Author Archives: NCBRC

Bruce v. Citigroup, Inc., No. 22-1000 (2d Cir.)

Type: Amicus Date: November 23, 2022 Description: Whether bankruptcy court has authority to adjudicate a national class action claim for a violation of the discharge injunction. Debtor is the appellee. Result: Pending. Bruce 2d Cir NACBA Amicus Nov 2022

Exemption Amount in Lien Avoidance Action

For purposes of lien avoidance under section 522(f), the debtor was able to claim a homestead exemption in the amount of the California exemption in effect at the time of his bankruptcy petition, despite California law that fixed the exemption amount at the time of lien creation. Barclay v. Boskoski (In re Boskoski), No. 22-55098 […]

Tribal Sovereign Immunity Waived

In a succinct opinion, the Ninth Circuit reaffirmed its 2004 decision that Congress abrogated tribal sovereign immunity with respect to the automatic stay. Numa Corp. v. Diven, No. 22-15298 (9th Cir. Nov. 14, 2022) (unpublished). NCBRC and NACBA filed an amici brief in support of the debtor in this case.

Ovation Denied Keys to the Candy Store

A bankruptcy court rejected the tax lender’s challenge to the district’s Mandatory Form Chapter 13 Plan where it found the lender, whose claim would be fully paid through that plan, simply did “not want this Court’s oversight in approving claims for reimbursement for any post-petition expense charges.” In re Martin, No. 22-30148 (Bankr. S.D. Tex. […]

Pawn Contract Disavowing Bankruptcy Intent Is Enforceable

A pawn agreement requiring the borrower to affirm that she was not in bankruptcy and did not intend to file for bankruptcy was not unenforceable as against public policy because the agreement did not commit the borrower to an agreement not to file for bankruptcy at a later date. TitleMax v. Roby, No. 21-630 (M.D. […]

Post-petition Appreciation Not Part of Chapter 13 Estate

The “estate termination theory” allows the debtors to retain proceeds from the post-confirmation sale of prepetition property, where the value of the property appreciated and was sold after the property had revested in the debtors. In re Klein, No. 17-19106 (Bankr. D. Colo. Aug. 23, 2022).

Absent Objection 100% FMV Exemption May Exceed Statutory Cap

A claimed exemption for 100% of FMV is allowed when no party in interest objects despite the fact that once the property appreciated post-petition, the exemption was greater than the statutory limit. Masingale v. Munding (In re Masingale), No. 22-1016 (B.A.P. 9th Cir. Nov. 2, 2022).

Plan’s Discriminatory Treatment of Student Lender not Unfair

Two chapter 13 plans providing for maintenance of the debtors’ student loans outside the plan satisfied section 1325(b)(1)(A)’s requirement that claims be paid at 100%, and did not unfairly discriminate against the class of student lenders even though they would receive smaller monthly payments than other unsecured claims and not be fully paid at the […]

No D/C of Post-D/C Transaction Based on Pre-Bankruptcy Guaranty

A post-discharge liability arising out of pre-petition personal guaranty was not discharged in the debtors’ bankruptcy where the debt was based on transactions occurring four years after the debtors received their discharge. Reinhart Foodservice, LLC v. Schlundt, No. 21-1027 (E.D. Wisc. Oct. 27, 2022).

Statutory vs. Judicial Lien

Where the state workers’ compensation procedure involves quasi-judicial steps including the right to notice, an opportunity to be heard, and the right to appeal an unfavorable decision, a lien arising out of that process is “judicial” rather than “statutory.” In re Shippy, No. 22-40706 (Bankr. W.D. Wash. Oct. 24, 2022).