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Consumer Bankruptcy Law and Practice: Government Websites
United States Trustee Program: www.justice.gov
Credit Counseling Information: www.justice.gov
Debtor Audit Information: www.justice.gov
Consumer Bankruptcy Law and Practice: Legal Research Websites
Cornell Law School:
Bankruptcy Overview: http://topics.law.cornell.edu
Federal Rules of Bankruptcy Procedure: www.law.cornell.edu
Consumer Bankruptcy Law and Practice: Bankruptcy Organization Websites
National Association of Consumer Bankruptcy Attorneys: www.nacba.org
American Bankruptcy Institute: www.abiworld.org
National Conference of Bankruptcy Judges: www.ncbj.org
Consumer Bankruptcy Law and Practice: Pro Bono Resource Websites
National Legal Aid and Defender Association: www.nlada.org
Sargent Shriver National Center on Poverty Law: www.povertylaw.org
American College of Bankruptcy Foundation: www.americancollegeofbankruptcy.com
Consumer Bankruptcy Law and Practice: Consumer Organization Websites
National Consumer Law Center: www.nclc.org
National Association of Consumer Advocates: www.consumeradvocates.org
Americans For Fairness In Lending: http://americansforfairnessinlending.wordpress.com
Truth in Lending: 11.2.3.5 The Role of Congress’s Judgment
Ramirez seems to undercut Spokeo’s holding on the role of Congressional judgment when evaluating standing.
Truth in Lending: 11.2.3.7 Is the Risk of Harm a Concrete Injury?
Ramirez appears to cut back on the principle that Spokeo seemed to adopt that “the risk of real harm” can be a concrete injury in a suit seeking money damages.79 Where there is only a risk of harm, the majority opinion in Ramirez states that standing is confined to suits seeking prospective relief, such as an injunction.80 This statement appears to be dicta, because the Court concluded on the facts that the plaintiffs had not established a risk of harm
Truth in Lending: 11.2.3.8 “Downstream Consequences” Must Be Shown for Disclosure Format Violations; Informational Injuries
The Ramirez Court addressed several additional issues with respect to the plaintiff’s claims that were based on TransUnion’s failure to comply with the FCRA’s file disclosure requirement and its duty to include a summary of consumer rights with a file disclosure.
Truth in Lending: 11.2.3.9 Private Rights vs. Public Rights
In Spokeo, Justice Thomas, while concurring in the majority opinion, had proposed a different conceptual framework, founded on a distinction between “private rights” and “public rights.” Quoting Blackstone, he defined private rights as those “belonging to individuals, considered as individuals,” including rights of personal security, property rights, and contract rights.
Consumer Banking and Payments Law: 4.1a Common Issues with Deposits and Payments to Consumers
Issues that can arise with respect to payments to—or deposits by—consumers include:
Consumer Banking and Payments Law: 4.4a Mobile Deposits Through Remote Deposit Capture
Consumers and other payees are increasingly depositing checks electronically through a process called “remote deposit capture.”162 Typically, the consumer takes a picture of their check with a mobile device and uploads the image through an app provided by their bank or a non-bank banking app.
Consumer Bankruptcy Law and Practice: 9.4.4.2 Setoff and Recoupment of Government Benefits
Some debtors seek bankruptcy relief because the limited income they receive from a government benefit program is being reduced to recover an overpayment of benefits. The question of how such overpayments are treated in bankruptcy, including application of the automatic stay, often turns on the type of benefit program involved and the distinction between setoff and recoupment. Both setoff and recoupment involve situations in which the debtor and creditor are obligated to each other.
Consumer Bankruptcy Law and Practice: 9.4.4.3 Bank Account “Freezes” and Preauthorized Withdrawals
The Supreme Court has held that a “freeze” on a debtor’s bank account, by a bank to which the debtor owes money, does not constitute a setoff prohibited by the stay.158 The court held that a temporary freeze, while a creditor seeks relief from the stay in order to exercise a right of setoff, is permissible.159 However, a more permanent freeze should be considered differently.
Consumer Bankruptcy Law and Practice: 9.4.4.4 Interception of Tax Refunds
The interception of tax refunds to pay student loans or other debts being collected by the government is another example of an act that is stayed.166 Although it is sometimes not easy to determine the date the intercept actually occurred, if it occurred after the bankruptcy case was filed it is normally possible to have the intercepted funds returned to the debtor.167 The Internal Revenue Service (IRS) has been one of the most frequent adversaries in litigation regarding these issues.
Consumer Bankruptcy Law and Practice: 9.4.5 The Automatic Stay Protecting Codebtors in Chapter 13
In chapter 13 cases, another type of automatic stay also goes into effect.
Consumer Bankruptcy Law and Practice: 9.4.6.2 Criminal Proceedings
The stay does not automatically prohibit commencement or continuation of criminal proceedings.197 Thus, a criminal case based upon a bad check can continue without violation of the stay.198 This exception, however, does not necessarily protect a private creditor who instigates such proceedings in an attempt to collect a debt.199 The exception also does not include the collection of a monetary liability imposed as part of a probation program or as r
Consumer Bankruptcy Law and Practice: 9.4.6.3 Family Law Exceptions
The 2005 amendments to the Code created exceptions to the automatic stay provisions for proceedings concerning child custody, visitation rights, domestic violence, and divorce (to the extent the divorce proceeding does not seek to divide property of the estate).207 These exceptions are common sense corrections for proceedings that do not have an impact on bankruptcy. Many people had probably assumed they were not stayed, though in fact they usually were, because they were legal proceedings that could have been commenced prior to petition.
Consumer Bankruptcy Law and Practice: 9.4.6.4 Continued Withholding of Income for Loans from Retirement Funds
Another exception enacted in 2005 authorizes the continued withholding of wages for repayment of retirement fund loans.223 The wage withholding must be for repayment of a loan from a plan under section 408(b)(1) of the Employee Retirement Income Security Act (ERISA) or that is subject to section 72(p) of the Internal Revenue Code, or from a thrift savings plan in the Federal Employee’s Retirement System.
Consumer Bankruptcy Law and Practice: 9.4.6.5.1 Introduction
In addition to section 362(c)(3) and (4), discussed above,226 two exceptions to the automatic stay enacted in 2005 limit its application based upon prior bankruptcy case filings.
Consumer Bankruptcy Law and Practice: 9.4.6.5.2 In rem orders
Another provision added by the 2005 Act allows creditors with claims secured by real property to seek in rem stay relief in certain limited circumstances.228 If the court enters an in rem order under new section 362(d)(4), and the order is properly recorded, section 362(b)(20) provides that the stay does not apply with respect to the particular property covered by the order in a later case filed within two years after the date of the order.229
Consumer Bankruptcy Law and Practice: 9.4.6.6.2 Prepetition judgment for possession
Under section 362(b)(22), the eviction of a debtor from residential property in which the debtor resides as a tenant under a lease or rental agreement is not stayed by section 362(a)(3) if the lessor has obtained a judgment for possession prior to the filing of the bankruptcy petition, unless the debtor meets certain conditions.
Consumer Bankruptcy Law and Practice: 9.4.6.6.3 Illegal use of controlled substances or endangerment to the property
A second exception to the automatic stay under section 362(a)(3) applies if the lessor files and serves on the debtor a certification under penalty of perjury that: