Summary: The Debtor filed a pro se reaffirmation agreement for a lease, but the bankruptcy court held not only would this reaffirmation be an undue hardship under 11 U.S.C. § 524, but also that assumption is governed by the procedures … Bankr. M.D.N.C.: In re Jacob- Reaffirmation and Assumption of Lease Read More »

Abstract:One in ten adult Americans have turned to the consumer bankruptcy system for help. For the past almost forty years, the only systematic data collection about the people who file bankruptcy comes from the Consumer Bankruptcy Project (CBP), for which … Law Review: Foohey, Pamela and Lawless, Robert M. and Thorne, Deborah, Portraits of Consumer Bankruptcy Filers in the United States (March 18, 2021). Georgia Law Review, Vol. 56, Forthcoming. Read More »

Abstract:In the first three years of Public Service Loan Forgiveness (PSLF), over 227,000 borrowers applied for relief. The U.S. Department of Education granted relief to less than 3800 borrowers, denying forgiveness to roughly 98% of the program’s applicants. This astronomically … Law Review: Robert Wu, America’s Unforgiving Forgiveness Program: Problems and Solutions for Public Service Loan Forgiveness, 72 Hastings L.J. 959 (2021). Read More »

Filing Bankruptcy In Arizona: A Detailed Outline Of Each Phase Mesa’s Reliable Bankruptcy Attorneys Carefully Explain The 6 Steps In a Bankruptcy Process By the time you’re ready to file for bankruptcy, you likely want to get it done as quickly as possible. You have likely been underwater for a long time, and you want debt relief NOW. You don’t want to spend another single day dealing with harassing phone calls, emails, or letters from your creditors. You just want to be past it all. Fortunately, filing for bankruptcy can give you fast debt relief. However, it won’t be instant. At a minimum, it will be a few months before you are done with it all, though you will get immediate relief from harassment from your creditors. Here’s a closer look at the phases of bankruptcy to help you know what to expect: Pre-Bankruptcy Counseling Before you can file for bankruptcy, you have to complete an approved counseling course. The “course” is really a one-on-one session with a counselor who will talk to you about your finances, help you understand how bankruptcy may impact you, discuss your other financial options, and help you start a budget. Your Mesa bankruptcy attorney can suggest an approved counselor for you to complete this step. The Bankruptcy Filing You will spend the most time on putting together the bankruptcy filing with your bankruptcy attorney than on any other part of the bankruptcy process. Your attorney will ask you for a lot of documentation about your income, your expenses, and your debts. You may be asked to provide explanations for some expenses or debts also. Your bankruptcy attorney in Mesa will spend a lot of time on your bankruptcy filing, ensuring that everything is filled out completely and accurately. Any mistakes on your filing could jeopardize your ability to get debt relief or could cause other trouble. Be transparent with your attorney and provide as much information as you can. The Automatic Stay As soon as your bankruptcy attorney files your bankruptcy paperwork, an automatic stay will be triggered. The automatic stay prohibits your creditors from contacting you about your debt until your bankruptcy filing can be resolved. That means that creditors cannot call you, send you letters, or send you emails. If they do, they can face legal consequences. You may get a call or letter after your automatic stay is issued just because it was initiated before your creditor got proper notice. If that happens, just let the creditor know that you have filed for bankruptcy and direct them to your bankruptcy attorney in Mesa. Meeting Of Your Creditors This may sound scary, but it is usually a formality. About a month or two after your bankruptcy paperwork is filed, you will have a creditor’s meeting. None of your creditors are actually likely to show up for this meeting. Instead, it will be you, your bankruptcy lawyer, and a bankruptcy trustee. The trustee will review the filing and will likely ask you a few questions. Your creditors have the opportunity to attend these meeting or to send in a formal complaint, but this is a rare occurrence. Instead, your bankruptcy trustee will likely close the meeting by approving your bankruptcy filing or by setting up the payment plan for your Chapter 13 bankruptcy filing. Debtor Education Course You must take another education course before your bankruptcy can be finalized. This debtor education course will cover things like how to make a budget, how to manage your money, and how to use credit wisely. The course takes about two hours to finish, and it can be completed online in many