In In re Appling (Appling v. Lamar, Archer & Cofrin, LLP), No. 16-11911, 2017 WL 603833 (11th Cir. February 15, 2017) (click here for .pdf), the Court addressed a question that has divided several other courts – Can a statement about a single asset be a “statement respecting the debtor’s … financial condition” for purposes… Continue Reading
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Georgia Supreme Court And Eleventh Circuit Agree: Health Savings Accounts NOT Exempt In Georgia.
Health Savings Accounts were adopted by federal law in 2003, and allowed in Georgia in 2008. They have been a tremendous benefit to many families since that time. A simple explanation of a Health Savings Account (“HSA”), from Judge Wiki, is: [An HSA] is a tax-advantaged medical savings account available to taxpayers in the United… Continue Reading
11th Circuit: District Court Must Use Federal Rules of Bankruptcy Procedure, Not Civil Procedure, When Trying Case “Arising Under” Title 11.
In a published opinion entered on April 8, 2016, the Eleventh Circuit Court of Appeals held that District Courts are obliged to use and apply the Federal Rules of Bankruptcy Procedure rather than the Federal Rules of Civil Procedure when trying a case that “arises under” Title 11 (28 U.S.C. §1334). In Rosenberg v. DVI… Continue Reading
11th Circuit Issues Important Opinion On What Constitutes A “Return” For Purposes Of Determining What Taxes Are Dischargeable Pursuant to §523(a)(1).
The question of what constitutes a tax “return” for purposes of 11 U.S.C. §523(a)(1) has been the subject of conflicting Circuit Court cases the last several years. The Eleventh Circuit Court of Appeals addressed the issue in In re Justice, No. 15-10273, 2016 WL 1237766 (11th Cir. March 30, 2016) (click for .pdf of opinion). … Continue Reading
11th Circuit: FDCPA Requirements Apply Equally To Communications with Debtor’s Lawyer
The Eleventh Circuit recently addressed three issues of first impression in the Circuit regarding the application of the Fair Debt Collection Practices Act (FDCPA) to letters to consumers’ lawyers. Not surprisingly, the court ruled in favor of the consumer although the arguments made by the collector did seem somewhat weak. In Bishop v. Ross Earle… Continue Reading
Filing Proof Of Claim For Time Barred Debt Violates FDCPA, Says Eleventh Circuit, But They Leave An Escape Hatch.
In the last couple of years, claims against creditors for alleged violations of the Fair Debt Collection Practices Act (FDCPA) have become a hot item in Bankruptcy Courts. One such question is whether the filing of a proof of claim for a stale debt (i.e., one that has become unenforceable pursuant to the applicable statute… Continue Reading
11th Circuit: Non-Filing Spouse’s Income And Expenses Can Be Used To Find Abuse Under Section 707(b)(3)(B).
In In re Kulakowski, No. 12-15294, 2013 U.S. App. LEXIS 23110 (11th Cir. Nov. 15, 2013) (click here for .pdf of opinion), the issue was the extent to the Court could consider the income and expenses of the non-filing spouse in determining whether a Chapter 7 case could be dismissed for “substantial abuse” under 11… Continue Reading
Chapter 13 Plan Binds Chapter 13 Trustee, Says Eleventh Circuit
In the case of Hope v. Acorn Financial, Inc., Case No. 12-10709, 2013 U.S. App. LEXIS 19661 (11th Cir. September 26, 2013) (click here for .pdf of opinion) the Court addressed whether 11 U.S.C. §1327(a) binds the Chapter 13 Trustee to the terms of the plan, even though the Trustee is not mentioned in the… Continue Reading
11th Circuit Finds Law Firm Did Not Ghostwrite Or Commit Fraud On Court By Assisting Debtor With Pro Se Petition
It is not uncommon for Bankruptcy lawyers to get requests from individuals to just help them fill out the Bankruptcy paperwork, or act as the occasional sounding board behind the scenes, without actually representing the debtor in the Bankruptcy Court. This often happens when the client either does not have the money for fees or… Continue Reading
In Case Of First Impression, Eleventh Circuit Holds Pre-Petition Bad Faith Can Constitute “Cause” For Disimssal Under §707(a).
Creditors and other parties in Chapter 7 Bankruptcy cases filed in the Eleventh Circuit just got more ammunition from the Court of Appeals to seek dismissal of cases in which the debtor filed only to avoid a single, large debt, even in the absence of fraud or misconduct. In In re Piazza, 719, F.3d 1253,… Continue Reading
Single Premium Annuity Exempt In Bankruptcy, Says Georgia Supreme Court.
