Bankruptcy

In Black v. Midland Credit Management, Inc., 2013 WL 5140181 (W.D.Wash. 2013), Judge Leighton found that a debtor’s failure to list her FDCPA claim in her bankruptcy schedules estopped her from later attempting to bring the FDCPA claim post-discharge.  Judge Leighton explained: Judicial estoppel “is an equitable defense that precludes a party from gaining an advantage by as-serting one position,… Read More

In In re Henderson, 2013 WL 3356128 (Bkrtcy.D.Nev. 2013), the Nevada Bankruptcy Court found the ipso facto clause in the standard form automobile RISC did not allow repossession merely due to the filing of bankruptcy and, accordingly, rejected debtors’ reaffirmation of their automobile RISCs as not being in the debtors’ best interests under Nevada law. A creditor's right to repossession… Read More

In In re Penrod, 2013 WL 1962338 (N.D.Cal. 2013), Judge Gonzalez-Rogers held that the debtor was not entitled to her attorneys’ fees incurred in this protracted litigation because recovery of fees derived purely from state law, which, the bankruptcy court had determined did not afford a right to attorneys’ fees. Penrod’s tortured procedural history was summarized as follows: Ultimately the bankruptcy… Read More

In Schaefer v. First Source Advantage, LLC, 2013 WL 509001 (E.D.Mo. 2013), Judge Shaw found that a TCPA Plaintiff who re-opened his bankruptcy to list the asset gained standing to pursue it, but was estopped from bringing it.  If a debtor fails to list an asset in his bankruptcy schedules, that asset is not automatically abandoned back to the debtor… Read More

In Mortimer v. Bank of America, N.A.  2012 WL 6218004 (N.D.Cal. 2012), Judge Spero addressed the interplay between bankrupt debt and credit reporting, finding that Plaintiff stated no FCRA or CCRAA claim.  The facts were as follows: Plaintiff Mark Mortimer (“Plaintiff”) brings this action against Defendant Bank of America, N.A., (“Defendant”) FN1 seeking redress for Defendant's alleged inaccurate reporting of his… Read More

In In re Culpepper, --- B.R. ----, 2012 WL 5395935 (Bkrtcy.D.Or. 2012), Judge Dunn denied a Bank’s MSJ as to an alleged discharge violation arising out of efforts to collect discharged debts surrounding a promissory note related to a deed of trust on Ms. Culpepper's residence property.  You know how it might turn out when Judge Dunn began his opinion… Read More

In Becker v. Wells Fargo Bank, Nat. Ass'n, 2012 WL 5187792 (E.D.Cal. 2012), Judge Shubb found that a plaintiff’s failure to schedule his claim (wrongful foreclosure) against the Bank in his previous Chapter 13 bankruptcy case estopped him from pursuing the claim in the District Court. Plaintiff filed a voluntary Chapter 13 petition on July 8, 2011. (RJN Ex. 9.)… Read More

In In re Hernandez-Panameno, 2012 WL 4867580 (Bkrtcy.N.D.Cal. 2012), Judge Carlson awarded $18,032 in sanctions and damages against a car dealer who repossessed a vehicle in violation of the Bankruptcy Code’s automatic stay.  The case arose out of a spot-delivery situation where the dealer could not find financing for the sale of the vehicle. Debtors purchased a car from Creditor… Read More

In King v. Bank of America, N.A., 2012 WL 4685993 (N.D.Cal. 2012), Judge Spero found a bankrupt Plaintiff’s FCRA claims to be outside of Walls v. Wells Fargo.  The facts were as follows: On July 21, 2010, the United States Bankruptcy Court for the Northern District of California granted Plaintiff a discharge of all dischargeable debts pur-suant to 11 U.S.C. §… Read More

In Demarest v. Ocwen Loan Servicing, LLC, 2012 WL 4320115 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held, in a brief unpublished opinion related to a pro per plaintiff, that “The district court did not abuse its discretion by applying judicial estoppel to Demarest's TILA damages claim because she attempted to pursue the claim without having… Read More

