One more case before summer’s over: Rake v. Wade. 
This one is interesting because it dealt with a central issue in Chapter 13: whether the Bankruptcy Code requires payment of interest on mortgage arrears (which are usually themselves mostly interest) even when the underlying loan documents do not provide for interest on arrears. And even more interesting, the effect of the decision had an effective life only slightly longer than a fruit fly.
In 1993, the Supreme Court held that the Code required payment of interest on arrears, even when the controlling documents did not so provide. The 1994 amendments to the code added 1322(e) reversing the decision with respect to any transaction entered into after the effective date of the amendments.
(e) Notwithstanding subsection (b)(2) of this section and sections 506 (b) and 1325 (a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default, shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.
So, for once Congress watched what the Supreme Court had done, and acted to amend the law to effect its intention.
Unless the loans documents so provide, a mortgage creditor does not get interest on arrears through the plan.
This one is for Lex and Gail and follows up on Peeling the Onion, about the client who was counting on the IRS compromising their priority tax debt just as their income jumped. First, get the lingo right: it is an offer IN compromise, not an offer AND compromise. In general, the IRS will not [...]
Read the full article »
I ended up representing a crazy because I had an attorney/client relationship with him when he discovered that the foreclosure sale was 48 hours off. I needed to have taken my own advice about deselecting clients who won’t take your advice. My concern here, both personally and professionally, was that I thought risky to say, [...]
Read the full article »
Bankruptcy cases you need to know by name include Lamie, the Supreme Court’s 2004 pronouncement on attorneys fees for debtor’s counsel. Petitioner represented a Chapter 11 debtor whose case was converted to Chapter 7. After conversion, Mr. Lamie filed amended schedules, and reports on changes in assets and debts since the commencement of the case. [...]
Read the full article »
Learn how to evaluate a case in 15 minutes; how to decide whether to give free consultations; and how to avoid conflicts, written for the solo or small firm attorney. Could the topics be more on point? The current issue of the GPSolo Magazine from the ABA deals with these issues and more. It’s online [...]
Read the full article »
Rookie bankruptcy lawyers could do worse than go the California State Bar Convention for a grounding in practice management basics and developing issues in other areas of law. My law partner Renee Mendoza points out that legal education is nowhere as inexpensive as the convention. You can attend classes from dawn to the cocktail hour, [...]
Read the full article »
For six months, I’ve been writing this blog for newish bankruptcy lawyers, trying to imagine what it is that I know about this practice that you, as a newcomer, needs to know sooner rather than later. I’ve shamelessly lifted stories from my clients and those of my local newbies to write about here. I’ve snatched [...]
Read the full article »
When we finally got there, the client’s reluctance to wait 8 weeks to file bankruptcy was predicated on the (unreasonable) expectation that the IRS would forgive tax debt in an offer in compromise. I got involved counseling a new bankruptcy attorney whose clients wanted to file Chapter 7 right now, while one spouse was unemployed. [...]
Read the full article »
Have you encountered the St. Johns University Law School bankruptcy case blog? On line, free, one current case at a time. From the dates on the latests posts (May) I’d guess that school is out for the summer. That’s OK, by the time you’ve read the back list, the students will be back and writing [...]
Read the full article »
Five friends and I launched a new personal finance site today Money Health Central where we hope to gather actionable information for those in debt and those emerging from debt. We hope to put to use what we’ve learned about personal finances from years of interviewing our bankruptcy clients. The site moves beyond just bankruptcy [...]
Read the full article »
