Type: Amicus Date: January 27, 2023 Description: Whether a postpetition increase in non-exempt equity in estate property belongs to the Chapter 7 estate, rather than to the debtor, where a bankruptcy case commenced under Chapter 13 is later converted to Chapter 7. Result: Pending Goetz 8th Cir BAP NACBA Amicus Jan 2023
Author Archives: NCBRC
Mortgage Statements Not Attempts to Collect a Debt
February 9, 2023 – 4:14 pm
Where statements sent by the mortgage servicer listed the higher, pre-modification amount due, but specifically stated they were not an attempt to collect a debt and did not include an amount in potential late fees, the bankruptcy court erred in finding the statements were in violation of the automatic stay. Freedom Mortgage Corp. v. Dean, […]
Extension of Stay Applies to Creditor Who Was Not Served with Motion
February 6, 2023 – 2:27 pm
The bankruptcy court properly exercised its discretion to grant an extension of stay in the debtor’s second chapter 11 case where the case was filed in good faith as to the creditors to be stayed even though one of the creditors to which the stay applied was not served with the motion. FourWs, LLC. V. […]
Right to Dismiss Despite Bad Faith or 109(e) Ineligibility
January 31, 2023 – 4:56 pm
A chapter 13 debtor’s statutory right to dismiss his bankruptcy is not precluded by bad faith or ineligibility under section 109(e). Powell v. TICO Construction Co. Inc., No. 22-1014 (B.A.P. 9th Cir. Oct. 21, 2022). TICO Construction, a judgment creditor in the debtor’s chapter 13 case, opposed the debtor’s motion to voluntarily dismiss his bankruptcy […]
UpRight Isn’t
January 26, 2023 – 4:11 pm
Although the complaint against him alleged violations of the Bankruptcy Code and he was ultimately sanctioned for ethical violations under Virginia Rules of Professional Conduct, a lawyer with UpRight was given due process in his sanctions hearing where the complaint specified the alleged misconduct and he was afforded the opportunity to prepare and present a […]
Motgagee Sanctioned for Non-Compliance with Rule 3002.1(b)
January 24, 2023 – 2:48 pm
The mortgage creditor’s failure to comply with notice requirements of Rule 3002.1(b) when escrow and interest rates changed during bankruptcy, led the court to determine that the debtors were current on their mortgage payments and to sanction the mortgagee. In re Kinderknecht, No. 17-12530 (Bankr. D. Kans. Jan. 18, 2023).
State Law Does Not Create Exemption in Trust
January 18, 2023 – 3:33 pm
A state statute protecting a trust from judgment creditors is not an exemption statute for bankruptcy purposes where it was not designated as such and it did not provide unequivocal protection against all forms of collection. In re Morris, No. 21-30468 (Bankr. N.D. Ill. Jan. 13, 2023).
Plan Confirmation Does Not Defeat Antimodification Provision
January 16, 2023 – 3:51 pm
Although the debtor’s confirmed chapter 13 plan included a provision for release of the mortgage lien upon payment of the lender’s claim, the bankruptcy court erred in releasing the lien when the claim was for arrearages only, there remained outstanding principle at the end of the plan, and the mortgagee challenged release of the lien […]
Experian Not Required under FCRA to Know Legal Validity of Debt
January 11, 2023 – 6:36 pm
Where it was not clear whether the debtor’s educational loan was included in his discharge, Experian did not violate the FCRA by reporting it as an outstanding debt. Mader v. Experian Information Solutions, Inc., No. 20-3073 (2d Cir. Jan. 4, 2023).
Non-Debtor Spouse Transfers Interest to Debtor Post-Discharge
January 5, 2023 – 3:20 pm
The debtor’s adversary complaint stated a claim under sections 522 and 524 against a creditor who pursued state court action to avoid the transfer of community property from the non-debtor spouse to the debtor after the debtor had obtained discharge of the creditor’s claim. Rhodes v. Pecanland Village Shopping Center, LLC., No. 19-31559, Adv. Proc. […]
