Author Archives: NCBRC

Attorney Fee Award Upheld Against Student Loan Servicer

The district court found that the bankruptcy court did not abuse its discretion in holding the student loan servicer in contempt for failing to apply the student debtor’s payments outside the plan in accordance with pre-petition payments as required by the debtor’s confirmed chapter 13 plan. Penn. Higher Educ. Assistance Agency v. Berry, No. 18-444 […]

Debtors’ Plan May Direct Student Loan Payments to Principal

Finding that “non-dischargeability does not immunize the student loan claim from modification,” the bankruptcy court confirmed the chapter 12 debtors’ plan under which their payments would go to the principal on their student loan debt with accumulated post-petition interest to be paid post-discharge. In re Duensing, No. 18-10201 (Bankr. D. Kans. Feb. 22, 2019). ECMC […]

Debtor’s Right to Amend Extends to Reopened Cases

A debtor may amend his schedules as a matter of right “without limitation of whether the case is open or reopened after closing.” Mendoza v. Montoya, No. 18-19, Dollman v. Montoya, No. 18-30 (B.A.P. 10th Cir. Feb. 5, 2019).

Debtors’ Manufactured Home Was Personal Property Under Iowa Law

The Eighth Circuit found no clear error in the bankruptcy court’s finding that, under Iowa common law, the chapter 13 debtors’ manufactured home was personal property and therefore the debt it secured was not subject to section 1322(b)’s anti-modification provision. The Paddock, LLC v. Bennett, No. 18-2098 (Feb. 28, 2019). Benjamin and Teresia Bennett purchased […]

ACA’s Shared Responsibility Payment is Priority Tax Debt

The District Court for the Eastern District of Louisiana determined that the tax assessment for failure to maintain health insurance under the Affordable Care Act is a nondischargeable priority tax debt under section 507(a)(8)(A)(iii), rather than a penalty dischargeable in bankruptcy under section 523(a)(7) and 1328(a). United States v. Chesteen, No. 18-2077 (E.D. La. Feb. […]

Federal Lien Broader than State Lien for Avoidance Purposes

Federal law defines a lien more broadly than Missouri law, and for that reason, the debtor was able to avoid a judgment lien as impairing the exemption he claimed on his residence, which he owned as a tenancy in the entireties with his wife, even though state law did not recognize the creation of the […]

Bankruptcy Court Abused Discretion in Failing to Confirm Plan

In a terse opinion, the Fifth Circuit balanced the evidence relied on by the bankruptcy court against various additional factors and concluded that the bankruptcy court abused its discretion when it denied the debtors’ chapter 13 plan for lack of good faith under section 1325(a)(3). Booker v. Johns (In re Booker), No. 18-30526 (5th Cir. […]

District Court Addresses Due Process in Fee Hearing

The district court found that the chapter 7 trustee’s legal representative was deprived of due process when the bankruptcy court reduced a portion of its fees without providing notice and an opportunity to be heard. Arnall, Golden, Gregory, LLP, v. Stroud, No. 18-3755 (N.D. Ga. Jan. 28, 2019). Appellant, Arnall, Golden, Gregory, LLP, sought $13,607.09 […]

Educ. Credit Management Corp. v. Metz, No. 18-1281 (D. Kans)

Type: Amicus Date: January 29, 2019 Description: Whether the bankruptcy court erred in granting the debtor a partial discharge of her student loan debt, discharging all but the original principal balance of the loans. Result: Pending. Metz D Kans NACBA Amicus Jan 2019

Sterling v. Southlake Nautilus Health and Racquett Club, Inc. , No. 18-2773 (7th Cir.)

Type: Amicus Date: February 6, 2019 Description: Whether the bankruptcy court erred in ruling that a creditor and its law firm did not violate the discharge injunction when, after the Chapter 7 debtor’s discharge, she was arrested pursuant to a state court bench warrant that had been issued in supplemental collection proceedings against the debtor in […]