By: Michael L. Moskowitz and Melissa A. Guseynov

As practitioners are aware, notarization is required for numerous sworn statements and affidavits. This typically requires the person executing the document to physically appear before a notary public. However, with the onset of the Covid-19 pandemic, New York allowed remote notarization to take place on a limited and temporary basis. However, on December 22, 2021, Governor Kathy Hochul signed into law Senate Bill 1780C, which permanently provides for electronic notarization with the use of video technology, subject to certain restrictions. The law, which takes effect on June 20, 2022, aligns New York with a majority of states that permit remote notarization.  

Weltman & Moskowitz, LLP is proud to announce that founding partners Richard Weltman and Michael Moskowitz have once again been selected as Metro New York Area Super Lawyers for 2021. Both Richard and Michael have been recognized as top bankruptcy and debtor and creditors’ rights attorneys for several years.

By: Michael L. Moskowitz and Michele K. Jaspan

We have previously written about the rules and procedures pertaining to the COVID-19 pandemic with which lenders must comply.

On June 28, 2021, the Consumer Financial Protection Bureau (CFPB) issued new rules to reinforce the ongoing economic recovery, with an amendment of the Protections for Borrowers Affected by the COVID-19 Emergency Under the Real Estate Settlement Procedures Act (RESPA), Regulation X. The new rule is entitled 2021 Mortgage Servicing COVID-19 Rule or Rule 2021. The rules cover loans on principal residences only, generally exclude small servicers, and will take effect on August 31, 2021.

By: Michael L. Moskowitz and Michele K. Jaspan

A new rule proposed by the Consumer Financial Protection Bureau (“CFPB”), would create a new pre-eviction review period to grant millions of Americans more time to figure out payment options before Covid-19 federal mortgage protections expire at the end of June. A copy of the proposal can be found here.

This proposal would also prevent mortgage servicers from initiating a foreclosure against delinquent borrowers until after Dec. 31, 2021. The rule would apply to all mortgages, both federal and private, on a principal residence.

By Richard E. Weltman and Michele K. Jaspan

Creditors having significant claims against a bankruptcy debtor often face daunting challenges. Many general practitioners are simply not familiar enough with bankruptcy procedures. Liquidation and reorganization cases have materially different objectives, proceedings move quickly, claims deadlines are strictly observed, and bankruptcy statutes and rules typically favor debtors over creditors. When matrimonial disputes are added to the mix, the bankruptcy court is charged with balancing public policy—protecting the child and custodial parent and deferring to state family court expertise—with the interests of a financially troubled debtor seeking a fresh start. Despite the initial disadvantage, Creditor preparation, diligence and expert help can turn things around.

By: Michael L. Moskowitz and Melissa A. Guseynov

In a recent opinion of note, the Bankruptcy Court for the Eastern District of California sided with the majority of courts in holding section 362(c)(3)(A) of the Bankruptcy Code does not apply to property of a debtor’s estate.  In re Thu Thi Dao, Case No. 20-20742 (Bankr. E.D. Cal. May 11, 2020). Read the full opinion here. 

In this case, Debtor commenced a second chapter 7 bankruptcy case shortly after his prior case had been dismissed for failure to timely file schedules. When the chapter 7 trustee suspected Debtor failed to list all of his assets in the petition, he filed a motion seeking delivery of all unscheduled assets, but was concerned section 362(c)(3)(A) would terminate the automatic stay within thirty days as to such property. The Bankruptcy Court was called upon to clarify whether section 362(c)(3)(A) applied to property of the Debtor’s estate.

By: Michael L. Moskowitz and Melissa A. Guseynov

In a recent memorandum decision, dated November 12, 2019, a New York Bankruptcy Judge held that filing a chapter 11 petition in order to obtain a 60-day extension of a closing date does not constitute bad faith. In re AAGS Holdings LLC, 19-13029 (Bankr. S.D.N.Y. Nov. 12, 2019). Read the full opinion here.

In AAGS Holdings, a limited liability corporation was under contract to buy certain real property. The contract of sale specifically stated that time was “of the essence.” In addition, if the closing did not take place by the date set forth in the contract, the seller could elect to terminate the contract and retain purchaser’s deposit.

By Michael L. Moskowitz and Melissa A. Guseynov

In an unpublished opinion dated October 19, 2017, the District Court for the Western District of Virginia held that the Virginia Department of Social Services was not entitled to receive funds paid to a chapter 13 trustee (“Trustee”) when debtor failed to confirm his chapter 13 plan. Virginia Dep’t. of Social Services v. Beskin, 2017 WL 4706912 (W.D. VA, Oct. 19, 2017).

In Beskin, debtor filed a chapter 13 bankruptcy petition listing, among other things, a $74,000 child support debt to the Virginia Department of Social Services (“State”). Debtor made plan payments totaling $3,000 to the Trustee, but was subsequently unable to confirm his chapter 13 plan. After debtor’s chapter 13 case was dismissed, State served Trustee with an order pursuant to Virginia’s child support enforcement statute, requiring Trustee hold the $3,000 rather than returning it to debtor. Seeking guidance, Trustee filed a motion with the Bankruptcy Court. The Bankruptcy Court determined Trustee must return the funds to debtor. State appealed to the District Court.

By Michael L. Moskowitz and Melissa A. Guseynov

In an unpublished opinion dated July 19, 2017, the Court of Appeals for the Second Circuit (“Second Circuit”) denied a petition for rehearing of a decision by the District Court for the Western District of New York granting standing of an assignee’s rights to enforce individual notes and mortgages. The Court affirmed, among other things, that commercial lenders that advanced money and obtained assignments to pay off the loans of a chapter 11 debtor from individual lenders were entitled to file proofs of secured claims in the debtor’s bankruptcy case, regardless of whether the assignments were properly transferred.  Arnold v. First Citizens National Bank, 2017 WL 3049414 (2d. Cir. July 19, 2017).

By Michael L. Moskowitz and Melissa A. Guseynov

Creditors beware: changes are afoot and attention must be paid to these changes or your rights in bankruptcy may be prejudiced. We have previously written about the practices and procedures required under Rule 3002 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”). However, as of December 1, 2017, certain revisions to Bankruptcy Rule 3002 will both require secured creditors to file proofs of claim and substantially reduce the amount of time provided to creditors to file a proof of claim in Chapters 7, 12 and 13 bankruptcy cases.

It has long been recognized that for a secured claim to be “allowed” in bankruptcy, a creditor must file a proof of claim. In its current form, Bankruptcy Rule 3002(a) merely states that an “unsecured creditor or an equity security holder must file a proof of claim or interest …” The fact that Bankruptcy Rule 3002 does not specifically mention secured claims has resulted in conflicting case law as to whether a secured creditor must file proof of claim. As a result, the revised text of Bankruptcy Rule 3002 clarifies that a secured creditor must file a proof of claim in order for the claim to be “allowed.” However, the amended Bankruptcy Rule also provides that a secured creditor’s failure to file a proof of claim does not affect the underlying lien.

By Michael L. Moskowitz and Melissa A. Guseynov

In an opinion dated March 9, 2017, Bankruptcy Judge Alan S. Trust dismissed the Chapter 13 petition filed by Mary C. Addams (“Debtor”) on motion of Michael and Jamie Shapiro (“Shapiros”). The motion to dismiss was based upon Debtor’s inability to confirm a feasible Chapter 13 plan. The Shapiros held a second mortgage lien against Debtor’s two-family house where she lived, as well as rented out part of the property. In response to the motion, Debtor sought to bifurcate the Shapiros’ mortgage into secured and unsecured claims. In re Addams, 2017 WL 944190 (Bankr. E.D.N.Y. Mar. 9, 2017). This opinion diverges from rulings in the First and Third Circuits and may ultimately lead to review by the Supreme Court. Read the full opinion here.

By Michael L. Moskowitz and Melissa A. Guseynov

In an opinion dated February 6, 2017, the Bankruptcy Court for the Northern District of Ohio disallowed a mortgage servicer’s untimely proof of claim in a Chapter 13 case, holding that secured creditors are subject to the same 90-day deadline for filing proofs of claim as unsecured creditors. In re Dumbuya, 2017 WL 486917 (Bankr. N.D. Ohio Feb. 6, 2017). Read the full opinion here.

Weltman & Moskowitz, LLP is proud to announce that founding partners Richard Weltman and Michael Moskowitz have both been selected as Metro New York Area Super Lawyers for 2017. This is the fourth consecutive year each has been recognized as a top bankruptcy/debtor and creditors’ rights attorney. This honor is a product of a rigorous investigative process by the publishers of Law and Politics. Attorneys are selected based on professional accomplishments, licensing and certifications, peer recognition and personal achievement. The final published list represents no more than 5% of the lawyers in each state. The firm is also proud to announce that Melissa Guseynov, an associate of the firm, has been selected as a New York Metro Rising Star! This selection is limited to no more than 2.5% of the attorneys in New York State. The Super Lawyers objective is to create a credible list of outstanding attorneys, and the lawyers of Weltman & Moskowitz, LLP are proud to be recognized for their hard work and client dedication.

By Michael L. Moskowitz and Melissa A. Guseynov

On October 27, 2016, the Court of Appeals for the Ninth Circuit held that a credit union’s proofs of claim were properly rejected by the Bankruptcy Court as untimely, and that the debtor’s acknowledgment of debt owed to the credit union in her bankruptcy schedules was not an informal proof of claim. In re Barker, 2016 WL 6276078 (9th Cir. Oct. 27, 2016). Read the full opinion here.

By Michael L. Moskowitz and Melissa A. Guseynov

Generally, the concept of “reclamation” protects vendors in Chapter 11 cases because it provides a way to either retrieve goods delivered to a debtor pre-petition or to recover the value of those goods. On August 24, 2016, Bankruptcy Judge Mary F. Walrath, sitting in the Bankruptcy Court for the District of Delaware, bolstered creditors’ reclamation rights when she overruled an objection to a vendor’s claim for reclamation under section 546(c) of the Bankruptcy Code. In re Reichold Holdings US, Inc., et al., 556 B.R. 107 (Bankr. D. Del. 2016). This decision marks a noteworthy success for vendors asserting reclamation rights under the Bankruptcy Code.

