Consumer Bankruptcy Law: 

Chapters 7 & 13

William Houston Brown

U.S. Bankruptcy Judge (Retired)

Western District of Tennessee

Legal Editor

Kris Markarian

Federal Judicial Center

2014

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop educational materials for the judicial branch. 

While the Center regards the content as responsible and valuable, it does not reflect policy or recommendations of the Board of the Federal Judicial Center.
first printing
iii

contents

Preface, vii

Overview, 1

Part 1: Introduction: Bankruptcy Courts and the Code, 5

1.1 Structure of bankruptcy courts, 5

1.2 Procedures and rules in bankruptcy courts, 12

1.3 Structure of Bankruptcy Code, 14

1.4 United States trustee and bankruptcy administrator, 15

1.5 Litigation in bankruptcy courts, 15

Part 2: Commencement of Case and Automatic Stay, 17

2.1 Venue, 17

2.2 Individual and joint petitions, 18

2.3 Filing requirements, 20

2.4 Debtor’s duties subsequent to filing petition, 22

2.5 Joint administration and substantive consolidation, 24

2.6 Prebankruptcy credit counseling, 25

2.7 Automatic stay, 26

2.7.1 Exceptions from automatic stay, 31

2.7.2 Waivers of automatic stay, 35

2.7.3 Codebtor stay, 36

2.7.4 Termination of stay, 36

2.7.5 Stay relief, 38

2.7.6 Standing for stay relief motion, 39

2.7.7 Violations of automatic stay and damages, 41

2.7.8 Effect of stay relief on eligibility to file bankruptcy, 44

Part 3: Bankruptcy Estate and Exemptions, 47

3.1 Inclusions in estate property, 48

3.2 Exclusions from estate, 50

3.3 Turnover, 52

3.4 Avoidance recovery, 53

3.5 Judicial estoppel, 53

3.6 Exemptions, 54

3.7 Objections to exemption claims, 60
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3.8 Exemption of retirement funds, 62

3.9 Tenancy by entirety and joint tenancy exemption, 63

3.10 Limits on homestead exemptions: § 522(o), (p), and (q), 63

3.11 Lien avoidance under § 522(f), 65

3.12 Effect of case conversion on exemption objection, 66

3.13 Effect of exemptions after discharge, 67

3.14 Constitutionality of bankruptcy-specific state exemptions, 67

3.15 Surcharge of exemptions, 68

Part 4: Claims Allowance and Distributions to Creditors, 71

4.1 Overview, 71

4.2 Filing proof of claim, 72

4.3 Proof of claim—Official Form 10, 74

4.4 Time for filing proof of claim, 74

4.5 Claim allowance, 76

4.6 Objections to claims, 77

4.7 Documentation of claims and applicable Bankruptcy Rule, 79

4.8 Redaction of information from proof of claim, 84

4.9 Reconsideration and amendment of claims, 85

4.10 Effect of claim allowance order, 86

4.11 Priority claims and order of distribution, 86

Part 5: Relief Under Chapter 7, 89

5.1 Overview, 89

5.2 Eligibility and dismissal under means test, 90

5.3 Chapter 7 trustee, 96

5.4 Redemption and valuation, 97

5.5 Abandonment, 98

5.6 Reaffirmation, 98

5.7 Discharge, 100

5.8 Exceptions from general discharge, 103

5.9 Revocation of discharge, 111

5.10 Discharge injunction, 112

5.11 Conversion of case to Chapter 13, 112

5.12 Voluntary dismissal of Chapter 7 case, 113

5.13 Lien avoidance and stripping, 113
Contents

v

Part 6: Relief Under Chapter 13, 115

6.1 Overview, 115

6.2 Eligibility for Chapter 13 relief, 116

6.3 Good-faith filing and conversion eligibility, 119

6.4 Property of Chapter 13 estate, 121

6.5 Codebtor stay, 122

6.6 Chapter 13 trustee, 123

6.7 Debtor’s duties and powers, 123

6.8 Plan requirements, 125

6.9 Optional plan provisions, 126

6.9.1 Separate classification, 126

6.9.2 Modification of secured and unsecured claims, 128

6.9.3 Curing defaults, 132

6.9.4 Vesting of property of estate, 135

6.9.5 Miscellaneous, 136

6.10 Plan confirmation requirements, 139

6.11 Objections to confirmation; disposable income test and applicable 

commitment period, 144

6.12 Plan modifications, 149

6.13 Effects of confirmation, 150

6.14 Case conversion and dismissal, 152

6.15 Discharge, 154

6.16 Claim and home mortgage litigation, 155

Appendix A: Federal Bankruptcy Rule 3002.1, 159

Appendix B: For Further Reference, 161

Glossary, 163

Table of Cases, 169

 Alphabetical, 169

 By Court, 188

vii

preface

This monograph provides an overview of consumer bankruptcy law and 

describes the statutory framework for bankruptcy relief under Chapters 7 

and 13 of the Bankruptcy Code, Title 11 of the U.S. Code. It is intended 

primarily as a reference for Article III judges, especially district judges,

who may not handle bankruptcy cases frequently, but other judges may 

also find it helpful.

This monograph describes the types of fact and legal issues that arise

in the bankruptcy and appellate courts, highlighting the relevant and

principal Supreme Court, appellate, and trial court authority. Important 

circuit conflicts are examined where applicable.

Case law is current through December 31, 2014. References to the 

U.S. Code are to the 2006 version unless stated otherwise. Some unpublished decisions are cited. Although they are not precedential, they 

may have persuasive value.1

Appendix B, For Further Reference, lists suggested sources for more 

complete analysis of bankruptcy issues and law.

The author would like to thank Judge Jon P. McCalla (Western District of Tennessee) for his invaluable review of the draft of this monograph.

1. See Fed. R. App. P. 32.1.

1

overview

The statutory framework for consumer bankruptcy relief is contained in

Chapters 7 and 13 of the Bankruptcy Code, Title 11 of the U.S. Code. Relief 

available under Chapters 7 and 13 is distinct from that under Chapters 9, 

11, and 12. While nonconsumer debtors may file for relief under Chapters 

7 and 13, the most common debtors are consumers. In the twelve months 

ending June 30, 2014, there were 1,000,083 bankruptcy filings, 969,970 of 

which were nonbusiness filings. Of the nonbusiness filings, 649,975 were 

under Chapter 7 and 318,781 were under Chapter 13.2

Who is a debtor?

Although the term “debtor” has broader meaning in the context of financial transactions, “debtor” in this monograph refers to individuals who 

file for relief under the Bankruptcy Code.

3 A “consumer debtor” is one 

whose primary debts are “consumer debts,” a term defined in the Bankruptcy Code as “debt incurred by an individual primarily for a personal, 

family, or household purpose.”4 A debtor may have business-related 

debts and still be a consumer debtor, provided the debts fall within the 

“consumer debt” definition; one who has less than a majority of “consumer debt” would not necessarily be disqualified for relief under Chapter 7 or 13. But, as will be seen in later discussion of eligibility for bankruptcy relief, the amount of debt is a factor. Notwithstanding that a particular debtor may have a mixture of consumer and nonconsumer debt 

and still be eligible for relief under these chapters of the Code, the focus 

of this monograph is on consumer debtors. Thus the discussions to follow apply to individuals filing for bankruptcy relief. The monograph does 

2. Detailed Statistical Table F-2, available at http://www.uscourts.gov/uscourts/

Statistics/JudicialBusiness/2012/appendices/F02Sep12.pdf.

3. 11 U.S.C. § 101(13) (“The term ‘debtor’ means person . . . concerning which a 

case under this title has been commenced.”).

4. 11 U.S.C. § 101(8).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

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not cover bankruptcy relief for corporations, partnerships, or other entities.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 

2005 (BAPCPA) significantly amended the Bankruptcy Code.5 This examination of the Bankruptcy Code’s provisions is based on the Code as 

amended in 2005, along with any relevant subsequent amendments. The 

2005 amendments did not change the entire 1978 Bankruptcy Code, but 

most of its changes were to consumer portions.6 Owing to space limitations, this monograph does not attempt to distinguish the pre-2005 Code 

from the amended Code. Appendix B, For Further Reference, lists resources about the history of the bankruptcy laws of the United States, as 

well as suggested sources for more complete analysis of bankruptcy issues 

and law.

What are bankruptcy courts?

The bankruptcy courts are trial courts in the federal judicial system.7

Where relevant, the monograph examines procedural issues, including 

case management tools. Appeals from the bankruptcy courts may go to 

the district court, or, when an appropriate election has been made, to a 

bankruptcy appellate panel, and then to the courts of appeals, with final 

appeal to the Supreme Court of the United States.

8

This monograph is organized as follows:

• Part 1 is an overview of the structure of the bankruptcy courts, 

their jurisdiction and jurisdictional limits. It explains the procedural rules and the fundamentals of the Bankruptcy Code’s 

structure, and it summarizes the primary terms used in consumer bankruptcy practice.9 The appellate process, including the potential for direct appeals to the circuit courts, is briefly described. 

5. Pub. L. 109-8, 119 Stat. 23 (Apr. 20, 2005).

6. For analysis of BAPCPA’s amendments and black-lined Code, showing changes 

made by Act, see Hon. William H. Brown & Lawrence R. Ahern III, 2005 Bankruptcy Reform Legislation (2d ed. 2005).

7. 28 U.S.C. § 151.

8. Id. § 158.

9. For bankruptcy terms, see Glossary, infra page 163.
Overview

3

Part 1 concludes with a short explanation of the scope of consumer-related litigation that occurs in the bankruptcy courts.

• Part 2 discusses the commencement of a bankruptcy case by the 

filing of a petition; the Code’s filing requirements and debtor duties; the automatic stay that comes into effect; exceptions from 

the stay; grounds for moving for stay relief; and issues related to 

damages for stay violations.

• Part 3 describes how the bankruptcy estate is created and looks at 

the function of exemptions that may be claimed by debtors under either the Bankruptcy Code or applicable state law. It analyzes recent Supreme Court and other judicial authority about exemptions and their objections.

• Part 4 explains the claims allowance process, including objections 

to claims and the different levels of priority for distribution to 

creditors. It describes the Federal Rules of Bankruptcy Procedure 

for proofs of claims, along with case analysis of the claims process. Standing to file a proof of claim is an issue that receives substantial attention from the courts, and many issues have arisen in 

the area of claims filed by home mortgage creditors and other secured creditors.

• Part 5 examines Chapter 7 relief, including the means test, which

is an eligibility threshold to relief under Bankruptcy Code § 707.

It covers reaffirmation issues, discharge, and the primary exceptions from discharge, with references to illustrative case authority. The grounds for dismissal of cases and potential conversion of 

a Chapter 7 case to Chapter 13 are also explained.

• Part 6 addresses Chapter 13 relief, beginning with eligibility. It 

covers the plan proposal and confirmation process, as well as 

grounds for objection to confirmation and plan modification. 

Part 6 explains dismissal and conversion of Chapter 13 cases, as 

well as the discharge issues that arise in Chapter 13 relief.

5

~ part 1 ~

introduction:

bankruptcy courts and the code

1.1 Structure of bankruptcy courts

Bankruptcy relief is under Title 11 of the U.S. Code, through petitions 

filed in the bankruptcy courts, which are units of the districts courts under 28 U.S.C. § 151. The constitutional basis for bankruptcy relief is Article I, Section 8 of the U.S. Constitution, which authorizes congressional 

creation of “uniform laws on the subject of Bankruptcies throughout the 

United States.” “Uniformity” does not necessarily mean that each aspect 

of the application of bankruptcy relief is the same for every debtor, wherever located. For example, although the Bankruptcy Code governs bankruptcy relief, state law exemptions may apply to debtors in bankruptcy, 

and state law may be applicable in many determinations that are made in 

bankruptcy cases, such as when the Uniform Commercial Code controls 

validity of a security interest, which may influence determination of the 

allowance of a secured claim. The Uniformity Clause does limit bankruptcy relief to legislation on the federal level. There have been numerous 

bankruptcy acts,

10 beginning with the Bankruptcy Act of 1800.11 The current Bankruptcy Code is based on the 1978 enactment, as it has been

amended several times.12 The most recent substantial amendment, especially impacting consumer issues, was in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).

13 BAPCPA frames 

much of the focus of the discussion to follow, since it created legal issues 

10. See, e.g., Charles J. Tabb, The History of the Bankruptcy Laws in the United States, 

3 Am. Bankr. Inst. L. Rev. 5 (Spring 1995); Hon. Nancy C. Dreher & Hon. Joan N. Feeney, Bankruptcy Law Manual § 1:2 (5th ed. 2014).

11. 2 Stat. 19 (1800).

12. Substantial amendments to the 1978 Code include the Bankruptcy Amendments 

Act of 1984 and the Bankruptcy Reform Act of 1994. 

13. Pub. L. 109-8, 119 Stat. 23 (Apr. 20, 2005).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

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for the bankruptcy and appellate courts. This monograph highlights the 

principal appellate decisions addressing consumer issues raised by 

BAPCPA—as well as by pre-BAPCPA portions of the Bankruptcy Code 

that remain relevant—and suggests examples of judicial decisions that 

may form the basis for further research.

Each federal judicial district has a bankruptcy court, composed of 

one or more bankruptcy judges, and each state has one or more judicial 

districts. There are ninety bankruptcy districts across the country. Each 

bankruptcy court generally has its own clerk’s office, although the services provided by a clerk’s office may be shared with the clerk’s office of 

the district court. Each bankruptcy judge is an Article I judge, a judicial 

officer of the district court, is appointed by the applicable court of appeals under the procedure outlined in 28 U.S.C. § 152, serving for a fourteen-year term, and is subject to reappointment.

In 1982, the Supreme Court, in Northern Pipeline Construction Co. v. 

Marathon Pipeline,

14 held that the broad, independent authority given to 

bankruptcy judges under the 1978 Code was an unconstitutional grant to 

non-Article III courts. In response, Congress enacted the Bankruptcy 

Amendments and Federal Judgeship Act of 1984 (BAFJA),15 under which 

a bankruptcy court became “a unit of the district court to be known as 

the bankruptcy court for that district.”16 “[O]riginal and exclusive jurisdiction of all cases under [the Bankruptcy Code]” is vested in the Article 

III district court.17 The district court also has “exclusive jurisdiction” over 

property of a bankruptcy debtor and of the bankruptcy estate created on 

the filing of a bankruptcy petition,18 as well as “original but not exclusive 

14. 458 U.S. 50 (1982). For a discussion of Northern Pipeline and the jurisdictional 

history of the bankruptcy courts, see, e.g., Norton Bankruptcy Law and Practice, ch. 4 (3d 

ed. 2013); Hon. David S. Kennedy & Spencer Clift, An Historical Analysis of Insolvency 

Laws and Their Impact on the Role, Power and Jurisdiction of Today’s United States Bankruptcy Court and Its Judicial Officers, 9 J. Bankr. L. & Prac. 165 (Feb. 2000).

15. Pub. L. No. 98-353, 98 Stat. 333 (1984).

16. 28 U.S.C. § 151.

17. Id. § 1334(a).

18. Id. § 1334(e). See infra Part 3 for a discussion of bankruptcy estates.
Part 1: Introduction: Bankruptcy Courts and the Code

7

jurisdiction over all civil proceedings arising under title 11, or arising in 

or related to cases under title 11.”19

As a practical matter, the district court is rarely the first court to hear 

matters in a bankruptcy case. BAFJA created a referral process, under 

which the district court may provide that “any or all cases under title 11 

and any or all proceedings arising under title 11 or arising in or related to 

a case under title 11 shall be referred to the bankruptcy judges for the 

district.”20 In each district, there is a standing order of reference entered 

by the district court: bankruptcy cases and proceedings are filed initially 

with the bankruptcy court clerk, so the bankruptcy court acts as the court

of first impression for disputed motions or proceedings in or related to 

bankruptcy cases. In a typical consumer case, absent some contested matter or proceeding, the debtor may never come before the bankruptcy 

judge, and the case may be administered by the designated trustee.

Section 157(b) of Title 28 describes what a bankruptcy judge may 

hear and determine. It describes the bankruptcy court’s authority to hear 

and determine cases under Title 11, and core proceedings arising under 

Title 11 or arising in a case under Title 11. “Core proceedings” are defined by a non-exclusive list in § 157(b)(2). Section 157(b) describes several core proceedings, separating them from “noncore” proceedings, over 

which the bankruptcy judge may conduct hearings and enter proposed 

findings and conclusions. The term “proceeding” is broad, including motions and complaints that may be filed in a bankruptcy case.

As evidenced by the Supreme Court’s decision in Stern v. Marshall,

21

however, the statutory description of a bankruptcy court’s authority is 

not necessarily constitutional. Stern arose out of a Chapter 11 case in 

which the bankruptcy court had entered a final order in a counterclaim 

for tortious interference filed by the debtor-in-possession against an individual filing a claim in the case; 28 U.S.C. § 157(b)(2)(C) specifically 

includes such a counterclaim as a “core proceeding” over which the 

bankruptcy court may enter a final order. The problem was that the 

counterclaim was based not on any Bankruptcy Code provision, but on 

19. Id. § 1334(b).

20. Id. § 157(a).

21. 131 S. Ct. 2594 (2011).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

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state common law, and the Court ruled that the statutory grant of authority violated Article III, Section 1, of the Constitution, when the counterclaim “is not resolved in the process of ruling on the creditor’s proof of 

claim.”22

Because of Stern, bankruptcy and appellate courts have had to analyze anew whether the bankruptcy court has constitutional authority to 

enter final orders in some contested matters or proceedings. If the authority is lacking, the bankruptcy judge may still hear a core proceeding, 

just as it can in a noncore proceeding, and enter a proposed finding of 

facts and conclusions of law that would be submitted to the district court 

for consideration in its de novo review and entry of a final decision.23

The Supreme Court stressed the importance of de novo review in Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance 

Agency Inc.),

24 decided after Stern. In Bellingham, the defendant challenged the bankruptcy court’s authority to enter final judgment in a 

noncore fraudulent conveyance proceeding, and an issue was raised as to 

whether the defendant had consented to the bankruptcy court’s authority. The Ninth Circuit held that the constitutional right to final judgment 

before an Article III judge was waivable by litigants.25 Without deciding 

the consent question, the Supreme Court found that the district court 

had conducted a de novo review, and that even if the bankruptcy court’s 

entry of a judgment was invalid, the district court’s review cured any error.

22. Id. at 2690.

23. 28 U.S.C. § 157(c). See, e.g., Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 477 

B.R. 714 (E.D. Wis. 2012) (although Title 28 does not specify that bankruptcy court may 

propose findings and conclusions, in light of Stern, its authority to do so is clear). Safanda 

v. Castellano (In re Castellano), 514 B.R. 555 (Bankr. N.D. Ill. 2014) (treating fraudulent 

conveyance action as noncore, entering proposed findings and conclusions for district 

court).

24. 134 S. Ct. 2165 (2014). For a review of over 200 decisions subsequent to Stern and 

prior to Executive Benefits, see Hon. John E. Hoffman, Jr., Brian L. Gifford & Andria M. 

Beckham, Decisions Interpreting Stern v. Marshall (Federal Judicial Center Workshop for 

Bankruptcy Judges, Aug. 1–3, 2012), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup

/BJ120058.pdf/$file/BJ120058.pdf.

25. Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency Inc.), 702 

F.3d 553 (9th Cir. 2012).
Part 1: Introduction: Bankruptcy Courts and the Code

9

The Supreme Court has granted certiorari on a Seventh Circuit decision26 to determine first, whether a subsidiary state law property issue in a 

§ 541 action deprives the bankruptcy court of constitutional authority to 

enter final judgment, and second, whether Article III permits a bankruptcy court to have authority as a result of a litigant’s consent—and, if so, 

whether implied consent is sufficient.

When a bankruptcy court’s constitutional authority is questioned,

the parties may, as a savings provision, consent to the entry of a final order by the bankruptcy court, in both core and noncore proceedings.27 But 

post-Stern decisions have put that in doubt, with the courts of appeals 

split and certiorari now granted on the issue of Article III waiver. For example, the Sixth Circuit held, in Waldman v. Stone,

28 that a bankruptcy 

litigant cannot waive a constitutional right to an Article III judge’s entry 

of final judgment, even though the litigant had consented to the bankruptcy judge’s entry of final judgment in a state-law claim against him. 

The Seventh Circuit agreed, in Wellness International Network, Ltd. v. 

Sharif,

29 holding that while the bankruptcy court had constitutional authority to enter final judgment on a creditor’s objection to discharge, it

lacked constitutional authority to enter final judgment on the creditor’s 

state-law alter-ego liability claim; and that the Chapter 7 debtor did not 

waive the constitutional issue by consenting to jurisdiction or by failing 

to object earlier. The Supreme Court, by its grant of certiorari in Wellness, is expected to decide the extent to which a party may consent to the 

bankruptcy court’s jurisdiction.30

Fortunately, the issue of the bankruptcy court’s authority doesn’t 

arise typically in the everyday administration of consumer cases. In most 

consumer cases and proceedings, the bankruptcy court’s authority to en26. 134 S. Ct. 2901 (2014), granting cert. from Wellness Int’l Network, Ltd. v. Sharif, 

727 F.3d 751 (7th Cir. 2013) (discussed infra text accompanying note 29).

27. 28 U.S.C. § 157(c)(2).

28. 698 F.3d 910 (6th Cir. 2012).

29. 727 F.3d 751 (7th Cir. 2013).

30. See supra note 26 and accompanying text.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

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ter final orders is clear and undisputed.31 Stern did not address the bankruptcy court’s subject-matter jurisdiction, but rather its authority over 

certain proceedings.32 The decision does not restrict the bankruptcy 

court’s authority to enter final orders, subject to appeal, in the basic issues involved in the typical consumer case—matters such as determining 

an individual’s eligibility to file bankruptcy, determining whether the automatic stay applies or has been violated, confirming Chapter 13 plans, 

determining the discharge of particular debts or objections to the general 

discharge,33 allowing claims,34 determining what is property of the bankruptcy estate, allowing exemptions, and other clearly “core” matters involved in a consumer case.35 The authority of the bankruptcy court to 

enter final—rather than proposed—orders becomes more questionable 

as the issues involved become more controlled purely by nonbankruptcy

state law,36 or when the determination will have no direct impact on the 

bankruptcy estate. Although the Supreme Court may decide more Stern

issues in the Wellness appeal, the outcome of the full range of potential 

issues related to the bankruptcy courts’ constitutional authority is presently unknown.

The mere fact that state law will be applied does not necessarily mean 

that an issue before the bankruptcy court is lacking in subject-matter jurisdictional foundation. As the Supreme Court recognized, what consti31. See, e.g., In re Salander O’Reilly Galleries, 453 B.R. 106 (Bankr. S.D.N.Y. 2011) 

(matters such as automatic stay, bankruptcy estate, and discharge are clearly within Article I power).

32. See, e.g., CirTran Corp. v. Advanced Beauty Solutions, LLC (In re Advanced 

Beauty Solutions, LLC), No. 11-1183-PattPe, 2012 WL 603692 (B.A.P. 9th Cir. Feb. 8, 

2012).

33. See Wellness Int’l Network Ltd. v. Sharif, 727 F.3d 751 (7th Cir. 2013), cert. 

granted, 134 S. Ct. 2901 (2014) (distinguishing between bankruptcy court’s constitutional 

authority to enter final judgment on objection to discharge and lack of authority to enter 

final judgment on state law alter-ego claim by same creditor).

34. See, e.g., In re Pulaski, 475 B.R. 681 (Bankr. W.D. Wis. 2012).

35. 28 U.S.C. § 157(b)(2). See, e.g., Sheehan v. Dobin, No. 10-6288 (FLW), 2012 WL 

426285 (D.N.J. Feb. 9, 2012) (adversary proceeding to determine debtor’s interest in 

property was core).

36. See, e.g., Shaia v. Taylor (In re Connelly), 476 B.R. 223 (Bankr. E.D. Va. 2012)

(Stern affects bankruptcy court’s constitutional authority over purely state law matters).
Part 1: Introduction: Bankruptcy Courts and the Code

11

tutes property of the bankruptcy estate may be, and often is, determined 

by state law.37 Congress has given the states an option to require debtors 

in a particular state to use state law, rather than Bankruptcy Code, exemptions.38 Stern and Bellingham emphasize, however, that when the 

bankruptcy court’s authority is questioned, each of the courts involved 

may be required to analyze whether the bankruptcy or district court 

should enter the final order.

Not limited to the concerns about the bankruptcy court’s constitutional authority, the district court may, at any time and on its own or a 

party’s motion, withdraw the reference of a bankruptcy case or proceeding from the bankruptcy court39—but withdrawal is rare, especially in 

consumer cases.

Assuming that the bankruptcy court enters a final order, the first level of appeal is to either the district court or the bankruptcy appellate panel (BAP), if a BAP has been created by the circuit court and if the particular district court has authorized appeals to the BAP.40 Those appellate 

courts may also, when appropriate, entertain interlocutory appeals.41 The 

next level of appeal from the district court or BAP is to the circuit court,42

and BAPCPA created an option for the bankruptcy, district, or BAP 

courts to certify a particular matter of public importance (involving conflicting decisions or need for immediate appeal) directly to the applicable 

circuit court, which may, in its discretion, take such an appeal.43 Federal 

37. Butner v. United States, 440 U.S. 48 (1979).

38. See discussion infra § 3.6.

39. 28 U.S.C. § 157(d). See also, e.g., Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 

477 B.R. 714 (E.D. Wis. 2012) (reference of core proceeding withdrawn). The Seventh 

Circuit had previously decided, in Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 665 F.3d 

906 (7th Cir. 2011), that the bankruptcy court lacked constitutional authority to enter 

final judgment on debtors’ claims that were grounded in Wisconsin law.

40. 28 U.S.C. § 158(a), (b).

41. Id. § 158(a)(3), (b)(4).

42. Id. § 158(d)(1).

43. Id. § 158(d)(2).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

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appellate courts have accepted several direct appeals on some unique issues presented by BAPCPA’s amendments to the Code.44

1.2 Procedures and rules in bankruptcy courts

As units of the district courts, the bankruptcy courts apply the Federal 

Rules of Evidence45 and most of the Federal Rules of Civil Procedure, as 

those Rules are incorporated into Part VII of the Federal Rules of Bankruptcy Procedure. Part VII of the Bankruptcy Rules governs adversary 

proceedings, or complaints, filed in the bankruptcy court. Bankruptcy 

Rule 9014(c) applies many of the Part VII Rules to contested matters, or 

motions, and the bankruptcy judge may order other parts of the Part VII 

Rules applicable to motion practice. The bulk of the Federal Rules of 

Bankruptcy Procedure address procedural issues that are unique to bankruptcy cases and their administration.46 The bankruptcy courts are trial 

courts that are not typically involved in the day-to-day administration of 

a case, but rather conduct hearings on the contested matters and adversary proceedings that are presented by the parties. Normal administrative 

functions are handled by the clerk’s office or by the trustee appointed in a 

particular case.47

In addition to the Federal Rules of Bankruptcy Procedure, each bankruptcy court in a district has local rules addressing procedural issues that 

are either unique to its district’s practice or that supplement the Federal 

Rules.48 Consumer practice varies on some issues district-by-district, even 

44. See, e.g., Johnson v. Zimmer, 686 F.3d 224 (4th Cir. 2012) (direct appeal accepted and decided on Chapter 13 disposable income issue, involving how to determine 

household size). See discussion infra Part 6.

45. For analysis of the Federal Rules of Evidence as applied in bankruptcy cases, see 

Hon. Barry Russell, Bankruptcy Evidence Manual (2013–2014).

46. For analysis of the Federal Rules of Bankruptcy Procedure, see Lawrence R. 

Ahern III & Nancy MacLean, Bankruptcy Procedure Manual (annual editions).

47. The roles of trustees in Chapter 7 and 13 cases are discussed infra Parts 5 and 6.

48. See Fed. R. Bankr. P. 9029(a). The local rules of each court are available on the 

website of the U.S. Courts, at http://www.uscourts.gov/FormsAndFees/Forms/Bankruptcy

Forms.aspx.
Part 1: Introduction: Bankruptcy Courts and the Code

13

though it operates under the same Code and Federal Rules.49 For example, in Chapter 13 practice, there is currently no uniform or official plan 

form to be submitted by debtors, resulting in a variety of plan forms 

around the country,50 as well as disagreement among courts on what a 

proposed plan may or must contain.51

For appeals from bankruptcy court orders, Part VIII of the Federal 

Rules of Bankruptcy Procedure applies; bankruptcy appellate panels, district courts, or circuit courts may also have their own rules for bankruptcy appeals.

To help judges with the detailed financial and other disclosures in 

bankruptcy practice, the Administrative Office of the United States 

Courts, in conjunction with the rules committees of the Judicial Conference of the United States, publishes the official and suggested procedural 

forms.52 Each bankruptcy district may also have local forms that are either required by local rule or recommended for more efficient practice.53

The bankruptcy courts accept filings of cases and pleadings within a 

case by electronic means, and most of the pleading practice before these 

courts is electronically driven.

49. See, e.g., Scott F. Norberg & Nadja S. Compo, Report on an Empirical Study of 

District Variations, and the Roles of Judges, Trustees and Debtors’ Attorneys in Chapter 13 

Bankruptcy Cases, 81 Am. Bankr. L.J. 431 (Fall 2007).

50. The Advisory Committee on Bankruptcy Rules has proposed an official form for 

Chapter 13 plans. Proposed Official Form 113 has been published for comment at 

http://www.uscourts.gov/rulesandpolicies/rules/proposed-amendments.aspx. Assuming final

adoption, the new official form and related rule amendments would be effective December 1, 2016.

51. See, e.g., In re Gordon, 471 B.R. 614 (D. Colo. 2012) (bankruptcy courts in district had disagreed on whether plan requirement was enforceable).

52. See the Official and Procedural Forms, available at http://www.uscourts.gov/

FormsAndFees/Forms/BankruptcyForms.aspx.

53. See, e.g., In re Smith, 511 B.R. 612 (Bankr. W.D. Mo. 2014) (discussing its local 

rule and plan form concerning effect of case conversion); In re Armistead, No. 11-36535, 

2012 WL 3202964 (Bankr. S.D. Tex. Aug. 3, 2012) (discussing its local rule and form requirement for home mortgage creditors).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

14

1.3 Structure of Bankruptcy Code

The Bankruptcy Code is divided by chapters, using odd numbers. Some 

chapters refer to a particular form of relief, and others contain portions 

of the Code that apply generally to any form of relief.

• Chapter 1 (discussed infra Parts 1 and 2) contains general provisions and definitions of many terms that appear throughout the 

Code. Section 103 states that Chapters 1, 3, and 5 apply to the relief sought under Chapter 7, 12, or 13.

• Chapter 3 (discussed infra Part 2) deals with commencement of 

the case, its administrative aspects, and the various officers, including trustees. It is applicable in Chapter 7 and 13 cases.

• Chapter 5 (discussed infra Parts 3 and 4) contains provisions for 

creditors and their claims, duties and benefits for the debtor, and 

the bankruptcy estate, including its exclusions and exemptions. It 

is applicable in Chapter 7 and 13 cases.

• Chapter 7 provides for liquidating cases, including for consumer 

debtors and certain nonconsumer debtors. Subchapters I and II 

of Chapter 7 are discussed infra Part 5.

• Chapter 9 (outside the scope of this monograph) deals with debt 

adjustment for a municipality.

• Chapter 11 (outside the scope of this monograph) addresses reorganization and liquidation relief, which typically is used by corporations or other entities, but may be available to individual debtors.

• Chapter 12 (outside the scope of this monograph) provides for

reorganization by family farmers or family fishermen.

• Chapter 13 (discussed infra Part 6) describes readjustment of 

debts by individuals with regular income.

• Chapter 15 (outside the scope of this monograph) covers ancillary and cross-border cases.

54

The Glossary, infra, contains definitions of bankruptcy terms.

54. See, e.g., Hon. Louise De Carl Adler, Managing the Chapter 15 Cross-Border 

Insolvency Case: A Pocket Guide for Judges (Federal Judicial Center 2d ed. 2014).
Part 1: Introduction: Bankruptcy Courts and the Code

15

1.4 United States trustee and bankruptcy administrator

Under 28 U.S.C. § 581, the U.S. Attorney General appoints a U.S. trustee 

for regions composed of judicial districts. The U.S. trustee has a variety of 

duties in consumer cases, including the establishment and supervision of 

a panel of private trustees to serve in all Chapter 7 cases,55 the appointment of standing Chapter 13 trustees,56 and the supervision “of the administration of cases and trustees in cases under” all chapters of the 

Code.57 Under congressional action, the judicial districts in North Carolina and Alabama were excluded from the U.S. trustee program; these

districts have bankruptcy administrators, who serve the equivalent function. While the trustee appointment and supervisory role of these administrative officers may be their most prevalent role in consumer cases, they 

enjoy broad statutory authority to “raise and . . . appear and be heard on 

any issue in any case or proceeding under this title [11].”58

1.5 Litigation in bankruptcy courts

Bankruptcy courts are courts of first impression with jurisdiction over

matters arising in or related to a bankruptcy case. Bankruptcy courts 

conduct hearings or trials on contested motions, contested plan confirmations, objections to claims, objections to exemptions, complaints 

about discharge of debts, and other matters that arise in or are related to 

the bankruptcy case. Bankruptcy Rule 7001 describes different types of 

adversary proceedings, which generally require the filing and proper service of a complaint.59 Motion practice—or contested matters that do not 

fall within the requirements for an adversary proceeding—is governed by 

Bankruptcy Rules 9013 and 9014. Like the district courts, bankruptcy 

55. 28 U.S.C. § 586(a)(1).

56. Id. § 586(b).

57. Id. § 586(a)(3).

58. 11 U.S.C. § 307.

59. See Fed. R. Bankr. P. 7001. Service of process is addressed in Fed. R. Bankr. P. 

7004, which incorporates and expands on Fed. R. Civ. P. 4. See generally Lawrence R. 

Ahern III & Nancy MacLean, Bankruptcy Procedure Manual (annual editions).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

16

courts use alternative dispute resolution. Many bankruptcy courts encourage mediation and have a pool of approved mediators.60

The scope of consumer bankruptcy litigation is wide-reaching, including subject-matter both within and outside of the Bankruptcy Code. 

Violations of the automatic stay, bankruptcy estate issues, claims allowance, exemptions, discharge, plan confirmation objections, and other 

topics related to the Bankruptcy Code itself are discussed infra Parts 2 

through 6. Outside of the Code, some of the commonly litigated consumer cases involve home mortgages and debt-collection activity (e.g., 

Truth in Lending Act, Real Estate Settlement Procedures Act, Fair Debt 

Collection Practices Act (FDCPA),

61 and other consumer protection acts, 

both federal and state). Even when based, in part, on nonbankruptcy law, 

bankruptcy litigation often revolves around the allowance or disallowance of a claim filed by a creditor, or the recovery of assets for the benefit 

of the bankruptcy estate. The bankruptcy court also rules on a variety of 

avoidance litigation, often brought by the trustee,62 but on occasion by a 

debtor seeking to avoid some transfer or lien in order to claim the asset as 

exempt.63

60. See, e.g., General Order Adoption of Procedures Governing Mediation (Bankr. 

S.D.N.Y.), available at http://www.nysb.uscourts.gov.

61. See, e.g., Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014) (filing 

proof of claim for time-barred debt violated FDCPA); Patrick v. PYOD, LLC, No. 1:14-

cv539-RLY-TAB, 2014 WL 4100414 (S.D. Ind. Oct. 20, 2014) (citing Crawford, filing 

time-barred proofs of claim was cause of action under FDCPA).

62. See 11 U.S.C. §§ 544–551, for avoidance powers.

63. See id. § 522(g) & (h). See also, e.g., Dickson v. Countrywide Home Loans (In re

Dickson), 655 F.3d 585 (6th Cir. 2011) (recognizing debtor’s standing under § 522(g)(1) 

& (h)).
17

~ part 2 ~

commencement of case

and automatic stay

A consumer bankruptcy case, under either Chapter 7 or 13, is commenced with the filing of a basic petition, Official Form 1, with additional schedules, statement of financial affairs and forms required to complete the case filing process. The petition and its related schedules and 

statements are executed under penalty of perjury. Several Code sections 

come into play in this initial filing stage.

• Title 28 provides for proper venue.

• Title 11, § 109 describes who may be a debtor under each Chapter, with requirements for Chapters 7 and 13 (reviewed infra

Parts 5 and 6).

• Section 301 provides for voluntary cases, which constitute the majority of Chapter 7 filings, while Chapter 13 is exclusively voluntary.

• Section 302 describes joint petitions, frequently filed by spouses 

under Chapters 7 and 13.

• Section 342 details notices required to be given to creditors of a 

case filing.

• Section 362 describes the automatic stay, which is triggered upon 

the commencement of the case.

• Section 521 spells out debtor’s duties to satisfy eligibility and filing requirements.

2.1 Venue

Venue for bankruptcy cases is addressed in 28 U.S.C. § 1408, which provides that a case should be commenced in the district in which the individual has her domicile, residence, principal place of business, or principal assets for the 180 days, or greater portion thereof, immediately prior 
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

18

to filing. Official Form 1 asks debtors to indicate that the venue is proper.

For individuals in Chapter 7 or 13, this venue is typically driven by domicile or residence, but venue is waivable, and unless a timely objection is 

made to improper venue, the case may proceed in the filing district.64 The 

bankruptcy court may transfer a case from one venue to another “in the 

interest of justice or for the convenience of the parties.”65

It is unsettled whether the court may retain a case filed in the wrong 

venue, over the objection of a party in interest. Individuals sometimes file 

in the wrong venue, not necessarily out of bad faith, but because they live 

in one district yet are physically closer to another district; or perhaps because the attorney filing the case practices in another district. For example, a Northern Mississippi resident who lives close to the state line and 

works in Memphis, Tennessee, might more easily file in the Western District of Tennessee, with a Tennessee attorney. Absent any objection by 

creditors or other party in interest, the court may be unaware of the improper venue. The Sixth Circuit addressed this scenario, holding that 

venue must be strictly construed, and in the face of a timely objection 

(there by the U.S. trustee), the bankruptcy court had no discretion to retain an improperly venued case.

66 Under this strict view, the case must 

either be dismissed or transferred to the court with proper venue. Lacking such appellate authority, some bankruptcy courts have interpreted 

the combination of the venue statute and Bankruptcy Rule 1014 to permit retention of an improperly venued case, despite a timely objection.

67

2.2 Individual and joint petitions

Individuals who are consumer debtors may file for relief under either 

Chapter 7 or 13, as long as they satisfy eligibility requirements (discussed 

infra Parts 5 and 6). Generally, a person residing or domiciled in the 

United States is potentially a debtor.68

64. See 28 U.S.C. § 1412; Fed. R. Bankr. P. 1014. 

65. 28 U.S.C. § 1412. See also Fed. R. Bankr. P. 1014(a).

66. Thompson v. Greenwood, 507 F.3d 416 (6th Cir. 2007).

67. See, e.g., In re Lazaro, 128 B.R. 168 (Bankr. W.D. Tex. 1991).

68. 11 U.S.C. § 109(a). Section 109(b) specifically defines who is and is not eligible 

as a Chapter 7 debtor, but those requirements are directed primarily toward non-
Part 2: Commencement of Case and Automatic Stay

19

Code § 302 provides that a joint petition may be filed by an individual and that “individual’s spouse,” and many Chapters 7 and 13 cases are 

joint filings by spouses. Issues addressed by some courts include whether 

this Code limitation on filings by spouses requires that the debtors be 

legally married under applicable state law, and whether bankruptcy cases 

may be filed by same-sex couples who may or may not be recognized as 

legally married by their state of residence or domicile.

69 A flexible interpretation of § 302 ran headlong into the 1996 enactment of the Defense 

of Marriage Act (DOMA), which defines “marriage” as a legal union between one man and one woman, and “spouse” as a person of the opposite 

sex who is a husband or wife.70 The bankruptcy court in the Central District of California concluded that “no legally married couple should be 

entitled to fewer bankruptcy rights than any other legally married couple,” rejecting the U.S. trustee’s motion to dismiss a case filed by a samesex couple, and holding that DOMA’s definition violated equal protection rights of legally married persons under the Fifth Amendment’s Due 

Process Clause.71

In United States v. Windsor,

72 a taxpayer and surviving spouse of a 

same-sex couple had been denied spousal deduction on her tax return 

under DOMA’s definition of “marriage” and “spouse.” The Supreme 

Court held that DOMA’s definition of “marriage” was unconstitutional, 

depriving the taxpayer of Fifth Amendment protection. On the same day, 

individuals. The threshold test for Chapter 7 eligibility is in § 707(b), the “means test,” 

discussed infra Part 5. Section 109(e) defines who is eligible as a Chapter 13 debtor, a 

topic explored infra Part 6.

69. See, e.g., In re Matson, 509 B.R. 860 (Bankr. E.D. Wis. 2014) (applying United 

States v. Windsor, 133 S. Ct. 2675 (2013), same-sex debtors legally married in Iowa were 

eligible to jointly file as spouses in Wisconsin, even though Wisconsin law didn’t recognize marriage). 70. 1 U.S.C. § 7.

71. In re Balas, 449 B.R. 567, 569 (Bankr. C.D. Cal. 2011) (en banc). See also In re Somers, 448 B.R. 677 (Bankr. S.D.N.Y. 2011) (holding decisions unrelated to bankruptcy and 

joint filings on constitutionality of DOMA may impact effect of that statute). See also Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) (DOMA’s provisions denying federal benefits to same-sex, legally married couples in Massachusetts 

violated equal protection rights).

72. 133 S. Ct. 2675 (2013).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

20

in Hollingsworth v. Perry,

73 the Court declined to rule on the constitutionality of state law restrictions on same-sex couples because of lack of 

standing of the petitioners. Although the Hollingsworth ruling allowed a 

lower court decision to stand and same-sex marriages to resume in some 

states, questions remain about the availability to same-sex couples of 

some state law rights. For example, although federal law may now permit 

same-sex married couples to file jointly for bankruptcy relief, under the 

Windsor holding, their rights to use applicable state law exemptions may 

still be undecided, particularly if those exemptions are restricted by the 

state’s definition of “marriage.”74

2.3 Filing requirements

Section 521 of the Bankruptcy Code describes the debtor’s requirements, 

or duties, for assuring a bankruptcy petition filing that will survive a motion to dismiss. In addition to a basic petition, Official Form 1, the debtor 

must file a list of creditors, with appropriate addresses, to enable the 

clerk’s office noticing creditors of the filing.75 In the typical case, “unless 

the court orders otherwise,” a consumer debtor must file the following

schedules and statements, if not with the petition, within forty-five days 

of initial filing:76

1. Schedules of assets and liabilities.

77

2. Schedules of current income and liabilities.78

73. 133 S. Ct. 2652 (2013).

74. See, e.g., DeAngelis v. Holmes (In re Holmes), No. 1:12-bk-01801-RNO, 2013 

WL 4446947, at *8 (Bankr. M.D. Penn. Aug. 21, 2013) (Hollingsworth “leaves any decision 

to change the state law definition of marriage in the hands of the state legislature”).

75. 11 U.S.C. § 521(a)(1)(A). For notice provisions, see 11 U.S.C. § 342 and Fed. R. 

Bankr. P. 2002. For notice provided to creditors of case filing and certain deadlines, such 

as for proofs of claim, see Official Forms 9A, 9C, and 9I.

76. See Fed. R. Bankr. P. 1007-1(c) for time limits for filing required schedules and 

statements.

77. 11 U.S.C. § 521(a)(1)(B)(i). Official Forms 6–6H contain schedules of real and 

personal property, property claimed as exempt, secured and unsecured creditors, executory contracts, unexpired leases, and codebtors.
Part 2: Commencement of Case and Automatic Stay

21

3. Statement of financial affairs.79

4. Evidence from the debtor’s attorney or petition preparer that the 

consumer debtor was provided with explanation of choices between the various chapters for bankruptcy relief.80 If no attorney 

or petition preparer was involved, the debtor makes a certification of receipt from the clerk of available remedies under each 

chapter.81

5. Copies of “payment advices” or other evidence of payroll information received by the debtor from an employer within sixty

days before petition filing.82

6. Statement of monthly net income.83 This is necessary for the 

“means test” calculation for eligibility and other purposes, which

are discussed later in regard to Chapters 7 and 13 relief.

7. Statement of “any reasonably anticipated increase in income or 

expenditures over the twelve-month period following the date of 

the filing.”84

8. As an eligibility requirement prior to filing either Chapter 7 or 

13, individuals are required to engage in prebankruptcy budget 

and credit counseling, and to file with the court a certificate of 

completion of that requirement.85 If a debt repayment plan was 

developed in conjunction with that counseling, a copy of the plan 

78. Id. § 521(a)(1)(B)(ii). Official Forms 6I and J are important for determining 

eligibility and plan confirmation (discussed infra for Chapter 7 and 13 cases).

79. Id. § 521(a)(1)(B)(iii). See Official Form 7.

80. 11 U.S.C. §§ 342(b) & 521(a)(1)(B)(iii). See Official Form 1, Exhibit B.

81. See Procedural Form 201A.

82. 11 U.S.C. § 521(a)(1)(B)(iv).

83. Id. § 521(a)(1)(B)(v). See Official Forms 22A for Chapter 7 and 22C for Chapter 

13.

84. 11 U.S.C. § 521(a)(1)(B)(vi). See Official Forms I & J, 22A & 22C.

85. 11 U.S.C. § 521(b)(1). See Official Form 1, Exhibit D.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

22

must be filed.86 Failure to obtain the counseling before filing the 

petition typically results in dismissal for lack of eligibility.87

These schedules and statements are executed under penalty of perjury. 

