Individuals in Pennsylvania currently under parole or probation should familiarize themselves with the process of a Gagnon hearing. If you are arrested for a parole violation, you may be subjected to this hearing and get your parole revoked. In Pennsylvania, there are two types of Gagnon hearings. The first is to assess whether or not […] The post What is a Gagnon Hearing in Pennsylvania? appeared first on .

Are Changes on the Way for Bankruptcy and Student Loans? There’s one big change Joe Biden can make (without Congress) so people who can’t afford to pay their student loans can clear them in bankruptcy. During his presidential campaign, Joe Biden promised to help people who can’t pay their student loans.  So far, he’s helped […] The post Are Changes on the Way for Bankruptcy and Student Loans? by Robert Weed appeared first on Northern VA Bankruptcy Lawyer Robert Weed.

Social Security Disability Insurance (SSDI) is a payroll-tax-funded insurance program managed by the Social Security Administration (SSA).  The program serves to support people who are disabled and have a qualifying work history, either through their employment or a family member.  SSDI provides monthly benefits to people who are unable to maintain steady employment.  There are limits to how much an SSDI claimant can make per month.  Accordingly, many claimants question if their spouse’s income affects their ability to receive SSDI benefits. The amount of money your spouse makes will not affect your ability to receive SSDI benefits in Pennsylvania.  However, if you qualify for SSDI benefits through your parents, your benefits may be discontinued when you get married.  Our Pennsylvania disability lawyers can help injured workers understand how to qualify for SSDI benefits. If you or a loved one receives or is considering applying for disability benefits through SSDI in Pennsylvania, get help recovering the benefits you deserve by calling the law firm of Young, Marr, Mallis & Deane at (215) 515-2954 for a free case review. Effect of Spouse’s Income on SSDI Benefits in Pennsylvania The SSA runs two separate programs that grant financial assistance based on severe, long-term disabilities, SSDI and Supplemental Security Income (SSI). The major difference between the two programs is that SSDI is based on disability and work credits, while SSI is based on age, disability, income and resources.  In other words, SSDI is intended for those who have earned sufficient work credits through prior work history.  Meanwhile, SSI is meant for claimants who have limited income and resources.  However, claimants for both SSDI and SSI may be disqualified if they earn too much money. For SSDI claimants in Pennsylvania, the monthly income limit is referred to as a maximum amount of “substantial gainful activity.”  The limit for substantial gainful activity in Pennsylvania changes from year to year.  In 2022, the threshold of substantial gainful activity is $1,350.  Accordingly, if you are working in 2022 and make more than $1,350 per month, you will not qualify for SSDI benefits.  The gauge of substantial gainful activity only measures the claimant’s ability to perform work. SSDI does not technically impose an income limit.  Accordingly, marriage should not affect your ability to receive SSDI benefits in Pennsylvania.  Your spouse’s income will only affect your ability to receive SSI benefits.  If you believe your benefits have been wrongly denied, our Philadelphia disability lawyers can help determine the right way forward in your case. Effect of Spouse’s Income on SSDI Benefits Received Through Claimant’s Parents There are certain circumstances where a spouse’s income can affect your SSDI benefits.  In some cases, claimants will receive SSDI benefits through their qualifying parent.  An adult child may qualify for SSDI benefits based on a parent’s work record if they meet each of these requirements: They are at least 18 years old, Their disability began before they turned 22, They are not married, or their partner also qualifies for SSDI, At least one of their parents receives SSDI benefits or is deceased and the remaining parent draws survivor’s benefits, and They meet the SSA definition of “disabled.” Therefore, if you are receiving SSDI benefits through a qualifying parent, those benefits will be discontinued upon marriage unless your spouse also receives SSDI benefits.  Furthermore, your spouse’s income will inhibit your ability to receive SSDI benefits through parents regardless of how much your spouse makes. How Much Money Can a Spouse Make Under Trial Work Periods for Workers Receiving SSDI Benefits in Pennsylvania? SSDI beneficiaries must suffer from a medical condition that significantly limits their ability to support themselves financially.  However, the SSA allows claimants to earn income under a trial work period.  The trial work period allows you to work and test whether or not you can once again support yourself financially.  