Now You Have It, Now You Don’t: TILA Rescission Claims Brought by Chapter 13 Debtors
By Dennis R. Dow

An increasing number of debtors in bankruptcy are raising Truth in Lending Act (“TILA”) rescission issues in an attempt to avoid the security interest of their mortgage lenders. Recently, the Federal District Court for the District of Kansas weighed in on this issue. It held that a bankruptcy court may condition a borrower’s TILA rescission right on the return of the property the debtor received from the loan transaction. Quenzer v. Advanta Mortgage Corporation USA (In re Quenzer), 288 B.R. 884 (D. Kan. 2003). Currently, there is a split of authority among the bankruptcy courts as to whether the court has the authority, either statutory or equitable, to condition rescission in this manner.
To read full story, click here

Limited Representation in the Bankruptcy Court: A Creditor’s Counsel Perspective
By Lance E. Olsen

Absent special circumstances, an attorney representing a chapter 7 debtor may not limit the scope of representation. Once an attorney signs on to represent a debtor, he or she must represent the debtor in all aspects of the bankruptcy case, including any contested matters or adversary proceedings that involve the debtor’s interests and this obligation continues until the court grants a request for withdrawal or the debtor consents to the withdrawal…..at least in Georgia. See, In the Matter of Egwim, 291 B.R. 559 (Bankr. N.D. Ga. 2003); See also, In re Johnson, (Bankr. D. Minn. 02-60812 2003) and In re Castorena, 270 B.R. 504 ( Bankr. D. Idaho 2001).
To read full story, click here

Consumer Resources Available From ABI

ABI continues to produce high-quality resources with information of value to consumer bankruptcy practitioners. The Nuts and Bolts program conducted by ABI immediately before the Annual Spring Meeting featured presentations on the fundamentals of consumer bankruptcy law. The manual for the program, authored by Tom Yerbich, a Vice Chair of the Consumer Bankruptcy Committee, and entitled Consumer Bankruptcy – Fundamentals of Chapter 7 and Chapter 13 of the U.S. Bankruptcy Code, will soon be published by ABI. The manual, which is expected to be out at the end of July, will be available for purchase online.
To read full story, click here

Total Bankruptcy Filings Break Records

More Americans filed for bankruptcy during the first quarter of 2003 than in any other previous quarter in history, according to data released on May 15 by the Administrative Office of the U.S. Courts. The 412,968 new cases filed during the first three months of 2003 are up 9.0 percent from the same period in 2002. Overall, bankruptcy filings rose 7.1 percent in the 12-month period ending March 31, 2003. Bankruptcy filings rose from 1,504,806 in the 12-month period ending March 2002 to 1,611,268 in the same 12-month time period in 2003.

Non-business filings continued to break historic records, totaling 1,573,720, up 7.4 percent from the total non-business filings of 1,464,961 in the 12-month period ending March 31, 2002. The latest bankruptcy filings statistics are available at ABI World.

Remedies For Abusive Serial Filings Focus Of Consumer
Bankruptcy Committee Meeting At Annual Spring Meeting

The Consumer Bankruptcy Committee’s Annual Spring Meeting program focused on efforts to formulate effective remedies for the problem of abusive serial filers. The program, which prompted a lively discussion, was presented by Hon. Audrey Evans of the U.S. Bankruptcy Court for the Eastern and Western Districts of Arkansas and Pat Mears of Dickinson, Wright in Grand Rapids, Mich. They reviewed and analyzed the ways in which courts and creditors have sought to deal with the problem of debtors filing successive petitions for relief to invoke the automatic stay and forestall creditor efforts to foreclose on collateral. Starting with the statutory framework relating to serial filings, the materials outline the history of the judicial response to the issue, including the concept of good faith in filing, conventional procedural remedies like annulment of the automatic stay and more creative recent responses, including the entry of in rem orders granting prospective relief from the automatic stay binding upon any owner of the subject property. Also discussed are ethical issues for consideration by debtor’s counsel.