cases. Notice Of Discharge The last step in the bankruptcy process is discharge. You will receive this in a Chapter 7 bankruptcy after the trustee has reviewed your filing and found no issues, and after you have completed the debtor education course. In a Chapter 13 bankruptcy, you will receive the notice of discharge after you have completed your three- to five-year repayment plan. The entire bankruptcy process only takes a few months to finish. If you filed for Chapter 7 bankruptcy in Mesa, you’ll have a complete discharge of your unsecured debt at the end of that time. If you filed for Chapter 13 bankruptcy, you’ll begin your repayment plan, which will take three to five years to finish. At the end of that time, you may be able to discharge some of your remaining debt. Seeking Debt Relief? Our Arizona Bankruptcy Law Firm Can Help! Call My AZ Lawyers today to talk with an experienced bankruptcy lawyer about whether bankruptcy might be right for you. We represent clients seeking protection through Chapter 7 bankruptcy or Chapter 13 bankruptcy. Our goal is to help you get the maximum debt relief possible as quickly as possible. We serve clients throughout the Phoenix area. Call us today to make an appointment with a Mesa bankruptcy attorney to learn more about your options.   Arizona Offices: Mesa Location: 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: (480) 448-9800 Email: [email protected] Website: https://myazlawyers.com/ Glendale Location: 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: (602) 509-0955 Tucson Location: 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: (520) 441-1450 Avondale Location: 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 Office: (623) 469-6603 The post Filing Bankruptcy In Arizona: A Detailed Outline Of Each Phase appeared first on My AZ Lawyers.

The Bankruptcy Chapter 11 Subchapter V debt limit of $7,500,000 has been extended for 1 more year to March 2022. The House passed a bill, which was signed by President Biden this week. Any clients, attorneys or accountants who have questions about Subchapter V Bankruptcy should contact Jim Shenwick 212 541 6224  [email protected]

Congratulations, you are almost the owner of a new home! It is an exciting time, and it is important to celebrate every step of the real estate buying process.  Before you can move into your new home, there are a few critical steps to complete. As a buyer, it is essential to check off every requirement to avoid issues and delays at closing. Buying a home is often the largest purchase a person makes in their life. Before signing any paperwork, you must review and understand the documents. A real estate lawyer is beneficial in explaining the complicated legal documents and inspecting the contracts. To assist with the buying process, Wisconsin real estate lawyer, Shannon Wynn, created this buying guide and buyer’s checklist to help new home buyers. This helpful guide will review the closing timeline, answer common questions, and provide a closing checklist for real estate buyers.  Real Estate Closing Timeline for Buyers Buying a home is generally a long, complicated process with many steps and procedural formalities. The Offer to Purchase begins the process and includes the price the buyer will pay for the property, the closing date, contingencies that must be met, and other important terms and conditions for the transaction. Once an offer is accepted, it is time to prepare for closing. The purchasing process usually takes 30-60 days from when an offer is accepted.   Hiring an experienced real estate lawyer and realtor make the closing process significantly smoother. These professionals are valuable in assisting you through the stressful contract-to-closing period. If you are looking for a Wisconsin real estate lawyer to help you with the closing of your new home, contact Wynn at Law, LLC at 262-725-0175 or send us a message. Home Buyers Pre-Closing Checklist Resolve Contingencies The initial Offer to Purchase will have contingencies that need to be met before the transaction is finalized or closed. The most common contingencies are: home inspection, appraisal, and financing. The steps below will cover these contingencies and other common transaction conditions.  Order A Home Inspection It is highly recommended to have a professional home inspection conducted by a licensed home inspector. The inspection is the buyer’s opportunity to identify any significant issues, known as defects, before closing. The home inspection is also a chance for a buyer to learn more about the features of the home. There are many systems and features for the inspector to check. Below is a list of items that you may want to have the inspector review:  Building structure and foundationRoof and chimneyPlumbingElectricalHeating/cooling system (HVAC)Windows, doors, floors, and wallsLand grading and drainage Once the inspection is finished, the inspector will create a report that notes any defects that were identified during the physical inspection.  