Failure to complete the required filings within forty-five days results in an 

automatic case dismissal, unless the court finds cause to extend that 

time.88

2.4 Debtor’s duties subsequent to filing petition

In addition to the basic filing requirements, the debtor has postfiling duties (discussed in this section), including:

• state how collateral for secured debt will be treated, and comply 

with that stated intention;

• attend a meeting of creditors that is conducted by the trustee, 

and otherwise cooperate with the trustee; and

• comply with tax return requirements.

If the case is filed under Chapter 7, the debtor must file within thirty

days of the petition date, or on or before the § 341 meeting of creditors, 

whichever is earlier, a statement of intentions as to retaining, redeeming,

or surrendering property that is collateral for a secured loan.89 Failure to 

file this statement of intention typically will result in termination of the 

automatic stay under § 362(h).90 Section 521(a)(2)(B) provides that the 

debtor must perform whatever the stated intention was, as to secured

property, within thirty days after the first date set for the § 341 meeting of 

creditors. Pursuant to § 521(a)(6), the Chapter 7 debtor may not retain 

86. 11 U.S.C. § 521(b)(2).

87. See, e.g., In re Ingram, 460 B.R. 904 (B.A.P. 6th Cir. 2011); Gibson v. Dockery (In 

re Gibson), No. CC-10-1399-PaHKi, 2011 WL 7145612 (B.A.P. 9th Cir. Dec. 1, 2011) 

(affirming sua sponte dismissal).

88. 11 U.S.C. § 521(i). See, e.g., Soto v. Doral Bank (In re Soto), 491 B.R. 307 (B.A.P. 

1st Cir. 2013) (case automatically dismissed on failure to provide payment advices within 

forty-five days).

89. 11 U.S.C. § 521(a)(2)(A). See Official Form 8, which also contains in Part B a 

statement of personal property subject to an unexpired lease, and the debtor’s intention 

about assumption of a lease.

90. See, e.g., In re Blixseth, 454 B.R. 92 (B.A.P. 9th Cir. 2011).
Part 2: Commencement of Case and Automatic Stay

23

personal property collateral unless, within forty-five days after the meeting of creditors, the debtor either redeems the property under § 721 or 

enters into a reaffirmation agreement with the creditor under § 524(c). 

The choices of redemption or reaffirmation are discussed infra, Part 5,

under Chapter 7 relief.

A debtor has a duty to cooperate with the case trustee in the performance of the trustee’s statutory obligations.91 A debtor is required to attend the meeting of creditors, as provided under Code § 341, and if the 

court holds a discharge determination under § 524(d), the debtor is required to attend.92 Discharge hearings are not held normally, unless there 

is a reaffirmation issue involved or the debtor is acting pro se.

A debtor who has an interest in an educational retirement account or 

under a qualified state tuition program, as defined in IRS Code 

§ 523(b)(1) or 530(b)(1), must file with the court a record of that account.93

Chapter 7 and 13 debtors must provide to the case trustee, no later 

than seven days before the first date set for the meeting of creditors, a 

copy, or transcript, of the federal income tax return for the most recent 

tax year preceding the petition filing, and if requested, a copy is to be furnished to a creditor.

94 Failure to provide these tax returns results in dismissal of the case, “unless the debtor demonstrates that the failure . . . is 

due to circumstances beyond the control of the debtor.”95 In addition, if 

requested by the court, trustee, or party in interest, the debtor must provide a copy of all federal income tax returns—or transcripts, and their 

amendments—that are filed during the case, including those prepetition 

returns that are filed after commencement of the case.96 Failure to file the 

postpetition tax returns can also result in case dismissal or conversion, 

91. 11 U.S.C. § 521(a)(3) & (4).

92. Id. § 521(a)(5).

93. Id. § 521(e).

94. Id. § 521(e)(2)(A).

95. Id. § 521(e)(2)(B) & (C). See, e.g., In re Chassie, No. 10-41432-MSH, 2011 WL 

133007 (Bankr. D. Mass. Jan. 14, 2011) (dismissal resulting from debtor’s failure to provide required tax return).

96. 11 U.S.C. § 521(f)(1)–(3).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

24

upon motion of the taxing authority.97 Postpetition tax returns are more 

commonly relevant in Chapter 13 cases than Chapter 7 because monitoring a debtor’s tax returns may lead to potential modification of confirmed plans over the three- to five-year period of a plan.98 In a Chapter 

13 case, until a plan is confirmed, and annually thereafter until the case is 

closed, the debtor is obligated to provide a statement, under penalty of 

perjury, of the income and expenses for the most recent tax year, if the 

court, trustee, or party-in-interest requests it.99

If requested by the U.S. trustee or case trustee, the debtor shall provide some documentary evidence of identity—typically required at the 

§ 341 meeting of creditors—such as driver’s license or passport.100

2.5 Joint administration and substantive consolidation

Although a joint petition of two individuals may be permitted under 

§ 302, it actually creates two bankruptcy estates, one for each debtor. The 

Code is simply permitting the joint filing for convenience, with one filing 

fee required. From a practical standpoint, the joint filing is treated as one 

case, jointly administered by the court and trustee, unless an issue arises, 

such as the need to determine separate property interests of the two 

debtors. In the typical joint filing, each debtor may have individual, as 

well as joint, debts, and there may be instances in which distribution to 

claimants will vary, depending on whether a claim was against both debtors or only against one individual.101 Although not expressly authorized 

in the Code, there are rare instances in which the court may be required 

to substantively consolidate the two bankruptcy estates, in which event, 

the assets and liabilities of the two individuals are literally combined.102

Bankruptcy Rule 1015 addresses consolidation and joint administration.

An issue arises occasionally when only one spouse files, and later the 

other spouse attempts to join in that petition, without filing a separate 

97. Id. § 521(j).

98. See infra Part 6 for discussion of plan modification.

99. 11 U.S.C. § 521(f)(4) & (g).

100. Id. § 521(h).

101. The claims allowance and distribution processes are discussed infra Part 4.

102. See, e.g., In re Bonham, 229 F.3d 750 (9th Cir. 2000).
Part 2: Commencement of Case and Automatic Stay

25

bankruptcy. The majority rule is that such joinder is not permitted, since 

§ 302 refers to an initial joint filing.103 If the spouse not filing originally 

needs bankruptcy relief, he or she may file a separate petition and then 

ask the court to jointly administer the two cases, or, if appropriate, substantively consolidate them.104

2.6 Prebankruptcy credit counseling

Before filing a petition, individuals seeking relief under any chapter of the 

Bankruptcy Code must complete counseling from an approved nonprofit 

budget and credit counseling agency.105 Although there are exceptions in 

the statute,106 they are rarely applied. Moreover, the need to meet this 

threshold eligibility requirement is strictly enforced; debtors who do not

file the required certificate of completion are ineligible for relief.

107 Early 

case law questioned whether a case filed by an ineligible debtor should be 

dismissed or stricken,

108 but the general result of failure to complete the 

counseling prepetition is dismissal. Completing it after the petition filing 

has not been the answer, since § 109(h) requires the counseling “during 

the 180-day period ending on the date of filing the petition.”109 There was 

also disagreement among courts as to whether completion on the same 

date as the petition filing was sufficient, and most courts have adopted 

the view that so long as the counseling is actually completed before the 

time of the petition filing, completion on the same date is compliance.110

103. See In re Clinton, 166 B.R. 195 (Bankr. N.D. Ga. 1994) (finding no reported 

decision allowed single filer to later amend petition to add spouse). 

104. See Fed. R. Bankr. P. 1015(b).

105. 11 U.S.C. § 109(h).

106. See id. § 109(h)(2)–(4) for potential exceptions from the requirement.

107. See, e.g., In re Mitrano, 409 B.R. 812 (E.D. Va. 2009) (absent circumstances 

described in statute, bankruptcy court has no discretion to waive § 109(h) requirement, 

with debtor ineligible and case dismissed).

108. See, e.g., Adams v. Zarnel (In re Zarnel), 619 F.3d 156 (2d Cir. 2010) (remanding to determine if striking petition or dismissal was appropriate).

109. See, e.g., Gibson v. Dockery (In re Gibson), No. CC-10-1399-PaHKi, 2011 WL 

7145612 (B.A.P. 9th Cir. Dec. 1, 2011); In re Ingram, 460 B.R. 904 (B.A.P. 6th Cir. 2011).

110. See In re Francisco, 390 B.R. 700 (B.A.P. 10th Cir. 2008) (discussing various 

views and adopting position that completion on same day, but before petition, satisfied 
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

26

Section 111 of the Code describes the list of nonprofit budget and credit 

counseling agencies, as selected by the United States trustee, or bankruptcy administrator.

2.7 Automatic stay

The automatic stay is one of the critical components of any bankruptcy 

case: it stops creditors from pursuing collection actions against a debtor 

who has declared bankruptcy. There are certain exceptions. Here is an 

outline of how § 362’s automatic stay functions:

• The stay is automatically triggered by the commencement of a 

bankruptcy case, without the need for a court order. § 362(a)

• The stay stops or delays a broad range of creditor actions, subject 

to statutory exceptions. § 362(a) & (b)

• A creditor can seek relief by filing a motion to have the stay lifted.

Any objections to the motion will trigger a contested proceeding.

§ 362(d)

• Violations of the stay may result in monetary damages, and possibly punitive damages. § 362(k)

• The stay’s effect on property ends once the property no longer 

belongs to the bankruptcy estate, and generally when the case is 

closed or dismissed. Its effect on the individual debtor ends when 

discharge is granted. § 362(c)

• In cases involving repeat filers, the stay may be limited in time, or 

may not go into effect. § 362(c)(3) & (c)(4)

The commencement of a bankruptcy case by the filing of a petition 

acts as an order for relief under the chapter designated on the petition.111

An automatic stay goes into effect without the need for any court action,112 and a bankruptcy estate is immediately created.113 The stay stops 

§ 109(h)); In re Arkuszewski, 507 B.R. 242 (Bankr. N.D. Ill. 2014) (discussing split of 

authority on meaning of “date of filing” in § 109(h)(1), debtor was not eligible when 

credit briefing was completed on same day but after filing of petition).

111. 11 U.S.C. § 301(b).

112. Id. § 362(a).

113. Id. § 541(a). See discussion infra Part 3.
Part 2: Commencement of Case and Automatic Stay

27

almost all creditor actions, unless an exception to the stay, found in 

§ 362(b), applies, or until the creditor moves the court for relief from the 

stay, under § 362(d). The automatic stay and its exceptions are sources of 

frequent litigation in the bankruptcy courts, often resulting in appeals.

Courts are called on to decide if a particular creditor action violated 

the stay, if a § 362(b) exception protects the actions, or if a violation occurred, whether damages are appropriate under § 362(k). Legislative history states the purpose of the § 362(a) automatic stay:

The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from 

his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that 

drove him into bankruptcy.114

Whether a creditor is secured or unsecured, the stay broadly stops, at 

least temporarily, the following actions:115 (1) continuation or commencement of judicial and administrative actions against the debtor;116

(2) enforcement of any judgment against the debtor or property of the 

bankruptcy estate;117 (3) actions to obtain possession of or exercise control over property of the estate;118 (4) actions to create or perfect a lien 

against property of the estate, or of the debtor;

119 (5) acts to collect, assess, 

or recover claims against the debtor that arose prepetition, or to set off 

against a prepetition debt, although there are exceptions for certain setoff 

114. H.R. Rep. No. 595, 95th Cong., 1st Sess. 340 (1977).

115. The automatic stay focuses on actions against individual, consumer debtors. 

There are other aspects of the stay that apply in nonconsumer business cases.

116. 11 U.S.C. § 362(a)(1); see, e.g., In re Byrd, 357 F.3d 433 (4th Cir. 2004).

117. 11 U.S.C. § 362(a)(2); see, e.g., In re Shuman, 122 B.R. 317 (Bankr. S.D. Ohio 

1990).

118. 11 U.S.C. § 362(a)(3); see, e.g., Jacks v. Wells Fargo Bank, N.A. (In re Jacks), 642 

F.3d 1323 (11th Cir. 2011) (distinguishing actions by mortgage creditor that were not 

violations of stay); In re Perl, 513 B.R. 566 (B.A.P. 9th Cir. June 5, 2014) (mortgage lender 

violated stay by changing locks and preventing debtor’s access to personal property that 

was property of estate).

119. 11 U.S.C. § 362(a)(4) & (5). However, § 362(b)(3)’s exception from the stay 

permits certain acts to maintain or continue to maintain a perfected security interest.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

28

actions;120 and (6) commencement or continuation of U.S. Tax Court 

proceedings concerning the tax liability of an individual “for a taxable 

period ending before the date of the order for relief.”121

Creditors are often advised that if there is any doubt about the reach 

of the stay, they should move for stay relief under § 362(d) rather than 

run the risk of violation and potential monetary damages. Such relief is 

by motion practice under Bankruptcy Rule 4001. The volume of litigation over stay violations and the number of reported decisions are too 

extensive to cover in this brief overview of the subject. The following examples illustrate a few of the many issues raised in consumer debtor cases.

• Under Supreme Court authority, Citizens Bank of Maryland v. 

Strumpf,122 a bank’s temporary, administrative freeze of an account is not a stay violation. But the better course of action by a 

bank is to promptly move for stay relief if it intends to set off the 

account against a prepetition debt.123

• Internal recording of postpetition fees by a mortgage creditor did 

not violate § 362(a)(3), (5), or (6), provided there was no collection activity in the Chapter 13 case against the debtor or bankruptcy estate.124

120. 11 U.S.C. § 362(a)(6), (7). See 11 U.S.C. § 362(b)(6), (17), (26), and (27) for 

stay exceptions allowing setoff, with only § 362(b)(26) applying to individuals. See also 

Sexton v. Dep’t of Treasury, 508 B.R. 646 (Bankr. W.D. Va. 2014) (analyzing 

§ 362(b)(26), IRS violated stay by offset to collect prepetition non-tax debt).

121. 11 U.S.C. § 362(a)(8). But see Schoppe v. Comm’r of Internal Revenue, 711 

F.3d 1190 (10th Cir. 2013) (bankruptcy filing did not stay taxpayer’s appeal of tax court’s 

adverse decision; discussing split of authority between Fifth and Ninth Circuits, tax court 

petition initiated by taxpayer was not continuation of administrative proceeding against 

debtor).

122. 516 U.S. 16 (1995). See also Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 

764 F.3d 1168 (9th Cir. 2014).

123. See Harchar v. United States (In re Harchar), 694 F.3d 639 (6th Cir. 2012) 

(IRS’s temporary delay in processing tax refund, while deciding whether to seek setoff, 

was not violation of § 362(a)(3) or (6), and IRS promptly filed motion for stay relief). See 

also Gregory P. Johnson, Following Strumpf: Will Allowance of an Administrative Freeze 

Begin the Erosion of the Automatic Stay?, 5 J. Bankr. L. & Prac. 193 (1996).

124. Jacks v. Wells Fargo Bank, N.A. (In re Jacks), 642 F.3d 1323 (11th Cir. 2011).
Part 2: Commencement of Case and Automatic Stay

29

• Notice of annual tax statement to the debtor, or notice of a 

mortgage payment increase (for example, when property taxes 

increased or an adjustable rate increase occurred in a mortgage)

was not a stay violation, provided there was no threatening or 

coercive action;125 but such notices raise issues in Chapter 13 cases, in which a mortgage likely is being paid through a plan.126 Fact 

questions are often presented as to when a notice crosses the line

into demand or threat.127

• Although a state child support creditor did not violate the stay by 

sending collection letters, because of § 362(b)(2)’s exception, it 

violated the terms of the confirmed Chapter 13 plan, which provided for payment of the allowed claim.128

• Refusal to return a repossessed vehicle, in which the debtor’s interests had not been terminated prebankruptcy under state law, 

was a willful stay violation, resulting in damages.129 Of course, 

postpetition repossessions without stay relief are stay violations, 

and they become willful violations if the creditor had any notice 

of the bankruptcy filing.130

125. See, e.g., Knowles v. Bayview Loan Servicing, LLC (In re Knowles), 442 B.R. 150 

(B.A.P. 1st Cir. 2011).

126. See Campbell v. Countrywide Home Loans, Inc., No. 07-20499, 2008 WL 

3906382 (5th Cir. Aug. 26, 2008) (sending escrow statement and notice of payment increase not stay violation), opinion withdrawn & superseded by Campbell v. Countrywide 

Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008). Accord In re Zotow, 432 B.R. 252 (B.A.P. 

9th Cir. 2010). But see, e.g., Patterson v. Homecomings Fin. LLC, 425 B.R. 499 (E.D. Wis. 

2010) (debtors had plausible cause of action for stay violation when lender collected postpetition charges that were not disclosed). See discussion infra Part 6.

127. See, e.g., In re Ocasio, 272 B.R. 815 (B.A.P. 1st Cir. 2002) (threat to “get [the 

money] from your face” easily violated stay).

128. See Fla. Dep’t of Revenue v. Rodriguez (In re Rodriguez), 367 F. App’x 25 (11th 

Cir. 2010). See also In re DeSouza, 493 B.R. 669 (B.A.P. 1st Cir. 2013) (state court collection of alimony did not fall within § 362(b)(2)’s specific exceptions from stay).

129. Weber v. SEFCU (In re Weber), 719 F.3d 72 (2d Cir. 2013); Thompson v. 

GMAC, 566 F.3d 699 (7th Cir. 2009); Johnson v. Smith (In re Johnson), 501 F.3d 1163 

(10th Cir. 2007).

130. See, e.g., In re Carlton, No. 10-00079-8-RDD, 2013 WL 2297082 (Bankr. 

E.D.N.C. May 24, 2013); In re Suggs, 377 B.R. 198 (B.A.P. 8th Cir. 2007).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

30

• Asking the Chapter 7 debtor to consider reaffirmation of secured 

debt was not a stay violation, again assuming no threatening or 

coercive action.131

• Filing a proof of claim, even though ultimately disallowed, and 

filing other pleadings in the bankruptcy case, were not stay violations.

132

• Prosecuting state court civil action after Chapter 13 filing violated the stay.133

• Postpetition eviction from a home or apartment typically violates 

the stay, as does continuing with foreclosure, without stay relief.

134

• Failure to release garnishment may be a stay violation.135

• IRS’s temporary freeze of tax refund processing did not violate 

the stay, since the debtor had no due process right to prompt 

payment, and IRS was investigating who to pay and whether it 

had right of setoff.136

• Credit union’s notice to debtor that account would be closed did 

not violate the stay, when no coercion to pay was involved.137

• Mortgage creditor did not violate the stay by refusing to foreclose 

after the Chapter 13 debtor’s plan surrendered the home. The 

131. See, e.g., In re Jefferson, 144 B.R. 620 (Bankr. D.R.I. 1992) (citing numerous 

opinions on issue).

132. See, e.g., Knowles v. Bayview Loan Servicing, LLC (In re Knowles), 442 B.R. 150 

(B.A.P. 1st Cir. 2011); In re Briggs, 143 B.R. 438 (Bankr. E.D. Mich. 1992). But see Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014) (filing time-barred proof of 

claim violated Fair Debt Collection Practices Act), supra note 61.

133. Wesley v. Oh (In re Oh), No. NC-07-1325-MdKB, 2008 WL 8448837 (B.A.P. 

9th Cir. Apr. 16, 2008). But see In re Mason, No. 13-1391, 2013 WL 2423893 (3d Cir. June 

5, 2013) (per curiam) (stay not violated by eviction when debtor had no possessory interest in leased property, which did not become property of bankruptcy estate).

134. See, e.g., In re Perl, 513 B.R. 566 (B.A.P. 9th Cir. 2014); In re Derringer, 375 B.R. 

903 (B.A.P. 10th Cir. 2007).

135. See, e.g., In re Scroggin, 364 B.R. 772 (B.A.P. 10th Cir. 2007).

136. Harchar v. United States (In re Harchar), 694 F.3d 639 (6th Cir. 2012).

137. See Messick v. Ascend Fed. Credit Union, 424 B.R. 344 (E.D. Tenn. 2010).
Part 2: Commencement of Case and Automatic Stay

31

court concluded that it lacked authority to force state remedy of 

foreclosure.138

2.7.1 Exceptions from automatic stay

Despite its breadth, the automatic stay has twenty-seven statutory exceptions,

139 set forth in § 362(b), many of which do not come into play in 

consumer cases. Again, the volume of decisional and other authority on 

the exceptions is too vast to cover in this monograph, but a brief review 

of the most common exceptions in consumer cases is illustrative.

Section 362(b)(1) provides an exception from the automatic stay for

“the commencement or continuation of a criminal action” against the 

debtor.140 Typically easy to apply, § 362(b)(1) is often relevant in such 

state actions as enforcement of delinquent child support or insufficient 

funds checks. But questions may exist as to whether the purported criminal action is in reality a civil debt collection action.141 The bankruptcy 

court may need to determine whether the attempted action is civil or 

criminal contempt, especially when a state court action involves potential 

incarceration of the debtor.142

Section 362(b)(2) permits a range of actions concerning marital dissolution, child custody, and domestic support obligations—including 

collection actions—that may reach postpetition income. Thus it is widely 

138. See, e.g., In re Arsenault, 456 B.R. 627 (Bankr. S.D. Ga. 2011). See also In re 

Rose, 512 B.R. 790 (Bankr. W.D.N.C. 2014) (majority of courts find nothing in Bankruptcy Code’s “surrender” to compel creditor to take possession of property).

139. There are twenty-eight subsections, but only twenty-seven exceptions because 

§ 362(b)(5) was repealed in 1998.

140. See, e.g., United States v. Robinson (In re Robinson), 764 F.3d 554 (6th Cir. 

2014) (although Bankruptcy Code § 362(b)(1) addresses only action against debtor, 18 

U.S.C. § 3613(a) permits enforcement of criminal restitution judgment against property 

of Chapter 13 estate).

141. See, e.g., McMaster v. Small (In re Small), 486 F. App’x 436 (5th Cir. 2012) 

(bankruptcy court didn’t err in finding enforcement of spousal support not protected by 

§ 362(b)(1) & (2)); In re Fussell, 928 F.2d 712 (5th Cir. 1991) (discussing test for creditor’s criminal or civil motivation in pursuing action).

142. See, e.g., Guariglia v. Cmty. Nat’l Bank & Trust Co., 382 F. Supp. 758 (E.D.N.Y. 

1974), aff’d, 516 F.2d 896 (2d Cir. 1975) (discussing difference in civil and criminal contempt actions and whether stay applies).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

32

applicable in consumer cases. One of the exceptions that was broadened 

by BAPCPA, § 362(b)(2), incorporates the term “domestic support obligation,” which is defined in § 101(14A). “Domestic support obligation”

includes the normal alimony, maintenance, and support obligations. It 

also includes obligations that are owed to or recoverable by the spouse or 

child, as well as to governmental units, such as state child support agencies.143 The term “domestic support obligation” appears in other parts of 

the Code, including the § 523(a)(5) exception from discharge (discussed 

infra Parts 5 and 6), and the § 507(a)(1) priority claim provision (discussed infra Parts 4 and 6).

There are many factual and statutory interpretive issues that arise in 

consumer cases under the § 362(b)(2) exception, as well as the application of the “domestic support obligation” concept in other Code sections.144 For example, courts have had to determine the extent to which

the exception permits a state court—although authorized by 

§ 362(b)(A)(iv) to proceed with dissolution of the marriage—to divide 

marital property. Since such a property division likely impacts the debtor’s property interest that has come into the bankruptcy estate, it is not 

surprising that some limitations on the exception come into play.145

There is frequent interplay between this exception and the effect of a plan 

confirmation in Chapter 13. For instance, a plan may provide for payment of all or part of prepetition support, while § 362(b)(2)’s collection 

exceptions from the stay may permit an entity to do things such as sus143. See, e.g., Rivera v. Orange Cty. Prob. Dep’t (In re Rivera), 511 B.R. 643 (B.A.P. 

9th Cir. 2014) (under California law, parent’s debt to county for support of incarcerated 

child was domestic support obligation).

144. For examination of multiple issues related to domestic support obligations, see 

Hon. William H. Brown, Bankruptcy and Domestic Relations Manual (annual editions) 

[hereinafter Bankruptcy & Domestic Relations Manual].

145. See, e.g., In re Exum, No. 08-10079-RGM, 2008 WL 465818 (Bankr. E.D. Va. 

Feb. 21, 2008) (§ 362(b)(2)’s exception from stay did not permit equitable distribution of 

marital property); In re Secrest, 453 B.R. 623 (Bankr. E.D. Va. 2011) (relief from stay to 

pursue equitable division of marital property not a matter of right, and bankruptcy court 

had discretion to determine whether cause existed for stay relief for that purpose or 

whether bankruptcy court would continue to retain jurisdiction).
Part 2: Commencement of Case and Automatic Stay

33

pend a driver’s license,146 which would adversely affect the debtor’s ability 

to work and fund the confirmed plan. Issues exist, notwithstanding the 

exception, as to whether the debtor’s postpetition earnings are protected 

in Chapter 13.147 Although a creditor may be permitted to take actions 

under § 362(b)(2), that creditor must be cognizant that it could still violate the terms of a confirmed plan, since § 1327’s effect of confirmation 

binds creditors.148 Judicial interpretation of the statutory interplay is often required.149

Section 362(b)(3) is a limited exception from the stay for postbankruptcy perfection of a security interest, which comes into play more 

often in commercial than consumer cases.

Section 362(b)(4) contains a police and regulatory power exception 

that may be applicable in consumer cases when enforcement of public 

health and safety laws or regulations are involved.150

Section 362(b)(9) provides that the automatic stay does not apply to 

tax audits, notices of tax deficiency or tax assessments; but the exception 

146. 11 U.S.C. § 362(b)(2)(D). See, e.g., In re Penaran, 424 B.R. 868 (Bankr. D. Kan. 

2010).

147. See, e.g., In re Omine, 485 F.3d 1305, withdrawn pursuant to settlement, 2007 

WL 6813797 (11th Cir. 2007) (holding state child support agency violated stay by collection against debtor’s postpetition earnings). See also In re DeSouza, 493 B.R. 669 (B.A.P. 

1st Cir. 2013) (interpreting § 362(b)(2)’s specific exceptions, state court collection of 

alimony from postpetition wages violated stay).

148. The effect of plan confirmation is discussed infra Part 6.

149. See, e.g., In re McGrahan, 459 B.R. 869 (B.A.P. 1st Cir. 2011). The bankruptcy 

court found that the confirmed plan bound a state, preventing interception of tax refunds 

under § 362(b)(2)(F). The appellate court reversed, holding that plan provisions did not 

sufficiently address the interception power under that exception. For the plan to control 

over the exception, it must specifically address the interception authority, giving the creditor due process notice. See also Fla. Dep’t of Revenue v. Rodriguez (In re Rodriguez), 367 

F. App’x 25 (11th Cir.), cert. denied, 131 S. Ct. 128 (2010) (although no stay violation 

occurred because of § 362(b)(2)(B)’s exception, state revenue department violated Chapter 13 confirmation order by attempting collection of child support in excess of plan’s 

provisions). Cf. In re Fort, 412 B.R. 840 (Bankr. W.D. Va. 2009) (§ 362(b)(2)(C) permitted withholding of income, and state’s collection action was permitted).

150. See California v. Villalobos, 453 B.R. 404 (D. Nev. 2011) (discussing scope of 

§ 362(b)(4)).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

34

does not reach collection of the tax, for which stay relief would be required.151

Section 362(b)(10) rarely is an issue in consumer cases, since it deals 

with nonresidential real property leases, and § 362(b)(11)’s exception 

from the stay for presentment of a negotiable instrument has been addressed infrequently in consumer cases.

152 Section 362(b)(12) through 

(b)(17) would not apply in consumer Chapter 7 or 13 cases, while 

§ 362(b)(18)’s exception for creation or perfection of a statutory lien for 

postpetition ad valorem property taxes could apply.

Section 362(b)(19) permits the continued withholding from a debtor’s wages and collection of any loan against a pension, profit-sharing, 

stock bonus, or other retirement plan established under the IRS Code 

sections delineated in the exception. This exception works in conjunction 

with § 541(b)(7), which excludes such wage withholdings from property 

of the bankruptcy estate, and § 523(a)(18), which excepts such loan obligations from discharge. Also, in Chapter 13’s § 1322(f), such loan repayment withholdings are not included in the disposable income that is considered for eligibility and plan purposes, and the debtor is not permitted 

in a plan to modify the terms of such a loan repayment.

Section 362(b)(20) permits enforcement of liens or security interests 

when the court had previously entered a stay relief order in a prior bankruptcy case, called an in rem order, providing that the stay in a future case 

would not apply as to that specific property. The debtor could move to 

impose the stay in a future case, “based upon changed circumstances or 

for other good cause shown, after notice and hearing.”153

Section 362(b)(21) permits action to enforce a lien or security interest if the debtor was ineligible to file for bankruptcy relief under § 109(g) 

or because the debtor was in violation of a prior order that prohibited the 

debtor from filing again for bankruptcy relief. Eligibility for relief under 

151. See, e.g., In re Waugh, 109 F.3d 489 (8th Cir. 1997).

152. See, e.g., In re Thomas, 428 F.3d 735 (8th Cir. 2005).

153. 11 U.S.C. § 362(b)(20). See also 11 U.S.C. § 362(d)(4) for the in rem relief provision; and see, for example, In re Alakozai, 499 B.R. 698 (B.A.P. 9th Cir. 2013) and In re

Muhaimin, 343 B.R. 159 (Bankr. D. Md. 2006), for application of such relief.
Part 2: Commencement of Case and Automatic Stay

35

Chapters 7 and 13 are discussed infra Parts 5 and 6. Section 109(g)(2)’s 

impact on a new bankruptcy case is discussed infra.

The exceptions in § 362(b)(22) and (23) address whether the automatic stay applies to unlawful detainer and eviction proceedings for residential property when the landlord has gotten a prebankruptcy judgment 

for possession.

154

Section 362(b)(26) permits setoff by a governmental unit, under 

nonbankruptcy law (typically the Internal Revenue Code), of a prebankruptcy income tax refund against a prebankruptcy tax liability, and this 

exception certainly may be applicable in consumer cases.155

2.7.2 Waivers of automatic stay

Generally waiver by a debtor (before filing bankruptcy) of any of the protections under Title 11—including the automatic stay—is not enforceable, as against public policy.156 Yet there are instances in which courts 

have found that a debtor waived the protection of the stay. For example, 

in Roseman v. Roseman,

157 the debtor had allowed the state court to proceed with a divorce, participating in the contested divorce and child custody proceedings without telling his spouse or the state court of his bankruptcy filing. The Sixth Circuit held that an equitable exception to the 

stay was appropriate. Specific fact analysis is required before applying 

such a waiver.

154. For discussion of these exceptions, see Hon. Alan Ahart, The Inefficiency of the 

New Eviction Exceptions to the Automatic Stay, 80 Am. Bankr. L.J. 125 (2006). See also 11 

U.S.C. § 362(l) and (m), containing conditions for application of § 362(b)(22) and (23).

155. See, e.g., In re Gould, 603 F.3d 1100 (9th Cir.), cert. denied, 131 S. Ct. 577 (2010) 

(§ 362(b)(26) gives IRS setoff right without seeking stay relief). See also Harchar v. United 

States (In re Harchar), 694 F.3d 639 (6th Cir. 2012), supra notes 123, 136. Cf. Sexton v. 

Dep’t of Treasury, 508 B.R. 646 (Bankr. W.D. Va. 2014), supra note 120. Section 

362(b)(24) rarely applies in consumer cases, and § 362(b)(27) and (28) would not apply 

to consumer debtors.

156. In re Huang, 275 F.3d 1173 (9th Cir. 2002). See generally Bruce H. White, The 

Enforceability of Pre-petition Waivers of the Automatic Stay, 15 Am. Bankr. L.J. 26 (1997).

157. 14 F.3d 602 (6th Cir. 1993).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

36

2.7.3 Codebtor stay

One of the differences between Chapters 13 and 7 is that § 1301 provides 

a stay as to most actions against an individual who cosigned or is obligated with the Chapter 13 debtor on a consumer debt.158 Section 1301 has 

the following exceptions: (1) the codebtor became liable on the debt in 

the ordinary course of the codebtor’s business, and (2) the case is closed, 

dismissed, or converted to another chapter. Also, the party seeking to 

proceed against the codebtor may move for relief, showing that the 

codebtor actually received the consideration underlying the claim; the 

Chapter 13 plan does not propose to pay the debt in full; or the creditor’s 

interest would be “irreparably harmed by continuation of the stay.”159

2.7.4 Termination of stay

The automatic stay typically terminates when the bankruptcy case is 

closed, dismissed, or the individual receives a discharge. The property, at 

this point, is no longer property of the estate, and the debtor’s personal 

discharge is protected by a discharge injunction.

160 There are exceptions

to this general rule. Section 362(c) contains provisions for the stay’s early 

termination or never coming into effect when a debtor has been in prior 

cases within defined times.161 For example, § 362(c)(3) provides that 

when an individual was a debtor in a case pending within the prior year 

and that case was dismissed, in the subsequent case the automatic stay 

shall terminate “with respect to the debtor on the 30th day after the filing 

158. See Dugan v. U.S. Bank (OH) (In re Dugan), No. 4:11-ap-1267, 2012 WL 

6825328 (Bankr. E.D. Ark. June 20, 2012) (§ 1301 doesn’t apply to business obligation); 

In re Sarner, No. 10-17487-JNF, 2011 WL 5240200 (Bankr. D. Mass. Oct. 31, 2011) 

(§ 1301 applies only to consumer debts).

159. 11 U.S.C. § 1301(c). See also Faulkner v. CEFCU (In re Faulkner), No. 12-

08069, 2013 WL 2154790 (Bankr. C.D. Ill. May 17, 2013) (notwithstanding debtor’s discharge, § 1301 didn’t require credit union’s release of lien on cosigned car loan when plan 

hadn’t fully paid secured claim).

160. 11 U.S.C. § 362(c)(1) & (2). The discharge injunction in § 524 is discussed supra § 5.10

161. See 11 U.S.C. § 362(c), as amended by BAPCPA. See, e.g., In re Scarborough, 457 

F. App’x 193 (3d Cir. 2012) (stay not in effect during gap period between dismissal and 

reinstatement of case, and foreclosure occurring during that gap wasn’t stay violation).
Part 2: Commencement of Case and Automatic Stay

37

of the later case.”162 The statute, as amended in 2005, led to disagreement 

among courts on whether the stay that terminated applied only to the 

debtor, as opposed to both the debtor and property of the estate. This 

issue is not resolved on a circuit level.163 Section 362(c)(3)(B) and (C) 

contain means for a party in interest—which would include the debtor 

and trustee—to move for the stay to remain in effect beyond the thirty

days; but there is a presumption that the current case was not filed in 

good faith, and the presumption must be rebutted by clear and convincing evidence.164

Section 362(c)(4), by contrast, provides that if the individual has 

been a debtor in two or more cases that were pending within the previous 

year, and those cases were dismissed, the automatic stay does not go into 

effect in the current case.165 There is the potential for the debtor or another party in interest to move to impose the stay, but the motion must 

be filed within thirty days of the petition filing,166 and the moving party 

must prove by clear and convincing evidence that the current case was 

filed in good faith to overcome the presumption of bad-faith filing.167

There are other provisions in § 362 that may affect how long the stay 

remains in effect. For example, § 362(e)(2), added in 2005, provides that 

the stay terminates on the 60th day after a motion for stay relief, if the 

162. 11 U.S.C. § 362(c)(3)(A). See, e.g., In re Rodriguez, 487 B.R. 275 (Bankr. D. 

N.M. 2013) (§ 362(c)(3) applied when Chapter 11 case had been pending within one year 

of current Chapter 13 filing).

163. Compare Reswick v. Reswick (In re Reswick), 446 B.R. 362 (B.A.P. 9th Cir. 

2011) (stay terminated as to both debtor and property of estate), with Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813 (B.A.P. 8th Cir. 2008) (stay terminated only as to 

debtor).

164. See, e.g., In re Mayberry, No. 13-31233-H3-13, 2013 WL 1694471 (Bankr. S.D. 

Tex. Apr. 18, 2013); In re Pence, 469 B.R. 643 (Bankr. W.D. Va. 2012).

165. See Singh v. Cusick (In re Singh), No. EC-11-1700-DJUMk, 2013 WL 1615849 

(B.A.P. 9th Cir. Apr. 15, 2013) (no stay in effect in third case filed within year); Bates v. 

BAC Home Loans (In re Bates), 446 B.R. 301 (B.A.P. 8th Cir. 2011) (§ 362(c)(4) is clear, 

and stay didn’t come into effect in third case within one year).

166. 11 U.S.C. § 362(c)(4)(B). See, e.g., In re Williams, No. 12-02129-8-RDD, 2012 

WL 2856124 (Bankr. E.D.N.C. July 11, 2012).

167. 11 U.S.C. § 362(c)(4)(B) & (D).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

38

court has not entered a final order on that motion or extended the time 

for good cause.168

2.7.5 Stay relief

Section 362(d) provides for stay relief on motion of a creditor or party in 

interest. There are multiple ways in which the bankruptcy court may 

grant relief: termination, annulment, modification or conditioning; and 

the court has discretion in deciding the appropriate relief under the particular facts.169 The grounds for relief, under § 362(d), are also varied, 

including the undefined “cause.”170 Lack of “adequate protection” is included in “cause” for relief.171 A common issue in consumer cases is 

whether the debtor has equity in collateral that would protect the creditor 

pending a sale or confirmation of a plan.172

Motions for stay relief are governed by Bankruptcy Rules 4001 and 

9013. The ensuing motions and contested hearings comprise a considerable amount of a bankruptcy court’s docket, both in consumer and nonconsumer cases.

168. See, e.g., In re McKenzie, 737 F.3d 1034 (6th Cir. 2013) (bankruptcy court had 

good cause for extending stay under § 362(e)(2)).

169. See, e.g., In re Myers, 491 F.3d 120 (3d Cir. 2007) (approving dismissal of case 

and retroactive annulment of stay). See also Grady v. A.H. Robins Co., Inc., 839 F.2d 198 

(4th Cir. 1998) (describing factors to consider for stay annulment); Cruz v. Stein Strauss 

Trust #1361 (In re Cruz), No. CC-13-1554-KiTaD, 2014 WL 4258990 (B.A.P. 9th Cir. 

Aug. 29, 2014) (applying similar factors). And see Kadlecek v. Schwank USA, Inc., 486 

B.R. 336 (M.D.N.C. 2013) (applying Grady factors). Cf. In re Hudson, 504 B.R. 569 

(B.A.P. 9th Cir. 2014) (reversing stay annulment).

170. See, e.g., Lee v. Anasti (In re Lee), 461 F. App’x 227 (4th Cir. 2012) (cause existed to allow state court to determine quiet title action).

171. See 11 U.S.C. § 361 for adequate protection, and see, e.g., Rocco v. J.P. Morgan 

Chase Bank, 255 F. App’x 638 (3d Cir. 2007), for discussion of adequate protection in 

Chapter 13.

172. See, e.g., In re Crawford, No. 11-24158-SBB, 2012 WL 930281 (Bankr. D. Colo. 

Mar. 19, 2012) (oversecured creditor adequately protected pending sale of property).
Part 2: Commencement of Case and Automatic Stay

39

2.7.6 Standing for stay relief motion

An issue increasingly litigated is whether the party moving for stay relief 

has standing to seek that relief. The threshold standing question173 must 

be reached before deciding the merits of the motion. For purposes of filing for stay relief, the moving party must have both constitutional and 

prudential standing. Constitutional standing requires: injury-in-fact; an

injury traceable to another party’s conduct; and an injury that can be 

remedied by the relief being sought.

174 A finding of constitutional standing is not dispositive of prudential standing, which is the equivalent of 

“real party in interest,” a term not defined in the Bankruptcy Code.

175

Bankruptcy Rule 7017, incorporating Federal Rule of Civil Procedure 

17(a), provides that “an action must be prosecuted in the name of the 

real party in interest,” and, unless ordered otherwise, Rule 7017 would 

apply in contested stay relief motions.176 Section 362(d) of the Code refers 

to relief from the automatic stay “on request of a party in interest.”

The Ninth Circuit Bankruptcy Appellate Panel explored the need for 

standing for stay relief in the context of a mortgage servicer’s and assignee’s motion. This is a common scenario in consumer cases. In In re 

Veal,

177 the assignee of the home mortgage did not establish existence or 

actual possession of the original note. In examining whether the assignee 

had established standing and was the real party in interest to enforce the 

note, the Veal court looked at Articles 3 and 9 of the Uniform Commercial Code. The court concluded that an assignee and servicer of the mortgage, who were not the original payees of the note, must show facts to 

support standing. To show that the assignee had some interest in the 

note, either as holder, a party entitled to enforce the note, or with some 

173. See Warth v. Seldin, 422 U.S. 490 (1975).

174. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1962). See generally Hon. Nancy C. Dreher & Hon. Joan N. Feeney, Bankruptcy Law Manual (5th ed. 2014).

175. See 11 U.S.C. § 1109 for a nonexclusive list of “party in interest.” See also Bennett v. Spear, 520 U.S. 154, 162 (1997) (“prudential principles . . . bear on the question of 

standing”); In re Smith, 522 F. App’x 760, 764 (7th Cir. 2013) (movant’s standing under 

§ 362(d) depends on movant being party in interest).

176. See Fed. R. Bankr. P. 9014(c).

177. 449 B.R. 542 (B.A.P. 9th Cir. 2011).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

40

ownership or other interest in the note, assignment of the mortgage was 

not sufficient, under UCC Article 9. The mortgage servicer, which might 

or might not be the same entity as the assignee, needed to establish that it 

was the agent of the holder, or of the assignee, in order to have standing. 

While these standing issues seem to cross over into the merits of whether 

relief should be granted, they can be resolved, in most instances, if the 

moving party attaches sufficient documentation to its motion to establish 

assignment, possession of the note, or other evidence that the movant has 

a “colorable” right as owner, holder, or assignee of an enforceable obligation.178 In other words, the fact that the party moving for stay relief is the 

mortgage servicer may not be enough: the movant may have to prove 

that it is authorized to enforce the underlying obligation.179 To establish 

standing, the movant usually has to show it possesses the note, at least in 

the mortgage scenario.180

A “colorable claim” has a lesser requirement than ultimate proof one 

of the grounds for stay relief under § 362(d). “Colorable claim” has been 

defined as “a plausible legal claim. In other words, a claim strong enough 

to have a reasonable chance of being valid if the legal basis is generally 

correct and the facts can be proven in court. The claim need not actually 

result in a win.”181 This does not mean that a moving party’s standing is 

178. See, e.g., Sardana v. Bank of Am., N.A. (In re Sardana), No. AZ-10-1368-

DMkMa, 2011 WL 3299861 (B.A.P. 9th Cir. June 7, 2011) (servicer bank failed to show 

colorable claim for standing purposes, when note had been assigned to another, and bank 

didn’t show retention of right to enforce assigned note). Cf. Junk v. CitiMortgage, Inc. (In 

re Junk), 512 B.R. 584 (Bankr. S.D. Ohio 2014) (creditor had sufficient colorable interest 

in note and mortgage for standing).

179. See, e.g., In re Alcide, 450 B.R. 526 (Bankr. E.D. Pa. 2011).

180. See Miller v. Deutsche Bank Nat’l Trust Co. (In re Miller), 666 F.3d 1255 (10th 

Cir. 2012) (remanding for bank to establish physical possession of mortgage note, to satisfy Colorado’s UCC requirement that bank be holder of evidence of debt).

181. Elstner-Bailey v. Fed. Nat’l Mortg. Ass’n (In re Elstner-Bailey), No. CC-11-

1038-DKiPa, 2011 WL 6934490, at *4 (B.A.P. 9th Cir. Oct. 4, 2011) (citing definition of 

“colorable claim” from Cornell University Law School’s Legal Information Institute). See 

also In re Escobar, 457 B.R. 229, 236 (Bankr. E.D.N.Y. 2011) (level of proof for standing 

purposes “must be somewhere along the spectrum of providing some evidence of a litigable right or colorable claim at one end, to at the other end, demonstrating that the mo-
Part 2: Commencement of Case and Automatic Stay

41

always put at issue; but if standing is contested, the bankruptcy court 

should not reach the substantive merits of the motion before deciding the 

threshold issue of standing.182

2.7.7 Violations of automatic stay and damages

Another source of frequent litigation in the bankruptcy courts is whether 

violations of the automatic stay are willful, and, if so, the extent of damages that may result. An initial issue may be whether an action that violates the § 362(a) stay is void or voidable. The majority view is that stay 

violations are void,183 at least unless the court retroactively annuls the 

stay, for cause, under § 362(d).184 The minority view is that stay violations 

are voidable, and the cases so holding are fact-specific.

185 Although annulment of the stay, in order to validate an action that otherwise was a 

violation, is rare, it may be justified under particular facts, such as when 

the debtor has filed bankruptcy multiple times to stop a foreclosure, and 

the prior filings have been found to be in bad faith.186

Violation of the stay may not only result in the action being void, it 

may lead to monetary damages under § 362(k), which provides that “an 

individual injured by a willful violation of a stay . . . shall recover actual 

damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” There are instances in which the 

violation does not require monetary damages, for example, when the 

vant holds a valid, perfected and enforceable lien and more likely than not will prevail in 

the underlying [mortgage] litigation stayed by the bankruptcy filing”).

182. See In re Thomas, 469 B.R. 915, 922 (B.A.P. 10th Cir. 2012) (citing Miller, 666 

F.3d at 1260–64).