If you are claiming SSDI benefits and thinking of returning to work, our Allentown disability lawyers can advise you on the amount of monthly earnings that may trigger a trial work period. Some claimants may wonder if income acquired by a spouse will cause a trial work period to be triggered.  The amount of substantial gainful activity performed by an SSDI claimant will not be affected by a spouse’s income.  Accordingly, the amount of income brought in by a spouse will not be used to initiate a trial work period. Entering a trial work period could lead to the termination of your SSDI benefits if you prove you are able to work.  Claimants should be sure they are ready to return before entering a trial work period.  Fortunately, the amount of money your spouse makes will not factor into the decision to enter a trial work period. How Much Work Do You Need to Qualify for SSDI Benefits in Pennsylvania? You must have worked long enough and recently enough under Social Security to receive SSDI benefits in Pennsylvania.  Your SSDI eligibility will be determined based on the amount of Social Security work credits you have acquired.  The number of work credits you need to qualify depends on your age when your disability begins.  Generally, 40 credits are required, 20 of which must have been earned in the 10 years before your disability begins. Work credits are acquired through your earned wages.  The amount needed for a work credit changes from year to year.  In 2022, you earn one work credit for each $1,510 in wages or self-employment income.  When you have earned $6,040, you have acquired four credits for the year.  Our Bucks County disability lawyers can offer further guidance on how you to earn credits. If You Were Injured and Want to Claim SSDI Benefits, Our Lawyers Can Help If you suffer from a mental or physical injury that inhibits your ability to financially support yourself, seek assistance from experienced Springfield disability lawyers by calling the law firm of Young, Marr, Mallis & Deane at (215) 515-2954 for a free case review.

 A short order crossed my desk the other day in In re Preferred Ready-Mix, Case No. 21-33369 (Bankr. S.D. Tex. 6/6/22), Dkt. #207. A creditor filed an application for administrative expense. No one objected. However, the Court reduced the fees requested by $73.50 to reflect time spent electronically filing documents. While this little case involves much smaller dollars than the Supreme Court opinion in Siegel v. Fitzgerald, No. 21-411 (U.S. 6/6/22), which came out the same day, it will affect many more cases.A Little BackgroundWhen it comes to professional compensation, there are three types of services. First, there are professional services, which require the skill and knowledge of an attorney and, are compensable at rates which can exceed over $1,000 per hour in some cases. Then there are para-professional tasks, where are those which require skill and knowledge, but do not require a licensed attorney and are compensated at lower rates. Finally, there are clerical tasks, which do not require specialized knowledge and are not compensable because they are deemed to be part of a firm's overhead. What Judge Norman RuledIn his Judge Norman stated:The Court notes that no objection to the application has been filed. However, the Court has an independent duty to review fee applications, notwithstanding the absence of objections by the United States Trustee, creditors, or any other interested party. The Supreme Court has held that the lodestar method of fee calculation is the method by which federal courts should determine reasonable attorney fees under federal statutes which provide for such fees. The lodestar is computed by multiplying the number of hours reasonably expended by the prevailing hourly rate in the community for similar work. The first step in the lodestar method is to evaluate the time entries submitted by the Applicant and determine which are allowable. This step involves considering whether the services which the Applicant billed were reasonable or necessary. The services performed must be legal in nature, rather than clerical. This application contains instances of the applicant’s billing for work which is routinely performed by secretaries and should not be billed to the client. Case law suggests that “ministerial tasks” (typing, file organization, document preparation, searching or filing documents on PACER, etc.) performed by a professional or paraprofessional should not be allowed as a separate charge because it is part of the office overhead, which should already be built into the counsel’s hourly rate. This Court considers ECF filing to be clerical work, and therefore, should not be allowed as a separate charge. The instant fee application contains several instances where counsel billed for filing ECF documents. Therefore, those entries containing secretarial tasks will be struck.What are Clerical Tasks? According to Judge Norman, filing documents on ECF is a  secretarial task. This suggests that filing documents on CM/ECF is a routine task to be performed by a low level employee and certainly does not require the assistance of an attorney. When electronic filing first came out, there was a debate over whether it would ever