The Eighth Circuit found that the debtor’s retirement annuity funded by a lump sum rollover contribution from his IRA was properly exempted from his Chapter 7 bankruptcy estate. Running v. Miller (In re Miller), No. 13-3682 (8th Cir. Feb. 13, 2015). [Read more…] about Lump Sum Rollover from IRA to Annuity Not “Premium”
Debt Secured by Vehicle May Be Restructured in Chapter 20
The debtor filed for Chapter 13 relief after having received a discharge in Chapter 7 less than one year earlier. During her chapter 7 she neither reaffirmed the non-purchase money loan secured by her truck nor redeemed it. In her chapter 13, she sought to pay the debt secured by the truck, as well as other debt. The lender objected to the confirmation of the plan and sought relief from the stay to exercise its rights against the truck. The court denied the motions by the trustee and confirmed the debtor’s plan. In re Francis, No. 14-42974 (Bankr. N.D. Tex. Jan. 7, 2015). [Read more…] about Debt Secured by Vehicle May Be Restructured in Chapter 20
Lump Sum Workers’ Compensation Settlement Exempt under 522(d)(11)
Contrary to the majority opinion, proceeds of a lump sum workers’ compensation settlement were found to be exemptible under section 522(d)(11)(E), to the extent necessary for support of the debtor and his dependents. In addition, a Medicare “set aside” is not property of the estate. Carr v. Arellano (In re Arellano), No. 14-990 (Bankr. M.D. Pa. Jan. 5, 2015). [Read more…] about Lump Sum Workers’ Compensation Settlement Exempt under 522(d)(11)
Trustee May Not Reform Avoided Mortgage
While a trustee has leeway to compromise an avoidance claim under bankruptcy law, he does not have the right to change the terms of an avoided mortgage to make it more marketable for sale or settlement. In re Dupuis, No. 12-30380 (Bankr. D. Mass. Jan. 8, 2015). [Read more…] about Trustee May Not Reform Avoided Mortgage
Denial of Motion to Reopen to Amend Exemption Was Abuse of Discretion
The bankruptcy court abused its discretion when it refused to reopen the debtor’s Chapter 7 case to permit him to amend his schedules to claim his homestead exemption and seek avoidance of judicial liens. Ludvigsen v. Osborne (In re Ludvigsen), No. 14-39 (B.A.P. 1st Cir. January 16, 2015). [Read more…] about Denial of Motion to Reopen to Amend Exemption Was Abuse of Discretion
Court Turns Jaundiced Eye on Wells Fargo Robo-Mischief
Wells Fargo lacked standing to assert a claim under a Note secured by a Deed of Trust, where a forged endorsement in blank did not give it “holder” status under applicable Texas law. In re Franklin, No. 10‐20010 (Bankr. S.D. N.Y. Jan. 29, 2015). [Read more…] about Court Turns Jaundiced Eye on Wells Fargo Robo-Mischief
NACBA Weighs in on Sternberg Issue
The NACBA membership has filed an amicus brief in the Ninth Circuit case of America’s Servicing Co. v. Schwartz-Tallard (In re Schwartz-Tallard), No. 12-60052 (filed Jan. 23, 2015). The brief seeks reconsideration of that court’s 2010 decision in Sternberg v. Johnston, 595 F.3d 937 which limited the right to recover attorney fees to those incurred in the effort to terminate a stay violation, but not to the fees incurred prosecuting section 362(k) damage claims. [Read more…] about NACBA Weighs in on Sternberg Issue
Creditor’s Failure to Comply with Rule 3002.1(g) Is Basis for Violation of State Consumer Law
The district court denied PNC’s motion to dismiss the borrowers’ complaint for violations of California consumer protection laws and common law claims based on PNC’s foreclosure action after the plaintiffs completed their Chapter 13 plan. Sokoloski v. PNC Mortgage, No. 14-1374, 2014 WL 6473810 (E.D. Cal. Nov. 18, 2014). [Read more…] about Creditor’s Failure to Comply with Rule 3002.1(g) Is Basis for Violation of State Consumer Law
TILA Rescission Effective upon Notification
In a unanimous decision delivered by Justice Scalia, the Supreme Court held that so long as the borrower notifies the lender within three years of the transaction, his rescission is timely. Jesinoski v. Countrywide Homes, 574 U. S. ____ (2015), No. 13-684 (Jan. 13). [Read more…] about TILA Rescission Effective upon Notification
It’s Alive! – McCoy Adopted by Tenth Circuit
The Tenth Circuit has concluded that late-filed tax returns are not “returns” for dischargeability purposes unless filed by the IRS in cooperation with the debtor. Mallo v. IRS (In re Mallo), __ F.3d __, 2014 WL 7360130 (Dec. 29, 2014) (consolidated with In re Martin, 14-1488). [Read more…] about It’s Alive! – McCoy Adopted by Tenth Circuit