Tag: Trustee

4th Cir.: Gold v. Robbins- Commission for Chapter 7 Trustee

Summary:

Trustee Gold requested a trustee commission, pursuant to 11 U.S.C. § 330(a)(7), based on the percentages set forth in § 326(a), of $17,254.61. The bankruptcy court, finding that Gold had failed to timely complete his duties, reduced the fee to $8,020.00, based on his reasonable hourly services.

The Court of Appeals started from finding that BAPCPA added § 330(a)(7) and instructs that, “[i]n determining the amount of reasonable compensation to be awarded to a trustee, the court shall treat such compensation as a commission, based on section 326.” (Emphasis added.) It contrasted the “shall” of § 330(a)(7) with the “may” used elsewhere in § 330(a).… Read More

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Law Review: Sousa, Michael D.- A Casus Omissus in Preventing Bankruptcy Fraud: Ordering a Search of a Debtor’s Home

Abstract:

Most individual debtors file for bankruptcy relief with honest intentions. Nonetheless, there is also an underside to the American bankruptcy law system that often goes unreported and ignored in the scholarly literature, namely, the commission of fraud by debtors who seek protection under the Bankruptcy Code. One of the ways in which fraud upon the bankruptcy system occurs is when debtors intentionally conceal assets from the bankruptcy process. Indeed, reported bankruptcy court decisions are rife with examples of debtors attempting to hide or shield assets from their creditors. Debtors who are discovered concealing assets are subject to certain civil remedies, such as the dismissal of their bankruptcy case or the denial of the discharge of their preexisting indebtedness.… Read More

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Book Review: Various Authors- Strategies for Consumer Bankruptcy Trustees

Summary:

This is another in the serious of the Inside the Minds books from Aspatore Books, here attempting to provide perspective from experienced Chapter 7 and Chapter 13 Trustees on how to administer consumer bankruptcy cases. It consists of five articles or essays about the duties and responsibilities of a Trustee, with some additional generic advice about how to run a Trustee’s office of practice.

This book is very slight- In total it has only 133 pages, of which 56 pages are forms, which are likely only of local and, also not being electronic, little practical use.

And while the description of the book discusses how a Trustee should “act as the neutral ombudsman in the debtor versus creditor debate”, the articles are overwhelmingly skewed in the direction discovering Debtor fraud or undisclosed assets.… Read More

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4th Circuit: McDaniel v. Blust- Liability of Trustee’s Agents

Summary:

The former officers of EBW Laser, Inc., which has been the subject of a fair bit of litigation in its bankruptcy in the Middle District of North Carolina, brought a complaint against the Chapter 7 Trustee’s law firm and several individual attorneys at the law firm, as well as the accountant for EBW Laser, as they allegedly improperly obtained the officers’ tax return in an attempt to show preferential transfers and/or fraudulent conveyances.  The case was originally brought in state court, but then removed by the Defendants to federal district court, where, following the recommendations of the magistrate,    the complaint was dismissed as to the Attorney Defendants and remanded to state court as to the Accountant Defendant, on the basis of the Barton v. Read More

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N.C. Supreme Court: In re Vogler Realty- Review of Attorney’s Fees for Foreclosure Trustee by Clerk of Court not Authorized

Summary:

In foreclosing on a Deed of Trust, the Trustee was paid  costs and expenses consisting of a commission, pursuant to N.C.G.S. § 45-21.15(a),  of 5% of the highest bid and Trustee’s attorneys fees of 15% of the outstanding promissory note on which behalf he was acting.  This resulted in third lien-holder receiving only partial payment and the fourth lien-holder receiving nothing.  The third lien-holder filed a motion with the Clerk of Superior Court arguing that under N.C.G.S. § 32-61,  the Clerk was authorized to determine the reasonableness of a “fiduciary or trustee” fees.  The Clerk agreed, reducing the Trustee’s fees substantially.… Read More

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