. . . “Judge Larson provides a road map including several useful cases for Trustees and creditors to consider when faced with a vexatious and frivolously litigious debtor and what to do if they violate court orders.”
IN THE NEWS (Not password protected)
Obituary of Susanne Marie Robicsek – Consumer Attorney from Charlotte, NC.
Bankruptcy Rulings Could Inform Financial Planning Decisions – Court cases expanded on the rules regarding the protection of retirement plan assets.
MORTGAGES AND DEEDS OF TRUST (Not password protected)
What will servicing look like in 2022? Communication, borrower education and training of consumer-facing staff are critical
OF INTEREST (Not password protected)
Going, Going, Gone: Third Circuit Confirms Auction Outcome Can Be Strong Evidence of Fair Value (Chpt 11 case but may have 7/13 application.)
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January 17, 2022
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Archives |
Director of U.S. Trustee Program to Retire
1/13/22 the Justice Department announced the retirement of Clifford White, the Director of the Justice Department’s U.S. Trustee Program, which oversees the administration of bankruptcy cases, effective March 31, 2022.
Critical Case Comment – Funds on Hand at Dismissal Go to Debtor. Not So Fast. 13 Trustee May Be Subject to State Court Proceedings
While a 13 trustee is partially insulated by the Barton doctrine from being dragged into state court, if a movant seeks authority from the Bankruptcy Court to pursue the trustee and satisfies the conditions of the Barton doctrine, the trustee may be subject to state court judicial proceedings.
When is Enough, Enough? Pro Se Dismissed with Extended Prejudice (and Violates Bar)
. . . “Judge Larson provides a road map including several useful cases for Trustees and creditors to consider when faced with a vexatious and frivolously litigious debtor and what to do if they violate court orders.”
Good Stuff Out of Max Gardner’s 12/29 Webinar
Notice of Error Regarding Misinformation Given During Phone Call to Mortgage Servicer
Response to NOE from Loan Servicer
A note from Max: If you want to sign up for the videos (free through Jan 31, 2022) go to https://maxconsumerdefenseacademy.com/ and click on the menu tab MAX ON ZOOM. Scroll down to HOLIDAY OFFER and create a new account (even if you have an existing account you must create a new one–you can use your same email address, but a new password). If you sign up for the Holiday Offer, I will add you to another Box.com folder of materials that correspond with these videos.
Webinar Recordings Available:
3002.1 Proposed Rule Changes: The Webinar 12/16/21
3002.1 The Dialogue Continues Produced 1/14/22
Access to webinar recorders is benefit of subscription. Not a Subscriber? JOIN NOW
NCLC Seeks Signers Urging Foreclosure Pause When HAF Applied For
NCLC seeking non-profit organizations to sign two letters (one to the CFPB and one to FHFA, FHA, VA, and USDA) urging the agencies to require servicers to pause foreclosure activity for at least 60 days after being notified that a borrower has applied for HAF assistance and meets conditional program eligibility. Deadline to sign the letter is C.O.B. Wednesday, January 19, 2022.
Second Circuit Decides Mortgage Servicing Issue
In Naimoll v. Ocwen Loan Servicing, LLC, the Second Circuit construed the catch-all provision of Regulation X, 12 C.F.R. § 1024.35, as being broad enough to cover the servicing errors alleged by the borrower.
See also:
Second Circuit Court of Appeals ruling in Ocwen/PHH case is major victory for homeowners, landmark decision will expand, strengthen RESPA, Regulation X protections
From Above the Law
- A Step-By-Step Guide to Disaster-Proofing Your Business (Not many of you clicked this link so I’m leaving it in another week – you know you need to glance at this and get to work on your own Disaster Preparedness Plan!)
Positions Available
- Middle District of Louisiana – Bankruptcy Judge (Baton Rouge) Application Deadline 2/25/22
- Northern District of Ohio – Term Law Clerks Application Deadline 2/11/22
From the CFPB
- CFPB Issues Bulletin to Prevent Unlawful Medical Debt Collection and Credit Reporting – New Law Limits Surprise Medical Bills
- CFPB Fall Supervisory Highlights Shed Light on Agency Priorities – Mortgage Servicing Loss Mitigation Violations
For Your Blog
- . . . Still Not Blogging? You are missing a potential revenue stream.
