Two recent cases deal with the determination good faith in the context of a chapter 13 plan modification. In re Martin, No. 10-64790 (Bankr. N.D. Ohio November 27, 2013) and In re Maxwell, No. 11-17873 (Bankr. E.D. Cal. Nov. 8, 2013). [Read more…] about Good Faith in the Plan Modification Context
No Bad Faith in Failure to Modify
It is not bad faith for a debtor to fail to move to modify her chapter 13 plan to take into account post-confirmation increased equity in her residential property. In re Garajau, 10-18478 (Bankr. D. Mass. Sept. 30, 2013). [Read more…] about No Bad Faith in Failure to Modify
Judge Johnson’s Dismissal of Chapter 13 Reversed by District Court
The mean-spirited, and legally insupportable approach to chapter 13 cases that led to denial of confirmation and dismissal of the debtor’s case in In re Mycek, has been reversed and remanded by the district court for the Central District of California. No. 12-369 (C.D. Cal. Oct. 22, 2013). [Read more…] about Judge Johnson’s Dismissal of Chapter 13 Reversed by District Court
Creditor Lacks Standing to Move for Dismissal under 707(b)
In In re Gandy, No. 11-30369 (Bankr. E.D. Tenn. July 12, 2013), the court found that a creditor had no standing under section 707(b) to seek dismissal of a chapter 7 petition, after conversion from chapter 13, where debtor’s petition documents showed him to be below-median. [Read more…] about Creditor Lacks Standing to Move for Dismissal under 707(b)
Beaulieu v. Ragos, No. 11-31046 (5th Cir.)
Type: Amicus
Date: March 27, 2012
Description: Whether social security income may be considered in good faith analysis or for purposes of confirming plan over objection of trustee.
Result: Judgment affirmed. Debtor won.
New Jersey Supreme Court Finds Post-Foreclosure-Judgment Agreement Subject to CFA
In Gonzalez v. Wilshire Credit Corp., (A-99-09) (065564) (N.J. Sup.Ct., August 29, 2011), the New Jersey Supreme Court found that the state Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, applies to a post-foreclosure-judgment agreement.In that case, the debtor, an uneducated, disabled woman, who neither spoke nor read English, entered into two new agreements with the servicer of the mortgage secured by her residence. The second agreement specified arrearages greater than the amount found by the trial court, and “packed” the loan with force placed insurance. The court rejected the lender’s characterization of the agreement as a settlement of the foreclosure action and instead determined that the post-judgment agreement was an extension of credit in and of itself and, therefore, constituted a new loan which was subject to the CFA’s prohibition against unconscionable practices. The court noted that the realities of the mortgage industry, in which the original mortgagee rarely continues to hold and service the loan, did not insulate the servicer from the consequences of its fraudulent lending practices. In reaching its conclusion the court cited the article co-authored by NCBRC’s Tara Twomey relating to the role of a servicing agent in the mortgage industry. Adam J. Levitin & Tara Twomey, Mortgage Servicing, 28 Yale J. on Reg. 1, 15, 23, 25-28 (2011).
Opinion