Type: Amicus
Date: June 17, 2019
Description: Whether credit reporting agencies and information furnishing creditors violated the FCRA by failing to perform reasonable investigation.
Result: Pending
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Jaras v. Equifax Inc. No. 17-15201 (9th Cir.)
Posted by NCBRC - July 3rd, 2019
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Navient Solutions, LLC v. McDaniel, No. 18-1445 (10th Cir.)
Posted by NCBRC - May 1st, 2019
Type: Amicus
Date: April 18, 2019
Description: Whether the bankruptcy court erred in ruling that the expression “an obligation to repay funds received as an educational benefit, scholarship or stipend” in 523(a)(8)(A)(ii) does not include a loan, so that the Chapter 13 debtors’ $107,467 debt for six Sallie Mae “Tuition Answer Loans” was discharged.
Result: PendingMcDaniel 10th Cir Amicus April 2019
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Henry v. Educational Financial Service, No. 18-20809 (5th Cir.)
Posted by NCBRC - May 1st, 2019
Type: Amicus
Date: April 12, 2019
Description: Denial of creditor’s motion to compel arbitration in dishargeability proceeding.
Result: Pending -
Educ. Credit Management Corp. v. Metz, No. 18-1281 (D. Kans)
Posted by NCBRC - February 20th, 2019
Type: Amicus
Date: January 29, 2019
Description: Whether the bankruptcy court erred in granting the debtor a partial discharge of her student loan debt, discharging all but the original principal balance of the loans.
Result: Judgment affirmed, May 2, 2019. -
Sterling v. Southlake Nautilus Health and Racquett Club, Inc. , No. 18-2773 (7th Cir.)
Posted by NCBRC - February 20th, 2019
Type: Amicus
Date: February 6, 2019
Description: Whether the bankruptcy court erred in ruling that a creditor and its law firm did not violate the discharge injunction when, after the Chapter 7 debtor’s discharge, she was arrested pursuant to a state court bench warrant that had been issued in supplemental collection proceedings against the debtor in state court.
Result: Pending -
Lerbakken v. Sieloff and Assoc., P.A., No. 18-3415 (8th Cir.)
Posted by NCBRC - February 20th, 2019
Type: Amicus
Date: February 12, 2019.
Description: Whether the bankruptcy court erred in denying the Chapter 7 debtor’s claimed exemption in funds in a 401(k) account and an IRA that had been awarded to him in a prepetition marital dissolution proceeding.
Result: Pending.Lerbakken 8th Cir NACBA Amicus Feb 2019
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Bankruptcy Court holds Debtor is Entitled to Chapter 13 Discharge even if Co-Debtor is Delinquent on Post-Petition DSO Payments
Posted by NACBA - February 15th, 2019
A bankruptcy court recently reviewed the issue whether a debtor can receive a discharge under § 1328 even if her co-debtor husband is delinquent on a post-petition DSO payment. The court examined the requirements for discharge using the plain language of § 1328(a).
In this case the debtors, Mr. and Mrs. Hernandez, filed a joint chapter 13 bankruptcy. At filing neither owed a DSO. Approximately two years into their confirmed plan, Mr. Hernandez became liable for a DSO and subsequently fell behind in those payments. Both parties were aware of the DSO and neither reported the delinquency to their attorney nor the trustee.
After completion of the plan payments, Mrs. Hernandez moved for entry of discharge pursuant to 11 U.S.C. § 1328(a). The Trustee objected arguing Mrs. Hernandez was unjustly enriched and that failure to amend the plan demonstrates bad faith. No party disputed that all plan payments were made.
To read more and access the opinion click here.
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Bankruptcy Court Rejects Ditech’s Standing to file Mortgage Claim
Posted by NACBA - February 14th, 2019
A bankruptcy court recently expunged a claim of Ditech Financial LLC (Ditech) asserting that it was the creditor and the servicer of a note secured by an investment property (the “Property”) owned by the Debtors. Ditech filed a petition for bankruptcy in Case No. 19-10414 (Bankr. S.D.NY February 11, 2019). The order was entered in another proceeding before a different judge after Ditech’s bankruptcy was filed.
In this case the Debtors filed a chapter 11 and sought to sell the Property free and clear of all liens pursuant to 11 U.S.C. § 363. Ditech filed its claim. The Debtors successfully objected to Ditech’s claim because Ditech had not demonstrated it had standing. Ditech then filed a motion to reconsider which was granted. Meanwhile the court granted the motion to sell the Property but kept the proceeds in escrow pending the new hearing on the standing issue.
Ominously, the court’s opinion began with “Throughout this case Ditech Financial LLC (“Ditech”) has shown disdain for this Court and for [the] debtors…”
To read more and get the opinion click here.
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10th Circuit BAP Says Amending Schedules in a Reopened Case is not Subject to Excusable Neglect Test
Posted by NACBA - February 6th, 2019
The Bankruptcy Appellate Panel for the 10th Circuit recently addressed a thorny issue about amending schedules in reopened cases. See In re Dollman, BAP No. NM-18-030(10th Cir. B.A.P. February 5, 2019). The question is whether a debtor in a reopened case seeking to amend schedules must first move for an extension of time pursuant to Fed.R.Bankr.P. 9006, and demonstrate excusable neglect.
In Dollman and the consolidated companion case In re Mendoza, both debtors unknowingly failed to disclose personal injury claims in their schedules. Both cases received a chapter 7 discharge. Both debtors reopened their cases to amend their schedules and claim exemptions in the settlements. In both cases the chapter 7 trustee objected to the amended schedules asserting that the debtors must show excusable neglect under Fed.R.Bankr.P. 9006(b) before they could exercise their rights to amend under Fed.R.Bankr.P. 1009(a). The bankruptcy courts sustained those objections on the basis that neither of them could show excusable neglect for failing to amend schedules prior to the closing of their cases.
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Bias v. Tangipahoa Parish School Bd., No. 17-30982 (5th Cir.)
Posted by NCBRC - December 13th, 2018
Type: Amicus
Date: April 18, 2018
Description: Whether False Claims Act case was properly dismissed on judicial estoppel grounds for failure to disclose it to the bankruptcy court.
Result: Judgment affirmed, December 5, 2018 (withdrawn). New opinion issued March 22, 2019. Affirmed.
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Thank you to the following organizations without whose support our work would not be possible.
American College of Bankruptcy
The American College of Bankruptcy is an honorary public service association of bankruptcy and insolvency professionals who are invited to join as Fellows based on a proven record of the highest standards of professionalism plus service to the profession and their communities. Together with its affiliated Foundation, the College is the largest financial supporter of bankruptcy and insolvency-related pro bono legal service programs in the United States.NACBA
The only national organization dedicated to serving the needs of consumer bankruptcy attorneys and protecting the rights of consumer debtors in bankruptcy. Formed in 1992, NACBA has more than 3,000 members located in all 50 states and Puerto Rico.O. Max Gardner Foundation, Inc.
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