183. See United States v. White, 466 F.3d 1241 (11th Cir. 2006); In re Soares, 107 

F.3d 969 (1st Cir. 1997); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522 (3d Cir. 

1994); In re Schwartz, 954 F.2d 569 (9th Cir. 1992). The Seventh Circuit indicated, in 

Matthews v. Rosene, 739 F.3d 249 (7th Cir. 1984), that actions in violation of the stay were 

generally void.

184. See, e.g., Easley v. Pettibone Mich. Corp., 990 F.2d 905 (6th Cir. 1993) (action 

void unless annulment of stay granted).

185. See Bronson v. United States, 46 F.3d 1573 (Fed. Cir. 1995); Sikes v. Global 

Marine, Inc., 881 F.2d 176 (5th Cir. 1989).

186. For a collection of case authority on annulment, see In re Siciliano, 13 F.3d 748 

(3d Cir. 1994).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

42

creditor had no knowledge of the bankruptcy filing at the time it served a 

foreclosure complaint on the debtor. The complaint service was a stay 

violation and void, but the action was not willful.187 That creditor simply 

had to start over, by seeking § 362(d) stay relief to proceed with foreclosure.

It does not take much to satisfy the “willful” requirement of § 362(k). 

Any knowledge of the bankruptcy filing is generally sufficient to turn a 

stay violation from innocent to willful. Willfulness does not require that 

the violating party formed a specific intent to take egregious action; an 

intentional act, taken with knowledge of the bankruptcy filing, is enough, 

according to case law.188 Once the creditor knows about the bankruptcy, 

it has the burden to prevent a stay violation.189

As to damages for a violation, under § 362(k) the bankruptcy court is

required to award actual damages, which must be proved by the debtor.190 Actual damages may include specifics, such as lost wages or out-ofpocket expenses,191 as well as emotional distress. Under the pre-2005 

Code, in which damages for stay violation were in § 362(h), there was 

authority that actual damages should not include non-economic losses, 

such as emotional distress.192 Increasingly, however, courts are more open 

to emotional distress damages if they are sufficiently supported by 

proof.193 The Ninth Circuit adopted a three-part test: the debtor must

show that emotional distress actually caused significant harm, clearly established in the proof, with a “causal connection between that significant 

187. In re Kline, 472 B.R. 98 (B.A.P. 10th Cir. 2012).

188. See, e.g., Thompson v. GMAC, 566 F.3d 699 (7th Cir. 2009).

189. See Fleet Mortg. Grp., Inc. v. Kaneb, 196 F.3d 265 (1st Cir. 1999).

190. See, e.g., In re Nixon, 419 B.R. 281 (Bankr. E.D. Pa. 2009) (debtor failed to 

prove any damages).

191. See, e.g., Stoker v. Aurora Loan Servs., Inc. (In re Stoker), No. 09-33976, 2010 

WL 958030 (Bankr. S.D. Tex. Mar. 10, 2010).

192. See, e.g., Aliello v. Providian Fin. Corp., 239 F.3d 876 (7th Cir. 2001).

193. See Lodge v. Kondaur Capital Corp., 750 F.3d 1263 (11th Cir. 2014) (expressing 

three-part test to qualify emotional distress as actual damages); Young v. Repine (In re

Repine), 536 F.3d 512 (5th Cir. 2008) (citing other circuit authority allowing recovery of 

emotional distress damages).
Part 2: Commencement of Case and Automatic Stay

43

harm and the violation of the automatic stay.”194 If allowed, damages for 

emotional distress can be significant.195

An element of damages recognized in § 362(k) and case law is the 

debtor’s attorney fees and costs of prosecuting the motion related to a 

stay violation. But there is some disagreement about the extent to which 

fees are recoverable. In a Chapter 11 case, Sternberg v. Johnston,

196 the 

Ninth Circuit, applying § 362(k), pointed out that once the stay violation 

was remedied, the debtor may not be entitled to further fee recovery. Often the only significant—if not the only—actual damages suffered by the 

stay violation are the debtor’s attorney fees related to that violation.

Moreover, § 362(k) refers only to the “individual injured”197 (typically a 

debtor) being allowed damage recovery; so, if the debtor has no liability 

to her attorney, are the attorney fees incurred the debtor’s damages? Taking a strict view, a court might hold that if the debtor is not liable for the 

fees, the fees are not allowable under § 362(k).198 Another court might 

view the allowance of attorney fee damages as independent of whether 

the fees were actually paid by the debtor.199 The Ninth Circuit distinguished its prior opinion in Sternberg, recognizing that the debtor’s attorney fees incurred in defending an appeal by the creditor of a stay violation order were recoverable “actual damages,” and that those fees were a 

part of enforcing the stay.200 In another Ninth Circuit distinction of 

Sternberg, when the creditor made a conditional offer to settle, without 

194. In re Dawson, 390 F.3d 1139, 1149 (9th Cir. 2004). See also Lodge, 750 F.3d at 

1271 (similar three-part test).

195. See America’s Servicing Co. v. Schwartz-Tallard, 438 B.R. 313 (D. Nev. 2010), 

aff’d, 765 F.3d 1096 (9th Cir. 2014) ($20,000 emotional distress damages).

196. 595 F.3d 937 (9th Cir.), cert. denied, 131 S. Ct. 180 (2010).

197. See In re Pace, 67 F.3d 187 (9th Cir. 1995) (discussing whether trustee was “individual” entitled to § 362(k) damages).

198. See In re Thompson, 426 B.R. 759 (Bankr. N.D. Ill. 2010).

199. See Young v. Repine (In re Repine), 536 F.3d 512 (5th Cir. 2008) (statute didn’t 

require prevailing party to show fees had actually been paid).

200. Schwartz-Tallard v. America’s Servicing Co. (In re Schwartz-Tallard), 765 F.3d 

1096 (9th Cir. 2014) (distinguishing Sternberg).
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44

admitting its stay violation, the debtor was entitled to attorney fees as 

actual damages for continued litigation to remedy the stay violation.

201

The statute also provides, “in appropriate circumstances,” for recovery of punitive damages. The Fifth Circuit required a showing of “egregious conduct” to justify punitive damages, and that is a typical expression of the requirement.202 The facts of each violation and the nature of 

the willfulness, as well as the extent to which it was “egregious,” are all 

factors in the punitive damage equation.203

Government entities may violate the stay and be subject to damages, 

since § 106(a) abrogates sovereign immunity as to § 362 compliance.204

Under § 106(a)(3), however, this abrogation does not permit punitive 

damages against a governmental unit.205

2.7.8 Effect of stay relief on eligibility to file bankruptcy

Section 109(g) provides that an individual who has been a debtor in a 

case pending within the 180 days is not eligible to file another bankruptcy

case under two circumstances: (1) The prior case was dismissed for the 

debtor’s willful failure to abide by a court order or to appear in court in 

prosecution of the case;206 or (2) The debtor requested and received voluntary dismissal of the prior case after a motion for relief from the auto201. Snowden v. Check Into Cash of Wash., Inc. (In re Snowden), 69 F.3d 651 (9th 

Cir. 2014).

202. Repine, 536 F.3d 512. See also In re Knaus, 889 F.2d 77 (8th Cir. 1989).

203. See, e.g., Credit Nation Lending Servs., LLC v. Nettles, 489 B.R. 239 (N.D. Ala. 

2013) (punitive damages were appropriate for refusal to return repossessed vehicle, although only actual damages were debtor’s attorney fees).

204. But see Fla. Dep’t of Rev. v. Diaz (In re Diaz), 647 F.3d 1073 (11th Cir. 2011) 

(discussing sovereign immunity as to a state governmental entity when debtor did not 

prosecute stay violation until four years after discharge).

205. See, e.g., In re Griffin, 415 B.R. 64 (Bankr. N.D.N.Y. 2009). See also Harchar v. 

United States (In re Harchar), 694 F.3d 639 (6th Cir. 2012) (IRS didn’t waive sovereign 

immunity under § 106(b) by filing proof of claim for tax years other than for year of refund in dispute).

206. See, e.g., Allen v. Wayside Transp. Corp. (In re Allen), No. MB 00-115, 2001 WL 

36381911 (B.A.P. 1st Cir. June 15, 2001) (subsequent case properly dismissed when debtor had failed to appear for § 341 meeting of creditors in prior case). 
Part 2: Commencement of Case and Automatic Stay

45

matic stay was filed.207 The second condition has resulted in some disagreement among courts as to whether the statute is to be applied literally 

or whether the court may consider the relevance of the stay relief motion

to the new bankruptcy filing. In Rivera v. Matos (In re Rivera),

208 the 

court reviewed three predominant views taken by various courts on 

§ 109(g)(2): a strict or mandatory application whenever the voluntary 

dismissal occurred after a stay relief motion was filed; an equitable or discretionary application; and a causal connection view. Another court, in 

In re Richter,

209 applied a fourth approach, finding that it was relevant 

whether the stay relief motion was actually pending and unresolved in the 

prior case when the debtor moved to voluntarily dismiss. Under the 

causal connection approach, the court might consider the relationship 

between the prior stay relief request and the new bankruptcy, for example, to determine if the creditor requesting the relief would be prejudiced 

by the new case filing.210 Of course, there is authority that § 109(g)(2) 

must be applied literally.211

207. 11 U.S.C. § 109(g)(1) & (2).

208. 494 B.R. 101 (B.A.P. 1st Cir. 2013).

209. No. 10-01260, 2010 WL 4272915 (Bankr. N.D. Iowa Oct. 22, 2010).

210. See, e.g., In re Payton, 481 B.R. 460 (Bankr. N.D. Ill. 2012); In re Durham, 461 

B.R. 139 (Bankr. D. Mass. 2011).

211. See, e.g., Moran v. Frisard (In re Ulmer), 19 F.3d 234 (5th Cir. 1994); In re Andersson, 209 B.R. 76 (B.A.P. 6th Cir. 1997). See also Ned W. Waxman, Judicial Follies: 

Ignoring the Plain Meaning of Bankruptcy Code § 109(g)(2), 48 Ariz. L. Rev. 149, 152–57 

(2006).

47

~ part 3 ~

bankruptcy estate and exemptions

A summary of principles of the bankruptcy estate includes:

• The bankruptcy estate broadly includes all legal or equitable interests held by a debtor in property. § 541(a)

• Property that is not included in the estate is described in § 541(b).

• Although some property may be in possession of a third party, it 

may be subject to recovery by the estate, through turnover or avoidance. §§ 542–550

• Certain property may be exempt from the bankruptcy estate under 

either § 522 of the Bankruptcy Code or applicable state law.

A significant occurrence with the commencement of a bankruptcy case is 

the immediate creation of a bankruptcy estate, broadly consisting of all of 

the debtor’s property rights in real and personal property, subject to the 

exceptions in § 541(b). The Code does not require that the debtor have 

possession of property in order for it to be brought into the estate, since 

§ 541(a) states that the estate comprises property “wherever located or by 

whomever held.”212 This basic concept illustrates why property, such as a 

vehicle, that has been repossessed before the bankruptcy filing is property 

of the estate, subject to turnover to the debtor or trustee,213 assuming that 

the debtor’s interest in the property has not been fully terminated under 

applicable law. The Supreme Court underscored this concept in United 

States v. Whiting Pools, Inc.,

214 recognizing that property in the hands of a 

creditor at the time of a bankruptcy filing may be property of the estate. 

This concept works in tandem with the automatic stay, under which a 

creditor may violate the stay by refusing to turn over repossessed proper212. 11 U.S.C. § 541(a).

213. See id. §§ 542 and 543 for turnover, discussed infra § 3.3.

214. 462 U.S. 198 (1983).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

48

ty.215 The debtor’s interest in property is the focus, and except for what 

the Code prevents from coming in, the estate includes the debtor’s “legal 

or equitable interests.”216

Another characteristic underlying the bankruptcy estate is that, although federal law ultimately determines the estate’s property, bankruptcy 

courts often look to nonbankruptcy law for purposes of a debtor’s interest in property, a concept also recognized by the Supreme Court in Butner v. United States.217 Examples of relevant state law include the Uniform 

Commercial Code and state statutes that fix a time when a debtor no 

longer has a right to redeem property that has been repossessed or foreclosed.218

3.1 Inclusions in estate property

Under § 541(a), the bankruptcy estate includes: (1) all legal or equitable 

interests of the debtor as of case commencement (subject to § 541(d)’s 

provision that if the debtor holds only the legal interest, that is all that 

comes into the estate); (2) all interests of the debtor and debtor’s spouse 

(whether a joint filing or not) in community property (subject to exceptions reviewed below); (3) interests in property that the trustee may recover, and property preserved for benefit of creditors; (4) certain interests 

that the debtor acquires within 180 days after the bankruptcy filing; 

(5) proceeds, profits, and other such additions to property of the estate; 

and (6) interests that the estate itself acquires after case commencement.

Community property is determined by the law of a debtor’s applicable state. In community property jurisdictions, § 541(a)(2) includes within the bankruptcy estate community property in which the debtor has 

sole, equal, or joint management and control, or property that is liable 

for a claim against the debtor, or against the debtor’s interest in the 

215. See, e.g., Weber v. SEFCU (In re Weber), 719 F.3d 72 (2d Cir. 2013); Thompson 

v. GMAC, 566 F.3d 699 (7th Cir. 2009). Automatic stay is discussed supra Part 2.

216. 11 U.S.C. § 541(a)(1).

217. 440 U.S. 48 (1979).

218. See, e.g., Weber, 719 F.3d 72 (under New York law, debtor had equitable interest 

in repossessed vehicle, with right to redeem, which became property of Chapter 13 estate).
Part 3: Bankruptcy Estate and Exemptions

49

community property. The Code distinguishes tenancy by entirety and 

joint tenancy property from community property. In states recognizing 

tenancy by entirety or joint tenancy, the debtor’s interest in such property is exempt, to the extent that the applicable nonbankruptcy law recognizes it as exempt from process.219

Section 541(a)(3) and (4) recognize that if a bankruptcy trustee recovers property under one of the recovery, avoidance, or preservation 

powers,220 that recovery belongs to the bankruptcy estate. This comes into 

play often. For example, if the trustee avoids an unperfected lien that 

would be prior to other liens, assuming it were valid, the avoided lien 

does not improve the position of the junior liens; instead, its position is 

preserved for the benefit of the estate.221

When a debtor files bankruptcy, the estate is entitled to receive certain interests to which the debtor is entitled at that time, or it becomes 

entitled within 180 days from the filing date. Section 541(a)(5) includes 

within that description a bequest, devise, or inheritance; interests resulting from a property settlement agreement with the debtor’s spouse, or 

from a divorce decree; and interests as a beneficiary of a life insurance 

policy or death benefit plan. Some of the issues presented by these provisions include whether the debtor may disclaim an inheritance, preventing 

it from becoming property of the estate,222 and whether there is a distinction made for property passing to the debtor, not by inheritance, but by a 

“payable on death account” or “death deed.”223 Section 1306(a) may expand the 180-day time, including within the Chapter 13 bankruptcy es219. 11 U.S.C. § 522(b)(3)(B).

220. See id. §§ 329(b), 363(n), 543, 510(c), 547, 548, 550, 551, 553, & 723. 

221. 11 U.S.C. § 551. See, e.g., In re Messina, 687 F.3d 74 (3d Cir. 2012) (trustee’s 

avoidance of junior lien was for benefit of estate, priming debtors’ exemption claim to 

sale proceeds). But see Degiacomo v. Traverse (In re Traverse), 753 F.3d 19 (1st Cir. 2014) 

(although trustee could avoid unperfected mortgage, preservation of lien yielded no benefit to estate).

222. See, e.g., In re Chenoweth, 3 F.3d 1111 (7th Cir. 1993) (disclaimer could be set 

aside). See also Stephen E. Parker, Can Debtors Disclaim Inheritances to the Detriment of 

Their Creditors?, 25 Loy. U. Chi. L.J. 31 (1993).

223. See In re Hall, 441 B.R. 680 (B.A.P. 10th Cir. 2009) (such acquisitions didn’t 

become property of estate under § 541(a)(5)).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

50

tate more inheritances and other postpetition acquisitions. Although this 

is the majority view, including that held by the Fourth Circuit,224 there is 

a split of authority.

225

Although § 541(a)(6) includes postpetition proceeds that accrue 

from property of the estate, in Chapter 7, postpetition “earnings from 

services performed by an individual debtor” are not included.226 Section 

1306 brings such postpetition earnings into the estate, at least to the extent necessary to fund the Chapter 13 plan.

3.2 Exclusions from estate

Although property is broadly included within the estate, there are exclusions, which are set forth in § 541(b). If the debtor actually has no interest—legal or equitable—in property, for example, because the debtor’s 

interest had been irrevocably terminated, it would not come into the estate under § 541(a)(1).227 Under § 541(b)(1), if the debtor’s interest in 

property is limited to a power that can be exercised solely for the benefit 

of another, that interest does not become property of the estate. Lease 

interests in nonresidential real property that have terminated prebankruptcy do not come into the estate, an exclusion that would not apply 

typically in consumer cases.228

Pursuant to § 541(b)(5) and (6),229 the bankruptcy estate does not 

include funds placed in certain educational retirement accounts or tui224. See, e.g., Carroll v. Logan, 735 F.3d 147 (4th Cir. 2013) (§ 1306(a) included in

estate inheritance received more than 180 days after petition filing).

225. See, e.g., Dale v. Maney (In re Dale), 505 B.R. 8 (B.A.P. 9th Cir. 2014) (agreeing 

with Carroll); In re Roberts, 514 B.R. 358 (Bankr. E.D.N.Y. 2014) (adopting majority 

view). Accord In re Tinney, No. 07-42020-JJR13, 2012 WL 2742457 (Bankr. N.D. Ala. July 

9, 2012). Contra In re McAllister, 510 B.R. 409 (Bankr. N.D. Ga. 2014) (discussing conflicting authority and disagreeing with Carroll).

226. 11 U.S.C. § 541(a)(6).

227. See, e.g., In re Graves, 609 F.3d 1153 (10th Cir. 2010), cert. denied, 131 S. Ct. 906 

(2011) (debtor’s prepetition tax refund had been applied to other tax obligation).

228. 11 U.S.C. § 541(b)(2). Sections 541(b)(3) and (4) also would not apply in the 

typical consumer case.

229. See also id. § 541(e) for definitions related to § 541(b)(5) and (6); and see 

§ 521(c) for debtor’s obligation to disclose records of such accounts.
Part 3: Bankruptcy Estate and Exemptions

51

tion credit accounts. Section 541(b)(7) also excludes from the estate 

funds withheld from wages by a debtor’s employer when the withholding 

is for contribution to described tax-deferred retirement accounts, such as 

Employee Retirement Income Security Act (ERISA)230 benefit plans and 

others recognized by the Internal Revenue Service.231 Only those contributions being withheld at the time of the bankruptcy filing may be 

shielded by § 541(b)(7), according to Seafort v. Burden (In re Seafort).

232

In Seafort, the issue was whether a Chapter 13 debtor could continue to 

withhold from wages contributions to a 401(k) retirement account, after 

the debtor had repaid an existing loan from that account. The Sixth Circuit, reading §§ 541(a), 541(b)(7), and 1306 together, held that the debtor could not, since postpetition earnings were disposable income required to fund the plan. The split of authority on this issue is reviewed in 

Parks v. Drummond (In re Parks),

233 a Ninth Circuit Bankruptcy Appellate 

Panel opinion, agreeing with Seafort.

Section 541(b)(8) excludes described pawned and pledged property 

from the estate. In addition to the § 541(b) exclusions, § 541(c) recognizes the validity of such agreements and instruments as spendthrift trusts 

that are valid under applicable nonbankruptcy law. If the debtor has only 

a beneficial interest in a trust with a restriction on transfer, and that trust 

is enforceable under applicable law, § 541(c)(2) continues the nonbankruptcy protection of a beneficiary’s interest in that trust by insulating it 

from inclusion in the bankruptcy estate. Not surprisingly, this can be a 

source of litigation in the bankruptcy court, which may be asked to decide if the alleged trust is recognized by the applicable law.234

Section 541(c)(2)’s protections extend to retirement funds that are 

held in trust and have transfer restrictions under federal law, such as 

230. 29 U.S.C. §§ 1001–1003.

231. For discussion of these exclusions, see Hon. William H. Brown, Lawrence R. 

Ahern III & Nancy Fraas MacLean, Bankruptcy Exemption Manual, ch. 2 (annual editions) 

[hereinafter Bankruptcy Exemption Manual].

232. 669 F.3d 662 (6th Cir. 2012).

233. 475 B.R. 703 (B.A.P. 9th Cir. 2012).

234. See, e.g., Wetzel v. Regions Bank, 649 F.3d 831 (8th Cir. 2011) (debtor’s beneficial interest in testamentary trust, containing spendthrift provision valid under Arkansas 

law, did not become property of estate).
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

52

those under ERISA235 and the Civil Service Retirement Act.236 Individual 

retirement accounts may not be excluded under § 541(c)(2), but are subject to exemption under § 522(b) and (d),237 discussed infra.

3.3 Turnover

Sections 542 and 543 provide for turnover of property belonging to the 

bankruptcy estate, a remedy commonly sought by debtors, especially in 

Chapter 13, to recover property that was repossessed just before the 

bankruptcy filing. Assuming that the debtor’s interest in the repossessed 

property has not been terminated with finality under applicable nonbankruptcy law, the failure of a repossessing creditor to promptly return 

the property may be a stay violation.238 The secured creditor may move 

for stay relief and seek adequate protection, under §§ 362(d) and 361, but 

it is normally best for the creditor to return the repossessed property and 

then move for relief. The trustee may also seek turnover,239 although 

there are limits on the scope of §§ 542 and 543.240

235. Patterson v. Shumate, 504 U.S. 753 (1992).

236. 5 U.S.C. §§ 8331–8351. See also Whetzel v. Alderson, 32 F.3d 1302 (8th Cir. 

1994) (Civil Service Retirement Act restricted transfer). See Bankruptcy Exemption Manual, supra note 231, ch. 2, for discussion of spendthrift trusts and federal-law exclusions.

237. See Rousey v. Jacoway, 544 U.S. 320 (2005) (holding IRA exempt under 

§ 522(d)(1)(E)). The Code was subsequently amended to add exemptions under 

§ 522(b)(3)(C) and (d)(12).

238. See, e.g., Weber v. SEFCU (In re Weber), 719 F.3d 72 (2d Cir. 2013); Thompson 

v. GMAC, 566 F.3d 699 (7th Cir. 2009); and see discussion of automatic stay supra Part 2.

239. See, e.g., Shapiro v. Henson, 739 F.3d 1198 (9th Cir. 2014) (concluding plain 

language of § 542 does not restrict turnover to property still in possession of defendant; 

disagreeing with In re Pyatt, 486 F.3d 423 (8th Cir. 2007)); In re Ruiz, 455 B.R. 745 (B.A.P. 

10th Cir. 2011) (trustee obtained turnover of money in Chapter 7 debtor’s checking account).

240. See, e.g., Lovald v. Falzerano (In re Falzerano), 686 F.3d 885 (8th Cir. 2012) 

(trustee couldn’t obtain debts owed to Chapter 7 debtor by turnover, based on theory of 

unjust enrichment).
Part 3: Bankruptcy Estate and Exemptions

53

3.4 Avoidance recovery

Property of the estate includes recoveries by a trustee under the various 

avoidance sections of the Code, including preferences,241 fraudulent 

transfers,242 and unauthorized postpetition transfers.243 Section 550 addresses recovery from and liability of transferees of avoided transfers.244

Section 551 preserves avoided transfers for the benefit of the bankruptcy 

estate. The debtor, more commonly in Chapter 13 than 7, has some opportunity to exempt recoveries by the trustee245 and to avoid transfers, to 

the extent the trustee declines to pursue avoidance if the subject transfer 

was not voluntarily made by the debtor and if the debtor is able to claim 

the avoided transfer of a property interest as exempt.246 The threshold to 

the debtor’s use of avoidance power typically revolves around the question of whether the transfer at issue was voluntary. For example, when 

the debtor voluntarily transferred a security interest in a vehicle, the trustee was successful in objecting to the debtor’s use of § 522(g) to claim an 

exemption in the vehicle.247 Although the security interest was not perfected by the creditor, and the trustee avoided that transfer, the transfer 

by the debtor was nevertheless voluntary.

3.5 Judicial estoppel

The effect of a debtor’s failure to schedule or otherwise disclose a cause of 

action is a common issue in the bankruptcy and appellate courts. There is 

a wealth of reported decisions in which courts have applied judicial estoppel, preventing the debtor or former debtor from pursuing a cause of 

241. See 11 U.S.C. § 547.

242. See id. § 548.

243. See id. § 549.

244. See, e.g., In re Allen, No. 13-3543, 2014 WL 267211 (3d Cir. Sept. 26, 2014) 

(holding district court erred in applying narrow definition of “recover” under § 550, and 

discussing split among Fifth, Second, and Tenth Circuits on whether “recovery” of funds 

is required before they can be considered property of estate).

245. See 11 U.S.C. § 522(g).

246. See id. § 522(h).

247. Russell v. Kuhnel (In re Kuhnel), 495 F.3d 1177 (10th Cir. 2007).
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54

action that was not scheduled in the bankruptcy case.248 The theory is that 

the debtor is obligated to schedule and disclose all assets, including causes 

of action; the debtor’s failure to disclose is equivalent to a representation 

that no cause of action exists. For example, in Chapter 13, courts have 

construed the debtor’s failure to schedule a cause of action, in conjunction with obtaining a confirmation, to be reliance by the bankruptcy 

court on the nondisclosure in affirming the plan, thereby justifying application of judicial estoppel.249 The duty to disclose is part of the § 521 duty 

to schedule all assets, and it is interpreted as a continuing duty, especially 

in Chapter 13 cases that may be in active plans for up to five years.250 Exceptions have been found, however: when the cause of action belonged to 

the bankruptcy estate; when the failure to disclose was not the debtor’s 

fault;251 and when the “innocent trustee” had the opportunity to pursue 

the undisclosed action for the benefit of creditors.252 The debtor’s failure 

to schedule a cause of action is harmful—not simply to the debtor but to 

the unsecured creditors who would potentially benefit—and if the cause 

of action belongs to the bankruptcy estate, as it would if it arose prepetition (and possibly postpetition in Chapter 13), the trustee perhaps should 

not be prejudiced by the debtor’s nondisclosure.

3.6 Exemptions

The basic concept behind exemptions, whether bankruptcy or state law 

controls, is to provide some level of protection for debtors. As one court 

248. See, e.g., Kimberlin v. Dollar Gen. Corp., 520 F. App’x 312 (6th Cir. 2013); 

Jones v. United States, 476 F. App’x 815 (11th Cir. 2012); White v. Wyndham Vacation 

Ownership, Inc., 617 F.3d 472 (6th Cir. 2010); Moses v. Howard Univ. Hosp., 606 F.3d 

789 (D.C. Cir. 2010). For application of judicial estoppel by nonbankruptcy courts, based 

on a debtor’s failure to schedule the cause of action, see Hon. William H. Brown, Lundy 

Carpenter & Donna T. Snow, Debtors’ Counsel Beware: Use of the Doctrine of Judicial Estoppel by Nonbankruptcy Forums, 75 Am. Bankr. L.J. 197 (Spring 2001).

249. See, e.g., Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010).

250. See, e.g., Rainey v. UPS, Inc., 466 F. App’x 542 (7th Cir. 2012).

251. See, e.g., Javery v. Lucent Techs., Inc., 741 F.3d 686 (6th Cir. 2014) (failure to 

schedule was debtor’s attorney’s mistake).

252. See, e.g., Stephenson v. Malloy, 700 F.3d 265 (6th Cir. 2012); Reed v. City of 

Arlington, 650 F.3d 571 (5th Cir. 2011).
Part 3: Bankruptcy Estate and Exemptions

55

expressed it, “the historical purpose of exemptions laws has been to protect a debtor from his creditors, to provide him with the basic necessities 

of life so that even if his creditors levy on all of his nonexempt property, 

the debtor will not be left destitute and a public charge.”253 The applicable 

exemptions for specific assets and their dollar limits may or may not 

serve this purpose in today’s economy. A review of state exemptions reveals that some states have amended their laws within recent years, increasing exemption amounts for various types of property, including 

homesteads, while other states still have rather limited amounts or scope 

of available exemptions.254 The federal homestead and other exemption 

amounts are listed in the Bankruptcy Code, § 522(d).255

Exemptions are frequent sources of litigation in the bankruptcy and 

appellate courts. This is not surprising because if a debtor succeeds in 

claiming specific property as exempt, that property is protected from 

administration by the trustee or from collection processes by creditors. In 

some states, debtors in bankruptcy have choices between exemptions under the Bankruptcy Code and exemptions under their applicable state 

law. In other states, debtors are limited to the applicable state-law exemptions. Consequently, the Bankruptcy Code is not the only governing authority; state laws may also come into play.256

“[N]o property can be exempted . . . unless it first falls within the 

bankruptcy estate.”257 Section 522 describes the method for first deciding 

which exemptions are available to a particular debtor, and this varies de253. In re Krebs, 527 F.3d 82, 85 (3d Cir. 2008) (quoting H.R. Rep. No. 95-595, at 

126 (1977)).

254. See, e.g., Bulan v. Calloway (In re 1256 Hertel Ave. Assocs., LLC), 761 F.3d 252 

(2d Cir. 2014) (New York’s increased homestead applied to debtor’s filing bankruptcy 

after amendment’s effective date); In re Kyle, 510 B.R. 804 (Bankr. S.D. Ohio 2014) 

(debtor entitled to Ohio homestead increased one week before bankruptcy filing). For a 

summary of each state’s exemptions, see appendices in Bankruptcy Exemption Manual, 

supra note 231.

255. See 11 U.S.C. § 104. The exemption amounts in § 522(d) are subject to automatic increases every three years based on changes in the Consumer Price Index, with the 

next adjustment scheduled for April 1, 2016.

256. See Bankruptcy Exemption Manual, supra note 231, for in-depth discussion of 

exemptions and related issues.

257. Owen v. Owen, 500 U.S. 305, 308 (1991).
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pending on the state in which the debtor is domiciled when filing bankruptcy, a different question from the venue of the case. For example, a 

debtor may properly file a bankruptcy case in the Western District of 

Tennessee, where the debtor has had a residence or domicile for at least 

180 days,258 but be unable to claim Tennessee exemptions because of 

§ 522(b)’s requirements.

Explaining this difference in venue and exemption availability requires looking at how § 522(b) is structured. As background, in the 1978 

Code, which still forms the foundation for the current Bankruptcy Code, 

Congress created an opt-out for each state, allowing a state legislature to 

decide if debtors domiciled in that state who filed for bankruptcy relief

could claim exemptions under the Bankruptcy Code or would be restricted to using the state’s exemptions. If it wished, a state could allow its 

domiciliaries to choose between the two exemption schemes, or it could 

eliminate that choice. Notably, the Supreme Court held that the earlier 

Bankruptcy Act of 1898, which relied on using exemptions for the state in 

which the “bankrupt” had been domiciled for six months, was constitutional, and that the variation in available exemptions did not violate the 

Uniformity Clause.259 Subsequent constitutional attacks on the 1978 optout have failed.260

BAPCPA made the opt-out more complex by changing the time for 

measuring which state exemptions would be available, in an attempt to 

deter debtors from moving from one state to another with more favorable exemptions just before filing bankruptcy. Under § 522(b), as amended in 2005, the debtor is first given a choice between claiming exemptions 

under § 522(d) or under state law applicable on the date of filing bankruptcy.261 Then, the Code states that the choice of § 522(d) exemptions is 

available “unless the State law that is applicable to the debtor . . . specifically does not so authorize”262—in other words, the state has opted out of 

258. 28 U.S.C. § 1408(1).

259. Hanover Nat’l Bank v. Moyses, 186 U.S. 181 (1902).

260. See, e.g., In re Sullivan, 680 F.2d 1131 (7th Cir. 1982); Rhodes v. Stewart, 705 

F.2d 159 (6th Cir. 1983). The history of congressional adoption of this opt-out procedure 

is interesting. See Bankruptcy Exemption Manual, supra note 231, ch. 4.

261. 11 U.S.C. § 522(b)(1).

262. Id. § 522(b)(2).
Part 3: Bankruptcy Estate and Exemptions

57

§ 522(d). The next hurdle for debtors is to determine which state’s laws 

are applicable.

Assuming that a debtor would like or is required to claim state exemptions under § 522(b)(3)(A), the appropriate state is the one in which 

the debtor was domiciled for “the 730 days immediately preceding the 

date of the filing of the petition,” but if the debtor was not domiciled in a 

particular state for the full 730 days, then we look to “the place in which 

the debtor’s domicile was located for 180 days immediately preceding the 

730-day period, or for a longer period of such 180-day period than in any 

other place.”263 The bottom line is that, in each bankruptcy case, the 

debtor, trustee, parties in interest, and perhaps the court, may have to 

determine where the debtor was domiciled for two years—easy if the 

debtor was, in fact, in one place that long; but many debtors move more 

frequently. Remember that the venue for the case is still a six-month 

window, while exemption is governed by a different time. If a debtor has 

changed domicile within the preceding 730 days, looking back an additional 180 days is required. Why is this complicated? Counting days may 

be easy, but then you run into questions of whether the state law that 

ends up being applicable under that calculation would permit the debtor, 

who no longer resides or is domiciled in that state, to benefit from that 

state’s exemption laws.

For example, a debtor properly filed a consumer case in the District 

of Colorado, where the debtor had been domiciled for more than six 

months; but the debtor had moved within the 730 days before filing in 

the District of Colorado, and for the greater part of the 180 days before 

that 730 days, the debtor was domiciled in Texas. The debtor owns a 

home in Colorado and has not owned a home in Texas for two years.

Colorado has opted out, which means that its residents or domiciliaries 

may not use the § 522(d) exemptions.264 This debtor would like to claim 

exemptions. Would Texas law recognize that this debtor, who has not 

lived there for a couple of years, could still benefit from Texas exemptions? Texas has an unlimited homestead exemption, meaning that, if 

263. Id. § 522(b)(3)(A).

264. Colo. Rev. Stat. § 13-54-107.
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available, any equity above valid security claims on the home is exempt.265

Texas is not an opt-out state, so its debtors may freely choose between 

whichever exemption scheme is more favorable, the § 522(d) or state.

There are at least two questions: Are Texas exemptions available generally 

to nonresidents? and Is Texas’s favorable homestead, or other Texas exemptions, available for use on property located in Colorado? As to the 

first question, it appears that Texas exemptions are generally not restricted only to its residents. As to the second question, Texas property law 

would limit the homestead to property “in this state.”266 There may be a 

different answer as to availability of exemptions other than the homestead. For example, a state’s exemptions on personal property may not be 

restricted to its residents or domiciliaries.267 The use of a state’s exemptions outside that state is referred to as extraterritoriality, and state laws, 

if they exist, simply vary on that effect,268 as well as on whether a nonresident or nondomiciliary may use that state’s exemptions, regardless of 

location of the relevant property. It is no surprise, therefore, that since 

2005 a considerable amount of litigation has ensued—reaching appellate 

levels—as to which state’s exemptions are applicable, or if any are available.269

A question related to the transient debtor is whether the opt-out 

from the applicable state controls. The Fifth Circuit considered the case 

of a debtor who had moved from Florida to Texas within the 730 days 

before filing bankruptcy in Texas, a proper venue for the case. The debtor 

was not eligible for Texas exemptions, having been domiciled there for 

less than a full 730 days. The debtor was therefore required under 

§ 522(b) to look to Florida for exemptions, but Florida’s exemptions apply only to its residents, and Florida is an opt-out state. Since the debtor 

265. Tex. Const. art. XVI, §§ 50, 51; Tex. Prop. Code §§ 41.001–41.002.

266. Tex. Prop. Code § 41.002(d).

267. See Bankruptcy Exemption Manual, supra note 231, ch. 4, for summary of each 

state’s exemption restrictions on residency or domicile.

268. See In re Roberts, 450 B.R. 159 (N.D. Iowa 2011), as an example of a state’s 

homestead, here Iowa’s, being available as to property located in another state, there California.

269. See, e.g., Camp v. Ingalls (In re Camp), 631 F.3d 757 (5th Cir. 2011); In re Long, 

470 B.R. 186 (Bankr. D. Kan. 2012).
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is no longer a resident of Florida, Florida’s exemptions are not available, 

and its opt-out statute refers to “residents of the state.”270 Under these 

facts, the Fifth Circuit, in Camp v. Ingalls (In re Camp),271 applied the fallback provision in § 522(b). This provision states that if the domiciliary 

requirements resulted in the debtor not having state exemptions available, the debtor may use the § 522(d) exemptions. Even though this debtor was not governed by Texas exemptions, which permit choice between 

state exemptions or § 522(d), the debtor could use § 522(d); whereas, if 

Florida law had controlled, the debtor would not have had that exemption available. This savings provision, in a sentence at the end of § 522(b), 

provides that “[i]f the effect of the domiciliary requirement . . . is to render the debtor ineligible for any exemption, the debtor may elect to exempt property that is specified under subsection (d).”

Section 522(b)(1) provides that if there are joint debtors in the case, 

one debtor may not elect to use state exemptions and the other elect the 

§ 522(d) exemptions. Each of the joint debtors is required to elect the

same source of exemptions. If they cannot agree, they are “deemed to 

elect” § 522(d)—unless, of course, the applicable state has opted out of 

§ 522(d). Under the look-back for domicile purposes, it is possible that 

the two joint filers were not both domiciled in the same state for 730 days 

or even the prior 180-day period. In In re Connor,

272 the joint filers (husband and wife) lacked common domicile for the look-back period. The 

court decided that the Code mandated the exemption source available to 

each debtor based on his and her domicile. Mr. Connor had to use North 

Carolina’s exemptions. Mrs. Connor, however, was ineligible for exemptions from both North Carolina and her prior state, Florida, which required residency. The court concluded that Mrs. Connor was not “electing” a different choice: she had only the § 522(d) exemptions available 

under the § 522(b) savings provision (described above).

A twist in the Code comes into play if the debtor is able to, and does, 

choose state exemptions under § 522(b)(3). That debtor may also claim 

nonbankruptcy federal exemptions (i.e., under federal statutes other than 

270. Fla. Stat. Ann. § 222.20 (1979).

271. 631 F.3d 757 (5th Cir. 2011).

272. 419 B.R. 304 (Bankr. E.D.N.C. 2009).
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§ 522(d)), but if the debtor chooses the § 522(d) exemptions, § 522(b)(2) 

appears to limit the exemptions to those under § 522(d). At least one 

court has construed this literally to mean that a § 522(d) exemption 

debtor may not also benefit from the variety of federal exemptions that 

are outside the Bankruptcy Code.273

The debtor makes her exemption claim on Schedule C, an Official 

Form that is part of the required schedules to be filed with, or shortly after, a petition filing.274 Generally, exemptions are determined as of the 

petition filing date,275 and each joint debtor is entitled to her exemptions.276

3.7 Objections to exemption claims

The procedure and general timing requirements for objecting to a debtor’s exemption claims are set out in Bankruptcy Rule 4003(b), which 

provides that a party in interest may file an objection within thirty days 

after conclusion of the § 341 meeting of creditors or within thirty days 

after any amendment to Schedule C. The court may, for cause, extend 

that time, provided that a motion for extension is filed before the original 

time expired. Several issues have arisen about this timing, and the Supreme Court, in Taylor v. Freeland & Kronz,

277 interpreted the Rule strictly, holding that a trustee who did not object within the thirty-day window was barred. Taylor involved a debtor’s claim of exemption in a potential employment discrimination action, and she valued the cause of 

action on Schedule C as “unknown.” The opinion stands for the principle 

that the trustee was put on notice by the debtor’s exemption claim and 

value of “unknown,” triggering a requirement to object.

273. In re Schena, 439 B.R. 776 (Bankr. D.N.M. 2010). See also Bankruptcy Exemption Manual, supra note 231, ch. 5, for discussion of nonbankruptcy federal exemptions.

274. See 11 U.S.C. § 522(l), providing that the debtor “shall file a list of property that 

the debtor claims as exempt,” but if the debtor does not, a dependent of the debtor may 

file such a list.

275. See, e.g., Wolfe v. Jacobson (In re Jacobson), 676 F.3d 1193 (9th Cir. 2012).

276. 11 U.S.C. § 522(m). See Dykstra Exterior, Inc. v. Nestlen (In re Nestlen), 441 

B.R. 135 (B.A.P. 10th Cir. 2010) (under § 522(m) each joint debtor had homestead exemption, essentially doubling amount available).

277. 503 U.S. 638 (1992).
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In Schwab v. Reilly,

278 the Supreme Court held that when the debtor 

claims exemption under a statute—in this case, § 522(d)(5) & (6)—that 

allows exemption only in the debtor’s “interest” in an asset, rather than 

the asset itself, and the statute has a dollar cap on amount, the trustee is 

not required to object to an exemption that falls within the statute’s cap.

In Schwab, the debtor had claimed dollar exemptions in cooking equipment, but the trustee was able to sell the equipment for more than the 

exemption amounts, resulting in payment to the debtor for her exemption claims and a balance available for the bankruptcy estate. The debtor, 

relying on Taylor, argued that the trustee’s failure to timely object was a 

bar. The Court distinguished the case at hand from its decision in Taylor, 

on the basis that the exemption at issue in Schwab was within the dollar 

amounts in the statute, and the statute did not allow exemption of the 

asset itself, only the debtor’s interest in that asset.

Subsequent to Schwab, other courts have explained that a debtor’s 

attempts to claim the entire asset—by means such as stating on Schedule 

C that the exemption is for the full market value or 100% of the asset’s 

value—may trigger the need for an objection.279 But when an exemption 

statute—whether § 522(d) or state law—exempts only the debtor’s interest in an asset, an objection may not be required under Rule 4003(b), assuming the dollar amount claimed is within the applicable statutory limits. An example of this occurs in In re Gebhart,280 in which Chapter 7 trustees did not object to debtors’ homestead exemption claims, but the trustees were allowed to sell the homes, paying the allowed exemption 

amounts to debtors, with the appreciated value of the homes, above the 

exemptions, available for distribution to creditors.281

There are some exemptions, both under § 522(d) and applicable state 

laws, that do not refer to the debtor’s “interest” but permit exemption in 

an entire asset, without reference to a dollar cap. For example, 

§ 522(d)(9) exempts “professionally prescribed health aids” without a 

278. 560 U.S. 770 (2010).

279. See, e.g., In re Salazar, 449 B.R. 890 (Bankr. N.D. Tex. 2011).

280. 621 F.3d 1206 (9th Cir. 2010).

281. See also In re Orton, 687 F.3d 612 (3d Cir. 2012) (trustee had benefit of appreciated value of oil and gas leases, with debtor limited to receiving exempt amount).
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dollar limit. For such exemptions, the Schwab analysis would not come 

into play. If a party in interest believed such an exemption was improper, 

an objection would be required.

3.8 Exemption of retirement funds

Certain retirement funds are exempt from creditor claims in bankruptcy

proceedings. The amendments to the Code in 2005 included the addition 

of two specific exemption sections for retirement funds “to the extent 

those funds are in a fund or account that is exempt from taxation under” 

several sections of the Internal Revenue Code (IRC).282 The same exemption appears in § 522(b)(3)(C), making it available to debtors who 

choose or must use state exemptions, and in § 522(d)(12) for debtors 

using the Bankruptcy Code exemptions. The exemption is for federally 

recognized, tax-exempt retirement accounts, such as pension plans under 

IRC § 401, annuity plans under IRC § 403, IRAs under IRC § 408, Roth 

IRAs under IRC § 408A, and plans covered by IRC §§ 414, 457, and 

501(a). Specific restrictions on exemption of these funds—when there is 

a question about favorable IRS rulings on tax exemption—are set forth in 

§ 522(b)(4).283 There is a monetary cap on exemption for IRA accounts, 

currently at $1,245,475, subject to automatic increase on April 1, 2016,

and every three years thereafter.284

There was a question whether an IRA is exempt from the bankruptcy 

estate when the fund was created by one person and then passed by inheritance to a beneficiary. The Fifth and Seventh Circuits had split on the 

issue.

285 Affirming the Seventh Circuit, the Supreme Court held, in Clark 

282. 11 U.S.C. § 522(b)(3)(C) & (d)(12).

283. See Daley v. Mostoller (In re Daley), 717 F.3d 506 (6th Cir. 2013) (discussing 

effect of favorable IRS ruling on account that was not disqualified from tax exemption by 

debtor’s grant of boilerplate lien to brokerage company, when debtor never incurred debt 

related to lien).

284. 11 U.S.C. § 522(n).

285. See Chilton v. Moser, 674 F.3d 486 (5th Cir. 2012) (holding that inheritance did 

not prevent exemption); Mullen v. Hamlin (In re Hamlin), 465 B.R. 863 (B.A.P. 9th Cir. 

2012) (same); In re Nessa, 426 B.R. 312 (B.A.P. 8th Cir. 2010) (same). Cf. In re HeffronClark, 714 F.3d 559 (7th Cir. 2013) (distinguishing spousal inheritances from IRAs inherited from someone other than the debtor’s spouse, with the latter not exempt).
Part 3: Bankruptcy Estate and Exemptions

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v. Rameker,

286 that an inherited IRA is not a “retirement fund” within the 

meaning of § 522(b)(3)(C).287 Rameker’s effect on state-law exemptions—which are often similar to but contain different language from 

§ 522(d)(3)(C)—remains to be seen.

