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vol 15, num 1 | February, 2017 |
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Vesting of Marital Property Determines the Scope of the Bankruptcy Estate |
Creditors seeking to foreclose in state court on their real property liens frequently find their efforts frustrated by serial bankruptcy filers attempting to use the protections of the automatic stay to delay the foreclosure. To address this problem, § 362(c)(4)(A) of the Bankruptcy Code provides that when a debtor has had two or more cases pending and dismissed within a one-year period, the automatic stay will not take effect. Debtors seeking the protections of the automatic stay must file a separate motion seeking such relief. The standards of what a debtor must demonstrate in order for the bankruptcy court to impose the automatic stay,
despite the prior filings, are beyond the scope of this article. |
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Part 1: Divorce Issues in Bankruptcy Often Make Handling Divorce Matters Advantageous |
Although numerous issues intertwining bankruptcy affect divorce claims, some divergent bankruptcy matters need to be brought to the attention of most domestic attorneys representing the party to whom obligations are owed: (1) your client’s divorce-related debt will not be discharged and you do not need file an adversary proceeding to preserve the debt; (2) do not over-litigate your client’s interest to a bankruptcy judge as the same will not be embraced; (3) many times you will not need stay relief to pursue divorce matters; (4) file a proof of claim; (5) be less concerned about a preference action against your domestic support obligation
(DSO) client; and (6) your client’s rights against homestead or other exempt assets improve in bankruptcy, particularly when the debtor resides in a debtor-friendly state such as Florida. |
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Avoiding [via] the National Form Plan |
An amendment to Rule 3015(c)(1) is currently under review that will permit courts to “opt out” and use a Local Form Plan. Public comment ended on Oct. 3, 2016, and it looks as if Official Form 113, also known as the National Form Plan, and the related Rule amendments will go into effect on Dec. 1, 2017, absent intervention from the Judicial Conference, the Supreme Court or Congress.
This imminent inevitability has led many bankruptcy courts to consider opting out of the National Form Plan. Instead of adopting the Official Form, a district may require a local form plan, provided it satisfies proposed Rule 3015.1.
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Need to Learn More about Bankruptcy Appeals? |
The ABI Bankruptcy Litigation Committee presents a must-see webinar for bankruptcy practitioners about the appeals process. The panel will explore the nuts and bolts of bankruptcy appeals – the statutes, rules, and decisions governing how to obtain appellate review of different types of bankruptcy court orders and the mechanics of initiating and prosecuting appeals, the differences between the district court and the BAP appeals, strategic considerations, and — most importantly — how to win your appeal. The distinguished panel of appellate judges and practitioners will offer their views on best practices for brief writing and conducting persuasive oral arguments in both intermediate appellate courts and circuit courts, as well as common errors to avoid in oral argument.
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Register for February's Eye on Bankruptcy |
Hosted by Michelle Harner (University of Maryland Francis King Carey School of Law), February's Eye on Bankruptcy will include speakers Hon. Thomas J. Catliota (U.S. Bankruptcy Court, D. Md.; Greenbelt) and Donald A. Workman (BakerHostetler;
Washington, D.C.). Speakers will discuss some of January's trendiest consumer bankruptcy cases, and CLE will be available in qualifying states.
Click here to register for this month's show! |
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©2017 American Bankruptcy Institute . All rights reserved.
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