In two nearly identical cases, the bankruptcy court granted the debtors’ attorney’s supplemental fee motions seeking compensation for work performed opposing proofs of claim for debts that were unenforceable due to the lapse of the state statute of limitations. In re Swilling, No. 13-12583 (Bankr. E.D. Tenn. Oct. 23, 2014), In re Alexander, No. 13-13462 (Bankr. E.D. Tenn. Oct. 22, 2014) (debtor’s attorney filed motions in five other cases based on similar factual scenarios).The court noted, however, that since the 2012 changes to Fed. Bankr. R. 3001(c), objections to those claims would now be deemed “routine.” [Read more…] about “Non-Routine” Fees for Objections to Late Claims Allowed
Proof of Claim Violates Discharge Injunction
An Alabama district court upheld a sanction award for violation of the discharge injunction based on the creditor’s filing a proof of claim in a subsequent bankruptcy. McLean v. Greenpoint Credit (In re McLean), No. 13-925 (M.D. Ala. Sept. 4, 2014). [Read more…] about Proof of Claim Violates Discharge Injunction
Attorney’s “No Money Down” Fee Collection Practice Violates BAPCPA
Two cases out of the Western District of Louisiana found that Attorney Glay H. Collier’s fee collection practices violated Sections 526, 528, 362, and 524 of the Bankruptcy Code. Wheeler v. Collier (In re Wheeler), No 11-1670 (W.D. La. May 22, 2014) and (July 17, 2014), and Patrick v. Collier (In re Patrick), No. 14-11203 (Bankr. W.D. La. July 23, 2014). [Read more…] about Attorney’s “No Money Down” Fee Collection Practice Violates BAPCPA
Ninth Circuit Permits Award of Appeal Fees
The Ninth Circuit has cracked open a door that Sternberg seemed to have slammed shut by holding that a debtor is not precluded from recovering, as damages, attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay. America’s Servicing Co. v. Schwartz-Tallard, No. 12-60052 (9th Cir. Apr. 16, 2014). [Read more…] about Ninth Circuit Permits Award of Appeal Fees
Applicable Commitment Period Applies where No Disposable Income
Adding to a growing trend among the circuit courts, the Fourth Circuit found that above-median debtors with negative disposable income must commit to a 60-month plan under Section 1325(b)(1). Pliler v. Stearns (In re Pliler), No. 13-1445 (4th Cir. March 28, 2014), on direct appeal from, In re Pliler, 487 B.R. 682 (Bankr. E.D. N.C. Feb. 21, 2013). [Read more…] about Applicable Commitment Period Applies where No Disposable Income
Denial of Confirmation of Fee-Only Plan
The Eleventh Circuit upheld the lower court’s denial of confirmation in the debtor’s fee-only Chapter 13 plan, finding that it did not satisfy the good faith requirements of Section 1325(a)(3) and (7). Brown v. Gore (In re Brown), No. 13-10260 (11th Cir. Feb. 14, 2014). [Read more…] about Denial of Confirmation of Fee-Only Plan
Court Rejects Proposed Order for Payment of Attorney Fees in Event of Dismissal
Language in a proposed order for attorney fees that, in the event of dismissal or conversion, the fees were to be paid out of undistributed funds held by the trustee was rejected by the bankruptcy court as unsupported by the Code. In re Weatherspoon, No. 11-46755 (Bankr. W.D. Wash. Jan. 3, 2014). [Read more…] about Court Rejects Proposed Order for Payment of Attorney Fees in Event of Dismissal
Debtor Not Responsible for Lender’s Rule 3002.1 Legal Fees
A bankruptcy court in Texas ruled that the legal fees incurred by a mortgage company in filing a Notice of Fees, Expenses, and Charges, could not be passed along to the debtor. In re Roife, No. 10-34070 (Bankr. S.D. Tex. Nov. 26, 2013). [Read more…] about Debtor Not Responsible for Lender’s Rule 3002.1 Legal Fees
Attorney Fees for Litigating Damage Actions Based On Stay Violation
The Ninth Circuit decision in Sternberg v. Johnston, reared its ugly head to limit recovery of attorney fees in a stay violation action in the recent case of Check Into Cash v. Snowden (In re Snowden), No. 12-1095 (W.D. Wash. March 11, 2013). Snowden came to the district court on appeal and cross-appeal of the Bankruptcy Court’s award of damages for emotional distress and punitive damages resulting from Check Into Cash (CIC)’s violation of the automatic stay.
After affirming both the emotional distress and punitive damage awards the court rejected the debtor’s invitation to revisit its earlier decision in a previous appeal that the award of attorney fees was properly limited, under Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010), cert. denied, 131 S. Ct. 102 (2010), to those fees pre-dating the adversary proceeding. [Read more…] about Attorney Fees for Litigating Damage Actions Based On Stay Violation
Lack of Notice Constitutes Waiver of Wells Fargo’s Claim
Declining to “dim the light that shines at the end of the long 60-month tunnel for compliant debtors,” the Bankruptcy Court for the Southern District of Texas held that Wells Fargo waived its right to collect post-petition shortfalls in escrow payments due to its failure to comply with notice requirements. In re Garza, No. 08-60088 (Bankr. S.D. Tex. Oct. 1, 2012). [Read more…] about Lack of Notice Constitutes Waiver of Wells Fargo’s Claim