Statement of Intent Under New Code §521(a)(2) and (a)(6) or “Who Gets the Car?”
by Tom Yerbich, U.S. District Court, Anchorage, Alaska
Assume the following facts:
- At the time the chapter 7 petition was filed, the debtor owned an automobile secured by a PMSI with an outstanding balance of $5,000.
- The car had a “low book value“ of $10,000.
- Concurrently with filing the petition, the debtor filed a statement of intentions indicating an intent to redeem the car.
- The §341 meeting of creditors is initially set for 20 days after the petition is filed but is continued for 30 days.
- 30 days after the conclusion of the creditors’ meeting the debtor, changing his mind, files an amended statement of intentions and notifies the creditor he intends to reaffirm the debt on the terms and conditions of the original contract.
- The creditor declines to enter into a reaffirmation agreement.
- 40 days after the conclusion of the creditors’ meeting, the trustee files a motion under §521(a)(6), which motion comes on for hearing 10 days later.
What are the rights of the trustee, creditor and debtor at the time of the hearing? The arguments of the parties might go something along these lines.
Minutes from the 2005 Annual Spring Meeting
Documentation requirements for proofs of claim, particularly those based on credit card usage, were the principal focus of the meeting of the Consumer Bankruptcy Committee at the ABI Annual Spring Meeting. The panel, consisting of Alane Becket of Becket & Lee, David Lin of Robert J. Semrad & Associates and Prof. Elizabeth Gibson, of the University of North Carolina, analyzed a series of recent decisions discussing the required documentation for these kinds of claims and the consequences of failure to provide it. The panel also discussed recent developments in this litigation as well as practical ways of dealing with these issues through enhanced communication and cooperation between counsel for debtors and creditors.
The Consumer Committee also discussed certain aspects of the new bankruptcy legislation. Tom Yerbich highlighted those provisions of the new law that had already become effective as of the date of the meeting, including certain limitations on the debtor’s right to claim homestead exemptions. The committee then advised members of various resources that are available through ABI and elsewhere providing summaries and analyses of the new legislation, including a synopsis prepared by Tom Yerbich and a summary and analysis by Judge Eugene Wedoff. Members were informed of the on-line seminar sponsored by ABI on May 3 on the consumer provisions of the legislation in which the committee leaders participated along with Sam Gerdano, ABI Executive Director, and Prof. Jeffrey Morris, ABI’s Spring 2005 Resident Scholar. The committee plans to publish a special series of newsletter articles over the next six months on consumer aspects of the legislation. ABI’s Fundamentals of Chapter 7 and Chapter 13 of the U.S. Bankruptcy Code, written by Tom Yerbich, is scheduled for publication in early fall.
ABI Online Seminar on the New Law
On May 3, the chairs and vice-chairs of the Consumer Bankruptcy Committee, joined by Sam Gerdano, ABI Executive Director, and Prof. Jeffrey Morris, ABI’s Spring 2005 Resident Scholar, participated in an on-line seminar on the consumer aspects of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Panelists answered approximately 70 questions on a wide range of issues relating to provisions of the new legislation that will impact consumer bankruptcy practice. A complete transcript of the questions and answers is available on the ABI web site.
Special Editions of e-Newsletter
This regular edition of the newsletter contains the first in a series of articles on selected aspects of the new legislation that will affect consumer bankruptcy practice. The committee will publish special issues of the newsletter over the course of the next several months containing similar articles. Rather than create general overviews of the legislation, many of which are already available, the committee has decided to identify a limited number of specific topics and commission detailed in-depth discussions of particular Code provisions, the interpretive and practical issues they raise, and how they may be applied in practice. Committee leaders are in the process of finalizing a list of suggested topics and scenarios for articles, such as the one reflected in the article by Tom Yerbich in this edition, which will discuss, from different perspectives, specific issues which we believe will be prevalent in practice under the amendments and which we hope will be of benefit to practitioners. We plan to distribute the list of proposed topics for articles for these upcoming editions on the committee listserv and solicit volunteers to author articles on these issues. If you are interested in writing on some aspect of the consumer provisions of the new law, please contact Hon. Dennis R. Dow, editor of the Consumer Bankruptcy Committee’s electronic newsletter.