The Debtor was in an automobile accident and had not maintained liability insurance. Judgment was entered in state court for negligence, but after filing Chapter 13 the Plaintiff brought a non-dischargeability action alleging that the failure to maintain liability insurance cause a willful or malicious injury.
The Debtor argued that the failure to raise either willfulness or malice in the state court action precluded later raising them in the bankruptcy.
Relying on Brown v. Felsen, 442 U.S. 127, 135, 99 S.Ct.
In both of these cases a Chapter 13 Debtor brought an action to avoid a security interest under 11 USC § 544. The Court held that the rights and powers of a chapter 13 debtor are set out in § 1303 of the Code as follows:
1. Baldwin.PDF
2.
After December 1, 2010, Federal Rule of Civil Procedure 8 (c) no longer required that "discharge in bankruptcy" be plead as an affirmative defense because the Rules Committee felt that the language of 11 U.S.C.
This note discusses the circuit split that is found regarding whether the FDCPA applies to communications from a debt collector to a debtor's attorney between the Third, Fourth, Seventh and Tenth Circuits.
Abstract:
This two part article is an exchange between Prof. Melissa Jacoby and Prof. Anna Gelpern examines the challenge of consumer financial protection and its implications for financial stability. Jacoby illustrates how the channels of production of formal law (non-uniform state law, uniform state law, federal law) fail to coherently reflect the functions of ex post consumer debtor protection. Channels of production shape the market for the services of lawyers and other intermediaries.
Abstract:
This article was written for the Federal Judicial Center's annual symposium for bankruptcy judges. It examines the practical implications of the intersection of the Bankruptcy Code and DOMA. While states provide same-sex couples some or all of the rights and obligations of marriage including those related to creditor-debtor relationships, DOMA prohibits federal courts from recognizing those unions and attendant rights when applying federal law.
Bobby Stanley, now deceased, borrowed $300,000 from the Plaintiff. Following his death, Yow took responsibility for the debt and the Plaintiff agreed to have the original note marked as satisfied and cancelled.
The Court of Appeals held that this was sufficient under N.C. Gen. Stat § 25-3-604 to show the debt was satisfied.
Lewis v Stanley.PDF
Robert and Octavia Jones filed a joint income tax return for the year 2000. After they legally separated, the IRS audited the return and assessed a deficiency, which Robert Jones agreed to discharge through an installment payment plan. When he defaulted, however, the IRS began efforts to collect the deficiency from both Robert and Octavia Jones. More than two years after the IRS first began its collection activities, Octavia Jones requested innocent spouse relief from her tax liability under I.R.C. § 6015(f).
The Fourth Circuit reversed the denial of attorneys fees by the District Court, finding that while only nominal actual damages were awarded, attorneys fees were still allowed.
The Court of Appeals held that while Farrar v. Hobby, 506 U.S. 103 (1992) and Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005) held that when a Plaintiff "received only nominal damages, 'the only reasonable fee is . . . no fee at all.'” Quotiing Farrar, 506 U.S.
As the FDCPA is concerned “with the substance of the transaction as opposed to the form”, the 4th Circuit held that even assuming that the original 2004 debt was a commercial loan, the later 2006 debt, used to satisfy the original obligation, was a consumer loan as it concerned the Plaintiff's personal finances, his personal residence, and was taken out in his own name.
This case may also have value in determining whether a debtor "debts are primarily consumer debts" under 11 U.S.C.
