Despite agreeing that the Tenth Circuit got it wrong, the Solicitor General for the United States filed a brief opposing certiorari in the case of Kinney v. HSBC Bank USA, No. 21-599 (brief filed Aug. 30, 2022). The issue was a simple one: whether the debtor could receive a completion discharge under section 1328(a) when she missed the final three payments on her mortgage due to a car accident, but made up the payments shortly after her plan expired. Read More
Tag Archive: Supreme Court
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SG Agrees 10th Erred But Opposes Cert
Posted by NCBRC - September 2nd, 2022
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Scotus Denies Cert in Fee Harvesting Case
Posted by NCBRC - June 14th, 2022
The Supreme Court denied certiorari in the case of Sensenich v. PHH Mortgage Corp., No. 21-1322 (cert denied, June 13, 2022). The Chapter 13 Trustee sought reversal of the Second Circuit decision that the bankruptcy court lacked the power to monetarily sanction PHH Mortgage Corp. for its fee harvesting practice which violated Bankruptcy Rule 3002.1. The Second Circuit held that the bankruptcy rule did not allow for punitive damages. The circuit court also held that the award could not be justified under the court’s inherent power because the bankruptcy court did not analyze that ground.
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Scotus: Three Denials and a Pending
Posted by NCBRC - April 5th, 2021
The Supreme Court recently denied cert petitions in three bankruptcy-related cases: Hull v. Rockwell, No. 20-499 (pet’n denied Feb. 22, 2021); GE Capital Retail Bank v. Belton, 20-481 (pet’n denied March 8, 2021); and Marino v. Ocwen Loan Servicing, No. 20-409 (pet’n denied March 22, 2021). Read More
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Cert. Granted in FDCPA Case
Posted by NCBRC - October 12th, 2016
The Supreme Court today granted certiorari in the case of Midland Funding, LLC. v. Johnson, No. 16-348, in which the Eleventh Circuit found that not only does a proof of claim on a time-barred debt violate the FDCPA, but the FDCPA claim is not in conflict with, nor is it precluded by, the Bankruptcy Code.
This issue has been circulating in various forms throughout the courts as many debt collectors have made it a business practice to file proofs of claim in bankruptcy cases on debts they know to be time-barred and, therefore, uncollectible. Success of this practice depends upon the claim slipping past the debtor and his or her attorney, if the debtor is represented, as well as the bankruptcy trustee. In many cases, trustees have conceded that they do not routinely check proofs of claim for validity based on timeliness. NACBA has taken a stand on the issue, arguing that such practices violate the FDCPA and that the debtor can prosecute the FDCPA claim notwithstanding the existence of the bankruptcy action. Owens v. LVNV Funding, LLC, ___F.3d ___, 2016 WL 4207965 (7th Cir. Aug. 10, 2016); Nelson v. Midland Credit Management, Inc., ___ F.3d ___, 2016 WL 3672073 (8th Cir. July 11, 2016).
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Cert. Petitions Filed in FDCPA Cases
Posted by NCBRC - September 29th, 2016
Midland Funding, LLC., has filed a petition for certiorari seeking Supreme Court review of the Eleventh Circuit decision in Johnson v. Midland Funding, LLC., 2016 U.S. App. LEXIS 9478, No. 15-11240 (May 24, 2016), petition for cert. filed, No. 16-348, (Sept. 16, 2016). In Johnson, the court expanded its earlier decision in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1844, 191 L.Ed.2d 724 (2015), to find that not only does a proof of claim on a time-barred debt violate the FDCPA, but the FDCPA claim is not in conflict with, nor is it precluded by, the Bankruptcy Code. Read More
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Undisbursed Funds Returned to Debtor Upon Conversion
Posted by NCBRC - May 18th, 2015
In a unanimous decision, the Supreme Court today found that funds paid into a confirmed chapter 13 plan that are undisbursed when the case is converted to chapter 7 should be returned to the debtor. Harris v. Viegelahn, 575 U.S. ___, No. 14-400 (May 18, 2015).
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Cert. Denied in LVNV v. Crawford
Posted by NCBRC - April 20th, 2015
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.
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Supreme Court Hears Oral Argument in Ch. 7 Lien Stripping Cases
Posted by NCBRC - March 24th, 2015
Today, the Supreme Court heard oral argument 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!
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Supreme Court Doubleheader
Posted by NCBRC - February 3rd, 2015
NACBA filed amicus briefs on Monday in two Supreme Court cases: Harris v. Viegelahn, 14-400, and Bullard v. Blue Hills Bank, 14-116.
Harris asks whether funds paid into a confirmed chapter 13 plan that are still in the trustee’s possession when the bankruptcy is converted to chapter 7 should be refunded to the debtor or paid to creditors. At the time of conversion, the trustee was holding funds originally designated for the debtor’s mortgagee, but more than $4,300 in funds were not disbursed because the mortgagee obtained relief from stay and foreclosed on the debtor’s home. Neither the trustee nor the debtor sought to modify the plan. Instead, the debtor converted the case to Chapter 7. Several days after debtor filed his notice of conversion, the trustee distributed the funds she had on hand to unsecured creditors. Harris moved to compel a refund of the money. The bankruptcy court granted the motion, and the district court affirmed. The Fifth Circuit reversed and found that the monies were properly distributed to creditors. Harris, No. 13-50374 (July 7, 2014) (disagreeing with In re Michael, 699 F.3d 305 (3rd Cir. 2012)).
NACBA’s brief in Harris argues that the Code’s plain text as well as the policies that animate the Code require that undisbursed funds be returned to the debtor.
Bullard asks whether denial of confirmation is a final appealable order. In Bullard, confirmation of the plan depended solely on the resolution of a disputed legal issue that has divided the bankruptcy courts. The bankruptcy court denied confirmation of debtor’s proposed plan, and after granting leave to appeal, the bankruptcy appellate panel affirmed. The First Circuit held that because the debtor could theoretically, though not realistically, submit a new plan, the decision of the bankruptcy appellate panel was not final. By contrast, if the bankruptcy appellate panel had ruled in the debtor’s favor and reversed the bankruptcy court, then its order would indisputably be final, and the First Circuit could conclusively determine the issue and resolve the split among the lower courts.
NACBA’s brief in Bullard argues that giving creditors, but not debtors, the ability to appeal decisions relating to plan confirmation is unjustified, that the alternatives proposed by the court—dismissal or refile and object to debtor’s own plan—are problematic, and that allowing such appeals are unlikely to overburden the courts.
Bullard Amicus Brief of Bank of America
Bullard SCt NACBA amicus brief
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Cert. Granted in Two Bankruptcy Cases
Posted by NCBRC - December 13th, 2014
The Supreme Court has granted certiorari in Bullard v. Hyde Park Savings Bank, No. 14-116, and Viegelahn v. Harris (In re Harris), No. 14-400.
Bullard asks whether denial of confirmation is a final appealable order. The First Circuit Court of Appeals found that it was not. Bullard, No. 13-9009 (May 14, 2014) (disagreeing with Mort Ranta v. Gorman, 721 F.3d 241, 248 (4th Cir. 2013)).
Harris asks whether funds paid into a confirmed chapter 13 plan that are still in the trustee’s possession when the bankruptcy is converted to chapter 7 should be refunded to the debtor or paid to creditors. The Fifth Circuit found that the monies were properly distributed to creditors. Harris, No. 13-50374 (July 7, 2014) (disagreeing with In re Michael, 699 F.3d 305 (3rd Cir. 2012)).
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