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 “return” for the debtor’s 2003 taxes within the meaning of the hanging paragraph following Code § 523(a). The Court reasoned as follows: First of all, Form 4596 is simply not a tax return, and is not on Form 1040, Form 870, or other substitute return form. Second, the Form 4596 was not received by the IRS as a return by the debtor, which is a statutory requirement for a valid…

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 both of the debtors provided answers and which contained notes written by the attorney during follow-up consultation and final preparation of the debtors’ schedules, was protected as an attorney-client communication and as attorney work product. A copy of the debtors’ original Schedule F with handwritten notes and comments by the debtors was not protected by attorney-client privilege and needed to be turned over. A copy of the debtors’ original Schedule…

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, the covenant to pay assessments runs with the land; each new month’s ownership carries with it a new personal liability, arising out of the equitable servitude that burdens that ownership). Attorney’s fees incurred to collect postpetition condominium assessments are themselves a postpetition debt. In re Zamora, 2012 WL 4501680 (Bankr. W.D. Tex., Sept. 28, 2012)

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 account. In re Creggett, 2012 WL 6737813 (Bankr. S.D. Tex., Dec. 28, 2012), appeal filed, Case No. 4:13-cv-108 (S.D. Tex., filed Jan. 14, 2013)

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 right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.” Further, the Court looked to governing Michigan law, monetary damages are clearly available as an alternative remedy as compensation for the violation of a valid non-compete agreement. See generally In re Davis, 3 F.3d 113 (5th Cir. 1993) (a court should analyze “whether the applicable law…

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 courts that have considered the issue have determined that the failure to provide an annual escrow analysis constitutes a waiver of any right to recover a deficiency. See e.g., In re Dominque, 368 B.R. 913 (Bankr. S.D. Fla. 2007); In re Johnson, 384 B.R. 763 (Bankr. E.D. Mich. 2008). The Garza court agreed with the reasoning of these decisions. The Garza Court also awarded the Homeowner’s $4,107.50 in attorney’s fees for creditor’s…

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 Homeowner’s full arrearage amounts in the amended proofs of claim the creditor had filed in the Homeowner’s prior Chapter 13 bankruptcy case did not judicially estop the Mortgage company from including the omitted arrearages in the proof of claim the creditor filed in the Homeowner’s current Chapter 13 case. The Court found no statute or judicial precedent that imposed a legal responsibility on the Mortgage company to seek the full…