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Bankruptcy Committee Brief Bank

DISCLAIMER: To facilitate research, these materials are provided free to members, “as is", by other members of the Division. These are research materials only, and you should not rely on the information contained in the materials, since rulings of the court and/or statutes may not be consistent with the position taken by counsel in the Briefs on file. You should review all primary sources cited to determine sufficiency and accuracy for yourself. We do not endorse any opinions that might be suggested by documents submitted and lodged in the Brief Bank, nor do we warrant the accuracy of the laws/cases cited by the writers therein.

Table of Topics

Table of Types

  • Background Material
  • Decisions (Reported & Unreported)
  • Forms
  • Pleadings (Including Memoranda & Briefs)

Summary of Contents Arranged by Topic

1.1 Automatic Stay - Extension of Stay

  • In Re Womack, USBC,W. Dst of Wash. #05-30565 (show-opinion-doc-2.pdf)
    • Type: Decision
    • Date: 4/5/06
    • Author: Judge Overstreet
    • Issues: Extension of Stay in a Bankruptcy case that follows another one ending within a year; The effect of the Stay on property of the estate
    • Statutes: 11 USC 362; 11 USC 362 (c) (3)
    • Comment: Even if terminated against the debtor, the stay continues for property of the estate.
    • Case Name: In Re Womack, USBC,W. Dst of Wash. #05-30565
    • Holding: A second debtor filing within a year of the prior case does not lift the automatic stay as to the bankruptcy estate
  • Memo In Support Of Extending Stay Or Declaring That Unnecessary (30-day-stay-memo.pdf)
    • Type: Pleading
    • Date: 4/26/06
    • Author: Stern
    • Issues: The Stay and a 2nd Bk case within a year; The Stay and sales of property in Ch11 Bk
    • Statutes: 11 USC 362; 11 USC 362(c)(3)
    • Comment: Argument that even in a 2nd bankruptcy case filed within a year, the stay continues against property of the estate.

2.1 Secured Lender - Surrender of Collateral

  • In Re Ezell, USB for the ED of Tenn #05-38219 (Unreported) (ezell-surrender-910-car-claim-opinion.pdf)
    • Type: Decision
    • Date: 3/13/06
    • Author: Judge Stair, Jr.
    • Issues: Does BAPCPA allow Ch13 surrender of a "910" auto" in full satisfaction?
    • Statutes: 11 USC 1324(a)(5)
    • Comment: Decision is that "anticramdown" swings both way & surrender in full satisfaction allowed. A brief was filed by the NACBA.
    • Case Name: In Re Ezell, USB for the ED of Tenn #05-38219
    • Holding: Bifurcation of claim not application to a surrendered “910” auto.

2.2 Secured Lender - Interest Rate

  • Memorandum Opposing Default Interest Rate (default-interest-brief.pdf)
    • Type: Pleading
    • Date: 2006
    • Author: Stern
    • Issues: Avoidance of default interest rate and late fees
    • Statutes: Mostly 9th Cir. law
    • Comment: Great discussion of cure in bankruptcy.

6 Debt Relief Agencies

  • Memorandum of Law Opposing Federal Defendants Motion To Dismiss (response-to-motion-to-dismiss.pdf)
    • Type: Pleading
    • Date: 3/6/06
    • Author: Spector - Attorney for Plaintiff
    • Issues: Jurisdiction and Standing; Attorney ability to advise assisted persons
    • Statutes: 11 USC 526 (a)(4); 11 USC 527
    • Comment: Great discussion of attorney-client relationship
    • Case Name: In Re Hersh, USBC N.D. Tex. 3-05CV2330N (Hersh v USA)
    • Holding: Cased decided on procedural grounds in favor of government
  • Motion For Determination that Attorneys Are Not Debt Relief Agencies (mccarthy-attorney-motion.pdf)
    • Type: Pleading
    • Date: 10/31/04
    • Author: James - Attorney for Debtor
    • Issues: Are attorneys debt relief agencies?
    • Statutes: 11 USC 526; 11 USC 527; 11 USC 528
    • Comment: Attempted to distinguish attorney from debt relief agencies.
    • Case Name: In Re McCartney, USBC M.D. GA. #05-58001
    • Holding: Motion denied

7.1 Eligibility to File - Credit Counseling

  • In Re Sosa, USBC W.D. Texas #05-20097-FM (in-re-sosa.pdf)
    • Type: Decision
    • Date: 12/22/05
    • Author: Judge Monroe
    • Issues: Pre-filing counseling & failure to obtain pre-filing counseling; Pre-filing counseling & failure to request a waiver
    • Statutes: 11 USC 109 (h)(3)(A); 11 USC 109 (h)(3)(B)
    • Comment: See the quote, "... to call the Act a 'consumer protection' Act is the grossest of misnomers."
  • In Re Dixon 8th Cir. BAP #05-6059EM (eligibility-to-file.pdf)
    • Type: Decision
    • Date: 2/17/06
    • Author: Judge Kressel
    • Issues: Sufficiency of circumstances to waive pre-filing counseling; Failure to get pre-filing counseling & dismissal of case
    • Statutes: 11 USC 109(h)(1); 11 USC 109 (h)(2)
    • Comment: This case appears to have foreshadowed a trend.
  • Motion to Waive Pre-filing Counseling (cc-brief.pdf)
    • Type:Pleading
    • Date: 3/3/06
    • Author: Stern - Attorney for debtor
    • Issues: No approved pre-filing counseling available for Chinese speaking debtor; Waiver of the counseling requirement
    • Statutes: 11 USC 727(a)(11); 11 USC 109(h)
    • Comment: Great discussion of the constitutional right of access to court
    • Case Name: In Re Chin, USBC W.D. Wash #05-30668
    • Holding: Pre-filing Counseling Required

9 Exemptions

  • Open Letter to Congress about Homestead Exemptions (homestead-letter.pdf)
    • Type: Background Material
    • Date: 4/23/02
    • Author: Law School Professors
    • Issues: The strange outcomes that BAPCPA would create; Homestead caps
    • Statutes: 11 USC
    • Comment: This letter shows that congress was fully aware of the implications of the homestead provisions of BAPCAP and therefore it logical result, though not pretty, must have been its intent.

10.2 Forms - Real Estate Forms

  • Seller’s Escrow Instructions For Sale from Bankruptcy (escrowins.pdf)
    • Type: Forms
    • Date: 2006
    • Author: Stern
    • Issues: Sample instructions
    • Statutes: 11 USC 363
    • Comment: Good sample instructions regarding disbursements from real estate sale transaction during bankruptcy

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