Case Updates

Dear constituency list members of the Insolvency Law Committee, the following is a recent case update:    SUMMARY On June 12, 2014, in Clark v. Rameker, the United States Supreme Court unanimously held that funds held in inherited IRAs are not “retirement funds” within the meaning of 11 U.S.C. §522(b)(3)(C) and are therefore not exempt property.  To read the full decision, click here:  http://www.supremecourt.gov/opinions/13pdf/13-299_6k4c.pdf FACTS In 2001, Heidi Heffron-Clark inherited an individual retirement account (“IRA”) worth roughly $450,000 from her mother’s estate.  Heffron-Clark… Read more

On July 14, 2014, the Consumer Financial Protection Bureau (CFPB) filed a lawsuit in federal district court against law firm Frederick J. Hanna and Associates and three of its partners. The action alleges that the firm, which filed more than 350,000 debt collection lawsuits in Georgia alone between the years 2009 and 2013, violated the Fair Debt Collection Practices Act (FDCPA) as well as the Dodd-Frank Wall Street Reform and Consumer Protection Act by operating “less like a law firm… Read more

The complaint was recently unsealed in a Qui tam action, where plaintiff and Texas resident Michael Fisher brought a $1 Billion dollar whistleblower action against Wells Fargo Bank N.A. under the False Claims Act. The complaint was filed in the United States District Court for the Southern District of New York. From 2008-2012, Fisher worked for law firms assisting with loan modifications relating to residential property mortgage loans made by Wells Fargo and other servicers or lenders. In 2009, the… Read more

Dear constituency list members of the Insolvency Law Committee, the following is a case update analyzing a recent case of interest: SUMMARY On June 11, 2014, in Heller Ehrman LLP v. Davis, Wright, Tremaine, LLP, the United States District Court for the Northern District of California ruled that the trustee of the bankruptcy estate of the defunct law firm Heller Ehrman LLP (“Heller”) could not recover fees earned by other law firms on Heller matters that former Heller shareholders took with… Read more

Dear constituency list members of the Insolvency Law Committee, the following is a case update analyzing a recent case of interest: SUMMARY On June 9, 2014, in Executive Benefits Ins. Agency v. Arkison, the United States Supreme Court ruled that, pursuant to 28 U.S.C. § 157(c)(1), a bankruptcy court may make proposed findings of fact and conclusions of law in a Stern “core” proceeding subject to de novo review by an Article III court.    To read the full decision, click here: http://www.supremecourt.gov/opinions/13pdf/13-339_886a.pdf.  FACTS The Palavedas owned two companies… Read more

On May 14, 2014, the Office of Mortgage Settlement Oversight released its Compliance in Progress report summarizing the six compliance reports filed with the United States District Court for the District of Columbia. These reports are required by the February 9, 2012 national mortgage settlement reached between the attorneys general of 49 states and the District of Columbia (every state except Oklahoma), the federal government and five banks and mortgage servicers – Ally/GMAC, Bank of America, Citibank, J.P. Morgan Chase… Read more

Dear constituency list members of the Insolvency Law Committee, the following is a case update on a recent decision of interest: SUMMARY The Supreme Court of the United States held that a bankruptcy court exceeded the limits of its authority by imposing a surcharge on a debtor’s homestead exemption to pay for a chapter 7 trustee’s litigation fees and costs incurred in avoiding a fraudulent lien against estate property created by the debtor.  In a unanimous opinion written by Justice… Read more

Dear constituency list members of the Insolvency Law Committee, the following is a case update analyzing a recent case of interest: SUMMARY In connection with the proposed sale of substantially all of the debtors’ assets free and clear of liens under Bankruptcy Code Section 363(k), the bankruptcy court for the District of Delaware found “cause” within the meaning of Section 363(k) to limit the senior secured creditor’s right to credit bid its secured claim to the discounted amount the secured… Read more

Dear constituency list members of the Insolvency Law Committee, the following is a recent case update: SUMMARY The Bankruptcy Appellate Panel of the Ninth Circuit affirmed the bankruptcy court’s dismissal, with prejudice, of a debtor’s fraudulent transfer action seeking to avoid the sale of tax-defaulted real property because: (i) the complaint failed to allege sufficient facts, (ii) the debtor unduly delayed in seeking to amend the complaint, and (iii) amendment of the complaint was futile, since a properly conducted sale… Read more

The Consumer Financial Protection Bureau issued its latest Supervisory Report this week, highlighting in particular the types of unfair and deceptive practices found by CFPB examiners to have been committed during the reporting period July – October 2013 by mortgage servicers. These practices were uncovered by examiners in connection with: servicing transfers; waivers of rights in loss mitigation agreements; payment processing; furnishing information to consumer reporting agencies; and other issues arising in servicing of defaulted loans. The CFPB adds that… Read more