Supremes to Decide Inherited IRA Exemption
Supreme Court has accepted review of the decision by the Seventh Circuit,
In re Clark, 714 F.3d 559 (7th Cir. Apr. 23, 2013), that an inherited IRA is not an
exempt "retirement fund"—presumably to resolve contrary decisions from the Fifth and Eighth Circuits.
Clark v. Rameker, No. 13-299, 2013 WL 4776520 (Nov. 26, 2013).
Disallowance of Untimely Claim Does Not Void Lien
of untimely filed claim does not void underlying lien notwithstanding plain text of § 506(d).
Shelton v. Citimortgage, Inc. (In re Shelton), No. 12-3555, 2013 WL 5878438 (8th Cir. Nov. 4, 2013) (Murphy, Melloy, Shepherd).
No Cram Down of Partially Secured Lien in No-Discharge Case
secured first lien that is not protected from modification by § 1322(b)(2) cannot be crammed down because of
§ 1325(a)(5) when "Chapter 20" debtor is not eligible for discharge under § 1328(f).
Colbourne v. Ocwen (In re Colbourne), No. 12-14722, 2013 WL 5789159 (11th Cir. Oct. 29, 2013) (unpublished) (Martin, Fay, Edmondson).
Postpetition Inheritance Captured for Chapter 13 Estate
received more than 180 days after petition is captured by § 1306(a) and
included in Chapter 13 estate notwithstanding limitation in § 541(a)(5).
Carroll v. Logan, No. 13-1024, 2013 WL 5781211 (4th Cir. Oct. 28, 2013) (Niemeyer, Wynn, Floyd).
Lien Stripping Limitation
In a Chapter 13 case filed by only one spouse, plan cannot strip off valueless junior lien on
residence owned as tenancy by the entireties. Alvarez v. HSBC Bank USA, N.A.
(In re Alvarez), No. 12-1156, 2013 WL 5737704 (4th Cir. Oct. 23, 2013) (Gregory, Davis, Keenan).
Ninth Circuit Finishes Off Kagenveama
A majority of the Ninth
Circuit sitting en banc has overruled the surviving part of Maney v. Kagenveama (In re Kagenveama), 521 F.3d 868
(9th Cir. June 23, 2008) (Siler, Bea, Pregerson): the applicable commitment period in § 1325(b) is temporal;
even a debtor with no projected disposable income must propose a plan that is at least as long as the 3 or 5 year
applicable commitment period. Danielson v. Flores (In re Flores), No. 11-55452, 2013 WL 4566428 (9th Cir.
Aug. 29, 2013) (en banc).
Significant Proposed Rules and Forms Changes: Speak Up Now
The Judicial Conference Advisory Committee on Bankruptcy Rules
has just published important proposed amendments to the bankruptcy rules and forms. Comments are due by February 15, 2014. These amendments
dramatically change the content and timing of proofs of claims and include a new form for the Chapter 13 Plan. The proposed amendments and
committee reports are posted at www.uscourts.gov/rulesandpolicies/rules.aspx.
The Chapter 13 Plan form is tied to rule changes that would not become effective until December 1, 2015. Most of the other proposed form changes
could become effective December 1, 2014. The Advisory Committee through its chair, Gene Wedoff, has reached out robustly to the entire bankruptcy community
for comments and suggestions about these important changes. Comments may be submitted
electronically at www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx.
Friday, August 2, 2013
221 New Cases Added to the Updater.
FIRST CIRCUIT BAP:
WITHHOLDING ORDER IS PREDICATE TO STAY EXCEPTION IN § 362(b)(2)(C)
court contempt proceeding and incarceration for failure to pay alimony violated automatic stay when
state court order required debtor to pay alimony from postpetition income but there was no
garnishment or similar withholding order in effect at the Chapter 13 petition.
In re DeSouza, No. 11-40315-MSH, 2013 WL 2991034 (B.A.P. 1st Cir. June 14, 2013) (
Deasy, Kornreich, Tester).
