The Bankruptcy Law Firm, Prof. Corp.
Pursuant to 11 USC 523(a)(8), student loan debt
Pursuant to 11 USC §523(a)(8), student loan debt– as defined by that Section (which is almost all student loan debt, whether loan is by government, by a school directly, or by a bank)–is only dischargeable in bankruptcy if the debtor brings an adversary proceeding, in the debtor’s bankruptcy case, and wins that adversary proceeding, by proving that it would be an undue hardship on the debtor, or on debtor’s dependents, if debtor had to repay student loan debt the debtor owes, over the debtor’s whole remaining working life. It has been reported in the news that about 1/4 of all…
In re Flores (9th Cir. 8/31/2012)— F.3d —-, 2012 WL 3803936
In re Flores is a pro debtor decision by the 9th Circuit Court of Appeals. In Flores, the 9th Circuit Court of Appeals held that it was proper for bankruptcy judge to confirm a 3 year Chapter 13 plan, instead of a 5 year Chapter 13 plan, because, though the debtors had above-median income, they had no projected disposable income on Form 22C. Form 22C (Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income)–which was added by the BAPCPA 2005 amendments to the Bankruptcy Code–is required to be filled out and filed in every…
Divorce attorney and bankruptcy debtor each convicted of federal crimes related to bankruptcy case in which debtor, assisted by an attorney, concealed assets
US v. Stern, F.Supp.3d___, 2012 WL 843637 (US District Ct, ED Wis 2012): Attorney was divorce attorney for his girlfriend. Girlfriend filed bankruptcy, using another attorney as her counsel. Debtor received $95,000 marital settlement in debtor’s divorce, but did not disclose that asset (the $95,000) in her bankruptcy case. To help debtor hide the $95,000, the divorce lawyer put $60,000 of the $95,000 divorce settlement into certificates of deposit, held in the name of the divorce attorney. Debtor was indicted and convicted of bankruptcy fraud, but then was granted immunity, to testify against her divorce lawyer who had hidden the…
Pfeifer vs. Countrywide Home Loans, 2012 Westlaw 6216039 (Cal.App.)
A California appellate court has held that a nonjudicial foreclosure could be enjoined due to the lender’s failure to conduct a face-to-face interview with the borrower prior to the sale, pursuant to HUD regulations. [Pfeifer vs. Countrywide Home Loans, 2012 Westlaw 6216039 (Cal.App.).] Summary of facts, and Court’s reasoning: Facts: After two homeowners defaulted on their mortgage, the lender commenced a nonjudicial foreclosure. Prior to the sale, the borrowers sought injunctive relief on the ground that the lender had failed to conduct a face-to-face interview prior to foreclosure, as required by HUD regulations. The trial court sustained the lender’s demurrer,…
In re Deitz (9th Cir BAP 042312)
BAP holds bky court can liquidate the amount of debt, as part of ruling whether the debt is nondischargeable or not The United States Bankruptcy Appellate Panel of the Ninth Circuit has held that Stern v. Marshall does not limit the bankruptcy court’s jurisdiction to enter a final nondischargeable money judgment. In re Deitz (9th Circuit BAP Docket No. EC-11-1427, April 23, 2012). Facts and Procedural History. Creditors hired the Debtor to build a handicap-assisted home for $444,105. After change orders, Creditors paid the Debtor a total of $511,800, but the house was still only 65% complete. The Debtor’s contractor’s…
In a case of first impression in the Ninth Circuit, the U.S. Bankruptcy Appellate Panel has ruled that a debtor is not entitled to avoid a creditor’s judicial lien under 11 U.S.C. section 522(f)(for impairing the debtor’s homestead exemption) when the debtor didn’t maintain a continuous ownership interest in the property after the judicial lien had fixed. McCoy v. Kuiken, Jr. (In re Kuiken, Jr.), BAP No. SC-12-1218-JuMkPa (B.A.P. 9th Cir. Jan. 4, 2012)
Factual Background: In 2003, Conrad Kuiken, Jr. purchased certain real property ("Property"). In 2009, one of Kuiken’s creditors, Daniel McCoy ("Creditor"), obtained a judgment against Kuiken in the amount of $16,838, and recorded an Abstract of Judgment. Thereafter, on July 5, 2011, Kuiken transferred title in the Property to Bayview Resources, LLC ("Bayview") "for valuable consideration." Kuiken held a membership interest in this entity at the time of the transfer. Bayview recorded the grant deed from Kuiken on July 15, but re-conveyed title to Kuiken as a gift on September 28, 2011. This grant deed was duly recorded on October…