Archive for the ‘Bankruptcy’ Category

Proofs of Claim and Time Barred Debts

Friday, May 19th, 2017

Does a debt collector violate the Fair Debt Collection Practices Act if that debt collector files a proof of claim in a bankruptcy case based on a time barred debt? The Supreme Court of the United States ruled on May 15, 2017, that the filing of a proof of claim by a debt collector in a bankruptcy case on a time barred debt does not provide a basis for a claim under the Fair Debt Collection Practices Act (15 U.S.C. § 1692(e) and (f)). The case is Midland Funding, LLC v. Johnson, _ U.S. _ (2017).

Fraudulent Transfer Scheme and Dischargeability

Friday, May 20th, 2016

The Supreme Court of the United States ruled on May 16, 2016, that the phrase “actual fraud” in a section of the Bankruptcy Code providing grounds for dischargeability encompasses fraudulent transfers without regard as to whether there was a false representation by the debtor. The Court entered the ruling in the case of Husky International Electronics, Inc. v. Ritz, _ U.S._ (2016).

Lien Stripping in Chapter 7

Thursday, June 4th, 2015

In an opinion handed down on June 1, 2015, the Supreme Court of the United States ruled on the question of whether a debtor in a chapter 7 case may void a junior secured position under Section 506(d) of the Bankruptcy Code when the debt owed on a senior secured position exceeds the present value of the property. The Supreme Court answered that the debtor may not strip the junior secured position. The case is Bank of America, N.A. v. Caulkett, _ U.S. _ (2015).

Jurisdiction by Consent

Friday, May 29th, 2015

In Wellness International Network, Ltd., et al. v. Sharif, _U.S._ (2015), the Supreme Court of the United States ruled that parties in a bankruptcy proceeding may knowingly and voluntarily consent to adjudication by a bankruptcy judge of a Stern claim without running afoul of Article III of the Constitution. In Stern v. Marshall, 564 U.S. 462 (2011), the Court had held that Congress could not constitutionally withdraw from the Article III courts “any matter which, from its nature, is a subject of a suit at the common law, or in equity, or admiralty.” In Wellness, the Court ruled that Stern claims can be heard by a bankruptcy court with consent of the parties and that, in such context, there would be no violation of Article III. The Court entered the Wellness decision on May 26, 2015.

Inherited IRA

Friday, July 11th, 2014

In the recently decided Clark v. Rameker case, the United States Supreme Court ruled that an inherited IRA does not fall within the scope of a Bankruptcy Code statute providing for exemption of “retirement funds.” The Court construed the statutory language and concluded that the assets in an inherited IRA were not “retirement funds” within the meaning of the statute in question. The result – the debtor could not exempt the inherited IRA. This ruling was a win for trustees. Does this ruling necessarily mean that an inherited IRA could be reached by trustee in a bankruptcy case in Georgia? Look back to a case from 1997 for possible guidance. In the case of In re Meehan, the Court of Appeals for the Eleventh Circuit ruled that a debtor’s IRA was excluded from property of the bankruptcy estate because Georgia law imposes restrictions on transfer by garnishment of assets in an IRA. The Court concluded that the restrictions on transfer were sufficient to exclude the IRA from the bankruptcy estate. The debtor could keep his IRA. The Clark case involved exemptions rights. The Meehan case turned on whether the IRA was property of the estate. The ruling in Clark does not resolve the question of whether an inherited IRA can be excluded from the bankruptcy estate. Under a Meehan type analysis, would a court conclude that an inherited IRA was excluded from the bankruptcy estate?

Interpretation of Defalcation

Wednesday, May 22nd, 2013

In a decision handed down on Monday, May 13, 2013, the United States Supreme Court resolved a split in the circuits regarding interpretation of the term “defalcation” in the context of dischargeability litigation. In Bullock v. BankChampaign, N.A., 11-1518, the Court in a unanimous ruling opted for a narrow construction of the term “defalcation.”  Unless there is bad faith, moral turpitude, or other immoral conduct, there must be an intentional wrong on the part of a fiduciary before a court can conclude that the fiduciary committed a defalcation.


Friday, May 17th, 2013

Welcome to the blog of Lamberth, Cifelli, Ellis & Nason, P.A. Our Atlanta attorneys will be posting on topics related to our law firm including commercial law, bankruptcy matters, and foreclosure law.