Author Archives: NCBRC

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

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 Moon v. Rushmore Loan Management Services, LLC., No. 20-1199 (B.A.P. 9th Cir. Feb. 4, 2021) (unpublished).

NACBA Files Amicus in Technical Abandonment Case

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 […]

Stevens v. Whitmore, No. 20-60044 (9th Cir.)

Type: Amicus Date: February 26, 2021 Description: Whether chapter 7 trustee abandons cause of action asset under section 554(c) when the cause of action is fully disclosed and he determines that it lacks value to the estate, but the debtors listed the asset in their SOFA rather than in their schedules. Result: Pending Stevens 9th […]

McCoy v. U.S.A., No. 20-886 (S.Ct.)

Type: Amicus Date: January 29, 2021 Description: What is the proper test for determining undue hardship for the discharge of student loans. Result: Pending. McCoy Amicus SCt Jan 2021

Modification under CARES Act

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 […]

Tribe Has Sovereign Immunity from Stay Violation Suit

Payday lenders belonging to a Native American Tribe enjoy sovereign immunity from suit under section 362 for violation of the automatic stay. In re Coughlin, No. 19-14142 (Bankr. D. Mass. Oct. 19, 2020). The chapter 13 debtor filed a motion seeking a finding that a group of payday lenders violated the automatic stay when they […]

Legal Malpractice Claim Accrued When Debtors Denied Discharge

Where the only injury resulting from bankruptcy counsel’s conduct was denial of discharge, the cause of action for legal malpractice accrued post-petition and belonged to the debtors rather than the chapter 7 bankruptcy estate. Church Joint Venture, L.P. v. Blasingame, No. 19-5505 (6th Cir. Jan. 26, 2021). The debtors filed for chapter 7 bankruptcy but […]

Notification to State Tax Board of Federal Tax Reevaluation is Return “Equivalent”

A state-mandated notification with the state taxing authority of a change in the taxpayer’s federal taxes is a “return, or equivalent report or notice,” which, if not filed by the taxpayer, renders the state tax debt nondischargeable under section 523(a)(1)(B). Berkovich v. Calif. Franchise Tax Bd., No. 20-1025 (B.A.P. 9th Cir. Oct. 5, 2020).

Voluntary Dismissal Under 1307(b) over Objection by Creditor

The debtor was permitted to voluntarily dismiss her chapter 13 case under section 1307(b) despite the judgment creditor’s objections and a technical error, where, even if a good faith component is read into the statute, the creditor failed to provide evidence of bad faith and was otherwise provided due process. Murphy v. Marinari (In re […]

Rodriguez v. Barrera, No. 20-1376 (10th Cir.)

Type: Amicus Date: January 14, 2021 Description: Whether proceeds from sale of homestead before conversion from 13 to 7 are property of the estate. Result: Pending Barrera Amicus Brief 10th Cir Jan 2021