What are the consequences of a secured lender’s failure to comply with R. 3002.1 in a prior case when the debtor files again? Significant, it seems. The issue came before the SD Texas bankruptcy court in Alvarez, No. 22-33889 (Bankr. S.D. Tex. Aug. 9, 2023) when the debtor objected to the mortgage claim of the […]
Rule 41 Threatens Strike Out
I was the third attorney on this lien avoidance matter. Instead of it being “third time’s the charm”, it came close to being “three strikes and you’re out.” All because of FRBP 7041. One This was the set up: original counsel filed a number of lien avoidance actions, including the one against a landlord with […]
Lenders Can’t Hide From Misapplication of Mortgage Payments
Who knew 20 years ago how apparently hard it is to account for money paid to you? Even if accounting for money was your business? Today’s raft of mortgage accounting issues were not ones I foresaw when I became a bankruptcy lawyer. Yet every day we encounter cases where the foreclosure notice follows the “all […]
Rule 3002.1 And The Tangled Web of HOA Assessments
The Hadfeg decision was delivered to me in response to a standing search for bankruptcy decisions involving FRBP 3002.1. But multi strands of legal theories run through this one. The questions, answered and unanswered, are tantalizing. The facts are thus: Prepetition HOA dues scheduled for $5000, while HOA later claimed it was $33,000. No proof […]
Don’t Skimp On Service When Your Client’s House Is On The Line
Is the Chapter 13 trustee jeopardizing the benefits to my client of Rule 3002.1 by sloppy service? Unwilling to expend more than a single postage stamp to effect notice? Just going through the motions here? The short answer is: I don’t know yet. But the issue stood out when, for reasons that are yet inexplicable, […]
Direct Mortgage Payments: Inside, Under, Or Outside The Plan
Are post petition payments on the debtor’s mortgage “under the plan”? Not in the view of one judge. Direct payments on a a residential mortgage loan are not “payments under the plan” for purpose of Bankruptcy Code § 1328(a), Thus Judge Thomas Perkins struck back at the cases that have used failure to maintain mortgage payments […]
Battle On When Bank Back Tracks On Home Loan Balance
It’s war, after all. Remember the office pool I created following the lender’s statement under FRBP 3002.1 that the loan was fully current? We were betting on how long after the Chapter 13 discharge it would take Wells Fargo would screw up the debtor’s home loan account. Did anyone out there pick less than 30 […]