Seventh Joins Tenth: Dewsnup Applies in Chapter 13 Cases
Woolsey v. Citibank, N.A. (In re Woolsey), 696 F.3d 1266 (10th Cir. Sept. 4, 2012)
(Gorsuch, Holmes, Matheson), Dewsnup applies in Chapter 13 cases: § 506(d) does
not void unsecured portion of undersecured tax lien. Ryan v. United States (In re Ryan),
No. 12-3398, 2013 WL 3380131 (7th Cir. July 8, 2013) (Ripple, Rovner, Williams).
Friday, July 12, 2013
189 New Cases Added to the Updater.
Second Circuit: Car Lender Willfully Violated Stay by Refusing Turnover of Repossessed Car
lender willfully violated stay by refusing to return car lawfully repossessed before petition;
debtor’s equitable interest under state law became property of Chapter 13 estate and lender
exercised control over that property by demanding adequate protection as condition of
turnover. Weber v. SEFCU (In re Weber), No. 12-1632-bk, 2013 WL 1891371 (2d Cir. May 8, 2013)
(Cabranes, Raggi, Carney).
First Circuit BAP: Untimely Claim Filed by Debtor is Disallowed and Dischargeable
Untimely priority claim filed
by debtor on behalf of taxing authority is disallowed on trustee’s objection and will be discharged without
payment upon completion of plan. Municipality of Carolina v. Gonzalez (In re Gonzalez),
BAP No. PR 12-063, 2013 WL 1629235 (B.A.P. 1st Cir. Apr. 12, 2013) (Haines, Feeney, Hoffman).
Third Circuit: Fesq is Alive and Well Notwithstanding Espinosa
In re Fesq,
153 F.3d 113 (3d Cir. Aug. 18, 1998) (Stapleton, Alito, Shadur), was not overruled by United Student Aid
Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (Mar. 23, 2010); bank cannot
challenge confirmation order by Rule 60 motion on any ground except fraud. In re Rodriguez,
No. 12-2146, 2013 WL 1716110 (3d Cir. Apr. 22, 2013) (Jordan, Aldisert, Nygaard) (unpublished).
First Circuit: Claim Disallowance Can Bar Collection of Nondischargeable Debt
of student loan debt “in the amount of $0.00” based on unrebutted evidence that loans were paid in full
before petition precludes post-bankruptcy collection of student loan debt without regard to nondischargeability.
Hann v. Educational Credit Mgmt. Corp. (In re Hann), 711 F.3d 235 (1st Cir. Mar. 29, 2013)
(Torruella, Stahl, Thompson).
Supremes Say "Defalcation" Requires Intentional Wrong
determine dischargeability under § 523(a)(4), defalcation in a fiduciary capacity requires an
intentional wrong: either “conduct that the fiduciary knows is improper . . . [or] reckless conduct of
the kind that the criminal law often treats as the equivalent." Bullock v. BankChampaign, N.A.,
No. 11-1518, 2013 WL 1942393, at *5 (May 13, 2013).
Fourth Circuit: Lien Strip Okay in No-Discharge Cases
did not upset lien-stripping of wholly unsecured mortgage in no-discharge Chapter 20 case; good faith test
provides sufficient protection from abuse. Branigan v. Davis (In re Davis), No. 12-1184,
2013 WL 1926407 (4th Cir. May 10, 2013) (Diaz, Niemeyer; Keenan dissenting).
Latest Case Updates &
Revisions to Chapter 13 Bankruptcy, 4th Ed.
Friday, August 2, 2013:
221 New Cases Added to the Updater.
Friday, July 12, 2013:
189 New Cases Added to the Updater.
Friday, April 26, 2013:
353 New Cases Added to the Updater.
Saturday, January 26, 2013:
372 New Cases Added to the Updater.
Wednesday, November 28, 2012:
388 New Cases Added to the Updater.
Wednesday, September 12, 2012:
178 New Cases Added to the Updater.
Tuesday, July 10, 2012:
174 New Cases Added to the Updater.
Thursday, July 5, 2012:
