The recent case of In re McLain, 2007 WL 3124688 (Bkrtcy.N.D.N.Y.,2007) confronted the question of whether a debtor’s Chapter 13 Plan payments must increase as secured debts were paid off.
The Debtors filed a Chapter 13 case noting that they had three vehicle loans, all of which would mature during the course of their plan. The Plan, however, did not call for payments to increase as the vehicle loans were paid off.
The Chapter 13 Trustee and an unsecured creditor, eCast Settlement Corporation each objected to the confirmation of a proposed Chapter 13 Plan on the grounds that the proposed plan failed to devote all of the Debtors’ “projected disposable income” to be received in the “applicable commitment period” within the meaning of 11 U.S.C. § 1325(b)(1)(B).
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In the recent case of In re Boyd, 2007 WL 4248590 (Bankr.M.D.Pa. 2007) the court was confronted with the issue of whether a debtors’ $2400 per year contribution to their adult child attending college was necessary expense for the purposes of alculating disposable income in a Chapter 13 case. For this over-median debtor, the court held that the expense was not reasonable.
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This is the question posed in the recent case of In re Martiny, 2007 WL 3326585 (Bkrtcy.W.D.N.Y.,2007). The debtors, husband and wife, filed a Chapter 7 bankruptcy after entering into a contract to sell their residence at 90 East Terrace Avenue in Lakewood, New York. Before finalizing either step, Mr. and Mrs. Martiny used $36,000 of otherwise non-exempt assets to reduce the balances due on obligations secured by mortgages on their home. Although they had already contracted to sell their residence to a third party, the debtors still lived on the premises. Accordingly, in schedules filed with their bankruptcy petition, the debtors claimed a homestead exemption. On May 21, the debtors moved to compel the trustee’s abandonment of the East Terrace property, so that they might consummate the proposed sale. As an interim measure, the debtors and their trustee agreed to close the transaction, but to place the net proceeds into escrow until a resolution of the trustee’s objection to the claim for a homestead exemption.
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The recent case of In re Mu’Min, 2007 WL 2791364 (Bkrtcy.E.D.Pa. 2007) the court held that the refusal of University of Pennsylvania to provide a transcript to a debtor, due to the existence of an unpaid, student loan debt that is nondischargeable under 11 U.S.C. § 523(a)(8), violates the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a)(6). The court further held that regardless whether the facts giving rise to Penn’s asserted “good faith” would have constituted a defense to monetary liability under the standard set forth in by the Third Circuit in In re University Medical Center, 973 F.2d 1065 (3d Cir.1992), after the 2005 amendments to the Bankruptcy Code, Penn’s defense was no longer legally viable and awarded actual damages to the Debtor.
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In the case of Munoz v. Pipestone Financial, LLC, Civil No. 04-4142 (JNE/SRN) (D.Minn. 8/30/2007), the Plaintiff claimed that Pipestone Financial, LLC, and Messerli & Kramer, P.A., (collectively, Defendants) violated the Fair Debt Collection Practices Act (FDCPA) by attempting to collect interest at an impermissible rate, misrepresenting their entitlement to attorney fees, and using envelopes that reveal personal and confidential information about him in communications with him. The court held in part as follows:
[S]tipulated attorneys’ fees are no part of the original debt; [and] the right to them does not accrue until the payee incurs the liability, and then only to the extent of the reasonable value of the attorneys’ services actually performed or to be performed, which must be proved. . . . The full amount for which the maker is liable on such stipulations is not really due when suit is brought, for the services of the attorney are not then fully performed.
Therefore, if a collection letter include legal fees then that collection letter violates the FDCPA.
