As of February 18, 2015, the debtors have filed their brief in the consolidated Supreme Court cases of Bank of Amer. v. Toledo-Cardona, No. 14-163 and Bank of Amer. v. Caulkett, No. 13-1421 (filed Feb. 17, 2014), addressing the issue of whether a wholly unsecured lien can be stripped off in chapter 7. In McNeal v. GMAC Mortg.,…
Archives for 2015
What is the Standard of Regarding the Award of Attorney’s Fees?
As reported by Robin Miller of CBAR, a bankruptcy court’s decision regarding an award of attorney’s fees is reviewed for an abuse of discretion. In re Boddy, 950 F.2d 334 (6th Cir. 1991). An abuse of discretion occurs where the bankruptcy court “relied upon clearly erroneous findings of fact, improperly applied the governing law or…
How Does a Debtor Establish That case was filed in good faith for purpose of Code § 362(c)(3)(B) to Extend the Automatic Stay?
In assessing whether a debtor’s bankruptcy case was filed in good faith for the purpose of Code § 362(c)(3)(B), courts have considered the following non-exhaustive list of factors: (1) the timing of the petition, (2) how the debtor’s debts arose, (3) the debtor’s motive, (4) how the debtor’s actions affected creditors, (5) why the debtor’s…
Will Relief from Stay Be Granted Where Chapter 13 Debtor Did Not Establish The Ability to Cure the Default Arrearage?
As reported by Robin Miller of CBAR, in In re Moore, 2014 WL 4855011 (Bankr. W.D. Mich., Sept. 23, 2014), the Chapter 13 debtor’s balloon mortgage had matured prepetition, and the debtor did not show that she would be able to refinance the mortgage within a reasonable time, the court granted the mortgage creditor’s motion…
Can a Bankruptcy Court Limit the Pre-Confirmation Fees of a Noted Bankruptcy Attorney?
Yes. As reported by Robin Miller of CBAR, in In re Ulrich, 517 B.R. 77 (Bankr. E.D. Mich., Sept. 5, 2014), Chief Bankruptcy Judge Phillip J. Shefferly, held that despite the Chapter 13 debtor’s law firm’s “demonstrated skill and expertise in many bankruptcy cases before this Court, and its success in confirming the second amended…
Is a Debtor’s Obligation to Pay One-Half of Child’s College Expenses was Not a “Super Dischargeable” Support Obligation?
No. In In re Larson-Asplund, 519 B.R. 682 (Bankr. E.D. Mich., Oct. 8, 2014), Chief Bankruptcy Judge Phillip J. Shefferly held that the Chapter 13 debtor was not judicially estopped from asserting that his obligation, under the terms of a consent judgment entered in the debtor’s earlier divorce case, to pay one-half of his children’s…
Can a Chapter 13 Plan That Merely Delays Payment to the Largest Creditor was Not Proposed in Good Faith?
No. As reported by Robin Miller of CBAR, a Debtor has burden of proving that Chapter 13 plan was proposed in good faith after issue is raised. Once the issue of a Chapter 13 debtor’s good faith has been raised by the trustee, a party in interest or the court, the debtor has the burden…