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  • Automatic Homestead Exemption Applies to Trust Interest

    Posted by NCBRC - April 15th, 2021

    A debtor may claim the California automatic homestead exemption with respect to property where he resides even though the property was owned by a trust created by his father and he and his brother were equal beneficiaries of the trust. In re Nolan, 2021 WL 528679, No. 20-1496 (C.D. Cal. 2021). Read More

  • Fraudulent Transfer Claim Precluded by Discharge Injunction

    Posted by NCBRC - April 8th, 2021

    Because an action for fraudulent transfer is not merely a collection action, the creditors were precluded by the discharge injunction from pursuing their state court appeal of that action even though the predicate debt was found to be nondischargeable in the debtor’s bankruptcy. SuVicMon Dev. Inc. v. Morrison, No. 20-11681 (11th Cir. March 25, 2021). Read More

  • Scotus: Three Denials and a Pending

    Posted by NCBRC - April 5th, 2021

    The Supreme Court recently denied cert petitions in three bankruptcy-related cases: Hull v. Rockwell, No. 20-499 (pet’n denied Feb. 22, 2021); GE Capital Retail Bank v. Belton, 20-481 (pet’n denied March 8, 2021); and Marino v. Ocwen Loan Servicing, No. 20-409 (pet’n denied March 22, 2021). Read More

  • Smattering of Automatic Stay Violations by HOA

    Posted by NCBRC - April 2nd, 2021

    Citing six separate stay violations by the homeowner’s association, the district court awarded the debtor damages for emotional distress and property interference. It also upheld the bankruptcy court’s award of punitive damages and attorney’s fees. The court remanded, however, for a determination of whether the damages for property interference should have extended beyond the end of the automatic stay. In re Parker, No. 19-2588 (N.D. Cal. March 22, 2021). Read More

  • Reasonable Application of Brunner Test Supports Undue Hardship Discharge

    Posted by NCBRC - March 27th, 2021

    Where the fifty-seven-year-old debtor’s current income and anticipated future income would both be insufficient to pay even the interest on his student loans, his expenses were not excessive, and he acted in good faith, he was entitled to partial discharge under section 523(a)(8), and the bankruptcy court had leeway to determine which of his several loans to discharge. ECMC v. Goodvin, No. 20-1247 (D. Kan. March 17, 2021). Read More

  • Ex-Wife’s Interest In Marital Residence Does Not Enter Debtor’s Estate

    Posted by NCBRC - March 17th, 2021

    The debtor’s ex-wife’s interest in the marital residence did not enter the bankruptcy estate even though the property was titled to the debtor, where their dissolution agreement gave her half interest and the debtor was prohibited from unilaterally disposing of the property. But the debtor’s ex-wife did not show that his failure to comply with the dissolution agreement generally, was an indication that he undertook the debts created by the agreement by fraud where the evidence did not support her contention that he never intended to comply. Williams v. Williams, No. 18-1197 (Bankr. D. Colo. Jan. 8, 2021). Read More

  • Debtor’s Challenge to Dischargeability Barred by Laches

    Posted by NCBRC - March 12th, 2021

    The debtor was barred by the doctrines of laches and equitable estoppel from asserting that a debt was nondischargeable where he had stipulated to its nondischargeability in an earlier bankruptcy and had not raised the issue of nondischargeability during several subsequent years of litigation concerning that debt. Storick v. CFG LLC, No. 20-80126 (S.D. Fla. Jan. 21, 2021). Read More

  • Debtors Entitled to Fees for Creditor’s Collateral Attack on Contempt Motion

    Posted by NCBRC - March 5th, 2021

    Where the creditor raised all its defenses to the debtors’ contempt motion in a collateral adversary complaint, the debtors were entitled to at least a portion of their attorney fees incurred in litigating the adversary proceeding under section 362(k)(1). Moon v. Rushmore Loan Management Services, LLC., No. 20-1199 (B.A.P. 9th Cir. Feb. 4, 2021) (unpublished). Read More

  • NACBA Files Amicus in Technical Abandonment Case

    Posted by NCBRC - March 1st, 2021

    NACBA/NCBRC filed an amicus brief in support of the debtors in a case where, two years after he elected not to administer a fully-disclosed cause of action against Ocwen, and the debtors’ bankruptcy case was closed, the chapter 7 trustee moved to reopen the case to obtain approval for a settlement agreement with Ocwen. Stevens v. Whitmore (In re Stevens), No. 20-60044 (9th Cir.) (filed Feb. 26, 2021). Read More

  • Modification under CARES Act

    Posted by NCBRC - February 18th, 2021

    For plan modification under the CARES Act, the debtor need not have been current in plan payments prior to enactment of the Act. In re Gilbert, No. 16-12120 (Bankr. E.D. La. Oct. 6, 2020).

    In four separate cases, debtors sought to modify their chapter 13 plans under section 1329(d) which Congress added to the Bankruptcy Code as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). In all four cases, the debtors’ plans were confirmed and they fell behind on payments prior to March 27, 2020. In three of the cases, the debtors sought modification of their plans to pay off the arrearages and extend the length of the plan beyond sixty months. In the fourth case, the debtor sought only to reduce payments to unsecured creditors. The trustee opposed the modifications arguing that the CARES Act permits modifications only if the debtors first fell behind in their plan payments after March 27, 2020, and the sole reason for the default was the pandemic.

    The bankruptcy court disagreed. Read More

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  • HAVEN Act Guide

    HAVEN Act Guide 2019

     The Honoring American Veterans in Extreme Need Act of 2019 (“HAVEN Act”) excludes certain benefits paid to veterans or their family members from the definition of current monthly income (“CMI”) found in the Bankruptcy Code. The HAVEN Act amends § 101(10A) of the Bankruptcy Code and supplements the 2005 amendments to the Code that excluded other government benefits, such as social security income. 

    This Guide provides an overview of the HAVEN Act identifies benefits that are excluded, and answers frequently asked questions.

     

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    Cases In Review January 2021

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  • Thank you!

    Thank you to the following organizations without whose support our work would not be possible.

     

    American College of Bankruptcy
    The American College of Bankruptcy is an honorary public service association of bankruptcy and insolvency professionals who are invited to join as Fellows based on a proven record of the highest standards of professionalism plus service to the profession and their communities.  Together with its affiliated Foundation, the College is the largest financial supporter of bankruptcy and insolvency-related pro bono legal service programs in the United States.

     

    NACBA
    The only national organization dedicated to serving the needs of consumer bankruptcy attorneys and protecting the rights of consumer debtors in bankruptcy. Formed in 1992, NACBA has more than 3,000 members located in all 50 states and Puerto Rico.

     

    O. Max Gardner Foundation, Inc.
    The O. Max Gardner Foundation, Inc. provides financial support to institutions devoted to charitable, scientific, literary or educational purposes.  NCBRC has been a recipient of grant awards from the foundation.

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