National Consumer Bankruptcy Rights Center

Protecting The Rights Of Consumer Debtors In Bankruptcy

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Rooker-Feldman Bars Motion to Vacate

Where the debtor was not deprived of the opportunity to fully participate in the state court proceedings, there was no “extrinsic fraud” and his bankruptcy court challenge to the state court judgment was barred by the Rooker-Feldman doctrine. Reyes v. Kutnerian (In re Reyes), No. 18-1229 (B.A.P. 9th Cir. April 19, 2019) (unpublished).

Enrique and Guadalupe Reyes placed their trailer home on land they rented in a month-to-month lease from Migran Kutnerian. Various disputes arose leading Kutnerian to give the Reyes a 30-day notice of eviction. When the Reyes failed to vacate the land, Kutnerian filed an unlawful detainer (UD) action against them. The Reyes filed a demurrer in lieu of an answer to the UD complaint. The court set the action for trial and allowed Reyes’s demurrer to stand as their answer. At trial, the Reyes asserted that they were not served with the eviction notice, and that, in any case, they were entitled to 60-day notice under state law because they had been on the property over one year and because the property was subject to mobile home park law. The trial court granted possession of the property to Kutnerian and ordered the Reyes to pay judgment in the amount of $699.99.

The state court of appeals rejected the Reyes’s arguments that they were deprived of due process when the lower court proceeded to trial before the Reyes filed an answer to the complaint and without ruling on the demurrer. The appellate court also rejected the Reyes’s arguments relating to the adequacy of the 30-day notice. The court affirmed.

The Reyes filed for chapter 13 bankruptcy. In that case, they moved for an order vacating the state UD judgment on grounds of due process deprivation based on “extrinsic fraud” perpetrated on the state court by Kutnerian. (The Reyes’s additional attempt to have the bankruptcy court vacate the judgment under F.R.C.P. 60(b) was rejected as that Rule is inapplicable to state court judgments). The bankruptcy court found that, under the Rooker-Feldman doctrine, it lacked jurisdiction to review the state court judgments. The Reyes appealed to the Bankruptcy Appellate Panel for the Ninth Circuit.

Broadly speaking, the Rooker-Feldman doctrine prohibits a federal court from exercising appellate jurisdiction over a state court judgment unless that judgment is found to be a legal nullity, void ab initio. Such may be the case if the state court judgment was obtained in the absence of jurisdiction or as a result of “extrinsic fraud.” For a state court judgment to be deemed void by reason of extrinsic fraud, the fraudulent conduct must have prevented the complaining party from presenting a defense in the state court proceeding.

The BAP found that was not the case here. All of the conduct the Reyes maintained was fraudulent—failure of service of the eviction notice, failure to provide 60-days notice under state law, and improper notice of the UD summons and complaint—were addressed during the state court proceedings. Furthermore, because the state court, at both the trial level and on appeal, found that the 30-day notice was sufficient, the state court judgment was not entered in the absence of jurisdiction. The Reyes’s argument that they were denied due process because judgment was entered without their having had the opportunity to file an answer to the UD complaint, was unavailing. They had every opportunity to present all relevant defenses and, in fact, did so.

The bankruptcy appellate panel agreed that the bankruptcy court lacked subject matter jurisdiction and affirmed.

Reyes 9th BAP April 2019

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Debtor May Not Modify to Surrender Residence after 60 Month Plan Complete

Debtors were precluded from modifying their plan to surrender their residence where the surrender was a “payment” under the plan and was beyond the sixty-month plan period. Derham-Burk v. Mrdutt (In re Mrdutt), No. 17-1256 (B.A.P. 9th Cir. May 6, 2019).

When chapter 13 debtors, Christina and David Mrdutt, filed their bankruptcy petition, Wells Fargo held two liens on their residence. The first lien was under-secured and the second was wholly unsecured. The Mrdutts were also almost $65,000 in arrears on their mortgage. They proposed a plan providing for curing their mortgage arrearage either after loan modification or as proposed in a later plan modification. In the meantime, the Mrdutts agreed to maintain direct mortgage payments to Wells Fargo outside the plan.

