Author Archives: NCBRC

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 […]

Lerbakken v. Sieloff and Assoc., P.A., No. 18-3415 (8th Cir.)

Type: Amicus Date: February 12, 2019. Description: Whether the bankruptcy court erred in denying the Chapter 7 debtor’s claimed exemption in funds in a 401(k) account and an IRA that had been awarded to him in a prepetition marital dissolution proceeding. Result: Pending. Lerbakken 8th Cir NACBA Amicus Feb 2019  

Tuition Deadline Agreement Did Not Create a Student Loan

An agreement establishing a tuition payment deadline was not a lending agreement and therefore, the debt created by the debtor’s failure to pay her summer tuition did not constitute a non-dischargeable student loan under section 523(a)(8). Hazelton v. UW-Stout, No. 18-159 (W.D. Wisc. Feb. 1, 2019). In order to attend classes at UW-Stout, Kelly Hazelton […]

District Court Certifies Appeal of 100% Plan Language Restricting Right to Modify

In Brown v. Viegelahn, No.18-282  the District Court for the Western District of Texas, on its own motion, certified an appeal to the Fifth Circuit to resolve a dispute among lower courts concerning the so-called Molina language in which a chapter 13 debtor paying less that his entire disposable income to his 100% plan, is required […]

Court Rejects Nonstandard Provision for Retention of Tax Refund

The chapter 13 debtor was not permitted to include a nonstandard plan provision to retain her tax refund where the refund was not reasonably necessary for the support of the debtor or her dependents. Penn v. Viegelahn, 2018 WL 5984844, No. 18-354 (W.D. Tex. Nov. 13, 2018).

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. […]