Author Archives: NCBRC

Court Turns Jaundiced Eye on Wells Fargo Robo-Mischief

Wells Fargo lacked standing to assert a claim pursuant to a Note secured by a Deed of Trust, where a forged indorsement in blank did not give it “holder” status under applicable Texas law.  In re Franklin, No. 10‐20010 (Bankr. S.D. N.Y.  Jan. 29, 2015).

American Servicing Co. v. Schwartz-Tallard, No. 12-60052 (9th Cir.)

Type: Amicus Date: January 23, 2015 Description: Whether a debtor can obtain an award of attorney fees under section 362(k) for prosecuting stay violation. Seeking to overturn Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010). Result: Pending Schwartz-tallard NACBA 9th Jan 2015

NACBA Weighs in on Sternberg Issue

The NACBA membership has filed an amicus brief in the Ninth Circuit case of America’s Servicing Co. v. Schwartz-Tallard (In re Schwartz-Tallard), No. 12-60052 (filed Jan. 23, 2015). The brief seeks reconsideration of that court’s 2010 decision in Sternberg v. Johnston, 595 F.3d 937 which limited the right to recover attorney fees to those incurred […]

Creditor’s Failure to Comply with Rule 3002.1(g) Is Basis for Violation of State Consumer Law

The district court denied PNC’s motion to dismiss the borrowers’ complaint for violations of California consumer protection laws and common law claims based on PNC’s foreclosure action after plaintiffs successfully completed their chapter 13 plan. Sokoloski v. PNC Mortgage, No. 14-1374, 2014 WL 6473810 (E.D. Cal. Nov. 18, 2014).

TILA Rescission Effective upon Notification

In a unanimous decision delivered by Justice Scalia, the Supreme Court held that so long as the borrower notifies the lender within three years of the transaction, his rescission is timely. Jesinoski v. Countrywide Homes, 574 U. S. ____ (2015), No. 13-684 (Jan. 13).

It’s Alive! – McCoy Adopted by Tenth Circuit

The Tenth Circuit has concluded that late-filed tax returns are not “returns” for dischargeability purposes unless filed by the IRS in cooperation with the debtor. Mallo v. IRS (In re Mallo), __ F.3d __, 2014 WL 7360130 (Dec. 29, 2014) (consolidated with In re Martin, 14-1488).

Sixth Circuit Reverses Denial of Amendment to Exemptions

The Sixth Circuit found that prejudice to creditors was unlikely to be a legitimate basis for denying a debtor’s motion to amend her schedules to increase her exemption claim, and that even if it were a legitimate basis, the trustee failed to show the existence of such prejudice. Westry v. Lim (In re Westry), No. […]

Bankruptcy Reopened to Add Insurance Proceeds to Estate

The bankruptcy court properly reopened the debtor’s chapter 7 case to permit the trustee to administer insurance proceeds where the debtor’s interest in the funds pre-dated his bankruptcy even though he did not actually acquire the funds until post-discharge. Wojcik v. Gold (In re Daher), No. 14-8028 (B.A.P. 6th Cir. Dec. 4, 2014).

National Bankruptcy Conference Chimes in on Wellness and the Constitutional Validity of Consent

In Wellness International Network Ltd. V. Sharif, a creditor (WIN) sought a finding that a state court judgment against the debtor was non-dischargeable in the debtor’s chapter 7 bankruptcy, and that a trust for which the debtor was the trustee was, in fact, an alter ego of the debtor and therefore liable for his debts. […]

Homestead Exemption May Not Be Denied Based on Bad Faith, but . . .

Absent a statutory basis for doing so, a bankruptcy court may not deny a debtor’s homestead exemption based on bad faith or prejudice to creditors. Elliott v. Weil (In re Elliott), No. 14-1050, 14-1059 (consolidated) (B.A.P. 9th Cir. Dec. 10, 2014).