Illinois Bankruptcy Lawyer Blog

quoted from RealEstateUS

Foreclosed and Bankruptcy Homes Led to Population Decline in Chicago -> http://goo.gl/epKjA #foreclosure

On March 30 Congress made it official. H.R. 200, the "Helping Families Save Their Homes in Bankruptcy" Act of 2009 was put down once and for all by a narrow margin in the Senate.

Pity. It turns out the Act would have gone a long way towards leveling a very uneven playing field. You can read about some of the (relatively) radical aspects of the bill in this summary from govtrack.us.

Now for the last time, stop fantasizing that the Federal Government is going to save your house and just hire a bankruptcy lawyer already.

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In Re: Mansaray-Ruffin, No. 05-4790 [June 24, 2008]

A debtor in a Chapter 13 bankruptcy case did not invalidate a lien on her property by providing for it as an unsecured claim in her confirmed plan, without initiating an adversary proceeding as required by the Federal Rules of Bankruptcy Procedure.

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Tidewater Fin. Co. v. Kenney, No. 07-1664 [June 25, 2008]

In a Chapter 13 bankruptcy proceeding, an order confirming the debtor's Chapter 13 bankruptcy plan is reversed and the case remanded for further proceedings where: 1) the parties are left to their contractual rights and obligations and a creditor may pursue an unsecured deficiency claim under state law after a debtor satisfies the requirements for plan confirmation under section 1325(a)(5)(C) by surrendering his 910 vehicle; and 2) the circuit court joints the Seventh Circuit Court of Appeals in further recognizing that such unsecured debt need not be paid in full any more than other unsecured debts, but it cannot be written off in toto while other unsecured creditors are paid some fraction of their entitlements.

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Chase Manhattan Mortgage Corp. v. Shapiro, No. 06-1538 [June 26, 2008]

In bankruptcy proceedings, judgment rejecting a bankruptcy court's decision that the earmarking doctrine did not apply to a new mortgage as a preferential transfer and that the estate was diminished by the perfection of the new mortgage is reversed where: 1) the trustee established the elements of an avoidable preference set forth in section 547; 2) plaintiff was not a "new creditor" which precluded it from invoking the earmarking doctrine since it refinanced its own loan with debtor; and 3) the lapsed perfection of the original mortgage and plaintiff's late perfection of the new mortgage diminished debtor's estate.

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Espinosa v. United Student Aid Funds, Inc., No. 06-16421 [June 24, 2008]

In a case arising from bankruptcy proceedings in which plaintiff-debtor obtained a discharge order, but was later pursued by defendant-creditor for a student loan debt that debtor argued had been discharged, the matter is remanded for consideration of whether the bankruptcy court's discharge order in the case was entered as a result of a clerical error and, if so, whether to correct it so as to conform to debtor's Chapter 13 plan.

Cent. Valley AG Enters. v. US, No. 05-16177 [June 25, 2008]

In a bankruptcy appeal involving debtor's objection to a government tax claim, dismissal of the action is reversed where: 1) the district court erred in ruling that the statutory res judicata provision in 11 U.S.C. section 505(a)(2)(A) deprived it of subject matter jurisdiction to review the tax treatment of any partnership item that has been administratively determined by the IRS and has become final pursuant to the Tax Equity And Fiscal Responsibility Act of 1982 (TEFRA); and 2) 11 U.S.C. section 505(a)(1) grants the district court subject matter jurisdiction to review the tax treatment of debtor's partnership items, notwithstanding TEFRA.

NY court of appeals

AG Capital Funding Partners v. State Street Bank and Trust Co., No. 114 [June 25, 2008]

In an action alleging breach of contract, violation of federal Trust Indenture Act, breach of fiduciary duty, and negligence based on defendant's alleged failure to deliver debt transaction registration statements required to secure a debt, the court of appeals finds that: 1) plaintiffs' contract and Trust Indenture Act claims were barred by a release previously executed by plaintiffs as part of a bankruptcy settlement and that no fiduciary duties existed; however; 2) because negligence claims were not barred by the release and there were issues of fact as to whether defendant owed and violated a duty of care, plaintiffs' cause of action for negligence is reinstated.