be permissible for an attorney to give his staff access to his e-filing credentials. The logic was that the orders adopting e-filing expressly provided that inputting an attorneys' login and password constituted his signature upon the document. Since an attorney could not ethically allow his secretary to sign his name to a pleading, it was reasoned that an attorney could not authorize his secretary to file a pleading or motion on his behalf. However, when the courts began offering e-filing courses aimed at attorney staff, it was at least an implicit acknowledgement that the courts did not treat the use of e-filing credentials as being the same as a signature.The consensus is now that e-filing in bankruptcy by attorney staff is ethical, but is it clerical? Judge Norman gave several examples of other tasks that are considered clerical:  typing, file organization, document preparation and searching or filing documents on PACER. As someone who supervises clerical staff, I would add making copies, mailing documents and putting documents in the file to the list. What distinguishes this list from compensable para-professional tasks? I think it is a matter of training and skill. While it does require training and skill to type a document in Microsoft Word or to print out postage on stamps.com, the skill required is not inherently legal. In other words, these are skills that anyone working in an office would be expected to know or learn. On the other hand, para-professionals may charge for tasks that require skills and knowledge unique to the legal field, and in particular, those unique to bankruptcy.I would argue that e-filing documents requires sufficient skill and knowledge that a para-professional may charge for those services. In order to file a document electronically, a user must be able to know how the e-filing menu interacts with the local rules of the particular court. An example involving two first-day pleadings may help. In an operating chapter 11 case, it is common to file a motion for use of cash collateral and a motion to pay employee wages as first day motions. In the Southern District of Texas, any pleading requiring expedited consideration must be labelled as an emergency motion, be filed using the emergency motion event code and must contain special language as part of the negative notice. In the Western District of Texas, there is a specific event code for motions for use of cash collateral but not for motions to pay employee wages. Motions to pay employee wages must be uploaded as a generic document. In the Southern District proposed orders are attached to the associated motion but are not uploaded. In the Western District of Texas, proposed orders are both attached to the pleading and are uploaded. These are not distinctions that a mere secretary, someone who could just as easily work in a law office or a dentist's office, would know.  This was brought home to me when I filed a Chapter 11 case in the Southern District this week. I used to have a legal assistant who was skilled in e-filing. However, my current assistant has not received this training yet. As a result, I had to do the e-filing myself. Because I have not filed many Chapter 11 cases in the Southern District (yet), it took me some time to figure out how to formulate the pleadings and how to e-file them. It took me an hour to upload the case and three first day motions (one of which was rejected). For me, this was a throw-back to the days when only attorneys were allowed to e-file. (Since my case was in Judge Norman's court, I billed the time but no-charged it). 

Judge Stacey C.G. Jernigan is best known for the writing she publishes from her office at 1100 Commerce Street. I was able to locate 270 of her opinions on LEXIS. Some of my favorites are In re Tinsley, 2010 Bankr. LEXIS 4156 (Bankr. N.D. Tex. 20100 about a cowboy trying to keep the ranch he inherited from his father and In re Pearson, 2020 Bankr. LEXIS 972 (Bankr. N.D. Tex. 2020) in which Judge Jernigan cited an article that I wrote. Lee v. Weatherford (In re Weatherford), 2022 Bankr. LEXIS 144 (Bankr. N.D. Tex. 2020) is an opinion about whether a debt arising from a bar brawl was nondischargeable and is just the type of case a Texas judge might encounter.  However, Judge Jernigan is also a novelist. This summer I have enjoyed reading He Watches All My Paths (2019) and Hedging Death (2022).The lead character in both books is Judge Avery Lasiter, a federal bankruptcy judge married to a police officer who has a King Charles Spaniel. Judge Jernigan is quick to point out that even though the characters are similar to her real-life family, they are fiction. However, Judge Jernigan shows the wisdom of writing what she knows about.The first book, He Watches All My Paths, is about a federal bankruptcy judge terrorized by a disgruntled party.  She receives threats at home, on her office voicemail, on a pad left in the courtroom and even on a family vacation in Portugal. This is a very personal story that could have happened to Judge Jernigan or one of her colleagues.  (She discusses the case where an angry lawyer killed one of her Haynes & Boone colleagues as well as several other judges and lawyers). Not to give away too much, but the judge survives so that she can return in Hedging Death. Hedging Death shares part of its plot with the In re Life Partners case (which was not Judge Jernigan's but was pending in the Northern District), but also gives intimate glimpses into what goes on in court and in chambers. In this case, a trial over responsibility for a Ponzi scheme is interrupted when one of the minor players notices that the funds were not being squandered but rather redirected to another entity leasing the former Superconducting Supercollider in Ellis County, Texas. Meanwhile, Officer Max has retired from the force and is tracking down a hedge fund manager who faked his own death to collect the insurance money. The hedge fund guy was involved in raising money for the Ponzi scheme so the two stories start to connect. The plot also involves Mexican cartels, viatical settlements, and a scheme to kill off retired people who have sold their insurance policies so that the cartel can get its money. There are numerous other plot twists and the bad guys from the first book play an important role.The writing styles for the two books are quite different. The first book is very personal and when the narrator is addressing the reader, it is clear that it is Judge Jernigan speaking through her alter ego's voice. In Hedging Death, there is a consistent third-party fly on the wall narrator who observes various events, whether it is Judge Lassiter explaining viatical settlements to the "kids," her collection of interns, law clerks and courtroom staff, or observing a meeting between shady characters that happened years earlier. He Watches All My Paths would not have worked with an omniscient narrator, since the thrill lies in viewing the danger through the eyes of the judge. On the other hand, Hedging Death, requires a wider lens to take in all of its varied subplots.   The books are also fun for bankruptcy nerds looking for common tropes. You can't practice in Texas without having a missing cow case or an impoverished heir/heiress who is not sure where all the money went. I am thankful to Judge Jernigan for writing about the world of bankruptcy. For some reason, John Grisham and Jay Brandon, two of my favorite writers of lawyer fiction, have never ventured into our world. If they did, I don't think they could provide as insightful of a view as the one provided by Judge Avery Lassiter. 

  There is a very short 14 day period to appeal final orders in bankruptcy.  A question can often arise whether an order is final or not.  This was the situation in A&S Entm't LLC v. Florida, case no. 22-cv-20919-BLOOM, 2022 U.S. Dist. LEXIS 100789 (S.D. Fla., 6 June 2022).  Here the chapter 11 debtor objected to the claim of the Florida Department of Revenue, and filed a reconsideration of the order denying the objection, but waited to file the notice of appeal until the order confirming the plan which treated the claim as priority status, some seven months later.  The debtor argued that the order on objection to claim was not final until the confirmation order dealing with the priority status was entered.  The district court disagreed, granting the Department of Revenue's motion to dismiss the appeal.  Fed. R. Bankr. P. 8002(a)(1) requires an appeal to be filed within 14 days after the entry of the judgment, order, or decree being appealed.  The time is extended under Rule 8002(b) until the entry of the order disposing of any reconsideration motions.  The timely filing of a notice of appeal is mandatory and jurisdictional.  The appellate court does not have jurisdiction to hear an appeal that is not timely filed.1 In bankruptcy, the concept of finality is applied to discrete controversies within the administration of the estate, when the separate dispute has been finally resolved leaving nothing more for the bankruptcy court to do.2   Debtor relied on the decision in In re Golden, 207 B.R. 252 (N.D. Fla. 1996) which found that an order overruling an objection to claim of the IRS was not final, but the appellate court noted that that decision was entered under a prior version of Rule 9021 which now no longer requires a final judgment under Rule 58.  Rather, the court found that to determine that priority and reconsideration orders were not final would contravene the purpose of the relaxed rule of finality and long postpone appellate review of fully adjudicated disputes.  Delaying appeal until completion of a bankruptcy case could require the unravelling of subsequent adjudications made in reliance on such decision.   Courts have previously determined that orders establishing the priority of a claim are final even if the claim or priority may be reduced by other claims or priorities.3  The district court found that the priority and reconsideration order were final appealable orders, and dismissed the appeal as it was filed more than 14 days after entry of the order on reconsideration of the objection to claim.1 In re Williams, 216 F.3d 1295, 1298 (11th Cir. 2000).↩2 In re Atlas, 210 F.3d 1305, 1308 (11th Cir. 2000).↩3 In re Saco Local Dev. Corp., 711 F.2d 441, 448 (1st Cir. 2006); In re Delgado, 360 B.R. 406, 408 (B.A.P. 1st Cir. 2006) citing Beneke Co., Inc. v. Economy Lodging Sys., Inc., 234 B.R. 691, 693 (B.A.P. 6th Cir. 1999); In re Fowler, 394 F.3d 1208, 1211 (9th Cir. 2005).↩Michael BarnettMichael Barnett, PA506 N Armenia Ave.Tampa, FL 33609-1703https://hillsboroughbankruptcy.com

