Bankruptcy Ethics: Attorneys, Deceptive Documents And Bankruptcy – A Series Of Articles The 5th article in this Deceptive Documents Series continues to explore the ethical issues involved in office management and filing issues.
Bankruptcy Ethics: Attorneys, Deceptive Documents And Bankruptcy – A Series Of Articles: Electronic Filing Issues: Concerns and Consequences This fourth article in the series – Deceptive Documents and Bankruptcy – considers ethical concerns and consequences sometimes embedded in the ease of electronic filing in the bankruptcy court.
Bankruptcy Ethics: Attorneys, Deceptive Documents And Bankruptcy – A Series Of Articles: Preclusion Issues: Bankruptcy Court Determinations and State Court Consequences Occasionally, one hears the phrase a "simple sanction hearing" and, certainly, this can be a correct characterization; however, it is equally possible that the sanction imposed at such a hearing can have significant collateral consequences in subsequent state proceedings. This third article in the series – Deceptive Documents and Bankruptcy – considers the relationship between ethics issues determined as part of bankruptcy court decisions and subsequent state court consequences.
The Care And Feeding Of The Confirmed Chapter 13 Debtor: (Debtor Comment) In this informative article, Cathleen Cooper Moran correctly notes that confirmation is often only one element in the chapter 13 process and a modified plan is frequently necessary to complete a successful chapter 13.
Critical Case Comment: Whaley v. Tennyson (In re Tennyson), 2010 WL 2793941 (11th Cir. July 16, 2010) (Wilson): The “applicable commitment period” in § 1325 is temporal and requires an above-median income debtor to propose a Chapter 13 plan of five years in length.
A Variety of Views: Post-Confirmation Mortgage Issues Among the more vexing issues facing trustees, debtors and creditors in chapter 13 in cases involving a home mortgage are issues which present themselves at the conclusion of the case, specifically what, if anything, has been paid and what amount remains due on the home mortgage. This Variety of Views series of articles presents the perspectives of our trustee, counsel for creditors and counsel for debtors contributors and focuses on these complicated issues. What procedures, filings, forms, etc. have courts employed to address these issues? What could/should counsel do in these circumstances? What are the Trustee's obligations/opportunities? What procedures can be implemented, post-confirmation to eliminate/reduce these problems? How do the HAMP provisions work in this context? These initial articles will be followed by responses from our distinguished contributors amplifying their respective positions and containing the comments and exchanges which make this series such a rich source of information.
NACTT Academy Member Profiles
NACTT Academy Member Profile: DOUGLAS W. NEWAY Welcome to a new column for the NACTT Academy Website, “Academy Member Profiles”! With this column, we will feature the stories of some very interesting members of the NACTT Academy. We hope that you will find the profiles not only interesting but also that they help you broaden your own network.
SCHWAB v. REILLY – JUST A LITTLE REMINDER The Supreme Court's latest bankruptcy opinion once again touches on ethical responsibilities, this time with respect to filings in connection with exemptions and valuation. Read the full opinion in Schwab v. Reilly here.
DECONSTRUCTING THE “DOMESTIC SUPPORT OBLIGATION”: WHEN WILL THE DUST SETTLE? (Debtor Comment) This comprehensive article addresses the difficult, and frequently unexplored, issues presented by the BAPCPA-created concept of "Domestic Support Obligations". In addition to exploring these complicated concepts, the article contains an outstanding compendium of the current case law on these issues.
A Trustee’s Perspective on How to Minimize Objections to Confirmation (Trustee Comment) In this helpful article, Kristen Koo, a member of the National Association of Consumer Bankruptcy Attorneys (NACBA) and the Sacramento Valley Bankruptcy Forum and the Staff Attorney for Jan P. Johnson, Chapter 13 Trustee for the Eastern District of California, Sacramento Division, provides some practical advice on minimizing mistakes and obtaining confirmation of a chapter 13 plan.
Don’t Get Put Out – Filing Chapter 13 to Avoid Residential Evictions (Creditor Comment) Ben Sissman is a bankruptcy attorney experienced in landlord/tenant law. In this article, he provides a theoretical and practical discussion of the provisions of section 362(l) and (m) addressing relief from the stay in lessor/lessee circumstances.
Getting To The Finish Line In Chapter 13: (Court Comment) Judge Whipple notes that filing, and even obtaining confirmation of, a chapter 13 case is only part of the bankruptcy process and continued attention must remain focused on securing a discharge.
Litigating the Personal Use Question under § 1325(a)’s Hanging Paragraph: The Parol Evidence Rule, Totality of Circumstances Test, and Burden of Proof: In this insightful article, Judge Colleen Brown reminds attorneys that the best case is often the best tried case, which requires knowledge of not only the substantive bankruptcy/state law issues, but also the proper evidentiary presentation.
