Sunday, January 7, 2018

In re: O'Steen: Debtor not denied 727 Discharge

Lafayette State Bank, Plaintiff,
v.
John Riley O'Steen, d/b/a Riley O'Steen Dairy, Ashley Koon O'Steen, Defendants.

Case No. 3:14-bk-4766-PMG, Adv. No. 3:15-ap-393-PMG. United States Bankruptcy Court, MD Florida, Jacksonville Division.

Bank seeked a judgment denying the Debtors' discharge pursuant to § 727(a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) of the Bankruptcy Code, and determining that the debt owed by the Debtors to the Bank was not dischargeable in the Chapter 7 case pursuant to § 523(a)(6) of the Bankruptcy Code.

A fundamental goal of the Bankruptcy Code is to provide a debtor with a fresh start. Consequently, denial of a debtor's discharge is an extraordinary remedy, and exceptions to discharge should be construed in favor of the debtor and against the objecting party. The burden is on the objecting party to prove the objection by a preponderance of the evidence. In re White, 568 B.R. 894, 909-10 (Bankr. N.D. Ga. 2017).

http://scholar.google.com/scholar_case?case=1285041256689425433&hl=en&lr=lang_en&as_sdt=4,10,253,254,255,262,263,264,265,266,267,325&as_vis=1&oi=scholaralrt

OBJECTION to Discharge: Who Has The Burden

A fundamental goal of the Bankruptcy Code is to provide a debtor with a fresh start. Consequently, denial of a debtor's discharge is an extraordinary remedy, and exceptions to discharge should be construed in favor of the debtor and against the objecting party. The burden is on the objecting party to prove the objection by a preponderance of the evidence. In re White, 568 B.R. 894, 909-10 (Bankr. N.D. Ga. 2017).

Thursday, December 7, 2017

Official Bankruptcy Rule Changes Effective December 1, 2017

Rule 1001: “These rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 1006: requires that an individual debtor’s petition must be accepted for filing so long as the debtor submits a signed application to pay the filing fee in installments. Rule 1017 (b) (1) allows for a dismissal of the case for the failure to pay any installment of the filing fee only “after a hearing on notice to the debtor and the trustee.”

Rule 1015(b): Husband and wife is replaced with spouses.

Rule 3015 and 3015.1(NEW): Requires use of an appropriate official form for chapter 13 plans. Objections to plan confirmation are to be made at least 7 days before the date set for confirmation hearing, and valuation of a secured claim is binding on the holder of the claim.

Rule 2002: notice of time to object to confirmation of Chapter 13 plan is 21 days, notice of confirmation hearing is 28 days.

Rule 3002: Holder of secured claim must file proof of claim to have an allowed secured claim. Bar date in Chapter 12 and 13 cases is 70 days, with an additional 50 days for mortgage holders to provide supplemental documents. The court may extend the time to file proof of claim for insufficient notice.

Rule 3007: Service of claim objection on most claimants is by mailing notice to the person listed on the proof of claim. Rule 7004 governs service on depository institutions.

Rule 3012: Request to value in the Chapter 13 Plan governed by Rule 7004(b), and service for claim objections and motions to value are governed by Rules 3007(a) and 9014(b).

Rule 4003: Lien avoidance can proceed under the chapter 13 plan, or by motion.

Rule 5009: Debtor can obtain an order declaring that a secured claim has been satisfied, and lien released under the terms of the Chapter 13 Plan.

Rule 7001: Rule 3012 valuation and lien avoidance do not require an adversary proceeding.

Rule 9009: The rule allows deviations from an Official Form if permitted by the national instructions for the form in addition to those deviations permitted by the Bankruptcy Rules or the form itself. It also allows “minor changes not affecting wording or the order of presenting information” on a form.

Friday, December 1, 2017

Florida's Constitution Revision Commission Proposed Changes

Florida’s Constitution Revision Commission meets every 20 years to propose changes to the state constitution.  The Commission has met and has finalized proposed amendments. For a brief description of the 103 proposals that could appear on the ballot in November 2018, click the link below:

http://www.sun-sentinel.com/news/politics/florida-politics-blog/fl-reg-constitution-revision-commission-final-proposals-20171120-story.html

Tuesday, November 28, 2017

How To Pick a Bankruptcy Attorney

https://media.istockphoto.com/photos/woman-discussing-ideas-and-strategy-in-studio-office-picture-id637928380?s=170x170

 I, along with all bankruptcy attorneys in Northeast Florida, receive calls on a regular basis asking what our fees are for filing bankruptcy.  I suspect these people essentially don't know what they don't know.  If the caller is planning on filing bankruptcy, he or she is asking the wrong question. 

Bobby Wilbert, a bankruptcy attorney in Jacksonville, Florida, recently posted a link on his website to a concise blog page I thought was very good concerning picking an attorney, posted by Cathy Moran.  She relates the hiring of a bankruptcy attorney to picking a coach, not calling around for the cheapest price or looking for the attorney that shows up first in search results on the internet.  The link to the article is 
https://www.bankruptcyinbrief.com/selecting/

Wednesday, November 22, 2017

Debtor Wins Discharge of Student Loan Debt

Think the private loan you have for education is an educational loan?  You may want to have an attorney review it after a recent decision.

Yolande E. Essangui v. SLF V-2015 Trust, et al., Adversary No.16-00201,
Main case 16-12984

The issue before the Court is whether a private loan extended for educational purposes is dischargeable in a debtor’s chapter 7 case. There are three (3) subsections addressing educational debt that is excepted from discharge.  Apparently the argument was centered on which of the 3 sections is applicable in determining the loans dischargeability.  Based on the facts of this case, the Court held that the private student loan at issue is not an educational benefit, as it did not qualify for federal student loan assistance.  The Court entered an Order granting the debtor’s motion for summary judgment and denying the defendant’s motion for summary judgment.

Tuesday, July 25, 2017

Student Loan Debt Holders Could Be In Trouble

I recently received an email from Bobby Wilbert's Facebook account referencing private student loan debts, and how the holders of these debts could be in trouble.  Student loans have been bundled and sold. 

Remember the mortgage loan crisis. 

The following article addresses an impending similar crisis for private student loan holders:

http://www.dailynews.com/opinion/20170722/student-loan-bundlers-scheme-blowing-up-in-their-faces-james-poulos