Posts Categorized: Uncategorized

Lunch with Judge Bailey on June 8

Please join the Consumer Bankruptcy Committee on Thursday, June 8 from 12:00-1:00 p.m. for our final lunch program of the year with the Honorable Frank J. Bailey. This will be an excellent opportunity to hear about Judge Bailey’s current concerns and to discuss hot topics of the day with your fellow bankruptcy practitioners.
 
This event will be held from 12:00 p.m. to 1:00 p.m. at the Library, 12th Floor, John W. McCormack Post Office and Court House, 5 Post Office Square, Boston, MA.

This is an open event. You do not need to be a member of the BBA to attend and free lunch will be provided to those who pre-register.  If you are a BBA member, please register by using the link below:

https://www.bostonbar.org/membership/events/event-details?ID=24198

 

Non-members can register by sending an email to [email protected].

 

We hope you can join us!

 

 

Event: Annual Chapter 13 Update

The Consumer Bankruptcy Committee will host its annual brown bag lunch with chapter 13 Trustee Carolyn A. Bankowski on April 24, 2017, from 12:00 p.m. to 1:15 p.m.  The event will be held at the Boston Bar Association, 16 Beacon Street, Boston, MA.

This is a great opportunity to meet the Trustee, hear the latest filing stats, learn about new and notable cases, get an update on the national plan, and discuss hot topics in chapter 13. The Trustee encourages practitioners to come and discuss current questions, concerns and issues, so feel free to bring questions!

To register for the program, please click here.

 

 

Consumer Bankruptcy Brown Bag Lunch with Judge Feeney

Please join the Consumer Bankruptcy Committee on Thursday, April 6 from 12:00-1:00 p.m. for an interactive discussion with the Honorable Joan N. Feeney.

This will be an excellent opportunity to hear about Judge Feeney’s current concerns and to discuss hot topics of the day with your fellow bankruptcy practitioners.

This event will be held from 12:00 p.m. to 1:00 p.m. at the Library, 12th Floor, John W. McCormack Post Office and Court House, 5 Post Office Square, Boston, MA. This is an open event. You do not need to be a member of the BBA to attend and free lunch will be provided to those who pre-register. Please register by sending an email to Leslie Su at [email protected] or, if you are a BBA member, by using clicking here.

Case Summary: Bankruptcy Court Rules Cure and Maintain Plans Can Require Mortgagees to Provide Monthly Statements

In a recent decision in the case  In re Sperry (15-14583), Judge Hoffman overruled a mortgage servicer’s objection to confirmation of a Chapter 13 plan due to a provision that required the servicer to provide monthly mortgage statements to the Debtors.  The Debtors had proposed a so-called “cure and maintain” plan, in which they would cure a pre-petition default over 60 months and maintain regular monthly payments to the lender.  At issue was a provision in the plan that required the mortgage servicer to “send the Debtors monthly mortgage statements consistent with its pre-petition practice.”

The mortgage servicer argued that regulations promulgated under the Truth and Lending Act and (“Regulation Z”) and the Real Estate Settlement Procedures Act (“Regulation X”) exempted it from sending monthly statements to Chapter 13 debtors, and therefore the mortgage servicer could not be required to do so.   The mortgage holder also argued that the requirement was an impermissible modification of its rights and was therefore prohibited under section 1322(b)(2) and, finally, that logistical limitations prevented it from producing accurate post-petition statements.

The Debtors in turn argued that the mortgage statement provision was permissible under section 1322(b)(11) which allows a plan  to “include any other appropriate provision not inconsistent with [the Bankruptcy Code].”  The Debtors also argued that the mortgage statement provision was consistent with the overall objectives of Regulations X and Z, which are to promote the informed use of consumer credit by requiring disclosures about its terms and cost and to promote the flow of greater and timely information between mortgage creditors and debtors, respectively.

The Court agreed with the Debtors, finding that Regulations X and Z merely exempted mortgagees from the providing periodic statements but did not in any way prohibit them from doing so.  The Court also rejected the mortgagee’s argument that the mortgage statement provision violated section 1322(b)(2), concluding that it imposed an obligation rather than modifying a right.  That burden of that obligation, the Court found, was outweighed by the harm to the Debtors if they were not provided the monthly statements.

