Summary: CitiMortgage filed the original Proof of Claim in Ms. Bivens’ Chapter 13 case, with the claim subsequently being transferred first to Ditech Financial and then to New Penn Financial, d/b/a Shellpoint Mortgage Servicing. Nearing the completion of her case, … Bankr. M.D.N.C.: Bivens v. NewRez- Misapplication of Payments by Mortgage Servicer Read More »

Summary: Despite its whimsical title, this note takes a rather dim view of the Subchapter V bankruptcies authorized by the Small Business Reorganization Act (“SBRA”), finding particularly problematic the replacement of the Absolute Priority Rule from Chapter 11, which precludes … Law Review: Jonah R. Hall, A Creditor’s Kerfuffle: How the SBRA Harms Creditors in Small Business Cases, 25 N.C. BANKING INST. 595 (2020) Read More »

   In Feldy Boys, LLC v. Polasky (In re Polasky), 221 Bankr. LEXIS 927, Adv No. 2:18-ap-594-FMD (7 April 2021) Judge Delano denied the Debtor-Defendant's request for attorneys fees, but allowed costs of $4,261.03 against the plaintiff.  The adversary proceeding involved a personal guaranty of a lease, and  included counts under §727(c)(d) and (e) as well as §523(a)(5).  Upon prevailing in the adversary itself, the Debtor sought taxation of fees in the amount of $95,970 under §57.105(7) of the Florida Statutes, as the guaranty provided for reimbursement to plaintiff of fees and expenses.  The Court first examined which state's law applies as to taxation of fees to prevailing parties.    The guaranty did not include a choice of law provision.  In determining which state's choice of law provisions to apply, court's use the choice of law rules of the state where the court sits, absent a compelling or significant federal interest.1  Florida's choice of law rule in contract cases is, in the absence of a choice of law provision in the contract, and excluding contracts for performance of services, the law of the state where the contract is made applies.  As to tort cases, the rule is the 'significant relationship' test, the state which has the most significant relationship to the occurrence and the parties.  As the lease at issue was executed in Ohio, the property at issue is located in Ohio, Debtor resided in Ohio when she entered the lease, and the relevant corporations which were parties to the lease were Ohio corporations, and the lease that was guaranteed provided that it would be construed under Ohio law.  Thus the court found that Florida choice of law provisions would determine that Ohio law would apply in determining the right to prevailing party fees.  Under Ohio law parties to litigation are responsible to pay their own fees absent a statutory provision to the contrary, where there has been a finding of bad faith, or where the contract provides for fee shifting.  As there was no provision in the lease or guaranty providing for the losing party to pay the prevailing party's fees, and Defendant did not cite any fee-shifting statute or allege bad faith, the Court denied the request for taxation of fees.  However the court found that the Debtor was entitled to reimbursement of costs under Rule 7054(b)(1) of the Fed. R. of Bankr. Proc.  This rule allows costs to the prevailing party except where a statute of the United States or the Rules provide to the contrary.  The costs allowed under such rule are listed in 28 U.S.C. §1920.  The court noted a 'strong presumption' in favor of awarding costs to the prevailing party in such suits, unless such costs are not within those allowed under §1920, were not reasonably necessary to the litigator, or the losing party is unable to pay.2    The costs sought by the Debtor included fees paid to transcribe the meeting of creditors, the Rule 2004 examinations of Debtor and her spouse, the deposition of Plaintiff's representative, the depositions of two real estate agents, and the two day trial.  Debtor attached invoices for each of these transcripts.  Fees for transcripts is an allowed expense under §1920.  While some of the transcripts were obtained prior to the filing of the complaint, the court found that such transcripts were obtained with a view to defending Plaintiff's claims against her.    The court denied the request for fees but allowed the request for costs in the amount of $4,261.03.Parties need to be aware that they may well be required to pay the debtor for their costs if they fail to prove their case, either under 11 U.S.C. 523(d) in the case of a complaint filed under §523(a)(2); or §57.105(7) for cases where Florida law determines taxation of fees to prevailing parties; or costs under the statutes cited in this case; and factor this risk into any decision to file an adversary proceeding against a Debtor.  1 In re Palm Beach Finance Partners, L.P., 2014 Bankr. LEXIS 5418, 2014 WL 12498025 (Bankr. S.D. Fla. 2014).↩2 In re Amodeo, 2019 Bankr. LEXIS 4108, 2019 WL 10734046, at *4 (Bankr. M.D. Fla. 2019).↩Michael Barnett, Esq.Michael Barnett, PA506 N Armenia Ave.Tampa, FL 33609-1703813 870-3100https://hillsboroughbankruptcy.com  

