I’ve been having nightmares about the 9th’s Circuit’s decision in Siegel for 20 years. Broad strokes, Siegel (143 F.3d 525 (9th Cir. 1998) holds that a filed claim in a no asset bankruptcy case to which no one objects is entitled to preclusive effect in subsequent litigation by reason of Bankruptcy Code §502. In Siegel, […]
Lien Avoidance In Bankruptcy: The Questions You Need To Answer
Black letter law says liens pass through bankruptcy unchanged. But the better statement adds a single word: unless. Liens survive bankruptcy intact unless….unless you take some action to void them. One tool to void liens lives in §522(f). Its location in Chapter 5 tells you that it’s available to any individual debtor who is entitled […]
Between the 1st and the 15th: Is Mortgage Current?
The no man’s land between the mortgage due date and late payment is a persistent trouble spot for Chapter 13 practitioners: Are there arrears when the case is filed during the grace period and the payment made before it was late? In Borre, Judge Ronald Sargis of ED CA said no. He held that the […]
Is Your Law Practice Evolving To Incorporate New Technology
When the world was forced to adjust to new routines in March 2020 due to the global pandemic, I was instantly struck by how little my professional life changed. I’d worked remotely for over a decade, and my systems and procedures didn’t change. Sadly, the same couldn’t be said for many of my fellow consumer […]
All Bankruptcy Roads Pass Through Chapter 5
Regardless of the ultimate destination, all bankruptcy roads lead through Chapter 5. A few bankruptcy cases are derailed there. Because Chapter 5 provisions tell you what comes into the bankruptcy estate, what can be exempted, and what can be changed using Chapter 5. Sometimes the results tell you that bankruptcy is not the right choice […]
Do You Know These Exceptions To Discharge Not In The Bankruptcy Code?
Not all exceptions to discharge in bankruptcy are found in the Bankruptcy Code. Inconvenient, but true. The first two non-Code exceptions to discharge that I encountered in practice were HEAL loans, dischargeable only if denying the discharge would be “unconscionable.” (42 U.S.C. sec. 292f(g)); and a scholarship to attend a U.S. Military Academy. Turns out […]
What Goes Into The Liquidation Analysis
The liquidation analysis is central to every form of consumer bankruptcy. Yet too many attorneys think the formula is Assets minus Secured Debts minus Exemptions = Distributable estate Not by a long shot. So let’s walk through the elements of a comprehensive liquidation analysis. You need it if you’re assessing the vulnerability of assets to […]
