Consumer Bankruptcy

The Limited Legacy of Lerbakken: Consumer Debtors Can Exempt Unencumbered, Qualified Retirement Funds Awarded in a Divorce

It has been two years since the Eighth Circuit Court of Appeals affirmed the BAP’s ruling [1] in In re Lerbakken [2] disallowing a debtor’s claimed exemption in retirement funds awarded by divorce dissolution under 11 U.S.C. § 522(b)(3)(C).

Court Outlines Bases for In Rem Relief Under Section 362(d)(4)

As the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the Act) works through its rebellious teenage years, courts continue to address debtor behavior through the provisions of the Act impacting the applicability of the automatic stay. Without limitation, courts have grappled with the substantive and procedural implications of the Act’s “repeat filer” provisions set forth in §§ 362(c)(3) and 362(c)(4). However, there has been somewhat less court activity with respect to the Act’s addition of § 362(d)(4).

Consumer Bankruptcy December 2021

Consumer Practice and Access to Justice

November 2021 brought with it a first-of-its-kind, incredibly successful event with ABI’s Consumer Practice Extravaganza Nov. 3-12 (CPEX21). Attendees learned about all aspects of consumer bankruptcy practice from intake to post-filing, and from basic chapter 7 cases to cryptocurrency. One common theme may have gone unnoticed, however: access to justice.

In re Gravel: Where Are We Now on Rule 3002.1 Sanctions?

The Second Circuit’s August 2021 decision in In re Gravel[1] has already received considerable attention and generated much debate. Gravel involved the Vermont bankruptcy court’s initial entry of $375,000 in sanctions against a mortgage creditor based on the creditor’s inclusion of fees on a monthly mortgage statement — fees that were not included in the “amount due” on the statement and for which it did not file notice under Bankruptcy Rule 3002.1(c).

2021 Co-Chair Corner/Year in Review

Co-Chairs Chris Hawkins and Michelle Bass thank all committee members for their support and participation this year. Despite the continuing challenges presented by COVID-19, we were able to maintain momentum in 2021 after a very productive 2020.

Consumer Bankruptcy - September 2021

https://connect.abi.org/webmail/107412/795351011/0559c3a0f45ca40da3ece0…

Turnover of Repossessed Property After Fulton: Some Practical Considerations

In City of Chicago v. Fulton  (Fulton), [1] the Supreme Court settled a split among circuits regarding the correct interpretation of § 362(a)(3), which prohibits “any act to obtain possession of property of the estate or of property from the estate or to exercise control over of property of the estate. [2] The Court held that mere retention was not an “act” prohibited under § 363(a)(3).

Second Circuit Further Opens Door to Dischargeability for Private Student Loan Borrowers as Call for Student Loan Reform Heats Up

In July, the Second Circuit issued an opinion favoring the dischargeability of certain private student loans in what appears to be a growing circuit trend. This trend correlates with the call for student loan reform, which has been at the forefront of the news in recent months.

None of Your Beeswax: Violations of the Automatic Stay, Voidness and Standing

The childhood riposte “none of your beeswax” has some legal analogs; among them is the doctrine of standing. Standing limits the scope of legal rules, including the automatic stay. [1] Many courts agree that acts in violation of the automatic stay are not voidable but void. [2] If this is true, who may assert that voidness? Whose “beeswax” is an automatic stay violation? In Bank of New York Mellon v.