Archive for the 'Federal Rules of Bankruptcy Procedure' Category

Pandora’s Box Opens: Chapter 13 Plans May Be Final Even If Contrary to the Bankruptcy Code

Published
by
Beth Schenz
on March 24, 2010
in Bankruptcy Filings, Chapter 13 and Federal Rules of Bankruptcy Procedure
. 0 Comments

By Beth Ann Schenz, Esq. and Milan Kubat, Esq.

The Supreme Court admits that its decision from March 23, 2010, “is potential for bad-faith litigation tactics” by debtors. 

The Facts
A Chapter 13 debtor listed his student loan debt in his plan.  In the Chapter 13 plan, the debtor proposed to repay only the principal while the remainder (accrued interest) would be discharged.  The United States Department of Education (the “Government”) did not object to the plan or appeal the order confirming the plan.  During the bankruptcy case, the Government filed a proof of claim and received the principal on the debt.  When the Government proceeded to collect on the debt after the debtor received a discharge in the Chapter 13, the debtor filed a motion to enforce the discharge order and direct the Government to cease all collection efforts.  The Government responded to the debtor’s motion to enforce and filed a motion under Federal Rule 60(b)(4) to set aside the confirmation order as void. 

The Court’s Ruling
Whether the confirmation order is void was the focus of the Supreme Court’s ruling.  For a judgment to be void, there must be some jurisdictional issue (the court does not have the power to hear the matter) or a due process issues (the creditor did not receive sufficient notice to defend the matter).  The Supreme Court states that there was no jurisdictional error or due process violation so the confirmation order providing for a discharge on student loans is binding on the creditor. 

Normally, a Chapter 13 debtor receives a discharge for all his or her debts except in some situations.  One example where a Chapter 13 debtor would not receive a discharge is under 11 U.S.C. §523(a)(8) – the student loan exception.  Some student loans are excepted from discharge and such exception is self-executing.  The caveat is that the Court can find that such non-dischargeable student loans create an undue hardship for the debtor and can be discharged.  According to the Bankruptcy Rules, such action requesting a finding of undue hardship is brought by the debtor in an adversary proceeding upon summons and complaint. 

The Supreme Court found that the undue hardship provision in the Bankruptcy Code is not a limitation on the bankruptcy court’s jurisdiction but only a precondition to obtaining a discharge order.  Also, the Court stated that the Bankruptcy Rules that require a complaint to be brought to determine undue hardship are only procedural rules and not jurisdictional rules.  Therefore the confirmation order was well within the jurisdictional authority of the Bankruptcy Court and can not be determined as void. 

On the positive side, the Court found that, “[g]iven the Code’s clear and self-executing requirement for an undue hardship determination, the Bankruptcy Court’s failure to find undue hardship before confirming the plan was a legal error.”  Unfortunately for the Government, a legal error does not make an order void.

Going further, the Supreme Court stated that the Government’s due process rights were not violated as they had ample time to either object to the Chapter 13 plan or appeal the confirmation order.  A finding of due process by the Supreme Court means that the confirmation order can not be found as void.

Where the Supreme Court said that the lower court’s ruling went too far is when they considered that any plan can be confirmed if it provides for a discharge of a non-dischargeable debt.  “Failure to comply with the self-executing requirement should prevent confirmation of the plan even if the creditor fails to object, or to appear in the proceeding at all.”

What This Means To You
A debtor can put any provision in his or her plan, which may be contrary to the code (i.e. discharging a debt that is otherwise non-dischargeable).  This provision should prevent confirmation.  However, the creditor may be bound under the order if the Chapter 13 plan confirms.  If the creditor fails to object to the plan or appeal the confirmation order in a timely manner, the confirmation order whether contrary to the Bankruptcy Code or not will be binding on the creditor.

As a creditor, you will need to make a business decision whether to object or not. WWR can help guide you through the decision making process.

If you have any questions concerning this matter, please contact Ms. Beth Ann Schenz, Esq. or Mr. Milan Kubat, Esq.  Beth is an associate in the Bankruptcy department located in the Brooklyn Heights office. She can be reached directly at 216-739-5645 or via email at bschenz@weltman.com. Milan is also an associate in the Bankruptcy department located in the Brooklyn Heights office. He can be reached directly at 216-739-5647 or via email at mkubat@weltman.com.

