Author Archives: NCBRC

Debtor Cannot Exempt His Interest in Ex-Wife’s Retirement Accounts

Accounts the debtor received from his ex-wife in a divorce were not retirement accounts for bankruptcy exemption purposes because, even though his ex-wife had contributed to the accounts for retirement, his interest was merely through a property settlement. Lerbakken v. Sieloff and Assoc., P.A., No. 18-6018 (B.A.P. 8th Cir., Oct. 16, 2018). The bankruptcy court […]

Wade v. Kreisler Law, P.C., No. 18-2564 (7th Cir.)

Type: Amicus Date: November 8, 2018 Description: Whether  termination of stay under 362(c)(3)(A) extends to property of the estate, as well as to the Chapter 13 debtors and the debtors’ property. Result: pending Wade 7th Cir NACBA Amicus Nov 2018

Thomas v. Department of Educ., No. 18-11091 (5th Cir.)

Type: Amicus Date: November 5, 2018 Description: Whether the Brunner undue hardship test as applied in the Fifth Circuit is contrary to the language of the Code, and whether the Brunner test is obsolete in general. Result: pending Thomas 5th Cir NACBA amicus Nov 2018

Debtors Entitled to Discharge Despite Bad Faith Conduct

The debtors were entitled to discharge once they completed their payments under the plan notwithstanding the fact that they “gamed the system” and conducted their bankruptcy in bad faith. Davis v. Holman (In re Holman), No. 17-1118 (D. Kans. Oct. 31, 2018). During the course of their chapter 13 bankruptcy, debtors, Shala and Nathan Holman, […]

Automatic Stay Does Not Require Return of Repossessed Property

A New Jersey District Court applied the minority view that a creditor does not have an affirmative duty to return a vehicle repossessed pre-petition upon learning of the debtor’s bankruptcy filing. Denby-Peterson v. Nu2u Auto World, No. 17-9985 (D. N.J. Nov. 1, 2018). Joy Denby-Peterson entered into a purchase money security agreement for the purchase […]

Property Tax Refund Not “Based on Need” for Exemption Purposes

The debtor’s tax refund under Minnesota’s Property Tax Refund Act was not “government assistance based on need,” and therefore she could not exempt it in her bankruptcy. Hanson v. Seaver (In re Hanson), No. 17-1192 (8th Cir. Sept. 11, 2018). The circuit court affirmed the BAP’s finding that chapter 7 debtor, Sheri Hanson, could not […]

Subjective Belief that Conduct Not Subject to Discharge Order Precludes Sanctions

A creditor’s good faith belief that its conduct did not violate the discharge order precludes a finding of contempt for violation of the discharge injunction even if that belief is unreasonable. Taggart v. Lorenzo (In re Taggart), No. 16-35402 (9th Cir. April 23, 2018). Bradley Taggart, a 25% owner of a real estate business, became […]

Equitable Recoupment Does Not Violate Stay

The creditor’s equitable recoupment of an overpayment of retirement benefits from the debtor’s ongoing monthly benefit payments did not violate the automatic stay. Williamson v. PARS, No. 17-1375 (B.A.P. 9th, Oct. 10, 2018) (unpublished). The Public Agency Retirement System (PARS) erroneously calculated Barbra Williamson’s entitlement to supplemental retirement benefits by listing her yearly salary as […]

Impairment to Exemption Calculation Based on Debtor’s Half Interest in Property

A debtor seeking to avoid a lien as impairing a homestead exemption must calculate the impairment using his proportionate interest in the property and the sum of the corresponding mortgage liens in proportion to that interest. Sandoval Irrevocable Trust v. Taylor, No. 17-1241 (10th Cir. Aug. 14, 2018). As a result of Mark Taylor’s misappropriation […]

United States v. West, No. 18-2116 (W.D. Tenn.)

Type: Amicus Date: July 16, 2018 Description: Whether the district court has jurisdiction over an appeal of denial of student loan lender’s motion for summary judgment. Result: Pending West NACBA Amicus July 2018