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Last week, the United States Supreme Court granted the writ of certiori in the case of Bullard v. Hyde 
Park Savings Bank, which involves the issue of whether an order denying confirmation of a chapter 13 plan of reorganization is a "final judgment" and therefor appealable.
Case Below - BAP and First Circuit
In the case below, the chapter 13 debtor appealed the bankruptcy court's order first to the First Circuit's Bankruptcy Appellate Panel (BAP) under both 28 U.S.C. § 158(a)(1) [for a "final order"] and (a)(3) [with leave of court for an interlocutory order]. The BAP agreed to hear it as an interlocutory appeal and upheld the Bankruptcy Court's order denying confirmation of the chapte 13 plan.
The debtor next filed a notice of appeal to the First Circuit and also requested that the BAP certify the matter for a direct appeal to the First Circuit pursuant to 28 U.S.C. § 158(d)(2). The BAP denied the motion for a direct appeal and the First Circuit issued an order to show cause why the appeal should not be dismissed on the basis the BAP's order affirming the Bankruptcy Court's order was not a final order as required by 28 U.S.C. § 158(d)(1). The Court noted that it had previously held that a BAP's order could not be a final order unless the underlying bankruptcy court order was a final order.
The First Circuit, dismissed the appeal for lack of statutory jurisdiction pursuant to 28 U.S.C. § 158(d)(1) based on its holding that an order denying confirmation of a chapter 13 plan is not a final order. The First Circuit explained that the issue presented was an issue of statutory jurisdiction and not an Article III Constitutional issue.
Circuit SplitIn its decision, the First Circuit noted that the Sixth, Second, Eighth, Ninth, and Tenth Circuits previously that an order denying confirmation is not final if the bankruptcy case has not been dismissed and the debtor remains free to propose another plan. On the other hand, it noted that the Fourth, Third, and Fifth Circuit held otherwise - that such an order can be final even if the underlying bankruptcy case has not been dismissed.
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ReferencesA Primer on the Jurisdiction of the U.S. Courts of Appeals - Federal Judicial Center 2009
Final Analysis: Determining Appealability of a Judgment or Order
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Last week, the United States Supreme Court granted the writ of certiori in the case of Bullard v. Hyde
Park Savings Bank. The case presents the issue of whether an order denying confirmation of a chapter 13 plan of reorganization is a "final judgment" and therefore appealable.
Case Below - BAP and First Circuit
In the case below, the chapter 13 debtor appealed the bankruptcy court's order first to the First Circuit's Bankruptcy Appellate Panel (BAP) under both 28 U.S.C. § 158(a)(1) [as to a "final order"] and (a)(3) [with leave of court for an interlocutory order]. The BAP agreed to hear the appeal under (a)(3) as an interlocutory appeal and upheld the Bankruptcy Court's order denying confirmation of the chapter 13 plan.
The debtor next filed a notice of appeal to the First Circuit and also requested that the BAP certify the matter for a direct appeal to the First Circuit pursuant to 28 U.S.C. § 158(d)(2). The BAP denied the motion for a direct appeal and the First Circuit issued an order to show cause why the appeal should not be dismissed on the basis the BAP's order affirming the Bankruptcy Court's order was not a final order as required by 28 U.S.C. § 158(d)(1). The Court noted that it had previously held that a BAP's order could not be a final order unless the underlying bankruptcy court order was a final order.
The First Circuit, dismissed the appeal for lack of statutory jurisdiction pursuant to 28 U.S.C. § 158(d)(1) based on its holding that an order denying confirmation of a chapter 13 plan is not a final order. The First Circuit explained that the issue presented was an issue of statutory jurisdiction and not an Article III Constitutional issue.
Circuit SplitIn its decision, the First Circuit noted that the Sixth, Second, Eighth, Ninth, and Tenth Circuits previously that an order denying confirmation is not final if the bankruptcy case has not been dismissed and the debtor remains free to propose another plan. On the other hand, it noted that the Fourth, Third, and Fifth Circuit held otherwise - that such an order can be final even if the underlying bankruptcy case has not been dismissed.
ReferencesA Primer on the Jurisdiction of the U.S. Courts of Appeals - Federal Judicial Center 2009
Final Analysis: Determining Appealability of a Judgment or Order
Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com
Often Oregon debtors in a Chapter 13 bankruptcy will hit a rough spot during their case and request a hardship discharge rather than seek conversion to Chapter 7. Conversion and hardship discharge are not one in the same. There are specific requirements that must be met before you can even be considered for a hardship discharge. The standards for conversion are often much easier to meet.
In order to obtain a hardship discharge, your Oregon bankruptcy attorney must first file a motion requesting the hardship discharge and outlining specifically as to why you would qualify. The first step in the analysis is whether or not your Plan has been confirmed. If it has not been confirmed by the Oregon Bankruptcy Court, you are not eligible for hardship discharge.
The Oregon Bankruptcy Court will allow a hardship discharge only if three elements are present:
- You failed to complete your plan payments due to circumstances for which you are not to blame. It is not enough to have simply lost your job, you must show that the job is lost and that it is unlikely that you will be employed again. An injury will probably not compel the Court to grant your Motion unless the resulting disability is near permanent. In conversion, it is usually enough that you have been laid off or that an injury is now preventing you from working.