Depending on the transaction, the Offer to Purchase may include additional tests which are separate from the home inspection, such as:   Septic inspectionRadon testMold testWell inspectionWell water testAsbestos test If the home inspection or test identifies defects in the property, it may be worthwhile to negotiate with the sellers for a credit/price reduction or for the repairs to be completed prior to closing. A Wisconsin real estate lawyer can advise buyers about inspection contingencies and prepare an Amendment to the Offer to Purchase to account for the repairs. Order An Appraisal Lenders require the real estate to be appraised and will not commit or approve  a loan until the appraisal is completed. For this step, an appraiser may visit the property and ensure that the purchase price is considered fair market value. The buyer must check that the appraisal value is at or above the contract price before proceeding with the closing process.  Order A Survey As the buyer, you may be interested in having a survey of the property conducted. If listed as a contingency in the offer, the seller will typically pay for the survey. In some cases, there may already be a recent survey on record. Get Final Mortgage Approval & Lock In Your Rates Buyers usually finance their purchase with a mortgage from a bank, credit union, or other commercial lenders. Once your final contract has been signed, it is vital to provide your lender a copy. Before closing, it is beneficial to discuss the interest rate with the lender. Locking in the interest rate is important because even small fluctuations in the rate can increase your monthly payments.  Shortly before closing, your lender will be able to provide you with a loan commitment; the commitment states that you will receive a loan from the lender in the amount necessary to purchase the real estate.   Note: All interested home buyers should be pre-qualified for a mortgage loan before beginning a home search. Pre-qualification makes the offer to purchase and final approval process quicker. Check The Property Title Prior to closing, you need to conduct a full review of the property title to ensure that the seller is legally able to sell the property. A title search is an essential step in the pre-closing process. A title search verifies that the seller can legally transfer ownership of the property and that the property has no easements, disputes, or liens. In this step, all existing records, including deeds, mortgages, paving assessments, divorce settlements, liens, and other public documents are thoroughly reviewed and examined. A property owner must fix errors, disputes, tax debts, and liens on the title prior closing. Buyers should have a real estate lawyer review the title insurance commitment for an additional layer of protection against issues with the title.       Purchase Homeowners Insurance All lenders require that buyers purchase homeowners insurance. This type of insurance protects the lender from a loss if the home is damaged or destroyed. Some lenders only require you to purchase homeowners insurance in the amount equal to your loan. It is recommended to have coverage equal to your property value and personal belongings replacement cost. Conduct A Final Walk-Through Of The Home The final walk-through allows the buyer to confirm that the condition of the property has not changed since the Offer was accepted. Typically, the final walk-through occurs in the 24 hours before the closing. This step enables buyers to check that the home is vacated, clean, and in the expected condition. During the final walk-through, take your time to verify all repairs and that all items/appliances/furniture included in the Offer to Purchase are correct.  Review The Closing Disclosures (CD) The Closing Disclosure is a document sent to a Buyer from their lender. This document will include important information about your mortgage, including your monthly mortgage payments, loan interest rate, length of your mortgage, and additional fees related to the closing. The buyer must sign the CD at least three business days prior to closing to ensure there are no issues. Confirm The Closing & Move-In Dates The closing date is set in the original Offer to Purchase. Most often, you are able to move in the same day as closing, but occupancy information is also in your Offer to Purchase. Some additional steps may be unique to your home buying situation. Contact a local Wisconsin real estate lawyer to ensure that all legal documents, correspondence, and closing criteria are lawfully met. Buyers Closing Day Checklist – What To Expect  Once all the contract contingencies are met and the steps listed above have been completed, the transaction can close. At the closing, the buyer and seller will meet at the title company’s office at the agreed-upon date and time. Buyers should plan to sign numerous, complex legal documents and spend up to an hour at the closing.   