A bankruptcy court for the District of Maryland held that the Chapter 13 trustee could use funds that were undisbursed at the time of conversion to pay accrued fees owed by the debtors to their bankruptcy attorneys. In re Everest, No. 14-29084 (Sept. 10, 2015) consolidated with In re Brandon, No. 14-23735 (lead case), In re Rucker, No. 14-27630, and In re Burrows, No. 14-28940. [Read more…] about Harris Does Not Preclude Attorney Fees Upon Pre-Confirmation Conversion
Proposed Bill Eliminates Student Loan Discharge Exception
On September 8, 2015, Michigan Congressman Dan Kildee introduced a bill in Congress intended to reduce the burden on students and their families caused by the ever-increasing costs of higher education and the financial stress of student loans. H.R. 3451. The proposed legislation removes student loans from section 523(a)’s exceptions to discharge, thereby clearing the way for student loans to be discharged in bankruptcy just as credit card debts and car loans are currently dischargeable. In a statement issued by Mr. Kildee’s office, the necessity for the legislation was founded on his concern that “[s]tudent loan debt has soared in recent years, and there are now over 40 million federal and private student loan borrowers who collectively owe $1.2 trillion in student loans. The average student has $28,400 of loan debt, and total student loan debt in the U.S. has now surpassed credit card and auto loan debt totals.” In a press conference, Mr. Kildee explained: “It’s increasingly [ly] clear that a well-educated society is necessary to a sustainable economy and to an equitable society that more fairly allocates the vast wealth that we create in this nation. The path to doing that is to make college affordable to more and more people. I think it’s important for us to remind ourselves that a college education for a young person in our state is valuable not just to them [but] for all of us and we should be willing to invest in it.”
Mr. Kildee also introduced two other bills dealing with student loans, one of which would exempt Pell Grants and scholarships from income taxes, and the other which would eliminate some private lenders’ unfair practice of automatically treating loans as being in default when a student’s cosigner dies even where the payments on those loans are current.
Broken Chain of Title and Disallowed Claims
A debt-buyer was out of luck when he could not establish the chain of title between himself and the original lender. Marx v. DeConne (In re DeConne), No. 15-175 (S.D. N.Y. Sept. 2, 2015). [Read more…] about Broken Chain of Title and Disallowed Claims
Debtor May Not Compel Sale of Property under Section 363(h)
A chapter 13 debtor does not have the authority under section 363(h) to sell estate property free and clear of a co-owner’s interest. Kao v. Kelly (In re Kao), No. 15-31193, Adv. Pro. 15-3114 (Bankr. S.D. Tex. July 7, 2015). [Read more…] about Debtor May Not Compel Sale of Property under Section 363(h)
Post-Discharge Agreement to Pay Unenforceable
A post-discharge debt repayment agreement violated the discharge injunction because it was neither voluntary nor supported by new considerations. Venture Bank v. Lapides, No. 14-3085 (8th Cir. Aug. 25, 2015).
[Read more…] about Post-Discharge Agreement to Pay Unenforceable
Court Denies Bank’s Motion to Reopen and Compel Surrender
Bank of America’s failure to provide the debtor with a written reaffirmation agreement during the pendency of her bankruptcy led the court to deny its motion to reopen and compel surrender. In re Rodriguez, No. 12-12043 (Bankr. S.D. Fla. Aug. 12, 2015). [Read more…] about Court Denies Bank’s Motion to Reopen and Compel Surrender
Harris Precludes Attorney Fee Payments Out of Undisbursed Funds
In two cases involving the courts’ practice of permitting the Chapter 13 trustee to distribute undisbursed funds to creditors upon conversion to Chapter 7, the courts found that Harris v. Viegelahn, 575 U.S. ___, 135 S.Ct. 1829 (2015), dictated a different result, even concerning the debtor’s Chapter 13 attorney fees and without regard to whether the case was converted before confirmation of the plan. In re Beauregard, No. 11-13069, consolidated with, In re Rule-Osburn, No. 14-13624, In re Montano, No. 14-12950 (Bankr. N. M. July 10, 2015); In re Sowell, No. 14-44130 (Bankr. D. Minn. Aug. 7, 2015). [Read more…] about Harris Precludes Attorney Fee Payments Out of Undisbursed Funds
Debtors’ Failure to Mitigate Dooms Contempt Action
Debtors’ failure to prove actual damages, in addition to an apparently deliberate failure to mitigate damages deprived them of an award of sanctions without regard to whether Solutions Finance willfully violated the stay. In re Phillips, No. 15-30632 (Bankr. E.D. Tenn. July 13, 2015). [Read more…] about Debtors’ Failure to Mitigate Dooms Contempt Action
Sale of Assets Results in Disposable Income
Gliding over the crucial question of whether the sale of an asset results in income, a Florida bankruptcy court ordered the debtors, Mr. and Mrs. McMillan, to distribute a portion of their sale proceeds to their creditors as disposable income. In re McMillan, No. 11-5348 (Bankr. M.D. Fla. July 2, 2015). [Read more…] about Sale of Assets Results in Disposable Income
Trustee’s Valuation of Unresolved Pre-Petition Cause of Action Rejected
A bankruptcy court rejected a Chapter 13 trustee’s valuation of the debtor’s pre-petition cause of action and found that an estimated value of the state court case should not be included in the plan distributions but that the plan may be modified if the debtor obtains a money judgment during the commitment period. In re Morales, No. 12-7296 (Bankr. P.R. July 2, 2015). [Read more…] about Trustee’s Valuation of Unresolved Pre-Petition Cause of Action Rejected