3.9 Tenancy by entirety and joint tenancy exemption

Property held in joint tenancy or tenancy by entirety is exempt from the 

bankruptcy estate under § 522(b)(3)(B), which requires that the debtor 

be using state exemptions, by choice or opt-out. A debtor’s claim of this 

exemption depends on the applicable state law protecting such property 

from process. Such tenancies are not recognized in all states, and there 

will be variations in the scope of the exemption, depending, for example, 

on whether the applicable state law protects both realty and personalty 

titled in one of these tenancies.

288 Issues arise in joint consumer cases as 

to whether both debtors’ property interests are protected under applicable state tenancy law, and the outcome may depend on whether a creditor 

has a claim against only one tenant or against both.289

3.10 Limits on homestead exemptions: § 522(o), (p),

and (q)

BAPCPA added three types of monetary caps on the homestead exemption. The first, § 522(o), addresses perceived abuse when a debtor has

attained value in the homestead by improper means. It applies to homesteads claimed under § 522(b)(3)(A), which means the debtor is using a

state-law homestead exemption. Thus the available exemption amount is 

“reduced to the extent that such value is attributable to any portion of 

286. 134 S. Ct. 2242 (2014), aff’g Heffron-Clark, 714 F.3d 559.

287. Since the language of § 522(d)(12) is identical to the language of 

§ 522(b)(3)(C), the holding implicitly applies to both sections.

288. See, e.g., In re Scioli, No. 13-2762, 2014 WL 2119187 (3d Cir. May 22, 2014) 

(under Delaware law, debtor’s claim of tenancy by entirety ownership of vehicles was 

invalid).

289. See Bankruptcy Exemption Manual, supra note 231, ch. 4, for discussion of cases 

interpreting tenancy by entirety and joint tenancy protection by exemption.
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any property that the debtor disposed of in the 10-year period [before 

filing bankruptcy] with the intent to hinder, delay, or defraud a creditor,” 

assuming that the debtor could not have exempted the disposed property.290 This limitation is directed toward preventing a debtor’s conversion 

of what would have been nonexempt property into an exemptible homestead within the ten years before bankruptcy filing, but it only applies 

when the conversion was done with intent to hinder, delay, or defraud 

creditors. The party objecting to the claimed homestead, seeking to limit 

the amount by § 522(o)’s reduction, bears the burden of proving the 

debtor’s intent, and, in the relatively few times this has come into play 

since 2005, courts have applied traditional fraudulent intent analysis, 

such as looking for “badges” of fraud.291 The Eighth Circuit Bankruptcy 

Appellate Panel concluded that § 522(o) did not really change the prior 

law on fraudulent conversion of nonexempt to exempt assets; it simply 

imposed a ten-year look-back period for that examination.292 Conversion 

of nonexempt to exempt property, in or outside of the ten-year period, is 

not prohibited in the absence of fraudulent intent.293

Converting nonexempt assets to exempt assets as a part of prebankruptcy planning has always been controversial: although not prohibited 

by the Bankruptcy Code, such a conversion is obviously made with the

intent to shield assets from creditors. The line between acceptable and 

fraudulent conversions is cloudy, at best.294 Most consumer debtors file 

bankruptcy on the eve of some event, such as foreclosure, without the 

benefit of prebankruptcy planning—significant conversion of assets to 

gain exemptions is rare.

The second cap, § 522(p), places a monetary cap on the debtor’s “interest” in a homestead that was acquired during a period of 1,215 days before filing bankruptcy. The current cap is $155,675. Section 522(p)’s cap 

applies when a debtor “elects” state exemptions under § 522(b)(3)(A); but 

290. 11 U.S.C. § 522(o).

291. See, e.g., In re Addison, 540 F.3d 805 (8th Cir. 2008).

292. In re Wilmoth, 397 B.R. 915 (B.A.P. 8th Cir. 2008).

293. See In re Willcut, 472 B.R. 88 (B.A.P. 10th Cir. 2012).

294. See Lawrence Ponoroff & Stephen Knippenberg, Debtors Who Convert Their 

Assets on the Eve of Bankruptcy: Villains or Victims of the Fresh Start?, 70 N.Y.U.L. Rev. 235 

(May 1995).
Part 3: Bankruptcy Estate and Exemptions

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some debtors are forced to use the state exemptions because of the opt-out 

provision. Some courts have construed the statute’s inclusion of the word 

“interest” as referral to improvement in equity value in the homestead;

295

but other courts have applied a title theory to the statute—for example, 

when the debtor acquired legal title within the look-back period.296 Notice that § 522 (p) does not require a showing of fraudulent intent.

The third cap, § 522(q), like § 522(p), is a monetary cap, with the 

same dollar amount. Section 522(q) is triggered by one of the statute’s 

designated criminal, fraudulent, or other acts. Included in the acts that 

would affect the limitation on homestead amount are felonies under Title 

18 that would indicate the bankruptcy filing was an abuse of Title 11; violations of federal or state securities law; fraud in a fiduciary capacity or in 

relation to a security transaction; a criminal act; an intentional tort; and 

willful or reckless misconduct leading to serious physical injury or death.

This statute has rarely come into play in reported decisions,297 and most 

of the triggering events would be uncommon in consumer cases.

The caps are subject to automatic cost-of-living adjustment every 

three years (referred to as “bankruptcy dollar adjustments”), with the 

next adjustment scheduled for April 1, 2016.

3.11 Lien avoidance under § 522(f)

A potential and often-used benefit to consumer debtors is § 522(f)(1) to 

“avoid the fixing of a lien on an interest of the debtor in property to the 

extent that such lien impairs an exemption” to which the debtor would 

otherwise be entitled.298 The first subsection (A) of this statute allows 

avoidance of “judicial” liens and is not applicable to other types of liens, 

such as voluntary security interests or statutory liens. Under the wording 

of the statute, avoidance is allowed if the debtor would have been entitled 

to claim exemption in the property, and the lien impairs that exemption 

295. See, e.g., Willcut, 472 B.R. 88.

296. See, e.g., In re Aroesty, 385 B.R. 1 (B.A.P. 1st Cir. 2008). Cf. In re Peake, 480 B.R. 

367 (Bankr. D. Kan. 2012) (distinguishing Aroesty based on state law).

297. See In re Larson, 513 F.3d 325 (1st Cir. 2008) (applying § 522(p) in criminal act 

scenario).

298. 11 U.S.C. § 522(f).
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right. The debtor need not have formally claimed an exemption before 

using § 522(f).299 There is a restriction of avoidance of judicial liens, 

which secure a domestic support obligation that is excepted from discharge under § 523(a)(5) and shielded from avoidance.300

An issue with avoidance of judicial liens relates to the statute’s “fixing” term, which, under Farrey v. Sanderfoot,301 comes into play when the 

debtor acquires an interest in the property, compared to when the lien 

attached. In Farrey, the debtor acquired his interest in a house by award 

from a divorce court, and the spouse acquired a judicial lien at the same 

time. Avoidance of that lien was not permitted under § 522(f) because 

the debtor’s interest was not acquired prior to fixing of the lien. Judicial 

liens in the domestic relations arena are common in consumer cases, and 

the Farrey analysis continues to be a factor.302

Section 522(f)(1)(B) permits lien avoidance of certain consensual, 

but nonpossessory, nonpurchase-money security interests in specific personal property, including household goods, which are defined under 

§ 522(f)(4). Avoidance here is restricted by some monetary limits and by 

use of a statutory formula for calculating the extent to which such a lien 

impairs an exemption.303

3.12 Effect of case conversion on exemption objection

Rule 1019(2)(B) provides that when a case is converted to Chapter 7, a 

new objection period begins, unless “the case was converted . . . more 

than one year after entry of the first order confirming a plan under chapter 11, 12, or 13,” or the case had previously been in Chapter 7, and the 

time for objection had expired in the original Chapter 7 phase.

299. Botkin v. Dupont Cmty. Credit Union, 650 F.3d 396 (4th Cir. 2011).

300. See, e.g., In re Johnson, 445 B.R. 50 (Bankr. D. Mass. 2011).

301. 500 U.S. 291 (1991).

302. See, e.g., McCoy v. Kuiken (In re Kuiken), 484 B.R. 766 (B.A.P. 9th Cir. 2013) 

(construing § 522(f) as requiring debtor’s continuous interest in homestead to avoid judicial lien; conveyance after judgment lien and then reconveyance to debtor defeated avoidance).

303. 11 U.S.C. § 522(f)(2)(A). For cases applying the formula, see, e.g., In re Lehman, 

205 F.3d 1255 (11th Cir. 2000); In re Holland, 151 F.3d 547 (6th Cir. 1998); In re Silveira, 

141 F.3d 34 (1st Cir. 1998).
Part 3: Bankruptcy Estate and Exemptions

67

3.13 Effect of exemptions after discharge

Section 522(c) broadly protects property that was exempt in the bankruptcy case, even after completion of the case and discharge of the debtor, but there are exceptions. Once property is allowed as exempt, to that 

extent the property or exempt interest passes back to the debtor, and 

§ 522(c) states that the exempt interest is not liable for prepetition 

claims.304 The principal statutory exceptions from this general rule that 

are applicable in consumer cases are for (1) debts that are excepted from 

discharge under § 523(a)(1) and (5), which are certain tax and domestic 

support obligations; and (2) secured liens that are not avoided under an 

applicable Code section.305 Section 523(c)(1) provides that the exposure 

of exempt property to debts that are not discharged under § 523(a)(1) or 

(5) is applicable “notwithstanding any provision of applicable nonbankruptcy law to the contrary.”306

3.14 Constitutionality of bankruptcy-specific state 

exemptions

Some states have adopted exemptions that are only available to its residents or domiciliaries who file for bankruptcy relief. Sometimes these

bankruptcy-specific exemptions are more favorable than the same type of 

exemption available to persons not filing bankruptcy. The constitutionality of these laws has been questioned as unfairly benefitting those seeking

bankruptcy protection, but the appellate courts addressing the issue have 

upheld the laws. For example, the Sixth Circuit held that Michigan’s 

homestead exemption—which was more favorable for bankruptcy filers

than for debtors not in bankruptcy—survived constitutional attack.307

The court concluded that the opt-out allowed Michigan to structure its 

304. See, e.g., Davis v. Cox, 356 F.3d 76 (1st Cir. 2004).

305. See 11 U.S.C. § 522(c)(3) and (4) for other exceptions that are not typically 

applicable in consumer cases.

306. For effect of pre-2005 amendment of § 523(c) on Texas homestead exemption, 

see In re Davis, 170 F.3d 475 (5th Cir. 1999).

307. Richardson v. Schafer (In re Schafer), 689 F.3d 601 (6th Cir. 2012), cert. denied, 

133 S. Ct. 1244 (2013).
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exemption laws for bankruptcy purposes, and that the distinction was 

applied uniformly within the state.308

3.15 Surcharge of exemptions

Prior to the Supreme Court’s decision in Law v. Siegel,

309 the circuits were 

split on the issue of whether a debtor’s exempt property may be surcharged to pay the expenses of a trustee. Siegel was a Chapter 7 case in 

which the Ninth Circuit affirmed surcharge against the debtor’s homestead to allow the trustee’s recovery of costs related to the debtor’s misconduct.310 This issue had arisen when the debtor had done something, 

typically in bad faith, such as concealing assets, causing the trustee to 

spend time and expense finding or recovering property for the benefit of 

creditors. The Code does not specify a surcharge remedy, nor do the 

Rules. The Tenth Circuit had held, in In re Scrivner,

311 that the absence of 

a Code provision was fatal to surcharging, even though the debtor had 

failed to comply with an order to turn over to the trustee nonexempt 

property. “Section 105(a) does not empower courts to create remedies 

and rights in derogation of the Bankruptcy Code and Rules.”312 More recently, the First Circuit had approved the use of § 105(a) to allow a surcharge of exempt assets in a case of the debtor’s concealment of nonexempt assets from the trustee.313 In addition to the Law opinion, the Ninth 

Circuit has precedent allowing surcharge, as an equitable remedy, “when 

reasonably necessary.”314 The Eleventh Circuit has disapproved surcharge

as inconsistent with the Code’s specific exemption provisions.315 In Siegel, 

308. Id. Accord Sheehan v. Peveich, 574 F.3d 248 (4th Cir. 2009), cert. denied, 130 S. 

Ct. 1066 (2010) (West Virginia); In re Kulp, 949 F.2d 1106 (10th Cir. 1991) (Colorado); 

In re Applebaum, 422 B.R. 684 (B.A.P. 9th Cir. 2009) (California); In re Westby, 486 B.R. 

509 (B.A.P. 10th Cir. 2013) (Kansas).

309. 134 S. Ct. 1188 (2014).

310. Law v. Siegel, 435 F. App’x 697 (9th Cir. 2011).

311. 535 F.3d 1258 (10th Cir. 2008), cert. denied, 129 S. Ct. 1613 (2009).

312. Id. at 1265.

313. Malley v. Agin, 693 F.3d 28 (1st Cir. 2012).

314. Latman v. Burdette, 366 F.3d 774, 786 (9th Cir. 2004). See also In re Onubah, 

375 B.R. 549 (B.A.P. 9th Cir. 2007) (allowing surcharge of homestead).

315. In re Cox, 338 F.3d 1238 (11th Cir. 2003).
Part 3: Bankruptcy Estate and Exemptions

69

the Supreme Court held that the bankruptcy court exceeded its authority 

by imposing a surcharge, contravening § 522(k), which protects exempt 

property from liability for administrative claims.316 The debtor’s claim of 

homestead exemption had been allowed for lack of objection, and the 

trustee’s attempted surcharge was for recovery of a portion of the attorney fees (an administrative expense) incurred in contesting the debtor’s 

fabricated second mortgage. The Court pointed to remedies other than 

surcharge that might address a debtor’s improper actions in the case.317

316. Siegel, 134 S. Ct. at 1195.

317. Id. at 1198.

71

~ part 4 ~

claims allowance and 

distributions to creditors

4.1 Overview

The process for claims held by creditors involves the following steps:

• Timely filing of a proof of claim on Official Form 10. § 501 & Fed. 

R. Bankr. P. 3002

• Allowance or disallowance of the proof of claim, depending on

whether an objection is filed. § 502 & Fed. R. Bankr. P. 3007

• Sufficient documentation of a proof of claim to support its validity. 

Fed. R. Bankr. P. 3001

• If assets are available in the bankruptcy estate for payment of 

claims, a priority scheme exists. § 507

The majority of Chapter 7 consumer cases are “no-asset,” meaning that 

nothing will be distributed to unsecured creditors from the bankruptcy 

estate.

318 However, secured creditors may have their claims satisfied 

through redemption or reaffirmation,319 or else their liens would typically 

continue to be valid after the bankruptcy case is closed, absent some 

avoidance of the lien by the debtor or trustee.320 If there are potential assets that may be available for distribution to unsecured creditors, the 

318. The notice to creditors of the petition filing and that it is a no-asset, Chapter 7 

case is on Official Form 9A. For more extensive discussion of the claims process, see, for 

example, Hon. William H. Brown, The Law of Debtors and Creditors, ch. 14 (2013).

319. Redemption under 11 U.S.C. § 722 and reaffirmation under 11 U.S.C. § 524 are 

discussed infra Part 5.

320. The trustee’s lien avoidance powers are not within the scope of this monograph, 

but the trustee has various powers, listed in 11 U.S.C. §§ 544–551. Lien avoidance under 

11 U.S.C. § 522(f) is discussed supra Part 3.
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creditors will be given notice of the opportunity to file proofs of claims.321

In Chapter 13 cases, the amount and timing of distribution to creditors is

determined by a confirmed plan. To participate in the distribution, creditors must file a proof of claim.322 The Code’s method for distribution to 

creditors in Chapter 7 cases is discussed in Part 4, and distribution for 

Chapter 13 cases is discussed infra Part 6. Part 4 describes the proof of 

claim process (set forth in the Bankruptcy Code and Rules), highlights

significant issues in consumer cases, and reviews the levels of priority for 

claims.

“Creditor” is defined in § 101(10), with the most common example 

being an “entity that has a claim that arose at the time of or before the 

order for relief.”323 The order for relief occurs automatically with the 

commencement, or filing, of the bankruptcy petition. As defined in 

§ 101(5), “claim” includes either “a right to payment” or “a right to an 

equitable remedy for breach of performance,” with the more common 

claim being a right to payment.324 The general concept for claims, which 

may be paid in consumer cases, is that they arose prepetition, before the 

filing of the bankruptcy case. In Chapter 13 cases, the Code provides for 

postpetition claims.325

4.2 Filing proof of claim

To be eligible for a distribution from the bankruptcy estate, a creditor 

must file a proof of claim, and that claim must be allowed. A valid secured lien typically passes through the bankruptcy administration unchanged,326 especially in Chapter 7 cases, and secured creditors may not 

be required to file a proof of claim to facilitate that process. But if a se321. This notice is given on Official Form 9C if it is an asset Chapter 7, and on Official Form 9I for a Chapter 13 case. If assets are discovered after original notice of a noasset Chapter 7, Procedural Form B204 is used to notify creditors of opportunity to file 

proofs of claims.

322. In re Pajian, 508 B.R. 708 (Bankr. N.D. Ill. 2014).

323. 11 U.S.C. § 101(10)(A).

324. See id. § 101(5) for complete definition of “claim.”

325. See id. § 1305. Postpetition claims are discussed infra Part 6.

326. See, e.g., Shelton v. CitiMortgage, Inc. (In re Shelton), 477 B.R. 749 (B.A.P. 8th 

Cir. 2012) (disallowance of untimely proof of claim didn’t void creditor’s lien).
Part 4: Claims Allowance and Distributions to Creditors

73

cured creditor wants a distribution, particularly in Chapter 13 cases, the

creditor must file a proof of claim. Bankruptcy Rule 3002(a) specifically 

addresses the need for only an unsecured creditor to file a proof of 

claim,327 but the reality of distribution in asset cases is that a trustee, 

Chapter 7 or 13, has no basis for paying anything to a creditor, unsecured 

or secured, without an allowed claim.328 Section 501 authorizes the filing 

of a proof of claim (using Official Form 10 and its supplements), when 

necessary. The procedure for filing claims is fleshed out in Bankruptcy 

Rules 3001 and 3002, discussed below.

The proof of claim is filed with the bankruptcy court clerk in the district where the case is pending.329 While the typical claimant will be the 

creditor, the Code and Rules provide for a claim to be executed and filed 

by others. Rule 3001(b) states that “a proof of claim shall be executed by 

the creditor or the creditor’s authorized agent.” If the creditor does not 

file a claim within the time provided, Code § 501(b) provides that an entity obligated with the debtor, or that has secured the claim, may file a 

proof of claim. Also, Rule 3004 permits either the trustee or debtor to file 

a proof of claim on behalf of a creditor who fails to file a timely claim.330

327. See, e.g., In re Weise, 455 B.R. 702 (Bankr. E.D. Wis. 2011). The Advisory 

Committee on Bankruptcy Rules has proposed amending Bankruptcy Rule 3002(a), requiring both secured and unsecured creditors to file a proof of claim in order to have an 

allowed claim; but the amended rule would make it clear that failure to file a proof of 

claim would not render the creditor’s lien void. This and other proposed rule changes, as 

well as changes to certain Official Forms, has been published for comment at 

http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx. Assuming 

final adoption, this change to Rule 3002(a) would be effective December 1, 2016.

328. For duties of Chapter 7 and 13 trustees, see 11 U.S.C. §§ 704 & 1302.

329. See Fed. R. Bankr. P. 3002(b) & 5005(a).

330. For an example of a Chapter 13 debtor having the opportunity to file a claim on 

behalf of a creditor, see Michigan Dep’t of Treasury v. Hight (In re Hight), 670 F.3d 699, 

703 (6th Cir. 2012). Rule 3004 imposes a thirty-day time, after expiration of the creditor’s 

time, for the debtor or trustee to file such a proof of claim. See, e.g., Municipality of Carolina v. Gonzalez (In re Gonzalez), 490 B.R. 642 (B.A.P. 1st Cir. 2013) (debtor’s proof of 

claim on behalf of municipality was untimely).
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4.3 Proof of claim—Official Form 10

Bankruptcy Rule 3001 describes a proof of claim as “a written statement 

setting forth a creditor’s claim.” Official Form 10 is used for this purpose, 

and there are some supplements to that form that come into play under 

situations discussed below. The proof of claim is executed under penalty 

of perjury, and it may be filed by the actual creditor or the creditor’s authorized agent.331 Form 10 contains various spaces to designate the following: amount of the claim and its basis; identifying information about 

the account and debtor; whether it is secured, unsecured, or partially 

both; if secured, the value of collateral; whether it is a priority claim; and 

supporting documentation. Form 10 also requires identification of the 

addresses for notices and payment to be sent to the claimant filing the 

proof of claim.

There are instances in which an “informal” proof of claim—a pleading that establishes the equivalent of Official Form 10—has been recognized.332 But creditors run a severe risk that such an informal process may 

not measure up. The safe course of action is to file a claim on the official 

form.333

4.4 Time for filing proof of claim

The applicable bar dates for filing a proof of claim are found, not in the 

Code, but in Bankruptcy Rule 3002(c). The time requirements are specific for Chapter 7 and 13 cases. The general rule is that “a proof of claim is 

timely filed if it is filed not later than 90 days after the first date set for the 

meeting of creditors called under § 341(a) of the Code.”334 For governmental units, the time is extended for prepetition claims, permitting 

claim filing “not later than 180 days after the date of the order for re331. See Fed. R. Bankr. P. 3001(b) and Official Form 10. The person authorized to 

file a proof of claim is often in dispute. See infra § 4.7.

332. See, e.g., Clark v. Valley Fed. Sav. & Loan Ass’n (In re Reliance Equities, Inc.),

966 F.2d 1338 (10th Cir. 1992) (establishing five-part test for informal proof of claim).

333. See, e.g., In re Batista-Sanchez, 502 B.R. 227 (Bankr. N.D. Ill. 2013) (stay relief 

motion was not informal proof of claim).

334. Fed. R. Bankr. P. 3002(c).
Part 4: Claims Allowance and Distributions to Creditors

75

lief.”335 In Chapter 13 cases, the government has additional time to file a 

proof of claim related to a prepetition tax return that is not filed by the 

debtor until after the case has been filed.336

These time limits are strictly construed and enforced. Untimeliness is

one of the grounds for disallowance of a claim for bankruptcy under 

Code § 502(b)(9). While there are specific exceptions from the general 

timing rule (e.g., for infants, incompetents, foreign creditors),

337 the focus 

of this timing discussion is on the failure of creditors to file timely claims 

under the ninety-day deadline, running from the first date set for the 

meeting of creditors, and not from the actual first meeting. Rule 3002(c) 

leaves little room for lengthening the ninety-day time, and Bankruptcy 

Rules 9006(b)(1) and (3) allow enlargement of the time for claims “only 

to the extent and under the conditions stated” in Rule 3002(c). These 

restrictions have been interpreted to mean that the bankruptcy court may 

not excuse a late proof of claim on the basis of excusable neglect.338 Although occasionally a court will find equitable reasons to allow a late-filed 

claim, for example, when the creditor was not scheduled and did not receive timely notice of the case and claims bar date,339 most courts have 

found they lack equitable authority to extend the proof of claim bar date, 

even when the result is harsh.340 Even though a creditor not scheduled in 

time to file a proof of claim would not receive a distribution in the case, 

there are other remedies available. For example, § 523(a)(3) provides an 

exception from discharge for claims that were not scheduled in time to 

335. Id. Rule 3002(c)(1). See also 11 U.S.C. § 502(b)(9).

336. Fed. R. Bankr. P. 3002(c)(1) and 11 U.S.C. § 502(b)(9) give the government 

sixty days after the debtor’s tax return is filed, under 11 U.S.C. § 1308, to file a proof of 

claim for that return’s liability. The government may obtain additional time upon the 

filing of a timely motion under Fed. R. Bank. P. 3002(c)(1).

337. See Fed. R. Bankr. P. 3002(c)(2)–(6).

338. See, e.g., In re Moore, No. 10-11491, 2012 WL 1192776 (Bankr. N.D.N.Y. Apr. 

10, 2012).

339. See, e.g., Goodman v. IRS (In re Adams), 502 B.R. 645 (Bankr. N.D. Ga. 2013);

Russo v. Freda (In re Russo), No. 09-3274 (FLW), 2009 WL 4672669 (D.N.J. Dec. 7, 

2009).

340. See, e.g., In re Aleman, 499 B.R. 236 (Bankr. D.P.R. 2013); In re Harp, No. A10-

00021-DMD, 2011 WL 6099551 (Bankr. D. Alaska Dec. 7, 2011).
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76

permit the filing of a timely proof of claim,341 and in Chapter 13, a claim 

not provided for in a confirmed plan will survive discharge.342

Even though the time to file claims is strictly applied under the rule, 

the disallowance of a claim typically requires an objection to be filed by a 

party in interest under Code § 502(b).343 There is some authority that a 

court cannot prohibit a late claim filing, resulting in an untimely claim 

being subject to payment by a trustee in the absence of an objection.344

The Chapter 13 debtor, for example, may have good reason for not objecting to an untimely claim: if that claim may not be discharged because

the debtor bears some responsibility for failure to properly schedule the 

creditor; or if the debtor does not provide for the claim in the plan; or the 

debtor may simply prefer to pay the late claim.345

4.5 Claim allowance

Under § 502(a), a claim filed under § 501 “is deemed allowed, unless a 

party in interest . . . objects.” Without the filing of an objection, there is 

no contested issue to bring the court into the claim allowance process, 

and the allowance happens as a matter of course.346 Bankruptcy Rule 3007 

provides for objections, discussed below. Rule 3001(f) states that “a proof 

of claim executed and filed in accordance with these rules shall constitute 

prima facie evidence of the validity and amount of the claim.” As explained infra, whether a claim has been executed and filed in accordance 

with applicable rules is a significant, frequently litigated issue.

341. See infra Part 5.

342. See 11 U.S.C. § 1328(a) (discharge generally includes only debts “provided for 

by the plan”). And see, e.g., N. Cal. Glaziers v. Wolter, No. 08-4487SC, 2009 WL 1458272 

(N.D. Cal. May 26, 2009). See also Rake v. Wade, 508 U.S. 464 (1993), for definition of 

“provided for by the plan.” Chapter 13 discharge is discussed infra Part 6.

343. See infra § 4.6 for discussion of objections to claims.

344. See, e.g., In re Smith, No. 09-43823, 2010 WL 5018379 (Bankr. W.D. Wash. Dec. 

3, 2010).

345. See 11 U.S.C. § 1328(a) and infra Part 6 for discussion of Chapter 13 plans and 

discharge.

346. See In re Mouzon Enters., Inc., 610 F.3d 1329 (11th Cir. 2010) (objection to 

claim triggered contested matter under Fed. R. Bankr. P. 9024).
Part 4: Claims Allowance and Distributions to Creditors

77

4.6 Objections to claims

The key to preventing a claim’s allowance is that a party in interest must 

object. Rule 3007, which governs objections, does not specify a time within which objections must be filed, only that an objection must be in writing and must be filed and served on the claimant and other required parties “at least 30 days prior to the hearing.”347 As in other areas of the 

Code, “party in interest” is not a defined term, but the case trustee clearly 

has standing as a party in interest. Code § 704(a)(5) authorizes the Chapter 7 trustee to “examine proofs of claims and object to the allowance,” 

and § 1302(b)(1) gives this same authority to Chapter 13 trustees. It is 

not always clear that a Chapter 7 debtor has standing, since unless there 

are sufficient assets to pay all claims in full and return some funds to the 

debtor, a Chapter 7 debtor may have no financial stake in whether a 

claim is allowed.348 If there is an issue whether a claim will be discharged

(e.g., tax claim), the debtor may be able to establish standing by showing 

that an objection to a claim affects the extent to which nondischargeable 

debts will burden the debtor after the case is over.349 A Chapter 13 debtor 

may be able to establish standing to object, for example, when a debtor 

lacks the ability to fund a 100% plan and nondischargeable debts will remain unpaid. A creditor may also have standing to object to another party’s proof of claim, but that will depend on whether the objecting creditor 

has a legally protected interest that is adversely affected by the claim.350

Although the Bankruptcy Rules may affect allowance,351 the Bankruptcy Code provides the substantive grounds for objection to claims. 

Section 502(b) sets forth nine grounds for disallowance of claims, most of 

which do not appear in typical consumer cases. The grounds include: 

unenforceability under applicable law or the parties’ agreement; claim for 

347. Fed. R. Bankr. P. 3007(a).

348. See, e.g., Khan v. Regions Bank (In re Khan), 544 F. App’x 617 (6th Cir. 2013).

349. See, e.g., In re Drost, 228 B.R. 208 (Bankr. N.D. Ind. 1998). Chapter 7 discharge 

and exceptions from discharge are discussed infra Part 5; Chapter 13 discharge and its 

exceptions are discussed infra Part 6.

350. See, e.g., Adair v. Sherman, 230 F.3d 890 (7th Cir. 2000); In re FBN Food Servs., 

Inc., 82 F.3d 1387 (7th Cir. 1996).

351. See infra § 4.7.
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unmatured interest; claim unmatured at petition date; property tax assessments exceeding value of property; and late-filed claim.

352 An example covered by § 502(b)(1)—that the claim is unenforceable under a

nonbankruptcy law—is when the claim is time-barred under state law.353

Basically, any applicable law that provides a defense to the claim may be 

the source of this objection.

To illustrate some of the issues that are litigated in connection with 

claims disallowance, consider whether the filing of a proof of claim for a 

debt that is time-barred under applicable law also violates the Fair Debt 

Collection Practices Act (FDCPA). Most courts have held that filing a 

proof of claim does not form the basis for a FDCPA cause of action,354

sometimes concluding that the claims allowance process preempts the 

FDCPA, or perhaps other federal and state consumer protection statutes.355 These opinions recognize that objecting to a claim is relatively 

simple,356 and that if nonbankruptcy law would affect the disallowance, 

the objecting party should raise it under § 502(b)(1). The Eleventh Circuit held, however, that the filing of a proof of claim for a debt that was 

time-barred under applicable state law violated the FDCPA. The court 

considered the proof of claim as a collection activity for a debt that was

stale and uncollectible under state law.

357

As discussed in the next section, lack of documentation of the proof 

of claim presents claim allowance issues, including whether the claim is 

objectionable under applicable nonbankruptcy law. For example, appli352. See 11 U.S.C. § 502(b)(1)–(9).

353. See, e.g., Dorsey v. PRA Receivables Mgmt., LLC (In re Dorsey), No. 07-

21082PM, 2008 WL 2511897 (Bankr. D. Md. June 20, 2008).

354. See, e.g., Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2d Cir. 2010); In re

Varona, 388 B.R. 705 (Bankr. E.D. Va. 2008).

355. See B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225 (B.A.P. 9th Cir. 

2008).

356. See, e.g., Roberts v. Pierce (In re Pierce), 435 F.3d 891 (8th Cir. 2006) (discussing “negative notice” procedure for giving claimant notice of objection to claim; if claimant doesn’t respond to objection and request hearing, claim may be disallowed, citing 

Fed. R. Bankr. P. 9007).

357. Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014). Accord Patrick v. PYOD, LLC, No. 1:14-cv539-RLY-TAB, 2014 WL 4100414 (S.D. Ind. Oct. 20, 

2014).
Part 4: Claims Allowance and Distributions to Creditors

79

cable state law may require that a creditor supply sufficient proof, or 

documentation, of its claim in order to have an enforceable right to payment.358

Rule 3001(f) provides prima facie validity to a properly executed and 

filed proof of claim; thus, opinions are written in terms of the objecting 

party having the burden to overcome, or rebut, this grant of prima facie 

validity.359 As discussed infra § 4.7, the burden of proof shifts between the 

objecting party and claimant, but the claimant bears the ultimate burden 

to establish its claim. Assuming that an objection overcomes the prima 

facie validity, the claimant then must prove, or persuade the court, that 

the claim is valid.360

Clearly, the contested litigation over a proof of claim may involve 

Bankruptcy Rule 9011, if counsel for either the claimant or objector stray 

beyond the bounds of required investigation and proper representations 

to the court.361

4.7 Documentation of claims and applicable Bankruptcy 

Rule

The failure of a claimant to support the proof of claim with documentation, required by Bankruptcy Rule 3001(c), is a fertile area of litigation in 

the claims allowance process, with questions about whether insufficient 

358. See, e.g., In re Taranto, No. 10-76041-ast, 2012 WL 1066300 (Bankr. E.D.N.Y. 

Mar. 27, 2012) (under New York law, insufficient documentation of credit card debt 

barred claimant’s right to payment). Cf. In re Nussman, 501 B.R. 297 (Bankr. E.D.N.C. 

2013) (although North Carolina law required attachment of contract to complaint, court 

distinguished state court suit from proof of claim).

359. See, e.g., Stewart v. Batmanghelich (In re Stewart), 373 F. App’x 682 (9th Cir. 

2010).

360. See, e.g., In re Pursley, 451 B.R. 213 (Bankr. M.D. Ga. 2011) (discussing shifting 

burden).

361. See, e.g., In re Taylor, 655 F.3d 274 (3d Cir. 2011) (counsel for claimant violated 

Rule 9011 by false representations in regard to response to claims and stay relief objections); In re MacFarland, 462 B.R. 857 (Bankr. S.D. Fla. 2011) (debtor’s counsel sanctioned under Rule 9011 for improper claims objections when claims were scheduled). See 

also In re Wingerter, 594 F.3d 931 (6th Cir. 2010) (discussing reasonable inquiry by 

claimant).
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80

documentation in itself is a ground for disallowance. To put the issues 

into focus, an understanding of Rule 3001(c), as amended, is necessary.

(c) SUPPORTING INFORMATION.

(1) Claim Based on a Writing. Except for a claim governed by paragraph (3) of this subdivision, when a claim, or an interest in property of the debtor securing the claim, is based on a writing, a copy of 

the writing shall be filed with the proof of claim. If the writing has 

been lost or destroyed, a statement of the circumstances of the loss 

or destruction shall be filed with the claim.

(2) Additional Requirements in an Individual Debtor Case; Sanctions 

for Failure to Comply. In a case in which the debtor is an individual:

(A) If, in addition to its principal amount, a claim includes interest, fees, expenses, or other charges incurred before the petition 

was filed, an itemized statement of the interest, fees, expenses, or 

charges shall be filed with the proof of claim.

(B) If a security interest is claimed in the debtor’s property, a 

statement of the amount necessary to cure any default as of the 

date of the petition shall be filed with the proof of claim.

(C) If a security interest is claimed in property that is the debtor’s principal residence, the attachment prescribed by the appropriate Official Form shall be filed with the proof of claim. If an 

escrow account has been established in connection with the 

claim, an escrow account statement prepared as of the date the 

petition was filed and in a form consistent with applicable nonbankruptcy law shall be filed with the attachment to the proof of 

claim.

(D) If the holder of a claim fails to provide any information required by this subdivision (c), the court may, after notice and 

hearing, take either or both of the following actions: 

(i) preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or 

adversary proceeding in the case, unless the court determines 

that the failure was substantially justified or is harmless; or 

(ii) award other appropriate relief, including reasonable expenses and attorney’s fees caused by the failure.

(3) Claim Based on an Open-End or Revolving Consumer Credit 

Agreement.

(A) When a claim is based on an open-end or revolving consumer credit agreement—except one for which a security interest is 
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claimed in the debtor’s real property—a statement shall be filed 

with the proof of claim, including all of the following information that applies to the account:

(i) the name of the entity from whom the creditor purchased 

the account;

(ii) the name of the entity to whom the debt was owed at the 

time of an account holder’s last transaction on the account;

(iii) the date of an account holder’s last transaction;

(iv) the date of the last payment on the account; and

(v) the date on which the account was charged to profit and 

loss.

(B) On written request by a party in interest, the holder of a claim 

based on an open-end or revolving consumer credit agreement 

shall, within 30 days after the request is sent, provide the requesting party a copy of the writing specified in paragraph (1) of this 

subdivision.

(d) EVIDENCE OF PERFECTION OF SECURITY INTEREST. If a security interest in property of the debtor is claimed, the proof of claim 

shall be accompanied by evidence that the security interest has been 

perfected.362

One of the reasons that so much litigation over documentation occurs is 

that claims frequently are bought and sold, assigned from one entity to 

another,363 opening the door to questions by the debtor or trustee as to 

whether the claimant is the proper person or entity to be filing the proof 

of claim.

In other words, standing of the claimant may be put at issue, with 

some courts concluding that an objection to standing is a substantive, 

statutory ground for disallowance under § 502(b)(1).364 Pursuant to Rule 

3001(c)(1), a copy of the writing should be filed with the proof of claim, 

362. Fed. R. Bankr. P. 3001(c), as amended, effective December 1, 2012.

363. See Fed. R. Bankr. P. 3001(e) for assignment of claims, both before and after a 

proof of claim is filed. See also, e.g., In re Taranto, No. 10-76041-ast, 2012 WL 1066300 

(Bankr. E.D.N.Y. Mar. 27, 2012) (Rule 3001(e) limits who may file assigned claims, but 

doesn’t relieve assignee of otherwise proving underlying claim in response to objection).

364. See, e.g., In re Richter, 478 B.R. 30 (Bankr. D. Colo. 2012) (failure to prove 

ownership of claim meant claim unenforceable under applicable state law).
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if the claim, or a security interest, is based on a writing. Prior to the December 2011 addition of subpart (c)(2) and the December 2012 addition 

of subpart (c)(3), however, there was no specific description of what the 

writing should contain. Those amendments to the Rule now spell out 

what the claimant should attach when the proof of claim is filed in an 

individual debtor’s case, and when the proof of claim is based on openend or revolving consumer credit, such as a credit card account. Subpart 

(c)(3) directly addresses accounts that have been transferred from one 

claimant to another. Rule 3001(d) requires that a proof of claim based on 

a security interest in property also “be accompanied by evidence” of perfection, and this is useful to trustees, and perhaps debtors, who may find 

cause to object to the claim as secured when perfection is lacking.

Official Form 10’s Attachment A must be filed by a home mortgage 

creditor to implement the requirements of Rule 3001(c)(2). Attachment 

A itemizes prepetition interest, fees, expenses, and charges that are included in the proof of claim, as well as a statement of the amount required to cure any prepetition default. If an escrow is a part of the claim, 

an escrow statement must be attached. These rule and form amendments 

appear to have reduced some of the litigation over claims in consumer 

cases. But bankruptcy courts have disagreed about the extent to which 

documentation requirements under the rules form an independent basis 

for claim disallowance, and so a brief overview of the rule changes is 

helpful.365

The predominant view in the bankruptcy courts is that, although 

Rule 3001(c), before its December 2011 amendment, required some level 

of documentation when a claim is supported by a writing, Code § 502(b) 

provides the only statutory grounds for disallowance of a proof of claim, 

with failure to document the claim not among those grounds.366 Most 

bankruptcy courts hold that a failure to attach the writing or to otherwise 

document the proof of claim results in loss of the prima facie effect of the 

proof of claim, under Rule 3001(f), requiring the claimant, in the face of 

365. See In re Brunson, 486 B.R. 759 (Bankr. N.D. Tex. 2013) (reviewing split of 

judicial views on effect of lack of documentation before Rule 3001(c) amendment, and 

suggesting that rule’s amendment would resolve disagreement).

366. See, e.g., In re MacFarland, 462 B.R. 857 (Bankr. S.D. Fla. 2011).
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an objection, to come forward with proof to support the claim.367 In other words, a failure to sufficiently document the basis for the claim results 

in no prima facie establishment of the claim’s validity, and an objection 

based on lack of documentation rebuts that prima facie presumption, 

shifting the burden back to the claimant to supplement the proof of claim 

or amend it to sufficiently support the claim.368 Prior to the amendment 

to Bankruptcy Rule 3001(c)(2), the Tenth Circuit held, in Caplan v. BLine, LLC (In re Kirkland),369 that the claimant’s failure to attach any 

documentation at all, or to produce any in response to the trustee’s objection to the claim, was sufficient cause to disallow the claim when an 

objection was made. The court’s reasoning was based on a combination 

of the Code, the then-applicable rule, and Official Form 10.

370

Kirkland illustrates the view that a claimant, here an assignee/purchaser of the original claim, may have its claim disallowed when it 

doesn’t comply with the applicable procedural requirements for a proof 

of claim. The literal application of Kirkland’s holding may have been put 

into question by the subsequent amendment to Bankruptcy Rule 3001(c), 

which “was directed at claim documentation and the appropriate sanction for failure to comply with Rule 3001’s documentation requirement.”371 In Kirkland, the claimant’s claim had been disallowed as a sanction for not complying with Rule 3001. But the amended Rule’s more 

restrictive counterpart, Rule 3001(c)(2)(D), provides that in the evidentiary hearing on claims allowance, following an objection based on lack of 

documentation, the claimant would be precluded “from presenting the 

omitted information in any form . . . unless the court determines that the 

failure was substantially justified or is harmless.”372 The Advisory Committee Note to amended Rule 3001(c) states that a lack of documentation 

“is not in itself a ground for disallowance of the claim. The claim can be 

367. See, e.g., Ahmadi v. CitiMortgage, Inc. (In re Ahmadi), 467 B.R. 782 (Bankr. 

M.D. Pa. 2012).

368. For a discussion of different views of the effect of lack of documentation and 

the shifting burden of proof, see, e.g., In re Pursley, 451 B.R. 213 (Bankr. M.D. Ga. 2011).

369. 572 F.3d 838 (10th Cir. 2009).

370. Kirkland, 572 F.3d at 840–41 (citations omitted).

371. In re Reynolds, 470 B.R. 138, 142–43 (Bankr. D. Colo. 2012).

372. Fed. R. Bankr. P. 3001(c)(2)(D)(i). See also Reynolds, 470 B.R. at 143.
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disallowed only if it comes within one of the grounds for disallowance 

under § 502(b) of the Bankruptcy Code.”373

It may be true that § 502(b)(1)’s focus on enforceability under applicable nonbankruptcy law requires the claimant to support its proof of 

claim with attachments, for example, when state law required that a creditor relying on a contractual obligation produce evidence of a written 

contract.374 And there are reported opinions in which an assignee of a 

claim failed to support its proof of claim, or lacked standing to file the 

claim, when it did not attach any evidence of the assignment.375 To put it 

another way, although amended Rule 3001(c) imposes an evidentiary 

sanction on the effect of insufficient documentation, it is not always clear 

when that evidentiary sanction and the application of § 502(b)(1) are 

different in the end result. Likewise, distinguishing between loss of prima 

facie validity and disallowance of the claim is not always easy.

Litigation of home mortgage claims (discussed infra Part 6) arises in 

Chapter 7 cases and, even more commonly, in Chapter 13 cases, in which 

debtors usually are trying to keep their homes. Rule 3002.1 (discussed 

infra Part 6), along with two supplements to Official Form 10, specifically 

address notices that are required for claims secured by a Chapter 13 

debtor’s principal residence. Rule 3002.1 seeks to prevent some of the 

recurring litigation over whether a home mortgage creditor kept the 

debtor and trustee informed of changes in the mortgage payments and of 

postpetition charges, such as attorney fees.

4.8 Redaction of information from proof of claim

Official Form 10 requires, as identifying information, only the last four 

digits of any number (e.g., Social Security) that the claimant uses to iden373. Reynolds, 470 B.R. at 144 (quoting Advisory Committee Note (2011) to Rule 

3001, and citing Report of the Judicial Conference Committee on Rules of Practice and 

Procedure, 2011 U.S. Order 0018 (Apr. 26, 2011)). 

374. See, e.g., In re Lytell, No. 11-2473, 2012 WL 253111 (E.D. La. Jan. 26, 2012) (no 

contract attached); In re Foy, 469 B.R. 209 (Bankr. E.D. Pa. 2012) (Pennsylvania law required evidence of judgment assignment, with contractual obligation merging into judgment).

375. See, e.g., In re Gauthier, 459 B.R. 526 (Bankr. D. Mass. 2011).
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tify the debtor. Bankruptcy Rule 9037 specifically requires the claimant to 

redact personal information from an electronic or paper filing. In litigation over the failure of a claimant to comply with these requirements, 

most courts have found no private right of action for damages.376 Generally, the appropriate remedy is redaction and the restriction of public access to the offending filing.377

4.9 Reconsideration and amendment of claims

Section 502(j) and Bankruptcy Rule 3008 provide for the court to reconsider claims for cause. This authority has been used to reconsider a claim 

that was previously disallowed or allowed. The statute refers to “the equities of the case” justifying reconsideration, giving the court broad discretion to ascertain whether sufficient cause was shown to reconsider a prior 

claim allowance or disallowance.378 Reconsideration may be a factor in a 

creditor’s amendment of its proof of claim.379 Amendment of claims is 

not mentioned in the Code or Rules; whether a creditor is permitted to 

amend its prior proof of claim is within the court’s discretion. Some 

courts apply Federal Rule of Civil Procedure 15, by analogy, to that determination.380 Allowing a claim amendment may be tied to whether the 

amendment changes the nature of the original claim, for example from 

unsecured to secured, or whether it merely changes the amount of the 

claim.381 If the amended claim is, in reality, a new claim, it would be untimely under § 502’s time requirements.382

376. See, e.g., Holloway v. Cmty. Bank, No. 3:10-CV-75, 2011 WL 4500042 (E.D. 

Tenn. Sept. 27, 2011).

377. See, e.g., Dunbar v. Cox Health Alliance, LLC (In re Dunbar), 446 B.R. 306 

(Bankr. E.D. Ark. 2011).

378. See, e.g., Nicholas v. Oren (In re Nicholas), 457 B.R. 202 (Bankr. E.D.N.Y. 2011) 

(applying Fed. R. Civ. P. 60); In re Brewster, No. 10-54254, 2011 WL 4458792 (Bankr. 

