Author Archives: NCBRC

Court Applies Beard Test to Late-Filed Return

The District Court for the Middle District of Florida declined to follow the First Circuit’s direction on treatment of tax debts based on late-filed returns, and instead applied the pre-BAPCPA Beard test to find that the debtor’s Massachusetts state tax debt was discharged in bankruptcy. Mass. Dept. of Rev. v. Shek, No. 18-341 (M.D. Fla. […]

Arbitration Issue Goes to Fifth Circuit

The bankruptcy court denied the creditor’s motion to compel arbitration where the debtor’s adversary complaint, based on the creditor’s violation of the discharge injunction, was based on a purely bankruptcy issue. Henry v. Educ. Fin. Serv., No. 13-30519, Adv. Proc. No. 18-3154 (Bankr. S.D. Tex. Oct. 17, 2018).

Serial Filings and the Automatic Stay

Under section 362(c)(3), the automatic stay terminates in its entirety after 30 days, when the debtor has had a previous case dismissed within one year of filing the second case. Smith v. State of Maine Bureau of Rev. Servs., 910 F.3d 576 (1st Cir. 2018).

Fifth Circuit Bludgeons Debtors with Judicial Estoppel Ruling

The district court did not abuse its discretion in dismissing the plaintiff’s case under the False Claims Act where he had failed to disclose the cause of action in his pending chapter 13 case. Bias v. Tangipahoa Parish School Board, No. 17-30982 (5th Cir. Dec. 5, 2018) (unpublished, per curiam opinion). After his chapter 13 […]

Eleventh Circuit Interprets Section 1328(a)’s “Provided for”

A mortgage paid outside the plan is not “provided for by the plan” for purposes of discharge of the debtor’s personal liability under section 1328(a). Dukes v. Suncoast Credit Union, No. 16-16513 (11th Cir. Dec. 6, 2018). When she filed her bankruptcy petition, Chapter 13 debtor, Mildred Dukes, was current on two mortgages held by […]

Interest in Joint Tenancy Drops from Estate upon Death of Debtor

By operation of state property law, a debtor’s interest in a joint tenancy drops out of the chapter 7 estate upon the death of the debtor, and this does not conflict with the trustee’s powers under federal law. Cohen v. Chernushin (In re Chernushin), No. 18-1068 (10th Cir. Dec. 21, 2018). Gregory and Andrea Chernushin […]

Court Exceeded Power with Plan Provision Re: After-Acquired Property

A bankruptcy court lacks the power to require a chapter 13 debtor to include a plan provision pledging to pay into the plan the cash equivalent of any non-cash property obtained post-confirmation. Roseberry v. U.S. Trustee, No. 18-1039 (S.D. Ill. Dec. 18, 2018).

Omissions on Written Applications Satisfies Writing Requirement for Non-Dischargeability

A bankruptcy court found that the omission of income data from numerous applications for food stamps and other public-assistance benefits satisfies the requirement of a materially false written statement respecting the debtor’s financial condition for purposes of exclusion from discharge. State of Oregon v. Maxwell, (In re Maxwell), No. 17-32084, Adv. Proc. No. 17-03113 (Bankr. […]

Ninth Circuit Gets It Wrong on Exemption Amendment Case

“The filing date of a bankruptcy petition determines the law governing exemptions and freezes the value of the exemptions that the debtor may claim.” Wilson v. Rigby, No. 17-35716 (9th Cir. Nov. 27,2018). The circuit court applied its own version of the “snapshot” rule in holding that when her residence increased in value post-petition, Debra […]

Court Declines to Enforce Arbitration Clause in Student Loan Agreement

An arbitration clause in a student loan contract is unenforceable where the debtor seeks an order of discharge of the loan in bankruptcy. Roth v. Butler University (In re Roth), No. 17-4109, Adv. Proc. No. 18-50097 (Bankr. S.D. Ind. Nov. 16, 2018). After Matthew Roth obtained his chapter 7 discharge, he moved to reopen his […]