Bankruptcy

Not personal property, but worth the read.  In In re: Aniel, --- B.R. ----, 2010 WL 1609923 (Bkrtcy.N.D.Cal.), Judge Montali did not vacate a relief from stay order, explaining that the debtor “steadfastly and repeatedly resisted motions for relief from stay, while at the same time steadfastly and repeatedly refus[ed] to make payments pending resolution of their disputes about the… Read More

See the decision of Milavetz, Gallop & Milavetz v. United States here. Read More

In In re: Howard --- F.3d ----, 2010 WL 680974 (C.A.7 (Ill.)), Judge Posner adopted the creditor’s argument on the ‘hanging paragraph’ of BAPCPA, and affirmed the district court’s ruling.  Judge Posner explained:      This direct appeal from the bankruptcy court, pursuant to 28 U.S.C. § 158(d)(2)(A), requires us to consider an issue that is new in this court.… Read More

In In re: Taylor, --- F.3d ----, 2010 WL 669248 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit addressed a “recurring question in many bankruptcies: What should be the remedy when a court holds that a security interest [in an automobile] is avoidable as a preferential transfer?”  The Court of Appeals framed the question and its ultimate… Read More

In In re Dumont, --- F.3d ----, 2009 WL 2928930 (9th Cir. 2009), the Court of Appeals for the Ninth Circuit held that BAPCPA eliminated the ‘pay-and-drive’ ride through which the Ninth Circuit had sanctioned in McClellan Fed. Credit Union v. Parker (In re Parker), 139 F.3d 668 (9th Cir.1998).  The Court of Appeals explained, “Having decided that section 521(a)(2)(C),… Read More

In In re: Johnson, __ F.3d __, 2009 WL 2386142 (10th Cir. 2009), the Court of Appeals for the Tenth Circuit addressed whether the dismissal of a debtor's bankruptcy divested the Bankruptcy Court of the power to determine whether the creditor violated the automatic stay for a post-petition repossession of the debtor's vehicle.  The Court of Appeals held that the… Read More

The 10th Circuit Court of Appeals agreed with its BAP's recent decision in In re: Padgett and found that the negative equity in a motor vehicle contract was part of the purchase money security interest protected from cram-down under 11 U.S.C. §1325(a).  In re John Wesley Ford, Sr.   (No. 08-3192) (10th Cir. 2009). Read More

The Court of Appeals for the Tenth Circuit adopted the creditor's interpretation of the "hanging paragraph" of section 1325(a) of BAPCPA in In re: Padgett (BAP No. KS-08-069) (10th Cir. 2009) Read More

In Thompson v. General Motors Acceptance Corporation, __ F.3d. __ 2009 WL 1457718 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit fell in line with the Courts of Appeals for the Sixth, Eighth, Ninth, and Tenth Circuits in holding that a creditor, who lawfully seizes a vehicle pre-petition, must immediately return the vehicle to the debtor.  The… Read More

In In re: Saunders, Judge Rodriguez ruled in favor of an auto finance company's claim regarding negative equity financed into an automobile purchase transaction, holding that The Court thus concludes that the hanging paragraph applies to FMC’s claim regardless of whether the charge for negative equity constitutes a purchase-money obligation. Nevertheless, the FMC’s purchase-money security interest encompasses the amount financed for… Read More

On September 23, 2008, we reported about the 9th Circuit BAP's ruling and treatment of negative equity in automobile retail installment contracts. AmeriCredit appealed to the Court of Appeals for the Ninth Circuit.  AmeriCredit received trade group and industry amicus support.  Review the Briefing here: Penrod -- AmeriCredit's Opening Brief  Penrod -- Trade Group Amicus Brief Penrod -- Industry Amicus Brief Read More

United States District Court Judge David Carter recently approved a sweeping class action settlement under which the three credit reporting agencies have agreed to scrub historical data regarding bankrupt debtors.  White v. Experian, et. al. Case No. SACV 05-1070 DOC (MLGx) (C.D.Cal. 2008) Essentially, the CRAs typically would remove pre-bankruptcy debts from consumers' credit files only if the furnishers updated… Read More

Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), the ability of a debtor to "cramdown" the secured amount of a motor vehicle claim was commonplace.   BAPCPA seemingly precluding the cramdown of claims secured by a purchase money security interest in certain vehicles obtained within 910 days of the bankruptcy filing. But the 2005 BAPCPA… Read More