LANNING: WHERE DO WE GO FROM HERE?
Download Lanning Webinar Materials: Above Median Worksheet and Below Median Worksheet. Reflections On A Journey To The U.S. Supreme Court: Hamilton v. Lanning, Case No. 08-998 (Trustee Comment) This engaging article by Jan Hamilton recounts the amazing adventure he and his staff attorney, Theresa Rhodd, had in obtaining certiorari and then arguing Lanning before the United States Supreme Court. (This article is shared with the NACTT Quarterly.) LANNING: The Rest Of The Story Jan Hamilton, Plaintiff-Trustee in Lanning, comments on how the case was selected for appeal. LANNING & ETHICS: CONCERNS FOR COUNSEL FOR DEBTORS: The Supreme Court's decision in Hamilton v. Lanning once again raised significant ethical questions for debtor's counsel (slip opinion available here). Critical Case Comment: Hamilton v. Lanning, 2010 WL 2443704 (S.Ct. June 7, 2010): When a bankruptcy court calculates a debtor’s projected disposable income, the court may account for changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation.
Webinar Resources
U.S. Trustee's Initiative to Monitor Proofs of Claim, including UST POC Checklist (July 7, 2010): Mortgage Proofs of Claim Checklist (Developed by Ch. 13 Trustee Ronda Winnecour for reviewing claims prior to referral to the UST.), Best Practices for Trustees and Mortgage Servicers in Ch. 13, with Exhibits, Official Form 10: Proof of Claim, and NACTT Quarterly, including discussion of Mortgage Proof of Claim Review at page 12.
Legitimate Challenges and Counter-Challenges to Mortgage Claims (June 23, 2010): Best Practices for Trustees and Mortgage Servicers in Chapter 13.
ALFN: Help for Unemployed Homeowners
HAMP Modification in Bankruptcy, Part Deux (May 5, 2010): Summary of HAMP Changes, Loan Modification Worksheet, Supplemental Directive 10-01: HAMP – Program Update and Resolution of Active Trial Modifications, and Supplemental Directive 10-02: HAMP – Borrower Outreach and Communication.
OTHER WEBINAR RESOURCES — Proof of Claim Webinar (Mar. 24, 2010): PowerPoint, NACTT Notice of Contractual Advance (12/09), and NACTT Proof of Claim Itemization (2010). HAMP Webinar (Mar. 3, 2010): Attachment to Chapter 13 Plan, Authorization Letter, and Webinar Presentation Materials.
LANNING & ETHICS: CONCERNS FOR COUNSEL FOR DEBTORS: The Supreme Court decided Hamilton v. Lanning on Monday, June 7, 2010, and again raised significant ethical questions for debtor's counsel.
LANNING: The Rest Of The Story Jan Hamilton, Plaintiff-Trustee in Lanning, comments on how the case was selected for appeal.
Reflections On A Journey To The U.S. Supreme Court: Hamilton v. Lanning, Case No. 08-998 (Trustee Comment) This engaging article by Jan Hamilton recounts the amazing adventure he and his staff attorney, Theresa Rhodd, had in obtaining certiorari and then arguing Lanning before the United States Supreme Court. (This article is shared with the NACTT Quarterly.)
Confirmation Of Contested Chapter 13 Cases Without Litigation: (Debtor Comment) In this article, Jeffrey Albert, an attorney who represents debtors, notes that thoughtful approaches to frequently encountered confirmation issues will often avoid the more costly approach of litigating such issues.
Does Surrendering Collateral To A Creditor Also Include Delivering That Collateral To A Creditor?: (Creditor Comment) In this article, Dennis Levine, an experienced attorney for creditors, argues that when a debtor's plan proposes to surrender collateral to a creditor, the debtor, in order to obtain confirmation of the plan, is required to take all action to make the collateral available to the creditor, without additional action on the part of the creditor.
How Do I Maintain A Comfortable Cash Flow In A Chapter 13 Practice So That I Can Better Focus On The Needs Of My Clients?: Although it might be wonderful to practice law without thinking of making a living, such a practice is generally unavailable in the real world of debtor representation. An obvious issue is how to balance client needs with personal financial requirements. In his candid and helpful article, Scott Kramer provides his thoughtful response to this concern.
Points To Ponder From A Novitiate Appeals Attorney: George Reiber is the chapter 13 Trustee for the Rochester division of the United States Bankruptcy Court for the Western District of New York and has appeared in several Federal Appellate Courts. Although disclaiming any great expertise, he shares many of his insights into federal appellate practice is his thorough and helpful article.
Espinosa: Through an Ethics Prism (Court Comment) This article examines some ethics issues present among the multiple issues addressed in the Supreme Court's recent Espinosa decision. (Read the full text of the Espinosa opinion here.