The full opinion is available here.

This post was contributed by Marques C. Lipton of Parker & Associates. For information regarding contributing case summaries or other posts, contact the editors of The Disclosure Statement, Kathleen Ryan ([email protected]) and Timothy Carter (TCarter @goulstonstorrs.com).

 

Young Bar Meets the Bankruptcy Bench – February 16, 2017

The 10th annual Young Bar Meets the Bankruptcy Bench program is coming up on February 16, 2017.  The event will be held at the BBA from 4:30 to 6:30 PM with a networking reception to follow.  The program introduces new(er) bar members to the judges for the United States Bankruptcy Court for the District of Massachusetts and the Clerk of Court, James Lynch.  The first portion of the program will focus on practical problems involving the introduction of evidence and the intersection of bankruptcy proceedings and criminal law.  It will feature a mock hearing, in which the judges will be given an opportunity to rule on these issues and provide insight into their reasoning.   During the second portion, the judges and Mr. Lynch, will discuss recent developments in bankruptcy law and general advice for developing a bankruptcy practice in today’s market.

Please click the link below for more details and to register.  We look forward to seeing you there!

https://www.bostonbar.org/membership/events/event-details?ID=22524

 

Consumer Bankruptcy Case Law Update: What’s Developing in Massachusetts

Make sure you’re up-to-date on the current state of the law!  Join the Bankruptcy Section on Monday, November 14th at 12:00 PM at the BBA to discuss recent decisions in Massachusetts and the First Circuit dealing with perennially thorny consumer bankruptcy issues—homestead exemptions, non-dischargeable debt, violations of the automatic stay and more!

There have been many important cases decided in our district this year—cases dealing with the limits of the Massachusetts homestead exemption, the meaning of “actual fraud” under 11 U.S.C. § 523(a)(2)(A), and the ability of a trustee to “clawback” college tuition payments, to name just a few.  Come learn more and discuss how to avoid new (and old) pitfalls!

 Kate Nicholson, Nicholson Herrick LLC, and Benjamin Higgins, Law Clerk, United States Bankruptcy Court for the District of Massachusetts will be guest speakers.

Please click here to register for this event.

 

Nominations Needed: Pro Bono Recognition Awards

The United States Bankruptcy Court for the District of Massachusetts is pleased to call for nominations for its fourth annual Pro Bono Recognition Awards. These awards recognize the pro bono contributions by individual lawyers, law firms, government attorneys, corporate law departments, law students, law schools, legal service agencies and other institutions in the legal profession that have improved the availability of or delivered volunteer legal services in the District of Massachusetts. Five awards may be given: Western Division, Central Division, Eastern Division, the Cape, Islands/South Coast Division and the District of Massachusetts Award. Nomination guidelines and forms may be found on the court’s website at www.mab.uscourts.gov, or may be requested by email at [email protected]. The deadline to submit nominations is August 15, 2016.

The Court is also pleased to again acknowledge the commitment of individual attorneys to pro bono legal work. Attorneys who certify that they have met the specific criteria established by the Court’s Pro Bono Legal Services Advisory Committee will receive mention on the Court’s Honor Roll. Participation is entirely voluntary. Those attorneys who submit certifications by September 30, 2016 will receive a certificate of acknowledgement and appreciation for their commitment to pro bono legal work, will be listed on the Pro Bono Honor Roll on the Bankruptcy Court’s website, and will be invited to attend a recognition event at the John W. McCormack Post Office and Court House in Boston on October 6, 2016.

Bankruptcy Internship Position – Fall 2016

The Civil Division of the U.S. Attorney’s Office, District of Massachusetts, seeks one or two diligent and enthusiastic law students with excellent research and writing skills to serve as a bankruptcy intern for Fall 2016.  The intern will work in Boston.  Prior bankruptcy experience or completion of a bankruptcy course is required.  The intern will be assigned to work with the bankruptcy Assistant United States Attorney within the Civil Division, which represents the United States, its agencies, and its employees in all types of bankruptcy cases filed in Massachusetts.  The internship is an unpaid position.  Prior to beginning an internship, all interns must successfully complete a security process/background investigation.  Applicants must be U.S. citizens.  To apply, please send your resume, writing sample, transcript (unofficial accepted) and a cover letter describing your interest to [email protected].  Applications must be submitted by May 10, 2016.

