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…

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…

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…

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…

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…