What New Bankruptcy Lawyers Need To Know: Beyond The Code

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...]

Untangling The Converted Bankruptcy Case

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice, Chapter 13, Counseling clients

Conversion to Chapter 7 from Chapter 13 usually comes amid some sort of train wreck. The debtor has defaulted on plan payments, decided to surrender the house, or even got a loan modification that allows him to keep the house. Often, there is pressure to convert the case before it is dismissed. In the bustle, don't forget to counsel the debtor on the differences between 13 and 7. Big … [Continue reading...]

Bankruptcy & Divorce: A Disruption In The Force

By Cathy Moran, Esq. Filed Under: Family Law in Bankruptcy

When bankruptcy law and family law intersect, the result can be liberating or disruptive, depending on the timing of a bankruptcy filing and the goals of the parties. An infinite number of combinations lead to infinite different outcomes. The variables start with whether bankruptcy occurs before or after status is altered; before or after the division of the property; the choice of … [Continue reading...]

Unfair Loan Modification Practices Rejected By 9th Circuit

By Cathy Moran, Esq. Filed Under: Bankruptcy Practice, Cases new & significant, Real property

Promising a loan modification and failing to deliver, after pocketing trial mod payments, isn't fair, said the 9th Circuit in Oskoui. And if it isn't fair, it can be actionable under California's Unfair Competition Law (B&P 17200). Not to mention constituting a breach of contract. Thus, there do seem to be some limits on the shenanigans a lender or mortgage servicer can engage … [Continue reading...]

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