A Bankruptcy Trustee may not recover payments made to a landlord concerning commercial rent arrears or to a supplier, on or after March 13, 2020, resulting from workouts before the bankruptcy filing,  under new Section 547(j) of the Bankruptcy Code.   These changes were made pursuant to the Consolidated Appropriations Act of 2021.  Congress made these changes to the bankruptcy code in an effort to encourage commercial landlords and suppliers to engage in workouts with tenants and customers due to the pandemic, by mandating that these payments would not be deemed preferential, if they were made after March 13, 2020.  The new law will remain in effect for two years, ending on December 27, 2022.  These changes to the law will prevent Chapter 7 bankruptcy trustees from commencing preference actions against commercial tenants or suppliers that meet the above requirements of the law. My Law Firm has been involved in many workouts where our clients have raised the issue of whether accommodations given to debtor(s) can be recovered by bankruptcy trustees if those debtors later file for Chapter 7 bankruptcy.  Although the bankruptcy code did provide defenses before the law change, such as the ordinary course of business and/or the new value exception to a preference, these law changes now provide certainty against preference actions in these types of workouts. If you have questions regarding preference actions, you should contact Jim Shenwick at (212) 541-6224 or jshenwick@gmail.comto discuss the facts or strategies involved in those cases.     

Summary: Pangea obtain an arbitration award against Mr. Lakian, who, on that same day, transferred his interest in real property located in Highlands, North Carolina, to the Eagle Ridge Living Trust, for which he was a trustee. Following confirmation of … N.C. Ct. of App.: Pangea Capital v. Lakian- Property Must be Residence for Homestead Exemption Read More »

Summary: Ms. Carter brought suit against her bank, Capital One, for complying with an IRS levy by taking $1,279.41 from her account, arguing that Capital One had violated the FDCPA. Finding that “an obligation to pay that ‘arises solely by … W.D.N.C: Carter v. Capital One- Complying with IRS Levy is not Debt Collection Read More »

Abstract: On April 1, 2021, the Biden Administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper collects the leading arguments for and … Law Review: Jackson, Howell Edmunds and Mark, Colin, May the Executive Branch Forgive Student Loan Debt Without Further Congressional Action? (April 5, 2021). Read More »

How Can a Bankruptcy Provide a Reputable Defense against Lawsuits? Filing For Bankruptcy Relief Can Stop Creditor Harassment In Arizona Most debt problems result in a lot of harassing phone calls and emails. You get to the point that you don’t want to answer your phone anymore because you know that it might be a creditor. You wish you could just ignore it and make it go away, but the calls just don’t stop. You start to think about whether you should file for bankruptcy. If you don’t come to the decision to file for bankruptcy early enough, the calls might turn into something more. You might actually be subject to a lawsuit, a foreclosure, or a repossession. You might think that filing for bankruptcy is no longer an option at that point. But it is. Here’s how filing for bankruptcy can prove to be a good defense against a lawsuit or other legal proceeding: The Automatic Stay When you file for bankruptcy, you trigger an automatic stay. Under the automatic stay, your creditors are prohibited from contacting you about your debt or from taking any action against you. The automatic stay will not keep creditors at bay forever, but it will put an immediate end to any action against you. You’ll be able to breathe a sigh of relief from the constant harassment, and you’ll be able to work with your Gilbert bankruptcy attorney and other advisers to figure out a way forward if you are facing other legal action. Any lawsuit that is pending against you will be put on hold with the automatic stay. However, if the debt is not discharged in the bankruptcy, the lawsuit can resume. Your creditor can also petition the bankruptcy court to continue with its lawsuit, and the court may grant permission. Talk to your bankruptcy attorney in Gilbert about your options. Chapter 7 Discharge If you qualify for Chapter 7 bankruptcy in Mesa, you may be able to put an end to any lawsuit with a Chapter 7 discharge. Chapter 7 allows you to discharge all unsecured debts, such as credit cards, personal loans, and medical bills. It covers basically anything that is not backed by an asset, such as your home or your car. If one of your unsecured creditors is suing you, you may be able to resolve the problem by filing for bankruptcy. If your debt is discharged in a Chapter 7 bankruptcy, the creditor will have no more legal footing to sue you. You will be freed of your obligation for the debt. Chapter 13 Restructuring If you don’t quality for Chapter 7 bankruptcy or you have debts that can not be included in Chapter 7, you may want to consider Chapter 13 bankruptcy. Under this bankruptcy filing, your debts would be restructured into a repayment plan that you can afford. At the end of the repayment plan, which is three to five months, some of your remaining debts may be discharged. Chapter 13 bankruptcy may be able to help you save your home from foreclosure. The amount you owe can be included in the repayment plan, giving you an opportunity to catch up on the payments and save your home. Always talk to a Gilbert bankruptcy lawyer about the kind of debt you have and the potential legal proceedings you are facing to learn how bankruptcy may be able to help. Your attorney can help you decide whether Chapter 7 bankruptcy or Chapter 13 bankruptcy will get you the best results, including the maximum debt relief. Your attorney will guide you through your legal options to help you get the best outcome possible. Call My AZ Lawyers today to schedule a consultation with an experienced Arizona bankruptcy attorney to learn more about your options for debt relief through bankruptcy. Our attorneys represent clients seeking protection through both Chapter 7 bankruptcy and Chapter 13 bankruptcy, and after a thorough review of your finances, we’ll help you decide which will give you the most benefits. We can help you get relief from creditor harassment and possibly even from legal action. We represent clients throughout the Phoenix area. Call My AZ Lawyers today to learn more about how bankruptcy may be able to help you get relief from debt or put an end to a lawsuit or other legal action against you.   Arizona Offices: Mesa Location: 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: (480) 448-9800 Email: info@myazlawyers.com Website: https://myazlawyers.com/ Glendale Location: 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: (602) 509-0955 Tucson Location: 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: (520) 441-1450 Avondale Location: 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 Office: (623) 469-6603 The post How Can a Bankruptcy Provide a Reputable Defense against Lawsuits? appeared first on My AZ Lawyers.

