Chapter 13

News & Analysis as of

Mortgage Enforcement: Dot Those “i”s and Cross Those “t”s – Or Else

A chapter 13 debtor objected to the portion of a mortgagee’s claim consisting of expenses related to foreclosure of its mortgage. She argued that since the mortgagee failed to comply with notice requirements under the...more

Eleventh Circuit Holds That Filing a Time-Barred Proof of Claim in a Bankruptcy Proceeding Violates the FDCPA

The Fair Debt Collection Practices Act (FDCPA) provides that debt collectors “may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Nor may a debt collector...more

Valuing a Secured Creditors Collateral: A Time Frame

Section 506(a)(1) of the Bankruptcy Code provides common-sense instruction that the allowed amount of a secured claim is equal to the value of the collateral securing the claim and that a claim is unsecured to the extent the...more

In re Brown: Replacement Value Applies Even When Debtor Surrenders Property

The recent Eleventh Circuit case of In re Brown, 746 F.3d 1236 (2014) held that 11 U.S.C. § 506(a)(2)'s replacement value standard applies even when a Chapter 7 or 13 debtor surrenders collateral under 11 U.S.C. §...more

Am I Allowed to Go on Vacation While in a Chapter 13 Bankruptcy?

I don’t ever sugar coat the realities of a chapter 13 bankruptcy. When you sign up for a chapter 13 you are in it for the long haul. Most chapter 13 bankruptcies I deal with last 60 months. Some are as low as 36 months,...more

Eleventh Circuit Rules Post-Confirmation Settlement Proceeds are Property of Chapter 13 Estate

A recent case out of the Eleventh Circuit Court of Appeals (the “Court”) concluded that proceeds stemming from a post-confirmation settlement agreement between a chapter 13 debtor and its mortgagor related to a violation of...more

Eleventh Circuit Doubles Down on Lien Stripping

When the Fourth Circuit handed down its opinion in the case of In re Davis, which permitted lien stripping in “Chapter 20” proceedings, the stage was set for the Eleventh Circuit to expand debtor’s ability to escape from...more

Fresh Starts in Chapter 7 and Finishing the Race in Chapter 13: Bankruptcy Positives

Many years ago I read an article in the Los Angeles Times that cited a statistic to the effect that nearly all people who filed Bankruptcy, regretted it. Something like 90 percent. I am not sure how that figure was...more

Dischargeability of Student Loan Debt in Bankruptcy

Title 11 U.S.C. § 523(a)(8) of the United States Bankruptcy Code provides that, in order to obtain a discharge of an otherwise nondischargeable student loan, an individual in bankruptcy (the “debtor”) must establish that he...more

Applicability of the Automatic Stay to Serial Chapter 13 Petition Filers

Ordinarily, when a debtor files a chapter 13 bankruptcy petition, the automatic stay is triggered immediately. The stay prohibits lenders from pursuing any claim against the debtor unless they seek and are provided relief...more

Eleventh Circuit Holds Replacement Value - Applies to Surrender of Collateral in Chapter 13 Plan

On March 27, 2014, the Eleventh Circuit (the “Court”) issued a ruling, which will have a major impact on how Chapter 7 and 13 debtors are able to treat claims of secured creditors. The issue in In re Brown, 13-13013, 2014 WL...more

Can I File for Chapter 13 Bankruptcy Even if I Qualify for Chapter 7?

Some individuals pass the means test for Chapter 7 bankruptcy. Yet they also have income that might allow them to repay their creditors under more favorable terms. This option might be preferable to individuals who wish to...more

Why Would an Individual or Business File for Chapter 11 Bankruptcy Instead of Chapter 13?

Both businesses and individuals who own a business can use Chapter 11 or Chapter 13 bankruptcy to obtain debt relief through new loan repayment terms. Still, even though the two chapters seem similar at a glance, there are...more

Should you avoid bankruptcy?

For many people, bankruptcy is something to be avoided at (almost) all costs. Is that a good policy for you to follow? Let's take a look....more

Paying Attorney’s Fees Not Reason to File Chapter 13

Of the three most common chapters of the Bankruptcy Code, Chapter 7 offers an insolvent individual the freshest of starts; yet it is not without its pitfalls. Under Chapter 7 a debtor is not permitted to pay his attorney in...more

Can I Pay Off My Chapter 13 Bankruptcy Case Early?

Chapter 13 bankruptcy requires that you make a monthly payment to your creditors over a three to five year period. Before we even file your chapter 13 bankruptcy case with the court I will work with you to put together your...more

Caveat Debtor: Disgorging Inheritance in Chapter 13 Cases

A recent case out of the 9th Circuit, In re Dale, revives a controversial subject for Chapter 13 debtors: whether an inheritance received more than 180 days after commencement of the case is part of the bankruptcy estate. ...more

ERISA: 6th Circuit — Failing to Disclose Disability Claim in Bankruptcy NOT Fatal to Disability Lawsuit

What happens when a long term disability claimant declares bankruptcy, and fails to list the long term disability claim in the bankruptcy estate? Is he judicially estopped from bringing the lawsuit alleging wrongful...more

The Big “B” – Bankruptcy on the Construction Project

It’s not often that I find myself in bankruptcy court, but there I was. A lone construction attorney surrounded by bankruptcy lawyers speaking in a foreign tongue – “cram down!,” “cash collateral!,” “executory...more

Right Or Wrong, Dewsnup Is Law

A Chapter 13 debtor sought to void a federal tax lien under Section 506(d) of the Bankruptcy Code to the extent that it exceeded the value of his assets. The Seventh Circuit joined the Tenth Circuit in holding that the U.S....more

Wait until you're sued to file bankruptcy, or file earlier?

Many people wait until they're sued by a creditor to file bankruptcy. After all, filing bankruptcy stops all creditor actions against you, including lawsuits. But if your financial life is "going South", should you wait that...more

Qualifying for Chapter 13 Bankruptcy

Chapter 13 is a highly useful personal bankruptcy option that is often overlooked in favor of its much more common counterpart, Chapter 7. However, Chapter 13 is not for everyone. Debtors interested in Chapter 13 must meet...more

Tax refunds and bankruptcy. Do they go together?

Now that it's the year 2014, are you expecting a refund on your taxes for 2013? If so, are you also thinking about filing bankruptcy? Let's see how that might work....more

The Interplay Between Personal and Business Bankruptcy

There is usually a sharp distinction between personal bankruptcy and business bankruptcy. Certain types of bankruptcy are only available to individuals, and individual debtors filing for bankruptcy may face stricter...more

Are School Tuition Payments Fair Game For Bankruptcy Trustees in Parents' Personal Bankruptcy?

Parents who are forced to file for personal bankruptcy may be surprised to find that school tuition payments they made for their children years earlier could become the target of recovery by an aggressive bankruptcy trustee. ...more

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