Posted by NCBRC - December 13th, 2022
Kentucky’s Office of Unemployment Insurance’s claim for an overpayment of unemployment compensation benefits was not entitled to priority in the debtor’s chapter 13 case where the nature of the claim was better characterized as a “penalty” than a “tax.” In re Clardy, No. 22-30089 (Bankr. W.D. Ky. Dec. 1, 2022). Read More
Posted by NCBRC - December 9th, 2022
The winner? Confirmed plan. Where the mortgagee had notice and opportunity to object to confirmation of the debtors’ chapter 13 plan providing for mortgage arrears in the amount of approximately half the mortgagee’s allowed proof of claim, the mortgagee could not be heard, at the debtors’ successful completion of their plan, to complain that the debtors still owed pre-petition arrears. In re Edelstein, No. 17-11461 (Bankr. N.D. Ill. Nov. 7, 2022). Read More
Posted by NCBRC - December 7th, 2022
A fee agreement that purports to attach an attorney’s lien on the debtor’s exempt personal property is unenforceable under section 526(a) where state law allows such liens only on non-exempt property or on exempt personal property for specified exceptions not including attorney’s fees. In re Turner, No. 22-41570 (Bankr. D. Minn. Dec. 2, 2022). Read More
Posted by NCBRC - December 2nd, 2022
Faced with the question of whether the debtor’s tax debt based on a late-filed tax return was excepted from discharge, the circuit declined to reexamine its holding in Fahey where it applied the strict “one day late” rule, found the debtor waived his argument in support of an objective test that does not consider timing of filing, and instead, held the debtor’s late-filed tax return did not meet Beard’s subjective test for a “return.” In re Kriss, 21-1206 (1st Cir. Nov. 22, 2022). Read More
Posted by NCBRC - November 30th, 2022
For purposes of lien avoidance under section 522(f), the debtor was able to claim a homestead exemption in the amount of the California exemption in effect at the time of his bankruptcy petition, despite California law that fixed the exemption amount at the time of lien creation. Barclay v. Boskoski (In re Boskoski), No. 22-55098 (9th Cir. Nov. 14, 2022). Read More
Posted by NCBRC - November 28th, 2022
In a succinct opinion, the Ninth Circuit reaffirmed its 2004 decision that Congress abrogated tribal sovereign immunity with respect to the automatic stay. Numa Corp. v. Diven, No. 22-15298 (9th Cir. Nov. 14, 2022) (unpublished).
NCBRC and NACBA filed an amici brief in support of the debtor in this case. Read More
Posted by NCBRC - November 17th, 2022
A bankruptcy court rejected the tax lender’s challenge to the district’s Mandatory Form Chapter 13 Plan where it found the lender, whose claim would be fully paid through that plan, simply did “not want this Court’s oversight in approving claims for reimbursement for any post-petition expense charges.” In re Martin, No. 22-30148 (Bankr. S.D. Tex. Nov. 14, 2022). Read More
Posted by NCBRC - November 14th, 2022
A pawn agreement requiring the borrower to affirm that she was not in bankruptcy and did not intend to file for bankruptcy was not unenforceable as against public policy because the agreement did not commit the borrower to an agreement not to file for bankruptcy at a later date. TitleMax v. Roby, No. 21-630 (M.D. Ala. Sept. 19, 2022). Read More
Posted by NCBRC - November 11th, 2022
The “estate termination theory” allows the debtors to retain proceeds from the post-confirmation sale of prepetition property, where the value of the property appreciated and was sold after the property had revested in the debtors. In re Klein, No. 17-19106 (Bankr. D. Colo. Aug. 23, 2022). Read More
Posted by NCBRC - November 8th, 2022
A claimed exemption for 100% of FMV is allowed when no party in interest objects despite the fact that once the property appreciated post-petition, the exemption was greater than the statutory limit. Masingale v. Munding (In re Masingale), No. 22-1016 (B.A.P. 9th Cir. Nov. 2, 2022). Read More