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In re: Penn Traffic Co. , No. 07-1854 [April 29, 2008]

A party (other than the debtor) to an executory contract cannot make the contract non-executory (hence beyond rejection) by tendering performance after the debtor has filed. The debtor retains its right to reject the contract if it is not in the best interest of the estate to honor it.

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In the Matter of: Babcock & Wilcox Co., No. 07-30377 [May 1, 2008]

An award of Attorneys' Fees is affirmed on an appeal from a bankruptcy case. It was not an abuse of discretion for the bankruptcy court to award fees at half the normal hourly rate for travel time not spent working.

In re API, 07-06720

Ch. 11 Trustee and Committee of Unsecured Creditors v.

Marathon Financial Insurance Co., Inc., RRG 08-00089

Issued June 17, 2008

Judge Carol A. Doyle

Read and download the opinion in PDF format here

Forecasters see weak economy, higher unemployment

By J. Aversa, AP Economics Writer

First the good news: The worst of the painful housing slump and the credit crunch might come to an end this year. Now the bad: The economy will weaken further and unemployment will rise.

-- from Yahoo!

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Smith v. Jordan, 06-2154

Revocation of discharge affirmed in part. District court correctly determined that a Trustee seeking revocation of discharge under 727(a)(6)(A) must establish that debtor wilfully and intentionally refused to obey the court's order, but incorrectly concluded that debtor's failure to comply in this case was "willful" within the meaning of the statute.

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In the Matter Of: Seven Seas Petroleum Inc., 07-20301

Secured creditor of bankrupt corporation sued in state court by an unsecured creditor of the corporation. Secured creditor had the claims against it removed to federal court and unsecured creditor sought to have the dispute remanded back to state court. Unsecured creditor's motion was denied and case was dismissed. Ruling is vacated by the Appellate Court, which determined that the claims were not property of the bankruptcy estate and did belong in state court (motion to remand must be granted).

AP, Dec. 19, 2007

An Amendment in the Nature of a Substitute to H.R. 3609 or the Emergency Home Ownership and Mortgage Equity Protection Act

Posted December 19 by Matt Stoller on the blog Open Left

If you like this post, Digg It!

Sec. 1. Short Title. Section 1 sets forth the short title of the bill as the "Emergency Home Ownership and Mortgage Equity Protection Act of 2007."

Sec. 2. Definitions. Section 101 of title 11 of the United States Code defines various terms used in the Bankruptcy Code. Section 2 amends section 101 to define two types of mortgages. First, it defines a "nontraditional mortgage" as a security interest in the debtor's principal residence that secures a debt for a loan that at any period during the term of the loan provides for the deferral of the payment of principal or interest by permitting periodic payments that do not cover the full amount of interest due or that cover only the interest rate. The definition neither applies to a home equity line of credit that is in a subordinate loan position nor a reverse mortgage. This definition is derived from a statement of Interagency Guidance on Nontraditional Mortgage Product Risks issued by the Office of the Comptroller of the Currency, the Federal Reserve System's Board of Governors, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, and the National Credit Union Administration last year.1 Second, section 2 defines a "subprime mortgage" as a security interest in the debtor's principal residence that secures a debt for a loan that has an annual percentage rate that is greater than either of two amounts, depending on whether the loan is secured by a first mortgage or first deed of trust or by a subordinate mortgage or subordinate deed of trust. This definition is largely derived from the Mortgage Reform and Anti-Predatory Lending Act of 2007, legislation that was passed by the U.S. House of Representatives on November 15, 2007. A loan secured by a first mortgage or first deed of trust is a "subprime mortgage" if the loan's annual percentage rate of interest exceeds three percent plus the yield on United States Treasury securities having comparable periods of maturity. A loan secured by a subordinate mortgage or subordinate deed of trust is a "subprime mortgage" if the loan's annual percentage rate of interest exceeds five percent plus the yield on United States Treasury securities having comparable periods of maturity. Without regard to whether either loan is subject to or reportable under the Home Mortgage Disclosure Act,3 the difference between the annual percent rate of such loan and yield on United States Treasury securities having comparable periods of maturity must be determined using the procedures and calculation methods applicable to loans that are subject to the reporting requirements of such Act, except that such yield shall be determined as of the 15th day of the month preceding the month in which a completed application is submitted for such loan. If either loan provides for a fixed interest rate for an introductory period and then resets or adjusts to a variable interest rate, the determination of the annual percentage rate is based on the greater of the introductory rate and the fully indexed rate. For purposes of this definition, the term "fully indexed rate" means the prevailing index rate on a residential mortgage loan at the time the loan is made.

