In the absence of bad faith, post-petition appreciation does not enter the chapter 7 estate upon conversion from chapter 13. Rodriguez v. Barrera (In re Barrera), No. 20-1376 (10th Cir. Jan. 9, 2022). NCBRC filed an amicus brief on behalf of the NACBA membership in support of the debtor in this case. When the debtors […]
Author Archives: NCBRC
Estate Cannot Continue To Collect Trust Distributions after Debtor Dies
January 26, 2022 – 6:40 pm
The bankruptcy court erred in finding that the portion of the debtor’s interest in ongoing Trust distributions that were part of the bankruptcy estate would continue to enter the bankruptcy estate after the debtor died and the Trust was distributed to his children. In re Rens, — B.R. —-, 2021 WL 5049829 (B.A.P. 9th Cir. […]
Debtor Not Entitled to Attorney Fees Under State Statute for Alleged Bankruptcy Misconduct
January 19, 2022 – 4:36 pm
The debtor was not entitled to an award of attorney fees under a state fee-shifting provision when she prevailed on her opposition to the creditor’s time-barred claims where the bankruptcy litigation was not connected to the substance of the claims but was a procedural issue dependent on misconduct of parties or attorneys and, therefore, federal […]
No Stay in Effect where Co-Debtor Had Two Previous Cases within Year of Filing
January 13, 2022 – 5:33 pm
No stay arose in the bankruptcy case as to either the debtor husband or the debtor wife, where the husband had filed and dismissed two cases in the preceding year, in which the wife had not joined, and then the husband and wife filed the present joint case. In re Koval, No. 1:21-bk-11170 (Bankr. C.D. […]
ACTC and EITC Tax Refund Exempt under Washington Law
January 6, 2022 – 5:40 pm
The debtor’s tax refund consisting of her Earned Income Tax Credit (EITC) and Additional Child Tax Credit (ACTC) falls under the category of “public assistance” within the meaning of Washington’s exemption law and is therefore exempt from distribution to creditors in bankruptcy. Ellis v. Moreno (In re Moreno), No. 21-1124 (B.A.P. 9th Cir. Dec. 23, […]
Faxed Copies of IRS Tax Adjustments Not a “Return” for Discharge Purposes
January 4, 2022 – 1:56 pm
The debtor’s faxed copies of the IRS adjustment to his federal taxes did not constitute a “return” within the meaning of section 523(a)’s hanging paragraph because the California law process with which his faxes complied was not “similar” to 26 U.S.C. § 6020(a), which authorizes the IRS to prepare a tax return when a taxpayer […]
Discharge Despite Unpaid Mortgage Fees
December 23, 2021 – 1:44 pm
The chapter 13 debtor was entitled to discharge despite the fact that she had incurred but not paid fees and assessments under her mortgage contract while she was paying the mortgage outside the plan, where the creditor had not sought payment of those fees and assessments prior to plan completion. In re Brown, — B.R. […]
Debtor Entitled to Attorney Fees from Defense of Motion for Relief from Stay
December 20, 2021 – 4:35 pm
The chapter 13 debtor was entitled, under Oregon’s reciprocal fee statute, to recover attorney fees for successfully defending a motion for relief from stay where the motion required interpretation of the terms of the motor vehicle lease. In re Gilgan, 2021 WL 4047463 (Bankr. D. Or. Sept. 3, 2021) (case no. 19-32009).
Debtor Lacked Standing to Appeal Order Approving Agreement between Trustee and Creditor
December 13, 2021 – 6:14 pm
The debtor lacked standing to appeal the bankruptcy court’s order approving an agreement between the chapter 7 trustee and a creditor under which the creditor agreed to fund litigation on behalf of the bankruptcy estate, where the order would not have a direct, adverse, financial effect on the debtor. Dean v. Seigel (In re Dean), […]
Pre-Petition Increase in Retirement Account Contributions
December 9, 2021 – 2:28 pm
A chapter 13 debtor’s post-petition contributions to his qualified retirement account may be deducted from the calculation of his projected disposable income and the amount of those contributions is presumed to be the average contribution made during the six months preceding bankruptcy. Where, as here, the debtor substantially increased his contributions on the eve of […]