- Based on what you have already paid into the plan, your unsecured creditors have received at least what they would have received if you had filed for Chapter 7. For example, if one of your vehicles would have been unprotected in a Chapter 7, you must show that the value of that vehicle has already been paid back to your unsecured creditors. In conversion, you could still convert and simply pay the unpaid equity to the Chapter 7 Trustee.
- Modification of your plan is not practical. Meeting this requirement may be difficult to meet if you are currently paying off secured loans through your Chapter 13 case. When you are seeking a hardship discharge, it is fair for the Court to ask whether you could make even a small payment per month if you surrendered one of your vehicles. This would never come up in conversion.
Ultimately, it may be a great deal easier to convert your case rather than seek a hardship discharge. While conversion means one more 341 hearing and additional fees to your bankruptcy attorney, you can take comfort in knowing that your time and effort devoted to conversion will actually result in discharge.
The original post is titled Chapter 13 Bankruptcy Hardship Discharge in Oregon , and it came from Portland Bankruptcy Attorney | Northwest Debt Relief .
This may be the season for giving. However, the city of Chicago is looking to do some taking. What I’m talking about is an expanded effort to attack those who have outstanding parking tickets. If you have three or more outstanding parking tickets, you are subject to the boot. If you are unable to pay+ Read More
The post Are You Going To Get The Boot This Christmas? appeared first on David M. Siegel.
A Florida based flea market has filed for Chapter 11 bankruptcy due to a three-year lawsuit with Coach over alleged sales of counterfeit items.
Visitors Flea Market filed for bankruptcy protection in part to protect an awaiting sale of the entire business for $5.1 million to Treasure Island Real Estate Partners. After the death of founder and owner Delroy Josephs in November 2013, family members have disagreed over the sale of the business.
Federal agents raided the flea market in December of 2011, as per documents filed in the Coach lawsuit. Coach claimed over 500 counterfeit purses and other items were being sold at stands throughout the market.
Coach is seeking maximum damages for alleged willful violation of trademark laws: each violation could potentially cost up to $2 million a piece.
Investigators for the leather goods company toured the Visitors Flea Market months before the raid; they handed out letters ordering vendors to stop selling the alleged counterfeit merchandise.
Coach accused Josephs of knowing about the knockoffs being sold, but he denied the allegations. According to bankruptcy documents, a settlement agreement was signed by an attorney for Josephs’ estate six months after his passing. The settlement amount was not revealed.
Julio Batista, one of the market’s vendors, signed an affidavit in 2011 that he witnessed a salesman distributing counterfeit Coach purses; the man was identified as the “Chinese Man.” Batista claimed he did not know the items were knockoffs.
“The items displayed at my booth were sold to me through a Chinese Man that comes weekly to the flea market and sells these items in cash,” according to Batista’s affidavit. “This is a very common type of business for a small flea market business.”
Two companies related with the market specifically filed for bankruptcy: the owner and operator, Visitors Flea Market Inc., and a separate leasing company that rented out over 250 vendor booths.
Visitors Flea Market provided a general range of its debt in filing documents—between $1 million and $10 million.
The post Coach Lawsuit Leads to FL Flea Market Bankruptcy appeared first on The Bankruptcy Blog.
Two of the most difficult and stressful legal processes that individuals participate in are divorce and bankruptcy proceedings. Unfortunately, as lives are upturned and finances stretched, one often closely follows the other.
Such was the case in a recent case in the United States Bankruptcy Court for the Western District of Michigan.
A husband and wife (both Michigan residents) used equity from property owned by the wife - prior to and during the marriage - to finance a roofing repair business started by the husband in Florida. To accomplish this, the wife quit-claimed her interest in the property to herself and the husband. They then refinanced the property and borrowed $200,000 from the lender. The loan funds were used to pay off the wife's original mortgage on the property ($120,000), pay down the husband's credit card debt and fund the new business.
They then agreed that the husband would make monthly mortgage payments on the new loan until the payments equaled the amount of the original mortgage - $120,000. They subsequently refinanced the loan with two new lenders. Shortly thereafter the husband's business failed, and the husband and wife started divorce proceedings in 2011. Read More ›
Tags: Chapter 7, Western District of Michigan
On December 3, 2014 New York State Governor Andrew M. Cuomo announced a series of new regulations aimed at curbing debt collection abuse in the state.
“Here in New York we will not tolerate debt collectors who wrongfully take advantage of consumers,” Governor Cuomo said. “That’s why we’re rolling out tough new regulations that protect borrowers and help crack down on illegitimate debt collection practices. These new tools and disclosures will protect New Yorkers across the state, and I am pleased that our administration is leading the way on this issue.”
