October 2, 2009
Avoiding Liens in Chapter 7?
I believe I have posted this before but this is such great research you might find useful some day. Its from Dan Press at dpress@CHUNG-PRESS.COM.
As I have pointed out a few times in recent months, you cannot strip off a lien in a 7 in the the 4th Cir or the 6th Cir. But the most recent published decision from the EDNY (Howard v. Nat. West, 184 BR 644 (Bk. EDNY 1995)) says you can, and the MDFL (in a recent unreported order, In re Montero, No. 6:08-bk-10797-KSJ (M.D. Fla. 5/27/09, Docket Entry 37) has allowed it. One of the leading cases to allow such strip-offs was Yi v. Citibank, 219 BR 394 (ED Va. 1998). Unfortunately, in 2001, the 4th Cir. first agreed with Yi in an unpublished case, and then issued a published case later that same year, Ryan v. Homecomings, 253 F.3d 778 (4th Cir 2001), overruling Yi. The 6th Cir. has agreed with Ryan, in Talbert v. City Mortgage, 344 F.3d 355 (6th Cir. 2003). The Third Circuit seems to have expressly left the issue open in McDonald v. Master Fin., 205 F.3d 605 (3rd Cir. 2000). So it seems to me that this ought to be considered still a live issue everywhere but the 4th and 6th circuits. The 9th Cir. BAP has said you can't, In re Laskin, 222 B.R. 872 (9th Cir. BAP 1998), but that's not the Court of Appeals and is not binding precedent.
Just keep in mind that Dewsnup expressly says it is limited to its facts, and its facts were a partially secured 2nd. As we know from Ch 13 practice, that makes a huge difference. So it is easily distinguishable.
Thanks to Larry Szabo in Oakland.
Irving Sulmeyer 1927-2009Announcement from SulmeyerKupetz
It is with profound sadness that we announce the passing of our founder and friend
Irving passed away peacefully on September 26, 2009.
His loving memory is a comfort to his beloved wife Rachel and his five children
Lisa, Stephen, Karen, John, and Michael
Irving graduated Order of the Coif from Stanford Law School in 1951. He will be remembered in the Bankruptcy community as one of the first attorneys to establish an insolvency boutique in 1952, and remained at its helm for more than 50 years. His keen intellect and negotiating skills are legendary. A true gentlemen, Irving guided SulmeyerKupetz with foresight, purpose and fairness.
Irving was a Fellow of the American College of Bankruptcy, Listed in The Best Lawyers in America, author of several Collier handbooks and contributing editor to the Collier Bankruptcy guide
Irving will be fondly remembered and sorely missed by all who knew him.
The family encourages contributions in his memory to: City of Hope or Return to Freedom - a wild horse sanctuary (see returntofreedom.com)
October 1, 2009
Congratulations to Two New Bankruptcy JudgesCatherine Bauer and Deborah Saltzman, both of whom will sit in Riverside, probably the first of next year. The announcement can be accessed here.
September 29, 2009
Nice Listing of Programs for the Next Few YearsHere is a listing of the currently scheduled ABI, NACTT (Nat Assn of Chapter 13 Trustees), NACBA, NABT (Nat Assn of Bankruptcy Trustees), NCBJ (Nat Conf of Bankruptcy Judges), Norton Institutes and a few other organizations through 2013.
NACBA Brief on Supreme Court Exemption CaseThe National Assn of Consumer Bankruptcy Attorneys has filed a very nice amicus brief in the Schwab v. Reilly case pending before the Supreme Court. You can acccess it here.
September 28, 2009
Supreme Court Sets Oral Argument on Remaining Two Bankruptcy Cases this Term
Milavetz Gallop v. U.S, This is the case that deals with the Debt Relief Agency rules. Are attorneys debt relief agencies? And do the new code sections infringe on the right to free speech?
U.S. Student Aid Funds v. Espinosa. This is the case that will resolve whether or not the chapter 13 plan can discharge a student loan without an adversary proceeding. Kozinski wrote that service of the plan was adequate notice to the student loan lender and the lender therefore had a duty to object and was bound by the order confirming the plan when they did not object.
Its nice that the cases are set for the same day. Reminder, the Supremes have also accepted Schwab v. Reilly dealing with how to claim an exemption. That case is set for oral argument on November 3.
Thanks to Scotus.com.
Annual Meeting of the National Conference of Bankruptcy Judges October 18 - 21
You can access the brochure here. Justice John Paul Stevens will be one of the speakers.