NCBRC Editor

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Court Declines to Enforce Arbitration Clause in Student Loan Agreement

An arbitration clause in a student loan contract is unenforceable where the debtor seeks an order of discharge of the loan in bankruptcy. Roth v. Butler University (In re Roth), No. 17-4109, Adv. Proc. No. 18-50097 (Bankr. S.D. Ind. Nov. 16, 2018).

After Matthew Roth obtained his Chapter 7 discharge, he moved to reopen his bankruptcy to seek discharge of his student loans under section 523(a)(8). One of his student loan lenders, Sallie Mae, answered with a motion to compel arbitration based on the terms of the student loan agreement. [Read more…] about Court Declines to Enforce Arbitration Clause in Student Loan Agreement

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Avoidability of Tuition Payments Depends on Timing

Once tuition funds became non-refundable, the universities receiving them would be considered initial transferees, and the transfers would be subject to avoidance under section 550(a). Pergament v. Brooklyn Law School, Nos. 18-2204, 18-2235, 18-2236 (E.D. N.Y. amended opinion Jan. 4, 2019).

In three adversary proceedings, the Chapter 7 Trustee, Marc Pergament, sought to recover tuition payments the debtor, Harold Adamo, made for his children’s education in three universities. The bankruptcy court found that the trustee could not avoid the transfers because the institutions were subsequent transferees who took in good faith under section 550(b). [Read more…] about Avoidability of Tuition Payments Depends on Timing

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BAP Reverses Finding of Student Loan Exception from Discharge

Where evidence of the non-profit entity’s involvement in the debtor’s student loan was minimal, the bankruptcy appellate panel found that the lender should not have been granted summary judgment on the issue of nondischargeability. Page v. JP Morgan Chase Bank, No. 18-6011 (B.A.P. 8th Cir. Nov. 20, 2018).

Richelle Page obtained a loan from Chase Bank through its Education One Undergraduate Loan Program. The loan was then sold to the National Collegiate Student Loan Trust (NCSLT). When she filed for bankruptcy, NCSLT sought a finding that the loan was nondishargeable under section 523(a)(8). The bankruptcy court granted NCSLT’s motion for summary judgment. [Read more…] about BAP Reverses Finding of Student Loan Exception from Discharge

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Obligation to Return Funds to Debtor upon Dismissal Preempts State Levy Law

The Chapter 13 trustee had no choice but to return post-petition funds to the debtor upon pre-confirmation dismissal of his bankruptcy despite state law permitting the Division of Child Support to levy against any person holding the debtor’s funds—Commonwealth of Va., Dept. of Soc’l Serv. v. Webb, No. 17-2328 (4th Cir. Nov. 19, 2018).

Chapter 13 debtor, Barry Webb, paid $3,000 to the chapter 13 trustee while his bankruptcy was pending confirmation. After he was unable to establish a confirmable plan, his bankruptcy was dismissed and the Virginia Department of Social Services, Division of Child Support, presented the trustee with an Order to Withhold the funds for payment to the Division. The bankruptcy court found that the Code required the trustee to return the funds to the debtor. The district court affirmed. [Read more…] about Obligation to Return Funds to Debtor upon Dismissal Preempts State Levy Law

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District Court Upholds Sanctions and Suspension Against UpRight Law

Where a “local partner” working under the auspices of Chicago-based UpRight Law botched a Louisiana chapter 7 case, the district court affirmed the bankruptcy court’s order suspending UpRight from practice in the district and imposing other sanctions. Law Solutions Chicago, LLC d/b/a UpRight Law, LLC v. U. S. Trustee, No. 18-216 (W.D. La. Sept. 24, 2018).

Appellant, UpRight Law, is a bankruptcy law practice based in Chicago using a business model under which it contracts with “local partners” around the country to handle cases for a percentage of the fee paid to UpRight. When Lillie Mae Banks sought representation for her Louisiana bankruptcy case, UpRight assigned her case to one of its local partners (after first assigning it to an attorney who was not licensed to practice in Louisiana). After Ms. Banks’s case was “horribly screwed up” the U.S. Trustee stepped in seeking disgorgement of the fees she paid, a civil penalty, and other sanctions against UpRight and local counsel. [Read more…] about District Court Upholds Sanctions and Suspension Against UpRight Law

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Foreclosure Not Complete Until Deed Recorded so Debtor May Cure and Maintain

Where the debtor’s residence was sold in a foreclosure sale but the mortgagee failed to record the foreclosure deed as required by state law, the debtor had the right to cure and maintain under section 1322(c). In re Vertullo, 18-10552 (Bankr. D. N.H. Oct. 1, 2018).