MILAVETZ & BAPCPA: Some Troublesome Text Is Touched Up, Not Terminated (Court Comment) The latest from the Supreme Court. The Supreme Court's opinion in Milavetz, decided Monday, Mar. 8, 2010 is available at this link from the Court as a PDF file.
Why Can’t I Get My Chapter 13 Plan Confirmed? (Trustee Comment) (Or Three Simple Keys on How I Can Satisfy the Trustee So I Can Get Paid) In this helpful article, Scott Stout, the staff attorney for Jeffrey Kellner, the chapter 13 Trustee in Dayton, Ohio, lists three major areas where attention to detail enhances the chances for confirmation of a proposed chapter 13.
TMI: Too Much Information (Trustee Comment) In this timely article, Marie-Ann Greenberg, Standing Chapter 13 Trustee in the District of New Jersey, Newark Vicinage, provides guidance in connection with developing issues involving privacy concerns, HIPAA and Rule 9037.
Elements: The Roadmap for Your Litigation Trip (Court Comment) Judge Pam Pepper, a former trial lawyer, suggests that lawyers rely on the elements of the relevant causes of action as a method of organizing litigation.
I'm From the Government and I'm Here To Help You Pay This Claim (Creditor Comment) In this article, Zach Mosner, Assistant Attorney General – State of Washington, Bankruptcy & Collections Unit, provides a thoughtful survey of issues involving governmental claims in chapter 13 cases.
What Should I Bring To My First Bankruptcy Appointment? (Debtor Comment) Wayne Novick, currently the Ohio South State Chair for NACBA, drawing from his lengthy experience as an attorney for debtors, describes the complexities of that "First Bankruptcy Appointment".
Making Sure the Dog Didn’t Eat the Mortgage: Courts Increasingly Intolerant of Legally Deficient Mortgage Proofs of Claim (Trustee Comment) This article, from two of the leading attorneys in the Executive Office of the U.S. Trustee, reflects the interest of the Executive Office in proper documentation for mortgage proofs of claim and, referring to the Guidelines, contains helpful advice for all participants in the bankruptcy process.
Paddling Around In The Means Test (Debtor Comment) In her article, Pam Maggied reveals how a thoughtful approach to the complex components of the means test can benefit a debtor.
Meeting The Eligibility Requirements For Chapter 13 (Debtor Comment) Jeanette McPherson, who is certified in business bankruptcy law by the American Board of Certification, represents debtors and is the managing partner of Schwartzer & McPherson, Las Vegas. In this focused article, she discusses some of the issues surrounding a debtor's eligibility for chapter 13.
Drafting the Adversary Complaint (Court Comment) In this primer on drafting adversary complaints, counterclaims, cross-claims, and third-party complaints, Judge Humphrey (S.D. Ohio) notes that, as a result of recent Supreme Court cases, preparing these initial pleadings demands even more focused attention than previously required.
Digital Audio Recording Pilot in the U.S. Bankruptcy Court for the Northern District of Alabama (Court Comment) A pilot program, which is described in this article by Judge Mitchell and Clerk Ford (N.D. Alabama), allows for ECF access to recordings of court hearings. The article lists some of the great benefits of such a system, which could be coming to your court in the future.
Sua Sponte (Court Comment) Your Honor, which side of the bench are you on today? In this candid peek inside a seldom discussed aspect of the judicial mind, Judge Diane Sigmund (E.D. Pennsylvania) discusses what prompts a judge to, sua sponte, elicit testimony or other evidence during a hearing.
The Chapter 13 Tension Between "Equal Monthly Amounts" And Attorney Fees — Find The Middle Ground (Creditor Comment) This article discusses the vexatious problems created under BAPCPA’s requirement that secured creditors receive their distribution in “equal monthly amounts” and the need for the Debtor’s counsel to be paid attorney’s fees in handling the case.
Capital Investment — In You (Court Comment) In this tongue-in-cheek article, Judge Russ Kendig (N.D. Ohio) focuses on continuing bankruptcy education as one of the more important personal investments an attorney makes in obtaining, and maintaining, a successful practice.
Credit Card Balance Transfers and Chapter 13 (Court Comment) In this focused article, Judge Lyons (N.J.) discusses an often overlooked aspect of the liquidation analysis: the preference aspects of credit card balance transfers.
Circuit Split On Taxes And Timing (Court Comment) Managing tax debt in a chapter 13 case always requires careful attention, and a recent Circuit decision creates new concerns in this area.
Proposed Standing Trustee Expense Rule Published for Public Comment (UST Comment) Chapters 12 and 13 standing trustees should be aware the proposed standing trustee expense rule out for public comment will supersede the informal budget resolution process concerning annual and amended budgets discussed in Appendix P of the Handbook for Chapter 13 Standing Trustees. Comments on the proposed rule are due by October 13, 2009. Information regarding how to submit a comment is provided at the end of this article.
