Solicitor General Supports Debtor in Supreme Court
In Countrywide v. Rodriguez, No. 10-1285 (S.Ct.) the United States Solicitor General submitted an amicus brief opposing certiorari and supporting debtor's position that a servicer violates the automatic stay by requiring increased post-petition escrow deposits to cover pre-petition missed payments. NACBA assisted debtor's counsel, Steven Abelson, in his persuasive presentation to the Solicitor General's office resulting in its support.
Supreme Court Denies Certiorari in Negative Equity Case
On October 3, 2011, the Supreme Court denied certiorari in AmeriCredit Financial Services v. Penrod, 10-1443, leaving intact the Ninth Circuit's holding that negative equity is not part of the purchase money security interest in the purchase of a new vehicle. Eight other circuit courts addressing the issue have reached the opposite conclusion. NACBA participated in writing the Opposition to the Cert Petition.
NACBA Files Amicus Brief on Issue of Claiming 100% FMV for Exemption
In the case of In re Masset, No. 11-60 (B.A.P. 1st Cir.) NACBA has filed an amicus brief arguing that pursuant to the plain language of the Bankruptcy Code and the Supreme Court's decision in Schwab v. Reilly, 560 U.S. __,130 S.Ct. 2652 (2010) a debtor may claim an exemption in property in the amount of 100% of the fair market value. The brief further argues that if the trustee believes that the fair market value of debtor's interest in the property exceeds the allowed amount for the exemption, that issue is properly the subject of an evidentiary hearing. Finally, NACBA disputes the trustee's position that post-petition appreciation of a fully exempt is property of the estate.
NACBA is preparing to file amicus briefs in the following cases:
Dehart v. Michael, No. 11-1992 (3d Cir.)
Issue: Whether 1326(a)(2) gives creditors a vested right to funds paid into a confirmed chapter 13 plan. Whether 1302(b)(1) places obligation on trustee to distribute funds collected prior to conversion to 7 or whether 348(e) divests trustee of that responsibility.
In re Maharaj (appellant) No. 11-1747 (4th Cir.)
Issue: Whether the Absolute Priority Rule applies to individual chapter 11 debtors.
In re Flores, No. 11-55452 (9th Cir.)
Issue: Whether under Kagenveama the 5 yr. applicable commitment period applies to above-median debtor with zero or neg projected disposable income.
In re Frazier, No. 11-290 (E.D. Cal.)
Issue: Whether chapter 13 debtor may strip a lien where discharge unavailable.
In re Rolin, No. 11-40950 (Bankr. Kan.)
Issue: Constitutionality of state Bankruptcy-specific exemption scheme.
Calendared for Argument:
Gentry v. Circuit City Stores, No. 10-2418 (4th Cir.)
Issue: Whether lower court erred in finding that "bankruptcy process" provides adequate mechanism for notification and management of claims thereby making certification of employee class unnecessary. NACBA filed an amicus brief in this case. Argument is scheduled for December 6, 2011.
Absolute Priority Rule Issue Certified to Tenth Circuit
The bankruptcy appellate panel in the case of In re Stephens, No. 11-29 (B.A.P. 10th Cir.) has certified the appeal to 10th Circuit. NACBA filed an amicus brief in the BAP.
