Wednesday, November 27, 2013

New Bankruptcy Filing Fees for Motions to Sell Effective 12-1-13

Changes to Court Fees List, effective December 1, 2013
Document Type Prior Fee New Fee
Retrieval of one box of records from Federal Records Center, National Archives, or other storage location removed from the place of business of the court $53.00 $64.00
($39.00/each additional box)
Motion to Sell Free and Clear of Liens - NEW$176.00
Payment returned or denied for insufficient funds $53.00 $53.00
(now includes payments other than checks)

Friday, November 22, 2013

I obtained a stipulated court order...the other side is not complying ... can the Court hold them in contempt....maybe...depends...what did the Court order say?

How many times have you entered into a stipulation and the Court simply approves the stipulation?  So what does that actually mean?  The Eighth Circuit BAP was forced to analyze this situation in which a party failed to comply with the stipulation.  The Court order simply stated that the stipulation is approved except for two paragraphs.  The Debtors complied but the Bank did not (failed to timely file a release of its financing statement).

The Court stated that the stipulation imposed duties but he order did not.  The text of the order did not incorporate the terms of the stipulation nor that the parties were required to abide by the terms of the stipulation.  (In my opinion, you now had a simple breach of contract issue).

The Court further indicated that this factual situation was different than others in which Court's have enforced a stipulation.  In those situations, there was clear and unambiguous language that the terms of the stipulation are ordered by the court and enforceable by contempt.

The bottom line is if you enter into a stipulation and want to enforce it as a court order, incorporate it by reference and state that the stipulation is part of the order and enforceable by contempt.

In re Fischer - 8th Cir. BAP

Thursday, November 21, 2013

Financial Education for Elementary Students - Bonner Elementary School - A Success!

The first school chosen to take part of the F-E-E-S program was Bonner Elementary in Las Vegas.  A group of 29 Fourth Graders took part of the 6 week class.  The first three classes were amount money, savings and credit.  The following three weeks they learned about being an attorney and preparing for their day in Court.  The Class was divided into two groups and one group represented a bank and the other a debtor.  The issue was based upon fraudulent misrepresentation of a loan.  The student attorneys put on the case in front of the Honorable Nancy Allf.  The Bank prevailed but not after a hard fought battle for the debtor. 

The kids were very impressive and did a great job!! For photos and even a video of the trial, feel free to check out and click on the Bonner tab.  Keeping in mind that these are fourth graders aged 8-9, you have to be impressed.

If anyone has any comments on how the project could be better then do not hesitate to contact me.

Can a Trustee Sell Real Property if it is Claimed as Exempt and has no Equity? - least in the 4th Circuit

The 4th Circuit, in an unpublished decision, determined that a Debtor who has no equity in their home but claiming a homestead exemption, is unable to stop a sale by the Trustee when the Trustee could receive a carve out from the creditor.  In this case, the Debtors home was fully encumbered by a first and an IRS lien.  The IRS agreed to a carve out and the Trustee filed a motion to sell.  The Debtor's objected to such sale.  The Court found that the asset is still property of the estate and the Trustee had standing to sell.

Reeves v. Callaway - 4th Cir. Unpublished

Friday, November 15, 2013

Motion to Compel re: 5th Amendment Right during 341 and 2004 exam - I refuse to answer if I slept with that woman... (E.D. NC)

I take the 5th.  I refuse to answer the question if I slept with that woman.....  Who would have thought that a Bankruptcy Court would have to address issues pertaining to an alleged affair.  However, this in fact occurred in North Carolina.  As the facts are an interesting read you will get a good synopsis of case law as it applies to the 5th amendment.  By the way, in North Carolina it is apparently a Class 2 misdemeanor to "lewdly and lasciviously associate, bed and cohabit together" 

In re Welsh - 2013 North Carolina

Tuesday, November 12, 2013

Augie Landis is set to become Nevada's newest Bankruptcy Judge

Mr. Landis, the acting US Trustee for Region 17, is set to become Nevada's newest Bankruptcy Judge.  Mr. Landis is to be sworn in on November 17, 2013.  Congratulations!

9th Cir. Press Release re Augie Landis

Friday, November 8, 2013

How ordinary is ordinary for the ordinary course of business defense? (10th Cir. BAP Published)

The 10th Circuit BAP discussed the two prongs of the ordinary course defense and based upon the standard of review "clearly erroneous" determined that the bankruptcy court properly applied the ordinary course of business defense to the facts of the case.

In re C.W. Mining Company

Thursday, November 7, 2013

Failure of Secured Creditor to File a Timely Proof of Claim in a Chapter 13 does NOT void the lien (8th Cir. Published)

I thought it was common sense that you are unable to void a secured creditor's lien if they file a late proof of claim.  Moreover, there is no requirement that the secured creditor even file a claim.  Despite that, the Debtors filed bankruptcy and the secured creditor filed a proof of claim 8 months after the deadline.  The Debtors did not contest the validity of the debt or lien but asserted that the claim was not timely and could be avoided under the plain language of 506(d).  The Eighth Circuit in a short opinion rejected the Debtor's argument and affirmed the judgment of the Bankruptcy Court and the BAP.

In re Shelton 8th Cir. Published

Tuesday, November 5, 2013

Chapter 13 - Property of the Estate INCLUDES Post-Petition Assets - (4th Cir Published)

In a Chapter 13 case, post-petition assets such as a personal injury claim and even an inheritance is property of the Estate.  The 4th Circuit was faced with an inheritance which arose more than 180 days after filing.  The Debtor contended it was not property of the Estate and the Trustee argued otherwise.  The Court found that it was property of the Estate.

In re Carroll - 4th Cir. Published 13-1024

Also, see the 5th Circuit case which was mentioned in this blog

Continuing Duty to Disclose Assets in a Chapter 13

Chapter 7 Debtor Lacks Standing to File Suit Because She was not a party in interest (6th Cir. Unpublished)

As a Chapter 7 Bankruptcy Trustee I have always believed that a Debtor does not have standing to file suit to challenge a proof of claim (unless a successful prosecution would bring enough assets into the estate so that there would be a distribution to the Debtor).  I have seen numerous cases filed in Las Vegas by the Debtor but have never seen a successful challenge by a creditor in getting the case dismissed (or quite frankly the issue has never been raised).  However, in an unpublished decision in the 6th Circuit, the Court was faced with this particular issue and determined that the Debtor did not have standing to file suit and dismissed the case.  Although the case is unpublished it certainly provides creditors and debtors with the arguments which could make or break their case (as it applies to standing).

In re Khan 13a0941n-06 6th Circuit Unpublished

Monday, November 4, 2013

523(a)(2)(B) nondischargeability complaint - attorney fees and shifting of burden (9th Cir. BAP Published)

A creditor lost a § 523(a)(2)(B) nondischargeability complaint and then had to pay the debtor $70,000 in attorney fees under §523(d) because the nondischargability claim was not "substantially justified."

The creditor had purchased the claim from a mortgage originator and claimed the debtor had lied in his financial statement. But, there was no evidence that the original creditor had actually relied on the statements.  Also, the claim failed under the California antideficiency laws (it was for a sold-out second deed of trust).  The Court granted judgment in favor of the Defendant on the antideficiency law and denied the request for fees.  After a motion to reconsider was filed, the BK Court reconsidered the request for fees and awarded fees. 

A very good analysis by the Court on the shifting of the burdens.  

In re Montano 12-1579 (9th Cir. 2013) Published