W.D. Tex. Sept. 14, 2011) (applying Fed. R. Civ. P. 59).

379. See, e.g., In re Smith, 465 B.R. 350 (Bankr. D. Mass. 2012).

380. See, e.g., In re Unroe, 937 F.2d 346 (7th Cir. 1991).

381. See, e.g., In re Tanaka Bros. Farms, Inc., 36 F.3d 996 (10th Cir. 1994).

382. See, e.g., In re Jackson, 482 B.R. 659 (Bankr. S.D. Fla. 2012).
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4.10 Effect of claim allowance order

Assuming proper notice of a claim objection, the entry of an order allowing or disallowing the claim has finality effect. For example, in Hann v. 

Educational Credit Management Corp. (In re Hann),383 the First Circuit 

held that entry of an order allowing a student loan claim at zero, following the Chapter 13 debtor’s unrebutted proof that the debt had been paid 

in full, was a final order, preventing the creditor’s collection attempts. 

Notwithstanding that student loan debt is excepted from discharge under 

§ 523(a)(8), discharge was not the issue in Hann; rather, the claimant had 

notice of the objection and did not respond, and the bankruptcy court 

made a factual finding that the debt was fully paid.

4.11 Priority claims and order of distribution

In addition to the categories of secured and unsecured claims, § 507 of 

the Code establishes levels of priorities for certain claims. Priority simply 

refers to the order of payment, assuming that there are assets in a case 

available for distribution to creditors whose claims have been allowed. In 

Chapter 7 cases in which assets are available, § 726(a) sets out the payment scheme. Section 726(a)(1) directs the first distribution to be made 

in the order of priority found in § 507. Section 726(a)(2) next provides 

for distribution to allowed unsecured claims, and a descending order of 

distribution follows in § 726(a)(3)–(6), with the last distribution to the 

debtor of any excess. Payments to Chapter 7 debtors are rare indeed, and 

§ 726 doesn’t come into play at all if the case is “no-asset.” In Chapter 13

cases, the order of distribution is not governed by § 726, but the priorities 

of § 507(a) are part of the requirements for a plan, under § 1322(a)(2), 

with a confirmed plan governing the distributions.384

Domestic support obligations are first priority in § 507(a)(1), which

also includes alimony, maintenance, and support. The definition of a 

domestic support obligation (DSO) contained in § 101(14A) is much 

broader than pre-BAPCPA. Although the concept of bankruptcy claims is 

tied to prepetition debts, § 101(14A) includes interest accruing postpeti383. 711 F.3d 235 (1st Cir. 2013).

384. See infra Part 6 for discussion of priorities and distributions in Chapter 13 cases.
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87

tion, as well as debt incurred pre- and postpetition. A DSO may be one 

“owed to or recoverable by” the spouse, former spouse, child, or other 

named relatives, as well as “a governmental unit.”385 The statute, by including “governmental units” in the definition of DSO, may also make 

“assistance provided by a governmental unit” a DSO.386 Any unsecured 

debt that falls within the scope of § 101(14A)’s definition is entitled to 

§ 507(a)(1) priority, to be paid from the first funds available for distribution from the bankruptcy estate. DSOs are also excepted from discharge, 

under § 523(a)(5); thus, to the extent there are not funds for payment of 

any, or all, of a DSO, the debt survives the discharge in both Chapter 7 

and 13 cases.387

Section 507(a)(1) has three internal levels of priority. The first level is

for a trustee’s expenses related specifically to administration of assets for 

payment of allowed DSOs.

388 The second level is for the obligations that 

are owed directly to, or recoverable by, a spouse, former spouse, or child 

of the debtor, or the child’s parent, legal guardian, or responsible relative.

Included in this second level are domestic support claims filed by a governmental unit on behalf of one of the named individuals.389 The third 

level is for DSOs assigned prior to the bankruptcy filing, unless the assignment was for the purpose of collection, in which event the assigned 

claim falls under the second level.390 Since the 2005 amendments, there 

has been relatively little case law about the difference in priorities for 

governmental units under the second and third tiers; but when there is an 

issue of proper tier, the claimant has the burden of proof.

391 The differ385. 11 U.S.C. § 101(14A)(A).

386. Id. § 101(14A)(B). See, e.g., Rivera v. Orange Cty. Prob. Dep’t (In re Rivera), 

511 B.R. 643 (B.A.P. 9th Cir. 2014), supra note 143.

387. Chapter 7 discharge and its exceptions are discussed infra Part 5; Chapter 13 

discharge is discussed infra Part 6.

388. 11 U.S.C. § 507(a)(1)(C). Although this structurally appears in third order, to 

the extent the trustee administers assets for the benefit of a domestic support creditor, the 

trustee’s expenses prime other priorities.

389. Id. § 507(a)(1)(A).

390. Id. § 507(a)(1)(B).

391. See, e.g., In re Hack, No. 08-72553, 2009 WL 1392068 (Bankr. C.D. Ill. May 14, 

2009). 
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ence in priority tier is significant in Chapter 13 plans, since § 1322(a)(4) 

permits a plan to pay less than 100% of a domestic support claim that has 

been assigned for purposes other than collection, provided the debtor’s 

projected disposable income is dedicated to the plan for a full five 

years.392

The second level of priority under § 507(a)(2) is for administrative 

expenses that are allowed under § 503(b)’s categories. The most common 

examples in consumer cases are the trustee’s expenses and debtor’s attorney fees. Section 503(b)(1)(A) provides for the “actual, necessary costs 

and expenses of preserving the estate,” and § 503(b)(2) includes “compensation and reimbursement awarded under section 330(a).” Section 

330(a) addresses compensation of officers of the estate, including attorneys employed by the trustee under § 327. Section 329 provides for attorney fees for the debtor’s attorney, and Rule 2016 requires professionals 

seeking compensation from the bankruptcy estate to file an application, 

setting forth details of the services rendered and expenses incurred. Fees 

for attorneys in Chapter 7 and 13 cases are discussed infra Parts 5 and 6.

The other priorities under § 507(a)(3)–(10) may be applicable in a 

particular consumer case, but they are rare enough to be beyond the 

scope of this monograph,

393 with the exception of § 507(a)(8)’s priority, 

which is relevant in Chapter 7 consumer cases in which a debtor has income or other tax obligations described in § 507(a)(8). Section 

523(a)(1)’s exception from discharge (discussed infra Part 5) refers in 

part to § 507(a)(8) for some of the taxes that may not be subject to discharge.

392. See In re Penaran, 424 B.R. 868 (Bankr. D. Kan. 2010), for discussion of the 

interface between § 507(a)(1)(B) priority and Chapter 13 plans, discussed infra Part 6.

393. For a discussion of § 507(a) priorities, see, e.g., Norton Bankruptcy Law and 

Practice, ch. 49 (3d ed. 2013).
89

~ part 5 ~

relief under chapter 7

5.1 Overview

Debtor relief under Chapter 7 of the Bankruptcy Code has four major components:

• Eligibility as a debtor under the Code’s “means test.” § 707

• Methods for retaining collateral and reaffirmation of secured debt. 

§§ 524 & 722

• Discharge of prepetition debts, objections to discharge, exceptions 

from discharge, and the effect of discharge. §§ 523, 524 & 727

• Potential conversion of a case to another chapter, or case dismissal. 

§§ 706 & 707

Chapter 7 bankruptcy relief is commonly referred to as liquidation. The 

Chapter 7 trustee may liquidate nonexempt assets, assuming they have 

value, and distribute proceeds for the benefit of creditors. But the reality 

is that most consumer Chapter 7 cases have no assets available for the 

trustee’s administration. An asset that has negligible or no value for the 

estate may be abandoned by the trustee,

394 which would result in the asset 

passing back to the debtor. Relief for consumer debtors under Chapter 7 

typically involves debtors having valid secured claims against their real 

and personal property, such as home and vehicle, with the secured liens 

passing through the bankruptcy and with debtors receiving a discharge of 

their in personam liability to both secured and unsecured creditors.

395

There are exceptions to the general discharge,396 and there may be objections to the overall discharge;397 but assuming no discharge issues, the 

394. See 11 U.S.C. § 554.

395. See id. § 524(a).

396. See id. § 523.

397. See id. § 727.
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typical no-asset Chapter 7 case will move through administration quickly, 

with no distribution to creditors. To the extent the secured claims are not 

avoided or otherwise adversely affected during the Chapter 7 case administration,398 the secured claims may be reaffirmed by debtors;399 the collateral might be redeemed;400 the debtor might surrender the collateral to 

creditors;

401 or the lien might simply remain intact after the bankruptcy 

case is closed.402 Secured creditors often move for and obtain automatic 

stay relief to act on their state-law rights to the collateral.403

5.2 Eligibility and dismissal under means test

The threshold test for Chapter 7 eligibility is set forth in § 707. To be eligible for Chapter 7 bankruptcy, a debtor must meet several criteria. Income cannot exceed a certain limit, and if it does, the debtor must pass 

the “means” test. Prior to 2005, a bankruptcy judge had the discretion to 

dismiss a Chapter 7 bankruptcy case if he or she determined the debtor’s 

income was sufficient to fund a repayment plan under Chapter 13.404 A

Chapter 7 case filed by an individual whose debts are primarily consumer

debts may be dismissed involuntarily if a presumption of abuse is found. 

Alternatively, the Chapter 7 case may be converted to Chapter 11 or 13, 

with the debtor’s consent. When an individual filing for bankruptcy under Chapter 7 has enough money to repay creditors an amount specified 

in § 707(b)(2)’s means test formula, through a Chapter 13 bankruptcy, it 

is deemed an abuse of the bankruptcy system. Essentially, the application 

of the formula determines whether the debtor needs Chapter 7 relief.

405

398. See id. § 506(d).

399. See id. § 524(c).

400. See id. § 722.

401. See id. § 521(a)(2).

402. See id. § 506.

403. See supra Part 2 for discussion of relief from automatic stay.

404. A Chapter 7 case may still be dismissed under a § 707(b)(3) totality-ofcircumstances finding that the debtor is able to pay a significant amount of debt in a 

Chapter 13 case. See, e.g., In re Pittman, 506 B.R. 496 (Bankr. S.D. Ohio 2014) (debtor’s 

ability to pay 24% to unsecured creditors was cause for dismissal).

405. 11 U.S.C. § 707(b). See, e.g., Witcher v. Early (In re Witcher), 700 F.3d 619 

(11th Cir. 2012) (ability to pay debts is part of § 707(b)(3)’s totality-of-circumstances 
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91

Failure of the test amounts to presumption of abuse. Prior to 2005, under 

§ 707 a Chapter 7 case could be dismissed if the court found it to be a 

substantial abuse of the Code’s provisions.

If the court does not find the means test determinative as to whether 

the case constitutes an abuse, it may nevertheless dismiss the case under 

the more general abuse standards,

406 pursuant to § 707(b)(3)’s “bad faith” 

and “totality of circumstances” thresholds for Chapter 7 relief. In Ng v. 

Farmer (In re Ng),407 for example, although the bankruptcy court did not 

grant the U.S. trustee’s motion to dismiss under the means test, it properly applied a totality-of-circumstances test to dismiss the Chapter 7 case 

under § 707(b)(3)(B).408

Section 707(a) also permits dismissal of a Chapter 7 case for bad 

faith.409 The Eleventh Circuit held that a Chapter 7 debtor’s prepetition 

bad faith could be cause for dismissal under § 707(a), concluding that the 

statute’s undefined “cause” was not limited to bad-faith actions occurring 

after the petition’s filing.410 In applying the bad-faith analysis, pre-2005 

case law is still relevant because BAPCPA did not add a definition of bad 

faith.

411

Dismissal may be granted, after notice and hearing, for other cause, 

including unreasonable delay by a debtor that is prejudicial to creditors, 

failure to pay required fees, and failure to file the documents required 

test). For discussion of the means test in Chapter 7, see Hon. Eugene R. Wedoff, Means 

Testing in the New § 707(b), 79 Am. Bankr. L.J. 231 (2005).

406. See Calhoun v. U.S. Trustee, 650 F.3d 338 (4th Cir. 2011) (even if there is no

presumption of abuse under 11 U.S.C. § 707(b)(2)’s means test, court may dismiss case 

under totality of circumstances when evidence supports that Chapter 7 debtors were able 

to pay creditors). See also Kulakowski v. U.S. Trustee (In re Kulakowski), 735 F.3d 1296 

(11th Cir. 2013) (§ 707(b)(2) did not subsume § 707(b)(3)).

407. 477 B.R. 118 (B.A.P. 9th Cir. 2012).

408. See also Perlin v. Hitachi Capital Am. Corp., 497 F.3d 364 (3d Cir. 2007).

409. See, e.g., In re Smith, 507 F.3d 64 (2d Cir. 2007).

410. Piazza v. Nueterra Healthcare Physical Therapy, LLC (In re Piazza), 719 F.3d 

1253 (11th Cir. 2013) (noting circuit split and agreeing with Third Circuit, and Eighth 

and Ninth Circuits holding that prepetition bad faith not sufficient “cause” for dismissal 

of voluntary Chapter 7 petition under § 707(a)).

411. For application of bad faith prior to 2005 amendments, see, e.g., In re Tamecki, 

229 F.3d 205 (3d Cir. 2000); In re Padilla, 222 F.3d 1184 (9th Cir. 2000); In re Huckfeldt, 

39 F.3d 829 (8th Cir. 1994); and In re Zick, 931 F.2d 1124 (6th Cir. 1991).
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under § 521(a) within fifteen days of the petition filing, unless the court, 

for cause, grants additional time.412 For purposes of Chapter 7 eligibility, 

the means test in § 707(b) begins with an exclusion, providing that the 

court should not consider in its calculation that the debtor has made, or 

continues to make, charitable contributions, as defined in Code 

§ 548(d)(3) and (4).413

The test then looks at a debtor’s “current monthly income,” which is 

a defined term under § 101(10A), going back to the six-month period 

before the bankruptcy filing414 for the debtor’s average monthly income 

from all sources. Current monthly income includes any amount contributed on a regular basis by anyone other than the debtor, or debtor’s 

spouse in a joint case, toward the debtor’s household expenses, but specifically excludes Social Security benefits and other less-common exceptions.415 For purposes of Chapter 7, the statutory exclusion of Social Security income from current monthly income and the subsequent means test 

seems clear.416 Distinctions have been made between this specific statuto412. 11 U.S.C. § 707(a)(1)–(3). See supra Part 2 for discussion of filing requirements.

413. 11 U.S.C. § 707(b)(1). See Wadsworth v. Word of Life Christian Ctr. (In re 

McGough), 737 F.3d 1268 (10th Cir. 2013) (interpreting § 548(a)(2)’s 15% limitation of 

charitable contributions).

414. There is a different six-month period when the debtor did not file with the petition the schedule of current income required by 11 U.S.C. § 521(a)(1)(B)(ii). See 11 

U.S.C. § 101(10A)(A)(ii).

415. Id. § 101(10A)(B). See Miller v. U.S. Trustee (In re Miller), BAP No. WY-14-

002, Bankr. No. 13-20384, 2014 WL 5018464 (B.A.P. 10th Cir. Oct. 8, 2014) (wages received in six-month period were current monthly income, although wages were for work 

performed before period began); In re Strictland, 504 B.R. 542 (Bankr. D. Minn. 2014) 

(income earned in six-month prepetition period was current monthly income, even 

though not received during that period).

416. Much of the judicial interpretation of § 707(b)’s means test has occurred in 

Chapter 13 cases, in which § 1325(b) incorporates § 707(b)(2). See, e.g., Mort Ranta v. 

Gorman, 721 F.3d 241 (4th Cir. 2013); Drummond v. Welsh (In re Welsh), 711 F.3d 1120 

(9th Cir. 2013); Beaulieu v. Ragos (In re Ragos), 700 F.3d 220 (5th Cir. 2012); Anderson v. 

Cranmer (In re Cranmer), 697 F.3d 1314 (10th Cir. 2012); Baud v. Carroll, 634 F.3d 327 

(6th Cir. 2011) (all holding that Social Security benefits excluded in § 101A(B) for purposes of Chapter 13 analysis). 
Part 5: Relief Under Chapter 7

93

ry exclusion and other benefits, such as under the Railroad Retirement 

Act417 and private disability insurance benefits.418

Official Form 22A419 is used to make the calculations in applying the 

means test. There is a presumption of abuse if a debtor’s current monthly 

income exceeds a statutory formula after deductions set forth in 

§ 707(b)(2) for applicable monthly expenses. The monthly expenses are 

generally determined by use of Internal Revenue Service National Standards and Local Standards, plus deductions for contractual secured debt 

payments, priority claims, and other necessary expenses itemized in the 

statute.

420 If the resulting net current monthly income, multiplied by sixty, 

is not less than $12,475, or the greater of $7,475 and 25% of the debtor’s 

nonpriority unsecured claims, there is a presumption of abuse.421 Official 

Form 22A’s step-by-step process of the presumptive abuse testing leads the 

calculation through the debtor’s income from all sources, and determines 

whether the means test applies, based on the debtor’s applicable median 

family income. The median family income is a state-sensitive amount, 

based on a family of the same or smaller size, as determined by the Bureau 

of the Census each year,422 and that information is available from the Department of Justice, U.S. trustee,423 as well as the bankruptcy court clerk. If 

the debtor’s and spouse’s current monthly income is less than the applicable median family income, based on household size, no one may move for 

417. See Meyer v. Scholz (In re Scholz), 477 B.R. 877 (B.A.P. 9th Cir. 2011) (Railroad 

Retirement Act benefits included in current monthly income).

418. See Blausey v. U.S. Trustee, 552 F.3d 1124 (9th Cir. 2009) (private disability 

insurance benefits included in current monthly income).

419. See Committee Notes to Official Form 22A for explanation of the form and its 

relevant income and expense calculations.

420. See 11 U.S.C. § 707(b)(2)(i)–(iv). The Internal Revenue Standards are available 

at http://www.irs.gov/irm/part5/irm_05-015-001.html#d0e1365.

421. Section 707(b)(2)’s monetary amounts are subject to automatic, periodic adjustment every three years, for inflation, with the next adjustment scheduled for April 1, 

2016. See 11 U.S.C. § 104.

422. See id. § 101(39A).

423. See http://www.usdoj.gov/ust.
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dismissal under the means test.424 In other words, the means test ends up 

not applying to below-median-income Chapter 7 debtors.425

The determination of household size has not been a consistent methodology, since a debtor’s family may be made up of various individuals 

living in the home less than full time. The Fourth Circuit addressed this 

issue in Johnson v. Zimmer.

426 After discussing the various approaches 

taken by bankruptcy courts (heads-on-bed, income-tax dependent, and 

economic unit approaches), the court adopted the economic unit approach in a case with a debtor having part-time custody of two minor 

children and a spouse having part-time custody of three minor children. 

Although the case involved § 707(b)’s use in Chapter 13, the statutory 

analysis is applicable in Chapter 7. The court recognized that a fractional 

application of each individual’s time spent in the home was relevant to 

the economic impact of actual time in the home on family expenses.

Most of the litigation over the application of IRS Standards for determination of allowable expenses takes place in Chapter 13 cases. Judicial interpretations of this part of the means test are discussed infra Part

6. For now, it should be noted that the IRS National Standards are for 

expenses, based on family size, for necessities such as food, apparel, 

household supplies, personal care, and some miscellaneous expenses. IRS

Local Standards are based on state or regional costs for expenses like

housing, utilities, and transportation. Housing expenses are broken into 

categories like mortgage, rent, taxes, insurance, and utilities. Transportation costs are broken into operating expenses and ownership costs.

In Chapter 13 cases, § 707(b) issues arise as to whether the IRS 

Standards are allowable deductible expenses, without regard to actual 

expenses, or whether the Standards set caps, with a debtor limited to the 

lesser of that cap or actual expense.

427 The Supreme Court held, in the 

Chapter 13 case Ransom v. FIA Card Services, N.A.,

428 that a debtor owning a vehicle without any debt against it cannot claim an allowance for 

424. 11 U.S.C. § 707(b)(7).

425. See Official Form 22A.

426. 686 F.3d 224 (4th Cir. 2012).

427. See infra Part 6 for discussion of case authority.

428. 131 S. Ct. 716 (2011).
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vehicle ownership expense under § 707(b)(2)(A)(ii)(I) and the related 

IRS Local Standards for vehicle ownership. In other words, a debtor must 

have an actual expense to justify a § 707(b)(2) deduction from current 

monthly income. Using this rationale—which would be applicable in 

both Chapter 7 and 13 cases—other courts have held that if the debtor is 

surrendering a home or vehicle, there is not an allowance deduction in 

the means test for the secured debt on that surrendered collateral.429

However, there is authority that contractual payments are deductible 

without regard to the necessity of, or the nature of, the collateral, since 

§ 707(b)(2)(A)(iii) allows a deduction for the “average monthly payments on account of secured debts . . . scheduled as contractually due to 

secured creditors in each month of the 60 months following the date of 

the filing of the petition.”430

In applying the Chapter 7 means test, the Ninth Circuit held that a 

debtor cannot deduct payments being made on a loan from a 401(k) retirement account, either as one of the “other necessary expenses” or as a 

“special circumstance,” under § 707(b)(2).431 The debtor argued that the 

monthly payments were for a secured debt, and that § 707(b)(2)(A)(iii) 

allowed the deduction. But the court held that the debtor owed himself 

for a retirement account loan, and that the obligation was not a “debt” 

under § 101(12)’s definition.432

The Code and related Official Form 22A permit specific deductions 

for family safety, as well as support of elderly, chronically ill, or disabled 

household members, certain education expenses for dependent children, 

429. See, e.g., In re Fredman, 471 B.R. 540 (Bankr. S.D. Ill. 2012) (secured debt on 

surrendered home not deductible); In re Sterrenberg, 471 B.R. 131 (Bankr. E.D.N.C. 

2012) (secured debt on surrendered car not deductible).

430. See, e.g., Drummond v. Welsh (In re Welsh), 711 F.3d 1120, 1134 (9th Cir. 

2013). “In enacting the BAPCPA, Congress did not see fit to limit or qualify the kinds of 

secured payments that are subtracted from current monthly income to reach a disposable 

income figure.” Id. at 1135.

431. Egebjerg v. Anderson (In re Egebjerg), 574 F.3d 1045 (9th Cir. 2009).

432. See also Seafort v. Burden (In re Seafort), 669 F.3d 662 (6th Cir. 2012) (in Chapter 13 cases, after loan on 401(k) accounts was repaid, former monthly loan amount was 

disposable income); McCarty v. Lasowski (In re Lasowski), 575 F.3d 815 (8th Cir. 2009) 

(same).
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and medical insurance.433 If there is a resulting presumption of abuse after all of the allowable calculations, a debtor may attempt to rebut it by 

“demonstrating special circumstances,” such as a serious medical condition or call to active military service. Special circumstances must be documented.434

5.3 Chapter 7 trustee

In each Chapter 7 case, a trustee is appointed by the U.S. trustee or bankruptcy administrator.435 Although election of trustees is possible under 

§ 702, it is not common in consumer cases, with election of a trustee usually seen only in large asset cases, often those originally filed as Chapter 

11 and then converted to Chapter 7. The trustee’s duties are described in 

§ 704, but generally the trustee will evaluate whether assets are available 

for administration, including potential fraudulent transfer,436 preference,437 and other avoidable transfers or potential recoveries for the bankruptcy estate.438 The trustee may object to a debtor’s claimed exemptions,439 and may also object to a debtor’s discharge, under § 727(a).440

Assuming there are assets available for liquidation,441 the trustee will distribute property of the bankruptcy estate to expenses and claims allowed

under the procedure outlined in § 726. Chapter 7 trustees are compensated based on the statutory formula in § 326.442

433. 11 U.S.C. § 707(b)(2)(A)(ii)(I)–(V).

434. Id. § 707(b)(2)(B).

435. Id. § 701.

436. See id. § 548.

437. See id. § 547.

438. See id. §§ 542–552.

439. See supra Part 3 for discussion of exemptions.

440. See 11 U.S.C. § 727(c).

441. See id. § 363(b) for sales of estate property.

442. See, e.g., Gold v. Robins (In re Rowe), 750 F.3d 392 (4th Cir. 2014); Hopkins v. 

Asset Acceptance LLC (In re Salgado-Nava), 473 B.R. 911 (B.A.P. 9th Cir. 2012).
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5.4 Redemption and valuation

One of the options for Chapter 7 debtors is to redeem personal property 

from a secured consumer lien, “if such property is exempted . . . or has 

been abandoned, . . . by paying the holder of such lien the amount of the 

allowed secured claim . . . in full at the time of redemption.”443 In other 

words, redemption requires full payment of the allowed amount of the 

secured claim unless the creditor agrees otherwise. The difference between redemption and reaffirmation of a secured debt is the requirement 

of full payment at the time of redemption, whereas reaffirmation permits 

monthly payments in an amount agreed on by the parties. BAPCPA

changed how the value of personal property secured by an allowed claim 

is determined, with § 506(a)(2) providing that for individuals in Chapters 7 and 13, the value is “replacement value . . . as of the date of the filing of the petition without deduction for costs of sale or marketing.”444

The statute goes on to specify that for property acquired for personal, 

family, or household purposes, the replacement value is “the price a retail 

merchant would charge for property of that kind considering the age and 

condition of the property at the time value is determined.”445

Section 348(f), as amended by BAPCPA, provides that upon conversion from Chapter 13 to Chapter 7, the allowed secured claim on property continues, unless the full amount of the claim, as determined under 

nonbankruptcy law, has been paid in full. Prior to the amendment, debtors often experienced a benefit on conversion, when the redemption value was reduced by the amount paid on a secured claim under a preconversion Chapter 13 plan.446 Under the amended Code, any value fixed 

on the property in the Chapter 13 plan would not be binding when the 

case is converted to Chapter 7. Redemption in Chapter 7 thus requires 

payment of the secured claim, as described above.

443. 11 U.S.C. § 722.

444. Id. § 506(a)(2).

445. Id.

446. See, e.g., In re Cooke, 169 B.R. 662 (Bankr. W.D. Mo. 1994).
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5.5 Abandonment

If an asset has inconsequential value for the bankruptcy estate, the trustee 

may abandon it under § 554 because administering the asset would burden the estate. The debtor, or another party in interest such as a secured 

creditor, can move to compel the trustee to abandon the asset.

447 If an 

asset is scheduled by the debtor, and the trustee does not administer it, 

that property is automatically abandoned to the debtor when the case is 

closed.

448 In contrast, if property is not scheduled it is not abandoned, 

and the case is subject to reopening for the trustee’s administration.449

Under the concept of judicial estoppel, a debtor’s failure to schedule a 

cause of action may prevent him from pursuing the action, but it does 

not result in abandonment of the trustee’s opportunity to pursue the action.450

5.6 Reaffirmation

A reaffirmation451 is a written agreement between the debtor and creditor. The concept behind a reaffirmation is that, notwithstanding the dischargeability of an obligation, the debtor may need or want to retain the 

property securing the debt. The Code has built-in protections to prevent

abuse. The agreement must be in writing and must be entered into before 

discharge is granted. The debtor must have received the required disclosures, as set forth in § 524(k), including a right to rescind the agreement.452 The debtor must complete the Official Form 27 cover sheet for 

reaffirmation agreements, along with recommended Procedural Form 

447. See 11 U.S.C. § 554(b).

448. See id. § 554(c).

449. See id. §§ 554(d) & 350.

450. See, e.g., Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380 (5th Cir. 2008). See 

also supra Part 3 for discussion of judicial estoppel.

451. For reaffirmation requirements, see 11 U.S.C. § 524(c), (d), & (j). BAPCPA 

amended § 524 to require more specificity.

452. For analysis of the 2005 amendments affecting reaffirmation, see David B. 

Wheeler & Douglas E. Wedge, A Fully-Informed Decision: Reaffirmation, Disclosure and 

the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 Am. Bankr. L.J. 

789 (2005).
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240A or 240A/B for the actual agreement. Forms 240A and 240A/B contain the required disclosure language. After the agreement is filed with 

the court, the debtor may rescind the agreement within sixty days by giving notice to the creditor.453 If the debtor is not represented by an attorney in the reaffirmation process, the court must hold a hearing on approval of the agreement to determine if the agreement is in the best interest of the debtor or would be an undue hardship for the debtor or a dependent of the debtor.454 Court approval is not required if the reaffirmation is for a consumer debt and secured by real property.

455

Prior to BAPCPA, some courts had recognized an option for debtors—in addition to redemption or reaffirmation—called “ridethrough.”456 Under ride-through, the debtor might maintain payment on 

a secured debt after discharge in a Chapter 7 case. Other courts did not 

agree, concluding that the debtor must either redeem or reaffirm, unless 

the debtor wished to surrender the collateral.457 As amended by BAPCPA, 

§ 521(a)(2) requires the Chapter 7 debtor to file a statement of intention 

as to redemption, reaffirmation, or surrender of collateral.458 If a debtor

does not timely perform the stated intention as to personal property, 

§ 362(h) provides stay relief to the secured creditor.

459 Ride-through has 

been held by some courts to continue as an option in real property secured claims.460

453. See 11 U.S.C. § 524(c)(4).

454. See id. § 524(c)(6).

455. See id. § 524(c)(6)(B).

456. See, e.g., In re Belanger, 962 F.2d 345 (4th Cir. 1992); Lowry Fed. Credit Union 

v. West, 882 F.2d 1543 (10th Cir. 1989).

457. See, e.g., In re Taylor, 3 F.3d 1512 (11th Cir. 1993); In re Edwards, 901 F.2d 1383 

(7th Cir. 1990).

458. See, e.g., In re Donald, 343 B.R. 524 (Bankr. E.D.N.C. 2006). The 2005 amendments to § 521(a)(2) are reviewed supra Part 2.

459. See, e.g., In re Miller, 443 B.R. 54 (Bankr. D. Del. 2011) (although § 521(a)(2) 

didn’t completely eliminate ride-through option, failure to redeem or reaffirm would lead 

to stay relief under § 362(h)).

460. See, e.g., In re Covel, 474 B.R. 702 (Bankr. W.D. Ark. 2012).
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5.7 Discharge

A goal of Chapter 7 debtors is to obtain a discharge of in personam liability of “all debts that arose before the date of the order for relief.”461 Upon 

entry of a discharge, a discharge injunction goes into place under § 524. 

The broad effect of discharge will be discussed later, but § 727(a) sets 

forth eleven grounds for denial of discharge, with an additional cause for 

delaying entry of discharge. Some of these grounds appear infrequently in 

the typical consumer Chapter 7, but each of the following may trigger a 

denial of the discharge of all prepetition debts. The case law on most 

§ 727(a) grounds is extensive; so, for purposes of this monograph, only a 

cursory review of the statutory elements is possible.

• Section 727(a)(1). Only individuals receive a discharge under 

Chapter 7.

• Section 727(a)(2). Transfers of property within one year of filing 

bankruptcy, or property of the estate after filing, with intent to 

hinder, delay, or defraud creditors or the estate justifies denial of 

discharge. Concealment of assets that continues into the prepetition year may be sufficient to deny discharge of liability,

462 but 

actual intent is a required element.463 One of the points of disagreement among the circuits is whether a debtor who made an 

improper transfer may reverse the transfer and overcome 

§ 727(a)(2).464

• Section 727(a)(3). Acts such as concealment of, destruction of, or 

failure to keep financial information, including books and records, may be the basis for discharge denial, unless the debtor can 

show the act or failure was justified under the circumstances. Per

case authority, the objecting party must first show the statutory 

461. 11 U.S.C. § 727(b).

462. See, e.g., In re Keeney, 227 F.3d 679 (6th Cir. 2000) (adopting continuous concealment).

463. See, e.g., In re Pratt, 411 F.3d 561 (5th Cir. 2005).

464. Compare In re Adeeb, 787 F.2d 1339 (9th Cir. 1986) (property must remain 

transferred to trigger § 727(a)(2)), with In re Davis, 911 F.2d 560 (11th Cir. 1990) (rejecting Adeeb).
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elements to demonstrate that relevant books and records (or other documents) don’t exist.465 Then the burden shifts to the debtor 

to show circumstances justifying loss or lack of relevant records.466 A genuine consumer debtor would not be expected to 

have sophisticated financial records, and there is an overriding 

debtor-specific reasonableness inquiry involved in § 727(a)(3).467

• Section 727(a)(4). Giving a false oath or claim is a ground for discharge denial if the falsehood is made knowingly or fraudulently 

in connection to the Chapter 7 case. A typical example is a debtor’s omission of assets from the bankruptcy schedules.468 Either 

fraudulent intent or reckless disregard for truthfulness may be 

sufficient.469 The bankruptcy schedules are executed under penalty of perjury, so virtually any false statement or material omission may be the source of a § 727(a)(4) objection.470

• Section 727(a)(5). Failure to sufficiently explain loss of assets may 

be a denial basis, for example, when a debtor’s financial statement shows assets that are not on the bankruptcy schedules.471

The issue is typically whether the debtor satisfactorily explains

the discrepancy.472

• Section 727(a)(6). The debtor’s refusal to obey a lawful court order is a discharge denial ground, along with refusal to testify after 

the debtor has been given some grant of immunity. Obviously, 

self-incrimination issues are involved here, but the primary use of 

465. See In re French, 499 F.3d 345 (4th Cir. 2007), for objecting party’s initial burden.

466. See, e.g., In re Wiess, 132 B.R. 588 (Bankr. E.D. Ark. 1991).

467. See, e.g., Meridian Bank v. Alten, 958 F.2d 1226 (3d Cir. 1992); Hussain v. Malik 

(In re Hussain), 508 B.R. 417 (B.A.P. 9th Cir. 2014).

468. See, e.g., In re Phillips, 476 F. App’x 813 (11th Cir. 2012); In re Retz, 606 F.3d 

1189 (9th Cir. 2010).

469. See, e.g., In re Khalil, 478 F.3d 1167 (9th Cir. 2009). See also Phillips, 476 F. 

App’x 813 (debtor acted with fraudulent intent in omission of asset).

470. See, e.g., In re Retz, 606 F.3d 1189 (9th Cir. 2010). 

471. See, e.g., In re Perez, 954 F.2d 1026 (5th Cir. 1992); Kaler v. Charles (In re

Charles), 474 B.R. 680 (B.A.P. 8th Cir. 2012) (undervaluing asset was material).

472. See, e.g., In re Aoki, 323 B.R. 803 (B.A.P. 1st Cir. 2005).
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the statute is when a debtor has been ordered to do something, 

such as turn over an asset to the trustee, and the debtor has refused 

to comply.473 There is an intentional element to this statute.474

• Section 727(a)(7). This objection addresses actions by the debtor 

in another case filed by an insider. This ground is rarely applicable in a consumer case.

• Section 727(a)(8). If the debtor previously received a discharge in 

a Chapter 7 or 11 case that was “commenced within 8 years before the date of the filing of the [current] petition,” another 

Chapter 7 discharge is not available.475

• Section 727(a)(9). If the debtor previously received a discharge in 

a Chapter 12 or 13 case that was “commenced within six years 

before the date of the filing of the [current] petition,” a Chapter 

7 discharge is not available, unless in the prior case “allowed” unsecured claims had been paid 100%, or at least 70%, under a plan 

that was in good faith and that represented the debtor’s best effort.476

• Section 727(a)(10). This statute permits a debtor to waive a discharge, a rare event. Any waiver must be in writing, executed by 

the debtor after the case was filed, and approved by the court.

The underlying concept is that any prebankruptcy waiver of discharge is not enforceable.477

• Section 727(a)(11). A debtor’s failure to complete a required 

course in personal financial management is a basis to deny a discharge. This requirement is separate from the eligibility requirement for filing bankruptcy, which refers to completion of credit 

briefing.

478

473. See, e.g., Moore v. Robbins, No. CV 13-1122 (BAH), 2014 WL 930852 (D.D.C. 

Mar. 11, 2014).

474. See, e.g., In re Jordan, 521 F.3d 430 (4th Cir. 2008).

475. 11 U.S.C. § 727(a)(8).

476. Id. § 727(a)(9).

477. See, e.g., In re Huang, 275 F.3d 1173 (9th Cir. 2002).

478. See 11 U.S.C. § 109(h). Filing requirements are reviewed supra Part 2.
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• Section 727(a)(12). This provision is not actually a basis to deny 

discharge; rather, it is a delay in the granting of discharge to give 

the court an opportunity to first determine if the debtor is subject to the § 522(q) limitation on homestead exemption, a rarely 

applied limitation.479

The § 727(a) objections to discharge must be brought in an adversary 

proceeding. Bankruptcy Rule 4005 puts the burden of proof on the plaintiff. That burden is generally recognized to be preponderance of evidence.480 To be timely, Rule 4004(a) provides that a complaint objecting 

to a Chapter 7 discharge must be filed within sixty days after the first date 

set for the § 341 meeting of creditors. Under Kontrick v. Ryan,

481 this procedural time is not jurisdictional, and a debtor might waive the time-forfiling requirement.

5.8 Exceptions from general discharge

Most Chapter 7 debtors are not denied their discharge for any of the 

§ 727(a) grounds; however, entitlement to an overall discharge does not 

mean that every debt is dischargeable. Section 523(a) exceptions from the 

general discharge come into play because of specific actions or failures by 

debtors. Following are brief illustrations of the various exceptions that 

regularly arise in consumer Chapter 7 cases.

• Section 523(a)(1). This exception from discharge prevents the 

discharge of many tax obligations, including those described as 

priority taxes under § 507(a)(3) and (8), as well as taxes for a return that was not filed or was filed within the period “after two 

years before the date of the filing of the petition.”482 The 

479. See, e.g., In re Larson, 513 F.3d 325 (1st Cir. 2008). For discussion of § 522(q), 

see supra Part 3.

480. See, e.g., In re Serafini, 938 F.2d 1156 (10th Cir. 1991) (applying rationale of 

Grogan v. Garner, 498 U.S. 279 (1991), which adopted preponderance standard for 

§ 523(a) exceptions from discharge). 

481. 540 U.S. 443 (2004).

482. 11 U.S.C. § 523(a)(1)(B). For discussion of what constitutes a “return” for purposes of § 523(a)(1), see McCoy v. Miss. State Tax Comm’n (In re McCoy), 666 F.3d 924 

(5th Cir. 2012); Pendergast v. Mass. Dep’t of Revenue (In re Pendergast), 510 B.R. 1 (B.A.P. 
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§ 507(a)(8) priority taxes are generally income taxes for which a 

return was due within three years before the bankruptcy petition 

filing; but § 507(a)(8) also includes certain property, trust-fund, 

employment, excise, and custom taxes, as well as penalties on 

those taxes.483 The § 507(a)(3) priority tax is uncommon in consumer cases, since it relates to income taxes accruing during the 

gap between an involuntary bankruptcy petition and the entry of 

an order for relief.484 Section 507(a)(8) also includes some taxes 

that were assessed within 240 days of the bankruptcy filing. The 

assessment period is tolled by the time an automatic stay is in effect in a prior case or by the time any nonbankruptcy law prevents the government from collecting a tax.485 Section 

523(a)(1)(C) excludes from discharge tax debts that stem from a

fraudulent return or willful tax evasion.

486

• Section 523(a)(2). This three-part exception is one of the more 

frequently litigated and applied, including in consumer cases. 

The first part prevents discharge of a debt when “money, property, services, or . . . refinancing of credit” was obtained by “false 

pretenses, a false representation, or actual fraud, other than a 

statement respecting the debtor’s . . . financial condition.”487 Assuming the elements are proven, the Supreme Court has held 

that a creditor’s reliance on the falsity or fraud must be justifiable.488 The second part of the statute addresses the use of a writ1st Cir. 2014); Gonzalez v. Mass. Dep’t of Revenue (In re Gonzalez), 506 B.R. 317 (B.A.P. 

1st Cir. 2014); Wogoman v. IRS (In re Wogoman), 475 B.R. 110 (B.A.P. 10th Cir. 2012).

483. 11 U.S.C. § 507(a)(8)(A)–(G). For discussion of tax penalties and the disagreement among circuit authority on dischargeability of penalties, see In re Roberts, 906 F.2d 

1440 (10th Cir. 1990).

484. See 11 U.S.C. § 502(f).

485. Id. § 507(a)(8), as amended. See, e.g., In re Jones, 657 F.3d 921 (9th Cir. 2011), 

for discussion of the tolling period. See also Young v. United States, 535 U.S. 43 (2002), in 

which the Court held, prior to the 2005 amendment to § 507(a)(8), that the automatic 

stay tolled the three-year look-back period for §§ 523(a)(1) and 507(a)(8).

486. For discussion of § 523(a)(1)(C) and other authorities, see United States v. Coney, 689 F.3d 365 (5th Cir. 2012).

487. 11 U.S.C. § 523(a)(2)(A). 

488. Field v. Mans, 516 U.S. 59 (1995).
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ten financial statement that is “materially false” and given to a 

creditor with “intent to deceive.”489 The creditor’s reliance on the

statement must be reasonable, rather than justifiable.

490 In the 

distinction between these two parts of the exception, there is 

some disagreement about when a debtor’s representation becomes a “statement concerning . . . financial condition” for purposes of § 523(a)(2)(A).491 The Supreme Court held, in Cohen v. 

De La Cruz,

492 that when actual fraud is proven, the nondischargeable debt may include all damages flowing from the fraud, 

such as treble damages and attorney fees under an applicable 

statute.493 The third part, § 523(a)(2)(C), excepts from discharge 

consumer debts incurred within ninety days of the petition filing 

or cash advances obtained within seventy days of the filing.

• Section 523(a)(3). This is an exception for debts that were not 

scheduled by the debtor in time to permit the applicable creditor 

to file a proof of claim or a complaint to determine dischargeability of the debt, provided it is debt for which such a complaint 

must be timely filed under § 523(a)(2), (4), or (6).494 These three 

489. 11 U.S.C. § 523(a)(2)(B). See, e.g., Toye v. O’Donnell (In re O’Donnell), 728 

F.3d 41 (1st Cir. 2013).

490. Id. § 523(a)(2)(B)(iii). See, e.g., In re Cohn, 54 F.3d 1108 (3d Cir. 1995) (creditor’s reliance must be actual and reasonable).

491. See In re Bandi, 683 F.3d 671 (5th Cir. 2012) (discussing conflicting circuit authority on debtor’s false representation about specific property, and whether such representation concerns debtor’s financial condition).

492. 523 U.S. 213 (1998).

493. Courts of appeals agree that the bankruptcy court, when determining the dischargeability of a debt, may also determine the amount of money judgment. See Hart v. S. 

Heritage Bank (In re Hart), 564 F. App’x 773 (6th Cir. 2014); Ray Cai v. Shenzhen SmartIn Indus. Co. (In re Ray Cai), 571 F. App’x 580 (9th Cir. 2014); In re Morrison, 555 F.3d 

473 (5th Cir. 2009); In re McGavin, 189 F.3d 1215 (10th Cir. 1999); In re Kennedy, 108 

F.3d 1015 (9th Cir. 1997); In re McLaren, 3 F.3d 958 (6th Cir. 1993); In re Hallahan, 936 

F.2d 1496 (7th Cir. 1991).

494. See, e.g., Perle v. Fiero (In re Perle), 725 F.3d 1023 (9th Cir. 2013) (unscheduled 

creditor without notice of petition can file § 523(a)(3) complaint for § 523(a)(6) cause of 

action); Mahorn v. Petty (In re Petty), 491 B.R. 554 (B.A.P. 8th Cir. 2013) (creditor not 
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types of exceptions are those for which a complaint must be filed 

no later than sixty days after the first date set for the § 341 meeting of creditors,495 a deadline that is discussed below. There is 

some disagreement among courts over the effect that failure to 

schedule in time to file a proof of claim has on relevance when 

the case is no-asset, in which creditors are notified that they do 

not need to file claims.496

• Section 523(a)(4). Although this exception appears more frequently in business debtor cases, it may apply in a consumer case

if the debtor, acting in a fiduciary capacity, committed fraud or 

defalcation, or embezzled. The most commonly litigated issue is 

whether the particular action was within a fiduciary capacity. 

Case law generally requires that the debtor acted within a technical or express trust, usually created under a specific statute.497

In re Baylis498 sets forth the elements of proving the § 523(a)(4) 

exception from discharge. Resolving a split of circuit authority 

on defalcation’s mental state requirement, the Supreme Court 

held the following in Bullock v. BankChampaign, N.A.:

499

[W]here the conduct at issue does not involve bad faith, moral 

turpitude, or other immoral conduct, the term requires an intentional wrong. We include as intentional not only conduct 

that the fiduciary knows is improper but also reckless conduct 

of the kind that the criminal law often treats as the equivalent. 

Thus, we include reckless conduct of the kind set forth in the 

Model Penal Code. Where actual knowledge of wrongdoing is 

lacking, we consider conduct as equivalent if the fiduciary “consciously disregards” (or is willfully blind to) a “substantial and 

unjustifiable risk” that his conduct will turn out to violate a fiduciary duty. . . . That risk “must be of such a nature and degree 

given sufficient notice of petition filing to take meaningful action on § 523(a)(6) complaint, justifying § 523(a)(3) complaint).

495. See 11 U.S.C. § 523(c) and Fed. R. Bankr. P. 4007(c).

496. For a discussion of this issue, see, e.g., In re Smith, 582 F.3d 767, 778–79 (7th 

Cir. 2009).

497. See, e.g., In re Harwood, 637 F.3d 615 (5th Cir. 2011).

498. 313 F.3d 9 (1st Cir. 2002).

