Author Archives: NCBRC

Bankruptcy Court May Not Limit Debtor’s Right to Modify as Condition of Confirmation

The Fifth Circuit held that the bankruptcy court improperly required a chapter 13 debtor to amend his plan to pledge 100% payment to unsecured creditors with no right to modify unless the modification likewise paid 100% or the debtor relinquished his right to discharge. Brown v. Viegelahn (In re Brown), No. 19-50177 (5th Cir. June […]

Uncashed Retirement Loan Check Not Exempt

The debtor’s uncashed loan check from her retirement account was property of the estate and was not exempt under section 522(d)(12). Ostrander v. Brown (In re Brown), No. 19-24 (B.A.P. 1st Cir. May 21, 2020). Prior to filing her bankruptcy petition, the debtor received, but did not cash, an $18,000 check representing a loan from […]

Arbitration Clause Not Enforced in Discharge Violation Case

In the absence of intervening legislative or Supreme Court directive, the Second Circuit followed its precedent finding that a debtor could not be compelled to arbitrate his contempt motion for violation of the discharge injunction. Belton v. GE Capital Retail Bank, No. 19-648 (2d Cir. June 16, 2020) (consolidated with Bruce v. Citicorp Inc., No. […]

$67,000 in Fees and Costs Reasonable for Stay Litigation

The debtors’ attorney was entitled to approximately $67,000.00 in attorney’s fees and expert witness fees and costs for his representation of the debtors in their action against the creditor for violation of the automatic stay. In re Moon, No. 13-12466 (Bankr. D. Nev. May 29, 2020). After they had obtained their discharge, the debtors reopened […]

Debtor and Trustee Making Duplicate Mortgage Payments

Where both the debtor and the trustee paid down the debtor’s mortgage and arrearage, the court did not err in finding that the resulting overpayment should go to the trustee. White v. Regions Bank, No. 19-130 (E.D. Tenn. Feb. 24, 2020). The debtor’s original chapter 13 plan provided for him to make mortgage payments outside […]

IRS Setoff Supersedes Exemption

The IRS’s right to set off the debtors’ tax overpayment against their pre-existing tax debt superseded the debtors’ right to exempt the anticipated refund. Copley v. U.S.A., No. 18-2347 (4th Cir. May 12, 2020). When the Copleys filed for chapter 7 bankruptcy they listed a debt to the IRS of over $13,500. They also claimed […]

Todeschi v. Juarez, No. 19-60051 (9th Cir.)

Type: Amicus Date: April 10, 2020 Description: Whether section 1129(b)(2)(B)(ii) requires debtors to offer new value for exempt property. Result: Pending. Juarez 9th Cir NACBA Amicus

Creditor Had Affirmative Duty to Stop State Contempt Action

“A creditor, who has put a collection effort into motion must affirmatively act to stop, stay, or hold the collection effort in abeyance or risk incurring liability once a bankruptcy commences.” Valentine v. Valentine, No. 19-40593, Adv. Proc. No. 19-4022 (E.D. Mo. Jan. 27, 2020). Before he filed for chapter 7 relief, the debtor and […]

Debtor May Pay Car Loan Outside Plan at 15% Interest Rate

The bankruptcy court did not abuse its discretion in confirming, over the trustee’s objection, a plan under which the chapter 13 debtor would pay her car loan outside the plan at the contractual interest rate of 15%. McDonald v. Chambers (In re Chambers), No. 19-10421 (E.D. Mich. Feb. 26, 2020). The debtor had three loans […]