NACBA - National Association of Consumer Bankruptcy Attorneys

NACBA Amicus Briefs

This page contains NACBA Amicus Briefs. They are sorted by the Court in which they were filed. Click on the court to go to the briefs. Each brief is summarized; you can download the brief in text or pdf format by clicking next to the name of the case.

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Supreme Court
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit

Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit

Supreme Court

2006

Marrama v. Citizens Bank of Massachusetts, et al .

Whether the plain language of 11 U.S.C. § 706(a) grants the debtor an unqualified one-time right to convert a chapter 7 bankruptcy case to chapter 13?

Debtor's Attorney: David Baker

NACBA's Attorney: John Rao; Craig Goldblatt and Seth Waxman, Wilmer Cutler Pickering Hale and Dorr LLP

Result/Case Citation: No. 05-996, 549 U.S. -- (2007); Debtor lost; Holding that a chapter 7 debtor does not have an absolute right to convert his case to chapter 13. The 5-4 majority concluded that a chapter 7 debtor whose case could be converted or dismissed for cause under 11 U.S.C. § 1307(c) had forfeited the right to proceed under chapter 13.

2003

Tennessee Student Assistance Corp. v. Hood

Whether Congress has authority to abrogate state sovereign immunity under the Bankruptcy Clause.

Debtor's Attorney: Leonard H. Gerson

Result/Case Citation: 124 S.Ct. 1905 (2004) student loan dischargeability suit brought against state does not implicate state’s Eleventh Amendment immunity from suit. Court did not decide abrogation issue.

Till v. SCS Credit Corp.

What is the proper method for calculating the discount interest rate in a Chapter 13 cramdown.

Debtor's Attorney: Annette F. Rush

Result/Case Citation: 124 S.Ct. 1951 (2004). Debtors won. Court adopted "formula approach".

Kontrick v. Ryan

Whether deadline in Bankruptcy Rules for creditor objections to discharge can be tolled on equitable grounds.

Debtor's Attorney: E. King Poor

Result/Case Citation: 124 S.Ct. 906 (2004). Objection deadlines may be waived if debtor fails to assert untimeliness as a defense.

1997

Kawaahau v. Geiger

Application of "willful and malicious injury" exception under § 523(a)(6)

Debtor's Attorney: Laura Grandy

Result/Case Citation: 118 S.Ct. 974 (1998). Debtor won; only acts itended to cause injury are subject to exception.

In re Rash

Valuation of secured claim in Chapter 13

Debtor's Attorney: John Durkey

Result/Case Citation: 117 S.Ct. 1879 (1997). Results inconclusive.

First Circuit

2000	Bessette v. Avco Financial Services, Inc. Enforceability of discharge injunction in class action. Debtor's Attorney: Christopher Lefebvre Result/Case Citation: 230 F.3d 439 (1st Cir. 2000). Discharge enforceable through § 105; class action permissible.

1999	In re Mann Whether § 1322(b)(2) prohibits stripping off lien that is wholly unsecured lien. Debtor's Attorney: Christopher Lefebvre Result/Case Citation: 249 B.R. 831 (B.A.P. 1st Cir. 2000). Debtor won; totally unsecured lien may be stripped off.

1998

In re Weinstein

Homestead exemption and judicial lien avoidance

Debtor's Attorney: Joseph Bernardo

Result/Case Citation: 164 F.3d 677 (1st Cir. 1999) Debtor won; state law limitationon exemption for pre-existingdebt preempted.

In re Burr

Options available under § 521(2)

Debtor's Attorney: Joel Soforenko

Result/Case Citation: 160 F.3d 843 (1st Cir.1998)Creditor won-must reaffirm to retain collateral.

Second Circuit

2007	In re Peaslee (2d Cir. No. 07-3962) Whether inclusion of negative equity in car financing limits the applicability of the hanging paragraph? Trustee/Appellee: George Reiber NACBA's Attorney: Lewis Seigel, Tara Twomey Result/Case Citation: Pending.

2004

In re Hill

Whether bankruptcy court properly exercised discretion to retain stay violation case rather than refer to arbitration.

Debtor's Attorney: Gary Klein

Result/Case Citation: 436 F.3d 104 (2d Cir. 2006); Debtors lost; Reversing lower court and holding that bankruptcy court did not have discretion to refuse to enforce the arbitration clause because arbitration of the dispute did not inherently conflict with the Code or necessarily jeopardize the objectives of the Code.

2000	In re Taylor Whether retirement contributions constitute a reasonably necessary expense during Chapter 13. Result/Case Citation: 243 F.3d 124 (2nd Cir. 2001). Debtor won; whether reason-ably necessary should be decided on case-by-case basis.

