As a consumer
bankruptcy professional and a subscribed member of The
Bankruptcy Academy (BankruptcyAcademy.org) you get free
membership in the Bankruptcy Academy Listserv.
This is a network of
lawyers across the country, most of whom own and use one
or more of Morgan
King's books, and
who practice consumer bankruptcy law under BAPCPA.
However, even if you do not use King's books the Listserv
has important benefits for consumer bankruptcy
professionals.
BENEFITS
EYE
ON CASES
The
Academy's Eye
On Cases
will periodically send out on the Listserv directly to
your PC briefs on important recent cases to help keep you
up-to-date on emerging issues and case law
developments.
SHARED
MESSAGES
With
one click you can send
an email message to all of the
members
on
the listserv, everywhere in the U.S. You may send all
members news and cases you feel are noteworthy, and pose
questions about points of law and procedure. Others may
at their discretion respond to your postings, sharing
their knowledge, experience and insight - see example
exchange at right.
You
may reply
to a message
sent by any other member. When you post your response or
message it will automatically be sent to all other
members on the list.
This
is the greatest way to keep
in touch
with your professional colleagues across the nation.
Learn from their experience, and share your
own.
BOOK
UPDATES
As a
subscribing member, you will receive
updates
and announcements
posted by Bankruptcy Media, referenced to the respective
sections of Morgan King's books, including King's
Guide to Practice, King's Discharging Taxes,
King's Fees & Ethics in Consumer Bankruptcy
Practice, King's Digest of BAPCPA Cases, and
King's Legal Guide to
Offers-in-compromise.
A
LIBRARY OF ARCHIVED MESSAGES
All
Eye on Cases updates, messages and responses are archived
and may
be searched by key word, topic, or
member.
This is a whole library of insightful information at your
fingertips.
TO GET ON THE
LISTSERV
1.
First
join the academy
To participate you must
first join The Bankruptcy Academy. Membership is only
$10.95 per month. You may elect to be automatically
debited on a monthly or annual basis.
2.
Then register for the Listserv
Once you have join the
Academy, go to the Members' Only page using your I.D. and
password, and click on "Register For the Listserv" link.
There is no additional charge for registration on the
listserv.
"You
have given us a forum in which we can compare results in
different districts. I think that subscribing and
participating in Morgan King's List Serve is a necessary
part of the due diligence required of all bankruptcy
attorneys. Plus it helped me win a case that everyone
though was not winable. Keep it up." - Marguerite Kirk,
Board Certified Consumer Bankruptcy Attorney, Bedford,
TX
TIPS
ON USING A LISTSERV
By
Steven G. Klesner,Iowa City, IA
Some
people don't like to read all of those listserv messages
that can overwhelm the inbox. I'll pass on a few
tricks I learned in being on the NACBA listserv that kept
my inbox from getting jammed up, and turned those
messages into a quick issue primer.
1.
Create a subfolder to the inbox. Make a rule that all
messages coming from "AcademyListserv" get immediately
shunted to that folder.
2.
If you aren't using it already, go to Google's website and
download the free Google Desktop application. It will
index your hard drive, and even does network drives.
All of your emails will get indexed as well.
3.
When you want to research an issue, open Google Desktop, and
to search discussions on the listserv on, say, §1328
issues, type in "UpdateForum" and "1328."
It
did not take long before I had tens of thousands of NACBA
messages. They did not clog my inbox. I could
find insightful discussions of all sorts of topics this
way.
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EXAMPLES OF
EXCHANGES ON THE LISTSERV
A
LIST-MEMBER SUBMITTED THIS QUESTION:
1. Above
median Income Debtor does not pass means test so he files
a Chapter 13 (5 year plan). Has 35K in credit cards. He
has the income to pay 100% to the unsecured creditors.
The automatic stay stops the pending foreclosure on his
home. His intent however is to surrender his home which
is encumbered by a 1st and 2nd mortgage totaling $390K.
At the time of the 341 meeting the bank has not yet
foreclosed but we expect them to in the near future so we
do not know what the deficiency will be. At some point we
will need to amend his Chapter 13 Plan to account for the
mortgage deficiency. Both mortgagees filed a Proof of
Claim. Should an objection to the proof of claim be
filed? If no objection is filed, will the Debtor be bound
by the amount listed in the Proof of Claim filed by the
mortgagees or just for the amount of the mortgage
deficiency?