The Automatic Stay: Who Knows Who May Come After Violators? (Court Comment) Circuit authority establishes that creditors have standing to pursue claims for damages resulting from violations of the automatic stay.
How Effective is Your Agreed Order on a Chapter 13 Motion for Relief from Stay? (Court Comment) In this thoughtful article, the author documents the often destined-for-defeat provisions of agreed orders on relief for stay involving real estate mortgages. The statistical evidence presented should be a source of reflection for all involved in such agreed orders.
Litigation In Bankruptcy Court: It Can Be A Trying Ordeal – Conclusion (Court Comment) In the concluding article in this series, the author suggests which trial tactic can be considered most important, most helpful and most useful.
Espinosa: Certiorari Granted (Creditor Comment) The Supreme Court has granted Certiorari on Espinosa and this article provides an understanding of the 9th Circuit's decision.
Ten Computing Security Tips (Trustee Comment) This article provides reminders that the benefits of technology are accompanied by the burdens of security.
Wheel Estate: Debtors May Still Cramdown Creditors' Interests in Mobile Homes (Court Comment) In his thorough and thoughtful article, Judge Jeffery Hopkins (S.D. Ohio) discusses the range of issues and considerations present in connection with decisions denying § 1322(b)(2) protection to mobile homes, despite the inclusion of "mobile home" in BAPCPA 's definition of "debtor's principal residence" § 101(13A).
Projected Disposable Income – Part 2 (Court Comment) Judge Kay Woods (N.D. Ohio) examines aspects of the continuing controversy surrounding disposable income in a two-part series. Part 1 (posted previously) reviews the approaches taken in Circuit decisions. Part 2 examines issues surrounding the IRS local standard deduction.
The Great Escape ... for Debtors (Debtor Comment) This thoughtful article examines whether a change in a debtor's post-petition circumstances can also change a previously established Applicable Commitment Period.
Projected Disposable Income – Part 1 (Court Comment) Judge Kay Woods (N.D. Ohio) examines aspects of the continuing controversy surrounding disposable income in a two-part series. Part 1 reviews the approaches taken in Circuit decisions. Part 2, which will be posted next week, examines issues surrounding the IRS local standard deduction.
Reviewing Mortgage Proofs of Claim in Consumer Chapter 13 (Debtor Comment) Richard West, an attorney representing debtors, provides a step-by-step, practical approach to reviewing and resolving a real estate mortgage proof of claim.
Be Good At What You Do Often (Court Comment) Judge Gorman's perceptive article reminds debtor attorneys of the practical importance of a thoughtful and comprehensive fee agreement together with the appropriate disclosure under Rule 2016(b). This article is certainly worth reading.
Litigation In Bankruptcy Court – It Can Be A Trying Ordeal, Part 3: Trial Issues – Documents (Court Comment) The third article in this series considers the importance of Documents in bankruptcy litigation and offers some suggestions in connection with their introduction as evidence.
An Alternative to Foreclosure and Eviction (Court Comment) In this extremely thoughtful article Judge Morris Stern ( N.J.) proposes a program, which, subject to state law availability, could provide beneficial options for mortgage creditors and debtors. Chapter 13 would be able to provide the necessary "environment" in which the involved parties could determine and implement such options.
Litigation In Bankruptcy Court – It Can Be A Trying Ordeal, Part 2: Introduction Of Evidence And Presentation Of Witnesses (Court Comment) The possibility of an evidentiary hearing is always present in a chapter 13 case. This article is the second in the series suggesting an approach intended to be helpful for any attorney engaged in litigation in the bankruptcy court.
Hey, I've Got An Equitable Lien! Can I Buy A Cup Of Coffee With It? (Court Comment) Judge Marlar discusses how a creditor with an equitable lien under state law may not receive any payment in a chapter 13 case.
The Help Which Did Not Happen (Court Comment) Judge Small discusses the recent legislation, which failed to pass the Senate, and the role of chapter 13 trustees in the wake of that failure.
A Creditor Counsel's Perspecitve On Notice (Creditor Comment) This focused article reviews the continuing significance of proper notice in connection with chapter 13 issues.
The Automatic Stay and Starter Interrupt Devices (Trustee/Debtor Comment) The authors explore cases in which an innovative technology (creditor controlled automobile starter interrupt device) clashes with an established automatic stay principle (relief from the stay required to exercise control over property of the debtor or the estate).
Litigation In Bankruptcy Court: It Can Be A Trying Ordeal – Part 1 (Court Comment) The possibility of an evidentiary hearing is always present in a chapter 13 case. Judge Waldron begins a series of articles — Litigation in Bankruptcy Court: It Can Be A Trying Ordeal — discussing a helpful approach to such litigation.
