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Consumer Banking and Payments Law: 6.7.8.2 Common Law Claims That Are Not Preempted by UCC Article 4A

Article 4A is not the “exclusive means by which a plaintiff can seek to redress an alleged harm arising from a funds transfer.”568 A plaintiff may assert a common law claim based upon a funds transfer if the claim “(1) arises from circumstances not contemplated in Article 4A or (2) represents rights and obligations not contrary to those set forth in Article 4A.”569 As the First Circuit put it, “courts hav

Mortgage Servicing and Loan Modifications: Introduction to Sample Pleadings

The digital version of this treatise includes under “Pleadings and Discovery” over 200 sample pleadings relating to injunction against sale, federally financed housing, RESPA, HOEPA, HAMP loan modifications, MERS, fraud and UDAP claims, land installment sales contracts, TILA rescission, servicing abuses, foreclosure rescue scams, bankruptcy, and other subjects. The pleadings include complaints, discovery requests, motions, briefs, proposed orders, and more.

Home Foreclosures: 10.8.2.1a. The Significance of When the Lease Commenced

The two key predictors under state law as to whether a tenant has rights to remain in the foreclosed property are whether the lease was executed before or after the mortgage and whether a foreclosure is judicial or non-judicial.621 If a lease was consummated prior to creation of the mortgage, the lease generally is treated as not extinguished by the foreclosure, in both judicial and non-judicial foreclosure states.622 This is so because the foreclosure purchaser acquires no greater interest than

Consumer Bankruptcy Law and Practice: Introduction

The Official Forms necessary to commence a case are reproduced in Appendix D, supra. These forms are included as sample completed bankruptcy schedules illustrating how to prepare an initial filing. Other Official Forms are included in blank format.

Consumer Bankruptcy Law and Practice: Exhibit A

Exhibit A

Debtor’s Request for Production of Documents Directed to [name] Mortgage Company

The Debtor, [name], by her counsel, and pursuant to Fed. R. Bankr. P. 2004, makes this request for production of documents directed to [name] Mortgage Company. Defendant is requested to produce the documents described below at the Rule 2004 examination to be held as ordered by the Bankruptcy Court.

DEFINITIONS

Consumer Bankruptcy Law and Practice: Listing of Provisions

Also available at www.irs.gov.

TABLE OF CONTENTS

Part 5—Collecting Process

Chapter 15—Financial Analysis

Section 1—Financial Analysis Handbook

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5.15.1.8 Allowable Expense Overview

5.15.1.9 National Standards

5.15.1.10 Local Standards

5.15.1.11 Other Expenses

5.15.1.12 Determining Individual Income

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Consumer Bankruptcy Law and Practice: 5.15.1.8 Allowable Expense Overview (07-24-2019)

1. Allowable expenses include those expenses that meet the necessary expense test. The necessary expense test is defined as expenses that are necessary to provide for a taxpayer’s and his or her family’s health and welfare and/or production of income. There are three types of allowable expenses:

• Allowable Living Expenses—based on National and Local Standards

• Other Necessary Expenses—expenses that meet the necessary expense test, and are normally allowed

Consumer Bankruptcy Law and Practice: 5.15.1.11 Other Expenses (11-22-2021)

1. Other expenses may be necessary or conditional. Other necessary expenses meet the necessary expense test and normally are allowed. The amount allowed must be reasonable considering the taxpayer's individual facts and circumstances. Other Conditional Expenses may not meet the necessary expense test, but may be allowable based on the circumstances of an individual case.

Consumer Bankruptcy Law and Practice: 5.15.1.12 Determining Individual Income (08-29-2018)

1. Generally all household income, including income that is exempt from tax on the Form 1040, will be used to determine the taxpayer’s ability to pay. Income earned by a taxpayer’s dependent child, claimed on the child’s Income Tax Return, would generally not be included in the taxpayer’s household income. However, if an independent adult child is living with the taxpayer and contributing to the household income used to pay living expenses, that adult child’s income may be included in a Shared Expense analysis.

Repossessions: 14.1.2.4 Where a State Statute Defines a Lease as a Security Interest

A Nevada statute requires that dealers provide consumer vehicle lessees with a special disclosure statement. If the dealer does not obtain the consumer’s signature on that disclosure statement, the lease shall be deemed a retail installment contract for the sale of the vehicle.38 In that case, not only the state installment sales statute, but UCC Article 9 should apply to the transaction.

Consumer Bankruptcy Law and Practice: A.2 Selected Provisions of Title 28 of the United States Code

Listing of Provisions

TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE

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CHAPTER 6—BANKRUPTCY JUDGES

28 U.S.C. § 151. Designation of bankruptcy courts

28 U.S.C. § 152. Appointment of bankruptcy judges

28 U.S.C. § 153. Salaries; character of service

28 U.S.C. § 154. Division of business; chief judge

28 U.S.C. § 155. Temporary transfer of bankruptcy judges

28 U.S.C. § 156. Staff; expenses

28 U.S.C. § 157. Procedures

28 U.S.C. § 158. Appeals

Consumer Bankruptcy Law and Practice: A.3 Selected Provisions of Other Titles of the United States Code

Listing of Provisions

TITLE 18—CRIMES AND CRIMINAL PROCEDURE

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CHAPTER 9—BANKRUPTCY

18 U.S.C. § 151. Definition

18 U.S.C. § 152. Concealment of assets; false oaths and claims; bribery

18 U.S.C. § 153. Embezzlement against estate

18 U.S.C. § 154. Adverse interest and conduct of officers

18 U.S.C. § 155. Fee agreements in cases under title 11 and receiverships

18 U.S.C. § 156. Knowing disregard of bankruptcy law or rule

18 U.S.C. § 157. Bankruptcy fraud

Consumer Bankruptcy Law and Practice: 11.6 Using Chapter 13 to Deal with Secured Creditors

11.6.1 Modification of Secured Creditors’ Rights in Claims Not Secured Only by Real Estate That Is the Debtor’s Principal Residence11.6.1.1 Generally

Perhaps the greatest powers to affect the rights of secured creditors are found in the provisions of chapter 13. Bankruptcy Code section 1322 provides that the debtor’s plan may modify the rights of holders of most secured claims, other than some claims secured only by a security interest in real property that is the debtor’s principal residence.