1999

In re Barbieri

Whether debtors have an automatic right to dismiss Ch 13.

Debtor's Attorney: Gary Fischoff

Result/Case Citation: 199 F.3d 616 (2dCir. 1999). Debtor won.

Fisher v. New Jersey

Sovereign immunity re: discharge of state taxes.

Debtor's Attorney: William Dunnegan

Result/Case Citation: Appeal Withdrawn.

1997	In re Boodrow Options available under § 521(2). Debtor's Attorney: William McCarthy Result/Case Citation: 126 F.3d 43 (2d Cir. 1997). Debtor won - may retain with continuing payments.

Third Circuit

2007

In re Brady (Bankr. D.N.J.)

Whether disposable income for an above-median income debtor is calculated using Form B22 or Schedules I and J.

Debtor's Attorney: Scott Zauber

NACBA's Attorney: William Mackin, Tara Twomey, Henry Sommer

Result/Case Citation: Debtor won; 361 B.R. 765 (Bankr. D.N.J. 2007); Holding that Form B22 is controlling when projecting disposable income and that the length of a chapter 13 plan for an above-median income debtor with no disposable income can be less than 60 months. Click here for here for the decision. (Click here for the decision

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2006

In re Connors

Whether debtor who, following a sheriff's auction, still possesses a right of redemption under state law is entitled to cure a mortgage default pursuant to § 1322(c)(1)?

Debtor's Attorney: Scott Sherman

NACBA's Attorney: Scott Waterman

Result/Case Citation: Debtor lost; 497 F.3d 314 (3d Cir. 2007).

In re Scarborough

Whether a chapter 13 debtor may modify, pursuant to section 11 U.S.C. § 1322(b)(2), an undersecured mortgage claim on a multi-unit property that includes a unit in which the debtor does not reside?

NACBA's Attorney: Scott Waterman, Irwin Trauss, Kenneth West

Result/Case Citation: Debtor won; 461 F.3d 406 (3d Cir. 2006).

2003	In re Price Options available under § 521(2). Debtor's Attorney: Andrea G. Green Result/Case Citation: 370 F.3d 362 (3d Cir. 2004). Debtor won -- may retain with continuing payments.

1999	In re Anes Whether retirement loan repayments may be deducted from Ch 13 disposable income. Debtor's Attorney: John DiBernardino Result/Case Citation: 195 F.3d 177 (3d Cir. 1999). Debtor lost.

Fourth Circuit

2008	In re Meadows, No 07-1968 Whether debtor may surrender a 910-car in full satisfaction of creditor's claim? Debtor's Attorney: David Cox NACBA's Attorney: Brett Weiss; Tara Twomey Result/Case Citation: Pending

2007

In re White, No. 06-31611 (Bankr. W.D.N.C.)

Whether debtor may surrender a 910-car in full satisfaction of creditor's claim?

Debtor's Attorney: Geoff Planer

NACBA's Attorney: Susan Robicsek, Tara Twomey

Result/Case Citation: Debtor lost; No published decision; Creditor entitled to unsecured deficiency claim.

In re Bellamy (Bankr. D. Md.)

Whether chapter 13 trustee must pay debtor's counsel's fees approved under section 1326(a)(2) ahead of claims from secured and unsecured creditors?

Debtor's Attorney: Jeffrey Sirody

NACBA's Attorney: Brett Weiss

Result/Case Citation: Debtor mostly won; 379 B.R. 86 (Bankr. D. Md. 2007); holding that after confirmation, if there is any unpaid allowed administrative expenses, including attorney fees, no payment may be made to any other creditor under the plan, unless administrative expense is paid in full, either first or at the same time.

2001	In re Massey Whether favored treatment of a codebtor claim under § 1322(b)(1) is subject to unfair discrimination test. Debtor's Attorney: Charles Krumbein Result/Case Citation: Appeal dismissed as interlocutory in unpublished opinion.

Fifth Circuit

2000	AT&T University v. Mercer Justifiable reliance in credit card dischargeability. Debtor's Attorney: Kaara Liskow Result/Case Citation: 246 F.3d 391 (5th Cir. 2001) Debtor sort of lost, rev'd and remanded.

1999

Bolin v. Sears Roebuck

FRCP 23(f) appeal of class certification involving challenges to Sears' bankruptcy collection practices.

Debtor's Attorney: Gene Clements

Result/Case Citation: Certification order based on Rule 23(b)(2) vacated and remanded for consideration under Rule 23(b)(3).

In re Rash

Valuation of secured claim in Chapter 13.