The bankruptcy court confirmed their plan while their request to modify the primary mortgage was still pending with Wells Fargo. The Mrdutts made all 60 of their plan payments but failed to maintain necessary direct payments to Wells Fargo. Ms. Mrdutt died of cancer during the bankruptcy, and Wells Fargo, being Wells Fargo, refused to discuss loan modification with Mr. Mrdutt because only Ms Mrdutt’s name was on the loan. Wells Fargo never approved a loan modification, and the mortgage arrears were not cured either through the plan or outside it. [Read more…] about Debtor May Not Modify to Surrender Residence after 60 Month Plan Complete

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SCOTUS Adopts No Fair Ground of Doubt Standard for Discharge Order Violation

In a unanimous decision, the Supreme Court held that “a court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the credi­tor’s conduct.” Taggart v. Lorenzen, No. 18-489, 587 U. S. ___ (June 3, 2019).

Chapter 7 debtor, Bradley Taggart, was involved in pre-petition litigation in state court at the time he filed for bankruptcy. After he obtained his discharge, Sherwood, an opposing party in the state court litigation, obtained a judgment against him. Sherwood then sought attorney’s fees, and the state court awarded those fees notwithstanding Ninth Circuit precedent making clear that the post-petition attorney’s fees were discharged along with Taggart’s other debts. The bankruptcy court found that Sherwood was aware of the discharge and intended the act that violated it and, under that standard, it held Sherwood in contempt of the discharge order. The bankruptcy appellate panel reversed the sanction award and the Ninth Circuit affirmed, holding that Sherwood could not be held in contempt in light of its good faith belief that its conduct did not violate the discharge injunction regardless of whether that belief was reasonable. [Read more…] about SCOTUS Adopts No Fair Ground of Doubt Standard for Discharge Order Violation

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Rejection of Unexpired Lease Equals Pre-Petition Breach of Lease Agreement

Under section 365(g), rejection of an unexpired lease is treated as breach of the lease contract not termination of the lease. Therefore, the lessor’s claim against the debtors for rent based on post-petition, post-rejection occupancy of the leased property was part of the pre-petition breach and was discharged in the debtors’ chapter 7 bankruptcy. In re Roberson, No. 17-8041 (B.A.P. 6th Cir. May 30, 2019) (unpublished).

Joi and Anthony Roberson defaulted on their lease midway through their lease term. When the lessor, GCB Properties III, Ltd., initiated eviction proceedings, they filed for chapter 7 bankruptcy listing the defaulted rent as one of their debts. Neither the trustee nor the Robersons assumed the unexpired lease and the Robersons received their discharge. During the pendency of their bankruptcy case, GCB continued to try to evict them and the Robersons obtained a judgment against GCB for violation of the automatic stay. After discharge, GCB attempted to collect the rent for the months the Robersons lived in the property from the date of the statutory rejection of the lease through the date the Robersons moved out of the property. Furthermore, GCB applied the judgment against it as set-off against unpaid rent. The bankruptcy court found that the rental default up through the time the Robersons vacated the property was discharged in their bankruptcy and therefore the lessor was not entitled to set-off.

GCB appealed to the Bankruptcy Appellate Panel for the Sixth Circuit.

It was undisputed that, by operation of section 365(d)(1), the unexpired lease was automatically rejected 60 days post-petition when neither the Robersons nor the chapter 7 trustee assumed it. The issue was what effect that rejection had on the ongoing unpaid rent as the Robersons continued to occupy the property. Relying on the recent case of Mission Prod. Holdings, Inc. v. Tempnology, LLC, No. 17–1657, 587 U.S. ___, ___ S. Ct. ___, 2019 WL 2166392, at *9 (U.S. May 20, 2019), the BAP found that, under the express language of section 365(g)(1), rejection of the unexpired lease was tantamount to a breach of the rental agreement. Section 502(g)(1) provides that a claim based on a rejected unexpired lease agreement shall be allowed or disallowed “the same as if such claim had arisen before the date of the filing of the petition.” Section 727(b) includes in chapter 7 discharge any claim arising prior to the date of the petition. In Miller v. Chateau Cmtys, Inc. (In re Miller), 282 F.3d 874 (6th Cir. 2002), the Sixth Circuit found that when an expired lease is rejected, debt based on post-petition, post-rejection rent is considered part of the pre-petition breach and is therefore included in the discharge.

The BAP was unpersuaded by GCB’s argument that, once the lease was rejected, any unpaid rent due after that point was no longer a continuation of a pre-petition breach of the lease agreement, but was a new debt based on termination of the lease and the debtors’ status as holdover tenants under Ohio law. The BAP found that because both section 365(g)(1) and the holding in Mission teach that rejection of the lease is not the equivalent of termination but is deemed a breach of the lease agreement, the debtors did not become holdover tenants. While a landlord may take steps in accordance with the lease agreement or with Ohio landlord tenant law to terminate the lease upon breach, GCB did not do so in this case.