Below are some of the documents that buyers may sign at the closing:  Promissory noteClosing DisclosureClosing StatementMortgageTitle Company Disclosure It’s wise to have your real estate lawyer attend the closing with you to explain the documents and to answer questions. Lawyers often spot potential problems that can be fixed and will assist with unanticipated issues that may arise.  Items Buyers Should Bring To Closing Photo ID (official government-issued ID, such as driver’s license or passport)Proof of wire transfer, escrow account information, or cashier’s checkCheckbook  After Closing Checklist After closing, the property deed is recorded at the county Register of Deeds office. The deed is then returned to the buyer via mail. This filing puts the buyer’s ownership of the property on the public record. After the closing, the buyer will also receive a copy of the title insurance policy for their records.  Congratulations – once the closing process is completed, you have purchased your new home! Do I Need A Lawyer For The House Closing Process? Wisconsin does not require a real estate lawyer for real estate transactions, but it is highly recommended for buyers. Your Wisconsin real estate lawyer will protect your interests and make sure all legal documents, correspondence, and closing criteria are lawfully met.  Wynn at Law, LLC Helps Buyers Throughout The Real Estate Closing Process Buying a home is a detailed process that takes time to complete. As the buyer in a real estate transaction, it is always better to have a real estate lawyer on your side. By law, only a real estate lawyer can provide you with legal advice during the home buying process, not a real estate agent, loan officer, or closing agent. If you need a Wisconsin real estate lawyer when buying a property, please contact Wynn at Law, LLC by phone at 262-725-0175 or send us a message on our website’s contact page. Wynn at Law, LLC has law offices located in Lake Geneva, Salem, and Delavan, Wisconsin. Continue Reading: Real Estate Closing Checklist for Sellers The post Real Estate Closing Checklist For Buyers appeared first on Wynn at Law, LLC.

Abstract: Imagine if you bought a refrigerator from BestBuy on credit and BestBuy reserved the right to disable that refrigerator remotely if you failed to pay. This is not a future fantasy; subprime car lenders have been doing something similar … Law Review: Moringiello, Juliet M., Automating Repossession (March 15, 2021). Widener Law Commonwealth Research Paper Read More »

   The District Court for the Northern District of California affirmed the bankruptcy court's ruling finding a condominium association violated the automatic stay and discharge injunction as to collection activities on post-petition dues on a surrendered condominium in In re Parker, 2021 U.S. Dist. LEXIS 53663, Case No 19-cv-2588-YGR (N.D. Cal. 22 March 2021).  The lower court had awarded $5,000 emotional distress damages, $39,000 in property right interference damages, and $10,000 in punitive damages for such violations, as well as $369,346.90 in attorneys fees and $9,770.05 costs; and held two of the association's board members to be jointly and severally liable for the $39,000 in property interference damages.  The bankruptcy court had declined to hold the respondents in contempt under §105 for repeated stay violations or violations of the discharge injunction applying the 'good faith belief' standard of In re Taggert, 888 F.3d 438, 444 (9th Cir. 2018).  The condominium at issue was part of a 33 unit condominium development in a former Oakland warehouse.  Sarah-Jane Parker,  purchased unit 990 of such condominium in 2005, subject to covenants, conditions and restrictions (CC&Rs).  Such CC&Rs mandate annual assessments, require each unit to be kept in good repair, and allow the association to make necessary repairs and assess costs against the owners. A change in the composition of the condominium's board in 2012 resulted in a recalculation based on a unit's size and retroactive assessments based on such new calculations, resulting in changing the assessment on Debtor's unit from $7,000 to over $22,500/year.  The board filed suit against Parker in May 2013 to collect the unpaid assessments, and Parker cross-complained challenging the validity of the assessments and alleging breach of fiduciary duty.   In October 2014 Parker filed for relief under chapter 13 of the Bankruptcy Code, listing the association on schedule D as a disputed claim.  