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Bankruptcy News by Topic & State

Click on the links below, to access information on the following topics:

Automatic Stay Relief | Credit Counseling Requirement | In Rem Relief | Means Testing | MISC (includes certain local orders)

AUTOMATIC STAY RELIEF

FL: In re Striblin, 349 B.R. 301 (Bankr. M.D. Fla. 2006), re new exception to automatic stay [§ 362(b)(24)] and its applicability only to post-petition transfers initiated by the debtor. In re Covert, 355 B.R. 327 (Bankr. N.D. Fla. 2006), re denial of motion to extend automatic stay where local rules require notice within 5 days of filing petition, and notice was actually given on the 30th day.

MA: In re Jumpp, BAP No. MW 06-031 (12/28/06), vacates BK Court's order denying the Debtor's Motion for Determination and Motion to Reimpose the Automatic Stay. In re Jumpp and In re Okyere, Memorandum of Decision re whether termination of stay under § 362(c)(3) applies to the property of the estate as well as to the debtor (Bankr. D. Mass. June 23, 2006).

NY: In re Murphy, 346 B.R. 79 (Bankr. S. D. N. Y. 2006) -- Creditor applied, ex parte, for a "comfort order" confirming that the automatic stay terminated 30 days after the petition was filed. Court was limited to issuing bare comfort order and could not award attorneys' fees to creditor.

NC: In re Brandon, 349 B.R. 130 (Bankr. M.D.N.C. 2006) -- Automatic Termination of Stay in case of repeat filer terminated stay as to property of the debtor but not as to property of the estate.

TN: In re Wilson, 336 B.R. 338 (Bankr. E.D. Tenn. 2005), re denial of motion to extend automatic stay where debtors failed to give at least 20 days' notice as required by local rules.

WA: In re Coan, Case No. 05-11441-PCW13 (Bankr. E.D. Wash. Jan. 13, 2006) -- Memorandum Decision re Debtor's Motion for Order Extending the Automatic Stay.

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CREDIT COUNSELING REQUIREMENT

8th Circuit: In re Hedquist, 342 B.R. 295 (Bankr. 8th Cir. BAP 2006)

CO: In re Tulper, 345 B.R. 322, 2006 WL 1651710 (Bankr. D. Col. 5/22/06).

FL: In re Petit-Louis, 338 B.R. 132, 2006 WL 1793642 (Bankr. S.D. Fla. 3/1/06). Order on debtor's petition of exigent circumstances that merits waiver of buget and credit counseling.

In re Davenport, 335 B.R. 218 (Bankr.M.D.Fla., 2005)

GA: In re Ross, 338 B.R. 134 (Bankr. N.D. Ga. 2006)

ID: In re Rodriguez, 336 B.R. 462 (Bankr. D. Idaho 2005)

LA & MS: On 10/4/05, the Executive Office of the U.S. Trustee issued a temporary waiver of the credit counseling requirement for "bankruptcy filers" in Louisiana and the Southern District of Mississippi as a result of Hurricane Katrina. This waiver has been extended once already. Latest update as of 9/17/07: R. Michael Bolen, U.S. Trustee for Region 5, has determined that the requirements for credit counseling and debtor education courses, which had been waived for the So. District of MS, will apply to bankruptcy cases filed on or after 3/10/08. The same requirements will likewise apply to cases filed in the Middle and Western Districts of Louisiana. In the Eastern District of Louisiana, the waiver will continue through 9/30/08 unless subsequently modified.

MD: In re Childs, 335 B.R. 623 (Bankr. D. Md. 2005)

MA: In re Gould, 348 B.R. 78 (Bankr. D. Mass. 2006) - Moving for relief from stay under § 362(d)(4) where debt was incurred as part of "scheme to delay, hinder and defraud."

MO: In re Talib, 335 B.R. 417 (Bankr. W.D. Mo. 2005); In re Gee, 332 B.R. 602 (Bankr. W.D. Mo. 2005)

OH: In re Cleaver, 333 B.R. 430 (Bankr. S.D. Ohio 2005)

PA: In re DiPinto, 336 B.R. 693 (Bankr. E.D. Pa. 2006)

TX: Hersch v. USA, et al. [N.D. Tex., Civil Action No. 3:05-CV-2330-N (July 26, 2006)]. Memorandum opionion and order granting defendants' motion to dismiss. However, among other things, the court held that BK Code § 526(a)(4)'s restrictions on legal advice violated the debtor's First Amendment rights. Also see In re Sosa, 336 B.R. 113 (Bankr. W.D. Tex. 2005)

VT: In re Hess, 347 B.R. 489 (Bankr. D. Vt. 2006) where court distinguished between temporary "exemption" and permanent "waiver" in NOT dismissing case. In re Stockwell, 2006 WL 1149182 (Bankr. D. Vt. 4/27/06).

VA: In re Star, 341 B.R. 830 (Bankr. E.D. Va. 4/24/06); In re Watson, 332 B.R. 740 (Bankr. E.D. Va. 2005)

List of Approved Credit Counseling Agencies pursuant to 11 U.S.C. § 111.O

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IN REM RELIEF

CA: In re Johnson , 346 B.R. 190, 9th Cir. BAP (Cal. 7/7/06).

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MEANS TESTING

U.S. Supreme Court decision: Ransom v. Fia Card Services, N.A., fka MBNA America Bank, N.A., 562 U.S. __ (2011).

