National Consumer Bankruptcy Rights Center
Protecting The Rights Of Consumer Debtors In Bankruptcy
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Finding that it encroached on a below-median debtor’s substantive rights, the Fifth Circuit invalidated a local form chapter 13 plan provision that required all debtors to turn over any tax refund in excess of $2,000. Diaz v. Viegelahn, No. 19-50982 (5th Cir. Aug. 26, 2020).
NCBRC filed an amicus brief on behalf of the NACBA membership in support of the debtor in this case. [Read more…] about Texas District’s Treatment of Tax Refund In Chapter 13 Invalidated
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An educational benefit is not a student loan for nondischargeability purposes under section 523(a)(8)(A)(ii). McDaniel v. Navient Solutions, LLC, No. 18-1445 (10th Cir. Aug. 31, 2020).
When the debtors filed their chapter 13 petition, they had many outstanding student loans including six private educational loans held by Navient totaling approximately $107,000 (the Loan). The trustee objected to confirmation of the plan citing its failure to provide for nondischargeable student loans. The debtors filed an amended plan specifically to correct certain inaccuracies not related to student loans. They also added the provision that “[s]tudent loans are to be treated as an unsecured Class Four claim or as follows: deferred until end of plan.” The plan defined unsecured Class Four claims as “[a]llowed unsecured claims not otherwise referred to in the Plan.” Navient agreed that class four claims were dischargeable. [Read more…] about 10th Circuit – Student Loan Not Excepted from Discharge as Educational Benefit
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A debtor’s social security income is a proper factor to consider in an abuse analysis under section 707(b)(3)(B) and in a good faith analysis under section 1325(a)(3). Meehean v. Vara (In re Meehean), No. 20-10380 (E.D. Mich. Aug. 18, 2020).
When they filed their chapter 7 petition, debtors listed $5,842 in monthly income ($4,007 in Social Security benefits and $1,835 in pension income) and $4,446 in monthly expenses. They had $142,871 in secured mortgage debt and $43,100 in unsecured non-priority debt. The trustee moved to dismiss the petition as an abuse of bankruptcy, arguing that, if the debtors committed their social security income to a chapter 13 plan, they could pay off their unsecured debt over five years. The bankruptcy court agreed and granted the trustee’s motion. In re Meehean, 611 B.R. 574 (Bankr. E.D. Mich. 2020).
The debtors appealed to the district court arguing that the bankruptcy court erred by considering social security income as a factor in a totality of circumstances test for abuse of bankruptcy under section 707(b)(3)(B). [Read more…] about Social Security Benefits May Be Considered for Abuse under 707 and Good Faith under 1325
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The Bankruptcy Appellate Panel for the Tenth Circuit found that the bankruptcy court erred when it declined to exercise its exclusive jurisdiction to determine whether state causes of action raised by investors in the debtor’s pre-bankruptcy Ponzi scheme belonged to the Debtor’s bankruptcy estate: an issue which the panel found was “central to whether the investors had standing to pursue those claims and whether they violated the discharge injunction” by doing so. Hafen v. Adams (In re Hafen), No. 19-31 (B.A.P. 10th Cir. July 30, 2020). [Read more…] about Standing to Bring Claims in State Court Relating to Estate Property
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The Ninth Circuit found that a debtor who assumes a lease under Section 365(p) of the Bankruptcy Code waives her right to discharge of debt arising out of that lease. Bobka v. Toyota Motor Credit Corp., No. 18-55688 (9th Cir. Aug. 3, 2020).
The debtor filed her chapter 7 petition in 2016. She had an ongoing lease with Toyota Motor Credit on her Toyota Rav4. The trustee opted not to assume the lease. In September 2016, the debtor called Toyota about keeping the vehicle. Toyota agreed and sent her and her attorney a lease assumption agreement. She did not return the agreement until December 5, well more than 30 days after she orally told Toyota she wanted to keep the vehicle. The next day, the debtor received her bankruptcy discharge. [Read more…] about 9th Circuit Equates Lease Assumption with Waiver of Discharge
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In a lengthy decision addressing a challenge to its order reopening the debtor’s chapter 13 case, a Bankruptcy Court for the District of South Carolina found that the debtor had no duty under the Bankruptcy Code or Rules to disclose a lawsuit that accrued and was filed post-confirmation. In the face of a judicial estoppel defense raised by the Defendants in the debtor’s state personal injury lawsuit, the court stated, “[w]ithout such a duty or knowledge that one existed, Debtor cannot be found to have acted intentionally to mislead this Court.” In re Boyd, No. 13-2924 (Bankr. S.C. July 17, 2020). [Read more…] about Great Decision on Judicial Estoppel
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The discharge injunction does not prohibit a lienholder from seeking value for release of its lien so long as, under the specific facts of the case, its conduct is not an improper attempt to coerce repayment of the discharged debt. Bentley v. OneMain Financial Group, No. 19-8026 (B.A.P. 6th Cir. July 8, 2020). [Read more…] about Lienholder May Seek Value for Post-Discharge Release of Lien
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The bankruptcy court had personal jurisdiction over the IRS when the debtor mailed a copy of his objection to the address given with the proof of claim in accordance with Rule 3007, rather than serving the IRS through the Attorney General as required for contested motions under Rules 9014 and 7004. Nicolaus v. United States, No. 19-1155 (8th Cir. July 6, 2020). [Read more…] about Debtor’s Service of Objection to the IRS’s Proof of Claim was Proper
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Finding that “[a] bankruptcy court may confirm a plan that holds property in the estate only after finding good case-specific reasons for that action,” and signaling exasperation with the whole topic, Judge Easterbrook of the Seventh Circuit reversed the bankruptcy court’s order of confirmation of the debtors’ plan in which they opted not to have their vehicles revest in themselves post-confirmation. Cherry v. City of Chicago, No. 19-1558 (7th Cir. July 6, 2020). [Read more…] about “Good Reason” Required to Not Revest Property in Debtor after Plan Confirmation
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In an important win for debtors, the Ninth Circuit held that “no express provision of Chapter 13, even when viewed in the context of its broader structure, prohibits plans with estimated lengths.” In re Sisk, No. 18-17445 (9th Cir. June 22, 2020) (reported below as In re Escarcega). In an opinion in which the circuit court adopted the bulk of the debtors’ arguments, the court reversed and vacated the BAP’s holding that the Bankruptcy Code imposes an implied temporal requirement on all initial Chapter 13 plans. [Read more…] about Chapter 13 Plan Need not Be of Fixed Duration