Oftentimes, creditors wait too long before demanding reclamation or stopping delivery of their goods. This may result in a substantially smaller recovery on their claims. Trade creditors may significantly increase their recovery by reacting quickly when their buyer files for bankruptcy. This is crucial because once a chapter 11 case is filed, 11 U.S.C. § 546 controls the reclamation process.

By Michael L. Moskowitz and Melissa A. Guseynov

We have previously reported on the interplay between the Bankruptcy Code and the Fair Debt Collection Practices Act (“FDCPA”), and the conflicting case law throughout the country regarding whether a creditor violates the FDCPA by knowingly filing a time-barred proof of claim in a bankruptcy case.  

As anticipated, on October 11, 2016, the Supreme Court of the United States granted a petition for certiorari in Midland Funding LLC v. Johnson. As we previously reported, in May of this year the United States Court of Appeals for the Eleventh Circuit held that debt-collectors may face FDCPA liability for knowingly filing a stale proof of claim in a bankruptcy case.

Please help welcome our newest team member, Melissa Dlugokencky!

Melissa will be working closely with our bankruptcy, litigation and foreclosure attorneys. She brings to Weltman & Moskowitz proven legal assisting skills, an undergraduate degree from Dowling College and her paralegal certification from Queens College. Before joining us, Melissa concentrated on litigation and transactional matters at Cohen & Slamowitz (n/k/a Selip  & Styloanou, LLP), and Baker, McEvoy, Morrissey & Moskovits, P.C. You can reach Melissa at md@weltmosk.com.  

We hope you’ll say hello to Melissa the next time you call or stop in.  

By Michael L. Moskowitz and Melissa A. Guseynov

On August 31, 2016, Bankruptcy Judge Robert Mark, sitting in the Bankruptcy Court located in the Southern District of Florida, held that section 544(b) of the Bankruptcy Code permits a trustee to step into the shoes of the Internal Revenue Service (“IRS”) to avoid a transfer which occurred ten years prior to the petition date. Judge Mark held the trustee could avail himself of the IRS’s ten-year statute of limitations, rather than the three- to six-year period provided by most state statutes. Mukamal v. Citibank NA (In re Kipnis), 16-1045 (Bankr. S.D. Fla. Aug. 31, 2016).

Weltman & Moskowitz, LLP is proud to announce that Richard Weltman and Michael Moskowitz have both been selected as Metro New York Area Super Lawyers for 2016. This is the third consecutive year each has been recognized as a top bankruptcy/debtor and creditors’ rights attorney. This honor is a product of a rigorous investigative process by the publishers of Law and Politics. Attorneys are selected based on professional accomplishments, licensing and certifications, peer recognition and personal achievement. The final published list represents no more than 5% of the lawyers in each state. The Super Lawyers objective is to create a credible list of outstanding attorneys, and the partners of Weltman & Moskowitz, LLP are proud to be recognized for their hard work and client dedication.

By Michael L. Moskowitz and Melissa A. Guseynov

We’ve previously covered the interplay between the Bankruptcy Code and Fair Debt Collection Practices Act (“FDCPA”). Recent litigation has focused on debtor challenges to time-barred proofs of claim. This has resulted in conflicting statutory interpretation. In a recent decision, the United States Court of Appeals for the Eleventh Circuit held that debt collectors, defined as a type of creditor under the FDCPA, may face FDCPA liability for knowingly filing a time-barred proof of claim in a bankruptcy case. Johnson v. Midland Funding, LLC, 2016 WL 2996372 (May 24, 2016).

By Michael L. Moskowitz and Melissa A. Guseynov

In a recent decision out of the United States Bankruptcy Court for the Northern District of Illinois, Judge Benjamin Goldgar dismissed Debtor’s adversary proceeding complaint in which the debtor alleged the debt collector violated the Fair Debt Collection Practices Act (“FDCPA”) by merely filing a proof of claim. In re Murff, 2015 WL 3690994 (Bankr. N.D. Ill. June 15, 2015).

By Michael L. Moskowitz

The United States Supreme Court (SCOTUS) has agreed to resolve another bankruptcy issue which has split the circuit courts. This time, the high court will address a chapter 11 reorganization issue. The most recent SCOTUS decisions have focused primarily on consumer bankruptcy issues.

At issue here is whether bankruptcy courts may dismiss chapter 11 cases when property is distributed in a settlement that does not comply with the priority scheme for distributions set forth in Section 507 of the Bankruptcy Code.

By Richard E. Weltman and Melissa A. Guseynov

We previously reported on the split among the federal circuit courts of appeal concerning circumstances under which a debtor’s discharge with regard to a particular debt may be denied based on actual fraud if, prior to filing, the debtor transferred assets away from creditors without directly misleading them. In Husky International Electronics, Inc. v. Ritz, the United States Supreme Court settled the split of opinion among the lower courts, holding that debtor’s actual misrepresentation is not a necessary prerequisite to demonstrate “actual fraud” under section 523(a)(2)(A). Husky Inter. Elect., Inc. v. Ritz, 136 S.Ct. 1581 (2016).