The Georgia Supreme Court recently answered certified questions from the Eleventh Circuit Court of Appeals regarding whether a single premium annuity was exempt in a Chapter 7 case, where the annuity was purchased a year before filing with $220,000 in inherited funds. A debtor’s transfer of $220,000 a year before filing Chapter 7 is certainly… Continue Reading
Security Deed Lacking Signature of Additional Witness and Improperly Identifying Property Was Invalid in Georgia, says Eleventh Circuit
In National City Mortgage v. Gordon (In re Bennett), No. 12-13239, 2013 U.S. App. LEXIS 10765 (11th Cir. May 29, 2013) (click here for .pdf), the issue was the validity of a Security Deed that did not contain the signature of “one additional witness,” as required by O.C.G.A. § 44-14-33 and identified a larger tract of… Continue Reading
Georgia Supreme Court Issues Significant Opinion That Could Invalidate Many Deeds In Georgia
On February 18, 2013, the Georgia Supreme Court issued its opinion in Wells Fargo Bank. N.A. v. Gordon, No. S12Q2067, 2013 Ga. LEXIS 158 (Feb 18, 2013). The case was certified to the Georgia Supreme Court by the Eleventh Circuit Court of Appeals in In re Codrington, 691 F3d 1336 (11th Cir. 2012) (click here… Continue Reading
11th Circuit: Court May Consider Chapter 7 Debtor’s Ability To Pay In “Totality Of Circumstances” And Consideration Of Abuse
In In re Witcher, No. 11-15883 (11th Cir. December 13, 2012) (click here for opinion), the issue before the Court was… whether a court may take into account a debtor’s ability to pay his or her debts in determining whether "the totality of the circumstances . . . of the debtor’s financial situation demonstrates abuse"… Continue Reading
11th Circuit: Bankruptcy Court Has No Jurisdiction To Determine Whether Debt Was Discharged In Case Litigated In A Bankruptcy Court In Another District
Alderwood Group, Inc., et al v. Garcia, et al., No. 10-14726 (11th Cir. May 30, 2012) (click here for .pdf of opinion). The Creditor/Plaintiffs asserted class action tort claims in 2008 against the Debtor/Defendants in Florida state court for damages due to Debtors’ operation of a cemetery known as Graceland. The claims included inadequate record… Continue Reading
11th Circuit – Debtors Can Strip Wholly Unsecured Second Lien In Chapter 7 Case
In McNeal v. GMAC Mortgage, LLC, et al, No. 11-11352 (11th Cir. May 11, 2012) (click here for .pdf) the issue before the Court was whether a debtor in a Chapter 7 case can strip a second priority, unsecured lien from her residence. At least in the Eleventh Circuit, a debtor can strip the unsecured second… Continue Reading
11th Circuit Affirms Availability Of “Value” Defense For Recipients Of Fraudulent Transfers Who Were Equity Holders Of Debtor
In Perkins v. Haines, et al, No. 10-10683 (11th Cir. October 27, 2011) (click here for .pdf of opinion), the 11th Circuit took a direct appeal of the Bankruptcy Court’s order concerning the "value" defense in fraudulent transfer proceedings. The basic facts are as follows. International Management Associates, LLC and related entities were operated as a… Continue Reading
Eleventh Circuit Affirms Private Employer’s Right to Deny Employment Because Of Bankruptcy Filing
The Eleventh Circuit Court of Appeals has followed other courts (notably, the Fifth Circuit, as discussed here) in affirming the right of a private employer to deny employment based upon the applicant’s filing of a bankruptcy petition. In Myers v. TooJay’s Management Corp., No. 10-10774 (11th Cir. May 17, 2011) (click here for the .pdf… Continue Reading
11th Circuit Confirms That Potential Claims And Lawsuits Must Be Diclosed Or A Debtor Will Be Judicially Estopped From Pursuing Them.
There have been several cases over the years dismissing lawsuits by Debtors who failed to list the claim as an asset in their Bankruptcy schedules. As the opinion below confirms, the same duty applies where the claim arose after the filing of a Chapter 13 case and even where the Debtor proposed to pay, and… Continue Reading
11th Cir: Debtor Cannot File Suit Against Trustee Or Professionals In District Court Without Leave Of Bankruptcy Court
Lawrence v. Goldberg, et al., 08- 11034 (11th Cir. July 10, 2009) (click here for .pdf opinion). Debtor file suit against the Chapter 7 trustee, professionals employed by the trustee, and creditors in District Court.. The District Court dismissed for lack of subject matter jurisdiction. The Eleventh Circuit affirmed. In [Barton v. Barbour, 104 U.S.… Continue Reading
11th Circuit – Bank To Bank Credit Card Balance Transfers Are Avoidable Preferential Transfers
Bank of America, NA v. Mukamai (In re Egidi), No. 08-15958 (June 18, 2009) (click here for .pdf of opinion). The facts were not in dispute. Within 90 days of filing her bankruptcy petition, debtor caused one credit card company to directly transfer a total of $16,065 to Bank of America ("BOA") as part of… Continue Reading
11th Cir. – Trustee Can’t Avoid Security Deed When BFP On Inquiry Notice Prior To 90-Day Reachback
Watts, Ch. 7 Trustee v. Argent Mortgage Company, LLC, No. 07-14615, 2008 WL 5257157 (11th Cir. December 18, 2008). The facts are as follows: On July 8, 2004, debtor Santrice Hunt purchased a house from Bellwood Homes. At closing, Bellwood gave her a warranty deed to the property, and she, in turn, executed and gave Argent… Continue Reading
11th Circuit En Banc Reverses Panel : 11 U.S.C. §303 Is Not Subject Matter Jurisdictional And Can Be Waived
Trusted Net Media Holdings, LLC v. The Morrison Agency, Inc. (In re Trusted Net Media Holdings, LLC), No. 07-13429 (11th Cir. Dec. 2008) (click here for .pdf opinion). The issue in this case is "whether the requirements in 11 U.S.C. § 303(b) for commencing an involuntary bankruptcy petition are elements of subject matter jurisdiction." In… Continue Reading
11th Cir. – Secured Creditor May Still Pursue Deficiency After Surrender of “910 Vehicle”
In re Barrett, Nos. 07-14796, 07-14797 (11th Cir. Sep. 29, 2008) (download opinion here). The issue raised on appeal concerned a pure question of law: "whether a Chapter 13 debtor’s surrender of a “910 vehicle” (i.e., a vehicle purchased for personal use within 910 days before filing for bankruptcy) fully satisfies a creditor’s claim secured… Continue Reading