Case Summaries — The February 2016 Bankruptcy Court Opinions

The following are summaries of the February 2016 opinions posted on the Massachusetts Bankruptcy Court’s website.

 

Kimmy R. Jackson v. ING Bank et al. (In re Kimmy R. Jackson), AP Case No. No. 13-01064-MSH (February 1, 2016)

In this adversary proceeding, the Debtor claimed that one of the defendants, a law firm, violated the discharge injunction of Bankruptcy Code § 524 and the Fair Debt Collection Practices Act (“FDCPA”) and engaged in deceit, misrepresentation, breach of contract and wrongful foreclosure, all in connection with its attempt to enforce default remedies including foreclosing a mortgage on the Debtor’s condominium. The court entered judgment in favor of the law firm on the Debtor’s claims alleging wrongful foreclosure, breach of contract, deceit and misrepresentation, based in part on the court’s determination that the Debtor’s claims were not ripe for adjudication. However, the court did enter judgment in the Debtor’s favor against the law firm for violation of the discharge injunction and § 1692e(2)(A) of the FDCPA, finding that Debtor was the object of collection activity arising from a debt, that the law firm was a debt collector as defined in the FDCPA, and the law firm engaged in acts or omissions prohibited under the FDCPA by misrepresenting the legal status of the mortgage debt.

 

In re Savvas V. Gianasmidis, Ch. 11 No. 15-12119-JNF (February 11, 2016)

The Debtor filed a motion and judgment creditors filed an opposition, including a request for sanctions, against the Debtor and his attorneys for filing the motion.  The court denied the Debtor’s motion and denied the request for sanctions in the creditors’ opposition.  The creditors then filed a separate motion for sanctions.  Rule 9011 requires that a party seeking sanctions provide the opposing party with notice and a 21-day period to correct or withdraw the offending pleading.  The Court denied the motion for sanctions because (i) the creditors had not provided the 21-day safe harbor period, (ii) the offending motion was already denied, and (iii) the creditors’ initial request for sanctions was procedurally improper in that it was not made by separate motion as required by Rule 9011.

 

In re Kevin M. Rielly, Case No. 15-15003-JNF (February 11, 2016)

The Debtor sought a determination that a creditor willfully violated the automatic stay when it attached and levied on the Debtor’s checking and brokerage accounts pursuant to a state court trustee process order and refused to release the attachments on those accounts despite notice of the commencement of the bankruptcy case.  The Bankruptcy Court found that the creditor’s actions to secure and serve the trustee process order had occurred prior to the petition date, and therefore, did not constitute a violation of the automatic stay.  To the extent the Debtor complained that his account became inaccessible after the petition date, the Bankruptcy Court found that the Debtor failed to show that the creditor had exercised any control or influence over the postpetition actions of the third party financial institutions where the funds were located.  Finally, the Bankruptcy Court found that the creditor had not violated the automatic stay through its failure to take action to effectuate a release of the attachments, considering the unique circumstances of the chapter 7 case.  The creditor had refused to take action toward releasing the attachments until the Debtor provided assurance that he would not dissipate the funds once they became accessible.  Noting that the accounts in question contained both exempt and non-exempt funds, the Court found that the creditor had engaged in a reasonable, prudent and good faith effort to preserve the rights of the parties, including the rights of the chapter 7 trustee.

 

Zutrau v. Zutrau (In re Zutrau), A.P. No. 11-1183-FJB (Feb. 24, 2016)

In this Adversary Proceeding, Judge Bailey was asked to determine whether the Debtor’s debt to the plaintiff, his sister, was excepted from discharge under 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(6).  The plaintiff had made a series of loans to the Debtor.  The court held that $193,000 of the unpaid debt was not dischargeable because it was “obtained by . . . a false representation,” and $80,000 was not dischargeable because it was related to “willful and malicious injury by the debtor to another entity.

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Contributions by:

Benjamin Higgins, Law Clerk to the Hon. Frank J. Bailey (Contributions are on personal behalf and should not be construed as statements by the U.S. Bankruptcy Court)

John Joy, Latham & Watkins LLP

Devon MacWilliam, Partridge Snow & Hahn

Michael K. O’Neil, Murphy & King