Under section 1322(b)(9), the chapter 13 plan may provide for vesting of title to property that the debtor has surrendered in an entity (the mortgagee) without that entity’s consent. In re Watt, No. 14-31295 (Bankr. D. Or. Oct. 15, 2014).
Author Archives: NCBRC
Late Proof of Claim Amendment Rejected
November 6, 2014 – 9:41 pm
A proof of claim amendment filed after the debtor successfully completed his chapter 13 plan was too late to increase the mortgage arrears. In re Mason, No. 10-4195, 2014 WL 5502385 (Bankr. S.D. Miss. Oct. 30, 2014).
Nevada Banks Take a Gamble when it Comes to HOA Liens
November 4, 2014 – 9:36 pm
In a 4-3 decision, the Nevada Supreme Court decided that Nev. Rev. St. 116.3116 gives a homeowners’ association (HOA) a superpriority lien based on certain unpaid dues and assessments so as to extinguish the first deed of trust upon foreclosure. SFR Investments Pool v. U.S. Bank, No. 63078 (Nev. S. Ct. Sept. 18, 2014). The […]
Violation of Discharge Injunction and Abuse of Process
October 31, 2014 – 9:34 pm
There is no private right of action for violation of the discharge injunction but a debtor may move for contempt in the main bankruptcy case. An abuse of process action, however, may be brought in an adversary proceeding and be established by repeated use of protected personally identifiable information of debtors to file unenforceable proofs […]
Compassion Wins the Day in Modification Case
October 28, 2014 – 9:30 pm
The bankruptcy court properly exercised its discretion when it found that the chapter 13 debtor did not have to contribute the life insurance proceeds he received upon the death of his wife to repay his creditors in full, where the funds were necessary to his support. <i>Townson v. McAllister (In re McAllister),</i> No. 14-106 (N.D. […]
Court Gets it Wrong in Cure and Maintain Case
October 24, 2014 – 9:19 pm
Contrary to the principle that “cure and maintain” permits a residential loan debtor to return to status quo ante, the Bankruptcy Court for the Eastern District of North Carolina found that while operation of section 1322(b)(5) reverses a loan acceleration, it does not reverse other contractual consequences of default; specifically an increased interest rate. In […]
Strained Reading of “Derived During” Boots Chapter 7 Case
October 21, 2014 – 9:06 pm
The Tenth Circuit BAP interpreted the phrase “derived during” to mean that all income received during the 6-month look-back period be included in the current monthly income calculation. Based on this, the court found that the debtor was above-median and his chapter 7 case presumptively abusive under section 707(b)(2). When the debtor failed to convert […]
CashCall’s Use of Tribal Arbitration under Attack
October 17, 2014 – 8:55 pm
An arbitration clause is not enforceable when the specified forum is unavailable. So said the Eleventh Circuit Court of Appeals in Inetianbor v. CashCall, Inc., __ F.3d __, 2014 WL 4922225 (11th Cir. Oct. 2, 2014).
Post-Petition Equity Goes to Debtor upon Conversion
October 13, 2014 – 5:24 pm
Equity created by payments into a chapter 13 plan belongs to the debtor upon conversion to chapter 7. In re Hodges, No. 13-361 (E.D. Tenn. Sept. 29, 2014).
Trustee Fee Cut Where No Meaningful Distribution
October 8, 2014 – 5:21 pm
In three consolidated chapter 7 cases, the Bankruptcy Court, finding that carve-out or short sale agreements did not lead to any meaningful distribution to creditors, reduced the trustee’s fee by 50% of the requested amount. In re Scoggins, No. 12-42158 (Bankr. E.D. Cal. Sept. 8, 2014) (the court approved the fee request in a fourth, […]
