In assessing the applicability of Code § 523(a)(6), some circuits have essentially collapsed the terms “willful” and “malicious,” applying a unitary test. See, e.g., In re McClendon, 765 F.3d 501 (5th Cir. 2014) (applying the unitary standard and “defining a willful and malicious injury as one where there is either an objective substantial certainty of harm or a subjective motive to cause harm”). Other circuits utilize a two-pronged approach, where “willful” and “malicious” remain separate elements for the courts to review. Today, the present court explicitly adopted the two-pronged test. Definition of “willful” injury for purpose of Code § 523(a)(6): A “willful” injury, for purposes of § 523(a)(6), requires “actual intent to cause injury,” not merely a deliberate or intentional act that leads to injury….

U.S. Department of Education and its servicers do not have sovereign immunity to claim for violation of automatic stay: The U.S. Department of Education and its servicers in this case were governmental units as defined in Code § 101(27), and Code § 106(a) unmistakably abrogated the Department’s sovereign immunity. Loan servicers FedLoan Servicing and Navient, both of which were owned by the Department, were instrumentalities of the Department under § 101(27). Elements of violation of stay: The Fifth Circuit has established a three-pronged test to determine a willful violation of the automatic stay: (1) the creditor must have known of the existence of the stay, (2) the creditor’s acts must have been intentional, and (3) the creditor’s acts must have violated the stay. In re…

The Secure Act was signed into law on December 20, 2019, and it could change the treatment of your pre-tax retirement accounts. The Act eliminates “Stretch IRA’s.” Hiers who inherited traditional IRA’s could stretch the IRA Required Minimum Distributions over their lifetime. For example, if a grandfather leaves his traditional IRA to his 25 year-old grandchild, the grandchild could stretch the Required Minium Distributions over his or her lifetime, reducing the tax liability faced from those earnings – ergo the “Stretch IRA.” The Secure Act requires that the inherited IRA be paid out fully within ten (10) years of the original account holder’s death. The law could affect your estate plan. If you have questions, you should give us a call to see if we…

Krista D’Amelio | Latest News | June 25, 2019 Today, the National Association of Consumer Bankruptcy Attorneys (NACBA) was given the opportunity to testify before the House Judiciary Committee Subcommittee on Antitrust, Commercial and Administrative Law during the hearing “Oversight of Bankruptcy Law and Legislative Proposals”. NACBA’s Vice President, Ed Boltz, as well as the other witnesses on the panel, made a strong call for restoration of the student loan bankruptcy discharge. The call for bankruptcy relief for student loan debtors was unanimously supported by the witness panel that included Ms. Hollister K. Petraeus (Former Assistant Director, Consumer Financial Protection Bureau’s Office of Servicemember Affairs), Mr. Robert Keach (on behalf of The American Bankruptcy Institute), Mr. John Rao (on behalf of The National Consumer Law…

WASHINGTON – U.S. Senators Dick Durbin (D-IL) and Elizabeth Warren (D-MA), and U.S. Representatives Jerrold Nadler (D-NY-01), and John Katko (R-NY-24) today introduced a bicameral bill that would give Americans overwhelmed by student loan debt the option of obtaining meaningful bankruptcy relief. The Student Borrower Bankruptcy Relief Act of 2019 would eliminate the section of the bankruptcy code that makes private and federal student loans nondischargeable, allowing these loans to be treated like nearly all other forms of consumer debt. “Filing for bankruptcy should be a last resort, but for those student borrowers who have no realistic path to pay back their crushing student loan debt, it should be available as an option to help them get back on their feet,” said Durbin. “Our nation…