The Fifth Circuit has issued a new decision restricting application of the Rooker-Feldman doctrine and repudiating a prior precedent.  Miller v. Dunn, Case No. 20-11054 (5th Cir. 6/2/22), which can be found here. Under the new rule, which brings the Fifth Circuit in line with other courts, Rooker-Feldman does not apply to a state court decision which is the subject of a pending appeal.Rooker-Feldman is one of several doctrines which enforces comity between state and federal courts. The Rooker-Feldman doctrine, which is based on Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) means that a federal court may not review and reverse a determination of a state court. Rooker-Feldman applies to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).What HappenedDunn and Miller were parties to a divorce action filed in Dallas County state court in February 2013. Two additional state court cases followed. In 2018, Dunn sued Miller to modify their child custody arrangements. Miller removed the case to federal court, which remanded it. Miller removed the case a second time just an hour before a hearing on an emergency temporary restraining order. Notwithstanding the removal, the state court went ahead with the hearing and entered an order barring Miller from seeing his children. Miller appealed the order contending that the state court lacked jurisdiction due to the removal. While the appeal was pending, Miller brought suit in U.S. District Court for violation of his civil rights under 42 U.S.C. Sec. 1983. He sued Dunn, his ex-wife, other private individuals, the state judges, two police officers Dallas County and the City of Dallas. The magistrate judge sua sponte ordered Miller to show cause why the court had subject matter jurisdiction based on Younger abstention and Rooker-Feldman. Miller contended that Rooker-Feldman did not apply because the state court order was still under appeal. The magistrate judge recommended dismissal, which the district judge approved. Miller then appealed to the Fifth Circuit. The RulingIn a rare twist, the Fifth Circuit held that the pro se litigant was right and repudiated one of its precedents. In Hale v. Harney, 786 F.2d 688 (5th Cir. 1986), the Court held that Rooker-Feldman could apply even if the state court case was under appeal. However, the Supreme Court later ruled in Exxon Mobil, that Rooker-Feldman should only apply if all appeals had been exhausted in state court. The Supreme Court stated:When there is parallel state and federal litigation, Rooker-Feldman is not triggered simply by the entry of judgment in state court. This Court has repeatedly held that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction."As understood by the Supreme Court, Rooker-Feldman allows state and federal proceeding to proceed on parallel tracks, but does not allow a federal court to undo a state court ruling which is final and no longer subject to review. The Fifth Circuit found that its Hale decision was incompatible with the later Supreme Court decision and should be rejected. "We conclude that Hale is no longer good law after Exxon Mobil and hold that Rooker-Feldman is inapplicable where a state appeal is pending when the federal suit is filed." Thus, the court reversed and allowed Miller's suit to continue.What Does It Mean?Does this mean that whenever someone loses in state court, they can file an appeal and then file a competing case in federal court? The answer is yes and no. The state court loser can file a competing suit, but will still have to deal with collateral estoppel. Collateral estoppel, which is also known as issue preclusion, says that:Issue preclusion prevents a party from relitigating an issue only when "(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; and (3) the previous determination was necessary to the decision."Little River Healthcare Holdings, LLC v. Little River Healthcare Holdings, LLC, 2022 U.S. App. LEXIS 13449 (5th Cir. 5/18/22).  When collateral estoppel is invoked based upon a prior state court judgment, that state's law of collateral estoppel applies. Under Texas law, collateral estoppel applies to a judgment that is still being appealed. DeGonzalez v. Guilbot, 315 S.W.3d 533 (Tex. 2010).  Thus, while Rooker-Feldman would not apply in this case, collateral estoppel might.Is this a case of six of one, half dozen of another? Not necessarily. Rooker-Feldman is a jurisdictional bar meaning that the federal court lacks jurisdiction to hear the case. Collateral estoppel is an affirmative defense. Affirmative defenses can be waived. Thus, litigants should avoid falling into the trap of thinking that Rooker-Feldman is the sole answer to the problem. 