By Michael L. Moskowitz

Post-petition claims of condominium associations for common charges have always held a protected status when a consumer debtor files for bankruptcy relief. Under 11 U.S.C. §523 (a)(16), as amended in 2005, chapter 7 debtors who retain legal, equitable and/or possessory ownership interest in their condominium unit remain liable for post-petition condominium charges.

By Richard E. Weltman

A 3% cost of living adjustment became effective for new bankruptcy cases filed on and after April 1, 2016, according to the Judicial Conference of the United States. This means certain dollar amounts relating to small business chapter 11 cases, preference claims, means testing, and property exemptions went up. These adjustments to the federal Bankruptcy Code are automatically issued every three years to keep up with inflation.

By Michael L. Moskowitz and Melissa A. Guseynov

In a recent decision of relevance to lenders, Garfield v. Ocwen Loan Servicing, LLC (“Ocwen”), 2016 WL 26631 (2d Cir. Jan. 4, 2016), the Court of Appeals for the Second Circuit held that a debtor may commence a lawsuit to dispute a lender’s collection practices under the Fair Debt Collection Practices Act (“FDCPA”) after receiving a discharge in bankruptcy.  

By Michael L. Moskowitz and Melissa A. Guseynov

In a recent opinion, Bankruptcy Judge James L. Garrity, Jr., sitting in the Southern District of New York, held that a debtor cannot confirm a chapter 13 plan over a lender’s objection where the plan would compel the transfer of title to the secured creditor, explaining that forcing title onto the creditor would transform the creditor’s right to recover its collateral into an obligation, thereby rewriting the Bankruptcy Code and the underlying loan documents. In re Sherwood, 2016 WL 355520, at * 7 (Bankr. S.D.N.Y. Jan. 28, 2016).

By Michael L. Moskowitz and Michele Jaspan

We previously reported on the importance of strict compliance with the mailing of the 90-day pre-foreclosure notice pursuant to RPAPL §1304 (“Notice”). Such strict compliance has become fodder for defendants’ lawyers as failure to give such notice to all persons signing either the note or mortgage, as a borrower, is a fatal defect. Lender’s failure to comply with this important condition precedent will result in case dismissal.

By Richard E. Weltman and Melissa A. Guseynov

When creditors learn that an entity that owes them money has filed for bankruptcy protection, they often fear their claims will remain unpaid or that they will only collect pennies on the dollar. And while that is typically the outcome for unsecured claimants, in certain circumstances creditors may be able to recover a substantial portion of their debt. In fact, as further described below, with effective counsel, a creditor may recover its claim in full.

By Richard E. Weltman and Melissa A. Guseynov

We have previously reported on the nuances of the federal Fair Debt Collection Practices Act (“FDCPA”) and the pitfalls to lenders who fail to strictly adhere to its requirements. However, in two recent unrelated federal court decisions, Judge Colleen McMahon of the District Court for the Southern District of New York and Judge John Curtin of the District Court for the Western District of New York, both concluded that the mere appearance of an account number on a collection envelope, without more, does not violate FDCPA.

By Richard E. Weltman and Melissa A. Guseynov

In a recent decision important to lenders, Torres v. Asset Acceptance, LLC, the Hon. Eduardo C. Robreno, U.S.D.J., held that filing a stale proof of claim in bankruptcy court cannot form the basis of a claim under the Fair Debt Collection Practices Act (“FDCPA”).

The facts are as follows: Margaret Torres filed for relief under Chapter 13 in the United States Bankruptcy Court for the Eastern District of Pennsylvania. Creditor, Asset Acceptance, thereafter filed a proof of claim for “money loaned.”

By Michael L. Moskowitz and Melissa A. Guseynov

In the recent case of Federal National Mortgage Assoc. v. Singer (Case No. 850039/2011, Sup Ct, NY County, July 21, 2015), Manhattan Supreme Court Justice Peter Moulton determined that two mortgage banks, Federal National Mortgage Association and Bank of America, N.A. (“Lenders”), must forfeit more than $100,000.00 in accrued mortgage interest for acting in bad faith regarding borrower requests for mortgage modifications.   

By Richard E. Weltman

Most debtors see bankruptcy as a way to wipe out debt at the expense of creditors. This is sometimes true, but only part of the story. The bankruptcy code also protects creditors in many important ways. One way is by preserving the equal distribution of a debtor’s assets. One of the bankruptcy code provisions that seeks to level the playing field respecting equal asset distribution among unsecured creditors is section 547.

By Richard E. Weltman and Melissa A. Guseynov

The United States Supreme Court has been asked to resolve another split among the circuit courts assessing fraud in consumer bankruptcy cases. At issue is whether debtors in chapter 7 and chapter 13 cases can have their debt discharges blocked under section 523(a)(2)(A) of the bankruptcy code, following pre-petition efforts to transfer assets away from creditors without directly misleading them. The First and Seventh Circuit Courts of appeal have both issued holdings that directly conflict with a recent ruling by the Fifth Circuit. The Second Circuit has not directly addressed whether a court may find “actual fraud” absent a specific finding of misrepresentation by a debtor.