U.S. Supreme Court Rules That Attorneys are “Debt Relief Agencies” Under BAPCPA

Published
by
Scott Fink
on March 9, 2010
in Bankruptcy Filings and Federal Rules of Bankruptcy Procedure
. 0 Comments

In a decision handed down by the United States Supreme Court yesterday in the case of Milavetz and Milavetz v. United States, it has now been held that attorneys who represent debtors and provide bankruptcy assistance are considered “debt relief agencies”, requiring them to include such a disclosure in any advertisements they make.  More importantly, as a “debt relief agency” these attorneys are prohibited from advising a debtor to incur more debt because the debtor will be filing a bankruptcy.  Such actions have, in the past, been termed as “loading up” on debt prior to bankruptcy.

The decision does not, however, preclude such attorneys from advising their clients to incur additional debt “for a valid purpose.”  So long as a valid purpose exists for incurring the additional debt (other than the mere fact that a bankruptcy is to be filed), it would appear that debtor’s counsel would not be held liable for the actions of their clients.  Conversely, an attorney could be held personally liable if he is found to have advised his client to load up on debt solely because a bankruptcy is being considered and no other valid reasoning existed.  

This decision is sure to be studied closely by debtor’s counsel, as they now must consider the consequences of their client consultations and the advice they offer.

If you have any questions, please contact Mr. Scott Fink, Esq. Scott is an Associate in the Bankruptcy department of the Brooklyn Heights office of Weltman, Weinberg & Reis Co., LPA. He can be reached at 216.739.5644 or via e-mail at sfink@weltman.com.

Federal Rules of Bankruptcy Procedure Amended December 1, 2009

Published
by
Holly Thurman
on February 10, 2010
in Appendix, Bankruptcy Automatic Stay, Briefs, Computing time, Federal Rules of Bankruptcy Procedure, Motion and Notice of Appeal
. 0 Comments

By: Holly C. Thurman, Associate

The Federal Rules of Bankruptcy Procedure were amended effective December 1, 2009.  Throughout the rules, the deadlines and time periods that have been amended are modified in the following manner:

∙ 5 day periods become 7 day periods
∙ 10 day periods become 14 day periods
∙ 15 day periods become 14 day periods
∙ 20 day periods become 21 day periods
∙ 25 day periods become 28 day periods

The following revised rules are the most frequently referred to timelines and deadlines in creditor bankruptcy practice:

1) Stay of Order Granting Relief from the Automatic Stay: An order granting a
motion for relief from an automatic stay is stayed until the expiration of 14 days after the entry of the order. Formally, relief from stay wasn’t effective for 10 days from the date of the order and the amendments have extended that time period to 14 days.

 2)   Time for Filing Notice of Appeal: The notice of appeal shall be filed with the clerk within 14 days of the date of entry of the judgment, order, or decree appealed from. Formally, the appellant had 10 days from the date of entry of the order to appeal.

 3)   Briefs and Appendix; Filing and Service: Unless the district court or the bankruptcy appellate panel by local rule or by order excuses the filing of briefs or specifies a different time limit, the appellant shall serve and file a brief within 14 days after entry of the appeal on the docket. Appellant formally had 15 days to file a brief from the date of the entry of the appeal on the docket.

 4)    Computing time: Per the amendments, when computing time periods, the moving party is to count everyday, including intermediate Saturdays, Sundays, and legal holidays. The former rules required we exclude those days when computing time periods and deadlines. 

 5)   Computing and Extending time for Motions—Affidavits: A motion and notice of hearing must be served no later than 7 days before the time specified for such hearing, unless a different period is fixed by these rules or by an order of the court. The rules formally required that the motion and notice of hearing be served 5 days prior to the specified hearing, unless the court specified otherwise. Most Courts specify a time to serve the notice that is earlier than 7 days prior to the hearing, and usually the Courts require the notice to be served immediately upon receipt.

These changes impact deadlines used in everyday practice. Creditors must be aware of the new timelines and guidelines and use them to effectively administrate orders and other notices issued by the Court.
  
Holly C. Thurman is an Associate in the Bankruptcy department of the Pittsburgh office. She can be reached at (412) 338-7105 or hthurman@weltman.com.