Judicial Conference Advisory Committee Rules of Bankruptcy Procedure Proposes New Rule Governing Mortgage Servicing in Chapter 13 Cases (Court Comment) Judge Eric L. Frank, a former member of the Judicial Conference Advisory Committee on Bankruptcy Rules, provides a thorough discussion of proposed Rule 3002.1, which could have a significant impact on procedures involving residential mortgage proofs of claims. This article provides a focused discussion of Proposed Rule 3002.1, which will be subject to public comment beginning in August, 2009 and would provide a basis for informed comments.
Mortgage Modifications in Chapter 13 — A Remedy For These Times (Debtor Comment) John Rao and Geoff Walsh offer a thorough and detailed examination of mortgage modification in chapter 13 where although Congress is considering lifting the ban on § 1322(b)(2) home mortgage modifications, this article highlights areas where modification is viable even under current law, and addresses the procedure to bring the matter before the court and ways to maximize modification rights.
Asserting The Fifth Amendment: A Trustee's Perspective (Trustee Comment) Recognizing that the 341 meeting is a significant legal event, with consequences which could potentially lead to criminal charges, Kathleen A. Laughlin provides a chapter 13 trustee's perspective on the assertion of Fifth Amendment claims.
Getting Out Of The Disposable Income Box (Court Comment) Judge Dow presents, in connection with the complicated and confusing area of disposable income, a comprehensive and cogent analysis of the dominant issues and approaches. This is an article worthy of the attention of everyone attempting to understand current chapter 13 practice.
Court Removal of Chapter 13 Trustees (Court Comment) The bankruptcy court rremoval, sua sponte, of a chapter 13 trustee presents many issues. Judge Kressel is a member of the 8th Circuit BAP Panel which issued Morgan v. Goldman (In re Morgan), 375 B.R. 838 (B.A.P. 8th Cir. 2007). The BAP decision has been argued and is awaiting a determination from the 8th Circuit Court of Appeals.
One Trustee's Opinion (Trustee Comment) Chapter 13 trustees must prepare for the immediate impact of any new legislation. Cleve Reding wisely warns of some of the consequences of any new legislation authorizing bankrupt courts to modify previously protected home mortgages.
Filing Adversary Complaints to Recover Funds for the Bankruptcy Estate (Trustee Comment) Tracy L. Schweitzer, Staff Counsel To Henry E. Hildebrand, III, Chapter 13 Trustee Nashville, Tennessee, examines the use of adversaries by Trustees as asset recovery tools.
Why Can't We All Just Get Along? (Creditor Comment) Michael J. Stauber asks, “Why can’t we all just get along”? in an article containing suggestions for working successfully with creditor counsel.
Chapter 13 Trustee Considerations For Mortgage Modification Legislation (Trustee Comment) Chapter 13 trustees will have significant changes to consider in connection with the new legislation. Tracy Schweitzer's thoughtful article provides some suggested concerns.
The First Step: Understanding Some Common Foreclosure Terms (Creditor Comment) Kristin A. Schuler-Hintz helps the distressed homeowner understand some of the terms and options when facing foreclosure.
The Debtors’ Bar Anticipation and Preparation for the Passage of “Helping Families Save Their Homes in Bankruptcy Act of 2009” (Debtor Comment) It’s not too early to prepare for the new legislation. Lori Patton, an attorney representing debtors, offers some helpful suggestions.
Retaining the Expensive Home: In re Namie (Trustee Comment) James M. Wyman, who is the chapter 13 Trustee, in Charleston, S.C. and Beth G. Renno, who is his staff attorney, are the co-authors of this article, which examines the issue of whether a particular house may be too much house in a chapter 13 plan.
Why Everyone In Las Vegas Is Stripping Off (Second and Third Mortgages) (Debtor Comment) Too much mortgage - too little house. If you encounter this situation, this article emphasizes how valuation is key to providing a debtor with options.
Planning for Attorney Disability or Death Judge Pat E. Morgenstern-Clarren (N.D. Ohio) offers compelling thoughts on the seldom considered ethical, best practice and personal implications of the disability or death of an attorney with a chapter 13 practice. This is an article well worth reading and, more importantly, following with appropriate action.
In re Royal: Defining Projected Disposable Income Post-BAPCPA (Trustee Comment) Keisha Hooks, staff attorney for Chapter 13 Trustee, Marilyn O. Marshall (N.D. Ill.), provides an analysis of a bankruptcy court decision addressing the complicated question of “projected disposable income”.
Who Pays The Mortgage? (Court Comment) Judge McManus examines the 9th Circuit’s Lopez decision and the related legal issues in connection with the “debtor pay/trustee pay” controversy surrounding ongoing mortgage payments during the life of a chapter 13 case.
Chapter 13 and Mortgage Workouts (Court Comment) Chapter 13 provides a cost-efficient and procedurally-fair way of monitoring performance of work-out agreements.
