A Bankruptcy Appellate Panel for the Ninth Circuit found that debt based on expenses incurred by the county juvenile justice system for the care of the debtor’s son while incarcerated is nondischargeable Rivera v. Orange County Probation Dept. (In re Rivera), No. 13-1476 (B.A.P. 9th Cir. June 4, 2014). [Read more…] about Debt for Fees Related to Incarceration of Minor Not Dischargeable
Child Support Properly Deducted from Means Test
The debtor properly excluded $400.00/month in child support payments from her calculation of disposable income despite deducting child care expenses elsewhere on the means test. Clark v. Brooks (In re Brooks), No. 14-1031 (C.D. Ill. July 21, 2014). [Read more…] about Child Support Properly Deducted from Means Test
Cybersquatting Judgment Results in Nondischargeable Debt
A million-dollar-plus district court judgment against the debtor for intentional trademark infringement and cybersquatting resulted in a nondischargeable debt in bankruptcy under section 523(a)(6). Nguyen v. Biondo (In re Biondo) No. 13-1612 (Bankr. S.D. Fla. June 13, 2014). [Read more…] about Cybersquatting Judgment Results in Nondischargeable Debt
No Compelled Title Transfer for Surrendered Property. But . . .
A debtor may not require a secured creditor to take title to surrendered property. However, the creditor’s failure to object to the transfer of title may be construed as acceptance of the deed. In re Rose, No. 12-40743 (Bankr. W. D. N.C. July 8, 2014). The issue came before the court on the debtors’ motion to quitclaim the deed to their residence to the mortgagee, Small Business Association (SBA). [Read more…] about No Compelled Title Transfer for Surrendered Property. But . . .
Inadvertence as Subjective/Objective Question in Judicial Estoppel Analysis
In the context of judicial estoppel, courts are divided on the issue of whether, for purposes of analyzing the defense of mistake or inadvertence, a plaintiff’s subjective intent matters. Several recent cases touch on this issue. [Read more…] about Inadvertence as Subjective/Objective Question in Judicial Estoppel Analysis
Debtors Enjoying Growing Consensus on Chapter 20 Lien Strip Cases
Following closely on the heels of the Eleventh Circuit decision in In re Scantling, the BAP for the Sixth Circuit held that chapter 20 debtors may strip liens despite the unavailability of discharge. In re Cain, No. 13-8045 (July 14, 2014). [Read more…] about Debtors Enjoying Growing Consensus on Chapter 20 Lien Strip Cases
Eviction Is Violation of Stay even after Pre-Petition Foreclosure Sale
A debtor’s possessory interest in property sold through foreclosure is sufficient to support a cause of action for violation of the automatic stay even though that interest may have been insufficient to withstand a motion for relief from stay. Eden Place v. Perl (In re Perl), No. 13-1328 (B.A.P. 9th Cir. May 30, 2014). [Read more…] about Eviction Is Violation of Stay even after Pre-Petition Foreclosure Sale
Filing of Stale Claims in Bankruptcy Violates FDCPA
Addressing what it termed a “deluge that has swept through U.S. bankruptcy courts,” the Eleventh Circuit took on the question of “whether a proof of claim to collect a stale debt in Chapter 13 bankruptcy violates the Fair Debt Collection Practices Act (“FDCPA” or “Act”). 15 U.S.C. §§ 1692−1692p (2006). Based on the broad language of the FDCPA, Eleventh Circuit precedent, and the record before it, the court found that it does. Crawford v. LVNV Funding, No. 13-12389 (11th Cir. July 10, 2014). [Read more…] about Filing of Stale Claims in Bankruptcy Violates FDCPA
Claim Forms Available in Ocwen Settlement
In December, 2014, Ocwen Financial Corporation and Ocwen Loan Servicing entered into a consent order with 49 States and the District of Columbia to provide $2 billion in principal reduction to underwater borrowers and provide $125 million to foreclosure victims as a result of Ocwen’s systemic misconduct at every stage of the mortgage servicing process. Notice packages have now been mailed to affected borrowers and The National Ocwen Settlement Administrator, responsible for handling settlement claims, has created a website with information for consumers who were harmed by Ocwen’s actions. In addition, the CFPB has posted instructions for filing claims under the settlement agreement in its blog.
Circuit Split on Undistributed Funds at Time of Conversion
Relying on policy and equity considerations, the Fifth Circuit found that funds paid into a plan but not yet distributed at the time of conversion should be distributed to creditors. Viegelahn v. Harris (In re Harris), No. 13-50374 (5th Cir. July 7, 2014) (disagreeing with In re Michael, 699 F.3d 305 (3d Cir. 2012)). [Read more…] about Circuit Split on Undistributed Funds at Time of Conversion