Where the debtor’s original exemption claim was for bodily injury, the trustee had a reasonable argument that the actual post-petition settlements of her personal injury case, which specified that they were for non-bodily-injury damages, did not fall under that exemption. Because the trustee’s objection related to the post-settlement exemption claim, it was timely. Biondo v. Gold, Lange, Majoros & Smalarz, P.C., No. 22-1666 (6th Cir. Feb. 8, 2023). Read More
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Trustee Entitled to Attorney’s Fees for Exemption Dispute
Posted by NCBRC - March 14th, 2023
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Debt Owed to Trust is DSO
Posted by NCBRC - March 9th, 2023
Where the debtor’s payments to his ex-wife’s Trust were in lieu of alimony and were understood by both the debtor and his ex-wife to be for her future support, the payments were in the nature of a domestic support obligation not dischargeable in bankruptcy. Hundt v. Ventrone (In re Ventrone), No. 21-11643, Adv. Proc. Nos. 22-00005, 22-00026 (Bankr. E.D. Pa. Jan. 2023). Read More
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Debt Collector Can’t Blame Debtor or FDCPA for Discharge Violation
Posted by NCBRC - March 3rd, 2023
A debt collector’s efforts to collect an unsecured judgment that had been discharged in bankruptcy violated the discharge injunction even though the debtor requested information about the debt. The statement sent to the debtor was explicitly designated an “attempt to collect a debt,” and the debt collector had sufficient information to alert it to the debtor’s bankruptcy discharge. Skaggs v. Gooch (In re Skaggs), No. 17-50941 (Bankr. W.D. Va. Jan. 19, 2023). Read More
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Good Faith in Failure to Disclose Lawsuit
Posted by NCBRC - February 27th, 2023
Where the debtor failed to amend her schedules before her case was closed, she forfeited the right to do so as a matter of course, but based on the facts and circumstances in this case, the debtor’s neglect was excusable. The court allowed her to reopen her case to claim an exemption in a personal injury settlement. In re Wantz, No. 18-2851 (Bankr. W.D. Mich. Jan. 5, 2023). Read More
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Passive Voice and 1885 Case Sink Debt Discharge
Posted by NCBRC - February 23rd, 2023
SCOTUS determined that section 523(a)(2)(A), which excludes from discharge debts incurred by fraud, applies to innocent partners of the fraudulent actor where the statute does not draw any connection between the individual debtor and the fraudulent conduct but instead is written in passive tense saying merely that a debt owed by an individual and procured by fraud is nondischargeable. Bartenwerfer v. Buckley, No. 21-908, __ U.S. __ (Feb. 22, 2023). The decision was unanimous with a concurring opinion by Justice Sotomayor adding that the decision turned on the fact that the debtor had an agency relationship with the fraudulent actor. Read More
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Creditor Estopped from Objecting to Amended Plan
Posted by NCBRC - February 21st, 2023
A mortgage creditor who accepted the debtor’s plan could not late object to confirmation of an amended plan that contained the same terms with respect to that creditor. In re Ritter, No. 22-40120 (Bankr. S.D. Ill. Feb. 2, 2023). Read More
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Chapter 7 Trustee Bound by Pre-Conversion Agreement
Posted by NCBRC - February 17th, 2023
The chapter 7 trustee was bound by the chapter 13 trustee’s pre-conversion concession that the creditor’s liens were valid, and therefore the chapter 7 trustee could not prevent the creditor from receiving the proceeds from the sale of the property securing the liens. In re Hillis, No. 20-70372 (Bankr. M.D. Ga. Jan. 11, 2023). Read More
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National Consumer Bankruptcy Rights Center Seeks Part-time Executive Director
Posted by JIm Haller - February 16th, 2023
The National Consumer Bankruptcy Rights Center is seeking a new Executive Director. The position will consist of remote work as an independent contractor, approximately half time, although hours may vary from month to month.
The National Consumer Bankruptcy Rights Center is a 501(c)(3) organization dedicated to protecting the integrity of the bankruptcy system and preserving the rights of consumer bankruptcy debtors. Created in 2010, NCBRC was founded by the Board of the National Association of Consumer Bankruptcy Attorneys to provide assistance to consumer debtors and their counsel in cases likely to impact consumer bankruptcy law. For more information, please see our website at: www.ncbrc.org
Duties include:
• Coordinating and supervising the filing of amicus briefs in appellate courts around the country, including recruiting brief writers and writing some of the briefs
• Advising consumer debtors’ counsel re appeals they have filed or are considering, including review of briefs
• Coordinating fundraising, including writing grant applications
• Overseeing efforts to educate attorneys about bankruptcy appeals, including presentations at CLE programs,
• Ensuring NCBRC’s web site is updated, and
• Reporting to the NCBRC Board of DirectorsQualifications include:
• Experience in consumer bankruptcy appellate matters
• Deep knowledge of consumer bankruptcy law
• Excellent legal writing and verbal communication skills
• Juris Doctor Degree and admission to and good standing in a state and federal bar, and
• Demonstrated commitment to working on behalf of consumer debtorsCompensation is at an hourly rate, based on experience.
For a detailed job description or questions about position contact henry@henrysommer.com
To apply, send a resume, two references, and one or two writing samples (preferably appellate briefs) to henry@henrysommer.com.
This position will remain open until filled. Applications should be submitted by March 15, 2023.
The National Consumer Bankruptcy Rights Center is an Equal Opportunity and Affirmative Action Employer, and encourages applications from all qualified individuals without regard to race, color, national origin, religion, sex, gender identity, sexual orientation, age, disability or veteran status, or to other non-work-related factors. -
Creditor Must Resume Statements After Discharge
Posted by NCBRC - February 15th, 2023
PNC’s TILA obligation to provide regular statements concerning the plaintiffs’ debt resumed after the debtors received their bankruptcy discharge even though the plaintiffs’ bankruptcy case was not closed until almost four years later. Polonowski v. PNC Bank, NA, No. 20-151 (W.D. Mich. Jan. 23, 2023). Read More
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Mortgage Statements Not Attempts to Collect a Debt
Posted by NCBRC - February 9th, 2023
Where statements sent by the mortgage servicer listed the higher, pre-modification amount due, but specifically stated they were not an attempt to collect a debt and did not include an amount in potential late fees, the bankruptcy court erred in finding the statements were in violation of the automatic stay. Freedom Mortgage Corp. v. Dean, No. 22-1469 (M.D. Fla. Jan. 26, 2023). Read More
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HAVEN Act Guide
The Honoring American Veterans in Extreme Need Act of 2019 (“HAVEN Act”) excludes certain benefits paid to veterans or their family members from the definition of current monthly income (“CMI”) found in the Bankruptcy Code. The HAVEN Act amends § 101(10A) of the Bankruptcy Code and supplements the 2005 amendments to the Code that excluded other government benefits, such as social security income.
This Guide provides an overview of the HAVEN Act identifies benefits that are excluded, and answers frequently asked questions.
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Thank you!
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.
Visit NACBA.org
The O. Max Gardner Foundation, Inc. provides financial support to institutions devoted to charitable, scientific, literary or educational purposes. NCBRC has been a recipient of grant awards from the foundation.