In this case, the mortgagee, U.S. Bank, moved for relief from stay, arguing that because the foreclosure auction was completed prior to Darlene Vertullo’s chapter 13 bankruptcy filing, the property did not enter the bankruptcy estate and she could not cure and maintain under section 1322(c). Ms. Vertullo countered that U.S. Bank’s failure to record the deed allowed section 1322(c) to preempt the state law which would have otherwise divested her of ownership interest in the property upon foreclosure sale at auction. [Read more…] about Foreclosure Not Complete Until Deed Recorded so Debtor May Cure and Maintain

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Ninth Circuit Certifies Community Property Question to Calif. S.Ct

In Brace v. Speier (In re Brace), the Ninth Circuit certified the following question to the Supreme Court of California: “Does the form of title presumption outlined in Section 662 of the California Evidence Code overcome the community property presumption outlined in Section 760 of the California Family Code in Chapter 7 bankruptcy cases where: (1) the debtor husband and non-debtor wife acquire property from a third party as joint tenants; (2) the deed to that property conveys the property at issue to the debtor husband and non-debtor wife as joint tenants; and (3) the interests of the debtor and non-debtor spouse are aligned against the trustee of the bankruptcy estate?” No. 17-60032 (9th Cir. Nov. 8, 2018) (order certifying question). [Read more…] about Ninth Circuit Certifies Community Property Question to Calif. S.Ct

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Debtor Cannot Exempt His Interest in Ex-Wife’s Retirement Accounts

Accounts the debtor received from his ex-wife in a divorce were not retirement accounts for bankruptcy exemption purposes because, even though his ex-wife had contributed to the accounts for retirement, his interest was merely through a property settlement. Lerbakken v. Sieloff and Assoc., P.A., No. 18-6018 (B.A.P. 8th Cir., Oct. 16, 2018).

The bankruptcy court disallowed chapter 7 debtor, Brian Lerbakken’s, claimed exemptions for a 401K account and an IRA that he had received in a property settlement when he and his wife divorced. The funds in the accounts were contributed in their entirety by his ex-wife. [Read more…] about Debtor Cannot Exempt His Interest in Ex-Wife’s Retirement Accounts

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Debtors Entitled to Discharge Despite Bad Faith Conduct

The debtors were entitled to discharge once they completed their payments under the plan notwithstanding the fact that they “gamed the system” and conducted their bankruptcy in bad faith. Davis v. Holman (In re Holman), No. 17-1118 (D. Kans. Oct. 31, 2018).

During the course of their Chapter 13 bankruptcy, debtors, Shala and Nathan Holman, failed to disclose assets and debts, employment status, post-petition debts, and other relevant information. They modified their Chapter 13 plan numerous times and responded to challenges by the trustee based on bad faith. In one challenge, addressing the entirety of their misconduct to date, the court held a hearing and the parties reached a stipulated agreement resolving the issues. In July, 2016, the trustee again sought dismissal of their case based on bad faith. While that litigation was pending, the debtors completed their payments in accordance with their confirmed plan. After trial on the motion, the bankruptcy court found that while the debtors’ conduct indeed constituted bad faith, the court was precluded from dismissing the case because the debtors’ successful completion of their plan payments entitled them to discharge. [Read more…] about Debtors Entitled to Discharge Despite Bad Faith Conduct

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Automatic Stay Does Not Require Return of Repossessed Property

A New Jersey District Court applied the minority view that a creditor does not have an affirmative duty to return a vehicle repossessed pre-petition upon learning of the debtor’s bankruptcy filing. Denby-Peterson v. Nu2u Auto World, No. 17-9985 (D. N.J. Nov. 1, 2018).

Joy Denby-Peterson entered into a purchase money security agreement for the purchase of her 2008 Corvette. The original seller transferred the debt to Nu2u. When Ms. Denby-Peterson failed to make payments according to the agreement, Nu2u repossessed the vehicle. Ms. Denby-Peterson filed for Chapter 13 bankruptcy and initiated an adversary proceeding seeking turnover of the vehicle and actual damages for violation of the automatic stay. The bankruptcy court ordered the return of the vehicle, but denied Ms. Denby-Peterson’s motion for sanctions. [Read more…] about Automatic Stay Does Not Require Return of Repossessed Property