Blog posts

By Ed Boltz, 27 January, 2012

Law Review: Miller, Michelle- Who Files for Bankruptcy? State Laws and the Characteristics of Bankrupt Households

Abstract:

The characteristics of bankrupt households (such as income and asset levels) vary widely across  states. This paper asks whether these variations can be attributed to state exemption laws or state garnishment laws. Using a new household-level dataset, the author finds that high exemption levels encourage high asset households to file for bankruptcy while high garnishment rates encourage low income households to file for bankruptcy.

By Ed Boltz, 24 January, 2012

Law Review: St. Patrick Baxter, Michael- The Application of Section 502(b)(6) to Nontermination Lease Damages: To Cap or Not to Cap?

Abstract:

Bankruptcy Code Section 502(b)(6) caps a landlord's claim against a debtor-tenant. Courts disagree on whether the provision caps damages for past breaches of non-rent lease covenants, such as a tenant's contractual obligation to maintain and repair the premises. This Article contends that 502(b)(6) caps only those damages authorized under applicable nonbankruptcy law that are triggered by the termination of the lease, regardless of whether termination occurs before or after the petition date.

By Ed Boltz, 24 January, 2012

Law Review: Bruckner, Matthew- Improving Bankruptcy Sales by Raising the Bar

Abstract:

In response to objections causing wasteful, unnecessary and inappropriate delay in the bankruptcy sale context, this article concludes that bankruptcy courts should employ a preliminary injunction-like standard for evaluating objections to bankruptcy sales.   Employing a strict, preliminary injunction-like standard should decrease the possibility that parties-in-interest will introduce an improvident delay into the bankruptcy sale process.  By preventing inappropriate delay, courts will ensure that parties receive an appropriate amount of procedura

By Ed Boltz, 24 January, 2012

E.D.N.C.: In SilverDeer, L.L.C.- Attorneys' Fees for Involuntary Bankruptcy

Summary: Creditors filed an involuntary Chapter 7 bankruptcy for SilverDeer.  On the motion of SilverDeer, the bankruptcy court dismissed the involuntary bankruptcy finding that the pursuant to 11 U.S.C. § 303(b)(1), the claims of the creditors were subject to a bona fide dispute.  Subsequently, the bankruptcy court awarded Howard Jacobson, the manager/member of SilverDeer, his attorney fees and costs incurred defending SilverDeer, pursuant to 11 U.S.C.
By Ed Boltz, 24 January, 2012

Bankr. E.D.N.C.: In re Smithville Crossings, L.L.C.- Motion for Reconsideration under Rule 59(e)

Summary: Following a determination of the appropriate interest rate to pay on a secured claim, the creditor filed a Motion for Reconsideration under Rule 59(e).  The reconsideration of an order, the moving party must show:
  1. An intervening change in controlling law;
  2. New evidence not available at trial; or
  3. A clear error of law or prevent manifest injustice.
In essence finding that the secured creditor was merely seeking to relitigate the issue, the Court denied the Motion for Reconsideration, finding (again) that its previous ruling was  su
By Ed Boltz, 24 January, 2012

Bankr. E.D.N.C.: In re Dexter- § 362(k) Violation for Failure to Turnover Insurance Proceeds

Summary: The Debtors’ home was damaged by Hurricane Irene while they were in Chapter 13.  Their insurance issued a check for damages in the amount of $9,052.93 to the house and a second check for $1,376.54 for personal property, both payable jointly to the Debtors and Chase, the mortgage servicer. The Debtors followed the instructions on Chase’s website for insurance checks in the amount less than $20,000.00, endorsing the check and forwarding it to Chase, believing that since they were current on their Chapter 13 payments, Chase would expeditiously return the money to them
By Ed Boltz, 20 January, 2012

4th Circuit: Carson v. Lending Tree- Unconscionability of Arbitration Clause

Summary: Ms.  Carson appealed the district court’s order compelling arbitration.  The Court of Appeals held that the first step in determining if a dispute is subject to arbitration is determining whether the parties agreed to arbitration.   Finding that Ms.  Carson "affirmatively checked the box indicating that she agreed" to arbitration, the court then turned to whether such arbitration requirement was unenforceable due to unconscionability.  As Ms.  Carson had willing applied for services from Lending Tree, had indicated that she had read,  understood and accepted the arbi
By Ed Boltz, 20 January, 2012

4th Circuit: Strong v. Commissioner of Social Security Administration- Equal Access to Justice Act

Summary: Ms.  Strong was denied Social Security disability benefits by an administrative law judge and appealed to the District Court, which remanded the case finding that the denial was not supported by substantial evidence.  The District Court, however, denied Ms.  Strong’s request for attorneys fees and costs pursuant to the Equal Access to Justice Act ("EAJA") at 28 U.S.C.
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