Last week, the U.S. Supreme Court heard oral arguments on a case with the potential to radically change current bankruptcy law. At issue are three provisions of the 2005 amendments to the Code.
Petitioner, Milavetz, Gallop & Milavetz, alleges that an attorney is not a “debt-relief agency” and therefore §526(a), which prohibits attorneys from encouraging clients considering filing bankruptcy to take on more debt, is a violation of free speech. Petitioners claim that §528(a)(4) and §528(b)(2)(B), which require attorneys to make certain disclosures when advertising, also violate the 1st Amendment.
The Justices are set to make their decision in about 90 days.
Categories: 526(a) · 528(a) · 528(a)(4) · 528(b)(2)(B) · Bankrupt · amendment · attorneys · bankruptcy · ch 13 · code · debt relief agency · discharge · disclosure · first amendment · free speech · judge · supreme ct · u.s. constitution
In re Dorsie Wayne Mosher, Jr., 06 B 71261
William T. Neary, US Trustee, v. Mosher, 07 A 96013
Issued: November 4, 2009
By Judge: Manuel Barbosa
Summary: The Court ruled in favor of the U.S. Trustee by denying the Debtor’s petition to discharge. Under 11 U.S.C. § 727(a)(2), the Court must grant discharge to the debtor unless the debtor intentionally hindered, delayed, or defrauded a creditor or Trustee. Debtor knowingly failed to list his income and admitted to making a conscious decision to list only certain debts in his petition. The Court finds that the Debtor “knowingly and fraudulently made false oaths” and thus should be denied a discharge under Section 727(a)(4)(A).
View and download the opinion in PDF format here.
In re Jody R. Deutscher and Kelly C. Deutscher, 08 B 73603
Issued: October 28, 2009
By Judge: Manuel Barbosa
Summary: The Court granted U.S. Trustee’s motion to dismiss. Under 11 U.S.C. § 707(b)(1), the Court may dismiss a case in which the debts are primarily consumer debts, if the granting of relief is tantamount to abuse of the provisions of Chapter 7. The Debtors fall under two applicable provisions: 1. Debtors purchased luxuries on credit on the eve of bankruptcy 2. Debtors’ budget is “excessive or unreasonable.” As the Court found, The Debtors want to continue a lifestyle of luxury, purchasing a yacht and boat, “even after seeking a bankruptcy discharge by reaffirming their debt on these luxury items rather than […] do some belt tightening.”
View and download the opinion in PDF format here.
In re Joseph M. Phelan and Mary M. Phelan, 09 B 70398
Issued: October 28, 2009
By Judge: Manuel Barbosa
Summary: Under the Fifth Amendment’s Due Process clause, creditors have the right to “reasonable notice” when being listed as a creditor in bankruptcy petitions. Creditor Employee Benefits Security Administration (ESBA) did not learn of Debtor’s intent to file for bankruptcy until at east two months after the date required by Fed. R. Bank. P. 4007(c). Furthermore, Debtors failed to list EBSA on their bankruptcy petition. Therefore the Court has granted the Secretary of Labor leave to file an adversary complaint for determination of dischargeability.
View and download the opinion in PDF format here.
Categories: 707 · 727 · IL · ND · UST · WD · adversary · bankruptcy · barbosa · ch 13 · ch 7 · chapter 7 · cir 7 · consumer · current-events · discharge · dismissal · individual · opinion
O'Bama - the fix is in
From CNN.com
Obama foreclosure fix open for business The Obama administration’s foreclosure prevention program is open for business. The multipronged fix calls for companies to help struggling borrowers by modifying loans so monthly payments are no more than 31% of monthly gross income. Under the program, homeowners who haven’t missed a payment can refinance into lower-cost loans even if they have little or no equity. The $75 billion plan will provide incentives to borrowers and loan servicers and investors to spur mortgage modifications. The government will also subsidize interest rate reductions to get borrowers to affordable monthly payments. “This plan will help make home ownership more affordable for nine million American families and in doing so, help to stop the damaging impact that declining home prices have on all Americans,” said Housing Secretary Shaun Donovan. Borrowers can now contact their servicers to see whether they are eligible for assistance. Federal officials will promote the program at homeownership events nationwide.
Categories: CA · bubble · ch 13 · chapter 7 · consumer · cramdown · credit · creditor · crisis · current-events · data · debt · depreciation · discharge · foreclosure · fraud · income · individual · investments · legislation · mortgage · property · real property · research · sale · short sale
seal of the bankruptcy court
In re Stamat, 07-13379
U.S. Trustee v. Stamat, 07-01278
Issued September 24, 2008
Judge Jack B. Schmetterer
View and Download the Opinion in PDF format here
In re Gage, 07-06876
Issued September 17, 2008
Judge John H. Squires
View and Download the Opinion in PDF format here
In re Cramer, 08-3853
Issued September 12, 2008
Judge A. Benjamin Goldgar
View and Download the Opinion in PDF format here
Technorati tags:
bankruptcy court,
nd il ed,
northern district,
illinois,
eastern division,
schmetterer,
squires,
goldgar,
opinions,
adversary proceeding,
U.S. Trustee
Categories: BAPCPA · ED · IL · ND · adversary · assets · automatic stay · bad faith · bankruptcy · case update · ch 13 · ch 7 · cir 7 · consumer · creditor · current-events · data · discharge · dismissal · disposable · goldgar · income · individual · schmetterer · squires
cir 1
In Re Weaver, 08-8046 [Sep. 17, 2008]
In a decision involving an attempted appeal from a decision under the BAPCPA, a petition for leave to appeal is denied and appeal is terminated where 1) without resolving the jurisdictional question the court exercised its discretion under section 158(d)(2)(A) to deny leave to appeal; and 2) allowing the appeal to proceed may not have served the purposes of section 158(d)(2), i.e. a rapid and definitive resolution of the underlying legal question.
Richmond v. NH S.Ct. Comm. on Prof. Conduct, 07-2671 [Sep. 19, 2008]
In a bankruptcy case involving an underlying obligation relating to attorney disciplinary proceedings, the holding that an order to pay costs of bringing disciplinary proceedings cannot be discharged in Chapter 7 bankruptcy is affirmed because the award of costs qualified as a non-dischargeable discretionary penalty under the terms of 523(a)(7).
Technorati tags:
bankruptcy estate,
bankruptcy,
law,
lawyer,
conduct,
discipline,
sanctions,
discharge dischargeable,
nondischargeable,
523(a)(7),
opinions,
1st circuit,
appellate court
Categories: 523 · BAPCPA · Fed. R. Bankr. Proc. · appellate court · bankruptcy · ch 13 · ch 7 · cir 1 · consumer · current-events · data · discharge · opinion