Sec. 3. Delay of Counseling Requirement When Houses Are in Foreclosure. Section 109(h) of title 11 of the United States Code sets forth the requirement that a debtor who is an individual must, under certain circumstances, received credit counseling from an approved agency before he or she may file for bankruptcy relief. Section 3 amends section 109(h) to provide that a chapter 13 debtor may satisfy this requirement within 30 days after the bankruptcy case is filed if he or she submits to the court a certification that the debtor has received notice that the holder of a claim secured by the debtor's principal residence may commence a foreclosure on the debtor's principal residence. A court is authorized under this provision to extend this period for 15 days for cause. This temporary deferral of the credit counseling provision applies to a case under chapter 13 commenced during the seven-year period beginning on the effective date of H.R. 3609.

Sec. 4. Authority To Modify Certain Mortgages. Section 1322(b) of title 11 of the United States Code sets forth provisions that a chapter 13 plan may contain. In pertinent part, section 1322(b)(2) provides that a chapter 13 plan may modify the rights of holders of secured claims, but not a claim secured only by a security interest in real property that is the debtor's principal residence. Section 4 amends section 1322(b) to add a provision providing that notwithstanding section 1322(b)(2) and otherwise applicable nonbankruptcy law, a claim secured by a nontraditional or subprime mortgage on the debtor's principal residence may be modified under certain circumstances. First, the bankruptcy case must have been commenced within the seven-year period beginning on the effective date of H.R. 3609. Second, such claim must be for a debt incurred during the period beginning on January 1, 2000 and ending on the effective date of H.R. 3609. Third, the mortgage must be subject of a notice that a foreclosure may be initiated. Fourth, the debtor's current monthly income reduced by the amounts determined in accordance with section 707(b)(2)(A)(ii), (iii), and (iv) and section 707(b)(2)(B) (other than amounts scheduled as contractually due to the mortgagee and any additional payments necessary to maintain possession of such residence) is insufficient to enable the debtor to cure all defaults on such claim and maintain all payments while the case is pending as provided in section 1322(b)(5). Should these criteria be satisfied, section 4 provides that a chapter 13 plan may modify a nontraditional or subprime mortgage in certain respects. First, the plan may reduce such claim to equal the value of the debtor's property interest securing such claim. Second, the plan may waive any otherwise applicable early repayment or prepayment penalties. Third, if the mortgage has an adjustable rate of interest, the plan may prohibit, reduce, or delay adjustments to such rate applicable on and after the date on which such plan is filed. Fourth, the plan may extend the repayment period for a period that is the longer of 30 years (reduced by the period for which the loan has been outstanding) or the remaining term of such loan, beginning on the date of the order for relief under chapter 13. Fifth, the plan may provide for the payment of interest accruing after the order for relief under chapter 13 at an annual percentage rate calculated at a fixed annual percentage rate in an amount equal to then most recently published annual yield on conventional mortgages published by the Federal Reserve System's Board of Governors, as of the applicable time set forth in the rules of the Board, plus a reasonable premium for risk.