What if
the bank does not foreclosure for say 10 months and there
is a large deficiency that the debtor will not be able to
pay during the remaining term of the plan???
2. Has
anyone had a client who stated his/her intention to
reaffirm a car loan but then decided not to? Debtor is
current but the creditor is insisting that they can
repossess the car (Massachusetts) because the debtor is
in default under the terms of the original agreement by
filing bankruptcy.
ANOTHER
MEMBER REPLIED:
Hello-
I'll
respond to both parts, but I am anxious to learn about
everyone's state law as to the second part.
1.
Your plan would provide that you would surrender the
house to the mortgage companies. Then, to the extent
there is any unsecured deficiency (and the POC should
reflect this), they would share with other unsecured
creditors. It would no longer be a 100% plan, but your
client would be discharged for the balance at the plan's
completion in 5 years. I don't see where an amendment is
needed.
What if
the bank does not foreclosure for say 10 months and there
is a large deficiency that the debtor will not be able to
pay during the remaining term of the plan???
If the
POCs are filed as "secured" and your plan is surrendering
the house, I don't know why your debtor would have to pay
the deficiency.
2. Has
anyone had a client who stated his/her intention to
reaffirm a car loan but then decided not to?
Debtor is current but the creditor is insisting that they can
repossess the car (Massachusetts) because the debtor is
in default under the terms of the original agreement by
filing bankruptcy.
That's
what some car lenders are doing in Colorado. I thought
someone posted here that Massachusetts had a law that
merely filing bankruptcy, without more, can not be
considered a default to permit repossession,
notwithstanding contract terms. Does anyone have a state
law like this?
ANOTHER
ATTORNEY ADDED:
Responding
to the first question, in the Western District of
Missouri, I would state in the plan that the real estate
is being surrendered "in lieu of entire debt.” The
form plan used by the chapter 13 trustee has a place to
mark this for any secured claim where the collateral is
being surrendered. There
is also a Missouri (pre BAPCPA) case holding that if the
creditor does not object to the plan, the creditor will
not be paid a deficiency regardless of what proof of
claim the creditor files. That is how the chapter 13 trustee treats this
today. The trustee goes by the plan
if there is no objection and does not pay any deficiency. It doesn't matter if the creditor waits several
months to foreclose, and then has a deficiency.
If you can do this, you will still be able to have a 100%
plan.
Regarding
the second question, I recently posted a response
regarding a Missouri statute that requires a creditor to
show that the creditor's ability to realize upon the
collateral is "significantly impaired" before it can
repossess a vehicle, regardless of whether the creditor
has an ipso facto clause in the loan documents.The
statute is 408.552 RSMo, and the bankruptcy case that
cited this is In re Riggs out of the Western District of
Missouri. According
to that case, so long as the debtor keeps the payments
current, even if no reaffirmation agreement was filed,
the creditor must go by state law. Under state law, simply
filing bankruptcy is not enough to allow the creditor to
repossess.
AN
ATTORNEY SUBMITTED THIS QUESTION:
What can
be done if one inadvertently files a barebones petition
before the debtors' receive their credit counseling?
Voluntary dismiss and refile? Post petition counseling
certificate filed immediately? Any suggestions or
help? No foreclosure or unlawful detainer pending,
no creditor prejudiced by the filing.
Escondido,
CA
AN
ATTORNEY RESPONDED:
Let case
be dismissed. File motion to shorten prejudice period.
North
Miami Beach, Florida
ANOTHER
ATTORNEY ADDED:
I would
let the case be dismissed and then file another
one. At the same time the case is filed, I would
file a motion to extend the automatic stay under section
362(c) (with notice to creditors). That needs to be
done at the same time as the case is filed since
otherwise the stay will end after 30 days, and creditors
need a 30-day notice regarding the motion. I had
this happen in a case that had originally been filed by
another attorney and the counseling certificate was
outdated by the time the case was filed. The case
was automatically dismissed by the court. We filed
the new case within a year, along with the motion, and
the judge allowed the stay to remain in
effect.
Columbia,
MO
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listserv VERY helpful" -
Attorney, Charlottesville, VA
"You have given us a
forum in which we can compare results in different
districts. I think that subscribing and participating in
Morgan King's List Serve is a necessary part of the due
diligence required of all bankruptcy attorneys. Plus it
helped me win a case that everyone though was not
winable. Keep it up." - Attorney, Board Certified
Consumer Bankruptcy Attorney, Bedford, TX
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