On October 20, 2008, President Bush signed into law S. 3197, the "National Guard and Reservists Debt Relief Act of 2008," which temporarily exempts members of the Armed Forces reserves and the National Guard from a means test in determining eligibility for Chapter 7 bankruptcy relief, if, after September 11, 2001, they were on active duty or performing a homeland defense activity for at least 90 days.

NJ: In re Fox, Opinion that the debtor, "having converted her case from one under chapter 13 to one under chapter 7, is not subject to the means test under the plain language of § 707 (b)(1) and is, thus, not required to file a Form B22A under Rule 1007 (b)(4)." (Bankr. D.N.J. June 1, 2007).

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MISC. (coverage includes local orders, payment applications, etc.)

U.S. Government Accountability Office: Report to Congressional Requests entitled Bankruptcy - Judiciary Should Take Further Steps to Make Bankruptcy Data More Accessible.

U.S. Supreme Court: Marrama v. Citizens Bank of Massachusetts, No. 05-996 (US. 2/21/2007)(2007). 5-4 decision, ruling that a "bad faith" Ch. 7 debtor does not have an absolute right to convert case to Ch. 13.

CT: Zelotes v. Martini (Acting U.S.Trustee, Region 2), 352 B.R. 17 - Plaintiff brought action challenging the constitutionality of a provision of the BAPCPA: 11 U.S.C. § 526(a)(4). Defendant's Motion to Dismiss denied (Nov. 7, 2006). Also see Zelotes v. Adams, 2007 U.S. Dist. LEXIS 13236, 2007 WL 638331 in which the court granted summary judgment against the U.S. Trustee, holding that § 526(a)(4) is unconstitutional as applied to bankruptcy attorneys.

CT: CT Bar Association, et al. v. USA, Alberto M. Gonzalez (U.S. Atty. General) and Diana G. Adams (U.S. Trustee) - Complaint filed in CT District Court (May 11, 2006) asserting constitutional challenges to BAPCPA, specifically BK Code §§ 526, 527, 528, and seeking declatory and injunctive relief. Also see CLLA's Amicus Curiae Brief in support of plaintiff's motion for preliminary injunctive relief (June 9, 2006). Ruling on Plaintiff's Motion for Preliminary Injunction and Defendant's Motion to Dismiss (Sept. 9, 2008).

FL: In re Sanchez; Donald F. Walton, U.S. Trustee v. Countrywide Home Loans, Inc. -- Memorandum Opinion and Order Granting Countrywide's Motion to Dismiss (Bankr. S.D.Fla. Oct. 2, 2008) Decision re homestead exemption cap under BAPCPA: In re Kaplan (S. District of Florida, Oct. 6, 2005).

KS: Bankruptcy Court's Standing Order 08-1 re conduit mortgage payments in Ch. 13 (issued July 22, 2008). Bankruptcy Court's Standing Order 07-3 re monthly statements to debtors (issued Nov. 2, 2007). Note: Standing Order 07-2, issued Sept. 10, 2007, was repealed.

LA: Bankruptcy Court (Eastern District) Administrative Order 2008-2 (Section A) issued on May 8, 2008, by Hon. Elizabeth W. Magner regarding "procedures required of all creditors that maintain an escrow for debtors with cases pending before the [subject court]."

MA: In re Nosek, Ameriquest Mortgage Company, Appellant, v. Nosek, Nominal Appellee (1st Cir. June 14, 2010) -- Decision on an appeal from a $250,000 sanction issued sua sponte by a bankruptcy judge. First Circuit modified the sanction award to $5,000 and otherwise affirmed.

In re Leung, 2006 WL 3519328 (Bankr. D. Mass. 2006) Wife's transfer of residence to debtor triggers BAPCPA cap on homestead exemption.

MN: Milavetz, Gallop & Milavetz P.A. v. U.S., Docket No. 05-CV-2626 (12/7/06), rules that §§ 526(a)(4) and 528(a)(4), (b)(2) are unconstitutional. Also addresses §§ 526, 527 and 528 re required use of the phrase "Debt Relief Agency" and concludes that it does not apply to attorneys.

MS: Revised Standing Order Delineating Certain Post-Confirmation Practices in Ch. 13 Bankruptcy Cases (Bankr. N.D. Miss. 11/6/08) -- replaces Standing Order entered by the court on July 15, 2008. Proposed Uniform Local Rules for the Bankruptcy Courts, Northern and Southern Districts (9/24/08)

NV: Decision re homestead exemption cap under BAPCPA: In re Virissimo (Nevada, Oct. 31, 2005).

NJ: In re Rivera, Order re Rule 9011 Penalties and Permanently Enjoining Certain Practices (Bankr. D.N.J. May 25, 2006). Also see In re Rivera, Opinion, 342 B.R. 435, 2006 WL 1516014 (Bankr. D.N.J. May 25, 2006).

NY: General Order #M-364 (Bankr. S.D.N.Y.) in re Adoption of Loss Mitigation Program Procedures (Dec. 18, 2008).

VT: Article summarizing BK court's standing order re monthly statements to debtors (Order dated Oct. 10, 2006).

BK Reform Bill Overview - Comprehensive BK Reform overview that continues to be updated and expanded. Includes live links to other resources for further information. (Latest update: 5/08)

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