The plan provided for surrender of the unit to satisfy the secured claims of the association, the county tax assessor, a mortgage lender and a loan servicer.  Specifically, the surrender modified the automatic stay to 'allow a class 3 secured claim to exercise its rights against the collateral.'  The plan provided that 'Surrender shall be in full satisfaction of any secured claim by Bayside Court Owners Assn'.  Finally, the plan provided that property will revest in the debtor upon confirmation, and provided that after revesting the debtor may sell, refinance, or execute a loan modification without further order of the court or trustee approval.  On 13 March 2015 the association filed a motion for relief from stay to permit foreclosure or other disposition of its secured interest in the property.  Such request was granted by the court.  On 3 November 2015 Parker filed the first motion for sanctions for violation of the stay.  While this motion was pending, on 1 December 2015 the court granted the chapter 13 discharge.      A number of violations were asserted by Parker.  On 2 December 2014 the association sent Parker a 'late payment demand and notice of deficiency' including assessments, finance charges, and late fees from 20 September 2012 to 2 December 2014 asserting a liability of $169,669.88, including $159,656.42 that was over 90 days past due.  The notice threatened to sell her property to the highest bidder to satisfy the lien.  On 3 January 2015 a similar letter was sent to Parker, which included $22,558 for accelerated assessments for all of 2015 plus late fees and finance charges.  The association also imposed 22 separate fines between 1 December 2014 and 30 March 2015 for 'violation of rules' including $5,000 in fines for i) failure to pay property taxes, assessments, and city taxes; ii) failure to advise of tenant identity, acting in a manner which generally reduces building security; and iii) failing to perform required graffiti removal and rodent control.  On 20 April 2015 the association sent an additional invoice for $6,500 in fines for various construction/installation violations.  On 1 May 2015 the association sent a corrected assessment for the accelerated 2015 assessments from May to December 2015 and an invoice for additional retroactive assessments that had been understated for 2010-2014 based on a 2015 remapping project.      Parker also asserted two discharge violations.  On 2 April 2016 the association sent a demand for $81,855.79 in post-petition assessments, fines, retro-assessments, and finance charges.  This notice did list a 'zero balance' for prepetition assessments, acknowledging that these had been discharged.  Parker also asserted that the association's continued collection of rent on the property was a violation of the discharge order.   On 25 May 2015 the association executed a lease of the property to a third-party tenant for $6,500/month noting that the association had been granted the right to foreclose on the property and granted the right to attempt to recover the revenue and operating costs per it's CC&Rs.  This was done 1 month before the CC&Rs were amended to permit the association to lease an abandoned unit with delinquent assessments.   The District Court initially examined the extent of the automatic stay under 11 U.S.C. 362, concentrating on 11 U.S.C. 362(a)(4) and (a)(5).  §362(a)(4)  bars any act to create, perfect or enforce any lien against the bankruptcy estate.  §362(a)(5) extends the stay to acts to create, perfect or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title.  Similarly §362(a)(6) prohibits any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title.  Such stay continues until the earliest of the date the case is closed, the case is dismissed, or, inter alia, the time a chapter 13 discharge is granted or denied.  Willful violation of such sections requires recovery of actual damages, including costs and attorney fees, and in appropriate circumstances: punitive damages (11 U.S.C. 362(k)).  Willful conduct simply requires that the creditor knows of the stay and that the actions that violate the stay are intentional.1  Actual damages are mandatory for a willful violation.      Emotional distress damages is permitted if the debtor 1) suffers significant harm, 2) clearly establishes the significant harm, and 3) demonstrates a causal connection between the harm and the stay violation.2  Punitive damages require some showing of reckless or callous disregard for the law or rights of others, or where the conduct is malicious, wanton or oppressive.3  The association asserted that after the plan was confirmed it was entitled to exercise in rem rights to enforce delinquent assessments, fines, and costs; arguing that the automatic stay ended when the plan was confirmed and property revested in Parker.  