Bankruptcy Courts after the Financial Tsunami (Court Comment) Even before Senator Dodd’s recent introduction by of S. 3690, proposing a modification of 11 U.S.C 1322(b)(2), Judge Basil Lorch points out the contributions the bankruptcy courts could make to assisting the home mortgage component of the national economic crisis.
Vehicle Creditor Review of Indirect Plan Distribution (Creditor Comment) Preserving the automobile creditor's rights to payment and adequate protection.
Court Collaboration With Chapter 13 Trustees And UST (Court Comment) Working together works best.
Judge Gorman inquires – “Just what are we doing here?” (Court Comment) This article considers the importance of assessing, and continually reassessing a client’s goals in a chapter 13 case.
Motor Vehicle Trade-In: "Negative Equity" and the Hanging Paragraph (Debtor Comment) This article examines the issue of negative equity, particularly in connection with the Eleventh Circuit’s determination of this issue.
Some Thoughts and Experiences on the Paperless Office (Trustee Comment) Stepping through the steps to a Chapter 13 Trustee's Paperless Office.
Chapter 13 Myths: A Bankruptcy Judge dispels some common myths about Chapter while offering great advice to debtors or potential debtors.
Judge Gerling observes: If it ain’t broke, don’t fix it. (Court Comment); The Face of Chapter 13 (Debtor Comment); Discriminating Against Non-Priority Unsecured Claims (Trustee Comment); Chapter 13: It Works (Court Comment); Veterans' Benefits (Trustee Comment); Proof of Claim Best Practices (Creditor Comment); Good for the Goose? (Debtor Comment); A Bankruptcy Judge Comments on Proofs of Claim (Court Comment); Chapter 13 Audits: All Bark and No Bite? (Debtor Counsel); Loss Mitigation in the Changing Mortgage Market (Creditor Counsel); Business Expenses and CMI (Trustee Comment); Why Can't We Get Quicker Answers? (Court Comment); 401(k) Loans: More Than Meets The Eye (Trustee Comment); The Case for Conduit Mortgage Payments (Debtor Counsel); Loss Mitigation in Home Retention (Creditor Counsel).
The Loss Mitigation Option While We Wait For A Conclusion On Cram-Down Dan West, a creditor's attorney, notes although the proposed legislation, which may provide bankruptcy courts with authority to modify residential mortgages, has not been enacted, there are other avenues debtors may pursue with their mortgage lenders.
A Market-Based Approach To Debtors' Attorney Fees Judge Diehl provides a thoughtful discussion of the complicated issue of appropriate fees for the counsel for the debtor and explains the nuanced approach of the Atlanta court, which could serve as a model for other courts.
Why is all disposable income payable in Chapter 13? ALL disposable income – may not be the best approach. Judge Gene Wedoff provides a glimpse at “a fairer and more efficient approach to payment of future income in bankruptcy.”
Chapter 13 Under The Bankruptcy Act And Chandler Amendments Robert Goering, Sr., a bankruptcy attorney in Cincinnati, Ohio, who maintains an active bankruptcy practice representing debtors and creditors in consumer and business cases, began filing chapter 13 cases in 1963.
Judge Grant Considers Chapter 13 Judge Grant reviews some overlooked and under-appreciated opportunities only available to a debtor in a chapter 13 bankruptcy.
Judge Boulden employs her lengthy bankruptcy experience to view the current chapter 13 environment. This article catalogues multiple changes in chapter 13 over the years and concludes there is a continuity of elements which continue to allow for success.
Judge Littlefield stresses the significance of counsel focusing on their specific chapter 13 cases. This article reviews some of the proceedings which receive the attention of a judge hearing chapter 13 cases and warns of the danger of simply viewing repetitive issues as identical issues.
Judge Parsons: How Chapter 13 Could Be Even More Helpful In The Mortgage Crisis. This article considers the national financial problems and chapter 13’s present ability to assist debtors and creditors, which, with Congressional action, could provide an enhanced opportunity to address the mortgage crisis.
Judge Kennedy: Considering the Advantages of Chapter 13. Chapter 13 becomes a judge's favorite.
Judge Markell: A Great Business To Be In. Chapter 13 is the business of hope and redemption.
David Epstein Considers Chapter 13. Professor Epstein thinks there are just too many rules.
A Variety of Views: Wholly Unsecured Mortgages — Pre-Confirmation Plan Provisions This series of articles, from our distinguished contributors, focuses on pre-confirmation plan provisions in connection with mortgages—what are significant debtor plan provisions; what are frequent mortgage creditor or trustee objections; what mortgage proof of claim issues are implicated; what is the role of counsel for the debtor, counsel for the mortgage creditor and the trustee in pre-confirmation plan and related proof of claim proceedings, including plans which provide for the trustee to disburse mortgage payments.
