In a recent case in the Western District of Michigan, a Bankruptcy judge ruled that the US Government had the right to set off a debt under 11 USC 553 even when the Setoff was listed as an asset and exempted under 11 USC 522. The Judge ruled that 11 USC 553 Setoff provision trumps…

The test for judicial estoppel in Sixth Circuit was set forth in Stephenson v. Malloy, 700 F.3d 265 (6th Cir., Oct. 30, 2012). The Stephenson court stated: To support a finding of judicial estoppel, the court must find that: (1) the debtor assumed a position that was contrary to the one that he asserted under oath…

In a recent decision, the Court held that Form 4549 filed by debtor was not income tax “return” for purpose of Code § 523(a)(1). A Form 4549 Income Tax Examination Changes dated July 19, 2007, signed by the debtor was not a tax return under IRC § 6020(a) and thus was not a qualifying tax…

In McDowell, the Court required debtors’ attorney to turn over debtors’ original Schedule F, but not other documents. Ruling on the U.S. Trustee’s motion to require the Chapter 7 debtors’ attorney to turn over various documents created during the debtors’ case, the court held that: A questionnaire created by the attorney, to which one or…

In a highly contentious issue, the Texas based Zamora Court Post-Petition condominium assessments are postpetition debts – and therefore non-disharageable. Homeowners association fees assessed after the filing of a voluntary petition in bankruptcy are postpetition debts. See In re Beeter, 173 B.R. 108 (Bankr. W.D. Tex. 1994) (under the debtor’s condominium declaration, and under Arizona law,…

Yes. In a recent Texas decision, the Creggett court disallowed the mortgage creditor’s claimed payment change from $1,246 monthly to $2,608 monthly, based on an asserted change in the Chapter 13 debtors’ monthly escrow account payment from $0.01 to $1,652. The court apparently believed that the creditor had not properly documented the analysis of the debtors’ escrow…

In Texas, a Bankruptcy Court held that a creditor’s right to equitable relief to enforce a covenant not to compete against the debtor was a “claim” under Code § 101(5) because, under § 101(5)(B), the term “claim” includes the “right to an equitable remedy for breach of performance if such breach gives rise to a…