If you are overwhelmed by debt or are facing a home foreclosure, you could be considering filing for bankruptcy. However, once you have made this choice, you probably do not know how to start the process. To understand what is required, contact an experienced Bucks County bankruptcy attorney at Young, Marr & Associates. Below, we […] The post How Do I File For Bankruptcy in Philadelphia? appeared first on .

This article was first reported at Courthousenews. The url is https://www.courthousenews.com/drivers-sue-over-sky-high-nyc-taxi-license-costs/---------------------BROOKLYN (CN) — Taxi cab drivers are seeking more than $2.5 billion from the New York City Taxi & Limousine Commission, saying they paid artificially inflated prices for their taxi medallions, collectively losing hundreds of millions as a result. The class action RICO suit, filed Tuesday in the Eastern District of New York, accuses the TLC of running a 13-year scheme to defraud those who bought medallions, which are the metal plates required for taxi drivers to work legitimately. New York City made $855 million from auctioning off medallions and charging a 5% transfer tax on each transaction, the 105-page complaint says. Because of the scheme, prices rose drastically under former New York City Mayor Michael Bloomberg, a named defendant in the suit. Between 2004 and 2014, costs jumped from $200,000 in 2001 to more than $1 million in early 2014. The sky-high prices, drivers were reassured, were worthwhile. Commission representatives told them that the medallions were as “good as gold,” the suit claims, and that the purchase was secure because TLC has a “monopoly” over taxis in New York. The first named plaintiff, Alec Soybel, says that TLC Chief Executive Officer Matthew Daus had told him that buying a medallion was a “once-in-a-lifetime opportunity” to become a middle-class American and enjoy a “worry-free retirement.” “Daus further stated that purchasing a medallion was ‘what the American dream is all about,’” the suit says. The suit further alleges that TLC was aware that inflated prices were plunging drivers underwater. According to the suit, an internal 2010 report by a TLC policy analyst found that medallion owners were barely earning enough to pay for their medallion loans and operating costs. The report estimated that a driver would have to earn more than $91,000 annually to service a 15-year mortgage on the badge, plus costs. “Thus, by 2010, it was already clear that medallions were grossly inflated, and that medallion loans at such inflated prices were unsustainable,” the complaint reads. But TLC did not release that report publicly until June 2019. Now, drivers say they are at a loss. Soybel is “saddled with a suffocating debt that he has no way of ever paying off,” according to the complaint. Last year, New York Attorney General Letitia James launched an investigation of the TLC, accusing the commission of charging inflated prices and forcing drivers who bought them to clock obscene hours to make ends meet. “What’s worse is that the TLC knew their actions were affecting some of the city’s most financially exposed immigrant families,” the attorney general said at the time.James dropped the matter in February of this year, saying that a lawsuit could take years, and that a bailout for the drivers would be a better option. State legislators have also discussed a potential bailout. The drivers are picking up where she left off. “Our lawsuit seeks to finish the job that AG James started,” said Jon Norinsberg, attorney for the taxi drivers, in an email to Courthouse News. Norinsberg said the attorney general “did a great job exposing the fraudulent and deceptive practices engaged in by the TLC and City of New York,” and that the plaintiffs’ own investigation confirmed and expanded upon those findings. “We are seeking to recover full restitution for all medallion owners, many of whom owe hundreds of thousands of dollars because of TLC’s fraudulent scheme,” Norinsberg said, “which directly led to the collapse of the medallion market.”Neither the TLC nor New York City’s legal department immediately responded to requests for comment on Tuesday afternoon.