Pre-Confirmation Plan Provisions: Chapter 13 Trustee's View
Pre-Confirmation Plan Provisions: Debtor Attorney's View
Pre-Confirmation Plan Provisions: Creditor Attorney's View
A Variety of Views: Wholly Unsecured Mortgages at Trial Although the initial articles in this series presented perspectives on various issues in connection with wholly unsecured mortgages in chapter 13 cases, where the parties are unable to reach an agreed resolution litigation frequently follows. This series of articles presents the perspectives of a trustee, a debtor's attorney and a creditor's attorney in connection with a trial to strip a wholly unsecured mortgage.
Wholly Unsecured Mortgages at Trial: Chapter 13 Trustee's View
Wholly Unsecured Mortgages at Trial: Debtor Attorney's View
Wholly Unsecured Mortgages at Trial: Creditor Attorney's View
The NACTT Academy is pleased to again introduce a series of articles in the unique section, Variety Of Views On Selected Chapter 13 Issues. This year's contributors are: Kathleen Laughlin, Chapter 13 Trustee, Omaha, Nebraska; John Cannizzaro, counsel for debtors, Columbus, Ohio; and Lance Olson, counsel for creditors, Bellevue, Washington. Additional information on this year's distinguished contributors appears below. The first set of articles focuses on the issue of Wholly Unsecured Mortgages.
Wholly Unsecured Mortgages: Chapter 13 Trustee's View Debtor's Response to Trustee Trustee's Reply to Debtor's Response Creditor's Response to Trustee Trustee's Reply to Creditor's Response
Wholly Unsecured Mortgages: Debtor Attorney's View Creditor's Response to Debtor Debtor's Reply to Creditor's Response Trustee's Response to Debtor Debtor's Reply to Trustee's Response
Wholly Unsecured Mortgages: Creditor Attorney's View Debtor's Response to Creditor Creditor's Reply to Debtor's Response Trustee's Response to Creditor Creditor's Reply to Trustee's Response
Applicable Commitment Period: Debtor Attorney's View Creditor's Response to Debtor Trustee's Response to Debtor & Creditor
Applicable Commitment Period: Creditor Attorney's View Debtor's Response to Creditor & Trustee Trustee's Response to Debtor & Creditor
Applicable Commitment Period: Chapter 13 Trustee's View Debtor's Response to Creditor & Trustee Creditor's Response to Trustee
A Trustee's Perspective Debtor's Response to Trustee Creditor's Response to Trustee
A Creditor Attorney's Perspective Debtor's Response to Creditor Trustee's Response to Creditor and Debtor
A Debtor Attorney's Perspective Creditor's Response to Debtor Trustee's Response to Debtor and Creditor
A Debtor Attorney's View with responses by a Creditor's Attorney and a Chapter 13 Trustee; the Creditor Attorney's View and responses from the Debtor's Attorney and Trustee; and the Trustee's View, with replies from the Creditor and Debtor.
Espinosa: Through an Ethics Prism This article examines some ethics issues present among the multiple issues addressed in the Supreme Court's recent Espinosa decision. (Read the full text of the Espinosa opinion here.
MILAVETZ & BAPCPA: Some Troublesome Text Is Touched Up, Not Terminated The latest from the Supreme Court. The Supreme Court's opinion in Milavetz, decided Monday, Mar. 8, 2010 is available at this link from the Court as a PDF file.
Bankruptcy Ethics: Attorneys, Deceptive Documents And Bankruptcy — A Series Of Articles: What sources and standards are available to bankruptcy courts in such circumstances? This second article in the series reviews the sources and standards used by courts in connection with determining issues involving the presentation of deceptive documents in bankruptcy cases and proceedings.
Bankruptcy Ethics: Attorneys, Deceptive Documents And Bankruptcy – A Series Of Articles This is the initial Article in a series which will explore the distributing frequency with which deceptive documents are being filed in bankruptcy courts, including the significant consequences, often involving subsequent state disciplinary proceedings, for attorneys involved with such filings.
Ethics And Unbundling: Attorneys Agree With Clients About Unbundling Bankruptcy Services; But, Do Courts Agree With Attorneys About Unbundling Bankruptcy Services?: Part 3 – Bankruptcy Court Decisions In the concluding article in this series, the author examines various bankruptcy court decisions, all of which suggest caution in connection with attempting to unbundle bankruptcy services.
Professional Responsibility Cannot Be Subordinated To Process Efficiency Taylor – A "Must Read" Decision: Another court, with striking detail, holds mortgage business demands in chapter 13 cases cannot trump creditor counsels' professional responsibility demands.
