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Vol 14, Num 1 l 2016

Technology and Intellectual Property

► In This Issue:

Springtime, Tax Refunds and Bankruptcy


Elizabeth E. Stephens
Sullivan Hill Lewin Rez & Engel APLC
Las Vegas


It’s almost springtime, and thoughts in the bankruptcy world naturally turn to … tax refunds. To be sure, bankruptcy trustees have been busy for the last six months ensuring that debtors will turn over their pre-petition tax refunds. Debtors’ counsel have been equally busy advising their new clients on how to protect their tax refunds in advance of filing. As the tax filing deadline approaches, now is a good time to review the status of tax refunds in bankruptcy cases.

First, let’s look at the easy stuff. In a typical chapter 7 case, the right to an income tax refund based on pre-petition income is property of the estate. The tax refund is considered property under § 541(a) and is not considered income. The portion that arises from pre-petition income is property of the estate, while the portion that arises from post-petition income is property of the debtor and may be claimed exempt. While there are multiple ways to allocate the distribution of a tax refund between the debtor and the estate, it is generally distributed, pro rata, by days. » Read More

Federal Rule Amendments Effective Dec. 1, 2015


Caleb Chaplain
U.S. Bankruptcy Court
(W.D. Va.)


Perhaps overshadowed by the overhaul of most of the official bankruptcy forms are the amendments to the Federal Rules of both Bankruptcy and Civil Procedure that took effect on Dec. 1, 2015. Specifically, Federal Rule of Bankruptcy Procedure 1007 and Federal Rules of Civil Procedure 1, 4, 16, 26, 30, 31, 33, 34, 37 and 55 were amended. These amendments govern all proceedings commenced on or after Dec. 1, 2015, and all those that were pending on that date “insofar as just and practicable.” The new amendments to the Federal Rules of Civil Procedure, although with a few minor exceptions, apply to both adversarial proceedings and contested matters filed with the bankruptcy court.

The amendment to Federal Rule of Bankruptcy Procedure 1007 simply updates the references to the naming designations of the new official bankruptcy forms. The amendments to the Federal Rules of Civil Procedure, however, have broader policy goals and practical implications. The amendments fall into four major categories that underscore the purpose of this wave of amendments. The amendments promote (1) cooperation between parties and the court, (2) proportional discovery, (3) judicial case management and (4) the proper preservation of electronically stored information. » Read More

U.S. District Court Paves Possible Path for Consumer Financial Protection Bureau Suits Against Debt-Collection Firms


Benjamin R. Skeen
Skeen & Skeen, P.C.

In July 2014, the Consumer Financial Protection Bureau (CFPB) filed suit against Frederick J. Hanna & Associates P.C., a Georgia-based debt-collection firm, alleging violations of the Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Act of 2010 (CFPA). In response, Hanna filed a motion to dismiss, alleging that the claims were barred by the Practice of Law Exclusion within the CFPA, the complaint failed to allege any violations of FDCPA and CFPA, the suit infringed on Hanna’s First Amendment and equal protection rights, and the suit failed to meet the pleading requirements of Rules 8 and 9. Following briefs and oral argument, the district court denied Hanna’s motion in an order that will likely encourage further suits by the CFPB against debt-collection firms.
» Read More

There’s an App for That: Processing Applications for Loss-Mitigation Assistance in Bankruptcy under Regulation X and District-Specific Loss-Mitigation Programs


Chris Hawkins
Bradley Arant Boult
Cummings LLP

Birmingham, Ala.


Jonathan Kolodziej
Bradley Arant Boult
Cummings LLP

Birmingham, Ala.

In the wake of the financial crisis of 2008, many homeowners found themselves in dire straits with respect to their residential mortgage loans, and some sought protection in bankruptcy. Even with the ability to cure mortgage payment defaults within a reasonable time, some debtors still lacked the financial ability to maintain their non-modifiable mortgage payments while also making the other payments required under the Bankruptcy Code. In response, bankruptcy courts in numerous jurisdictions have implemented loss-mitigation procedures in an attempt to bring debtors and mortgage creditors to the negotiating table. In essence, while the courts cannot in most instances require a mortgage creditor to modify loan terms, they can require good-faith negotiations regarding potential loss-mitigation options. Likewise, the Consumer Financial Protection Bureau (CFPB) has implemented rules requiring mortgage creditors to promptly process requests for loss-mitigation assistance, regardless of bankruptcy status. Mortgage creditors must carefully navigate these parallel loss-mitigation requirements.

CFPB Servicing Rules

On Jan. 17, 2013, the CFPB released a comprehensive set of mortgage-servicing regulations (the “Final Servicing Rules”) through amendments to Regulation X, which implements the Real Estate Settlement Procedures Act of 1974 (RESPA), and amendments to Regulation Z, which implements the Truth in Lending Act (TILA). Although the CFPB continued to issue clarifications and revisions throughout 2013, the regulations became effective on Jan. 10, 2014, and have remained unchanged since that date.

» Read More

Have You Registered for the Annual Spring Meeting?

Annual Spring Meeting - April 14-17

Connect with the industry’s thought leaders at the 34th Annual Spring Meeting, featuring dynamic speakers, top education and unparalleled networking. This year’s event boasts streamlined CLE sessions, more networking opportunities than ever before, and ABI’s take on the famous Hollywood Squares game show, the inaugural “Bankruptcy Judge Squares: The Supreme Court Edition.”

Register Today
Networking Opportunities:

Emerging Leaders & Judges’ Roundtable

Opening Reception

Women’s Networking Reception

Blowout Bar Salon

The Grooming Lounge

Plus — Daily Coffee Breaks & Mid‑day Receptions


Best of ABI 2015: The Year in Consumer Bankruptcy — Ebook


Our annual compendium, drawn from the best articles from the ABI Journal, ABI conference sessions, and committee newsletters. This edition covers the latest on student loan discharges, legal professionalism, Supreme Court decisions, claims and the FDCPA, liens and other consumer bankruptcy issues.

Edited by Alane A. Becket

Available in Kindle and iBook Editions



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