Harris v. Viegelahn

Debtor Who Converts to Chapter 7 Is Entitled to Return of Funds Not yet Distributed By Chapter 13 Trustee

 By Michael L. Moskowitz and Melissa A. Guseynov

On May 18, 2015, in Harris v. Viegelahn, the United States Supreme Court unanimously held that undistributed plan payments made by a debtor from his or her wages, and held by a Chapter 13 trustee at the time of the case’s conversion to Chapter 7, must be returned to the debtor. Harris v. Viegelahn, 135 S.Ct. 1829 (2015). The decision resolves a Circuit split, as well as an issue that has divided bankruptcy courts for decades.

Baker Botts LLP v. Asarco LLC

Litigation Fees Incurred By Counsel in Defense of Bankruptcy Fee Application are not Compensable

By Michael L. Moskowitz and Michele K. Jaspan

The Supreme Court recently ruled that bankruptcy courts may not award legal fees to professionals for the costs incurred in defending their fees. The decision in Baker Botts, LLP v. ASARCO, LLC, written by Justice Clarence Thomas for the majority, held that section 330(a) of the United States Code does not give bankruptcy courts the discretion to award fee-defense fees under any circumstances. Thus, the Supreme Court affirmed the ruling by the Court of Appeals for the Fifth Circuit which reversed the bankruptcy court’s fee award to Debtor’s counsel for costs incurred in defense of its $120 million fee application.  The Baker Botts firm sought to recover in excess of $5 million for time spent litigating in defense of their fee application in Asarco’s Chapter 11 bankruptcy case.

The United States Supreme Court recently reversed a ruling from the Eleventh Circuit in the case of Bank of America, N.A. v. Caulkett, which had permitted individual chapter 7 debtors to “strip” junior liens off their homes when the first mortgage lien was underwater. The Supreme Court held that a debtor in a chapter 7 proceeding may not void a junior mortgage lien under section 506(d) of the Bankruptcy Code when the debt owed on a senior mortgage lien exceeds the current value of the collateral, if the creditor’s claim is both secured by a lien and allowed under section 502 of the Bankruptcy Code.

By Michael L. Moskowitz and Melissa A. Guseynov

We have previously reported on Thomas Petters’ $3.5 billion Ponzi scheme and the resultant “claw back” lawsuits currently pending in the Minnesota bankruptcy court. Read that report here.

In Ponzi scheme clawback litigation, a trustee, receiver or creditor will often utilize the Ponzi scheme “presumption” to prove the fraudulent intent of a transferor in connection with fraudulent transfer claims by establishing that the debtor operated a Ponzi scheme, and that the transfers at issue were made in furtherance of that scheme. In particular, the Ponzi scheme presumption proves that, among other things, the person or entity running the scheme had actual intent to defraud investors.

By Michael L. Moskowitz and Michele K. Jaspan

In the case of In re Washington, No. 14-14573-TBA, 2014 WL 5714586 (Bankr. D.N.J. Nov. 5, 2014), the United States Bankruptcy Court for the District of New Jersey held that the mortgagee and mortgage servicer (“the Mortgagees” or “Plaintiff”) were time-barred under New Jersey state law from enforcing borrower’s default under both the note and mortgage. As a result, the borrower hit the jackpot and was entitled to own his home, free and clear of the mortgage debt, even though he only made three mortgage payments before the loan went into default.

By Michael L. Moskowitz

In December 2014, the Chief U.S. Bankruptcy Judge for the Southern District of New York, Cecelia Morris, handed a setback to lenders (In re Weidenbenner, Bankr. S.D.N.Y., No. 14-35443, 12/12/14), when she concluded a financial institution violates the automatic stay imposed upon the filing of a chapter 7 petition pursuant to 11 U.S.C. §362, simply by freezing a debtor’s bank account where it turns out no right of setoff exists.

By Michael L. Moskowitz

A New Jersey Appeals Court recently held that homeowners who enter into trial agreements to modify their mortgages under the Federal Home Affordable Modification Program (“HAMP”), and comply with the terms thereof, may commence suit for breach of contract, and possibly consumer fraud, if lenders deny them permanent modifications.

By Michael L. Moskowitz

{2:25 minutes to read} On November 17, 2014, the Supreme Court agreed to review two appeals filed by Bank of America against homeowners who filed Chapter 7 bankruptcies and then sought to “strip off” the lender’s underwater mortgage liens. In Bank of America, N.A. v. Caulkett (No. 13-1421) and Bank of America, N.A. v. Toledo-Cardona (No. 14-163), the Court of Appeals for the Eleventh Circuit ruled in favor of the homeowners, leading to Bank of America’s appeals to the Supreme Court.

By Michael L. Moskowitz

In our previous article, we shared the story of a personal injury attorney that was recently sued in an adversary proceeding filed in the United States bankruptcy court. Weltman & Moskowitz successfully established that the complaint was without merit and Plaintiff agreed to withdraw the complaint before answers were required to be filed or discovery ensued. In doing so, we saved our client the time and expense associated with protracted litigation.. Today, we bring you the story of another client of ours, a large regional banking institution, in the same position with the same successful results.