499. 133 S. Ct. 1754 (2013).
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that, considering the nature and purpose of the actor’s conduct 

and the circumstances known to him, its disregard involves a

gross deviation from the standard of conduct that a law-abiding 

person would observe in the actor’s situation.”500

• Section 523(a)(5). This exception comes up a lot in consumer 

cases because marital separation or divorce often happens before 

or during a bankruptcy. As amended in 2005, the exception 

broadly covers all domestic support obligations,501 as that term is 

defined in § 101(14A). In many instances, the bankruptcy courts 

are called on to determine whether a debt falls within the statutory definition. Although the term “domestic support obligation” is 

broader than traditional alimony or support, the concepts of alimony and support are included within the term, and every circuit has authority from before the 2005 amendments on factors 

that are traditionally used to determine whether an obligation is 

alimony or support.502

• Section 523(a)(6). This exception covers debts for willful and malicious injury to someone else or someone else’s property. Courts 

may have to distinguish between an intentional act that causes an 

injury and an action taken with intent to cause injury. The Supreme Court has held that reckless or negligent injury is not 

enough; rather, an intentional harm or injury standard applies.503

But as the Seventh Circuit pointed out, courts still struggle with 

defining “willful and malicious” injury with certitude:

[W]e imagine that all courts would agree that a willful and malicious injury, precluding discharge in bankruptcy of the debt 

created by the injury, is one that the injurer inflicted knowing 

500. Id. at 1759–60 (quoting ALI Model Penal Code § 2.02(2)(c), p. 226 (1985)).

501. The priority of domestic support obligations is reviewed supra Part 4.

502. For in-depth discussion of domestic support obligations, including the extensive case law before and after the 2005 amendments, see Bankruptcy & Domestic Relations 

Manual, supra note 144. The Manual contains summaries of each circuit’s authority on 

§ 523(a)(5) debts.

503. Kawaauhau v. Geiger, 523 U.S. 57 (1998).
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he had no legal justification and either desiring to inflict the injury or knowing it was highly likely to result from his act.504

• Section 523(a)(7). Fines, penalties, or forfeitures to a governmental unit are excepted from discharge, provided they are not 

“compensation for actual pecuniary loss.”505 In addition, tax penalties are covered by this exception if the underlying tax obligation is not dischargeable. A significant Supreme Court decision,

Kelly v. Robinson,

506 held that § 523(a)(7) included a restitution 

obligation that was imposed as part of a criminal sentence.

• Section 523(a)(8). This exception prevents the discharge of student loan obligations that are made, insured, or guaranteed by a 

governmental unit or nonprofit institution unless the debtor is 

able to prove that paying the obligation will impose an “undue 

hardship,” a term that is not defined in the Code.507 The most 

commonly used test for determining undue hardship was developed by the Second Circuit in Brunner v. New York State Higher 

Education Services Corp.

508 The test requires proof that the debtor 

is unable to maintain a minimal standard of living for self and 

dependents if repayment is necessary; that the debtor’s current

health, employment, or other circumstances are likely to continue throughout the contractual repayment period; and that the 

debtor has made a good-faith effort to repay the loan.509 The 

Brunner test has been adopted, sometimes with modification, in 

504. Jendusa-Nicolai v. Larsen, 677 F.3d 320, 324 (7th Cir. 2012).

505. 11 U.S.C. § 523(a)(7). See, e.g., Disciplinary Bd. of Supreme Court of Penn. v. 

Feingold (In re Feingold), 730 F.3d 1268 (11th Cir. 2013).

506. 479 U.S. 36 (1986).

507. Section 523(a)(8) was amended in 2005 to increase the scope of the exception. 

See, e.g., Roth v. Educ. Credit Mgmt. Corp., 490 B.R. 908 (B.A.P. 9th Cir. 2013) (describing statutory changes).

508. 831 F.2d 395 (2d Cir. 1987).

509. See, e.g., Hedlund v. Educ. Res. Inst., Inc., 718 F.3d 848 (9th Cir. 2013) (good 

faith examined in light of debtor’s efforts to obtain employment, maximize income, and 

minimize expenses); Krieger v. Educ. Credit Mgmt. Corp., 713 F.3d 882 (7th Cir. 2013) 

(under Brunner test, bankruptcy court’s finding of good-faith effort not clearly erroneous).
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the Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, with the Eighth Circuit using a “totality of circumstances” evaluation.510 One of the unresolved issues is the extent 

to which the undue hardship evaluation depends on a debtor’s 

participation in a nonbankruptcy repayment program that may 

be offered by the lender or government guarantor.511

• Section 523(a)(9). This exception applies to debts resulting from 

death or personal injury caused by the debtor’s unlawful operation of a motor vehicle, vessel, or aircraft, when intoxicated.512

• Section 523(a)(10). Debts that were, or could have been, scheduled in a prior bankruptcy case and that were not discharged, either because of discharge waiver or under § 727(a)(2) through

(a)(7) objections, are not dischargeable in the current case. Basically, once a discharge is denied, its effect is binding in subsequent cases. But there are deviations from this general rule for 

certain debts that were excepted from discharge in a prior case.513

• Section 523(a)(11) & (12). These exceptions rarely apply in consumer cases because they deal with fraud and defalcation, or failure to maintain capital, with respect to an insured depository institution.

• Section 523(a)(13). A debt for restitution under Title 18 of the 

U.S. Code is not dischargeable.

• Section 523(a)(14). A debt incurred for the purpose of paying a 

nondischargeable United States tax obligation is excepted from 

discharge.

510. See In re Reynolds, 425 F.3d 526 (8th Cir. 2005).

511. See, e.g., Nielsen v. ACS, Inc. (In re Nielsen), 473 B.R. 755 (B.A.P. 8th Cir. 2012) 

(debtor eligible for income contingent repayment program not able to discharge student 

loan); but compare Bene v. Educ. Credit Mgmt. Corp. (In re Bene), 474 B.R. 56 (Bankr. 

W.D.N.Y. 2012) (Brunner test did not require debtor to participate in nonbankruptcy 

repayment program, under totality of circumstances).

512. See, e.g., In re Reese, 91 F.3d 37 (7th Cir. 1996).

513. See 11 U.S.C. § 523(b).
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• Section 523(a)(14A). A debt incurred for the purpose of paying a 

nondischargeable tax obligation to a governmental entity, other 

than the United States, is excepted from discharge.

• Section 523(a)(14B). A debt incurred to pay fines or penalties 

under federal election laws is excepted from discharge.

• Section 523(a)(15). This provision excepts from discharge in 

Chapter 7 cases those marital obligations that are not within the 

domestic support category, but were incurred “in the course of a 

divorce or separation or in connection with a separation agreement, divorce decree or other order . . . or a determination.”514

This exception is used typically for property division debts that 

arise in divorce or separation agreements and orders.515

• Section 523(a)(16). Fees or assessments of homeowner or condominium associations that arise after the filing of a Chapter 7 

bankruptcy are excepted from discharge, so long as the debtor 

has legal, equitable, or possessory interests in the property.516

Nevertheless, a debtor may have trouble ridding himself or herself of postpetition liability, for example, if the mortgagee declines to foreclose because it doesn’t want to assume homeowner 

association fees.517

• Section 523(a)(17). This exception only applies to prisoners who 

incur costs from court pleadings.

• Section 523(a)(18). Loans from pension, profit-sharing, or bonus 

plans that are tax-sheltered under the Internal Revenue Code are 

excepted from discharge.

514. Id. § 523(a)(15), as amended in 2005.

515. See Bankruptcy & Domestic Relations Manual, supra note 144, for in-depth discussion of § 523(a)(15) obligations and the extensive case law before and after the 2005 

amendments. The Manual contains summaries of each circuit’s authority on § 523(a)(15) 

debts.

516. See In re Rosenfeld, 23 F.3d 833 (4th Cir. 1994).

517. See, e.g., In re Ames, 447 B.R. 680 (Bankr. D. Mass. 2011). See also In re Canning, 706 F.3d 64 (1st Cir. 2013) (surrender of residence didn’t require creditor to foreclose or take possession; refusal to foreclose didn’t violate § 524 discharge injunction).
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• Section 523(a)(19). An exception rarely seen in consumer cases, a 

debt arising from a security law violation is not dischargeable.

Procedurally, the type of debt makes a difference as to when a complaint (adversary proceeding) to determine dischargeability must be filed.

Under § 523(c), the debts covered by exceptions § 523(a)(2), (4), and (6) 

are treated as dischargeable unless a timely complaint is filed; and Bankruptcy Rule 4007(c) provides that these three categories of debts require a 

complaint to be filed no later than sixty days after the first date set for the 

§ 341 meeting of creditors. All of the other excepted debts are automatically excepted from a Chapter 7 discharge, but a complaint may be filed 

at any time if there is a question about the discharge of that debt.518 For 

example, although student loan debt is automatically excepted from discharge under § 523(a)(8), a debtor may file a complaint in an attempt to 

show undue hardship that would justify discharge of all or part of the 

debt.519

5.9 Revocation of discharge

The Code allows for revocation of a Chapter 7 discharge, but under strict 

timing requirements. Grounds for revocation include debtor fraud in 

obtaining discharge (the party seeking revocation must have had no

knowledge of the fraud before discharge was granted)520 and the debtor’s 

failure to disclose acquisition of or entitlement to property of the estate.521 Revocation must be sought within one year of the discharge or by 

the date the case is closed, depending on the grounds.522

518. Fed. R. Bankr. P. 4007(b) (“A complaint other than under § 523(c) may be filed 

at any time.”).

519. See, e.g., Educ. Credit Mgmt. Corp. v. Jorgensen (In re Jorgensen), 479 B.R. 79 

(B.A.P. 9th Cir. 2012) (partial discharge of student loan proper under Brunner test). Cf.

Conway v. Nat’l Collegiate Trust (In re Conway), 559 F. App’x 610 (8th Cir. 2014) (partial 

discharge not available remedy under circuit’s totality-of-circumstances test).

520. 11 U.S.C. § 727(d)(1). See Jones v. U.S. Trustee (In re Jones), 726 F.3d 897 (9th 

Cir. 2013) (fraud that would have supported denial of discharge supports revocation);

Zedan v. Habash, 529 F.3d 398 (7th Cir. 2008) (§ 727(d) requires no knowledge of fraud 

before discharge granted).

521. 11 U.S.C. § 727(d)(2). See, e.g., In re Thunberg, 641 F.3d 559 (1st Cir. 2011).

522. 11 U.S.C. § 727(e).
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5.10 Discharge injunction

Upon entry of a § 727 discharge, a permanent injunction goes into place 

under § 524(a), voiding any judgment for personal liability on discharged 

debt, and enjoining the commencement or continuation of suits and collection efforts against the debtor personally. Valid liens, however, may 

remain subject to secured claims.523 The Supreme Court, in Johnson v. 

Home State Bank,

524 underscored the typical survival of valid liens, holding that in a subsequent Chapter 13 case the in rem lien of a secured creditor was a claim, notwithstanding the debtor’s discharge of in personam

liability. Violations of the discharge injunction are frequent subjects of 

litigation. Although generally there is no private right of action under 

§ 524, violations of the discharge injunction may be remedied through 

contempt proceedings,525 with the potential for monetary sanctions.526

5.11 Conversion of case to Chapter 13

A Chapter 7 debtor may decide to convert the case to Chapter 13. Although § 706(a) states that a case may be converted to Chapter 11, 12, or 

13 “at any time,” the Supreme Court held, in Marrama v. Citizens Bank of 

Massachusetts,

527 that the right to convert to Chapter 13 is good-faith dependent. Therefore, if a debtor seeks to convert for reasons like being 

caught by a Chapter 7 trustee for concealing assets, the conversion may 

be denied for lack of good faith.

523. See, e.g., Lee v. Yeutter, 917 F.2d 1104 (8th Cir. 1990).

524. 501 U.S. 78 (1991).

525. See, e.g., Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1191 (9th Cir. 

2012) (agreeing with Solow v. Kalikow (In re Kalikow), 602 F.3d 82, 93 (2d Cir. 2010), that 

contempt is by motion practice, citing Fed. R. Bankr. P. 9014 & 9020).

526. See, e.g., Badovick v. Greenspan (In re Greenspan), 464 B.R. 61 (Table) (B.A.P. 

6th Cir. 2011) (debtor’s attorney fees for defending state court action after discharge 

awarded as sanction).

527. 549 U.S. 365 (2007).
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5.12 Voluntary dismissal of Chapter 7 case

In addition to involuntary dismissal of a Chapter 7 case,

528 § 707 may also 

permit the debtor to voluntarily dismiss a Chapter 7 case; but cause must 

be shown, after notice to all parties in interest and opportunity for a 

hearing.529 If the debtor’s attempt to dismiss the case is in bad faith or 

would be prejudicial to creditors, voluntary dismissal likely will be denied.530

5.13 Lien avoidance and stripping

In Dewsnup v. Timm,

531 the Supreme Court rejected a Chapter 7 debtor’s 

attempt to “strip down” or “strip off” a valid lien because of the collateral’s decline in value, rendering the lien wholly or partially unsecured.

The Court held that § 506(d) does not permit a Chapter 7 debtor to value 

the collateral of a secured creditor and redeem the property by paying 

only the value, thereby voiding the otherwise valid lien. The Court interpreted § 506(d)’s term “allowed secured claim” to include a lien that was 

valid under applicable state law, even though the lien had little or no value. As a result of Dewsnup, Chapter 7 debtors are not able to do what 

many debtors can do in Chapter 13—strip off the wholly unsecured lien, 

usually a second mortgage on a residence. For consumer debtors, this is a 

valuable distinction between Chapter 7 and 13 relief.

532

528. See supra § 5.2.

529. 11 U.S.C. § 707(a).

530. See, e.g., In re Zick, 931 F.2d 1124 (6th Cir. 1991) (citing to opinions and factors 

in § 707(a) dismissal consideration).

531. 502 U.S. 410 (1992).

532. See Woolsey v. Citibank, N.A. (In re Woolsey), 696 F.3d 1266 (10th Cir. 2012), 

for discussion of Dewsnup in a Chapter 13 context. The potential lien-stripping in Chapter 13 is discussed infra Part 6.

115

~ part 6 ~

relief under chapter 13

6.1 Overview

The following are major components of relief under Chapter 13:

• Eligibility for relief under this chapter. § 109(e)

• Optional and required elements for plan proposals. § 1322

• Plan confirmation requirements and process, including objections to 

confirmation and effects of confirmation. §§ 1325 & 1327

• Plan modification, before and after confirmation. §§ 1323 & 1329

• Discharge issues. § 1328

• Effects of conversion or dismissal of a case. § 1307

Chapter 13 relief is for an “individual with regular income,”533 sometimes 

referred to as “wage earner” bankruptcy. But it is not essential that a 

debtor’s income be from wages; rather, as discussed in the next section 

on eligibility, the requirement is that a debtor’s source of income be 

“regular.”534 The structure of the Code’s provisions for Chapter 13 debtors is directed toward the proposal and ultimate confirmation of a plan 

to reorganize prepetition debts, perhaps restructuring contractual terms 

of secured debts, and typically paying less than 100% of unsecured debts. 

Upon completion of a confirmed plan, a debtor hopes to obtain a discharge; but some long-term debt, such as a home mortgage, may continue after that discharge. Part 6 reviews the Code’s provisions for Chapter 

13, the applicable Bankruptcy Rules, and representative case authority. In 

2005, under BAPCPA, substantial changes were made to Chapter 13, and 

the discussion below emphasizes the current Code, as amended, and relevant judicial interpretations, including by the Supreme Court. Some of 

533. 11 U.S.C. §§ 101(30), 109(e).

534. See id. § 109(e).
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BAPCPA’s impact has not been fully resolved on the appellate level, and 

relevant splits of authority are highlighted.

535

6.2 Eligibility for Chapter 13 relief

Code § 109(e) establishes the basic requirements for Chapter 13 eligibility. Only individuals are eligible, and they must have regular income, 

with maximum limits for both secured and unsecured debt. Regular income does not necessarily mean that a debtor must have regular employment, and there is substantial case authority that the test is not the 

source of the income, but whether the income is stable and regular.536

Some examples of sufficiently regular income are retirement or pension 

income,537 welfare payments,538 and child support payments.539 If the regularity of income is put at issue—typically by a motion to dismiss the 

case—the facts of each case would be determinative, but “regular” does 

not mean that each month’s income is the same; rather, emphasis is more 

on the stability, or predictability, of the income, since the principal concern for confirmation purposes is that a debtor have sufficient income to 

fund a proposed plan.540

One of the “regular income” issues that has been litigated frequently 

is whether a loan from a family member or friend suffices, and, if that is 

535. The sheer monthly volume of judicial opinions on Chapter 13 issues prevents 

complete case analysis in this monograph. For in-depth analysis and case summaries 

posted monthly, see Hon. Keith M. Lundin, Chapter 13 Bankruptcy (4th ed. 2009) [hereinafter Chapter 13 Bankruptcy], available at http://www.ch13online.com. For other 

sources of case law and statutory analysis, see Appendix B, infra.

536. See 11 U.S.C. § 101(30) for definition of “individual with regular income.” See, 

e.g., In re Schauer, No. 99-31918, 2000 WL 33792712, at *7 (Bankr. D.N.D. Aug. 14, 2000) 

(“The benchmark for determining whether an individual has ‘regular income’ for purposes of section 101(30) of the bankruptcy code is not the type or source of income, but ‘its 

stability and regularity.’”).

537. See, e.g., Regan v. Ross, 691 F.2d 81 (2d Cir. 1982).

538. See, e.g., In re Hammonds, 729 F.2d 1391 (11th Cir. 1984).

539. See, e.g., In re Taylor, 15 B.R. 596 (Bankr. D. Ariz. 1981).

540. See 11 U.S.C. § 1325(a)(6)’s plan confirmation requirement that “the debtor 

will be able to make all payments under the plan.” See also, e.g., In re Mercado, 376 B.R. 

430 (Bankr. M.D. Fla. 1990) (regular income tested by ability to make plan payments). 

Feasibility and other confirmation requirements are discussed infra § 6.10.
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the only source of income, whether it likely does not satisfy the threshold 

requirement.541 On the other hand, regular contributions from a family 

member to assist plan funding may be regular income, provided the contributions are verified.542 Another issue often raised is whether a debtor 

who has the necessary regular income may fund a plan when the primary 

funding source is a future sale of property. Some courts hold that a 

speculative sale is not a source of regular income.543 If a sale is reasonably 

reliable, it may constitute a plan funding source, if not solely, at least sufficiently, for regular income purposes.544 Issues like sales present mixed 

questions of regular income and plan funding requirements that are discussed infra.

Other than the regular income requirement, § 109(e) sets out specific 

monetary restrictions on eligibility, including conditions that the debts be 

“noncontingent [and] liquidated,” as well as within statutory limits. 

There are judicial interpretations of the statutorily undefined terms 

“noncontingent” and “liquidated.” A typical concept of a contingent liability is one “in which the obligation to pay does not arise until the occurrence of a ‘triggering event or occurrence . . . reasonably contemplated 

by the debtor and creditor at the time the event giving rise to the claim 

occurred.’”545 Whether a debt is “liquidated” typically depends on the 

ability to determine the amount “by reference to an agreement or by a 

simple computation.”546

The statute’s monetary limits are subject to automatic, periodic adjustment every three years for inflation.

547 Currently, noncontingent, liq541. See, e.g., Pellegrino v. Boyajian (In re Pellegrino), 423 B.R. 586 (B.A.P. 1st Cir. 

2010) ($8,000 loan to fund plan not regular income when plan would be required to last 

thirty-six months).

542. See, e.g., In re LaVictoire, Nos. 10-10076 & 10-10325, 2011 WL 1168288 (Bankr. 

D. Vt. Mar. 25, 2011) (contributions from debtor’s mother were sufficiently stable).

543. See, e.g., In re Nealen, 407 B.R. 194 (Bankr. W.D. Pa. 2009).

544. See, e.g., In re Van Winkle, No. 11-13861-j13, 2012 WL 404956 (Bankr. D.N.M. 

Feb. 8, 2012) (citing 11 U.S.C. § 1322(b)(8), a plan may provide for payment of all or part 

of claims from property of estate).

545. Barcal v. Laughlin (In re Barcal), 213 B.R. 1008, 1013 (B.A.P. 8th Cir. 1997).

546. Mazzeo v. United States (In re Mazzeo), 131 F.3d 295, 305 (2d Cir. 1997).

547. See 11 U.S.C. § 104. The next adjustment is scheduled for April 2016.
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uidated secured debt must be less than $1,149,525, and noncontingent, 

liquidated unsecured debt must be less than $383,175 “on the date of the 

filing of the petition.”548 Under this statutory reference, whether either 

class of debt falls outside of the limits is normally determined as of the 

petition date,549 and courts typically look primarily to a debtor’s schedules of debt, unless there is some issue of lack of good faith in preparing 

those schedules.550 There is authority that the statutory debt limits are not 

jurisdictional and are subject to waiver if not timely asserted, typically in 

a motion to dismiss.551

In many instances, an issue arises as to whether a debt that is actually 

less than fully secured—because of collateral value—should be bifurcated, with the portion supported by value treated as secured for eligibility 

purposes and the balance unsecured.552 While all courts do not agree that 

bifurcation is necessary for eligibility purposes, the majority have concluded that bifurcation is required.553 The result can be harsh, since in 

today’s real estate markets many debtors’ home values result in undersecured mortgages, with substantial unsecured portions pushing debtors 

over the unsecured limit.554 The issue of bifurcating undersecured home 

548. See id. § 109(e).

549. See, e.g., Scovis v. Henrichsen (In re Scovis), 249 F.3d 975 (9th Cir. 2001).

550. See, e.g., Martindale v. Meenderinck (In re Meenderinck), 256 F. App’x 913, 914 

(9th Cir. 2007) (citing Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 982 (9th Cir. 

2001), “‘eligibility should normally be determined by the debtor’s originally filed schedules, checking only to see if the schedules were made in good faith’”); accord, NCI Building Sys. LP v. Harkness (In re Harkness), 189 F. App’x 311 (5th Cir. 2006); Comprehensive Accounting Corp. v. Pearson (In re Pearson), 773 F.2d 751 (6th Cir. 1985).

551. See, e.g., Gen. Lending Corp. v. Cancio, 505 B.R. 63 (S.D. Fla. 2014), aff’d, No. 

14-10838, 2014 WL 4099739 (11th Cir. Aug. 21, 2014) (creditor’s motion to dismiss for 

exceeding eligibility amounts barred by laches when filed after plan confirmed).

552. See 11 U.S.C. § 506(a).

553. See, e.g., Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 983–84 (9th Cir. 

2001) (stating that this is majority view); Ficken v. United States (In re Ficken), 2 F.3d 299 

(8th Cir. 1993); Brown & Co. Sec. Corp. v. Balbus (In re Balbus), 933 F.2d 246 (4th Cir. 

1991). Contra Comprehensive Accounting Corp. v. Pearson (In re Pearson), 773 F.2d 751 

(6th Cir. 1985). 

554. See, e.g., Santos v. Dockery (In re Santos), 540 F. App’x 622 (9th Cir. 2013) 

(amount of unsecured junior liens made debtor ineligible); Smith v. Rojas (In re Smith), 
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119

loans runs into § 1322(b)(2)’s antimodification protection for claims secured only by a security interest in the debtor’s principal residence.

555

Some courts conclude that an undersecured first mortgage may not be 

bifurcated for eligibility purposes, while a wholly unsecured junior mortgage—one not entitled to § 1322(b)’s protection—is treated as completely unsecured for eligibility purposes.556

A related eligibility issue is whether a Chapter 13 debtor must include 

in the calculation debt that was discharged in a prior Chapter 7 case. In re

Scotto-DiClemente is illustrative.

557 In that case, the bankruptcy court referred to the holding of Johnson v. Home State Bank,558 that an in rem

claim remaining after Chapter 7 discharge of a debtor’s in personam liability was still a claim in a subsequent bankruptcy case. The ScottoDiClemente court concluded that such a claim must be included in, and 

counted for, eligibility purposes in a subsequent Chapter 13 case.

General eligibility requirements (discussed supra Part 2), including 

completion of prebankruptcy credit briefing, apply in Chapter 13 cases as 

they do in Chapter 7.559

6.3 Good-faith filing and conversion eligibility

Underlying every Chapter 13 petition and proposed plan is the debtor’s

good faith or lack thereof. Section 1325(a)(3) requires that a plan be 

“proposed in good faith.” Also, for confirmation purposes, “the action of 

the debtor in filing the petition [must have been] in good faith.”560 The

debtor’s good faith frequently is a factor in an early motion to dismiss the 

case.561 The grounds for dismissal under § 1307 are examined in more 

435 B.R. 637, 646–49 (B.A.P. 9th Cir. 2010) (pointing out that resolving this difficulty is 

an issue for congressional action).

555. See infra § 6.9.2

556. See, e.g., In re Munoz, 428 B.R. 516 (Bankr. S.D. Cal. 2010) (distinguishing 

Scovis, 249 F.3d at 983–84).

557. 463 B.R. 308 (Bankr. D.N.J. 2012).

558. 501 U.S. 78 (1991).

559. See, e.g., In re Arkuszewski, 507 B.R. 242 (Bankr. N.D. Ill. 2014) (dismissing case 

for failure to complete credit briefing before filing petition).

560. 11 U.S.C. § 1325(a)(7), as amended 2005.

561. See, e.g., Brown v. Gore, 742 F.3d 1309 (11th Cir. 2014) (good-faith determination made case-by-case).
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detail later, but good faith may be thought of as an element of eligibility, 

with motions to dismiss on bad-faith grounds perhaps joined with an 

attack on the debtor’s eligibility under the statutory debt limits or separately with allegations of specific abuse.562

Because Chapter 7 debtors often convert voluntarily to Chapter 13,

eligibility for conversion may be questioned early in the Chapter 13 

phase. Section 348(a) treats a case converted from one Chapter to another as the same case. But the Supreme Court emphasized, in Marrama v. 

Citizens Bank of Massachusetts,

563 that eligibility for Chapter 13 relief is 

fundamental for conversion to Chapter 13. In Marrama, the Chapter 7 

debtor tried to convert to Chapter 13, asserting that § 706(a) provides 

“that the debtor may convert . . . at any time.”564 The Court affirmed the 

First Circuit’s interpretation of that language as conditioned on eligibility:

[W]e can discern no evidence that the Congress intended to override 

the presumptive power and responsibility of the bankruptcy court to 

weed out abuses of the bankruptcy process at any stage in the bankruptcy proceedings. . . . The word “may” has at least two connotations. It 

can simply denote that a debtor has the option to convert, or not convert. On the other hand, “may” often suggests conditionality, signifying 

that the event or status described is in no sense to be considered a foregone conclusion.565

Thus good faith is a threshold eligibility issue, as well as a factor throughout a Chapter 13 case.

There is a question whether a Chapter 13 case may be filed soon after 

a Chapter 7 case, in what is called a “Chapter 20.” As a result of the Supreme Court’s holding in Johnson v. Home State Bank566 that the in rem 

lien on a home survives a Chapter 7 discharge, and can be treated in a 

subsequent Chapter 13 case and plan, most courts have found no per se

562. See, e.g., In re Myers, 491 F.3d 120 (3d Cir. 2007) (debtor acted in bad faith by 

fraudulent prepetition transfers to evade state court judgment).

563. 549 U.S. 365 (2007).

564. 11 U.S.C. § 706(a).

565. Marrama v. Citizens Bank of Mass. (In re Marrama), 430 F.3d 474, 478 (1st Cir. 

2005).

566. 501 U.S. 78 (1991).
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rule against “Chapter 20” cases; but good faith is an important factor. 

However, when a debtor files the second case too quickly, resulting in 

simultaneous Chapter 7 and 13 cases—two pending at the same time—

some courts conclude that there is a rule against such simultaneous cases.567 Other courts, while assessing good faith and whether there is a justifiable reason for the simultaneous filings, have not found a per se rule.

568

6.4 Property of Chapter 13 estate

Under § 541, the broad concept of property of the bankruptcy estate (discussed supra Part 3) applies in Chapter 13 cases. However, that concept is 

broader still in Chapter 13. Section 1306 includes in the estate property 

“that the debtor acquires after the commencement of the case but before 

the case is closed, dismissed, or converted” to another chapter, as well as 

“earnings from services performed by the debtor after the commencement of the case.”569 This inclusion of postpetition acquisitions and earnings is understandable when placed in context of funding for a plan. 

Courts have taken different views of how much remains in the bankruptcy estate after confirmation, as contrasted with what revests in a debtor at 

that point; but at the preconfirmation stage of a case, the Chapter 13 estate includes postpetition assets. With some exceptions listed in § 362(b), 

the automatic stay (discussed supra Part 2) protects not only the debtor 

but also the bankruptcy estate property, at least until confirmation, when 

some property may revest in the debtor, depending on the provisions of 

the order confirming the plan.

The broadened property concept poses tricky questions: Do 

§ 541(a)(5)’s limitations on property of the estate also apply in Chapter 

13? Or does § 1306 overcome them? As a particular example, 

§ 541(a)(5)(A) provides that the bankruptcy estate includes inheritances 

that a debtor acquires within 180 days of the petition filing. Judicial authority is split on the effect of this 180-day limitation in Chapter 13. The 

567. See, e.g., Turner v. Citizens Nat’l Bank (In re Turner), 207 B.R. 373 (B.A.P. 2d 

Cir. 1997).

568. See, e.g., Sood v. Bus. Lenders, LLC, No. MJG-11-2528, 2012 WL 2847613 (D. 

Md. July 10, 2012) (remanding for good-faith determination).

569. 11 U.S.C. § 1306(a) & (b).
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Tenth Circuit Bankruptcy Appellate Panel held, in Vannordstrand v. 

Hamilton (In re Vannordstrand),570 that an inheritance received two years 

after the Chapter 13 petition filing was property of the estate under 

§ 1306(a)(1), but the decision hangs on that court’s view that property of 

the estate did not revest in the debtor upon confirmation of the plan. A 

more recent decision simply concluded that “not applying the 180-day 

limitation under § 541(a)(5), when determining what is included within 

a chapter 13 estate under § 1306(a), is consistent with a major distinction 

between chapters 13 and 7.”571 Other courts have read § 1306’s reference 

to “property specified in section 541” as including § 541(a)(5)’s 180-day 

restriction, and have concluded that inheritances received more than 180 

days postpetition do not come into the bankruptcy estate.572

6.5 Codebtor stay

One of the distinctions between Chapter 13 and 7 is that § 1301 provides 

a stay of most actions against an individual who cosigned or is obligated 

with the Chapter 13 debtor on a consumer debt.573 The statute has the 

following exceptions: (1) the codebtor became liable on the debt in the 

ordinary course of the codebtor’s business, and (2) the case has been 

closed, dismissed, or converted to one under Chapter 7 or 11.574 The latter exception simply means that the codebtor stay terminates on one of 

those events. Also, the party seeking to proceed against the codebtor may 

move for relief, showing that the codebtor actually received the consideration underlying the claim; that the Chapter 13 plan does not propose to 

570. 356 B.R. 788 (B.A.P. 10th Cir. 2007). Accord Carroll v. Logan, 735 F.3d 147 (4th 

Cir. 2013); Dale v. Maney (In re Dale), 505 B.R. 8 (B.A.P. 9th Cir. 2014); In re Roberts, 

514 B.R. 358 (Bankr. E.D.N.Y. 2014).

571. In re Tinney, No. 07-42020-JJR13, 2012 WL 2742457, at *3 (Bankr. N.D. Ala. 

July 9, 2012) (citing dicta from In re Waldron, 536 F.3d 1239 (11th Cir. 2008)).

572. See, e.g., In re McAllister, 510 B.R. 409 (Bankr. N.D. Ga. 2014); In re Key, 465 

B.R. 709 (Bankr. S.D. Ga. 2012).

573. See In re Sarner, No. 10-17487-JNF, 2011 WL 5240200 (Bankr. D. Mass. Oct. 

31, 2011) (§ 1301 applies only to consumer debts). See supra Part 2.

574. There is a codebtor stay also in Chapter 12 cases. See 11 U.S.C. § 1201.
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pay the debt in full; or that the creditor’s interest would be “irreparably 

harmed by continuation of the stay.”575

6.6 Chapter 13 trustee

Section 1302 describes the duties and powers of a Chapter 13 trustee, 

who is principally the one receiving plan payments from the debtor (or 

from the debtor’s employer by payroll deduction) and making disbursements to creditors over the life of the plan, which may be up to five 

years.576 The trustee’s role is much broader than simple receipt and disbursement: the trustee has authority to, among other powers, examine 

and object to proofs of claim,577 recommend for or against confirmation 

or modification of a plan,578 ensure that the debtor makes timely plan 

payments,579 and pursue avoidance actions when appropriate.580

6.7 Debtor’s duties and powers

The consumer debtor duties (discussed supra Part 2), in regard to commencement of a case and filing of certain documents after commencement, apply to Chapter 13 debtors. More specific obligations are imposed 

on Chapter 13 debtors, including the requirement to begin to make payments to the trustee before a plan is confirmed. Section 1326(a)(1) provides that “unless the court orders otherwise, the debtor shall commence 

making payments not later than 30 days after the filing of the plan or the 

order for relief, whichever is earlier.” The feasibility of a proposed plan 

and the debtor’s intentions to carry out that proposal are tested early in 

the case by the commencement of payments.581 Only the debtor may pro575. 11 U.S.C. § 1301(d).

576. See id. § 1322(d). See Nardello v. Balboa, 514 B.R. 105 (D.N.J. 2014), for discussion of the Chapter 13 trustee’s percentage commission on distributions to creditors.

577. Id. § 1302(b)(1) (incorporating 11 U.S.C. § 704(5)).

578. Id. § 1302(b)(2).

579. Id. § 1302(b)(5).

580. See id. § 103(a) (making Chapter 5 avoidance powers applicable in Chapter 13).

581. See 11 U.S.C. § 1307(c)(4). Failure to commence plan payments is cause for 

case dismissal.
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pose and file a plan.582 Bankruptcy Rule 3015(b) sets the time for filing a 

plan, if not with the petition, within fourteen days; failure to timely comply with this requirement may in itself be cause for dismissal of a case.583

The Chapter 13 debtor must file tax returns and supply the trustee with 

copies of postpetition returns, if they are requested.584 Section 1308 specifically requires the debtor to file all prepetition tax returns that were 

required during the four years before the bankruptcy; and the returns 

must be filed “not later than the day before the date on which the meeting of the creditors is first scheduled to be held.”585 Section 1307(e) provides that failure to comply with this requirement is cause for dismissal.586

Most Chapter 13 debtors are not engaged in business; but if they are

self-employed, § 1304 imposes reporting duties concerning the business.587 Pursuant to § 1303, debtors generally have the rights and powers 

to exercise control over property of the estate.588 Essentially, a Chapter 13 

debtor remains in possession and control of property, with the obligation 

to dedicate income as required to fund the confirmed plan.

There are questions about a Chapter 13 debtor’s authority to exercise 

trustee powers that are not specified in § 1303 or elsewhere in the Code. 

For example, the extent of a Chapter 13 debtor’s power to pursue avoidance that a trustee could exercise is not always clear. As discussed supra

Part 3, § 522(g) and (h) restrict a debtor’s avoidance power to recovery 

that would permit an allowable exemption; but to exercise that power, 

the trustee must have declined to pursue avoidance, or the transfer at issue must have been involuntary. Although this statutory authority has 

been recognized in Chapter 13 cases,589 most courts have limited the 

582. Id. § 1321 (“The debtor shall file a plan.”). 

583. Id. § 1307(c)(3).

584. Id. § 521(f). See supra § 2.4.

585. 11 U.S.C. § 1308(a).

586. See, e.g., United States v. Cushing (In re Cushing), 401 B.R. 528 (B.A.P. 1st Cir. 

2009).

587. See also Fed. R. Bankr. P. 2015(c).

588. See 11 U.S.C. § 363(b), (d), (e), (f) & (l). 

589. See, e.g., Dickson v. Countrywide Home Loans (In re Dickson), 655 F.3d 585 

(6th Cir. 2011).
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debtor to that power, finding no statutory authority to allow a Chapter 

13 debtor to broadly exercise such avoidance powers as preference and 

fraudulent transfer.590 Outside of the avoidance powers, there is authority 

that a Chapter 13 debtor has standing to pursue causes of action that 

would benefit the bankruptcy estate and creditors.591 Chapter 13 debtors 

are often plaintiffs in actions related to validity of home mortgages.592

6.8 Plan requirements

Section 1322(a) sets out the requirements for a proposed Chapter 13 

plan, followed by § 1322(b)’s optional provisions. The mandatory provisions of a plan proposal include: (1) that the debtor submit future earnings as necessary to execute the plan; (2) that all priority claims be paid in 

full, unless the creditor agrees otherwise, although these claims may be 

paid in deferred cash payments; and (3) that if the plan classifies claims, it 

shall provide the same treatment for each class member.593 The most 

common examples of priority claims in Chapter 13 cases are domestic 

support obligations and taxes.594 Under § 1322(a)(4), priority domestic 

support obligations assigned prebankruptcy to a governmental entity for 

purposes other than collection, or such obligations owed directly to a 

590. See, e.g., Lee v. Anasti (In re Lee), 461 F. App’x 227 (4th Cir. 2012) (Chapter 13 

debtor lacked § 544(a) avoidance power); Realty Portfolio, Inc. v. Hamilton (In re Hamilton), 125 F.3d 292 (5th Cir. 1997) (debtor’s § 544 power limited to involuntary transfer 

when recovery would be exempt).

591. See, e.g., Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4th Cir. 2013) (agreeing 

with Third, Fifth, Seventh, Tenth, and Eleventh Circuits, Chapter 13 debtor had standing 

to bring nonbankruptcy causes of action for benefit of estate, here Americans with Disabilities Act claim); Smith v. Rockett (In re Smith), 522 F.3d 1080 (10th Cir. 2008) (debtor 

had standing to pursue Fair Debt Collection Practices Act cause of action); Thomas v. 

Ind. Oxygen Co., No. 1:14-cv-00476-JMS-DKL, 2014 WL 3509693 (S.D. Ind. July 15, 

2014) (debtor had concurrent standing with trustee to pursue employment discrimination suit).

592. See infra § 6.16.

593. 11 U.S.C. § 1322(a)(1)–(3).

594. See, for example, In re Burnett, 656 F.3d 575 (8th Cir. 2011), for discussion of 

priority domestic support obligations. See generally Bankruptcy & Domestic Relations 

Manual, supra note 144, for in-depth discussion of domestic support obligations and 

summaries of each circuit’s authority. Priority claims are discussed supra Part 4.
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governmental entity, may be paid less than 100% in a plan only if the 

debtor devotes all disposable income to the plan for a full five years.595

There is no Official Form for a Chapter 13 plan, although the Advisory Committee on the Bankruptcy Rules has proposed Official Form 113,

a form plan, and related amendments to the Bankruptcy Rules for public 

comment.

596 Chapter 13 practice involves local plan forms that vary 

around the country, with each bankruptcy court having discretion to require specific provisions,597 and thus the potential for disagreement about 

whether a particular plan term violates a Code provision or rights of 

some party in interest.598

6.9 Optional plan provisions

Section 1322(b) describes optional plan provisions, although there are 

conditions for use of some of these provisions.

6.9.1 Separate classification

One of the frequently litigated optional terms deals with classification. If 

the plan classifies different types of unsecured creditors, it may not “discriminate unfairly against any class so designated.”599 But § 1322 of the

Code specifically permits separate treatment of claims for consumer debt 

on which there is a codebtor. Section 1322(b)(1) works in conjunction 

with § 1301’s codebtor stay.600 The Ninth Circuit Bankruptcy Appellate 

Panel analyzed the separate classification and preferred treatment of a 

595. See 11 U.S.C. § 507(a)(1)(B). See also In re Penaran, 424 B.R. 868 (Bankr. D. 

Kan. 2010) (discussing burden of proof on governmental entity to show claim not subject 

to this lower priority and treatment).

596. Proposed Official Form 113 is available at http://www.uscourts.gov/

RulesAndPolicies/rules/proposed-amendments.aspx. If adopted, the form and related 

amendments to Bankruptcy Rules would become effective December 1, 2016.

597. See, e.g., In re Herrera, 650 F.3d 1300 (9th Cir. 2011) (bankruptcy court had 

authority to establish form plan for district); McIntosh v. LeBarge (In re McIntosh), 491 

B.R. 905 (B.A.P. 8th Cir. 2013) (upholding district’s local plan provisions).

598. See, e.g., In re Gordon, 471 B.R. 614 (D. Colo. 2012) (discussing local plan provisions and compliance with Code requirements).

599. 11 U.S.C. § 1322(b)(1).

600. See supra § 6.5.
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consumer debt on which the debtor’s mother was a co-obligor, holding 

that plan confirmation could not be denied solely because the plan discriminated by paying that claim 100%.601 The Code appears to allow this 

type of separate classification and favorable discrimination; but there is 

less clarity when the separate classification and preferred treatment are

for other types of claims, such as taxes and student loan obligations that 

are excepted from discharge under § 1328(a)(2), incorporating 

§§ 523(a)(1) and 523(a)(8).602

When separate classification is contested, the courts have used various tests to determine if it would lead to “unfair discrimination” in favor 

of that separate class. A basic test was set forth in In re Wolf:603 (1) A rational basis for the discriminatory treatment must be shown, (2) tested 

against whether the debtor could carry out the proposed plan without the 

proposed discrimination, (3) with the discrimination proposed in good 

faith, and (4) requiring that the degree of discrimination be directly tied 

to the reason for the separate classification. This test and its modifications demand a case-by-case analysis.604 Demonstrated need for the separate and preferred treatment, as well as the debtor’s good faith, are crucial 

elements, no matter how the test is expressed. As the Seventh Circuit 

pointed out, the rights of all creditors must be considered.605

Although some courts have found that separate classification and 

preferred treatment of nondischargeable student loan claims pass the 

test,606 most courts have concluded that paying 100% of student loan debt

or other nondischargeable claims, while paying a smaller percentage to 

601. In re Renteria, 470 B.R. 838 (B.A.P. 9th Cir. 2012).

602. See, e.g., Copeland v. Fink (In re Copeland), 742 F.3d 811 (8th Cir. 2014) (plan 

unfairly discriminated by paying 100% of nondischargeable tax debt).

603. 22 B.R. 510 (B.A.P. 9th Cir. 1982). See also In re Crawford, 324 F.3d 539 (7th 

Cir. 2003) (refining Wolf test).

604. See, e.g., In re Stella, No. 05-05422-TLM, 2006 WL 2433443 (Bankr. D. Idaho 

June 28, 2006). See also Copeland, 742 F.3d 811 (applying four-part test of unfair discrimination in In re Lesser, 939 F.2d 669 (8th Cir. 1991)).

605. See Crawford, 324 F.3d 539.

606. See In re Boscaccy, 442 B.R. 501 (Bankr. N.D. Miss. 2010) (reviewing conflicting 

authority). See also In re Knowles, 501 B.R. 409 (Bankr. D. Kan. 2013) (monthly payment 

of student loan from discretionary income did not unfairly discriminate).
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other unsecured claims, is unfair discrimination.607 Under § 1322(b)(10), 

added by the 2005 amendments, a plan may propose to pay interest on a 

nondischargeable claim only if the debtor has disposable income sufficient to pay all allowed claims in full. This prohibition against interest 

payment in a plan undercuts the justification for treating a nondischargeable claim more favorably in a separate classification.608

6.9.2 Modification of secured and unsecured claims

Section 1322(b)(2) broadly permits modification of secured claims, subject to the exception for “a claim secured only by a security interest in real 

property that is the debtor’s principal residence,” and it permits modification of unsecured claims, without statutory restriction.609 Plans typically include some modification, especially of unsecured claims, by paying 

less than 100% and by extending payments. For secured claims, the power to modify may include reducing the amount of the claim to the value 

of the collateral, by use of § 506. Section 506(a) provides that “an allowed 

claim . . . secured by a lien . . . is a secured claim to the extent of the value 

of such creditor’s interest in the estate’s interest in such property.” There 

are Code limitations on this broad confinement of a secured claim to the 

value of its collateral.610 Section 1322(b)(2)’s antimodification protection 

for home mortgages prevents a plan from stripping down the value of the 

collateral or changing other essential contractual terms, but it does not 

prevent the curing of prepetition defaults to bring the loan current.

611

607. See, e.g., Gorman v. Birts (In re Birts), No. 1:12cv427 (LMB/TCB), 2012 WL 

3150384 (E.D. Va. Aug. 1, 2012); In re Jordahl, 516 B.R. 573 (Bankr. D. Minn. 2014). See 

also Susan Hauser, Separate Classification of Student Loan Debt in Chapter 13, 32 Am. 

Bankr. Inst. J. 38 (2013).

608. See In re Kubeczko, No. 12-13766 HRT, 2012 WL 2685115 (Bankr. D. Colo. 

July 6, 2012) (denying separate classification and discriminatory treatment of student 

loan debt).

609. 11 U.S.C. § 1322(b)(2).