Pursuant to 11 U.S.C. 362(c)(2) the stay continues until A) the case is closed; B) the case is dismissed, or C) under chapter 13 until the discharge is granted or denied.  Therefore the stay was still in place upon confirmation of the plan.  Further the association violated §§362(a)(5) and (a)(6) by continuing to attempt to recover a claim and enforce a lien that arose before the commencement of the case.  Even if the association were correct, confirmation was nearly two weeks after the December 2 late payment demand.  Next the court examined whether post-petition assessments would be subject to the automatic stay and discharge.  Per the 9th Circuit's decision in Goudelock v. Sixty-01 Ass'n of Apartment Owners, 895 F.3d 633, 636 (9th Cir. 2018) post-petition assessments are treated as claims arising prepetition, and therefore dischargeable in a chapter 13 bankruptcy.  The 9th Circuit found that the personal obligation to pay post-petition assessments was not the result of a separate, post-petition transaction, but was created when the debtor took title to the condominium unit.  Thus, as these assessments were a dischargeable prepetition debt, even though maturing post-petition, collection efforts on them are an attempt to collect a claim dischargeable in bankruptcy.4  The court examined the terms of the plan and confirmation order, finding that the surrender and revesting provisions modified the stay allowing the association to exercise their existing lien rights but prohibiting them from seeking payment on the debt from Parker.  The association never pursued its in rem rights, ie to foreclose on the property; instead pursuing in personam collection efforts against the debtor. The district court also rejected that association's claim that the late payment demands were sent for informational purposes only.  The bankruptcy court found such demands to be coercive and harassing.  This was based on the fact that the parties were already well aware of the association's claim and how it was being treated in the bankruptcy, after two years of litigation the demand served no purpose other than to harass and pressure parker; and that the association admitted at trial that the association should not have issued demands that included prepetition assessments. Even if the notices included an overlay 'for informational purposes only', which was disputed, the court found they were still sent with an intent to harass Parker.    The court also rejected the association's claim that the disciplinary fines were based on post-petition findings of post-petition violations related to failure to maintain the property and to comply with the CC Rs.  The bankruptcy court had found that nearly all grounds for the fines existed pre-filing, and therefore were properly classified as prepetition claims.  Parker had vacated the property shortly after filing the bankruptcy.  The fines for alternations to the unit predated the bankruptcy.  As to damages alleged by unapproved squatters, that could have been fairly contemplated at the time of the bankruptcy filing, it constituted a prepetition contingent claim.    The district court also agreed that the retro-assessment invoice of May 15 2015 was a violation of the stay.  Rejecting the association's claim that it was simply a demand for payment, the invoice clearly sought assessments for the prepetition period.  The bankruptcy court also found that settlement demands sent by the association violated the automatic stay, despite the fact that such demands were sent to bankruptcy counsel.  The association argues that good faith settlement negotiations are not stay violations.   The bankruptcy court found that the demands on 29 October 2014, very shortly after the case was filed; and on 15 December 2014 were coercive, harassing attempts to collect a pre-petition debt, and thus violated the automatic stay.  This was based on the fact that the communications demanded payment of $25,000 plus any additional legal costs incurred after 10/32/2014 until the settlement agreements was signed by Parker, and threated If the offer is not accepted they would move forward with their lawsuit with new counsel and cross-complaining Unit 990's tenant and realtor among other things inclusive of filing multiple adverse claims with the Bankruptcy Court.  This will occur if you manage to maintain the Chapter 13 filing (which is full of errors by the way) vis a vis the Trustee's current valid move to dismiss, or convert to a chapter 7 as has always been expected.   The settlement demand was authored by the Secretary/Treasurer of the association: Laurence Jennings.  The bankruptcy court noted that Jennings had evidenced significant disdain for the bankruptcy process and advised the board on all things related to the handling of Parker's property.  