By Michael L. Moskowitz

Two of our clients, one, a large regional bank, and the other, a personal injury attorney, were both recently sued in adversary proceedings filed in the United States bankruptcy courts. Weltman & Moskowitz successfully established that both complaints were without merit and each plaintiff agreed to withdraw the complaint before answers were required to be filed. In doing so, we saved these clients significant legal fees and expenses and the distractions associated with protracted litigation.

Lenders Must Strictly Comply with Chapter 13 Noticing Procedures to Avoid Possible Motion Seeking Sanctions for Inadvertent Stay Violation

By Richard E. Weltman

The Federal Rules of Bankruptcy Procedure were amended late in 2011 to include Rule 3002.1, entitled Notice Relating to Claims Secured by Security Interest in the Debtor’s Principal Residence. Simply put, a mortgage lender must provide to the debtor, debtor’s counsel, and the chapter 13 bankruptcy trustee, notice of any fees, expenses or charges incurred by lender in connection with its claim, following commencement of the chapter 13 case. The lender must use Official Form B10, Supplement 2, found here.  A deviation from the use of this official form and its noticing procedure can result in an unwanted motion seeking damages for technical violation of the bankruptcy stay. The lesson here for lenders is to be careful and adhere to strict protocols.

Partner Michael L. Moskowitz and Associate Melissa A. Guseynov co-authored an article published in the December 2014 issue of Nassau Lawyer. They discussed the Supreme Court decision that inherited IRAs are not protected in bankruptcy, a timely topic Weltman and Moskowitz has been following and reporting on regularly.

Read an excerpt of the article below.

Supreme Court Rules Inherited IRAs are Not Protected in Bankruptcy 

By Michael L. Moskowitz and Melissa A. Guseynov

On June 12, 2014, in a unanimous 9-0 decision in Clark v. Rameker, the United States Supreme Court ruled that inherited individual retirement accounts(IRAs) are not retirement funds within the meaning of the Bankruptcy Code.1 This decision resolves a split among the federal appellate courts about the status of IRAs that parents leave to their children and others.

We have reported several times in connection with the chapter 7 case of Mary Veronica Santiago-Monteverde (“Debtor”), an elderly widow, who has resided in a rent-stabilized apartment in New York City since the 1970s. To see the prior articles click here.

By Michael L. Moskowitz

On September 17, 2014, the New York state court administrators announced stricter rules for creditors seeking judgments against consumers in debt collection lawsuits. Applicable only to debt incurred in connection with consumer credit transactions,[1] the new rules are specifically intended to prohibit creditors from collecting a debt: (i) that a consumer has already paid off, (ii) that was not incurred by that particular consumer; and (iii) where the six-year statute of limitations has expired.

By Richard E. Weltman

In its recent decision, Hart v. Southern Heritage Bank, 2014 WL 1663029 (6th Cir. April 28, 2014), the Sixth Circuit Court of Appeals determined that the United States Supreme Court’s seminal holding in Stern v. Marshall, 131 S. Ct. 2594 (2011) does not preclude a bankruptcy court from issuing final judgments in non-dischargeability challenges under section 523(a)(2)(B) of the Bankruptcy Code.

By Richard E. Weltman

Responding to what he termed a “continuing stream of complaints,” New York’s Chief Judge Jonathan Lippman on May 1 announced that New York courts are proposing new rules to crack down on the filing of so-called “zombie debts,” insufficiently documented claims for default judgments against consumer debtors.

Judge Lippman wants creditors seeking to collect the debts—some of which may have been sold and resold by third-party credit buyers—to prove the obligations are actually outstanding and owed by those named in collection actions before New York courts will enforce them on behalf of creditors.

By: Michael L. Moskowitz

Less than three months ago, we reported on a case in which the Supreme Court heard oral argument concerning whether or not inherited IRA accounts constitute retirement funds. See previous article (Supreme Court to Decide Dispute Regarding Inherited IRAs in Bankruptcy) here. On June 12, 2014, in a unanimous decision, the Supreme Court, in Clark v. Rameker, 13-299, ruled that inherited IRAs are not retirement funds within the meaning of the Bankruptcy Code.

We recently reported on whether a bankruptcy debtor’s rent-stabilized lease constitutes an exempt asset in the form of a “local public assistance benefit” under New York Debtor and Creditor Law. The case is presently under consideration before the New York Court of Appeals.

Weltman & Moskowitz began following the case in October, when we reported on the chapter 7 trustee’s efforts to sell the rent-stabilized lease of Mary Veronica Santiago-Monteverde (“Debtor”), a 79-year-old widow. Many readers have been following the debtor’s opposition to the chapter 7 trustee’s efforts to sell the debtor’s interest in her rent-stabilized lease to the landlord as an asset of the bankruptcy estate.

The United States Supreme Court recently denied a creditor’s petition for certiorari in an Eleventh Circuit case entitled Bank of America, N.A. v. David Lamar Sinkfield (No. 13-700). The issue concerns whether section 506(d) of the Bankruptcy Code allows a debtor to remove or strip-off a wholly unsecured—or “underwater”—mortgage lien in chapter 7 bankruptcy.