610. See discussion infra this subsection. See also supra Part 5 for discussion of valuation in Chapter 7 cases.

611. See 11 U.S.C. § 1322(b)(5), discussed infra § 6.9.3.
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In Dewsnup v. Timm,

612 the Supreme Court held that § 506(d) does

not permit a Chapter 7 debtor to value collateral of a secured creditor 

and redeem the property by paying only the value, thereby voiding the 

otherwise valid lien. There was some uncertainty whether Dewsnup applied equally to Chapter 13 modifications, but in Nobelman v. American 

Savings Bank,

613 the Court held that § 506(d) could not be used to strip 

down an undersecured home mortgage to current market value, because 

that would contravene § 1322(b)(2)’s protection from modification. Nobelman’s reach has thus far been limited to the undersecured mortgage 

on a debtor’s principal residence.614 For junior mortgages that are wholly 

unsecured, with no value above a prior mortgage or lien to secure them, 

the majority view is that § 1322(b)(2) does not prevent modification by 

stripping off that unsecured lien and rendering the lien an unsecured 

claim.615 A distinction has been made in Chapter 13 cases between the use 

of § 506(a) to determine if a lien has any value to support a secured claim 

and the Nobelman-prohibited use of § 506(d) to strip down a partially 

secured lien.616

Although the clear majority of bankruptcy and appellate courts allow 

Chapter 13 debtors to avoid unsecured liens,

617 the issue of modification 

of the wholly unsecured junior mortgage has not reached the Supreme 

Court. Moreover, BAPCPA’s amendments to the Code in 2005 introduced lien modification issues that have not yet been fully examined by 

612. 502 U.S. 410 (1992), discussed supra § 5.13.

613. 508 U.S. 324 (1993).

614. See Woolsey v. Citibank, N.A. (In re Woolsey), 696 F.3d 1266 (10th Cir. 2012)

(holding § 506(d) applied in Chapter 13, but suggesting debtors could use combination of 

§§ 506(a) & 1322(b)(2) to strip off wholly unsecured junior lien).

615. See, e.g., Minn. Hous. Fin. Agency v. Schmidt (In re Schmidt), 765 F.3d 877 (8th 

Cir. 2014) (agreeing with other courts of appeals, Nobelman does not prohibit modification of wholly unsecured junior mortgage); Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir. 2002) (agreeing with five other courts of appeals and two 

bankruptcy appellate panels that wholly unsecured second mortgage on debtor’s principal 

residence not protected from modification).

616. See Woolsey, 696 F.3d 1266. Accord Ryan v. United States (In re Ryan), 725 F.3d 

623 (7th Cir. 2013).

617. See Chapter 13 Bankruptcy, supra note 535, Appendix M, for compilation of 

case authority from all circuits on modification of wholly unsecured liens.
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all appellate courts. Section 1325(a)(5)(B)’s plan confirmation requirement gives three choices for “each allowed secured claim provided for by 

the plan”: (1) acceptance by the secured creditor, (2) surrender of the 

collateral, or (3) lien retention, with the amended lien retention providing that the allowed secured creditor retain its lien until the debt is fully 

paid or the debtor receives a discharge.618 The conditioning of lien retention on either payment under applicable nonbankruptcy law or entry of 

discharge, coupled with a change to § 1328(f), has created a disagreement 

among courts, specifically in cases of debtors who are attempting to strip 

off wholly unsecured junior liens but are unable to obtain discharge. Section 1328(f) added a restriction on discharge:

(f) Notwithstanding [§ 1328(a) and (b)], the court shall not grant a discharge of all debts provided for in the plan or disallowed under section 

502, if the debtor has received a discharge—

(1) in a case filed under chapter 7, 11, or 12 of this title during the 4-

year period preceding the date of the order for relief under this 

chapter, or

(2) in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order.619

Some bankruptcy courts have read the combination of 

§§ 1325(a)(5)(B) and 1328(f) as prohibiting a debtor ineligible for a 

Chapter 13 discharge from modifying a wholly unsecured junior lien.620

The majority of bankruptcy courts, including some appellate courts, have 

held otherwise—primarily looking to the prefatory language of 

§ 1325(a)(5)—to conclude that the lien retention and triggering of 

§ 1328(f) only come into play for an “allowed secured claim.”621 By definition, under this latter view a claim that has no value to support it is not 

a secured claim.622 The Fourth and Eleventh Circuits, and the Sixth and 

Eighth Circuit Bankruptcy Appellate Panels, agreed that a debtor ineligi618. 11 U.S.C. § 1325(a)(5)(B), as amended in 2005. This section also provides that 

if the case is dismissed or converted before plan completion, the lien is retained. 

619. Id. § 1328(f), as amended in 2005.

620. See, e.g., In re Geradin, 447 B.R. 342 (Bankr. S.D. Fla. 2011) (en banc), overruled 

by Wells Fargo Bank, N.A. v. Scantling (In re Scantling), 754 F.3d 1323 (11th Cir. 2014).

621. See, e.g., In re Okosisi, 451 B.R. 90 (Bankr. D. Nev. 2011).

622. See 11 U.S.C. § 506(a).
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ble for discharge was not prohibited from stripping off a wholly unsecured lien.623

Since the Chapter 13 debtor is not eligible for discharge because of a 

recent prior discharge, typically in a Chapter 7 in which in personam liability was erased but an in rem lien claim survived, good faith understandably becomes an issue. A fact-intensive examination of the reasons 

for the subsequent Chapter 13 case and why a debtor wants to modify a 

wholly unsecured lien may be required.624 Good faith for planconfirmation purposes will be examined in more detail later; but simply 

because a debtor is ineligible for discharge does not mean that a Chapter 

13 is filed in bad faith. As the Fourth Circuit held, § 1328(f)’s restriction 

on discharge is not an eligibility requirement for Chapter 13 relief.625

Section 1322(b)(2)’s reference to a claim “secured only by a security 

interest in . . . the debtor’s principal residence” raises other modification 

issues. There are many examples of additional security, or use of the 

property for other than principal residential purposes, which may deprive 

a creditor of the antimodification protection. For instance, when the 

property is income-producing and not exclusively the debtor’s principal 

residence, the mortgage is subject to modification.626 There is not complete agreement among the courts on the time for determining the use of 

the property for § 1322(b)(2) purposes. If the property was used as the 

debtor’s principal residence at the time of the mortgage transaction, but 

the use had changed to nonresidential, the Ninth Circuit Bankruptcy Appellate Panel concluded that the appropriate date for purposes of 

623. Scantling, 754 F.3d 1323; Branigan v. Davis (In re Davis), 716 F.3d 331 (4th Cir. 

2013); In re Cain, 513 B.R. 316 (B.A.P. 6th Cir. 2014); Fisette v. Keller (In re Fisette), 455 

B.R. 177 (B.A.P. 8th Cir. 2011). Cf. Fisette v. Keller (In re Fisette), 695 F.3d 803 (8th Cir. 

2012) (holding that this was not final order subject to appeal, since BAP remanded for consideration of other confirmation issues). See also Rogers v. E. Sav. Bank (In re Rogers), 489 

B.R. 327 (D. Conn. 2013) (stripping of wholly unsecured lien was available in no-discharge 

case).

624. See, e.g., In re Renz, 476 B.R. 382 (Bankr. E.D.N.Y. 2012). But see In re Lepe, 470 

B.R. 851 (B.A.P. 9th Cir. 2012) (plan proposed by debtor ineligible for discharge to strip 

off wholly unsecured junior mortgage in good faith).

625. Branigan v. Bateman (In re Bateman), 515 F.3d 272, 281 (4th Cir. 2008).

626. See, e.g., Scarborough v. Chase Manhattan Corp. (In re Scarborough), 461 F.3d 

406 (3d Cir. 2006).
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§ 1322(b)(2)’s application was the petition date. Its opinion, in Benafel v. 

One W. Bank, FSB (In re Benafel),627 discusses the split of authority: a minority of courts, including an earlier Third Circuit opinion,628 look at the 

loan transaction time.

Another restriction on modifying a particular type of secured claims 

is found in the confirmation provisions of § 1325(a), known as the “910” 

car loan protection provision. As amended in 2005, § 1325(a) prevents

debtors’ use of § 506 to value a motor vehicle that was acquired and financed by a purchase money security interest, within 910 days of the petition filing, for the personal use of the debtor. The clause also prohibits 

use of § 506 to value other collateral acquired within one year of the petition, but the primary application of the restriction has been for these

“910 cars.” A significant issue was whether this protection against modifying such loans extended to the “negative equity” resulting from a purchase by a buyer still owing a balance on the trade-in vehicle. All circuits 

but one addressing this issue adopted the view that the negative equity 

that was financed along with the 910 vehicle was a part of the purchase 

price included in the statute’s protection.629 However, despite the protection against modifying the value of the collateral or the amount of the 

secured claim, courts have interpreted the statute as still permitting a 

plan to modify other contractual terms, such as interest rate.630

6.9.3 Curing defaults

Section 1322(b)(3) states that a plan may “provide for the curing or waiving of any default.” Section 1322(b)(5) adds that “notwithstanding” 

§ 1322(b)(2)’s restriction on modification, a plan may “provide for the 

curing of any default within a reasonable time and maintenance of payments while the case is pending.” Subsection (b)(5)’s cure provision is

directed toward debt that contractually extends beyond the life of the 

627. 461 B.R. 581, 588–91 (B.A.P. 9th Cir. 2011). Accord TD Bank, N.A. v. Landry, 

479 B.R. 1 (D. Mass. 2012) (citing Benafel).

628. Scarborough, 461 F.3d 406.

629. See AmeriCredit Fin. Servs., Inc. v. Penrod (In re Penrod), 611 F.3d 1158 (9th 

Cir. 2010) (adopting minority position, and citing eight circuits adopting majority view).

630. See, e.g., In re Velez, 431 B.R. 567 (Bankr. S.D.N.Y. 2010).
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plan—i.e., “long-term” debt—such as a home mortgage.631 Because “reasonable time” to cure default is not defined in the Code, the bankruptcy 

court has discretion to determine what is reasonable under the particular 

circumstances of a case, but the allotted time cannot exceed the life of the 

plan.632 The combination of these “cure” provisions allows a plan to do 

such things as cure prepetition default on secured automobile loans and 

home mortgages, with the loan restored to a position of being current 

when the default has been paid. As to home mortgages in particular, 

§ 1322(b)(5) essentially divides the debt into two segments, constituting a 

“cure and maintain” plan, with prepetition default to be cured within a 

reasonable time, and the ongoing, or maintenance, payments on the debt 

continuing after the plan is complete.

633 Under this concept, the curing of 

default is not a prohibited modification of a mortgage on the debtor’s 

principal residence, although issues may be presented on how far the plan 

may go before its terms constitute a modification. The First Circuit indicated that a plan must be specific if a debtor is trying to direct what a 

mortgage creditor can and cannot do, since § 1322(b)(2) does not impose specific duties on the creditor.634 Subsequent decisions have delved 

into what are called “best practices” plan provisions, in attempts to differentiate plan provisions that are prohibited loan modifications from 

those provisions that properly carry out the Code’s “cure and maintain”

opportunity.635 The effect of a recently amended Bankruptcy Rule on 

mortgage claim litigation is discussed infra § 6.16.

631. 11 U.S.C. § 1322(b)(5).

632. See, e.g., In re Hence, 225 F. App’x 28 (5th Cir. 2007) (discussing factors, and 

bankruptcy court’s discretion on length-of-cure period). See also In re deLone, 205 F. 

App’x 964 (3d Cir. 2006) (finding thirty-six months to cure reasonable, and discussing 

case authority on reasonable times).

633. See, e.g., Ameriquest Mortg. Co. v. Nosek (In re Nosek), 544 F.3d 34 (1st Cir. 

2008) (§ 1322(b)(2) & (b)(5) divide home mortgage into two claims for treatment: one 

for prepetition arrearage and one for ongoing maintenance payments).

634. Id.

635. See, e.g., Greenpoint Mortg. Funding, Inc. v. Herrera (In re Herrera), 422 B.R. 

698 (B.A.P. 9th Cir. 2010), aff’d and adopted sub nom., Home Funds Direct v. Monroy (In 

re Monroy), 650 F.3d 1300 (9th Cir. 2011).
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Another recurring issue is whether a debtor’s opportunity to cure a 

prepetition default has terminated before the bankruptcy filing, for example by foreclosure. Section 1322(c)(1) permits curing “until the residence is sold at a foreclosure sale that is conducted in accordance with 

applicable nonbankruptcy law.”636 Despite this provision, ascertaining

when a foreclosure sale is final may present questions of fact and interpretation of applicable state law.637 Section 1322(c)(2) permits a shortterm home mortgage, one on which the last contractual payment is due 

within the life of the plan, to be modified and paid within the life of the 

plan, so long as the proposed modification otherwise complies with 

§ 1325(a)(5)’s confirmation requirements.638

An interesting issue presented by the potential for curing and modifying home mortgages is whether a claim that is subject to modification 

may be paid beyond the plan’s life. In other words, may the provisions of 

§§ 1322(b)(2) and 1322(b)(5) be combined or “stacked” to modify contractual terms and pay the modified mortgage over a new long term? 

Most courts follow the Ninth Circuit’s Enewally v. Washington Mutual 

Bank (In re Enewally),639 holding that a modified mortgage must be paid 

within the plan life, which can be no longer than five years under 

§ 1322(d).640

Section 1322(e) provides that when a plan proposes to “cure a default, the amount necessary to cure the default shall be determined in 

636. 11 U.S.C. § 1322(c)(1).

637. See, e.g., In re Connors, 497 F.3d 314 (3d Cir. 2007) (adopting “gavel rule” for 

finality of prepetition foreclosure sale); TD Bank, N.A. v. LaPointe (In re LaPointe), 505 

B.R. 589 (B.A.P. 1st Cir. 2014) (under New Hampshire law, foreclosure complete when 

auctioneer’s hammer fell). A different issue may be presented when the home mortgage 

foreclosure actually resulted in a judgment of foreclosure. See, e.g., In re Tynan, 773 F.2d 

177 (7th Cir. 1985) (foreclosure judgment left no default available for curing under 

§ 1322(b)(5)).

638. See, e.g., In re Hubbell, 496 B.R. 784 (Bankr. E.D.N.C. 2013); Geller v. Grijalva

(In re Grijalva), No. 4:11-bk-25386-EWH, 2012 WL 1110291 (Bankr. D. Ariz. Apr. 2, 

2012).

639. 368 F.3d 1165 (9th Cir. 2004).

640. See, e.g., Bullard v. Hyde Park Sav. Bank (In re Bullard), 752 F.3d 483 (1st Cir. 

2014), aff’g 494 B.R. 92 (B.A.P. 1st Cir. 2013); In re Hinkle, 474 B.R. 460 (Bankr. M.D. Pa. 

2012). For the minority position, see In re Gilbert, 472 B.R. 126 (Bankr. S.D. Fla. 2012).
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accordance with the underlying agreement and applicable nonbankruptcy law.” This section was added to the Code in 1994, in reaction to Rake 

v. Wade’s

641 holding that, under § 506(b), an oversecured home mortgage 

creditor was entitled to interest accruing postpetition on the arrearage 

claim that was being cured in the plan. Under § 1322(e), whether a creditor is entitled to interest on the arrearage claim is dependent on the parties’ contract and applicable nonbankruptcy (typically state) law.642

6.9.4 Vesting of property of estate

Under § 1322(b)(9), a plan can allow property of the estate to vest in the 

debtor, or another entity, at confirmation or a later date. Practice varies 

from district to district. Many local plans do not allow estate property to

vest in the debtor until completion of the plan and entry of discharge; but 

absent such a provision, § 1327(b) states that “except as otherwise provided in the plan or the order confirming the plan, the confirmation of a 

plan vests all of the property of the estate in the debtor.” If estate property vests in the debtor at confirmation, it affects, for example, the automatic stay’s protection of estate property, since the stay terminates as to 

property when it is no longer property of the estate.643 There are questions about the bankruptcy court’s jurisdiction over property if it is no 

longer part of the bankruptcy estate.644

Assuming that there is no specific provision in a plan for the timing 

of vesting, the courts have adopted five approaches toward what remains 

in the bankruptcy estate after confirmation: (1) estate termination, under 

which the bankruptcy estate completely terminates, with all property, 

whether acquired pre- or post-confirmation, vesting in the debtor;645

641. 508 U.S. 464 (1993).

642. See, e.g., In re Hence, 255 F. App’x 28 (5th Cir. 2007) (interest on arrearage not 

required when contract ambiguous).

643. See 11 U.S.C. § 362(c)(1).

644. See, e.g., In re Heath, 115 F.3d 521 (7th Cir. 1997) (bankruptcy court lacked 

jurisdiction over property that was not necessary to plan implementation).

645. See, e.g., Cal. Franchise Tax Bd. v. Jones (In re Jones), 420 B.R. 506 (B.A.P. 9th 

Cir. 2009), aff’d on other grounds, 657 F.3d 921, 928–29 (9th Cir. 2011) (finding it unnecessary to adopt one of approaches, instead reading § 1327(b)’s plain language to vest all 

property in debtor unless plan provided otherwise).
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(2) estate transformation, under which only that property necessary to 

implement the confirmed plan remains in the estate, with other property 

vested in the debtor;646 (3) estate replenishment, under which the estate 

terminates at confirmation but is replenished by post-confirmation 

property, as described in § 1306;647 (4) estate preservation, under which 

the bankruptcy estate continues to exist after confirmation, and property 

remains in the estate until the case is closed, dismissed, or converted to 

another chapter;648 and (5) conditional vesting, under which the debtor 

acquires use and control over property at confirmation, but property

does not fully vest until plan completion and entry of discharge.649

6.9.5 Miscellaneous

A plan may provide that unsecured claims be paid concurrently with 

payment on other unsecured or secured debt.650 The timing of payments 

of unsecured claims is flexible, with the potential to pay secured claims 

before any distribution to unsecured creditors, or concurrently. Allowed 

priority claims must be paid in full, although deferred cash payments, 

rather than lump sum distribution, are permitted.651

A plan may propose to pay postpetition claims that are allowed under § 1305.652 Treatment of postpetition claims under Chapter 13 differs

from Chapter 7 relief, in which claims are thought of as tied to prepetition debt. Whether a postpetition claim is allowed largely depends on the 

creditor’s choice.653 Section 1305(a)(1) provides that a governmental unit 

may file a proof of claim for taxes that “become payable . . . while the case 

646. See, e.g., Telfair v. First Union Mortg. Corp., 216 F.3d 1333 (11th Cir. 2000),

cert. denied, 531 U.S. 1073 (2001).

647. See, e.g., Barbosa v. Soloman, 235 F.3d 31 (1st Cir. 2000).

648. See, e.g., Annese v. Kolenda (In re Kolenda), 212 B.R. 851 (W.D. Mich. 1997).

649. See, e.g., Woodard v. Taco Bueno Rests., Inc., No. 4:05-CV-804-Y, 2006 WL 

3542693 (N.D. Tex. Dec. 8, 2006).

650. 11 U.S.C. § 1322(b)(4).

651. Id. § 1322(a)(2). See supra § 6.8. See also supra Part 4 (priority claims).

652. 11 U.S.C. § 1322(b)(6).

653. See, e.g., CenturyTel of Nw. Ark., LLC v. Laymon (In re Laymon), 360 B.R. 902 

(Bankr. E.D. Ark. 2007) (postpetition creditor could not be forced to file proof of claim or 

participate in plan).
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is pending,” and § 1305(a)(2) permits a creditor to file a claim for a consumer debt arising postpetition when it is for “property or services necessary for the debtor’s performance under the plan.” However, there is a 

condition for the § 1305(a)(2) claim requiring disallowance if the claimant knew or should have known that prior approval from the Chapter 13 

trustee—or perhaps from the bankruptcy court—for incurring the consumer debt was “practicable and was not obtained.”654

The provision for potential treatment of taxes that “become payable

. . . while the case is pending,” under § 1305(a)(1), has raised questions 

about when the taxes first became payable; that answer may drive whether the claim is pre- or postpetition. If the tax claim is prepetition, the 

debtor may be authorized by § 501(c) and Bankruptcy Rule 3004 to file a 

proof of claim on behalf of the creditor who does not file a timely claim.

If, on the other hand, the tax is a postpetition debt, the creditor controls 

whether a proof of claim may be filed. In Michigan Department of Treasury v. Hight (In re Hight),

655 the debtor filed Chapter 13 in 2009, owing 

income taxes for 2008; the return was not due until April 2009. A combination of §§ 501(i) and 507(a)(8) led the Sixth Circuit to conclude that 

this tax obligation was treated as a prepetition claim, and the debtor 

could file a proof of claim for the government, forcing it to participate in 

the plan’s treatment of the claim.

Circuits are split as to whether “becomes payable” means “legally 

due.” In Joye v. Franchise Tax Board (In re Joye),656 the Ninth Circuit concluded that a tax for the year 2000 became payable for purposes of 

§ 1305(a)(1) when it was capable of being paid, rather than when the tax 

return was timely filed in 2001. In so holding, the Ninth Circuit agreed 

with a Tenth Circuit Bankruptcy Appellate Panel,657 but disagreed with 

the Fifth Circuit’s decision in United States v. Ripley (In re Ripley).658 In 

Joye, the government had an opportunity to file a proof of claim for its 

654. 11 U.S.C. § 1305(c). See, e.g., In re Key, 465 B.R. 709 (Bankr. S.D. Ga. 2012) 

(permission to incur postpetition debt denied when debt unnecessary for plan performance).

655. 670 F.3d 699 (6th Cir. 2012).

656. 578 F.3d 1070 (9th Cir. 2009).

657. Dixon v. IRS (In re Dixon), 218 B.R. 150 (B.A.P. 10th Cir. 1998).

658. 926 F.2d 440 (5th Cir. 1991).
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prepetition tax claim, but did not; therefore, in a case filed on March 7, 

2001, in which the debtor scheduled an estimated $10,000 state income 

tax debt, the government lost its opportunity to collect the actual tax debt 

by failing to file a proof of claim or object to treatment of the estimated 

taxes in the plan.

Another optional plan provision may address the assumption, rejection, or assignment of executory contracts or unexpired leases under 

§ 365.659 Questions are often presented on whether a particular obligation 

is an executory contract.660 Assumption or rejection of such contracts or 

leases may be accomplished either through the plan confirmation process 

or by separate motion.661

Section 1322(b)(10) permits a plan to pay interest on nondischargeable unsecured claims, but only if the debtor has sufficient disposable income available to pay both the proposed interest and all allowed claims in 

full.662 As a practical matter, very few Chapter 13 debtors would have that 

potential income.663

Finally, § 1322(b)(11) states that a plan may “include any other appropriate provision not inconsistent with this title.” The Supreme Court 

pointed out the bankruptcy court’s responsibility to ensure that plans do

not contain provisions inconsistent with general Code requirements, 

since § 1325(a)(1)’s confirmation prerequisite is that a plan “complies 

with the provisions of this chapter and with the other applicable provisions of this title.”664 In practice, the bankruptcy court relies on the Chapter 13 trustee’s recommendation for or against confirmation;665 the bankruptcy court also relies on interested parties, including the trustee, ob659. 11 U.S.C. § 1322(b)(7). See also Fed. R. Bankr. P. 6006.

660. See, e.g., Johnson v. Smith (In re Johnson), 501 F.3d 1163 (10th Cir. 2007) 

(completed contract for purchase of vehicle not executory).

661. See Fed. R. Bankr. P. 6006(a) & 9014.

662. See supra § 6.8.

663. See, e.g., In re Kubeczko, No. 12-13766 HRT, 2012 WL 2685115 (Bankr. D. 

Colo. July 6, 2012).

664. See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010).

665. See 11 U.S.C. § 1302(a)(2).
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jecting to confirmation of plans that contain terms with which they do 

not agree.666

6.10 Plan confirmation requirements

After the debtor files a proposed plan, the plan is “noticed” to the trustee 

and creditors. A hearing on confirmation may be held within twenty to

forty-five days after the § 341 meeting of creditors has been held; the time 

may be shortened if the court finds it to be in the best interests of creditors and the bankruptcy estate.667 A party in interest may object to confirmation; an objection is essential if an interested party, including the 

trustee, wishes to compel a confirmation hearing.668 The Chapter 13 trustee typically recommends for or against confirmation and is required to 

attend a confirmation hearing.669

Section 1325(a) establishes the basic requirements for plan confirmation, beginning with the condition that the proposed plan comply with 

all of Chapter 13 and any other applicable Title 11 provisions.670 Although good faith is fundamental, both in the proposal of the plan and in 

the filing of the case itself,671 it is not defined in the Code. As a result, 

courts have developed a variety of factors to measure the debtor’s good 

faith—factors that typically encompass a totality-of-circumstances test, 

including both pre- and postpetition conduct.672 These factors include the 

debtor’s prepetition actions toward creditors, the motivation in filing the 

case and plan, the degree of effort toward paying creditors, and the truthfulness and accuracy of statements made in the schedules.673 BAPCPA

666. See id. § 1325(b).

667. Id. § 1324(b).

668. See id. § 1324(a), and Fed. R. Bankr. P. 2002(b), which requires at least twentyeight days’ notice of opportunity to object to confirmation.

669. See 11 U.S.C. § 1302(b)(2).

670. Id. § 1325(a)(1). See also Espinosa, 559 U.S. 260 (discussing bankruptcy court’s 

responsibility to ensure compliance with Code requirements).

671. 11 U.S.C. § 1325(a)(3), (7), as amended in 2005.

672. See, e.g., In re Love, 957 F.2d 1350 (7th Cir. 1992).

673. See, e.g., United States v. Estus (In re Estus), 695 F.2d 311 (8th Cir. 1982); Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885 (11th Cir. 1983), 
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added § 1325(a)(7), requiring as a confirmation consideration that the 

case was filed in good faith, although courts had already considered this 

good-faith factor as a part of the implicit grounds for dismissing a case 

under § 1307(c).674 Whether the plan and case were carried out in good 

faith is one of the commonly litigated issues in the bankruptcy courts.

Inquiry has included whether it is good faith to file the case and propose 

a plan that essentially pays only the debtor’s attorneys’ fees and trustee 

fees,675 and whether it is bad faith to file a Chapter 13 case when the debtor is not eligible for discharge.676

Section 1325(a)(4) establishes what is called the “best interests of 

creditors” test, requiring that a plan’s distribution to allowed unsecured 

claims be no less than those claimants would have received in a Chapter 7 

liquidation. This requires comparison of the plan’s distribution to a hypothetical liquidation, taking into consideration factors like the costs of 

the hypothetical Chapter 7 case administration and any exemptions or 

exclusions from the bankruptcy estate that would occur in such a case.677

For allowed secured claims, three different tests apply under 

§ 1325(a)(5): the creditor must have accepted the plan’s proposed treatment;678 or the creditor’s lien is retained while present value (appropriate 

interest rate) of the claim is paid, with the secured claim’s periodic payments in equal monthly amounts and providing adequate protection;679

or the debtor surrenders the collateral securing the claim.680 In actuality, 

the plan’s terms often are accepted by default because the creditor had 

for two of the early good-faith factors. See also Chapter 13 Bankruptcy, supra note 535, 

Appendix F, for compilation of case authority from all circuits on good faith.

674. See Rocco v. King (In re King), No. AZ-07-1317-PaJuk, 2008 WL 8444814 

(B.A.P. 9th Cir. Mar. 12, 2008).

675. See Sikes v. Crager (In re Crager), 691 F.3d 671 (5th Cir. 2012) (holding not per 

se bad faith to propose attorney-fee-only plan); In re Puffer, 674 F.3d 78 (1st Cir. 2012) 

(same). Cf. Brown v. Gore (In re Brown), 742 F.3d 1309 (11th Cir. 2014) (affirming dismissal of case filed for purpose of paying debtor’s attorneys’ fees).

676. See Branigan v. Bateman (In re Bateman), 515 F.3d 272 (4th Cir. 2008) (holding 

§ 1328(f) not an eligibility requirement for filing case).

677. See, e.g., Mallon v. Keenan (In re Keenan), 431 B.R. 308 (B.A.P. 10th Cir. 2009).

678. 11 U.S.C. § 1325(a)(5)(A). “Acceptance” is not a defined term in the Code.

679. Id. § 1325(a)(5)(B)(i), (ii), & (iii).

680. Id. § 1325(a)(5)(C).
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sufficient notice of the plan and did not object.681 The Supreme Court 

underscored this acceptance potential in United Student Aid Funds, Inc. v. 

Espinosa,

682 which involved an unsecured creditor. In Espinosa, a student 

loan creditor had notice of a plan’s provisions for paying less than 100% 

of the claim and did not object or otherwise contest confirmation, becoming bound by the plan under § 1327(a). “Surrender,” although typically clear-cut, is not a defined term and may create contested issues

when, for example, a debtor proposes to surrender less than all of the collateral.683 When a debtor proposes surrender, questions may arise as to 

whether the court has authority to force an unwilling creditor to accept 

the collateral. Based on precedent, the surrender option does not include 

power to compel a mortgage creditor to foreclose.684

The more frequently litigated options for dealing with secured claims 

are § 1325(a)(5)(B)’s provisions for lien retention, present value, and 

payment. As explained in the context of lien modification,685 BAPCPA

enhanced the lien retention language of § 1325(a)(5)(B), leading to some 

disagreement among bankruptcy courts as to whether a debtor who is 

ineligible for a discharge, because of § 1328(f), may modify a lien. The 

amended Code also provides that if the case is dismissed or converted 

before the plan is completed, a secured creditor’s lien is retained “to the 

extent recognized by applicable nonbankruptcy law.”686 This change to 

the Code works along with an amendment to § 348(f)(C), which says that 

for cases converted from Chapter 13, the claim of a secured creditor retains its value unless the claim was paid in full in the Chapter 13 phase, 

“notwithstanding any valuation or determination of the amount of an 

681. See, e.g., In re Castleberry, 437 B.R. 705 (Bankr. M.D. Ga. 2010).

682. 559 U.S. 260 (2010).

683. See, e.g., In re Snyder, No. 10-62052, 2012 WL 1110119 (Bankr. N.D.N.Y. Apr. 

2, 2012) (§ 1325(a)(5)(C) did not permit partial surrender).

684. See, e.g., Pratt v. GMAC (In re Pratt), 462 F.3d 14 (1st Cir. 2006). See also In re 

Canning, 706 F.3d 64 (1st Cir. 2013) (creditor’s refusal to foreclose didn’t violate § 524 

discharge injunction); In re Rose, 512 B.R. 790 (Bankr. W.D.N.C. 2014) (mortgage creditor not required to accept surrendered property).

685. See supra § 6.9.

686. 11 U.S.C. § 1325(a)(5)(B)(i)(II).
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allowed secured claim” for any Chapter 13 purposes, such as claim modification in a plan.687

Section 506(a)(2) governs valuation of collateral in Chapter 13 cases. 

It specifies that value of personal property collateral is “determined based 

on the replacement value of such property as of the date of the filing of 

the petition without deduction for costs of sale or marketing,”688 statutorily adopting but expanding the replacement value standard for “cramdown” plans in the Supreme Court’s Associates Commercial Corp. v. 

Rash.689 The Rash standard was expanded to define “replacement value” 

as “the price a retail merchant would charge for property of that kind 

considering the age and condition of the property at the time value is determined.”690 Section 1325(a), as amended by BAPCPA, makes valuation

under § 506 inapplicable, for confirmation purposes, to certain personal

property (primarily vehicles) that were financed by purchase money security interests within 910 days of the bankruptcy filing.691

In addition to valuation and lien retention, § 1325(a)(5)(B) also requires that secured claims be paid at present value—in other words, with

interest to compensate for the delay resulting from monthly payments.692

The Supreme Court addressed this in Till v. SCS Credit Corp.,

693 adopting 

a requirement that the interest rate be based on a formula, starting with 

the current national prime rate, with the potential addition of a risk factor if appropriate under the particular facts of each case. The Court did 

not establish the floor or ceiling for the risk adjustment, and, absent consent of the parties, a creditor would be required to prove the need for a 

specific risk enhancement to the prime rate.694 Disputes over appropriate 

687. Id. § 348(f)(C). See, e.g., In re McGregor, 449 B.R. 468 (Bankr. D.S.C. 2011).

688. 11 U.S.C. § 506(a)(2). See Santander Consumer USA, Inc. v. Brown (In re 

Brown), 746 F.3d 1236 (11th Cir. 2014) (§ 506(a)(2)’s replacement value standard applied 

when collateral is surrendered).

689. 520 U.S. 953 (1997).

690. 11 U.S.C. § 506(a)(2). See, e.g., In re Henry, 457 B.R. 402 (Bankr. E.D. Pa. 

2011).

691. See supra § 6.9.

692. 11 U.S.C. § 1325(a)(5)(B)(ii).

693. 541 U.S. 465 (2004).

694. See, e.g., Oliver v. Samadi (In re Oliver), 306 F. App’x 458 (11th Cir. 2008).
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interest rates typically arise in personal property collateral claims, rather 

than home mortgage claims, since § 1322(b)(2) generally prohibits modification of contractual terms for security interests in the debtor’s principal residence.695

For allowed secured claims, any “periodic” payments must be in 

equal monthly amounts,696 and if a claim is secured by personal property, 

the monthly payments must adequately protect the creditor from any loss 

of security during the life of the plan.697

As a general confirmation requirement, the plan must be feasible, 

expressed in the Code as the debtor’s ability “to make all payments under 

the plan and to comply with the plan.”698 When inability to make the 

proposed plan payments is put at issue by an objection to confirmation, 

it becomes a practical test of whether there is sufficient income to meet 

the proposed obligations, including normal living expenses that are not 

part of the plan payments.699

If a debtor has domestic support obligations, as defined in 

§ 101(14A), and if those obligations first became payable after the filing 

of the Chapter 13 petition, the debtor must have fully paid those obligations prior to confirmation.700 These postpetition domestic support obligations are distinct from the prepetition obligations, which may be treated in a plan but must be paid as a condition of receiving a discharge.701

The final confirmation requirement is that any tax returns mandated under § 1308 must have been filed.702

695. See supra § 6.9 for discussion of § 1322(b)(2).

696. 11 U.S.C. § 1325(a)(5)(B)(iii)(I), as amended by BAPCPA. See, e.g., Hamilton 

v. Wells Fargo Bank, N.A. (In re Hamilton), 401 B.R. 539 (B.A.P. 1st Cir. 2009).

697. 11 U.S.C. § 1325(a)(5)(B)(iii)(II). See, e.g., DaimlerChrysler Fin. Servs. Ams., 

LLC v. Rivera (In re Rivera), No. 1:08-CV-21-TS, 2008 WL 1957896 (N.D. Ind. May 2, 

2008).

698. 11 U.S.C. § 1325(a)(6).

699. See, e.g., In re Scarborough, 457 F. App’x 193 (3d Cir. 2012).

700. 11 U.S.C. § 1325(a)(8). See, e.g., In re Bailey, No. 09-2564, 2010 WL 3813847 

(Bankr. N.D. W. Va. Sept. 24, 2010) (debtor must be current in postpetition obligations).

701. See 11 U.S.C. § 1328(a).

702. Id. § 1325(a)(9). See supra § 6.7.
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6.11 Objections to confirmation; disposable income test

and applicable commitment period

Although creditors do not vote on confirmation, they may object. Unsecured creditors enjoy an opportunity to contest whether a debtor is devoting sufficient disposable income to a proposed plan. Pursuant to

§ 1325(b), the trustee or a holder of an allowed unsecured claim may object, and if he or she does, the court may not confirm unless the plan either distributes no less than the amount of the claim or devotes the debtor’s “projected disposable income” to unsecured creditors for the “applicable commitment period” of the plan.703 These two terms became a

source of litigation and conflicting judicial interpretation. Under

BAPCPA, the term “disposable income” is defined in § 1325(b)(2) by 

reference to § 101(10A)’s “current monthly income,” which is a “lookback” to the debtor’s average income for the six months prior to filing 

bankruptcy. “Current monthly income” is a part of the means test in 

§ 707(b)(2).704 The means test becomes a factor in the “projected disposable income” analysis for Chapter 13 debtors who fall above the median 

income for a comparable-size family in their state.705 The Supreme Court 

recognized in Ransom v. FIA Card Services, N.A.706 that the congressional 

purpose of having the means test apply in Chapter 13 is to ensure that 

debtors who are able to pay their creditors do, in fact, pay. Because the 

means test in Chapter 13 includes the prepetition “current monthly income,” it was not surprising that courts disagreed on whether “projected 

disposable income” was a look-back to the prepetition income or a 

“look-forward” to what a debtor’s income would actually be after filing 

bankruptcy. The Supreme Court resolved that disagreement by adopting

the forward-looking approach. In Hamilton v. Lanning,

707 the Court held 

that bankruptcy courts should begin their disposable income inquiry 

with the statutory framework, but, when appropriate in particular cases,

703. 11 U.S.C. § 1325(b)(1).

704. See supra § 5.2.

705. 11 U.S.C. § 1325(b)(3).

706. 131 S. Ct. 716 (2011).

707. 560 U.S. 505 (2010).
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should then look “further and take into account other known or virtually 

certain information about the debtor’s future income or expenses.”708 In 

other words, if there are changes in a debtor’s financial situation from 

what had occurred in the six-month “current monthly income” period, 

and those changes are “known or virtually certain,” the bankruptcy court 

should consider those changes. Although Lanning involved a substantial 

change in the debtor’s present income from what had been earned in the 

six months before bankruptcy, such “known or virtually certain” changes 

can apply to either income or expenses. For example, the Fourth Circuit 

applied Lanning in Morris v. Quigley (In re Quigley),709 in which the debtor was surrendering some collateral and would not have the secured 

payments to deduct as a monthly expense.

Assume, for example, the trustee or unsecured creditor files an objection to confirmation, which triggers the disposable income test because 

less than 100% of unsecured claims are proposed to be paid (which 

would be the typical case).710 For all Chapter 13 debtors, the plan must 

devote disposable income, which is the current monthly income, after 

deducting the amounts reasonably necessary for maintenance and support of the debtor and dependents, as well as any charitable contributions 

or normal business expenses if the debtor is engaged in business.711 For 

debtors below the median family income for their state, the meaning of a 

“reasonably necessary” expense is subject to judicial interpretation and 

discretion, and is thus often litigated.

712 For Chapter 13 debtors whose 

current monthly income is above the median income for a similar size 

708. Id. at 519.

709. 673 F.3d 269 (4th Cir. 2012).

710. But see In re Johnson, No. 10-03184C, 2011 WL 1671536 (Bankr. N.D. Iowa 

May 3, 2011) (for plan paying 100% of unsecured claims, disposable income test not triggered).

711. 11 U.S.C. § 1325(b)(2)(A)–(B).

712. See, e.g., Dow Chem. Emps. Credit Union v. Collins, No. 10-20718, 2011 WL 

2746210 (E.D. Mich. July 14, 2011) (issues included reasonable necessity of $300 monthly 

cigarette expense); In re Nicholas, 458 B.R. 516 (Bankr. E.D. Ark. 2011) (issue was reasonableness of home mortgage monthly amount).
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family in their applicable state, reasonably necessary expenses are determined by applying the § 707(b)(2)’s means test.713

Courts have differed on the method of determining family size for 

purposes of the means test.714 The Fourth Circuit addressed this issue in 

Johnson v. Zimmer.

715 After examining the various approaches taken by 

bankruptcy courts (heads-on-bed, income-tax dependent, and economic 

unit), the court adopted the economic unit approach in a case with a 

debtor who had part-time custody of two minor children, and a spouse 

who had part-time custody of three minor children. The court recognized that a fractional application of each individual’s time spent in the 

home was relevant to the economic impact of actual time in the home on 

family expenses.

The deductible expenses are set forth in the IRS National and Local 

Standards, as well as in “other necessary expenses” recognized by the IRS 

for its purposes in tax collection.716 The variety and amount of litigation 

over what is an appropriately deductible expense under the IRS Standards 

are too extensive to cover in this monograph, but the Supreme Court 

established a baseline, in Ransom v. FIA Card Services, N.A.,

717 that what is 

“reasonably necessary” for above-median income debtors should be 

based on “applicable” expenses under § 707(b)(2)(A)(ii)(I). “If a debtor 

will not have a particular kind of expense during his plan, an allowance to 

cover that cost is not ‘reasonably necessary’ within the meaning of the 

statute.”718 Following the Ransom rationale, if a debtor does not have an 

expense, for example, because of surrendering collateral, there may be no 

deductible expense, even though the applicable IRS Standards would allow an expense to a taxpayer.

719

713. 11 U.S.C. § 1325(b)(3).

714. See supra § 5.2.

715. 686 F.3d 224 (4th Cir. 2012).

716. See supra § 5.2.

717. 131 S. Ct. 716 (2011).

718. Id. at 725.

719. See, e.g., Morris v. Quigley (In re Quigley), 673 F.3d 269 (4th Cir. 2012); In re

Turner, 574 F.3d 349 (7th Cir. 2009); Kramer v. Bankowski (In re Kramer), 505 B.R. 614 

(B.A.P. 1st Cir. 2014); Zeman v. Liehr (In re Liehr), 439 B.R. 179 (B.A.P. 10th Cir. 2010).
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On the other hand, assuming the debtor would have a contractual 

secured payment that continued after the bankruptcy filing, appellate 

authority holds that if a debtor is above the applicable median income, 

§ 707(b)(2)’s means test is triggered. Under § 707(b)(2)(A)(iii), actual 

contractually due secured debt payments are deductible expenses, regardless of whether that expense is reasonably necessary.720

Among the many issues litigated is whether the exclusions from “current monthly income” found in § 101(10A)’s definition are always excluded for Chapter 13 plan purposes, and the best example is Social Security income. Those benefits are expressly excluded in the statute’s description of “current monthly income,” and appellate authority has applied that exclusion in Chapter 13 disposable income inquiry.721 The reality is that a debtor with only Social Security income will have to devote a 

portion to a proposed plan or the plan will not be feasible.722

Another issue involves a debtor’s proposal to continue to make voluntary contributions to a retirement account. Section 541(b)(7)(A) excludes from property of the bankruptcy estate withholdings by an employer for contributions to specific retirement accounts. Authority is split

on whether this exclusion permits a Chapter 13 debtor from continuing 

to make retirement contributions that would be deducted for purposes of 

disposable income.723 The Sixth Circuit held that such voluntary, postpetition retirement contributions are not excluded from the disposable in720. Parks v. Drummond (In re Parks), 475 B.R. 703 (B.A.P. 9th Cir. 2012) (home 

mortgage payment, although above IRS housing allowance, was deductible under 

§ 707(b)(2)(A)(iii)). Accord Drummond v. Welsh (In re Welsh), 711 F.3d 1120 (9th Cir. 

2013).

721. See, e.g., Mort Ranta v. Gorman, 721 F.3d 241 (4th Cir. 2013); Welsh, 711 F.3d 

1120; Beaulieu v. Ragos (In re Ragos), 700 F.3d 220 (5th Cir. 2012); Anderson v. Cranmer 

(In re Cranmer), 697 F.3d 1314 (10th Cir. 2012); Baud v. Carroll, 634 F.3d 327 (6th Cir. 

2011); Fink v. Thompson (In re Thompson), 439 B.R. 140 (B.A.P. 8th Cir. 2010).

722. See 11 U.S.C. § 1325(a)(6).

723. See Parks, 475 B.R. 703 (discussing split of authority, but concluding voluntary 

postpetition contributions not deducted from disposable income). Cf. In re Drapeau, 485 

B.R. 29 (Bankr. D. Mass. 2013) (good-faith, postpetition contributions excluded from 

disposable income).
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come calculation.724 Under § 1322(f), a “plan may not materially alter the 

terms of a loan” owed to a retirement account, as defined in 

§ 362(b)(19), and the amounts required to repay such loan are excluded 

from disposable income.725 The Sixth Circuit and courts in agreement 

hold that once the debtor had repaid such a loan, contributions to a retirement account would be disposable income.726

Finally, once the disposable income test is triggered, there is an “applicable commitment period” (ACP) to consider. The ACP is an expression of how long the debtor’s plan must last—either three or five years—

depending on where the debtor’s current monthly income falls within 

median family income applicable to the particular debtor. Under 

§ 1325(b)(1)(B), disposable income for the ACP must be devoted to the 

plan. ACP is defined in § 1325(b)(4) as three years for debtors who fall 

below the applicable median family income, and as not less than five 

years for debtors who fall above the applicable median-family income.727

If the plan provides for full payment of allowed unsecured claims, it may 

be for less than the three- or five-year period, but most plans stipulate

less than 100% unsecured distribution. The interpretive disagreement is 

whether there is an ACP for a debtor who has no actual projected disposable income after calculation under the means test. For example, a debtor

with higher than median-family income whose combined actual income 

and substantial secured debt payments resulted in negative projected disposable income under the means test would be required to remain in a 

plan for five years under a literal application of the ACP.

728

724. Seafort v. Burden (In re Seafort), 669 F.3d 662 (6th Cir. 2012). Accord Parks, 475 

B.R. 703.

725. 11 U.S.C. § 1322(f). Section 362(b)(19)’s exception from the automatic stay 

permits the continued withholding from a debtor’s wages to repay a loan from a pension, 

profit-sharing, stock bonus, or other plan, as defined in that section.

726. Seafort, 669 F.3d 662. See also Nowlin v. Peake (In re Nowlin), 576 F.3d 258 (5th 

Cir. 2009); McCarty v. Lasowski (In re Lasowski), 575 F.3d 815 (8th Cir. 2009).

727. See also 11 U.S.C. § 1322(d) for similar provision for maximum length of plans, 

depending on debtors’ median family income.

728. See, e.g., Pliler v. Stearns, 747 F.3d 260 (4th Cir. 2014); Danielson v. Flores (In re

Flores), 735 F.3d 855 (9th Cir. 2013); Baud v. Carroll, 634 F.3d 327 (6th Cir. 2011); 

Whaley v. Tennyson (In re Tennyson), 611 F.3d 873 (11th Cir. 2010); Coop v. Frederickson (In re Frederickson), 545 F.3d 652 (8th Cir. 2008).
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6.12 Plan modifications

A debtor’s proposed plan may be modified prior to confirmation; if so, 

all of the § 1322 requirements for a proposed plan must be incorporated.729 A confirmed plan may also be modified, in which event there is a 

split of judicial authority on whether all of § 1325’s requirements apply. 

