Is it a death knell for cases beyond 60 months? Under the CARES Act 11 USC Sec. 1329 was amended to include a temporary provision that permitted confirmed chapter 13 plans to extend the plan term to up to 84 months. To do so, debtors were required to show they were affected by COVID, Sec. 1329(d). [i] The maximum term under 11 USC Sec. 1329(c ) has always been 60 […]
An attorney meets with a potential client about a recent auto accident personal injury claim. The client suffered severe injuries and may be entitled to a large award. The client fails to mention that he is a debtor in an active bankruptcy. The client also has failed to advise his bankruptcy attorney about the personal injury claim. The debtor/client does not realize the importance of disclosure of the claim. The […]
It is always troublesome when an individual bankruptcy petition is filed by power of attorney. It may be less of a concern in a chapter 7 case when the debtor is in the military, incarcerated, or temporarily disabled. More worrisome is the incompetent or advanced aged debtor who has been placed in a chapter 13 by someone holding a power of attorney (POA). What sort of inquiry is necessary and […]
Faced with abusive and serial bankruptcy cases, courts have fashioned various sanctions to put a stop to gaming the system. The favored sanction of the majority of courts is to enter an order of dismissal with prejudice under Section 349(a) of the Bankruptcy Code that adds a condition prohibiting refiling another bankruptcy case for a set period of time. See Lundin on Chapter 13 Sec. 153.3 “Court-Imposed Conditions and Restrictions […]
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The Duty of Non-Bankruptcy Attorneys to Make Reasonable Inquiry of a Client’s Bankruptcy
What duty does a non-bankruptcy attorney have to determine whether a client or a potential client is or has been a debtor in a bankruptcy case? The wrong answer to that question may prove disastrous to successful pursuit of claims on behalf of the client and threatens counsel with professional and financial exposure. A debtor’s failure to disclose causes of action in a bankruptcy case has ramifications for the debtor, […]