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Consumer Bankruptcy Law and Practice: I.2.5 Out-of-Pocket Health Care Expense Standard

On October 1, 2007, the IRS made substantial changes to its Collection Financial Standards, which were made effective for bankruptcy purposes on January 1, 2008. A new National Standard was added for out-of-pocket health care expenses. The dollar amount for this standard is intended to cover medical services, prescription drugs, and medical supplies (e.g., eyeglasses, contact lenses, etc.). Each debtor in the household is allowed the standard amount monthly, on a per person basis.

Consumer Bankruptcy Law and Practice: I.2.6 Administrative Expenses Multipliers

11 U.S.C. § 707(b)(2)(A)(ii)(III) allows debtors eligible for chapter 13 to include in their calculation of monthly expenses the actual administrative expenses of administering a chapter 13 plan in the judicial district where the debtor resides. The United States Trustee Program issues the schedules of actual administrative expenses which contain, by judicial district, the chapter 13 multiplier needed to complete Official Bankruptcy Forms 122A and 122C (Statement of Current Monthly Income and Calculations).

Consumer Bankruptcy Law and Practice: H.1 Date Calculator

The Bankruptcy Code specifies several time periods relating to certain prepetition events that may control fundamental aspects of a bankruptcy case, such as the availability of the automatic stay, the ability to claim exemptions, and the right to a discharge. In some cases, these time periods may affect the debtor’s decision when to file bankruptcy.

Consumer Bankruptcy Law and Practice: Introduction

The Bankruptcy Code requires the debtor to provide tax returns or transcripts in certain situations. The debtor is given the election of whether to provide a copy of the return or a transcript of the return. Typically, it is quicker and easier to obtain tax transcripts rather than tax returns, and the tax information provided in transcripts will generally cause less invasion of the debtor’s privacy. There are several different types of tax transcripts.

Consumer Bankruptcy Law and Practice: Introduction

This report has been prepared by Fellows of the American College of Bankruptcy (the “College”). The College and its Fellows do not warrant or represent the accuracy or completeness of any of the information, or any of the recommendations, contained in this report. The recipient of this report, by receipt, acknowledges the foregoing.

Consumer Bankruptcy Law and Practice: Retainer Agreement

The attorney should provide the debtor with a plain-English written retainer agreement in every case, setting forth the duties and obligations of the attorney and the client, no later than the time when the initial fee payment is made or, if the petition is filed before payment of a fee, prior to the petition being filed. The agreement should clearly state the attorney’s fees and terms of payment, as well as, in general terms, the scope of services that are covered and not covered by the fees stated.

Consumer Bankruptcy Law and Practice: Investigating the Facts

The debtor client is, of necessity, the primary source of information in a consumer bankruptcy case, and the client’s statement of the facts, obtained in a thorough and probing interview, should be presumed to be true absent particular circumstances that give rise to a suspicion that it is not. The debtor’s attorney should also obtain all documents reasonably available that are necessary to complete the petition, statement and schedules as fully and accurately as is reasonably possible.

Consumer Bankruptcy Law and Practice: Preparing the Schedules and Statements

An attorney preparing the schedules and statements required in a consumer bankruptcy case must set forth the required information in a way that is as clear and accurate as possible given the practical limitations on the information that can be gathered. These limitations arise from a lack of all the relevant contracts and other documents, debtors’ inability to give precise information with respect to many facts, the costs of obtaining precise information, and the general uncertainties and instabilities in debtors’ financial situations.

Consumer Bankruptcy Law and Practice: H.5 Best Practices for Document Production Requests by Trustees in Consumer Bankruptcy Cases

Shortly after the effective date of BAPCPA, the United States Trustee Program (“USTP”) reviewed its document production requirements and decided that USTP staff would not routinely request from debtors any documentation that is not otherwise required by the Bankruptcy Code (“Code”) or Federal Rules of Bankruptcy Procedure (“Rules”). The USTP similarly notified chapter 7 and chapter 13 trustees that we did not require them to collect additional documents without a specific need for additional information.

Consumer Class Actions: Introduction

California’s operative general class action statute, Code of Civil Procedure § 382, was enacted in 1872 as part of California’s Field Code and has remained essentially unchanged.15 California’s second class action statute, the Consumer Legal Remedies Act, is found at Civil Code §§ 1750, et seq., and lists 23 prohibited acts, violations of which form the basis for class actions seeking damages and a wide variety of other remedies.

Mortgage Servicing and Loan Modifications: 11.7a The Merrill Doctrine

Special issues arise when a servicer acts on behalf of a loan owner that is a federal governmental entity. Most often, this occurs when one of the GSEs, such as Fannie Mae or Freddie Mac, owns the borrower’s mortgage loan. In these situations, a court-created rule known as the Merrill doctrine may limit application of otherwise controlling agency principles.

Mortgage Servicing and Loan Modifications: 11.8.2.1 Scope

The Truth in Lending Act (TILA), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), effectively prohibits forced arbitration of disputes involving closed-end loans secured by a dwelling and open-end loans secured by a consumer’s principal dwelling.187 TILA defines a residential mortgage loan as “a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the co

Mortgage Servicing and Loan Modifications: 11.8.2.2 Two Separate TILA Provisions Limit Arbitration

In covered mortgage loans, TILA prohibits any terms that require arbitration or any other non-judicial procedure as the method for resolving any controversy or settling any claims arising out of the transaction (hereinafter referred to as the “(e)(1) provision”).197 The parties can agree to arbitration or a similar procedure at any time after a dispute or claim under the transaction arises.198

Credit Discrimination: 11.5.3.2.2a Limits on arbitration in schools’ program participation agreements

Effective July 1, 2023, Department of Education (the Department) regulations governing schools’ program participation agreements will prohibit institutions that participate in the Federal Direct Loan Program from “requiring borrowers to agree to mandatory pre-dispute arbitration agreements or waiver of class action lawsuits.”214 Specifically, schools that wish to participate in the Direct Loan Program must agree that they will not:

Credit Discrimination: 12.4.1.5.2 Showing harm to the municipality and causation

In City of Miami v. Bank of America Corp.,80 the Eleventh Circuit reversed a district court’s dismissal of the City’s discriminatory predatory lending claims against Bank of America. The City’s complaint focused on the bank’s practice of directing predatory loan terms towards Black and Latinx borrowers in Miami from 2004 to 2012. The City alleged both intentional discrimination and a discriminatory impact from the bank’s practices.

Mortgage Servicing and Loan Modifications: 11.8.2.4 Effective Date and Retroactive Application

There is no question that the TILA limitation on arbitration agreements in mortgage loans applies to any arbitration agreement entered into after June 1, 2013. This subsection considers the enforceability of arbitration agreements entered into before that date. Two issues are examined. First, whether the TILA requirement was effective as of June 1, 2013, or July 22, 2010. Second, whichever date is used, does the provision prevent the current enforcement of arbitration agreements entered into before the effective date?

Truth in Lending: 13.5.3.1 Introduction

When a lease is terminated early because of a default or early termination, the lessor seeks from the lessee all back unpaid lease payments, and also an additional amount specified in the lease. This chapter will reference this additional amount as the early termination charge whether it is assessed on default or voluntary early termination. This amount has some superficial similarity to a deficiency after a car’s repossession pursuant to a creditor’s security interest. But it is produced by a very different calculation and based on very different principles.