Debtor's Attorney: John Durkey

Result/Case Citation: 90 F.3d 1036 (5th Cir. 1996). Debtor won.

Sixth Circuit

2007	In re Long Whether debtor may surrender a 910-car in full satisfaction of creditor's claim? Debtor's Attorney: John Newton, Brent Snyder NACBA's Attorney: Tara Twomey Result/Case Citation: Pending.

2006

In re Ezell (Bankr. E.D. Tenn.)

Whether debtors may surrender a vehicle purchased for personal use and within 910 days of filing a petition in full satisfaction of creditor's claim.

Debtor's Attorney: Richard Mayer

NACBA's Attorney: Cindy Lawson, Tara Twomey

Result/Case Citation: Debtors won; Car may be surrendered in full satisfaction of claim under § 1325(a)(5)(C). 338 B.R. 330 (Bankr. E.D. Tenn. 2006). (Click here for the decision

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In re Gentry (Bankr. E.D. Tenn.)

Whether § 1325(a)(4) is applicable to a creditors claim where such claim is secured by a vehicle purchased for personal use and within 910 days of filing of a petition and whether debtor may satisfy such claim in full by surrendering the vehicle?

Debtor's Attorney: Robert Cave

NACBA's Attorney: Alan Lee, Tara Twomey

Result/Case Citation: 2006 WL 3392947 (Bankr. E.D. Tenn. 2006); Debtors won; 910-car may be surrendered in full satisfaction of creditor's claim. (Click here for the decision

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2000	AT&T University v. Mercer Justifiable reliance in credit card dischargeability. Debtor's Attorney: Kaara Liskow Result/Case Citation: 246 F.3d 391 (5th Cir. 2001) Debtor sort of lost, rev'd and remanded.

1999

Bolin v. Sears Roebuck

FRCP 23(f) appeal of class certification involving challenges to Sears' bankruptcy collection practices

Debtor's Attorney: Gene Clements

Result/Case Citation: Certification order based on Rule 23(b)(2) vacated and remanded for consideration under Rule 23(b)(3).

In re Rash

Valuation of secured claim in Chapter 13.

Debtor's Attorney: John Durkey

Result/Case Citation: 90 F.3d 1036 (5th Cir. 1996). Debtor won.

Seventh Circuit

2007

In re Wright

Whether debtors may surrender a vehicle purchased for personal use and within 910 days of filing a petition in full satisfaction of a claim?

Debtor's Attorney: Xioaming Wu

NACBA's Attorney: JIm Haller, Tara Twomey

Result/Case Citation: 2007 WL 1892592 (7th Cir. July 3, 2007). Debtor lost; Holding debtors may not surrender 910-car in full satisfaction of allowed secured claims.

1997	In re Hoskins Valuation of secured property in Chapter 13. Debtor's Attorney: Lloyd Koehler Result/Case Citation: Debtor won.

Eighth Circuit

2007

Brown v. Pyatt

Whether debtor must reimburse the estate where pre-petition checks are cashed post-petition?

Debtor's Attorney: Gary Bollinger

NACBA's Attorney: Wendell Sherk, Tara Twomey

Result/Case Citation: Debtor won; 486 F.3d 423 (8th Cir. 2007); Debtor not subject to turnover motion where funds removed from checking account post-petition, on account of pre-petition checks, were no longer under debtor's control.

In re Suggs (BAP)

Whether creditor violates the automatic stay by seizing debtor's vehicle pursuant to local rule without filing a motion for relief from the stay.

Debtor's Attorney: Todd Wilhelmus

NACBA's Attorney: Tara Twomey

Result/Case Citation: Debtor won; 377 B.R. 198 (B.A.P. 8th Cir. 2007); Holding that local rule permitting self-help repossession followed by a motion for relief from stay is contrary to the provisions of § 362 and FRBP 4001(a) and therefore invalid. In re Suggs, 2007 WL 3242721 (8th Cir. BAP Nov. 5, 2007)

1999

In re Gruntz

Application of stay to criminal prosecution to collect child support debt; state court authority to decide stay/discharge violations.

Debtor's Attorney: Fritz Furman, Joseph Weber

Result/Case Citation: 202 F.3d 1074 (9th Cir. 1999)Criminal prosecution re: child support within exception to § 362; bankr cts have sole authority to determine stay/discharge violations and are not bound by state ct modifications of stay.