The court concluded that the demands were an attempt to make Parker's life miserable through improper, willful attempts to collect pre-petition debt that were harassing and coercive in nature.  In reviewing the case cited by the Association: In re Diamond, 346 F.3d 224, 227 (1st Cir. 2003) the court determined that this case stood for the proposition that settlement negotiations are not per se violations of the stay, but must be evaluated based on whether they constituted impermissible 'coercion or harassment'.  This is evaluated based on the immediateness of any threatened action and the context in which the statement is made.  In the Diamond case a threat to report the debtor to the real estate commission and have his broker's license revoked unless the creditor's claim was settled was determined to be coercive and therefore a violation of the stay.  The fact that the communication was to counsel rather than the Debtor did not prevent such finding.  Based on Diamond the district court found that the the inclusion of the threat of continued legal action outside the bankruptcy court supported the bankruptcy court's findings of a stay violation.  The bankruptcy court also found that the lease of the unit to a third party was a willful violation of the stay.  The association asserted that upon confirmation of the plan surrendering the property, Parker had no further rights in the property.  The district court found that the association misunderstands the legal effect of surrender.  Surrender solely gives the creditor the opportunity to foreclose on their secured rights in the property.5    As the association failed to foreclose to obtain proper title, the appellate court found no error in the bankruptcy court's decision.  The bankruptcy court had awarded $5,000 in emotional distress damages.  Such damages can be established in multiple ways, including corroborative witness testimony or expert medical opinion, or in the absence of these, if the creditor's conduct was egregious or if circumstances make it obvious that a reasonable person would suffer significant emotional harm.6   Despite no expert testimony at trial, the bankruptcy court found that Parker experienced significant emotional harm, and that any reasonable person would have similarly suffered under the circumstances. Parker anticipated that moving out of the unit and more than 1000 miles away would terminate the dispute the the association; rather the association repeatedly harassed her regarding the assessments and appropriated the property without following through the appropriate legal remedies.  Her testimony that this conduct made her angry, anxious and depressed, and caused her to struggle in her work and personal life was credible.  This constituted sufficient support to sustain the bankruptcy court's findings.  The fact that the request for emotional distress damages was not included in the pretrial order did not preclude such findings, as it was raised on the first day of a trial that lasted four days over the course of four months.  The punitive damage award was also affirmed.  Such damages are appropriate where there is a reckless and callous disregard for the rights of others or where the conduct is malicious, wanton, or oppressive.  The numerous, repeated violations here, which the bankruptcy court described as a campaign to flout the bankruptcy process and collect on debts, supported a finding for punitive damages.  The association's belief that that the stay did not apply has no bearing on whether a stay violation occurred, and has no bearing on whether it acted in reckless and callous disregard of the law.    The property interference challenge fails for the same reasons as the re-letting of the property.  The confirmed plan surrendering the property did not transfer ownership to the association, absent a foreclosure.  The $39,000 reflected the six months rent collection from the 29 May 2015 lease to the 1 December 2015 discharge.  This reflects both the actual damage award under §362(k) and California law regarding damages for wrongful occupation of property.   The bankruptcy court imposed joint and several liability as to a portion of the damages on two individual officers of the association's board, finding that §362 acts as a stay against all entities, including agents and attorneys who commit the offending acts.  The court found this appropriate if there was evidence demonstrating that such agent directly committed the act which violated the stay.  As the agents affirmative acts in executing the lease violated §362(a)(6) it was appropriate to hold them jointly and severally liable for the $39,000 property right damages award. As there was no explanation of how the conduct in executing the lease was undertaken in good faith and consistent with a reasonable standard of care under the California Corporations Code, the court's damage award was justified.   