Consumer Bankruptcy Committee
ABI Committee News
Volume 4, Number 3 / May 2006
In This Issue:
Discharge Calculations under the New Code for Those Refiling
by: Robert C. Meyer
Robert C. Meyer, P.A.; Miami
Recent events have made me wonder, what exactly can I do for a previously filed client (previous filer) who walks into the door and wants to file a new bankruptcy case? Now, under the new law, I must initially ask: When did you previously file, when was your discharge, or did you pay 100 Percent in your prior case? The importance of these questions has grown, as the new law constrains the right to obtain a discharge for the previous filer. And because the majority of my clients really only want one thing from my offices (the discharge), I must correctly analyze my capability of providing the previous filer with the product they seek to obtain.
No Bifurcation Means: No Bifurcation…Or Does It?
by: Richard L. Stevenson
The Law Office of Richard L. Stevenson; San Diego
Courts have recently been wrestling with, and finding creative ways of interpreting, the un-numbered “hanging paragraph” at the end of 11 U.S.C. §1325(a) in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). This is the provision that makes 11 U.S.C. §506 inapplicable to a claim in which the creditor has a purchase-money security interest on the subject debt incurred within the 910-day period prior to the filing of the bankruptcy petition (popularly referred to as a 910 claim). One such case out of Tennessee is In re Ezell, __ B.R. ___, 2006 WL 598142 (Bankr. E.D. Tenn.) (R. Stair, Jr.). The Ezell court held that a creditor with a 910 claim must accept a chapter 13 debtor’s surrender of the motor vehicle collateral under §1325(a)(5)(C) as full satisfaction of the secured claim and is foreclosed from asserting any deficiency.
Minutes from Annual Spring Meeting
The program for the meeting of the Consumer Committee consisted of a panel discussion and review of decisions rendered by the courts to date interpreting certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Entitled "BAPCPA Decisions: Temporary or Timeless? – A Case Update with Emphasis on Emerging Themes and Statutory Interpretation," the presentation was made by Hon. Bruce Markell, U.S Bankruptcy Judge for the District of Nevada and Senior Fellow in Bankruptcy and Commercial Law at the William S. Boyd School of Law, University of Nevada Las Vegas; David L. Rosendorf, shareholder at Kozyak, Tropin & Throckmorton in Miami and editor of the ABI’s BAPCPA Blog; and Christopher Lefebvre, a consumer bankruptcy attorney in Pawtucket, R.I. The panel discussed the interpretative challenges presented by several provisions of BAPCPA and the principles of construction, drawn from opinions of the U.S. Supreme Court, being used by courts to interpret these provisions. The panel reviewed decisions rendered to date on credit counseling issues, including the dispute among courts as to whether the appropriate sanction for the failure of a debtor to obtain required pre-petition credit counseling is dismissal of the case or striking the petition. Also reviewed were the cases interpreting the new limitations on the duration of the automatic stay for debtors with previous bankruptcy filings. The panel also discussed recent decisions on exemption limitations, including the differing opinions on whether those limitations apply in opt-out states. The final topic was new restrictions on debtors’ ability to restructure claims held by creditors financing automobiles purchased within the 910-day period prior to the filing of the petition.
Brief mention was made of the committee’s listserve, which has seen increased activity since the effective date of BAPCPA. The committee’s listserve moderators are Alane Becket and Christopher Lefebvre. Judge Dow, the editor of the committee’s electronic newsletter, also solicited volunteers to author articles for the newsletter. Anyone interested in writing an article for the newsletter or with ideas for topics for articles should contact Judge Dow. The deadline for submission of material for the next edition of the electronic newsletter is June 27.
Finally, Ann vom Eigen, Deputy Executive Director and General Counsel of ABI, presented a proposal for a lender handbook on BAPCPA to be produced and published jointly by the ABI and the Mortgage Bankers Association and America’s Community Bankers. The handbook would include basic information for lenders on key issues arising in cases under the Bankruptcy Code, including the recent changes effected by BAPCPA. Anyone interested in participating in the project should contact Ann vom Eigen.