The United States Judicial Conference recently approved changes to the federal court miscellaneous fee schedules, including certain bankruptcy filing fees.

As of  Sunday, June 1, 2014, the filing fees for most bankruptcy matters will rise. These fees are collected from both debtors and creditors accessing the federal bankruptcy courts, whether in person or online.

By Michael L. Moskowitz

Last October we reported on the travails of Mary Veronica Santiago (“Debtor”), a 79-year-old widow embroiled in a dispute with her chapter 7 bankruptcy trustee John Pereira. The issue is whether the “value” in her New York City rent-stabilized lease can be considered an exempt asset protected from sale in a bankruptcy case. At stake is the Debtor’s ability to continue to reside in her apartment free of creditor claims. Given the many thousand rent protected tenants, this is where public policy and federal bankruptcy law intersect. To see the prior article click here.

New York’s highest court recently announced that account holders do not have a private right of action to sue banks for alleged violations of the Exempt Income Protection Act (“EIPA”). Cruz v. TD Bank, 2013, NY Slip. Op. 07762 (November 21, 2013). EIPA exempts certain Social Security, veterans, disability and unemployment benefits from creditor restraining orders and requires banks to inform affected account holders of their right to obtain exemptions from collection.

In a major change, the Consumer Financial Protection Bureau (“CFPB”) will soon require financial mortgage lenders to offer borrowers a greater disclosure at loan closings. The new disclosures replace existing Truth-In-Lending Statements, HUD-1 Settlement Statements and Good Faith Estimate disclosures.

In 2005, after 12 years of Congressional wrangling, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”).

The avowed purpose of BAPCPA was to reduce abusive filings by limiting consumer debtor’s access to chapter 7 relief. The financial service industry argued the change was needed to curb consumers’ “profligate spending” and perceived lax bankruptcy rules. By reducing access to chapter 7, lenders suggested that they would see increased distribution from those new chapter 13 cases due to limitations placed upon chapter 7 flowing from the so-called “means test.”

The U.S. Court of Appeals for the Second Circuit recently held that creditors may be liable under the false name exception to the Fair Debt Collection Practices Act (“FDCPA”) if they falsely represent to debtors they retained a third-party collection agent, when in fact the agent made no “bona fide” effort to collect.

Attached is a wonderful reference guide published by the City Bar Justice Center titled Understanding Reaffirmation Agreements. A reaffirmation agreement is a contract between a debtor and creditor wherein the debtor agrees the creditor’s debt will survive the bankruptcy discharge. The authority for entry into a reaffirmation agreement can be found in 11 U.S.C. §524(c). Debtors and creditors alike are typically barraged with misinformation regarding when reaffirmation agreements are appropriate.

Not every debt is entitled to be forgiven in bankruptcy. In a recent Northern District of New York bankruptcy decision, Chief Bankruptcy Judge Robert Littlefield Jr. held that a woman’s $3.75 million default judgment against her mother for negligent infliction of emotional distress would be excepted from discharge in her mother’s subsequent bankruptcy case. In re Irene Chaffee (Chaffee v. Chaffee), No. 07-90171 (Bankr. N.D.N.Y. September 3, 2013).

Michael Moskowitz will be a featured speaker at the New York State Bar Association’s Annual Meeting on January 29, 2014. Mr. Moskowitz’s panel, one of  three to be presented by the Young Lawyers Section, will focus on consumer and corporate bankruptcy issues.  insert excerpt info here.

By Michael L. Moskowitz

Having represented numerous defendants in Ponzi-scheme adversary proceedings in the Second Circuit (New York), Weltman & Moskowitz closely follows the case law arising out of the massive Ponzi-scheme run by the now infamous Bernie Madoff. Uncovered in 2008, the resulting Madoff bankruptcies spawned dozens of decisions by the Bankruptcy Court, District Court and Second Circuit.  

We recently re-tweeted an article published in The New York Times on Monday October 21, 2013, entitled “Widow’s Bankruptcy Case Poses Risk to Rent-Stabilized Tenants.” 

William K. Harrington, the U.S. Trustee for Massachusetts, New Hampshire, Maine and Rhode Island (Region 1), has been designated by Attorney General Eric Holder also to serve Region 2 replacing Tracy Hope Davis effective Nov. 27. 

One of our lender clients, a New York City-based Federal Credit Union, came to us with a dilemma.

It seems the credit union was not receiving post-petition mortgage payments from its borrower, a chapter 13 debtor. Nor was the client receiving distribution payments from the debtor’s chapter 13 trustee. The lender had relied upon foreclosure counsel to handle the chapter 13 filing. Unfortunately, foreclosure counsel, not familiar with chapter 13 practice, only filed a Notice of Appearance and nothing else, not even a proof of claim.

Between 1998 and 2007, home mortgage debt nearly tripled from 4 trillion dollars to 10 trillion dollars. This mortgage boom resulted from easy lending and questionable subprime market practices. When the housing bubble burst, the economy tumbled. Many borrowers found themselves both unable to make mortgage payments and owners of real property worth less than what they owed. In response, many homeowners filed bankruptcy petitions either under chapter 7 to surrender their home, or chapter 13 to stop a foreclosure, repay pre-petition arrears, and hold on to their home.