Ethics And Unbundling: Attorneys Agree With Clients About Unbundling Bankruptcy Services; But, Do Courts Agree With Attorneys About Unbundling Bankruptcy Services? PART 2 – STATE RULES OF PROFESSIONAL CONDUCT AND APPLICABLE BANKRUPTCY LAW: This article examines the approach bankruptcy courts often take in their examinations of state law governing the unbundling of legal services within the context of representation in a bankruptcy case.
Ethics And Unbundling: Attorneys Agree With Clients About Unbundling Bankruptcy Services; But, Do Courts Agree With Attorneys About Unbundling Bankruptcy Services? This is the first in a series of articles examining the complicated issues presented by the attempted unbundling of legal services in bankruptcy proceedings.
I Was Just Following Orders: Both on the world stage and in local courtrooms, the words “I was just following orders” have a hollow ring and fail to provide an acceptable defense for unacceptable actions or, quite frequently, failures to act.
How Did This Happen To Me?: How did this ethics problem happen to me? It should come as no surprise that this simple column will not provide a once-and-for-all answer to that question; however, this column will identify one example which could be helpful in limiting, if not avoiding, the presence of that question in a legal career.
The Controlling Ethics Model: The controlling model must be the “Ethics Model,” i.e. the state and federal law which govern every attorney’s and law firm’s ethical obligations in the practice of law.
Listen, Download and Read Transcriptsof These Interviews
Henry E. "Hank" Hildebrand, III: Chapter 13 Trustee, Middle District of Tennessee
Andrea E. Celli: Chapter 13 Trustee, Northern District of New York
Hon. Roger L. Efremsky: U.S. Bankruptcy Judge, Northen District of California
Richardo I. Kilpatrick: Bankruptcy Attorney, Kilpatrick & Associates
A Few of the Resources Available at the Trustees' Education Network (TEN) Chapter Thirteen Trustee Debbie Langehennig provides an overview of helpful resources available at the TEN web site.
American Bar Association Best Practices for Debtors' Attorneys
Ten Things To Ask When Selecting A Bankruptcy Attorney
U.S. Trustee's Chapter 13 Trustee Locator
Trustees' Education Network Library: Invaluable collection of information for debtors and other participants in the Chapter 13 process.
HAMP SERVICERS as of Nov. 12, 2009.
Subprime Loans – Where It All Began A look at how the subprime mortgage market grew, and then imploded.
July 2010 Home Sales Lowest in 15 Years.
Article on HAMP Failures.
Private Sector Mortgage Modifications Increasing 10% in June 2010.
Foreclosure Rates Hitting Minorities at Twice Average Rate.
Section 8 Good for the Housing Market in Atlanta.
Industry Blog by RealtyTrac’s Rick Sharga on Foreclosure Activity.
Numbers Disappoint in Loan Modifications.
Article Questioning Effectiveness of Government Programs to Save Mortgages.
Foreclosures Do Not Discriminate Against Nation’s Most Creditworthy.
FTC Cracks Down on Mortgage Scams.
Foreclosures Up in 75% of Top U.S. Metro Areas in First Half of 2010.
Ad Council and US Govt. to Launch Public Service Ads for HAMP Assistance.
Article on Debt Collectors Taking Over Mortgages.
Wikipedia Analysis of Sub Prime Mortgage Morass.
Dilemma of Negative Equity.
Defaults in High End Homes.
Mortgage Rates at Historic Lows.
Government Accounting Office June 2010 Report on Troubled Asset Relief Program(TARP).
Refi’s Up but Sales are Down.
Mortgage Bankers Association Report on 8.8% increase in Mortgage Applications in Last Week of June.
Fannie-Freddie Bailout Costing Taxpayers Almost $1 Trillion.
Beware of Mortgage Scams.
Industry Blog on Reverse Mortgages Slowing Down.
Industry Blog on Fourth Month of Falling Mortgage Delinquencies.
New Home Sales Plunge 33% to Lowest since 1963.
Mortgage Rates at Historic Low.
House Oversight Committee Slams Mortgage Lenders on Modifications.
Former Fannie Mae Exec Bashes Loan Mod Program.
Deeds-in-Lieu Gaining Ground as Foreclosure Alternative.
California Gives Help to Underwater Mortgages.
Interview with Yuri Shestopaloff, author of new book Mortgages and Annuities: An Introduction.
RealtyTrac Report on Falling Foreclosures and Increasing Repossessions as the Industry Manages Inventory.
Both Sides of the Countrywide Settlement.
Most Mortgage Modifications Default within 12 Months.
Advice on How to Hold on to Your Home.
Big Changes to Mortgage Modifications Effective June 1, 2010.
HAMP: Help or Hindrance?
Profits in the Foreclosure Business.
Considering the Risks of Strategic Defaults.
RealtyTrac Forecasts 20% Increase in Foreclosures for 2010.
National Bureau of Economic Research published paper blaming BAPCPA for increased mortgage defaults.
Industry Blog on Eliminating Fannie and Freddie.