In conclusion, the panel offered the following caution: “The Panel cannot overstate the narrow gauge of this opinion, which is premised solely upon the conclusion that rejection of an unexpired lease under § 365(g) creates a breach of the lease, not a termination. Because GCB relied exclusively on its contrary view, the Panel finds no error in the bankruptcy court’s ruling.”

ROBERSON BAP 6th May 2019

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Fourth Circuit Overturns Anti-Modification Precedent Witt v. United Cos. Lending Corp.

The en banc fourth circuit panel overturned a twenty-two-year-old precedent to join the majority of courts finding that section 1322(c)(2) “authorizes modification of covered homestead mortgage claims, not just payments, including bifurcation of undersecured homestead mortgages into secured and unsecured components.” Hurlburt v. Black, No. 17-2449 (4th Cir. May 24, 2019) (en banc). NACBA and NCBRC participated as amici in support of the debtor.

In Witt v. United Cos. Lending Corp. (In re Witt), 113 F.3d 508 (4th Cir. 1997), the Fourth Circuit held that section 1322(c)(2)’s exception to the anti-modification provision in section 1322(b)(2) was limited to permitting a chapter 13 debtor to extend the final payments on his mortgage over the course of the plan even though the terms of the lending agreement would have those payments due earlier. Thus, the Witt court found that section 1322(c)(2) does not permit a chapter 13 debtor to modify the amount owed on the claim by bifurcating the claim into secured and unsecured portions, but could alter only the timing of payments on that claim.

Here, Larry Hurlburt bought his home from Juliet Black and entered into a purchase agreement under which he would be responsible for regular payments until May, 2014, at which time the remaining principal and interest would come due. Hurlburt defaulted on the final balloon payment of $136,000, and Black initiated foreclosure proceedings. Hurlburt filed for chapter 13 bankruptcy and proposed a plan under which the loan would be bifurcated into secured and unsecured portions with the unsecured portion receiving no payments. The bankruptcy court found that the plan offended the anti-modification provision of section 1322(b) and denied confirmation. Hurlburt v. Black (In re Hurlburt), 572 B.R. 160, 169 (Bankr. E.D.N.C. 2017). The district court affirmed. Hurlburt v. Black (In re Hurlburt), No. 7:17-CV-169-FL (E.D.N.C. Dec. 19, 2017). The Fourth Circuit likewise affirmed. Hurlburt v. Black (In re Hurlburt), 733 Fed. App’x 721 (4th Cir. 2018) (unpublished) (per curiam). That decision was vacated, however, when the circuit court granted Hurlburt’s petition for rehearing en banc in January, 2019.

On rehearing, the circuit court panel took a stroll through relevant statutory provisions. It began with section 1325(a)(5)(B) which allows the debtor to confirm a plan that “provide[s] the creditor with payments, over the life of the plan, that will total the present value of the allowed secured claim. . . ” and which permits the plan to treat any remaining portion of the claim as unsecured. Valuation of the claim into secured and unsecured components is governed by section 506(a)(1). The panel then turned to the effect of the anti-modification provision, section 1322(b)(2), which prohibits modification of a debt secured by the debtor’s residence. Nobelman v. American Savings Bank, 508 U.S. 324 (1993), interpreted the anti-modification provision as preventing cramdown of a partially-secured homestead debt in chapter 13.

But this case differed from Nobelman in one important respect: the remaining principal and interest on the loan were due in their entirety before the end of the plan period. Therefore, the panel turned to section 1322(c)(2), enacted in the 1994 Bankruptcy Code amendments, which provides in pertinent part: “Notwithstanding subsection (b)(2). . . in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title.”

In Witt, the court found the language of section 1322(c)(2) to be ambiguous and, relying on legislative history, interpreted it to permit modification only with respect to “payment of the claim” and not with respect to the claim itself. Therefore, Witt and its progeny found that the anti-modification provision in paragraph (b)(2) applied to claims otherwise covered by section 1322(c)(2). On rehearing, the court rejected that reasoning and, instead, agreed with those courts finding that the natural reading of “payment of the claim as modified” was not limited to modification of the payment schedule, but included modification of the claim itself.

