The terms of the underlying lending agreement dictated the interest rate applicable to the debtors’ cure and maintain provision in their Chapter 13 plan. In re Anderson, No. 14-690 (E.D. N.C. April 6, 2015). [Read more…] about Differing Interest Rates for Cure and Maintain
Cert. Denied in LVNV v. Crawford
The Supreme Court has declined to take up the issue of whether filing a stale proof of claim in a bankruptcy case violates the FDCPA. Previously, the Eleventh Circuit found that a proof of claim to collect a stale debt in chapter 13 violates the Fair Debt Collection Practices Act. In Crawford, however, the Eleventh Circuit side-stepped the issue of whether an irreconcilable conflicts exists between the Bankruptcy Code and the FDCPA, such that creditor’s conduct in bankruptcy would not be actionable under the FDCPA.
Order on Stay Violation Final despite Pending Issue as to Attorney Fee Award
Where the only issue left to be determined was whether the debtor had incurred attorney fees and costs in connection with the creditor’s stay violation, the order finding liability, and determining actual damages was a final, appealable order. USDA v. Sexton (In re Sexton), No. 14-453 (W.D. Va. March 31, 2015). [Read more…] about Order on Stay Violation Final despite Pending Issue as to Attorney Fee Award
Sternberg Does Not Preclude Attorney Fee Award
Where the creditor had not returned garnished funds at the time of the hearing for damages for the stay violation, the debtor was entitled to recovery of attorney fees incurred in connection with that hearing. In re Eeds, No. 14-61005 (Bankr. Mont. March 16, 2015). [Read more…] about Sternberg Does Not Preclude Attorney Fee Award
No Issue Preclusion Where Verdict Could Have Been Based on Negligence
The element of “willful and malicious injury” in the discharge exception under section 523(a)(6) could not be established by issue preclusion where the state court judgment could have been based on negligence. Gerard v. Gerard, No. 14-1496 (7th Cir. March 12, 2015). [Read more…] about No Issue Preclusion Where Verdict Could Have Been Based on Negligence
Agent’s Fraud Does Not Lead To Nondischargeability
When a debt is the result of fraud may the debtor still discharge it if he was not complicit in the fraud? What if the fraudulent actor was an agent of the debtor? Judge Posner of the Seventh Circuit answered both questions in the negative. Sullivan v. Glenn (In re Glenn), No. 14-3213 (7th Cir. Apr. 2, 2015). [Read more…] about Agent’s Fraud Does Not Lead To Nondischargeability
Tuition Credit Dischargeable
Where the debtor did not actually receive any funds, her debt based on a tuition credit agreement with a for-profit institution was not excepted from discharge under section 523(a)(8)(A)(ii). Institute of Imaginal Studies v. Christoff, No. 14-1336 (B.A.P. 9th Cir. March 27, 2015). [Read more…] about Tuition Credit Dischargeable
Co-Debtor’s Death Drops Debtor to Below-Median Permitting Reduced ACP
When the major contributor to the debtors’ joint Chapter 13 plan died, the surviving spouse fell to below median status and the applicable commitment period fell from 5 years to 3 years. In re Childers, No. 10-10405 (Bankr. N.D. Tex. Jan. 26, 2015). [Read more…] about Co-Debtor’s Death Drops Debtor to Below-Median Permitting Reduced ACP
IRS Tax Lien Secured by All Debtor’s Property
An IRS tax lien attaches to all of the debtor’s property, both personal and real, therefore, so long as there is some equity to which it can attach it may not be stripped off. In re Blackburn, No. 12-31658 (Bankr. N.D. Fla. Feb. 3, 2015). [Read more…] about IRS Tax Lien Secured by All Debtor’s Property
Supreme Court Hears Oral Argument in Ch. 7 Lien Stripping Cases
Today, the Supreme Court heard oral arguments in Bank of America, N.A. v. Caulkett, and Bank of America, N.A., v. Toledo-Cardona. At issue is whether Chapter 7 debtors may strip off junior mortgages where there is no value in the collateral to support the junior lien. Here’s the transcript. Well worth the read!