Author Archives: NCBRC

Court Gets it Wrong in Cure and Maintain Case

Contrary to the principle that “cure and maintain” permits a residential loan debtor to return to status quo ante, the Bankruptcy Court for the Eastern District of North Carolina found that while operation of section 1322(b)(5) reverses a loan acceleration, it does not reverse other contractual consequences of default; specifically an increased interest rate. In […]

Strained Reading of “Derived During” Boots Chapter 7 Case

The Tenth Circuit BAP interpreted the phrase “derived during” to mean that all income received during the 6-month look-back period be included in the current monthly income calculation.  Based on this, the court found that the debtor was above-median and his chapter 7 case presumptively abusive under section 707(b)(2). When the debtor failed to convert […]

CashCall’s Use of Tribal Arbitration under Attack

An arbitration clause is not enforceable when the specified forum is unavailable. So said the Eleventh Circuit Court of Appeals in Inetianbor v. CashCall, Inc., __ F.3d __, 2014 WL 4922225 (11th Cir. Oct. 2, 2014).

Post-Petition Equity Goes to Debtor upon Conversion

Equity created by payments into a chapter 13 plan belongs to the debtor upon conversion to chapter 7. In re Hodges, No. 13-361 (E.D. Tenn. Sept. 29, 2014).

Trustee Fee Cut Where No Meaningful Distribution

In three consolidated chapter 7 cases, the Bankruptcy Court, finding that carve-out or short sale agreements did not lead to any meaningful distribution to creditors, reduced the trustee’s fee by 50% of the requested amount. In re Scoggins, No. 12-42158 (Bankr. E.D. Cal. Sept. 8, 2014) (the court approved the fee request in a fourth, […]

Warning: May Cause Munchies and Preclude Bankruptcy Relief

A Colorado Bankruptcy Court found that a debtor whose only non-social security income was generated through the marijuana industry could not avail himself of bankruptcy relief. In re Arenas,  — B.R. —-, 2014 WL 4288991 (Bankr. D. Colo. Aug. 28, 2014). The chapter 7 debtors’ income sources were $4,265.16 from Mr. Arenas’ marijuana growing business […]

Bankruptcy as Social Insurance Program

Fortune Magazine reported yesterday on the results of a recent study conducted by the National Bureau of Economic Research in which the NBER examined 500,000 U.S. bankruptcy filings to determine the overall effect on consumers. The study found that Chapter 13 bankruptcy protection “increases annual earnings by $5,562, decreases five-year mortality by 1.2 percentage points, […]

In re Wolf, No. 14-1346 (4th Cir.)

Type: Amicus Date: August 4, 2014 Description: Whether above-median debtor’s projected disposable income should be calculated from the statutory formula rather than schedules I and J. Results: Pending Wolf 4th Cir. NACBA amicus  

Mass. Dept. of Rev. v. Fahey, No. 14-1328 (1st Cir.)

Type: Amicus Date: July 7, 2014 Description: Whether late-filed taxes are dischargeable. Result: Pending Fahey 1st Cir. NACBA amicus

Mass. Dept of Rev. v. Perkins, No. 14-1350 (1st Cir.)

Type: Amicus Date: July 7, 2014 Description: Whether late-filed taxes are dischargeable. Result: Pending Perkins 1st Cir NACBA amicus