The new regulations, which take effect on March 3, 2015, will force debt collectors to provide consumers with a series of disclosures and rights. Designed to supplement the consumer protections in the Fair Debt Collection Practices Act (“FDCPA”) and the New York General Business Law, these new reforms include:
- Improved Disclosures and Debt Information
- Protections Against Collection of “Zombie Debts”
- “Substantiation” of the Debt Allegedly Owed
- Written Confirmation of Settlement Agreements
- Opportunity for Email Contact
According to the press release:
In 2014 alone, New York consumers have filed more than 20,000 complaints regarding debt collection practices. They report that debt collectors make harassing, aggressive calls to collect debts and sometimes attempt to collect an incorrect amount of money and even contact the incorrect person. Problems are especially frequent in the rapidly growing debt buying industry, where companies purchase defaulted debts for pennies on the dollar. To keep costs down, debt buyers often maintain shoddy records and do little to verify that they are contacting the correct debtor or for the correct amount of money. In addition, the same debt portfolios may be sold to multiple buyers, and without clear records, even consumers who have paid off a debt may be pursued for the same debt by a different collector.
With any luck, these new debt collection reforms will help New Yorkers by providing us all with much-needed additional rights and protections against collection harassment.
New regulations can be found here: http://www.dfs.ny.gov/legal/regulations/adoptions/dfsf23t.pdf
New York Department of Financial Services can be found here: http://www.dfs.ny.gov/consumer/debt-collect.htm
Governor Cuomo’s press release is here: http://www.governor.ny.gov/news/governor-cuomo-announces-new-regulations-against-abusive-and-deceptive-debt-collection
Photo credit: WorldSeriesBoxing
Most people have no idea how much they spend on health care. When you file bankruptcy, one of the forms for the bankruptcy court is called Schedule J. Schedule J is your budget. As a bankruptcy lawyer, I spend a lot of time talking to people about their budgets. And most people in Northern Virginia […]The post You spend more than you think on health care by Robert Weed appeared first on Robert Weed.
If you are thinking on spending extravagantly on Christmas, just remember that you may lead yourself toward the verge of filing bankruptcy. One of the main causes of bankruptcy filings is overspending via credit cards. There is no greater use of credit cards than during the month of December. Many people don’t realize that high-volume+ Read More
The post Christmas Spending With An Eye Toward Avoiding Bankruptcy appeared first on David M. Siegel.
The Consumer Financial Protection Bureau, the government consumer protection watchdog, is taking action against two companies that allegedly scammed student loan borrowers.
According to lawsuits filed on December 11, 2014 against College Education Services LLC and Student Loan Processing.US, the companies deceived people into paying upfront fees for federal student loan repayment benefits that are available for free.
College Education Services LLC, claims the lawsuit filed by CFPB and the Florida Attorney General, violated the Telemarketing Sales Rule (TSR), the Consumer Financial Protection Act (CFPA) prohibition of unfair, deceptive or abusive acts or practices and the Florida Deceptive and Unfair Trade Practices Act. The company allegedly charged unlawful advance fees, falsely promised lower federal student loan payments, and promised relief from student loan default or administrative wage garnishment much more quickly than was possible.
Student Loan Processing.US (a fictitious business name of Irvine Web Works, Inc.), sued by CFPB in California federal district court, allegedly falsely represented that the company was affiliated with the U.S. Department of Education. CFPB claims that the company also charged unlawful advance fees, and deceived student loan borrowers about the costs and terms of the company’s services.
This is the sort of thing that makes a lawyer who helps people with student loan problems very happy – the government taking action to bring down student loan debt relief companies that promise the moon and stars in return for a steaming pile of nothing.
There’s nothing wrong with charging a fee for student loan resolution services, but not if all you’re doing is filling out forms that the government makes available at no charge. There’s a complete analysis of your financial situation that needs to take place, along with a discussion of your options. From there, you should get reliable guidance on the best course of action given your situation.
Getting you out of default on your federal student loans is no simple feat, and can be done in a variety of ways depending on your goals and circumstances. Different federal student loan repayment options are available, but which one is best for you requires a pretty deep dive into your current financial reality. Depending on your point of view, that may be something that constitutes the practice of law and requires a license.
Most student loan lawyers like me charge a fee to analyze your situation, then set you free to take action based on the results of that analysis. If your problem is something that requires my help, the analysis fee gets credited towards your legal fees.
But making you spend hundreds – if not thousands – of dollars to prepare a simple form and send it into the U.S. Department of Education or your federal student loan servicer? Clearly, there’s no value in that and should be punished. As for the part about falsely representing that you’re somehow affiliated with the U.S. Department of Education, that’s just wrong.
The only problem with the CFPB actions? That the proposed Consent Order in the Florida case provides for a fine of $25,000 and a permanent bar against College Education Services LLC or any of its owners from working in the student loan resolution field again. Seems to me that the company made a lot more than $25,000 in connection with its practices, so it’s a slap on the wrist.
Still, it’s a start.
CFPB press release can be found here: http://www.consumerfinance.gov/newsroom/cfpb-takes-action-to-end-student-debt-relief-scams/
The College Education Services proposed consent order can be found at:http://files.consumerfinance.gov/f/201412_cfpb_consent-order_the-college-education-services.pdf
The State of Florida joined the Bureau in the lawsuit against College Education Services. More information will be available at:http://www.myfloridalegal.com/newsrel.nsf/newsreleases
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