South Carolina Lawyers Weekly
Although the bankruptcy code allows a debtor to claim certain personal property as exempt, the Treasury Department has a superior right to claim a tax overpayment, in order to offset monies owed to another federal agency. Background To finance the ...
Read More »Bankruptcy – Treasury can claim debtor’s tax overpayment
Bankruptcy – IRS’s offset right trumps debtor’s right to receive tax overpayment 
The case of first impression held that despite a bankruptcy code section providing that exempt property cannot be used to satisfy a debtor’s prepetition debts, the tax code makes clear the government’s right to set-off a tax overpayment against a ...
Read More »Bankruptcy 1997 decision on homestead bifurcation overruled
The 4 Circuit, sitting en banc, holds that a Chapter 13 plan may bifurcate a claim based on an undersecured homestead mortgage into secured and unsecured components and cram down the unsecured component, overruling a 1997 decision that had ...
Read More »Bankruptcy – 1997 decision on homestead bifurcation overruled
The 4th Circuit, sitting en banc, holds that a Chapter 13 plan may bifurcate a claim based on an undersecured homestead mortgage into secured and unsecured components and cram down the unsecured component, overruling a 1997 decision that had been ...
Read More »Bankruptcy – Debt may be dischargeable under collateral estoppel
A debtor might be able to discharge a $20 million plus judgment through a Chapter 7 bankruptcy. The district court found the debt nondischargeable under principles of collateral estoppel, reasoning that, because the debtor was found liable for misappropriating trade ...
Read More »Bankruptcy – Post-petition payments can’t be sought for child support
The Bankruptcy Code is clear that when a Chapter 13 plan is not confirmed, the trustee must return post-petition payments to the debtor. As a result, the child support division could not levy on funds held by the trustee because ...
Read More »Bankruptcy – Real Property – Mortgages – Prior Discharge – Standing
Even though the debtor’s promissory note was discharged in a prior bankruptcy, his mortgage remains enforceable, and the current servicer of the mortgage has standing to file a proof of claim to enforce the mortgage. Creditor Ditech Financial LLC’s secured ...
Tagged with: Real Property
Read More »Bankruptcy – Chrysler – Tort/Negligence – Products Liability – Assumption
On July 20, 2015, plaintiff’s decedent suffered fatal injuries when the airbag in a 2009 Chrysler Dodge Durango failed to deploy. Where plaintiff’s product liability claims of negligence, breach of warranties and strict liability (1) involve a vehicle made on ...
Tagged with: Tort/Negligence
Read More »Bankruptcy – Appeals – Real Property – Mortgages – Interest Rate Floor – Note & Rider
If there was a floor to the variable interest rate on the appellant-debtors’ note and mortgage, the debtors are in default; however, if there was no floor, the debtors have overpaid. Where a rider to the debtors’ mortgage set an ...
Tagged with: Real Property
Read More »Bankruptcy – Chapter 7 – Motion to Dismiss – No Abuse – Medical Conditions & Reduced Pay
Although the debtor did not face a sudden medical emergency or unemployment, he did face increasing medical problems and reductions in his earnings. And while he made questionable financial decisions in the months before he filed bankruptcy, those decisions were ...
Tagged with: Chapter 7
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