Ninth Circuit

2008	Olsen v. Mukasey, Nos. 07-35616, 07-35762 Whether provisions related to debt relief agencies contained in sections 526(a)(4), 528(a)(3), (a)(4) and (b)(2) are unconstitutional? NACBA's Attorney: Henry Sommer, Jonathan Massey Result/Case Citation: Pending

2007

In re Kagenveama

Is the projection of “disposable income” for purposes of 1325(b)(1)(B) based Form B22C or the difference between Schedules I and J and whether an above-median debtor with zero or negative disposable income is required to propose a 60 month plan?

Debtor's Attorney: Andrew Nemeth

NACBA's Attorney: M. Johnathan Hayes, Tara Twomey

Result/Case Citation: Pending.

In re Rodriguez (9th Cir. BAP)

Whether debtors may surrender a vehicle purchased for personal use and within 910 days of filing a petition in full satisfaction of a claim?

Debtor's Attorney: Robert Russell

NACBA's Attorney: Leonard Pena, Tara Twomey

Result/Case Citation: Debtor lost; 375 B.R. 535 (B.A.P. 9th Cir. 2007).

2002

In re Lopez

Whether post-discharge property retention agreement is disguised reaffirmation agreement that violates § 524(c) and (d).

Debtor's Attorney: John Roberts

Result/Case Citation: 345 F.3d 701 (9th Cir. 2002). Debtors won - agreement which required debtors to pay discharged debt was void reaffirmation.

2001	In re Su Whether Geiger requires application of an objective substantial certainty test for "willful and malicious injury" exception. Debtor's Attorney: Stanley Zlotoff Result/Case Citation: 290 F.3d 1140 (9th Cir. 2002). Debtor won; discharge exception requires proof of subjective intent.

1999	Contractor's State Licensing Board v. Dunbar Preclusive effect of state admin agency's decision. Debtor's Attorney: David Boone Result/Case Citation: 245 F.3d 1058 (9th Cir. 2001)Debtor won; bankr cts havefinal authority on core proceedings.

1997

In re Been

§ 522(f)(2(C)-avoidance of mortgage deficiency judicial lien.

Debtor's Attorney: Ivan Trahan

Result/Case Citation: 153 F.3d 1034 (9th Cir. 1998) Debtor won; lien could be avoided since not based on judgment arising out of foreclosure.

In re Taffi

Secured claim valuation; Chapter 11 costs of sale.

Debtor's Attorney: Lavar Taylor

Result/Case Citation: Creditor won.

Tenth Circuit

2007	In re Jones (10th Cir. No. 07-3256) Whether 910-car creditor is entitled to interest on its claim. Debtor's Attorney: Kenneth Gay NACBA's Attorney: Jill MIchaux, Cynthia Grimes, Tara Twomey Result/Case Citation: Pending.

1998	In re Montgomery Earned income tax credit property of the estate. Debtor's Attorney: Jill Michaux Result/Case Citation: 2000 US App LEXIS. Debtor Lost.

Eleventh Circuit

2008	In re Barrett, No. 07-14796 Whether debtor may surrender a 910-car in full satisfaction of creditor's claim? Debtor's Attorney: Earl Gillian NACBA's Attorney: David Poston, Tara Twomey Result/Case Citation: Pending

2007

In re Graupner (Bankr. M.D. Fla.)

Whether inclusion of negative equity in car financing limits the applicability of the hanging paragraph?

Debtor's Attorney: Brace Luquire

NACBA's Attorney: John K. James, Tara Twomey

Result/Case Citation: 2007 WL 1858291 (M.D. Ga. June 26, 2007); Debtor lost; Holding negative equity constitutes part of purchase money obligation under Georgia law and therefore hanging paragraph requires payment in full.

2006

In re Sainlar (Bankr. M.D. Fla.)

Whether appreciation in value is an interest acquired for purposes of the homestead cap in § 522(p).

Debtor's Attorney: Robert F. Pflueger

NACBA's Attorney: Doug Neway, Tara Twomey

Result/Case Citation: Debtor won; appreciation is not an interest acquired in property for purposes of 522(p); 344 B.R. 669 (Bankr. M.D. Fla. 2006). (Click here for the decision

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2002	Great American Financial v. Paschen Whether § 1322(c)(2) permits the stripdown of short-term mortgages. Debtor's Attorney: William Edwards Result/Case Citation: 296 F.3d 1203 (11th Cir. 2002). Debtor won; mortgages having final payment that comes due during Chapter 13 plan may be modified.

1999	Tanner v. Firstplus Whether § 1322(b)(2) prohibit stripping off lien that is wholly unsecured. Debtor's Attorney: Douglas Neway Result/Case Citation: 217 F.3d 1357 (11th Cir. 2000) Debtor won; totally unsecured lien may be stripped off.