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Page 7 of 132
IRA Withdrawals Create Regular Income for 109(e) Purposes
The debtor had “income” for purposes of eligibility to be a chapter 13 debtor where he intended to use regular withdrawals from his IRA to fund his plan. In re Frysinger, No. 20-31202 (Bankr. D. Ore. Dec. 21, 2022). The debtor created a plan which he proposed to fund through: 1) holdings in bank account […]
Tags: 109(e), bankruptcy
December 30, 2022
Wells Fargo and False Loan Forbearance Class Action
The court denied a motion to dismiss the debtors’ class action adversary complaint against Wells Fargo based on Wells Fargo’s inaccurate notices to various bankruptcy courts that the debtors’ loans had been placed in COVID forbearance at the debtors’ request. Harlow v. Wells Fargo & Co., No. 17-71487, Adv. Proc. No. 20-7028 (Bankr. W.D. Dec. […]
Tags: automatic stay, bankruptcy, motion to dismiss, Sanctions
December 20, 2022
Unemployment Overpayment Not a Priority Tax Debt
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).
Tags: bankruptcy, priority of claims
December 13, 2022
Who Would Win in a Fight, Allowed Claim or Confirmed Plan?
The winner? Confirmed plan. Where the mortgagee had notice and opportunity to object to confirmation of the debtor’s 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 […]
Tags: bankruptcy, dischargeability, Plan confirmation, Proof of Claim
December 9, 2022
Post-Petition Fee Agreement a No-Go
A fee agreement that purports to attach an attorney’s lien on the debtor’s as 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).
Tags: Attorney Fees, bankruptcy, Exemptions
December 7, 2022
First Circuit Dodges Late-Filed Tax Return Issues
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 […]
Tags: bankruptcy, dischargeability, Tax Returns
December 2, 2022
Bruce v. Citigroup, Inc., No. 22-1000 (2d Cir.)
Type: Amicus Date: November 23, 2022 Description: Whether bankruptcy court has authority to adjudicate a national class action claim for a violation of the discharge injunction. Debtor is the appellee. Result: Pending. Bruce 2d Cir NACBA Amicus Nov 2022
Tags: bankruptcy
November 30, 2022
Exemption Amount in Lien Avoidance Action
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 […]
Tags: bankruptcy, Exemptions, lien avoidance
Tribal Sovereign Immunity Waived
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.
Tags: automatic stay, bankruptcy, sovereign immunity
November 28, 2022
Ovation Denied Keys to the Candy Store
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. […]
Tags: bankruptcy, Plan confirmation
November 17, 2022
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