The Bankruptcy Law Firm, Prof. Corp.
New Bankruptcy Filing Fee Increases to Take Effect June 1
The Judicial Conference of the United States has approved several bankruptcy related fee increases to take effect starting June 1. Based on the chapter, the cost to file will be: Chapter7: $335 Chapter13: $310 Chapter9,11and15: $1,717 Chapter 12: $275 The fee schedule changes project to raise about $35 million per year for the courts, based on current case loads.
It’s hard to get a Court to Change an Already Entered Order: Tevis v. Burkart, et al. (In re Tevis)
It’s hard to get a Court to Change an Already Entered Order: Tevis v. Burkart, et al. (In re Tevis), Case No. EC-13-1211-KiKuJu (9th Cir. BAP Jan. 30, 2014), the Ninth Circuit Bankruptcy Appellate Panel affirmed an order of the bankruptcy court denying a chapter 13 debtor’s motion for relief from a prior order under Fed. R. Civ. P. 60(d)(3), demonstrating the high burden to satisfy the grounds of Rule 60(d)(3) and holding that the bankruptcy court did not abuse its discretion in denying the motion. The decision is “not for publication”, meaning it has no precedential value, only persuasive…
Goldstein V. Diamond (In Re Diamond), 8TH CIR. 2014
The Eighth Circuit Court of Appeals recently ruled that a creditor which wants to file a “nondischargeability” complaint against a debtor, brought pursuant to 11 USC §523(a)(3)(B) is not required to move to reopen the underlying bankruptcy case, and get the underlying bankruptcy case re-opened, before filing the 523(a)(3)(B) nondischargeability adversary proceeding. The 8th Circuit reasoned that the bankruptcy court’s jurisdiction arises from § 1334 and does not terminate simply because a bankruptcy case is closed. A 523(a)(3)(B) adversary proceeding can be brought by a creditor where the creditor was NOT properly scheduled, in the debtor’s bankruptcy schedules, and so…
In re SW Boston Hotel Venture, LLC
In re SW Boston Hotel Venture, LLC, ___F.3d___, 2014 Westlaw 1399418 (1st Cir. 2014):The First Circuit Court of Appeals held that bankruptcy courts may choose to use a flexible approach when selecting a “measuring date” for the accrual of an over secured creditor’s right to postpetition interest, and the value assigned to the property during the creditor’s relief from stay motion is not necessarily binding at later stages of the bankruptcy case. Facts: A lender held a first priority mortgage on a hotel and related properties. A few months after the borrower’s Chapter 11 filing, the lender moved for relief…
Gray1 CPB, LLC vs. SCC Acquisitions, Inc
Gray1 CPB, LLC vs. SCC Acquisitions, Inc., ___ CA3d___, 2014 Westlaw 1388697 (California State Court Court of Appeals 2014): A California appellate court has held that once a judgment creditor has accepted a cashier’s check from a judgment debtor, the creditor no longer has the right to collect post-judgment attorneys’ fees. Comment: Take the money!! A judgment creditor should ALWAYS accept full payment of the judgment, if the judgment debtor sends it to judgment creditor. Lucky (and rare) judgment creditor who gets paid judgment, without struggling to collect the judgment. Unless the attorneys fees claim is a very large claim,…
Law v. Siegel, Chapter 7 Trustee
Law v. Siegel, Chapter 7 Trustee, __ U.S. __, 134 S.Ct. 1188, 2014 WL 813702 (March 4, 2014): The Supreme Court of the United States held that a bankruptcy court exceeded the limits of its authority by imposing a surcharge on a debtor’s homestead exemption to pay for a chapter 7 trustee’s litigation fees and costs incurred in avoiding a fraudulent lien against estate property created by the debtor. In a unanimous opinion written by Justice Scalia, the Court held that a bankruptcy court cannot exercise its authority under 11 U.S.C. § 105(a) or its inherent equitable powers in contravention…
Menjivar v. Wells Fargo Bank, N.A.
Menjivar v. Wells Fargo Bank, N.A. (9th Cir. BAP January 28, 2014)(Unpublished): The United States Bankruptcy Appellate Panel (the "BAP") upheld a bankruptcy court’s dismissal of the debtors’ claims against Wells Fargo Bank ("WFB") without leave to amend. The claims sought to invalidate a trust deed against the debtors’ residence relating to a refinance transaction. The BAP found that: (1) any amended allegations in regard to the fraudulent transfer claims were preempted as inconsistent with the Home Owners’ Loan Act of 1933 ("HOLA"); (2) the actual fraudulent transfer allegations improperly focused on the transferee’s intent; and (3) the constructive fraudulent…
Analysis: Supreme Court Hears Arguments on Whether an Inherited IRA is Exempt
By Charles J. Tabb Mildred Van Voorhis Jones Chair in Law, University of Illinois, and Resident Scholar for the American Bankruptcy Institute The United States Supreme Court yesterday heard oral arguments in the case of Clark v. Rameker, on the issue of whether an inherited IRA is exempt. The Seventh Circuit had denied the debtor’s exemption, disagreeing with the Fifth Circuit in the Chilton case, as well as the clear majority of lower courts, which had held that an inherited IRA is exempt under section 522(b)(3)(C) or 522(d)(12) (depending on whether the debtor elects the state or federal exemptions). On…
Fowler vs. U.S. Bank, N.A., 2014 Westlaw 850527 (District Court S.D. Tex. 2014)
Facts: Two homeowners facing foreclosure filed an action against their mortgage lender under the Truth in Lending Act (“TILA”), alleging a variety of violations. One of the plaintiffs’ theories was that the mortgage had been assigned and that the assignee had failed to inform the borrowers of the assignment. The lender moved to dismiss the complaint, arguing that the borrowers themselves had disputed whether the assignment had actually taken place. Reasoning: Although the court dismissed some of the plaintiffs’ claims, the court upheld the claim under 15 U.S.C.A. §1641(g), enacted in 2009, which provides that “not later than 30 days…
Preview: Scope of Protections for Retirement Funds in Bankruptcy at Issue in Case Before Supreme Court on Monday
Scheduled for oral argument on Monday, Clark v. Rameker presents the Supreme Court with a case that has a clean and straightforward question of statutory interpretation, with no looming shadow of oppressive media scrutiny, according to a SCOTUSBlog preview of the argument. Among the assets exempt from the estate of a debtor in bankruptcy, Congress has with steadily increasing generosity included a wide variety of retirement funds. The specific question in this case is whether those provisions exempt the $450,000 IRA that petitioner Heidi Clark inherited upon the death of her mother. If the IRA is exempt, she can keep…