What New Bankruptcy Lawyers Need To Know: Beyond The Code

Battle On When Bank Back Tracks On Home Loan Balance

By Cathy Moran, Esq. Filed Under: Rule 3002.1

It's war, after all. Remember the office pool I created following the lender's statement under FRBP 3002.1 that the loan was fully current? We were betting on how long after the Chapter 13 discharge it would take Wells Fargo would screw up the debtor's home loan account. Did anyone out there pick less than 30 days? If so, you win. And we hope Wells Fargo loses, big … [Continue reading...]

Up Against The Wall(design)

By Wayne Silver Filed Under: Bankruptcy Practice, Cases new & significant

Bankruptcy's avoiding powers often turn otherwise unexceptional transfers on their heads. But who expected that an unsuspecting business would have to disgorge nine years of honestly earned payments because the customer paid with a check on his LLC? Welcome to the 9th Circuit's decision in Walldesign. Paid with someone else's money For nearly a decade, Ms. Henry provided design … [Continue reading...]

Jump Start Your Bankruptcy Research

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

The next best thing to being a fly on the wall in the judge's chambers is having a copy of her cheat-sheet. Or maybe it's better described as the overview and the starting point for the next bankruptcy decision. So, don't forget about Judge Newsom (Retired) & Judge Novack's bankruptcy research binder available on line. It runs for 400 pages from Abandonment to Vexatious … [Continue reading...]

Brace Yourself

By Cathy Moran, Esq. Filed Under: Cases new & significant

The 9th BAP's Brace decision blew over everything we thought we knew about community property, joint tenancy titles, and the characterization of marital property. The storm warning is up. Until the 9th Circuit rules on the pending appeal, bankruptcy lawyers in community property states in the 9th need to reevaluate their advice to to clients about asset protection and single spouse … [Continue reading...]

All Dressed Up & Nowhere To Go

By Cathy Moran, Esq. Filed Under: Rule 3002.1

It's the pits to be stood up by a Rule. Rule 3002.1 is, in my opinion, the best thing that's happened in bankruptcy in years. I'm a goggle-eyed fan. Whether you chalk mortgage servicing problems up to ineptitude or venality, it is indisputable that a mortgage servicer can't audit a loan file and come up with the same number twice. Mortgage problems are the very reason that many Bay … [Continue reading...]

Beyond Racism And Self Interest: Why Blacks File And Fail At Chapter 13

By Cathy Moran, Esq. Filed Under: Opinionated

ProPublica's study of the percentage of black debtors who file bankruptcy and fail at Chapter 13 misses the forest for the trees. The report contends that bankruptcy lawyers steer blacks to an inappropriate chapter for the benefit of the lawyers. In Memphis, an entrenched legal culture has made bankruptcy a boon for attorneys while miring clients... in a cycle of futility. The … [Continue reading...]

They’re Changing the Rules On Us

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

Come December, the Bankruptcy Rules will change again. So, I've got a shout out to Chapter 13 Trustee Beverly Burden who created a great table of the changes. Her chart includes the What, When, Where, and How, but also her comments on the effect of the change. I can add nothing to her great work, so, with her permission, here are the FRBP rule changes analyzed by Bev Burden … [Continue reading...]

The Smart Way To Cut The IRS Out

By Cathy Moran, Esq. Filed Under: Tax

Like so much in life, it's all about timing I revisited an older post here about delaying the filing of a bankruptcy til the New Year when the debtor expects to owe taxes in April. A Chapter 13 filed in January can include and pay the taxes associated with the tax year ending in December. As the taxing folk see it, the tax is owed just as soon as the tax year ends, regardless of … [Continue reading...]

Mortgage Servicing Under the Microscope

By Cathy Moran, Esq. Filed Under: Real property, Rule 3002.1

The judge looked closely at the creditor's accounting records and found the usual fright. Having looked, the court held secured creditor USDA in contempt of the automatic stay and the confirmation order for its loan servicing blunders. Two years after the debtor's discharge, after an evidentiary hearing and a written opinion, the debtor still didn't have a full accounting of the … [Continue reading...]

Homeowners Face Down The Mortgage Servicer Over Their Request For Information

By Cathy Moran, Esq. Filed Under: Real property

The homeowners beat the bank in the first round of RESPA/FDCPA litigation, upholding the private right of action under Reg. X. The case is Rios v. Rushmore, from the Southern District of Florida. The homeowners alleged that Rushmore Loan Management Services failed to adequately respond to their Notice of Error pursuant to 12 U.S.C. 2605(k)(1)(C).. They sought explanations for … [Continue reading...]

Chronicles of Bankruptcy Rule 3002.1

By Cathy Moran, Esq. Filed Under: Rule 3002.1

A homeowner should emerge from Chapter 13 knowing exactly what she owes on her mortgage; thus we have FRBP 3002.1 said Judge Hannah Blumenstiel. At the end of my client's Chapter 13, the lender's response to the trustee's notice of final cure payment failed to do that. The failure to adequately support its contentions in its pleading cost the bank. Not as big a hit as I wanted. … [Continue reading...]

Cautionary Tale re Bankruptcy, Attorneys and Notice

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice

How often has your bankruptcy client presented you with a copy of a complaint or an abstract of judgment for inclusion in their list of creditors? On the face of the pleading, you have the name and mailing address of the creditor's lawyer. But is that good enough for a bankruptcy discharge? A recent case from the 9th Circuit has caused me to reconsider. Notice to former lawyer … [Continue reading...]

Who Wants To Get Paid?

By Cathy Moran, Esq. Filed Under: Attorneys fees

Anyone interested in attorneys fees? Are you filing adversaries and motions to collect money from creditors and other miscreants? Then it's worth looking at two snippets about attorneys fees that have floated across my radar screen. FRCP 54 One of the participants at the Litigating on a Shoe String roundtable at the NACBA convention pointed out the deadline in Rule 54 to request … [Continue reading...]

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