In Picard v. JPMorgan Chase & Co. (In re Bernard L. Madoff Invest. Secs. LLC), the United States Court of Appeals for the Second Circuit held last month that the “doctrine of in pari delicto" precluded Irving H. Picard, the trustee under the Securities Investor Protection Act (“SIPA”), from pursuing JP Morgan Chase & Co., HSBC Bank PLC, and other third-party defendants, on behalf of defrauded customers for certain common law claims.  In re Bernard L. Madoff Investment Securities, LLC, 2013 WL 3064848 (2d. Cir. June 20, 2013).

As authorized in Section 603(a) of Public Law 109-8, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), the United States Trustee Program (USTP) established procedures for independent audit firms to audit petitions, schedules, and other information in consumer bankruptcy cases. Pursuant to 28 U.S.C. § 586(f), the USTP contracted with independent accounting firms to perform audits in cases designated by the USTP.  Due to budgetary constraints, the USTP has indefinitely suspended its designation of cases subject to audit and has notified the independent accounting firms performing the audits.  Pursuant to Section 603(a) of BAPCPA and 28 U.S.C. § 586(a)(6), after the conclusion of the fiscal year the USTP will make public information concerning the aggregate results of the debtor audits performed during fiscal year 2013.

The United States Courts created 9 videos to help explain the basics of filing for bankruptcy relief. Whether you are a debtor or a creditor, these resources will be helpful to understand bankruptcy process.

The Advisory Committee on Bankruptcy Rules for the Judicial Conference of the United States which is made up of federal judges, bankruptcy attorneys, and others, proposed amendments to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056. This Alert focuses on Bankruptcy Rule 3001.

Higher education costs continue to sky rocket with no end in sight. Students are incurring potentially crushing amounts of debt. Americans owe more than $1 trillion dollars in student loans, which has now surpassed the national credit card debt. While the surge in educational debt is worrisome, an even larger concern is private student loans. Private loans are a riskier way to finance education than through their federally subsidized counterparts.

As credit markets tighten, professionals and business owners alike have trouble finding access to credit to fund and grow business operations. Media reports indicate loans are harder to obtain and asset-to-debt ratios are stricter than ever. As cash dwindles the debt load rises. For the overwhelmed business owner bankruptcy is only one answer. There are other alternatives.

On December 22, 2010, an upstate New York bankruptcy court in an adversary proceeding filed by debtor Christopher Weber against SEFCU (“Credit Union”), granted Credit Union’s motion for summary judgment. 

Often people with less than perfect credit scores are surprised that locating one standardized credit profile or a “uniform” credit report is more myth than reality. Judgments, repossessions, slow payment history, tax liens--as well as bankruptcy filings--are reported to a varying degree by creditor filings or with public record databases maintained by one of the three largest consumer credit reporting agencies (“CRAs”). Sometimes adverse information is reported by other sources as well. In order to learn how badly your credit rating may have been damaged, you must first identify what personally identifiable credit information has been reported about you to the CRAs.

PaperStreet Web Design's development team just wrapped up the brand new re-design of weltmosk.com.   The new site not only has a modern design but is using the latest web technologies, JavaScript libraries, and web standards.

NEW YORK, NY - On September 25, 2008, Michael L. Moskowitz, a founding member of the law firm of Weltman & Moskowitz, LLP, presented an informative seminar to Deloitte, LLP professionals and support personnel at their New York City headquarters. Deloitte, LLP is one of the largest accounting and consulting firms in the world. The seminar was sponsored by the Deloitte Women's Initiative Learning and Development Committee.

NEW YORK, NY - Richard E. Weltman, a founding member of the law firm of Weltman & Moskowitz, LLP, recently presented an informative seminar to members of the Estate Planning Committee of the New York State Society of Certified Public Accountants at their FAE Conference Center in New York City.

NEW YORK, NY Despite claims earlier this year that bankruptcy practice would return to normal, the bottom is continuing to fall out.

NEW YORK, NY - By a vote of 302 to 126, on April 14, 2005, the U.S. House of Representatives passed a bankruptcy reform bill which will become, for the most part, effective 180 days after it is signed into law by President Bush on April 20. The reform bill, which has stalled in Congress for more than seven years, will make filing for bankruptcy more difficult and costly, and will enhance the rights of creditors.

NEW YORK, NY - The Supreme Court ruled on Monday April 4, 2005, that creditors may not seize Individual Retirement Accounts when people file for bankruptcy.

NEW YORK, NY - As anticipated, Senator Charles Grassley(R-Iowa) introduced comprehensive bankruptcy reform legislation, revised for the 2005 legislative session, last week with several co-sponsors including a democratic senator.

NEW YORK, NY -- Sweeping consumer bankruptcy reform has been promised and much ballyhooed in the media for several years. While bankruptcy experts around the nation are uncertain about the ultimate fate of major reform legislation, according to Michael L. Moskowitz, a bankruptcy attorney who has closely followed the bills, the House adopted the most recent bankruptcy reform legislation late Wednesday, March 19, 2003, that would toughen bankruptcy rules for individuals and corporations.