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rst time that the bankruptcy court lacked jurisdiction over the claim raised in the untimely amended complaint upon which the bankruptcy court had based its decision. In denying that motion, the bankruptcy court held that Rule 4004(a)'s time bar was not jurisdictional and that the debtor had waived any untimeliness claim by failing to raise it before the court reached the merits. Both the district and circuit courts affirmed.
In Lamie v. United States Trustee, 540 U.S. ___ (2004), the Supreme Court affirmed the Fourth Circuit and held that a chapter 7 debtor’s attorney must be appointed by the trustee, and approved by the court, pursuant to 11 U.S.C. §327, in order to receive post-petition (or post-conversion) compensation. The Court held that awkwardness created by the 1994 amendment to 11 U.S.C.
In Bethea v. Robert J. Adams and Associates, 352 F.3d 1125 (7th Cir. 2003), the Seventh Circuit has ruled that in a chapter 7 case a pre-petition agreement for payment of legal fees creates a debt subject to discharge like any other.
Debtors in bankruptcy often retain secured collateral (such as a home or car) without redeeming the collateral or reaffirming the secured debt. In many instances, the secured creditor will allow the debtor to retain possession of the collateral and not foreclose or repossess as long as the debtor makes the monthly contract payments and meets the other obligations under the contract (e.g. insurance coverage).
In the recent case of Archer v. Warner, 123 S.Ct. 1462, 155 L.Ed2d 454 (2003), the Supreme Court reversed the Fourth Circuit Court of Appeals and found that a claim based on payments due under an agreement resulting from the settlement of fraud claims can retain its status as a nondischargeable debt.
An increasing number of debtors in bankruptcy are raising Truth in Lending Act (“TILA”) rescission issues in an attempt to avoid the security interest of their mortgage lenders. Recently, the Federal District Court for the District of Kansas weighed in on this issue. It held that a bankruptcy court may condition a borrower’s TILA rescission right on the return of the property the debtor received from the loan transaction. Quenzer v.
ABI continues to produce high-quality resources with information of value to consumer bankruptcy practitioners. The Nuts and Bolts program conducted by ABI immediately before the Annual Spring Meeting featured presentations on the fundamentals of consumer bankruptcy law.
Under §722 of the U.S. Bankruptcy Code, a debtor may redeem collateral from a lien by paying the secured creditor, in a lump sum, the value of the collateral. An increasing number of debtors have been obtaining loans to “redeem” collateral in chapter 7 cases. This article will examine what standard courts should use to determine the value of an asset that the debtor seeks to redeem.
Recently, several bankruptcy courts have reviewed the issue of whether a chapter 13 plan containing a provision requiring the release of a lien if the allowed secured claim has been paid in full prior to the completion of the chapter 13 plan may be confirmed. In re Smith, --- B.R. ---, 2002 WL 31954449 (Bankr. W.D. Tex. 2002) (decided December 20, 2002); In re Castro, 285 B.R. 703 (Bankr. D. Ariz.
