The 10th Circuit Court of Appeals, in the case of Miller vs. Deutsche Bank National Trust (opens PDF), requires mortgage loan servicers to prove possession of the mortgage note in order to have proper standing to file a Motion for Relief From Stay in bankruptcy court. A Motion for Relief from Stay is a required pleading in bankruptcy court if a secured creditor wants to proceed with foreclosure or repossession, notwithstanding the bankruptcy. The issue in Miller was whether Deutsche Bank was the proper moving party. The court held that there was no evidence in the record sufficient to show that Deutsche Bank was a proper party to bring the Motion for Relief from Stay, and by implication, not a proper party to foreclose on the Miler’s mortgage. (more…)
Archive for the ‘Chapter 13 Bankruptcy’ Category
10th Circuit Requires Proof of Note for Foreclosure.
Friday, February 3rd, 2012
Can You Pay Student Loans in Chapter 13 Bankruptcy?
Sunday, December 18th, 2011But for a showing of undue hardship, student loans are non-dischargeable in bankruptcy; outside of bankruptcy, there are few options for a struggling debtor to find relief from crushing student loan debt. Moreover, student loan debt has no special status in bankruptcy; you cannot “just choose” to pay your student loans ahead of other unsecured debt (e.g. credit cards).
So, what is a struggling debtor to do? Chapter 13 bankruptcy may provide relief to a the student loan debtor under certain circumstances: the chapter 13 can stop collection and garnishment activity, and eliminate other debt problems such as credit card debts and stop a foreclosure; but the debtor will usually emerge from chapter 13 bankruptcy still needing to pay on student loans. (more…)
Why the IRS Took Your Tax Refund Even Though You Filed Chapter 13 Bankruptcy
Tuesday, May 31st, 2011Many debtors and even many bankruptcy attorneys are surprised to find out that the IRS kept a tax refund to pay the debtor’s tax debt notwithstanding the fact that the debtor filed chapter 13 bankruptcy. This situation typically arises for chapter 13 bankruptcies filed between February and May; reason being, most debtors have just filed, or are about to file, their prior year tax return; but if the debtor is going to receive a refund for that year and owes back-taxes, the filing of bankruptcy does not stop the IRS from keeping that refund. (more…)
You May Extend, Amend, Suspend, or Convert, When Life Happens in Chapter 13 Bankruptcy!
Monday, May 30th, 2011Chapter 13 bankruptcy is the most powerful debt relief tool. Clients are often shocked to hear that because they think they are under the control of a trustee for 5 years and cannot live a normal life. That is not true. Sure, chapter 7 bankruptcies can wipe out debt, but chapter 7 bankruptcy can only effectively deal with a limited scope of debt, chapter 13 is far more comprehensive, especially when it comes to stopping foreclosure, paying back taxes, and simply getting your life back on track. However, chapter 13 bankruptcies are a 3-5 year payment plan and, let’s face it, life happens. The good news is you are not stuck; there are options for dealing with life changes during chapter 13 bankruptcy. The goal of bankruptcy is discharge, but there are many paths to the destination. (more…)
2nd Mortgage Lien Strips, It’s All or Nothing in Chapter 13 Bankruptcy?
Sunday, May 15th, 2011Underwater mortgages (house is worth less than the amount owed) are hovering around 25% of all homeowners; yet individuals, and debtor advocates, are perplexed by the rules surrounding inferior mortgages on primary residence in chapter 13 bankruptcy. Chapter 13 bankruptcy allows a debtor to remove the 2nd mortgage (or 3rd, or 4th mortgage) so long as the 2nd mortgage has no secured value. But if the inferior mortgages have so much as $1.00 of secured value, the debtor is stuck with the entire 2nd mortgage; hence, all or nothing.
So, to remove a 2nd mortgage, i.e. 2nd mortgage lien strip, the home (primary residence) must be worth less than the amount owed on the primary mortgage. (more…)
Chapter 13 Bankruptcy Success Tip: Don’t Be Afraid to Fight The Bankruptcy Trustee!
Wednesday, May 4th, 2011A chapter 13 bankruptcy is a payment plan to get back in control of your debt. A chapter 13 is not necessarily designed to pay back your debt in full, you only pay back what you can really afford; also, you can save a home from foreclosure and deal with other debts such as tax debts and student loans more effectively than with other options. As such, chapter 13 bankruptcy is the most powerful debt relief tool. However, because it is a 3-5 year payment plan, a chapter 13 can be difficult to complete.
In preparing for chapter 13, one must understand the role the bankruptcy trustee plays. (more…)
How Do You Assert The Lanning Decision In Your Chapter 13 Bankruptcy Petition?
Monday, December 13th, 2010Question:
Where do I put the Lanning argument in the Chapter 13 Bankruptcy Forms?
Answer:
Short answer is you don’t.
The Lanning decision held that if there is a known change in circumstances regarding the debtor’s income, the court is to consider that change in calculating a debtors disposable income to determine a chapter 13 payment. A chapter 13 bankruptcy includes a means test that is supposed to tell you how much you can afford to pay in your chapter 13 payment plan. However, the means test looks at your prior 6 months of income. (more…)
Tips For Surviving Chapter 13 Bankruptcy – Ditch Cable/Satellite TV!
Saturday, November 6th, 2010A chapter 13 bankruptcy budget is essentially a projected budget and the cardinal rule for expense categories and amounts is that they must be reasonable and necessary. However, the big trick to saving money in and having a successful chapter 13 bankruptcy is that the debtor need not spend the allotted amount in each category.
So, what about ditching Cable/Satellite TV? Depending on your entertainment package, (more…)