159 New Cases Added to the Updater.
Thursday, June 21, 2012:
112 New Cases Added to the Updater.
Wednesday, June 13, 2012:
207 New Cases Added to the Updater.
Latest Editorials & Bulletins
See all Ch13online
Careful What You Wish For:
State Court Judgment Gives Debtor
Standing to Avoid Preference
You may remember the decision of the Bankruptcy Appellate Panel for the Sixth Circuit
in Dickson v. Countrywide Home Loans (In re Dickson), 427 B.R. 399
(B.A.P. 6th Cir. Apr. 12, 2010) (Fulton, McIvor, Shea-Stonum). The interesting
holding by the BAP in Dickson was that a Chapter 13 debtor had “derivative standing”
to pursue the preferential perfection of a lien on a manufactured home when the trustee
declined to bring the action. On further appeal, the United States Court of Appeals for the
Sixth Circuit has affirmed the BAP, but the Circuit found a different and equally
interesting logic: the Chapter 13 debtor has direct standing to avoid the
preferential perfection of a lien when the creditor took a default judgment during the
preference period. Dickson v. Countrywide Home Loans (In re Dickson), No. 10-5580,
2011 WL 3768684 (6th Cir. Aug. 26, 2011) (Norris, Gibbons, Griffin).
RUN AMOK IN EIGHTH CIRCUIT
Of course, it’s not uncommon for strange facts to make strange law.
But the outcome found by the United States Court of Appeals for
the Eighth Circuit in Burnett v. Burnett (In re Burnett), 646
F.3d 575 (8th Cir. July 20, 2011) (Smith, Beam, Benton), may be the
product of both strange law and strange facts with respect to the treatment
of domestic support obligations (DSOs) in Chapter 13 cases after BAPCPA.
You know how quickly the Ch13 world can change, and how simply keeping up simply isn't enough. That's why we've converted and expanded Chapter 13 Bankruptcy, 4th Ed. by Keith M. Lundin and William H. Brown into an online service that we can update continuously. The top Treatise on Ch13 by two of the most respected authors in the field now changes as fast as Ch13.
Chapter 13 Bankruptcy, 4th Ed.
by Keith M. Lundin and
William H. Brown
CHAPTER 13 BANKRUPTCY, 4th ED. by Keith M. Lundin and William H. Brown contains a tremendous amount of information in one easy-to-use online system. It opens in its own window, and we find it most easily viewed on its own monitor in "full-screen" mode ("F11" in most browsers, or Tools/View > Full Screen).
THE UPDATER™ – is a huge database of cases – 7,900 and counting – organized in sections exactly like Chapter 13 Bankruptcy, which the authors have read and summarized, and which are on-deck to be added to the Treatise. Some areas of Chapter 13 law don’t change often; other aspects are changing constantly. We prioritize the revision of sections to reflect where the law has changed and where the changes are most important. But because we know that you want all the cases in your district and circuit, even if they haven’t made it into the text of the Treatise, you get them in the UPDATER.™
BULLETINS – That one case in a hundred that you really need to know about now. The latest change to a rule, a form or an eligibility limit. The thing that’s getting ready to bite you. We read the cases, the announcements and the amendments, and we find the ones that matter. You get an email BULLETIN, sent directly to your desktop, with a quick read of what you don’t want to miss.
CASE UPDATES – If you’ve received a Recent Developments Outline at a seminar where Keith or Bill or Hank Hildebrand has spoken, you know what a CASE UPDATE is: every new Chapter 13 case, summarized and organized completely and concisely. Now think of those updates available to you online in the same format, 24/7.
EDITORIALS – From Bill, Keith and occasional guests: what has them cranked up. Why that new BAPCPA case is important. What’s wrong with Form B22C. Did the BAP get it right, or the Court of Appeals? They are keeping watch and talking to you about what they see. They offer insight about the constantly changing Ch13 world.
SUBCRIBER ALERTS – Want to know when we add a case from your district? Your circuit? We’ll notify you when it happens.
NOT YET A SUBSCRIBER?
or contact us at
Not just Chapter 13 — Ch13online.com