Congress’s introductory phrase, “notwithstanding subsection (b)(2)” suggested to the panel that Congress intended to create an exception to the entire anti-modification provision (which, by beginning with limiting phrase, “subject to subsections (a) and (c),” likewise singles out paragraph (c) for separate treatment), not just one aspect of that provision.

The panel found most persuasive the language in section 1322(c)(2) to the effect that “the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title.” Where the latter section provides for cramdown, the panel took section 1322(c)(2)’s reference to mean that cramdown likewise is available under that section. The majority concluded that all significant statutory evidence pointed to permitting cramdown of debts that mature prior to the end of the plan period.

Turning to the Witt court’s reliance on the absence of any indication that Congress intended to abrogate Nobelman when it enacted section 1322(c)(2), the panel found that because Nobelman dealt with section 1322(b)(2), the Witt court erred in its reasoning. The panel found that, in enacting 1322(c)(2), Congress carved out an exception to the strictures of section 1322(b) which otherwise remained unaffected. Therefore, this case would not run afoul of Nobelman and Congress had no reason to address any abrogation of Nobelman when it enacted 1322(c). Nor did Congress’s positive reference to First National Fidelity Corp. v. Perry, 945 F.2d 61 (3d Cir. 1991), which applied 1322(c) to alterations to payments on an otherwise unmodified claim, indicate that Congress intended to limit application of section 1322(c) to that narrow situation.

The court thus overturned Witt. It reversed and remanded.

Judges Wilkinson, Keenan and Thacker dissented.

The dissent argued that the court got it right when it decided Witt and interpreted section 1322(c)(2) to permit modification of the payment schedule but not of the claim itself. The dissent was persuaded that Congress would not have completely overridden the anti-modification provision as applied in Nobelman without specific reference to Nobelman and an explicit indication that the new statutory text was that broad in its scope. The dissent argued that the text of section 1322(c)(2) supports the narrower view in that the phrase, “payment of the claim as modified,” must be read as a phrase rather than individual terms. Thus, “payment of the claim” is what is modified, not the “claim” itself. The dissent maintained that, contrary to the majority’s holding, the power to strip down a claim derives from sections 506(a) and 1322(b), not from section 1325(a)(5), therefore Congress’s reference to the latter section could not be seen as an indication that Congress intended to bootstrap cramdown into section 1322(c).

The dissent was particularly troubled by the fact that the panel’s decision would have the practical effect of treating debtors whose mortgage would mature during the course of the plan—even if it was in month fifty-nine of a sixty-month plan—significantly more favorably than the debtor whose mortgage would come due any time after month sixty. In addition, less affluent debtors, whose plans were more likely to be only thirty-six months, would derive even less benefit from the court’s interpretation of section 1322(c). The dissenting judges thought it more likely that Congress intended to help debtors climb out from under balloon payments and acceleration clauses and they expressed concern about the effect of the majority decision on future lenders.

Hurlburt 4th Cir May 2019

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Court Has Discretion to Reimburse Expenses Not Included in No-Look Fee Order

Under the bankruptcy court’s no-look fee standing order, debtor’s counsel could not obtain reimbursement for advancing pre-petition costs including filing fees and credit counseling, but the court had discretion to allow those expenses as part of counsel’s compensation. McBride v. Riley (In re Riley), No. 18-30535 (5th Cir. May 13, 2019).

Under its “no money down” fee agreement, the McBride Law Firm advanced the chapter 13 debtor’s filing fees, credit counseling, and the cost of obtaining credit reports. McBride later sought to recover the advance along with its regular fees under the bankruptcy court’s no-look fee standing order. The bankruptcy court found that the attorney fees were limited to those fees specified in the standing order, and it further held that it had no authority to award additional fees or reimbursements. At the same time, the bankruptcy court denied reimbursement of pre-petition expenses in eighteen other cases in the district. McBride and the attorneys from two of the other cases appealed to the district court. That court affirmed.

On appeal to the Fifth Circuit, the bankruptcy court’s position was represented by two chapter 13 trustees who reiterated the reasoning of the bankruptcy court. At the request of the circuit court, the UST also weighed in and supported the bankruptcy court.