In Snead v. Aurora Loan Services, LLC, 2012 WL 3756887 (E.D.Cal. 2012), Judge Drozd applied judicial estoppel to prevent a consumer litigant from bringing a consumer protection claim (wrongful foreclosure) that the consumer did not list in her bankruptcy schedules. “Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of… Read More

In Harrier v. Verizon Wireless Personal Communications LP, 2012 WL 3655355 (M.D.Fla. 2012), Judge Moody addressed a petition to arbitrate a TCPA claim.  Plaintiff sued Verizon for emailing her to collect a debt after she received a bankruptcy discharge on Verizon's debt.  Verizon moved to compel arbitration.  Judge Moody denied the petition, holding: Harrier alleges that despite the bankruptcy discharge, Verizon called… Read More

In In re Barlaam, 2012 WL 3288725 (Bkrtcy.C.D.Cal. 2012), Judge Mund found triable issues of fact regarding a creditor’s position that the bankruptcy debtor’s obligations were non-dischargeable on a $305,000 Rolls-Royce and $100,000 BMW.  The debtor had claimed income in his credit application(s) of $720,000 and $530,000, but, in the bankruptcy proceedings, claimed that he had virtually no income during… Read More

In Hanks v. Talbott Classic National Bank, here, Judge Illston found that a Plaintiff stated a claim against a creditor when a charge-off notation reported to the CRAs pre-Petition was re-inserted post-Discharge.  In so doing, Judge Illston implied that the pre-Petition charge-off reporting complied with FCRA, but found that the re-insertion post-Petition did not and that the Plaintiff was not deprived… Read More

In In re Sanders, 2012 WL 692549 (Bkrtcy.W.D.Tex. 2012), Judge Clark found that an automobile finance company who, following the debtor’s rescission of a reaffirmation agreement, repossessed a vehicle post-discharge based on the ispo facto clause did not violate the automatic stay or discharge injunction. The facts were as follows: On August 10, 2011, the captioned Debtors filed a motion… Read More

In re White, 2011 WL 4368390 (Bkrtcy. D. Dist. Col. 2011), Judge Teel held that an automobile dealer could not obtain dismissal of a customer’s bankruptcy because the customer was concealing the vehicle from the dealer to avoid repossession.  Nor, Judge Teel held, could the dealer obtain a turn-over order from the bankruptcy court.  Judge Teel explained:    Wilson Powell… Read More

In In re Baer, 2011 WL 1832490 (Bkrtcy. E.D. Ky. 2011), the bankruptcy court held that an automobile company’s repossession of a non-reaffirmed vehicle 2 weeks after an Order of Discharge could violate the automatic stay because the Plaintiff’s bankruptcy remained open. Factually, the Plaintiff's Order of Discharge was entered on October 20, 2010. The Defendant repossessed the Plaintiff's Vehicle… Read More

In Hall v. Ford Motor Credit Co., Inc., --- P.3d ----, 2011 WL 1601167 (Kan. 2011), the Kansas Supreme Court affirmed the propriety of a post-bankruptcy vehicle repossession when the vehicle was significantly impaired for reasons other than non-payment.    In a consumer credit transaction, the debtor's filing of a bankruptcy petition does not automatically create a substantial impairment to… Read More

Today, over a vigorous dissent, the Court of Appeals for the Ninth Circuit denied en banc rehearing in In re: Penrod,  here.  Eight other circuit courts have ruled in favor of industry on the so-called "hanging paragraph" of BAPCPA.  Justice Bea, joined by four other judges, objected (in part) to the denial of en banc review: Neither loan would ever have… Read More

The Court of Appeals for the Ninth Circuit disagreed with eight other circuit courts on whether a creditor has a purchase money security interest in the negative equity of a debtor's trade-in vehicle in In re: Penrod 2010 Wl 2794409 (9th Cir. 2010) AmeriCredit has placed great emphasis on the decisions of the other circuit courts of appeal. In total,… Read More