Author Archives: NCBRC

Ninth Circuit Permits Award of Appeal Fees

The Ninth Circuit has cracked open a door that Sternberg seemed to have slammed shut by holding that a debtor is not precluded from recovering, as damages, attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay. America’s Servicing Co. v. Schwartz-Tallard, No. 12-60052 (9th Cir. Apr. […]

No Jurisdiction over TILA Claim Post-Discharge

Once the trustee abandoned the real property and the debtor was discharged from her chapter 7 case, the court declined to exercise jurisdiction over the pending adversary proceeding involving Truth in Lending Act claims. Bank of Amer. v. Travers, No. 11-12650, A.P. No. 11-1047 (Bankr. D. R.I. March 25, 2014).

Four Late-Return Tax Cases Before First Circuit–How Will McCoy Fare?

In the most recent case to find its way to the First Circuit Court of Appeals, the BAP rejected McCoy and found that there is no per se rule that a late-filed tax return can only be a “return” for bankruptcy discharge purposes if it is filed by the IRS under the “safe harbor” provision […]

Replacement Value Governs Value of Surrendered Vehicle

Under section 506(a)(2), replacement value rather than foreclosure value is the proper measure of property securing an allowed claim where the debtor plans to surrender the property under section 1325(a)(5)(C). Santander Consumer USA v. Brown, No. 13-13013, — F.3d —-, 2014 WL 1245266  (11th Cir. March 27, 2014).

Three Cases of Discharge Injunction Violations

Three recent cases involve sanctions for violation of the discharge injunction by a creditor filing suit in state court over a debt discharged in bankruptcy. King v. Williams (In re King), No. 12-3701 (8th Cir. March 5, 2014); In re Gracia, No. 13-1373 (B.A.P. 9th Cir. April 4, 2014); In re Hopkins, No. 09-5835 (Bankr. […]

Competing Equities Must Be Considered in Claims Allowance Process

Under the claims allowance process, a bankruptcy court must consider competing equities even where the mortgage is “inoperative” under state law. GMAC Mortgage v. Orcutt, No. 13-82 and 13-83 (D. Vt. Feb. 28, 2014).

Certiorari Denied in Lien Strip Case

The Supreme Court denied cert. in the lien strip case of Bank of America v. Sinkfield, No. 13-700, involving the issue of whether section 506(d) permits the strip off of a wholly unsecured lien in chapter 7.

Applicable Commitment Period Applies where No Disposable Income

Adding to a growing trend among the circuits courts, the Fourth Circuit found that above-median debtors with negative disposable income must commit to a 60 month plan under section 1325(b)(1). Pliler v. Stearns (In re Pliler), No. 13-1445 (4th Cir. March 28, 2014), on direct appeal from, In re Pliler, 487 B.R. 682 (Bankr. E.D. […]

Bank of Amer. v. Sinkfield, No. 13-700 (USSCt)

Type: Amicus opposing Certiorari Date: February 28, 2014 Description: Whether lower court record is sufficiently developed to justify Supreme Court involvement in issue of whether a wholly unsecured lien may be stripped pursuant to section 506(d). Result: Pending Sinkfield amicus brief opposing Cert.

Broken Chain of Title Defeats Creditor’s Claim

A broken chain of title defeated a bank’s right to enforce the Note and mortgage for debtors’ residence. In re Dorsey, No. 13-8036 (B.A.P. 6th Cir. March 7, 2014).