On appeal, McBride argued that the expenses were reimbursable under section 503. Specifically, section 503(b)(1), which permits payment of expenses necessary to preserve the estate, or section 503(b)(2), which, in conjunction with section 330(a)(4)(B), permits an award of “reasonable compensation” for attorneys based on services rendered. In finding that McBride was not entitled to reimbursement, the bankruptcy court relied on its February, 2017, standing order permitting the bankruptcy court to award attorney’s fees up to a specified amount without the necessity of the attorney filing an itemized fee application. Prior to February, 2017, the court’s standing order provided that pre-petition expenses were not reimbursable separately from the no-look fee amount. The February, 2017, order removed the language relating to reimbursement of expenses with one exception: the order specifically allowed the cost of postage for service of a motion to modify to be added to the no-look fee.

The Fifth Circuit began with McBride’s argument that, by its silence on the subject, the new no-look fee standing order permits reimbursement of pre-petition expenses. The court disagreed. It held that where the purpose of the standing order was to simplify payment of attorney’s fees, it was reasonable to conclude that silence on a given expense meant that expense was not covered by the order. This conclusion was further supported by language in the standing order that counsel seeking fees or expenses beyond those allowed in the no-look fee order must file an itemized fee application.

The court next rejected McBride’s argument that the expenses were reimbursable under sections 503(a) and (b)(1)(A) as necessary to the preservation of the estate, finding that neither of the two prerequisites were met. First, the expenses were not post-petition transactions with the bankruptcy estate, but were personal debts incurred by the debtor pre-petition. Second, the expenses were incurred as an administrative requirement belonging to the debtor. Payment of the pre-petition fees did not benefit or add value to the estate.

The court turned to the bankruptcy court’s finding that, under sections 503(b) and 330(a)(4)(B), debtor’s counsel may be compensated only for services, and that “all bankruptcy courts lack the discretion to ever award debtor’s counsel compensation that includes reimbursement for advancing the costs of those three fees.” The circuit court rejected the notion that the definition of “compensation” could never encompass “reimbursement.” It found the permissive language in section 330(a)(4)(B), that the court may award compensation for reasonable and necessary expenses, is broad enough to encompass reimbursement. The court was unpersuaded by the bankruptcy court’s reasoning that permitting reimbursement of expenses owed by the debtor as the price of entering the world of bankruptcy, would necessarily diminish the funds available to pay other creditors. While that reasoning may have been relevant to the determination that the expenses were not administrative costs necessary to the preservation of the estate under section 503(b), it was not relevant to consideration of whether counsel’s advance of those fees was in the best interest of the debtor and reimbursable as part of counsel’s compensation under section 330(a)(4)(B). Emphasizing the discretionary nature of section 330(a)(4)(B), the court noted that permitting a court to award reimbursement of pre-petition expenses would not eviscerate Rule 1006’s provision for payment of filing fees through an installment plan.

In sum, the Fifth Circuit affirmed the bankruptcy court’s holding that the no-look fee standing order does not permit additional fees for reimbursement of pre-petition expenses, and that advancing those fees does not fall under administrative expenses necessary to preservation of the bankruptcy estate under section 503(a). However, the court vacated the bankruptcy court’s holding that bankruptcy courts lack all discretion to award reimbursement of those expenses as part of counsel’s compensation under section 330(a)(4)(B).

McBride 5th Cir May 2019

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State May Reasonably Rely on Public Assistance Application

When providing public assistance benefits, the State may reasonably rely upon the applicant’s assertions in the application form, despite access to an independent source of information concerning the applicant’s financial condition. Maxwell v. State of Oregon, No. 18-1286 (B.A.P. 9th Cir. March 27, 2019) (unpublished).

Antionette Maxwell was employed at Oregon Health and Science University, yet she was still entitled to various public assistance benefits, including SNAP benefits, Temporary Assistance for Needy Families, and Employment Related Day Care Program. At some point, the State investigated Ms. Maxwell’s income and found that she had failed to list the income she had earned as an occasional domestic worker and that she received in child support payments. The State sought to recover the resulting overpayment of benefits for over $16,000. Ms. Maxwell filed for Chapter 7 bankruptcy, and the bankruptcy court found the overpayment was nondischargeable under section 523(a)(2)(B) as having been acquired by fraud. [Read more…] about State May Reasonably Rely on Public Assistance Application

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Malpractice Action against Bankruptcy Attorneys Not Part of Estate

Where the only injury alleged was the denial of discharge, the debtors’ legal malpractice cause of action against their bankruptcy attorneys did not arise pre-petition and, therefore, was not part of the bankruptcy estate. Church Joint Venture v. Blasingame, No. 18-8017 (B.A.P. 6th Cir. April 5, 2019).

