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WELCOME TO BankruptcyPractice.com - - - Jan. 1 2013 . . .Deininger's Guide to IRS Collection Due Process now available - - - at BankruptcyBooks.com . . . July 14 2012 . . . Morgan's article on Fee-Sharing and § 504 appeared in Norton's Bankruptcy Law Advisor . . . July 12 2012 . . .. . . (this news repeats . . . )

 

 

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  • Consumer Bankruptcy Litigation
  • Marital Issues in Bankruptcy
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  • The Automatic Stay
  • Claims & Objections to Claims

 

 

 

 

 

 

 

 


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2013 REPORT

THE BANKRUPTCY COURTS

Filings of bankruptcy petitions fell 12 percent to 1,107,699. Fewer petitions were filed in 86 of the 90 bankruptcy courts. Consumer (i.e.) nonbusiness) petitions decreased 12 percent, and business petitions declined 17 percent. Bankruptcy petitions dropped 14 percent under Chapter 7, 10 percent under Chapter 11, and eight percent under Chapter 13.

After the Bankruptcy Abuse Prevention and Consumer Protection Act Of 2005 took effect, a significant reduction in bankruptcy filings took place.

Filings of petitions subsequently rose from 2007 to 2010. This year's total is 31 percent below that for 2010.

 CLICK HERE FOR MORE STORY

____________________________

DEBTOR SANCTIONED

According to the evidence, Chaker filed for bankruptcy under Chapter 13 on March 6, 2007. Specifically, on or about March 26, 2007, during a bankruptcy hearing before the Honorable Jeffrey Bohm, while under oath, Chaker falsely and fraudulently represented to the court that the property was never leased out prior to January 2007, when he had in fact previously contracted with a realtor who secured at least two rental contracts with Chaker personally. Chaker failed to disclose income and the existence of past and present residential leases of a residential property facing foreclosure in Houston to his creditor, Saxon Mortgage in the hearing and to the court.

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_____________________________

FTC WARNING ON CREDIT REPAIR SCAMS

According to the FTC, here's how to evaluate the trustworthiness of credit repair companies. Be cautious if:

The company wants you to pay for credit repair services before they provide any services. Under the Credit Repair Organizations Act, credit repair companies cannot require you to pay until they have completed the services they have promised.

- The company doesn't tell you your rights and what you can do for yourself for free.

- The company recommends that you do not contact any of the three major national credit reporting companies directly.

- The company tells you they can get rid of negative credit information in your credit report, even if that information is accurate and current.

- The company suggests that you try to invent a "new" credit identity&emdash;and then, a new credit report&emdash;by applying for an Employer Identification Number to use instead of your Social Security number.

- The company advises you to dispute all the information in your credit report, regardless of its accuracy or timeliness.

- If you follow illegal advice and commit fraud, you may find yourself in legal hot water, too: It's a federal crime to lie on a loan or credit application, to misrepresent your Social Security number, and to obtain an Employer Identification Number from the Internal Revenue Service under false pretenses. Even if a credit repair company advises you to do these things, you could be charged and prosecuted for mail or wire fraud if you use the mail, telephone, or Internet to apply for credit and provide false information.

BANKRUPTCY STATS

Filings of bankruptcy petitions fell 12 percent to 1,107,699. Fewer

petitions were filed in 86 of the 90 bankruptcy courts. Consumer (i.e.,

nonbusiness) petitions decreased 12 percent, and business petitions declined

17 percent. Bankruptcy petitions dropped 14 percent under Chapter 7, 10

percent under Chapter 11, and eight percent under Chapter 13.

After the Bankruptcy Abuse Prevention and Consumer Protection Act

of 2005 took effect, a significant reduction in bankruptcy filings took place.

Filings of petitions subsequently rose from 2007 to 2010. This year's total is

31 percent below that for 2010.

CLICK HERE FOR MORE STORY


In re Veal (9th Cir. BAP 2011)

CLICK HERE FOR TEXT OF VEAL OPINION

FAILURE TO PROPERLY DOCUMENT TRANSFER OF INTEREST IN NOTE OR OTHER FORMALITIES RESULTS IN LACK OF STANDING TO FORECLOSE: MOTION FOR RELIEF FROM STAY DENIED

In this Chapter 13 case the ostensible agent for Wells Fargo Bank could not establish that Wells Fargo had possession of the note or had other right to payment.

This lengthy opinion is a thorough stand-alone discourse on the key elements required for standing to foreclose (and hence assert a claim in bankruptcy), and draws an important distinction between assignment of the mortgage and assignment of the note.

Wrote the court:

"We hold that a party has standing to seek relief from the

automatic stay if it has a property interest in, or is entitled to enforce or pursue remedies related to, the secured obligation that forms the basis of its motion.

"Thus, unlike the assignment from GSF to Option One, the

purported assignment from Option One to Wells Fargo does not contain language effecting an assignment of the Note. While the Note is referred to, that reference serves only to identify the Mortgage. Moreover, unlike the first assignment, the record is devoid of any indorsement of the Note from Option One to Wells Fargo. As a consequence, even had the second assignment been considered as evidence, it would not have provided any proof of the transfer of the Note to Wells Fargo. At most, it would have been proof that only the Mortgage, and all associated rights arising from it, had been assigned.

"Here, the Veals allege that neither Wells Fargo nor AHMSI

have shown they have any interest in the Note or any right to be paid by the Veals. They seek to invoke prudential standing principles which generally provide that a party without the legal right, under applicable substantive law, to enforce an obligation or seek a remedy with respect to it is not a real party in interest.

" .. while the failure to obtain the indorsement of the payee or other holder does not prevent a person in possession of the note from being the "person entitled to enforce" the note, it does raise the stakes. Without holder status and the attendant presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the "person entitled to enforce."

"As to Wells Fargo, it had to show it had a colorable claim to receive payment pursuant to the Note, which it could

accomplish either by showing it was a "person entitled to

enforce" the Note under Article 3, or by showing that it had some ownership or other property interest in the Note.

"In particular, because it did not show that it or its agent

had actual possession of the Note, Wells Fargo could not

establish that it was a holder of the Note, or a "person entitled to enforce" the Note.

"In addition, even if admissible, the final purported assignment of the Mortgage was insufficient under Article 9 to support a conclusion that Wells Fargo holds any interest, ownership or otherwise, in the Note. Put another way, without any evidence tending to show it was a "person entitled to enforce" the Note, or that it has an interest in the Note, Wells Fargo has shown no right to enforce the Mortgage securing the Note. Without these rights, Wells Fargo cannot make the threshold showing of a colorable claim to the Property that would give it prudential standing to seek stay relief or to qualify as a real party in interest.

"In the context of a claim objection, both the injury-in-fact requirement of constitutional standing and the real party in interest requirement of prudential standing hinge on who holds the right to payment under the Note and hence the right to enforce the Note.

"With respect to Wells Fargo's request for relief from the automatic stay, we hold that a party has standing to seek relief from the automatic stay if it has a property interest in, or is entitled to enforce or pursue remedies related to, the secured obligation that forms the basis of its motion.

" ... the purported assignment from Option One to Wells Fargo does not contain language effecting an assignment of the Note. While the Note is referred to, that reference serves only to identify the Mortgage. Moreover, unlike the first assignment, the record is devoid of any indorsement of the Note from Option One to Wells Fargo.

"As a consequence, even had the second assignment been considered as evidence, it would not have provided any proof of the transfer of the Note to Wells Fargo. At most, it would have been proof that only the Mortgage, and all associated rights arising from it, had been assigned.


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HELPFUL LINKS

THE U.S. BANKRUPTCY CODE

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