Recent Cases from NACBA Newsletter

Property Distribution through Issuance of New Note and Mortgage In Chapter 13

NACBA has filed an amicus brief in the case of Bell v. Fitzgerald, No. 10-10870, (D. Mass). That case concerns the issue of whether a debtor is entitled to confirmation of a plan under section 1325(a)(5)(B)(ii), where the plan provides for payment of an allowed secured claim through the issuance of a new Note and thirty year Mortgage. The trustee argued that because the claim was modified under section 1322(b), it must be fully paid within the plan period. NACBA took the position that the plan complies with the plain language of the statute which allows for a one time property distribution which may be in the form of any property of value including a Note. This position finds support in Justice Thomas’s concurrence in the plurality opinion in Till et ux v. SCS Credit Corporation, 541 U.S. 465, 486 (2004).

Inherited IRA Exemption

The Ninth Circuit Bankruptcy Panel granted NACBA’ s motion for leave to file an amicus in the case of Mullen v. Hamlin (In re Hamlin), No. 11-1083, (B.A.P. 9th Cir.) addressing the issue of whether an inherited IRA is exempt in bankruptcy.

Petition for Certiorari in Negative Equity Case

The creditor has filed a petition for certiorari in the Supreme Court in the case of AmeriCredit Financial Services v. Penrod (No. 10-1443). The Ninth Circuit created a split among the circuits when it ruled in favor of the debtor that negative equity does not fall within the anti-cramdown prohibition of the hanging paragraph of 1325. AmeriCredit Financial Services v. Penrod, 2010 WL 2794409 (9th Cir. July 16, 2010)

Debtor Prevails on Avoidance Claim where no Exemption Claimed

In In re Botkin, No. 10-1681 (4th Cir.) the Fourth Circuit found that a debtor need not claim a homestead exemption in order to avoid judgment lien that impairs an exemption under 522(f). The Amicus Project assisted in the writing of the debtor’s brief.