The debtors’ bankruptcy attorneys committed malpractice prior to and during the course of the debtors’ chapter 7 case, resulting in denial of discharge. The debtors sued their attorneys for malpractice in state court, and the bankruptcy court granted creditor, Church Joint Venture (CJV), derivative status to pursue a malpractice action in the bankruptcy court on behalf of the estate based on the same conduct. CJV filed an adversary complaint and sought a declaratory judgment that the cause of action for malpractice constituted estate property. On cross-motions for summary judgment, the bankruptcy court found that the cause of action arose post-petition and, therefore, belonged to the debtors rather than the estate.

CJV appealed to the bankruptcy appellate panel for the Sixth Circuit.

Relying on Underhill v. Huntington National Bank (In re Underhill), 579 F. App’x 480 (6th Cir. 2014), the panel affirmed.

The panel began with the premise that, while property interests are determined by state law, federal law determines if and when those property interests become part of the bankruptcy estate. Here, the parties agreed that even though some of the conduct giving rise to the malpractice action took place pre-petition, the debtors did not suffer an injury until they were denied discharge. The panel found that, based on these facts, the debtors did not have a cause of action against the malpractice defendants at the time they filed their petition.

CJV argued that the bankruptcy court erred in looking at when the cause of action accrued under state law instead of looking to when the conduct leading to the denial of discharge took place. It maintained that, because some of that conduct took place prior to the bankruptcy petition, the cause of action was sufficiently rooted in the pre-petition past to render it part of the bankruptcy estate. The panel disagreed. In Underhill, the Sixth Circuit held that pre-petition conduct alone will not root a cause of action in the pre-bankruptcy past but that there must be a pre-petition violation: “[t]hat is, a cause of action qualifies as bankruptcy estate property only if the claimant suffered a pre-petition injury.” Underhill, 579 F. App’x at 482-83. Here, the only injury was the denial of discharge – a post-petition event.

For the same reason, the panel rejected CJV’s argument that the bankruptcy court should have split the complaint into pre- and post-petition causes of action and allowed the pre-petition cause of action to go forward. The panel found that, in the absence of injury, there was no pre-petition cause of action.

CJV has appealed to the Sixth Circuit. Church Joint Venture v. Blasingame, No. 19-5505 (6th Cir., filed, May 10. 2019).

Blasingame BAP 6th Cir. April 2019

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Asset Technically Abandoned Despite Not Being Listed on Schedule B

The Chapter 7 debtor’s cause of action was technically abandoned even though he failed to list it on Schedule B, where the trustee knew of the asset and indicated his intention to abandon it though he never sought a court order to that effect, and the trustee also listed all unadministered assets “known and unknown” as abandoned in his final report. Nasseri v. Tadayon (In re Tadayon), No. 18-1119 (B.A.P. 9th Cir. April 29, 2019) (unpublished).

When the debtor, Afshin Tadayon, filed for Chapter 7 bankruptcy, he had a state court cause of action pending against Dr. Amir Nasseri. He did not list the cause of action in his Schedule B, but he did include it in his Statement of Financial Affairs. The trustee questioned the debtor about the asset during the 341(a) meeting of creditors. The debtor obtained his discharge. Dr. Nasseri was not notified of the bankruptcy, nor was he served with the trustee’s notice of intent to abandon the asset. [Read more…] about Asset Technically Abandoned Despite Not Being Listed on Schedule B

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Accrued Interest on Student Loan Discharged as Undue Hardship

A Kansas bankruptcy court did not err in granting the debtor a discharge of the accrued interest on her student loans where she met the Tenth Circuit’s flexible version of the Brunner test, and the court has equitable power to grant less than a complete discharge. ECMC v. Metz, No. 18-1281 (May 2, 2019).

The debtor, age 59, was never in default on her student loans. Though she was continuously employed over the repayment period, the amount she owed grew over time from the original loan amount of $16,613.73 to $67,277.88. Beginning in 2001, she filed three Chapter 13 bankruptcies and made all payments under her plans, receiving a discharge in the first two. In the third and current bankruptcy, the debtor sought to discharge her consolidated student loan. The bankruptcy court found undue hardship but discharged only the accrued interest on the debt. The student loan creditor, ECMC, appealed. The debtor filed a cross-appeal seeking to have the entire debt discharged. NCBRC filed an amicus brief on behalf of the NACBA membership in support of the debtor. [Read more…] about Accrued Interest on Student Loan Discharged as Undue Hardship