Bankruptcy law enhances and expands a debtor’s state law property rights by specifying the time within which a debtor may cure a mortgage default. In re Ausburn, No. 16153 (Bankr. E.D. Ark. Feb. 10, 2015). [Read more…] about Right to Cure Preempts State Law Property Rights
NACBA Weighs in on Sternberg Issue
The NACBA membership has filed an amicus brief in the Ninth Circuit case of America’s Servicing Co. v. Schwartz-Tallard (In re Schwartz-Tallard), No. 12-60052 (filed Jan. 23, 2015). The brief seeks reconsideration of that court’s 2010 decision in Sternberg v. Johnston, 595 F.3d 937 which limited the right to recover attorney fees to those incurred in the effort to terminate a stay violation, but not to the fees incurred prosecuting section 362(k) damage claims. [Read more…] about NACBA Weighs in on Sternberg Issue
Court Removes Wells Fargo’s Brass Knuckles
Like a ray of sunshine through a storm of obfuscation and false compliance, the Bankruptcy Court for the Southern District of New York found that Wells Fargo’s administrative freeze on bankruptcy debtors’ accounts violates the automatic stay, and debtors injured by the violation have standing to seek damages. In re Weidenbenner, No. 14-35443, 2014 Bankr. LEXIS 5009 (Bankr. S.D. N.Y. Dec. 12, 2014). [Read more…] about Court Removes Wells Fargo’s Brass Knuckles
Maintaining Foreclosure Status Quo Does Not Violate Automatic Stay
Where foreclosure is commenced pre-petition, continuance of the state foreclosure process does not violate the automatic stay. Witkowski v. Knight (In re Witkowski), No. 14-34, __ B.R. __ (B.A.P. 1st Cir. Nov. 13, 2014). [Read more…] about Maintaining Foreclosure Status Quo Does Not Violate Automatic Stay
Attorney’s “No Money Down” Fee Collection Practice Violates BAPCPA
Two cases out of the Western District of Louisiana found that attorney Glay H. Collier’s fee collection practices violated sections 526, 528, 362 and 524 of the Bankruptcy Code. Wheeler v. Collier (In re Wheeler), No 11-1670 (W.D. La. May 22, 2014) and (July 17, 2014), and Patrick v. Collier (In re Patrick), No. 14-11203 (Bankr. W.D. La. July 23, 2014). [Read more…] about Attorney’s “No Money Down” Fee Collection Practice Violates BAPCPA
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
Ninth Circuit Permits Award of Appeal Fees
The Ninth Circuit has cracked open a door that Sternberg seemed to have slammed shut by holding that a debtor is not precluded from recovering, as damages, attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay. America’s Servicing Co. v. Schwartz-Tallard, No. 12-60052 (9th Cir. Apr. 16, 2014). [Read more…] about Ninth Circuit Permits Award of Appeal Fees
Broken Chain of Title Defeats Creditor’s Claim
A broken chain of title defeated a bank’s right to enforce the Note and mortgage for debtors’ residence. In re Dorsey, No. 13-8036 (B.A.P. 6th Cir. March 7, 2014). [Read more…] about Broken Chain of Title Defeats Creditor’s Claim
Effect of Foreclosure Sale on Right to Cure and Maintain
A couple recent cases deal with application of the automatic stay when the debtor files his bankruptcy petition in the no-man’s-land between a foreclosure sale and the legal transfer of title through recordation. TD Bank v. LaPointe, No. 13-29 (B.A.P. 1st Cir. Feb. 24, 2014) and In re Comer, No. 13-12148 (Bankr. E.D. Tenn. March 10, 2014). [Read more…] about Effect of Foreclosure Sale on Right to Cure and Maintain
Refusal to Transfer Title in Jeep is Stay Violation
The creditor violated the automatic stay by refusing to take the steps necessary to transfer title of the vehicle he had sold to the debtor prior to bankruptcy. Parker v. Smith (In re Parker), No. 12-1324, AP 13-32 (Bankr. S.D. Miss. Jan. 6, 2014). [Read more…] about Refusal to Transfer Title in Jeep is Stay Violation