Sec. 5. Combating Excessive Fees. Section 5 amends section 1322(c) of title 11 of the United States Code to provide that the debtor, the debtor's property, and property of the estate are not liable for certain fees, costs, or charges incurred while the case is pending that arise from a security interest that is secured by the debtor's principal residence, under specified circumstances. Such claims are disallowed unless the claim holder files with the court notice of such claim before the earlier of either one year after such claim is incurred or 60 days before the case is closed. In addition, the claim must be lawful under applicable nonbankruptcy law, reasonable, and provided for in an agreement secured by such security interest. Further, the claim must be secured by property having a value that is greater than the amount of the claim securing such claim, including such fees, costs, or charges. Section 5 provides that the failure of a party to give the required notice shall be deemed to be a waiver of any claim for such fees, costs, or charges for all purposes. Any attempt to collect such fees, costs, or charges constitutes of violation of section 524(a)(2) (discharge injunction) or section 362(a) (automatic stay). This provision further provides that a plan may provide for the waiver of any prepayment penalty on a claim secured by the debtor's principal residence.

Sec. 6. Confirmation of Plan. Section 1325 of title 11 of the United States Code sets forth various criteria for confirmation of a chapter 13 plan. Section 6 amends section 1325 in two respects. First, it provides that the holder of a claim whose rights are modified pursuant to section 1322(b)(11) retains its lien until the later of: (1) the payment of such claim as reduced or modified, or (2) discharge under section 1328. In addition, section 6 provides that if the plan modifies a claim in accordance with section 1322(b)(11), the court must find that such modification is in good faith.

Sec. 7. Discharge. Section 1328 of title 11 of the United States Code sets forth the requirements for discharge. Section 7 amends section 1328(a) to clarify that the holder of a claim whose rights are modified under section 1322(b)(11) are not discharged to the extent of the unpaid portion of the claim as reduced.

Sec. 8. Study and Report by Government Accountability Office. Section 8 directs the Comptroller of the United States to conduct a study to determine the impact of the amendments made by sections 2 through 7 of H.R. 3609. The report must be submitted to Congress no later than 180 days after the date of enactment of the bill.

Sec. 9. Study and Report by Executive Office for United States Trustees. Section 9 directs the Director of the Executive Office for United States Trustees to conduct a study to determine the impact of the amendments made by sections 2 through 7 of H.R. 3609. The report must be submitted to Congress no later than 180 days after the date of enactment of the bill.

Sec. 10. Effective Date; Application of Amendments. Section 10(a) provides that the Act and the amendments made by it, except as provided in subsection (b), take effect on the Act's date of enactment. Section 10(b) provides that the amendments made by the Act apply only to cases commenced under title 11 of the United States Code on or after the Act's date of enactment.

See OpenCongress for much more information (great resource!)

3 subsidiaries of ARH Mortgage Inc. of Brisbane, California filed Chapter 7 in Wilmington, DE including Alliance Bancorp Inc. of Oakbrook, Ill. According to an SEC prospectus filed in May they company and its subsidiaries originated $2.6 Billion in loans.

In a message posted on the company's Web site, Alliance Bancorp's Chief Executive Officer and President Lisa Duehring said the lender had "put up a valiant fight" but that "the latest market was more than we were able to overcome. We have exhausted our resources and do not have the means to move forward."

In the Q4 of 2006 Alliance Bancorp experienced an increase in early payment defaults resulting in increased demands to repurchase the bad loans. Losses resulted when the loans were repurchased at face value and could not be placed again, or only placed at a steep discount.

According to news reports and Alliance Bancorp's website the company ceased operations July 13 and filed a Chapter 7 petition with the U.S. Bankruptcy Court in Wilmington, DE.

From the Housing Bubble and Real Estate Market Tracker on the blog Seeking Alpha comes this encouraging snapshot of our times (yes, that was sarcasm)

:: Bankruptcy Attorney in Illinois :: M. Hedayat & Associates, P.C. ::

As noted in this post, subprime mortgage giant Ameriquest is the latest in a list of lenders getting their comeuppance for having engaged in questionnable practices (most in connection with refinances). Prosecutors in the Garden State announced a national, $325 million settlement last year in favor of 725,000 borrowers in 49 states. That agreement was among the largest consumer protection settlements ever reached by a government plaintiff. A similar $484 million settlement was obtained by a group of states in 2002 from Household Finance Corp.

:: Bankruptcy Attorney in Illinois :: M. Hedayat & Associates, P.C. ::