From the Courts
- Western District of PA – January 18 is your turn to upgrade to NextGen
Sanctions and Irony and Fraud, Oh My!
- Munster Woman Ordered to Pay Over $80,000 in Restitution to Chapter 13 Bankruptcy Trustee (Great job Trustee Chael!)
- Attorney Accused of ‘Extreme and Egregious’ Behavior Over Harassing Emails to Biglaw (Not bankruptcy related but, um, interesting, yeah, that’s the word, interesting.)
IN CASE YOU MISSED IT. . .
Do I Really Have to Tell the Trustee About Newly Acquired Assets?
It has long been a vexing question for Trustees and attorneys alike: do Debtors have to disclose assets acquired post-petition? Chief Bankruptcy Court Judge John Waites has presented his take on this issue and concluded, with some important exceptions, that they do not, but be sure to read the Note at the end of this case.
IN THE NEWS (Not password protected)
From Tennessee: ‘No Surprises Act’ Puts a Stop on Unexpected Medical Bills
A New App Makes It Easier for People with Medical Debt to Declare Bankruptcy (Oy vey! But Shout Out to ConsiderChapter13.org subscriber Cindy Podis!)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
CFPB Fall Supervisory Highlights Shed Light on Agency Priorities – Mortgage Servicing Loss Mitigation Violations
Black Knight MSP Vendor List (It doesn’t really look like a list but it is.)
DEBT AND THE ECONOMY (Not password protected)
173K Applied for Rent Aid in Michigan. About half got help so far
OF INTEREST (Not password protected)
From Harvard.edu – The Case for Bankruptcy Court Discretion to Shift Attorney’s Fees
App Attempts to Break Barriers to Bankruptcy for Those in Medical Debt (Heads up: thisApp is Upsolve – this story seems to be being republished all over the country.)
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January 10, 2022
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Archives |
Do I Really Have to Tell the Trustee About Newly Acquired Assets?
It has long been a vexing question for Trustees and attorneys alike: do Debtors have to disclose assets acquired post-petition? Chief Bankruptcy Court Judge John Waites has presented his take on this issue and concluded, with some important exceptions, that they do not, but be sure to read the Note at the end of this case.
On More Effective Writing
“Defined Terms Are Not Your Friend. Lawyers love defined terms.”
Although specifically written to attorneys in his court, Judge Kimball addresses a national issue – verbose,v ague and illogical writing patterns. In a short, humorous way, he gives a fantastic primer on writing motions and responses.
FREE WEBINAR REGISTER NOW
Friday, January 14th at 2 Eastern
3002.01 The Discussion Continues
Join our panel of experts as they expound on the discussion began in our webinar on December 16th entitled 3002.1 Proposed Rule Changes: The Webinar which is now available for viewing*.
Panelists:
Debra L. Miller – “Conduit” Chapter 13 Trustee
Marie-Ann Greenberg – “Non-Conduit” Chapter 13 Trustee
Hilary B. Bonial, Esq. – Bonial & Associates, P.C.
Access to webinar recorders is benefit of subscription to ConsiderChapter13.org. Not a Subscriber? JOIN NOW!
Chapter 12 in the News
From Above the Law
Positions Available
Northern District of Ohio – Term Law Clerks Application Deadline 2/11/22
From the CFPB
- CFPB Shutters Lending by VC-Backed Fintech for Violating Agency Order – Google Ventures, Andreessen Horwitz, Kleiner Perkins, and other prominent venture capital firms invested in LendUp (Attention: Debtor Attys – this one seems a little more of interest than most of these CFPB notices.)
From NCBRC
For Your Blog
- IRS Sending Letters to Advance Child Tax Credit Recipients – Recipients urged tohold onto them for preparing their 2021 federal tax returns in 2022.
- IRS News from Around the Nation (All on one page, by state, you can quickly see when federal taxes are due if extensions have been granted due to natural disasters.)
