Treatment of Student Loans in Chapter 13 Bankruptcy

August 2, 2019

The following article provides information regarding student loan treatment in chapter 13 bankruptcy proceedings and discusses some of the issues in ongoing case law and impact on chapter 13 plans in the 6th Circuit. To discuss these issues further, please contact Keller & Almassian, PLC, to set up a consultation or phone call.

Chapter 13 and Student Loans

In light of the difficulty of obtaining a discharge of student loan debt under the Brunner test, debtors frequently turn to Chapter 13 for longer term relief from student loan creditors. In a Chapter 13, the question becomes whether the debtor may treat his or her student loan debts differently than his or her other nonpriority unsecured creditors and not violate the provisions of 11 U.S.C. § 1322(b)(1). The analysis under 1322(b)(1) turns on whether the treatment of the student loan debt “discriminates unfairly.”

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Can Tax Debt Be Discharged In Bankruptcy

April 18, 2019

Tax Liability and Bankruptcy: What Tax Debts Can Be Discharged?

One frequent misunderstanding about bankruptcy is that tax debt is not dischargeable. It is true that many types of tax debts will survive bankruptcy. However, some tax debts can be discharged, but in order to do so, certain specific rules must be met. This article provides a brief summary of some general rules you can use to determine whether tax obligations might be discharged in a bankruptcy proceeding.

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Understanding Preference Actions in Bankruptcy - Preference Law Primer

January 31, 2019

You are contacted by your client who has received a letter from a bankruptcy Trustee.  The letter demands the return of payments received from the bankrupt party during a specified time period that likely occurred months, or years, previously.  With small exception, your client is likely frustrated and will deem the Trustee’s demand as patently unfair.  This is a common scene replayed countless times by clients involved with an alleged claim for preferential transfers under 11 USC § 547 of the Bankruptcy Code.  Your client is now being pursued for a preference.

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Chapter 13 Bankruptcy Rules – Proof of Claim Requirements

November 21, 2018

The Federal Rules of Bankruptcy Procedure set forth a relatively short timeline for creditors to file proofs of claim in chapter 13 bankruptcy cases.  These deadlines must be followed closely because they impact whether a creditor may be entitled to a distribution or payment through the chapter 13 plan.

A missed claim deadline can have a significant impact on a chapter 13 case from both the perspective of the creditor, and often times the Debtor.  It may be advisable in some cases to file a protective claim on behalf of a creditor who has missed a deadline in order to ensure that a claim may be paid through the chapter 13 process.  There are also deadlines for protective claims filed on behalf of a creditor that must be followed closely.

The following are a few important Rule sections regarding claims that should be considered in the chapter 13 process:

 

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LLC Membership and Property of the Bankruptcy Estate

February 8, 2018

It is not uncommon for individual debtors in bankruptcy to own membership interests in LLCs. If a member of a multi-member limited liability company files bankruptcy, what happens to the Debtor’s membership interest in the LLC? 

 

The debtor, bankruptcy Trustee, creditors, and the other members of the LLC are all impacted when an individual member files bankruptcy, because the membership units become property of the estate.

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Commercial Real Property Leases in Bankruptcy

January 23, 2018

With increasing frequency, we find landlords facing lease issues in bankruptcy as a result of mall closings, strip mall vacancies, and what appears to be a movement away from brick and mortar in some retail industries.   

Executory contracts are governed by section 365 of the Bankruptcy Code. Section 365(d)(3) requires that a debtor under a non-residential real property lease must continue to fully and timely perform its obligations from the petition date through the date on which the lease is assumed or rejected.

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Causes of Action that Arise Prior to Bankruptcy

November 30, 2017

“When” is a cause of action property of the bankruptcy estate? In answering this question, attorneys are required to determine when the cause of action matured. Thereafter, we must distinguish between pre-petition, post-petition, post-confirmation, and post-discharge causes of actions. Depending upon where the cause of action falls in relation to the bankruptcy filing, the debtor may or may not be entitled to keep all of the proceeds generated from the cause of action. This article will focus on the pre-petition nature of a cause of action.

 

The question is not “what is property of the bankruptcy estate” but is rather “when is property of the bankruptcy estate.”  This determination requires fact intensive analysis.  Whatever opinion the debtor or counsel may have – full and complete disclosure is required and full disclosure is the best means by which to preserve a cause of action for the debtor and the estate.  Failure to do so can result in the debtor being estopped from pursuing a cause of action and potentially lead to a malpractice action against debtor’s counsel.

 

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Should I STAY or should I go: The clash between the bankruptcy automatic stay and family law.

October 20, 2017

“Should I stay or should I go now?
Should I stay or should I go now?
If I go, there will be trouble
And if I stay it will be double
So come on and let me know”

- The Clash (1982)

When a bankruptcy proceeding and a divorce proceeding are pending simultaneously, it can feel like you have been transported back in time to 1982 and the Clash’s lyrics “Should I Stay or should I go?” are once again all too relevant.

For individual Debtors, the financial tipping point for deciding to file for bankruptcy is often related to a divorce.  When a party files for bankruptcy during a divorce proceeding, the family law attorney can really feel the full meaning of, “If I go there will be trouble, but if I Stay it will be double.”  This can be true whether you represent the Debtor or the non-bankruptcy filing party.  What actions are permissible in family court when one party has filed a bankruptcy petition?

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Supreme Court Decisions Regarding the FDCPA: Part 2 of 2

July 7, 2017

What is a Right without a Remedy?

The United States Supreme Court reversed the 11th Circuit Court of Appeals in another case concerning the Fair Debt Collection Practices Act (FDCPA) in Midland Funding, LLC v. Johnson, Case No. 16-0348. 

Timeline of events:

  • In March of 2014, an individual debtor filed for Chapter 13 Bankruptcy in the Southern District of Alabama.  A creditor, Midland Funding, filed a Proof of Claim in the debtor’s Chapter 13 case with a written statement that the debt in question ($1,879.71 of credit card debt) was more than 10 years old.  The debtor objected using the statute of limitations as an affirmative defense.  In Alabama the statute of limitations on collection of debt is six years.  Midland did not file a response.  As such, the bankruptcy court disallowed Midland’s Claim.
  • The debtor then sued Midland Funding in District Court for violating the FDCPA by attempting to collect on an expired debt.  The District Court dismissed the case, concluding the FDCPA did not apply.
  • The 11th Circuit Appellate Court reversed the District Court.  Midland Funding then proceeded to file a petition for certiorari, or a petition for review, asking the Supreme Court to weigh in on this question:

“Whether the conduct at issue here is ‘false,’ ‘deceptive,’ ‘misleading,’ ‘unconscionable,’ or ‘unfair’ within the meaning of the FDCPA.”

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