If you’ve found yourself unable to pay off student loans or other debts, and have difficulty managing your finances, you may have considered filing for Chapter 13 bankruptcy. If you do, what will happen to your student loans? Your student loans won’t go away if you file for Chapter 13 bankruptcy. While there are certain […] The post What Happens to Student Loans When Filing for Chapter 13 Bankruptcy? appeared first on .

 While it is not pleasant to contemplate, sometimes a debtor passes away before his case is completed. This raises the question of whether the case can go to completion and how to complete the financial management class. Judge Michael Parker addressed this issue in one of his first published opinions as a judge. (This is actually his third opinion, but the first one that I had the time to write about).  In re Ibarra, Case No. 19-52413 (Bankr. W.D. Tex. 6/1/2022), which can be found here.What HappenedThe Debtor filed Chapter 13 and confirmed a plan in 2019. The Debtor passed away on October 9, 2021 prior to completing payments under the Plan and before completing a personal financial management course. The debtor's probate estate representative and daughter made the remaining payments under the plan and moved for an order waiving the debtor's obligation to complete a financial management course. As the Judge succinctly stated, "Death prevents the Debtor from completing a financial management course." Opinion, p. 1.The Court's OpinionIt should come as no surprise that the Court granted the motion. The Court stated its analysis with Fed.R.Bankr.P. 1016, which states that is a Chapter 13 debtor dies "the case may be dismissed; or if further administration is possible and in the best interest of the parties, the case may proceed and be concluded in the same manner, so far as possible, as though the death . . . had not occurred."Judge Parker then explained:Because discharge is the usual conclusion of a chapter 13 case, Rule 1016 contemplates granting a discharge to a deceased chapter 13 debtor under qualifying circumstances. Here, plan payments are complete and “further administration” requires only the ministerial task of completing a financial management course. The Court notes that the Debtor’s death defeats the purpose of the course requirement, which is to prevent bankruptcy recidivism. Opinion, p. 3. The Rule allows the Court to consider the best interest of the parties. Here, neither the Trustee nor the creditors objected. The Court noted that the debtor's heirs would benefit from allowing the case to proceed. The next question was whether the personal financial management course could be waived. Section 109(h)(4) allows the Court to waive the personal financial management course due to "incapacity, disability, or active military duty in a military combat zone." A deceased debtor "suffers from the ultimate disability." Lessons From This CaseThe main takeaway from this case is that the requirement to complete a personal financial management course can be waived due to incapacity. This would apply in both Chapter 7 or Chapter 13. As Judge Parker pointed out, the purpose of the personal financial management course was to keep the debtor from filing future bankruptcies. Once the debtor has passed away, this  is no longer a problem. The statute also allows both the credit counseling briefing and the personal financial management course to be waived due to disability. Bankruptcy Rule 1004.1 expressly allows an infant or incompetent person who has a representative to file bankruptcy. This raises an interesting question as to how the personal representative can verify the schedules or testify at the creditor's meeting. However, the two rules combined allow the personal to file through their representative and waive the requirement of the pre-filing and post-filing certificates.One other practice point highlighted by the opinion is what to do when a debtor passes away prior to completing payments under a Chapter 13 plan. One option, as occurred here, is for the debtor's heirs to complete the payments for him. Another option alluded to by Judge Parker is to request a hardship discharge under 11 U.S.C. Sec. 1328(b). This is available where the failure to complete plan payments "is due to circumstances for which the debtor should not justly be held accountable." Losing a client during a case can be traumatic for the family and attorney alike. Judge Parker's Ibarra opinion provides some good guidance and how to handle this situation. 

 Bloomberg Law has an interesting post about InfoWars Case Spotlights Limits of Small Business Bankruptcy Law and Subchapter V small business chapter 11 filings. The article can be found at https://lnkd.in/gFH7fJE8Persons with questions about Subchapter V should contactJim Shenwick, Esq. 212 541 6224 jshenwick@gmail.com