The association argued that the fee award should be reversed in that the fees were incurred for litigating matters beyond the scope of a violation of the automatic stay under §362(k) and since the trial was 'almost exclusively' focused on the contempt allegations, which were denied; the award of $369,346.90 was not reasonable for litigating a consumer stay relief motion; and 3) it failed to consider whether Parker made sufficient efforts to mitigate the attorneys fees.  The original application was for $438,890 in litigating the stay relief motion.  This involved a five day trial on stay litigation that was unusual  as to extensive fact and expert discovery, a trial requiring nearly three years to conclude, summary judgment, several status conferences, and disputes over the contents of a pretrial order.  The bankruptcy court reduced the fee for a number of reasons including excessive time and unnecessary litigation, and inadequate time records.  The appellate court found that the lower court's extensive findings regarding the reasonable fee support the award.  The court found that Parker could not have mitigated the fees given the association's continued efforts against Parker.  Parker had some more success on the cross-appeal, with the district vacating the limitation of property interference damages to the date of the discharge rather than the date the property was sold in December 2016.   Parker also argued that the bankruptcy court should not have denied the contempt claim based on the recent Taggart v Lorenzen7 decision.   The bankruptcy court denied the contempt request as to the post-petition assessments as the legal ruling was based on the Goudelock decision, issued only a few months before trial.  As to the continued collection of rent it found the association had a good faith belief that Parker was liable for the post-petition assessments.  §524(a)(2) provides that the discharge acts as an injunction against continued efforts to collection a debt as a personal liability of the debtor.  However, that section does not provide a private right of action.  Rather, debtors must seek redress through a contempt finding under §105(a).  The bankruptcy court stated the legal standard as requiring Parker to establish by clear and convincing evidence that 1) the association knew the discharge injunction was applicable and 2) intended the actions that violated the injunction.  If satisfied, the burden then shifts to the creditor to demonstrate why they were unable to comply.  Subsequent to that decision, the Supreme Court reversed Taggert  ruling that contempt must be decided under an objective standard as to whether there is a fair ground of doubt as to the wrongfulness of the creditor's conduct.  Given the change in the legal standard for contempt, this portion of the decision was vacated and remanded.   Counsel notes that while §523(a)(16) related to the nondischargeability of association dues is not one of the exceptions to discharge under §1328(a); a number of courts consider such dues to be covenants running with the land that cannot be discharged even in a chapter 13 case, and that a debtor may remain liable for such dues until title to the property is transferred out of their name.   Counsel also wonders if an aggressive chapter 13 trustee would seek to recover a portion of the award in the case related to the time debtor was in the pending chapter 13 case.  1 In re Leetien, 309 F.3d 1210, 1215 (9th Cir. 2002).↩2 In re Snowden, 769 F.3d 651, 656-57 (9th Cir. 2014).↩3 Snowden, 769 F.2d at 657.↩4 The court does clarify the separate state law remedies for associations: an in rem remedy of a lien and right to foreclose, and an in personam remedy permitting suit against the property owner. Goudelock, 895 F.3d at 637.↩5 Razzak v. Wells Fargo Bank, N.A., 2018 U.S. Dist. LEXIS 52251, 2018 WL 1524002, (N.D. Cal. Mar. 28, 2018).↩6 In re Gugliuzza, 852 F.3d 884, 1150 (9th Cir. 2017).↩7 139 S.Ct. 1795, 1802, 204 L.Ed.2d 129 (2019).↩Michael BarnettMichael Barnett, PA506 N Armenia Ave.Tampa, FL 33609-1703813 870-3100https://hillsboroughbankruptcy.com

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In Pennsylvania, if you want to receive Social Security Disability Insurance (SSDI) benefits, you have to apply to the U.S. Social Security Administration (SSA). However, in Pennsylvania, the Bureau of Disability Determination (BDD) assists the SSA in determining if a disabled Pennsylvania citizen is eligible for SSDI benefits. While Pennsylvania’s approval average is slightly more […] The post Who Decides if You Get Disability Benefits in Pennsylvania? appeared first on .