From the Courts
- Western District of TX Austin Division – Amended Standing Order for Chapter 13 Case Administration for the Austin Division Effective in all Cases Filed on and after January 1, 2022
- Northern District of IL – New Chapter 13 Mortgage Modification Mediation Program
- District of KS – Proposed Changes to Local Rules – Comments due by 1/10/22
- Southern District of MS – Amendment to Standing Order Re: Payment of Attorney Fees in Chapter 13 Cases
- Northern District of MS – Amended Standing Order – Payment Of Attorney Fees In Chapter 13 Cases
- District of CO – Local Rule Amendments
- Eastern District of OK – New Hearing Date Procedure
- District of SC – Request for Comment on the Local Form Chapter 13 Plan and CM/ECF Event Changes
- District of MN – New Chpt 13 Plan Form effective 1/1/22
- Western District of PA – January 18 is your turn to upgrade to NextGen
Sanctions and Irony and Fraud, Oh My!
- Former NFL Star Clinton Portis Seeks to Avoid Prison Time for Fraud; Federal Prosecutors Seek 10-16 Months
- Trustee in Tomaszewski Bankruptcy Seeks Order to Obtain Tax Refunds – Click here for a background article
- Convicted House-Flippers Now Face Rent Fraud Charges (Juicy but not bankruptcy related.)
- Police Say Utah Businessmen Took $888K from Customers, Never Delivered a Trailer (Somewhat interesting but not bankruptcy related.)
- Reagor in Deeper Trouble Than Previously Thought, Feds Seek Even More Than 30 Years Prison Time (Not particularly exciting past the headline unless you are already familiar with the case.)
IN CASE YOU MISSED IT. . .
Judicial Year in Review 2021
In Part 1, Larry Ahern summarized the changes in Bankruptcy Rules that took effect December 1, 2021. In Parts 2 and 3, he selected some judicial activity related to bankruptcy procedure during the past year. Part 4 is selected cases under Parts VIII and IX of the Federal Rules of Bankruptcy Procedure
IN THE NEWS (Not password protected)
From Tennessee: ‘No Surprises Act’ Puts a Stop on Unexpected Medical Bills
A New App Makes It Easier for People with Medical Debt to Declare Bankruptcy (Oy vey! But Shout Out to ConsiderChapter13.org subscriber Cindy Podis!)
MORTGAGES AND DEEDS OF TRUST (Not password protected)
CFPB Fall Supervisory Highlights Shed Light on Agency Priorities – Mortgage Servicing Loss Mitigation Violations
About 50% of Seriously Delinquent Homeowners Lack Loss Mitigation Plan (From NationalMortgageNews.com – if not a subscriber you will have to create a guest account to read the entire article.)
BY THE NUMBERS (Not password protected)
MILITARY MATTERS (Not password protected)
DEBT AND THE ECONOMY (Not password protected)
OF INTEREST (Not password protected)
Owner of Olympus Pools Asks Bankruptcy Judge to Toss Millions in Claims from State, Customers – Attorneys disagree over whether these business claims are relevant in personal bankruptcy case
Plumbing of the World’s Financial System Has Been Replaced — And Almost Nobody Noticed (The LIBOR rate is gone.)
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January 3, 2022
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Archives |
2022 – Really???
It doesn’t seem possible that it is the year Two Thousand and Twenty-Two!
Since 2008, The Academy d/b/a ConsiderChapter13.org has brought you the cutting edge of trends, developments, and case law in consumer bankruptcy.
Here’s to a long future of more of the same.
In the coming weeks we have a lot to look forward to: The Limits of Judicial Grace and Patience; More Effective Writing; Sunset Provisions; “Technical” Stay Violation Can Still Cost . . . A Lot; Yes, You Have to Tell The Trustee about New Assets; Trustees’ Compensation; and MUCH MUCH MORE.
New Region 21 UST
Mary Ida Townson Appointed U.S. Trustee for Florida, Georgia, Puerto Rico and the U.S. Virgin Islands
(Used with permission from the Courthouse Beacon News, Southern District of Florida)
Mark Your Calendar for Another FREE Webinar
3002.01 The Discussion Continues
Join our panel of experts on Friday, January 14th at 2 Eastern for a continued discussion of the proposed changes to Federal Rule 3002.1. Watch for registration information.
Access to webinar recorders is benefit of subscription to ConsiderChapter13.org. Not a Subscriber? JOIN NOW!
