In a Texas decsision, the Bankruptcy Court held that a Mortgage Creditor waived right to recover escrow shortages by failing to provide escrow analyses required by RESPA. The Garza Court recognized that the proper remedy for a failure to comply with RESPA’s annual escrow analysis requirement has been the topic of significant debate. The majority of…
Archives for January 2013
Does a Proof of Claim file by a Mortgage creditor in a prior Chapter 13 Bankruptcy “judicially estop” the same creditor from amending their claim in the same Debtor’s current Chapter 13 Bankruptcy?
In a recent 5th Circuit Court of Appeals decision, a proof of claim filed by mortgage creditor in the Homeowner’s prior Chapter 13 case did not judicially estop the same mortgage creditor from amending their claim in the Homeowner’s current case: The 5th Court of Appeals held that a mortgage company’s failure to include the…
What is Judicial Estoppel in the context of Bankruptcy in Michigan?
Here are the elements of judicial estoppel: The doctrine of judicial estoppel is “a common law doctrine by which a party who has assumed one position in his pleadings may be estopped from assuming an inconsistent position,” particularly in situations where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a…
Debtor’s can defend against “fraudulent transfer” claim even where consideration given by debtor was greater than value of benefit received
In a Texas case, a Debtor received full value for prepetition payments made to a creditor for purposes of defense under Code § 548(c) to avoid an alleged fraudulent transfers. The bankruptcy court did not err in concluding that, under Code § 548(c), a creditor holding a security interest in the building in which the…
How do you determine household size for the Bankruptcy Means Test?
The US Trustee’s guide to the Chapter 7 Means Test states that household size is the debtor, spouse and any dependents that the debtor could claim under IRS dependency tests. IRS publication 501 which shows the requirements for claiming exemptions for a dependent. “Qualifying Relative” can be parents who do not live with the debtors…
You cannot surrender property to divest yourself of title to that property in a Bankruptcy in Michigan
The debtor’s surrender of property does not divest debtor of title to property in a Bankruptcy proceeding in Michigan. A Chapter 13 debtor’s surrender of real property collateral has no impact on the debtor’s status as record owner of the property. Under the Bankruptcy Code, the debtor’s “surrender” merely establishes she will not oppose the…
How is the value of property that you want to redeem under 722 determined?
If you file a Chapter 7, you have the option to redeem tangible personal property that is subject to a secured claim by paying that creditor the value of that property. The value of the redemption amount is determined by Section 506(a)(2) of the Bankruptcy Code. This section establishes that value as that price that…