Under § 1329(b)(1), when a plan is modified after confirmation, the 

statute specifically incorporates the requirements of §§ 1322(a) and (b), 

1323(c), and 1325(a), leaving a question of whether § 1325(b)’s disposable income test comes into play.730 First, it should be noted that modification of a confirmed plan is only possible prior to completion of payments 

under that plan.731 Second, a confirmed plan is only subject to modification on motion of the debtor, trustee, or holder of an allowed unsecured 

claim.732 And third, a confirmed plan may be modified for the following:

to increase or reduce the amount of payments on a claim; to extend or 

reduce the time for payments; to alter the amount of distribution to a 

creditor to take into account payments made other than under the plan;

or to reduce payments to permit a debtor to purchase health insurance.733

Courts disagree about whether § 1329(a) permits a previous secured 

creditor’s status and treatment to be changed to unsecured, taking into 

account, for example, that the debtor has surrendered a vehicle to the 

secured creditor and changing the creditor’s remaining claim to unsecured deficiency. The Sixth Circuit held, in Chrysler Financial Corp. v. 

Nolan (In re Nolan),734 that modification was not permitted to change the 

classification of a secured creditor to unsecured. Other courts have concluded that § 1329(a) is broad enough to permit actions such as surren729. 11 U.S.C. § 1323(a).

730. Compare Freeman v. Schulman (In re Freeman), 86 F.3d 478, 481 (6th Cir. 

1996) (disposable income test applied), with Mattson v. Howe (In re Mattson), 468 B.R. 

361, 370 (B.A.P. 9th Cir. 2012) (disposable income test did not apply).

731. See, e.g., Brown v. Brown (In re Brown), 378 B.R. 416 (B.A.P. 6th Cir. 2007).

732. 11 U.S.C. § 1329(a).

733. Id.

734. 232 F.3d 528 (6th Cir. 2000).
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der and have altered the classification and treatment of a previously secured creditor.735

Another unsettled issue is whether § 1329 requires a change in circumstances as a condition for moving to modify a confirmed plan. The 

theory behind requiring a demonstrated change in circumstances is that 

it is necessary to overcome the res judicata effect of the prior confirmation order.736 Other courts have not discerned a change of circumstances 

test in § 1329.737 In reality, a debtor or other party moving to modify will 

not be able to relitigate matters that were, or could have been, tried at the 

original confirmation.738

Good faith is an overriding factor in modifications, allowing the 

court to consider a full range of issues, including whether a debtor proposing modification is attempting to pay less to creditors than the debtor 

is able.

739

An issue that has arisen because of the applicable commitment period (ACP) requirements in § 1325(b) is whether a confirmed plan may be 

shortened by lump sum payment through the modification process.740 A 

split of judicial authority exists, one that is not easily resolved because

§ 1329 does not specifically refer to an ACP in modified plans.741

6.13 Effects of confirmation

Section 1327 addresses the effects of confirmation. The Supreme Court 

has emphasized the significance of § 1327(a)’s provision that “a con735. See, e.g., Bank One, NA v. Leuellen (In re Leuellen), 322 B.R. 648 (S.D. Ind. 

2005).

736. See, e.g., Murphy v. O’Donnell (In re Murphy), 474 F.3d 143 (4th Cir. 2007); 

Johnson v. Fink (In re Johnson), 458 B.R. 745, 749 (B.A.P. 8th Cir. 2011) (change of circumstance required for postconfirmation modification). 

737. See, e.g., Mattson, 468 B.R. 361 (discussing circuit split).

738. See Storey v. Pees (In re Storey), 392 B.R. 266 (B.A.P. 6th Cir. 2008).

739. See, e.g., King v. Robenhorst, No. 11-C-573, 2011 WL 5877081 (E.D. Wis. Nov. 

23, 2011).

740. See, e.g., Fridley v. Forsythe (In re Fridley), 380 B.R. 538 (B.A.P. 9th Cir. 2007) 

(discussing this issue).

741. See In re Tibbs, 478 B.R. 458 (Bankr. S.D. Fla. 2012) (discussing split of authority).
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firmed plan bind[s] the debtor and each creditor.” In United Student Aid 

Funds, Inc. v. Espinosa,

742 the issue was whether a plan that did not comply with Code or Rule requirements about an adversary proceeding to 

determine discharge of student loan debt was nevertheless binding on the 

creditor.743 The creditor was given adequate notice of the plan, which 

contained a warning that it impaired the creditor’s rights by a provision 

to pay the principal debt but discharge the accruing interest. The creditor 

did not object or appeal confirmation. Although the creditor was deprived of the procedural protections of an adversary proceeding to determine undue hardship, the plan became binding when the creditor did 

not pursue remedies to contest the confirmation’s effect. A plan that is 

not adequately “noticed” will not have binding effect.

744 Section 1327(a) 

states that the binding effect applies not only to the creditor, but also to

the debtor.745 Although the statute does not mention the trustee, the trustee is bound by confirmation as well.746

Section 1327(b) states that unless the plan or its related order provides otherwise, confirmation vests property of the estate in the debtor.747

Section 1327(c) provides that a confirmed plan’s vesting of property 

in the debtor effectively frees the property of claims and interests, unless 

stated otherwise in the plan or confirmation order. It is the statutory 

recognition that a plan’s provision for whether liens survive is binding.

However, § 1327(c) must be read in conjunction with §§ 1322(b)(2) and

1325(a)(5), the lien modification and retention provisions.748 Moreover,

§ 1327(c) is restricted by the requirement that the claim or interest of an 

742. 559 U.S. 260 (2010).

743. See 11 U.S.C. §§ 523(a)(8) & 1328(a)(2), and Fed. R. Bankr. P. 7001(6).

744. The Supreme Court disapproved future plan provisions that would accomplish 

discharge of student loans without the filing of an adversary proceeding to determine 

undue hardship. Espinosa, 559 U.S. at 276–78.

745. See, e.g., In re Darden, 474 B.R. 1 (Bankr. D. Mass. 2012) (debtor bound by 

plan’s provision for what creditors would receive).

746. See, e.g., Boyajian v. Vargas (In re Vargas), No. 10-13103-ANV, 2012 WL 

2450170 (B.A.P. 1st Cir. June 8, 2012).

747. See supra § 6.9.4.

748. See supra § 6.10.
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affected creditor must be “provided for by the plan.” A plan must be specific enough in its provisions to support a particular claim.749

6.14 Case conversion and dismissal

Pursuant to § 1307(a), a Chapter 13 “debtor may convert a case under 

this chapter to a case under chapter 7 at any time.” In Marrama v. Citizens Bank of Massachusetts,

750 the Supreme Court stressed the need for 

good faith on the part of a debtor who wants to convert from Chapter 7 

to Chapter 13. As a result, the question arose after Marrama as to whether good faith was a threshold requirement for voluntary conversion the 

other way—from Chapter 13 to 7. Appellate authority then distinguished 

Marrama, concluding that § 1307(a) voluntary conversion to Chapter 7 is 

not conditioned on a good-faith analysis, with the debtor remaining before the court and remedies available in the Chapter 7 phase to deal with 

any bad faith.751 In contrast, when a Chapter 13 debtor seeks to voluntarily dismiss a case under § 1307(b), there is a split of authority as to whether good faith is required.

752

Section 1307(c) sets out nonexclusive grounds for involuntary dismissal or conversion of Chapter 13 cases, on motion of a party in interest, 

and whether the remedy is dismissal or conversion is based on “the best 

interests of creditors and the estate.”753 The list of causes ranges from 

“unreasonable delay by the debtor that is prejudicial to creditors”754 to 

749. See, e.g., Taumoepeau v. Mfrs. & Traders Trust Co. (In re Taumoepeau), 523 

F.3d 1213 (10th Cir. 2008) (plan did not adequately provide for postpetition default).

750. 549 U.S. 365 (2007). The importance of good faith was discussed supra § 6.3 in 

the context of converting a case from Chapter 7 to Chapter 13.

751. See, e.g., Nady v. DeFrantz (In re DeFrantz), 454 B.R. 108 (B.A.P. 9th Cir. 2011). 

Accord In re Taylor, 472 B.R. 570 (C.D. Cal. 2012). 

752. In Jacobsen v. Moser (In re Jacobsen), 609 F.3d 647, 660–63 (5th Cir. 2010), the 

Fifth Circuit held that Marrama’s good-faith analysis was a required condition before 

allowing dismissal. Accord Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764 (9th Cir. 

2008); In re Mitrano, 472 B.R. 706 (E.D. Va. 2012). Cf. In re Darden, 474 B.R. 1 (Bankr. 

D. Mass. 2012).

753. 11 U.S.C. § 1307(c).

754. Id. § 1307(c)(1). See, e.g., Paulson v. Wein (In re Paulson), 477 B.R. 740 (B.A.P. 

8th Cir. 2012).
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failure to pay any postpetition domestic support obligation.755 Although 

lack of good faith is not a specific statutory factor, it has been found implicitly to be a basis for dismissal or conversion.756

Section 348 sets forth the effects on a case when converting from one 

bankruptcy chapter to another. A secured creditor’s lien remains intact 

on conversion, and any valuations of property in the Chapter 13 phase 

are ineffective in the Chapter 7 phase.757 The Third Circuit held, in an 

application of § 348(f), that when a confirmed case is converted from 

Chapter 13 to Chapter 7, funds held by the trustee that were not yet distributed to creditors must be returned to the debtor rather than turned 

over to the Chapter 7 trustee for distribution to creditors.

758 The court’s

rationale was based on § 348(f)(1)’s provisions that property of the estate 

relates back to the time of petition filing, and that the debtor remained in 

control of the funds that had been paid postpetition but were undistributed to creditors at conversion. The Fifth Circuit disagreed: in Viegelahn 

v. Harris (In re Harris),759 it found that congressional intent to pay creditors outweighed arguments in favor of returning the funds to the debtor.

When conversion occurs before confirmation, § 1326(a)(2) stipulates, in part, that “the trustee shall return any such payments not previously paid and not yet due and owing to creditors . . . to the debtor, after 

deducting any unpaid [administrative] claim allowed under section 

503(b).”760

755. 11 U.S.C. § 1307(c)(11).

756. See, e.g., In re Mondelli, 558 F. App’x 260 (3d Cir. 2014); In re Myers, 491 F.3d 

120 (3d Cir. 2007).

757. See, e.g., In re Airhart, 473 B.R. 178 (Bankr. S.D. Tex. 2012).

758. In re Michael, 699 F.3d 305 (3d Cir. 2012). See also In re Hamilton, 493 B.R. 31 

(Bankr. M.D. Tenn. 2013) (on case dismissal § 347(b)(3) requires that undistributed 

funds held by trustee be returned to debtor). But see § 1326(a)(2): “If a plan is confirmed, 

the trustee shall distribute [plan payments] in accordance with the plan as soon as practicable.”

759. 757 F.3d 468 (5th Cir. 2014) (reviewing conflicting authority).

760. 11 U.S.C. § 1326(a)(2). But see In re Clements, 495 B.R. 74 (Bankr. E.D. Pa. 

2013) (§ 348(f)(1) requires that preconfirmation funds held by trustee be refunded to 

debtor, before paying administrative expenses, including debtor’s attorneys’ fee).
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6.15 Discharge

Section 1328(a)(2) incorporates into Chapter 13 most of the § 523(a) 

exceptions for discharges761 that are granted on completion of a plan. Another type of discharge, called a “hardship discharge,” may be granted 

before plan completion, but only if the debtor shows that failure to complete the plan is because of circumstances beyond the debtor’s control,

that modification is not practicable, and that allowed unsecured claims 

have received at least as much as they would have received in a Chapter 7 

liquidation.762 For those rare hardship discharges, all of the § 523(a) exceptions from discharge apply.763 In the plan completion discharges, the 

primary debts that are not excepted from discharge are willful and malicious injuries under § 523(a)(6) and the § 523(a)(15) debts, which are 

typically for property divisions related to marital separation or divorce.764

In addition to the § 523(a) exceptions, a Chapter 13 discharge excludes restitution and criminal fines and excludes damages awarded in a 

civil action related to personal injury or death resulting from the debtor’s 

willful and malicious action.765 The discharge also does not include 

§ 1322(b)(5) long-term debts (e.g., home mortgages) that continue after 

the plan is concluded in three to five years.766 Thus, if the plan provides 

that certain debts will be cured of default and payments maintained for 

the contractual terms, those continuing debts are not discharged. The 

prefatory language of § 1328(a) and (b) states that a discharge only applies to “debts provided for by the plan or disallowed under section 502.” 

This requirement presents issues of whether a plan addressed treatment 

of a specific claim, as well as whether the plan was properly “noticed” to 

761. See supra § 5.7 in context of Chapter 7.

762. 11 U.S.C. § 1328(b).

763. Id. § 1328(c)(2).

764. For in-depth discussion of § 523(a)(15) debts, and summaries of each circuit’s 

case authority, see Bankruptcy & Domestic Relations Manual, supra note 144.

765. 11 U.S.C. § 1328(a)(3)–(4). This willful and malicious injury is different from 

the § 523(a)(6) exception, which may apply to property, as well as personal, injury.

766. Id. § 1328(a)(1), (c)(1).
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the affected creditor—issues closely related to whether § 1327(a)’s binding effect is triggered.767

Section 1328(f)’s restriction on discharge concerning the effect on 

liens when a debtor is not eligible for discharge was discussed supra

§ 6.9.2. Section 1328(f) also limits how quickly a Chapter 13 debtor may 

obtain a discharge following a prior discharge. If a debtor obtained a discharge in a prior Chapter 7, 11, or 12 case that was filed within four years 

of the current Chapter 13, or a discharge in a prior Chapter 13 case filed 

within two years of the current case, then a discharge in the current 

Chapter 13 case is not permitted.768

The § 524 discharge injunction goes into effect upon entry of a Chapter 13 discharge, just as it does in Chapter 7.769 Violations of the discharge 

injunction are frequent topics of litigation in the bankruptcy courts.770

6.16 Claim and home mortgage litigation

Claim allowance and objections to claims771 form a significant portion of 

bankruptcy litigation. Because many debtors are trying to retain some 

collateral (e.g., vehicles, homes), it is not surprising that claim issues often are at the forefront of plan confirmation. Litigation over the amount 

of a secured claim and its treatment is common.

772 The bankruptcy courts

have ruled on a wide range home mortgage claims, including potential 

class actions related to mortgage lenders or mortgage servicers.773

Home mortgage claim litigation may be related to whether the mortgage creditor had standing to move for stay relief.

774 The authority of a 

767. See, e.g., Ellett v. Stanislaus (In re Ellett), 506 F.3d 774 (9th Cir. 2007) (plan 

didn’t provide for specific tax claim).

768. 11 U.S.C. § 1328(f).

769. See supra § 5.10.

770. See, e.g., Fla. Dep’t of Rev. v. Diaz (In re Diaz), 647 F.3d 1073 (11th Cir. 2011); 

Hann v. Educ. Credit Mgmt. Corp. (In re Hann), 476 B.R. 344 (B.A.P. 1st Cir. 2012).

771. See supra Part 4.

772. See supra § 6.10 (discussing § 1325(a)(5) confirmation requirements for liens).

773. See, e.g., Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 695 

F.3d 360 (5th Cir. 2012).

774. See supra § 2.7.5. See also, e.g., Miller v. Deutsche Bank Nat’l Trust Co. (In re

Miller), 666 F.3d 1255 (10th Cir. 2012).
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particular party to enforce a mortgage is also an issue.775 The Third Circuit addressed inappropriate representations by a creditor and its attorney in moving for stay relief, illustrating that potential sanctions are 

available for violations of Bankruptcy Rule 9011.776 Fact and legal issues 

of whether a mortgage creditor violated the automatic stay, subjecting 

itself to damages, are often litigated.777

Home mortgage lawsuits are often connected to the bankruptcy issue 

of whether the creditor complied with the terms of the plan. This, in 

turn, presents related issues of whether the plan improperly modified the 

home mortgage.778 Many of the issues that trigger mortgage litigation relate to postpetition charges by the creditor, for expenses like attorneys’

fees, late charges, and inspections.779 To help manage the high volume of

this type of litigation, Federal Bankruptcy Rule 3002.1 was adopted by the 

Supreme Court, effective December 2011.780 Rule 3002.1 applies only in 

Chapter 13 cases that have claims secured by the debtor’s principal residence, and the plan proposes to use § 1322(b)(5)’s provisions to cure 

default and maintain ongoing mortgage payments. The rule requires the 

creditor to give notice to the debtor, debtor’s attorney, and trustee of 

payment changes resulting from things such as interest rate or escrow 

adjustments, as well as notice of postpetition charges and fees. Opportunity is provided for objection to those notices and for court determination in the event of objection. Rule 3002.1 also provides for a procedure 

to determine, at the conclusion of a plan, that the secured claim has been 

cured.

775. See, e.g., Allen v. US Bank, Nat’l Ass’n (In re Allen), 472 B.R. 559 (B.A.P. 9th 

Cir. 2012) (discussing standing to enforce note and mortgage).

776. In re Taylor, 655 F.3d 274 (3d Cir. 2011).

777. See, e.g., Jacks v. Wells Fargo Bank, N.A. (In re Jacks), 642 F.3d 1323 (11th Cir. 

2011).

778. See 11 U.S.C. §§ 1322(b)(2), 1327(a). See, e.g., Ameriquest Mortg. Co. v. Nosek

(In re Nosek), 544 F.3d 34 (1st Cir. 2008) (discussing need for plan specificity).

779. Compare, e.g., Padilla v. Wells Fargo Home Mortg., Inc., 379 B.R. 643 (Bankr. 

S.D. Tex. 2007) (holding Rule 2016 applied to both pre- and postpetition creditor’s fees 

and charges), with Padilla v. GMAC Mortg. Corp., 389 B.R. 409 (Bankr. E.D. Pa. 2008) 

(discussing creditor’s obligation to disclose and obtain court approval before assessing 

postpetition charges).

780. Federal Bankruptcy Rule 3002.1 is reproduced infra Appendix A.
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An Official Form, Supplement S1 to Official Form 10 for claims, implements Rule 3002.1, which addresses the need for notice of a change in 

the amount of the ongoing mortgage payments. Supplement S2 to Official Form 10 further implements Rule 3002.1, providing the required notice of postpetition fees, charges, and expenses related to the Chapter 13 

debtor’s home mortgage. Over time, Rule 3002.1 and related forms 

should reduce the amount of litigation over postpetition charges by 

home mortgage creditors, although questions that arise may require interpretation of the rule.781

Separate from the claims process, there is frequent litigation in the 

bankruptcy courts over alleged violations of the Truth in Lending Act, as 

well as applicable state and federal consumer protection statutes.782 The 

Real Estate Settlement Procedures Act (RESPA) and other federal and 

state statutes related to home mortgages often raise issues in bankruptcy

litigation.

783 In many instances, the bankruptcy court must decide whether it has authority to hear a cause of action, for example, when a foreclosure has already occurred under state law.784 The Supreme Court’s decision in Stern v. Marshall785 requires an examination of the bankruptcy 

court’s authority, including in those Chapter 13 cases in which the plan 

781. See, e.g., In re Sheppard, No. 10-33959-KRH, 2012 WL 1344112 (Bankr. E.D. 

Va. Apr. 18, 2012) (prior plan modification approved by court included postpetition fees 

and charges, providing an exception from creditor’s compliance with Rule 3002.1); In re

Carr, 468 B.R. 806 (Bankr. E.D. Va. 2012) (creditor not permitted to charge $150 fee for 

notice required by Rule 3002.1); Pompa v. Wells Fargo Home Mortg., Inc. (In re Pompa), 

No. 06-31759, ADV 11-3651, 2012 WL 2571156 (Bankr. S.D. Tex. June 29, 2012) (notwithstanding rule’s sanction, court could sanction creditor, under 11 U.S.C. § 105, for 

violating terms of confirmed plan).

782. See, e.g., Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014); 

DiVittorio v. HSBC Bank USA, NA (In re DiVittorio), 670 F.3d 273 (1st Cir. 2012); Option One Mortg. Corp. v. Sterten (In re Sterten), 546 F.3d 278 (3d Cir. 2008).

783. See, e.g., Campbell v. Countrywide Home Loans, Inc., No. 07-20499, 2008 WL 

3906382 (5th Cir. Aug. 26, 2008), opinion withdrawn & superseded by Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008); Knowles v. Bayview Loan Servicing, LLC (In re Knowles), 442 B.R. 150 (B.A.P. 1st Cir. 2011).

784. See, e.g., Stewart v. Chase Bank (In re Stewart), 473 B.R. 612 (Bankr. W.D. Pa. 

2012) (bankruptcy court lacked jurisdiction after foreclosure).

785. 131 S. Ct. 2594 (2011), discussed supra § 1.1.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

158

has been completed and the debtor is attacking validity of the mortgage 

claim. But § 524(i) specifically recognizes a discharge injunction violation 

for a creditor’s “willful failure . . . to credit payments received under a 

[confirmed] plan.”786

786. See, e.g., Mattox v. Wells Fargo, NA (In re Mattox), No. 07-51925, 2011 WL 

3626762 (Bankr. E.D. Ky. Aug. 17, 2011).
159

~ appendix a ~

federal bankruptcy rule 3002.1

Rule 3002.1. Notice Relating to Claims Secured by Security Interest in the 

Debtor’s Principal Residence

(a) IN GENERAL. This rule applies in a chapter 13 case to claims that 

are (1) secured by a security interest in the debtor’s principal residence, and (2) provided for under § 1322(b)(5) of the Code in the

debtor’s plan.

(b) NOTICE OF PAYMENT CHANGES. The holder of the claim 

shall file and serve on the debtor, debtor’s counsel, and the trustee a 

notice of any change in the payment amount, including any change

that results from an interest rate or escrow account adjustment, no 

later than 21 days before a payment in the new amount is due.

(c) NOTICE OF FEES, EXPENSES, AND CHARGES. The holder of 

the claim shall file and serve on the debtor, debtor’s counsel, and the

trustee a notice itemizing all fees, expenses, or charges (1) that were 

incurred in connection with the claim after the bankruptcy case was 

filed, and (2) that the holder asserts are recoverable against the debtor or against the debtor’s principal residence. The notice shall be 

served within 180 days after the date on which the fees, expenses, or 

charges are incurred.

(d) FORM AND CONTENT. A notice filed and served under subdivision (b) or (c) of this rule shall be prepared as prescribed by the

appropriate Official Form, and filed as a supplement to the holder’s

proof of claim. The notice is not subject to Rule 3001(f).

(e) DETERMINATION OF FEES, EXPENSES, OR CHARGES. On 

motion of the debtor or trustee filed within one year after service of a 

notice under subdivision (c) of this rule, the court shall, after notice

and hearing, determine whether payment of any claimed fee, expense, or charge is required by the underlying agreement and applicable nonbankruptcy law to cure a default or maintain payments in 

accordance with § 1322(b)(5) of the Code.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

160

(f) NOTICE OF FINAL CURE PAYMENT. Within 30 days after the

debtor completes all payments under the plan, the trustee shall file 

and serve on the holder of the claim, the debtor, and debtor’s counsel 

a notice stating that the debtor has paid in full the amount required 

to cure any default on the claim. The notice shall also inform the 

holder of its obligation to file and serve a response under subdivision 

(g). If the debtor contends that final cure payment has been made 

and all plan payments have been completed, and the trustee does not 

timely file and serve the notice required by this subdivision, the debtor may file and serve the notice.

(g) RESPONSE TO NOTICE OF FINAL CURE PAYMENT. Within 

21 days after service of the notice under subdivision (f) of this rule, 

the holder shall file and serve on the debtor, debtor’s counsel, and the

trustee a statement indicating (1) whether it agrees that the debtor

has paid in full the amount required to cure the default on the claim, 

and (2) whether the debtor is otherwise current on all payments consistent with § 1322(b)(5) of the Code. The statement shall itemize the 

required cure or postpetition amounts, if any, that the holder contends remain unpaid as of the date of the statement. The statement 

shall be filed as a supplement to the holder’s proof of claim and is not 

subject to Rule 3001(f).

(h) DETERMINATION OF FINAL CURE AND PAYMENT. On motion of the debtor or trustee filed within 21 days after service of the 

statement under subdivision (g) of this rule, the court shall, after notice and hearing, determine whether the debtor has cured the default

and paid all required postpetition amounts.

(i) FAILURE TO NOTIFY. If the holder of a claim fails to provide

any information as required by subdivision (b), (c), or (g) of this

rule, the court may, after notice and hearing, take either or both of 

the following actions:

(1) preclude the holder from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that 

the failure was substantially justified or is harmless; or

(2) award other appropriate relief, including reasonable expenses 

and attorney’s fees caused by the failure.
161

~ appendix b ~

for further reference

Bankruptcy and Debt Under the Servicemembers Civil Relief Act (2009)

Susan H. Seabury & Jack F. Williams 

Handbook explaining protections under the Code and SCRA for debtors in the 

armed forces; includes sample forms and letters.

Bankruptcy and the Supreme Court (2009)

Kenneth N. Klee 

An examination of Supreme Court bankruptcy decisions since 1898.

Bankruptcy Best Practices Discussion Forum

http://cwn.fjc.dcn/bbp/home.nsf

Access available only to members of the federal judiciary.

Bankruptcy Law: Principles, Policies, and Practice (3d ed. 2010)

Charles J. Tabb 

An examination of bankruptcy law in the context of history and policy.

Chapter 13: Practice and Procedure (2013–2014 ed., published biannually)

Hon. W. Homer Drake, Hon. Paul W. Bonapfel & Adam M. Goodman 

A two-volume examination of Chapter 13 issues, with specific case examples

(available on Westlaw).

Collier Consumer Bankruptcy Practice Guide (2014)

Henry J. Sommer 

A transaction-based guide to consumer bankruptcy.

Collier Family Law and the Bankruptcy Code (2013)

Hon. Margaret Dee McGarity & Henry J. Sommer

A comprehensive, practice-oriented examination of the interface between bankruptcy and family law.

Collier on Bankruptcy (2013, updated regularly)

Alan N. Resnick & Henry J. Sommer eds.

A multivolume analysis of the Bankruptcy Code, with specific chapters discussing Code sections affecting Chapter 7 and 13 relief.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

162

Consumer Bankruptcy: Fundamentals of Chapter 7 and Chapter 13 of the 

U.S. Bankruptcy Code (3d ed.)

William A. McNeal & Alane A. Becket 

An introduction to consumer bankruptcy issues, with a focus on the general 

practitioner.

The Consumer Bankruptcy Creditor Distribution Study (2013)

Lois R. Lupica (Reporter & Principal Investigator), Maine Law Foundation 

Professor of Law, University of Maine School of Law, available at

http://www.abiworld.org/e-news/Creditor.Distributions.ABI.Final.pdf

Empirical examination of unsecured creditor distribution data from Chapter 7 

and 13 cases filed pre- and post-BAPCPA’s, and effect of BAPCPA’s efficacy on 

debt recovery.

Consumer Bankruptcy Manual (2d ed. 2013–2014, published annually)

Hon. Michael B. Kaplan, Stacey L. Meisel & Michael Sousa

An examination of consumer bankruptcy issues (available on Westlaw).

The Evolution of U.S. Bankruptcy Law: A Time Line (Federal Judicial Center 2012)

http://cwn.fjc.dcn/public/pdf.nsf/lookup/BKTimeLine2012.pdf/$file/BKTime

Line2012.pdf

Two-page pamphlet maps evolution of bankruptcy law from inception through 

2011; provides statistics on bankruptcy caseloads and historical snapshots of 

select sociopolitical events.

Graduating with Debt: Student Loans under the Bankruptcy Code (2013)

Daniel A. Austin & Susan E. Hauser 

An introduction to student loans and the difficulty of discharging them under 

the Bankruptcy Code.

When Worlds Collide: Bankruptcy and Its Impact on Domestic Relations 

and Family Law (4th ed.)

Michaela M. White

An introductory examination of the interface of bankruptcy and family law issues; available to judges at no cost.

General bankruptcy statistics are available at 

http://www.uscourts.gov/Statistics/BankruptcyStatistics.aspx
163

glossary

Bankruptcy practice is filled with specialized terms, some of which may 

be alien to those not regularly involved in this area of law. Section 101 of 

the Bankruptcy Code defines many terms, but the following terms used

in consumer bankruptcies may be useful to review. These definitions are 

based on the glossary of the Administrative Office of the U.S. Courts, 

available at http://www.uscourts.gov.

Abuse: Under § 707(b), abuse of the provisions of Chapter 7 is cause for 

dismissal of the case or conversion to Chapter 11 or 13.

Adversary proceeding: A lawsuit arising in or related to a bankruptcy 

case that is commenced by filing a complaint with the court. A nonexclusive list of adversary proceedings is set forth in Fed. R. Bankr. P. 7001.

Automatic stay: An injunction that automatically stops lawsuits, foreclosures, garnishments, and all collection activity against the debtor the 

moment a bankruptcy petition is filed.

Bankruptcy estate: All legal or equitable interests of the debtor in property at the time of the bankruptcy filing. The estate includes all property in 

which the debtor has an interest, even if it is held by another person.

Claim: A creditor’s assertion of a right to payment from the debtor or to

the debtor's property.

Confirmation: The bankruptcy judge’s approval of a plan of reorganization filed by the debtor in Chapter 13.

Contested matter: Those matters, other than objections to claims, that 

are disputed but are not within the definition of adversary proceeding 

contained in Rule 7001. Basically, this refers to motion practice.

Credit counseling: Generally refers to two events in individual bankruptcy cases: (1) the "individual or group briefing" from a nonprofit budget 

and credit counseling agency that individual debtors must attend prior to 

filing under any Chapter of the Bankruptcy Code; and (2) the “instructional course in personal financial management” in Chapters 7 and 13 

that an individual debtor must complete before a discharge is entered. 
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

164

There are exceptions to both requirements for certain categories of debtors, exigent circumstances, or if the U.S. trustee or bankruptcy administrator determines that there are insufficient approved credit counseling 

agencies available for the necessary counseling.

Creditor: One to whom the debtor owes money or who claims to be 

owed money or property by the debtor.

Current monthly income: The average monthly income received by the 

debtor over the six calendar months before commencement of the bankruptcy case, including regular contributions to household expenses from 

nondebtors and income from the debtor's spouse if the petition is a joint 

petition, but not including Social Security income and certain other 

payments made because the debtor is the victim of certain crimes. 11 

U.S.C. § 101(10A).

Debtor: A person seeking bankruptcy relief in a case under Chapter 7 or 

13 of Title 11.

Discharge: A release of a debtor from personal liability for certain debts 

known as dischargeable debts, which prevents the creditors owed those 

debts from taking any action against the debtor to collect the debts. The 

discharge also prohibits creditors from communicating with the debtor 

about the debt, including telephone calls, letters, and personal contact.

Dischargeable debt: A debt for which the Bankruptcy Code allows the 

debtor’s personal liability to be eliminated. 

Equity: The value of a debtor’s interest in property that remains after 

liens and other creditors' interests are considered. (Example: If a house 

valued at $100,000 is subject to an $80,000 mortgage, there is $20,000 of 

equity.)

Executory contract or lease: This generally includes contracts or leases 

under which both parties to the agreement have duties remaining to be 

performed. If a contract or lease is executory, a debtor may assume it or 

reject it, subject to conditions set forth in 11 U.S.C. § 365.

Exemptions or exempt property: Certain property owned by an individual debtor that the Bankruptcy Code or applicable state law permits the 

debtor to keep from unsecured creditors. For example, in some states the 
Glossary

165

debtor may be able to exempt all or a portion of the equity in the debtor's 

primary residence (homestead exemption), or some or all "tools of the 

trade" used by the debtor to make a living (e.g., auto tools for an auto 

mechanic or dental instruments for a dentist). The availability and 

amount of property the debtor may exempt depends on the state the 

debtor lives in.

Joint administration: A court-approved mechanism under which two or 

more cases can be administered together. Assuming no conflicts of interest, these separate businesses or individuals can do such things as pool 

resources and hire the same professionals.

Joint petition: A bankruptcy petition that the Code or law permits to be 

filed by two individuals, typically spouses.

Lien: The right to take and hold or sell the property of a debtor as security or payment for a debt or duty.

Liquidation: A sale of a debtor's property, often by a bankruptcy trustee, 

with the proceeds to be used for the benefit of creditors.

Means test: Section 707(b)(2) of the Bankruptcy Code applies a "means 

test" to determine whether an individual debtor's Chapter 7 filing is presumed to be an abuse of the Bankruptcy Code, requiring dismissal or 

conversion of the case (generally to Chapter 13). Abuse is presumed if the 

debtor's aggregate current monthly income (see definition above) over 

five years, net of certain statutorily allowed expenses, is more than 

(1) $11,725 or (2) 25% of the debtor's nonpriority unsecured debt, as 

long as that amount is at least $7,025 (these amounts are subject to periodic adjustment for inflation, with the next adjustment on April 1, 2016). 

The debtor may rebut a presumption of abuse only by a showing of special circumstances that justify additional expenses or adjustments of current monthly income.

Meeting of creditors: The meeting held under 11 U.S.C. § 341 soon after 

a bankruptcy petition is filed, with the debtor required to attend.

No-asset case: A Chapter 7 case where there are no assets available to satisfy any portion of the creditors' unsecured claims.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

166

Nondischargeable debts: A debt that cannot be eliminated in bankruptcy. 

Examples include debts for alimony or child support, certain taxes, debts 

for most government-funded or guaranteed educational loans or benefit 

overpayments, debts arising from death or personal injury caused by 

driving while intoxicated or under the influence of drugs, and debts for 

restitution or a criminal fine included in a sentence on the debtor's conviction of a crime. Some debts, such as debts for money or property obtained by false pretenses and for fraud or defalcation while acting in a 

fiduciary capacity, may be declared nondischargeable only if a creditor 

timely files and prevails in a nondischargeability action.

Petition: The Official Form 1 that the debtor must use to commence a 

bankruptcy case. It is executed under penalty of perjury.

Petition preparer: A business that prepares bankruptcy petitions but is 

not authorized to practice law. See 11 U.S.C. § 110.

Prebankruptcy planning: The arrangement (or rearrangement) of a 

debtor's property to allow the debtor to take maximum advantage of exemptions. Prebankruptcy planning typically includes converting nonexempt assets into exempt assets.

Priority and priority claims: The Bankruptcy Code's statutory ranking of 

unsecured claims that determines the order in which unsecured claims 

will be paid if there is not enough money to pay all unsecured claims in 

full. For example, under the Bankruptcy Code's priority scheme, money 

owed to the case trustee or for prepetition alimony and/or child support 

must be paid in full before any general unsecured debt (i.e., trade debt or 

credit card debt) is paid. See 11 U.S.C. § 507.

Proof of claim: A written statement and verifying documentation filed by 

a creditor that describes the reason the debtor owes the creditor money.

There is an Official Form 10 for this purpose. See 11 U.S.C. § 501.

Property of the bankruptcy estate: All legal or equitable interests of the 

debtor in property as of the commencement of the case. See 11 U.S.C. 

§ 541.

Reaffirmation: An agreement by a Chapter 7 debtor to continue paying a 

dischargeable debt (such as an auto loan) after the bankruptcy, usually 

for the purpose of keeping collateral (such as a car) that would otherwise 
Glossary

167

be subject to repossession. See 11 U.S.C. § 524(c). There is an Official 

Form 27 cover sheet for reaffirmation agreements, and Procedural Forms 

B240A and B240AB.

Schedules and statements of financial affairs: Detailed lists filed by the 

debtor along with (or shortly after filing) the petition showing the debtor’s assets, liabilities, and other financial information. The debtor must 

use Official Forms 6 and 7, also executed under penalty of perjury.

Secured creditor: A creditor holding a claim against the debtor, who has 

the right to take and hold or sell certain property of the debtor in satisfaction of all or a portion of the claim.

Statement of intention: A declaration made by a Chapter 7 debtor about

plans for dealing with consumer debts that are secured by property of the 

estate. The debtor must use Official Form 8.

Trustee: The representative of the bankruptcy estate who exercises statutory powers, principally for the benefit of the unsecured creditors, under 

the general supervision of the court and the direct supervision of the 

United States trustee or bankruptcy administrator. The trustee is a private individual or corporation appointed in all Chapter 7, 12, and 13 cases and some Chapter 11 cases. The trustee's responsibilities include reviewing the debtor's petition and schedules and bringing actions against 

creditors or the debtor to recover property of the bankruptcy estate. In 

Chapter 7, the trustee liquidates property of the estate and makes distributions to creditors. Trustees in Chapters 12 and 13 have similar duties 

to a Chapter 7 trustee, plus the additional responsibilities of overseeing 

the debtor's plan, receiving payments from debtors, and disbursing plan 

payments to creditors.

Undersecured or underwater claim: A claim or debt for which the creditor’s collateral is worth less than the total claim.

United States trustee: An officer of the Justice Department responsible 

for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors’

committees; monitoring fee applications; and performing other statutory 

duties. In a few districts, the role of the U.S. trustee is fulfilled by a bankruptcy administrator.
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

168

Unsecured claim: A claim or debt for which a creditor holds no special 

assurance of payment, such as a mortgage or lien; a debt for which credit 

was extended based solely on the creditor's assessment of the debtor's 

future ability to pay.

Wholly unsecured claim: A claim that has security, but the collateral has 

no actual value, rendering the claim unsecured.
169

table of cases

Alphabetical

Adair v. Sherman, 230 F.3d 890 (7th Cir. 2000), n.350

Adams v. Zarnel (In re Zarnel), 619 F.3d 156 (2d Cir. 2010), n.108

Addison, In re, 540 F.3d 805 (8th Cir. 2008), n.291

Adeeb, In re, 787 F.2d 1339 (9th Cir. 1986), n.464

Ahmadi v. CitiMortgage, Inc. (In re Ahmadi), 467 B.R. 782 (Bankr. M.D. Pa. 

2012), n.367

Airhart, In re, 473 B.R. 178 (Bankr. S.D. Tex. 2012), n.757

Alakozai, In re, 499 B.R. 698 (B.A.P. 9th Cir. 2013), n.153

Alcide, In re, 450 B.R. 526 (Bankr. E.D. Pa. 2011), n.179

Aleman, In re, 499 B.R. 236 (Bankr. D.P.R. 2013), n.340

Aliello v. Providian Financial Corp., 239 F.3d 876 (7th Cir. 2001), n.192

Allen, In re, No. 13-3543, 2014 WL 267211 (3d Cir. Sept. 26, 2014), n.244

Allen v. US Bank, National Association (In re Allen), 472 B.R. 559 (B.A.P. 9th 

Cir. 2012), n.775

Allen v. Wayside Transportation Corp. (In re Allen), No. MB 00-115, 2001 WL 

36381911 (B.A.P. 1st Cir. June 15, 2001), n.206

America’s Servicing Co. v. Schwartz-Tallard, 438 B.R. 313 (D. Nev. 2010), n.195

AmeriCredit Financial Services, Inc. v. Penrod (In re Penrod), 611 F.3d 1158 

(9th Cir. 2010), n.629

Ameriquest Mortgage Co. v. Nosek (In re Nosek), 544 F.3d 34 (1st Cir. 2008), 

nn.633, 778

Ames, In re, 447 B.R. 680 (Bankr. D. Mass. 2011), n.517

Anderson v. Cranmer (In re Cranmer), 697 F.3d 1314 (10th Cir. 2012), nn.416, 

721

Andersson, In re, 209 B.R. 76 (B.A.P. 6th Cir. 1997), n.211

Annese v. Kolenda (In re Kolenda), 212 B.R. 851 (W.D. Mich. 1997), n.648

Aoki, In re, 323 B.R. 803 (B.A.P. 1st Cir. 2005), n.472

Applebaum, In re, 422 B.R. 684 (B.A.P. 9th Cir. 2009), n.308

Arkuszewski, In re, 507 B.R. 242 (Bankr. N.D. Ill. 2014), nn.110, 559

Armistead, In re, No. 11-36535, 2012 WL 3202964 (Bankr. S.D. Tex. Aug. 3, 

2012), n.53

Aroesty, In re, 385 B.R. 1 (B.A.P. 1st Cir. 2008), n.296

Arsenault, In re, 456 B.R. 627 (Bankr. S.D. Ga. 2011), n.138

Associates Commercial Corp. v. Rash, 520 U.S. 953 (1997), n.689
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

170

B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225 (B.A.P. 9th Cir. 2008), 

n.355

Badovick v. Greenspan (In re Greenspan), 464 B.R. 61 (Table) (B.A.P. 6th Cir. 

2011), n.526

Bailey, In re, No. 09-2564, 2010 WL 3813847 (Bankr. N.D. W. Va. Sept. 24, 

2010), n.700

Balas, In re, 449 B.R. 567 (Bankr. C.D. Cal. 2011), n.71

Bandi, In re, 683 F.3d 671 (5th Cir. 2012), n.491

Bank One, NA v. Leuellen (In re Leuellen), 322 B.R. 648 (S.D. Ind. 2005), n.735

Barbosa v. Soloman, 235 F.3d 31 (1st Cir. 2000), n.647

Barcal v. Laughlin (In re Barcal), 213 B.R. 1008 (B.A.P. 8th Cir. 1997), n.545

Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186 (9th Cir. 2012), n.525

Bates v. BAC Home Loans (In re Bates), 446 B.R. 301 (B.A.P. 8th Cir. 2011), 

n.165

Batista-Sanchez, In re, 502 B.R. 227 (Bankr. N.D. Ill. 2013), n.333

Baud v. Carroll, 634 F.3d 327 (6th Cir. 2011), nn.416, 721, 728

Baylis, In re, 313 F.3d 9 (1st Cir. 2002), n.498

Beaulieu v. Ragos (In re Ragos), 700 F.3d 220 (5th Cir. 2012), nn.416, 721

Belanger, In re, 962 F.2d 345 (4th Cir. 1992), n.456

Benafel v. One West Bank, FSB (In re Benafel), 461 B.R. 581 (B.A.P. 9th Cir. 

2011), n.627

Bene v. Educational Credit Management Corp. (In re Bene), 474 B.R. 56 (Bankr. 

W.D.N.Y. 2012), n.511

Bennett v. Spear, 520 U.S. 154 (1997), n.175

Blausey v. U.S. Trustee, 552 F.3d 1124 (9th Cir. 2009), n.418

Blixseth, In re, 454 B.R. 92 (B.A.P. 9th Cir. 2011), n.90

Bonham, In re, 229 F.3d 750 (9th Cir. 2000), n.102

Boscaccy, In re, 442 B.R. 501 (Bankr. N.D. Miss. 2010), n.606

Botkin v. Dupont Community Credit Union, 650 F.3d 396 (4th Cir. 2011), n.299

Boyajian v. Vargas (In re Vargas), No. 10-13103-ANV, 2012 WL 2450170 (B.A.P. 

1st Cir. June 8, 2012), n.746

Branigan v. Bateman (In re Bateman), 515 F.3d 272 (4th Cir. 2008), nn.625, 676

Branigan v. Davis (In re Davis), 716 F.3d 331 (4th Cir. 2013), n.623

Brewster, In re, No. 10-54254, 2011 WL 4458792 (Bankr. W.D. Tex. Sept. 14, 

2011), n.378

Briggs, In re, 143 B.R. 438 (Bankr. E.D. Mich. 1992), n.132

Bronson v. United States, 46 F.3d 1573 (Fed. Cir. 1995), n.185

Brown v. Brown (In re Brown), 378 B.R. 416 (B.A.P. 6th Cir. 2007), n.731

Brown v. Gore (In re Brown), 742 F.3d 1309 (11th Cir. 2014), nn.561, 675
Table of Cases

171

Brown & Co. Securities Corp. v. Balbus (In re Balbus), 933 F.2d 246 (4th Cir. 

1991), n.553

Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d 

Cir. 1987), nn.508, 509, 511, 519

Brunson, In re, 486 B.R. 759 (Bankr. N.D. Tex. 2013), n.365

Bulan v. Calloway (In re 1256 Hertel Avenue Associates, LLC), 761 F.3d 252 (2d 

Cir. 2014), n.254

Bullard v. Hyde Park Savings Bank (In re Bullard), 752 F.3d 483 (1st Cir. 2014), 

n.640

Bullard v. Hyde Park Savings Bank (In re Bullard), 494 B.R. 92 (B.A.P. 1st Cir. 

2013), n.640

Bullock v. BankChampaign, N.A., 133 S. Ct. 1754 (2013), nn.499–500

Burnett, In re, 656 F.3d 575 (8th Cir. 2011), n.594

Butner v. United States, 440 U.S. 48 (1979), nn.37, 217

Byrd, In re, 357 F.3d 433 (4th Cir. 2004), n.116

Cain, In re, 513 B.R. 316 (B.A.P. 6th Cir. 2014), n.623

Calhoun v. United States Trustee, 650 F.3d 338 (4th Cir. 2011), n.406

California v. Villalobos, 453 B.R. 404 (D. Nev. 2011), n.150

California Franchise Tax Board v. Jones (In re Jones), 420 B.R. 506 (B.A.P. 9th 

Cir. 2009), n.645

California Franchise Tax Board v. Jones (In re Jones), 657 F.3d 921 (9th Cir. 

2011), n.645

Camp v. Ingalls (In re Camp), 631 F.3d 757 (5th Cir. 2011), nn.269, 271

Campbell v. Countrywide Home Loans, Inc., No. 07-20499, 2008 WL 3906382 

(5th Cir. Aug. 26, 2008), opinion withdrawn & superseded by Campbell v. 

Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008), nn.126, 783

Canning, In re, 706 F.3d 64 (1st Cir. 2013), nn.517, 684

Caplan v. B-Line, LLC (In re Kirkland), 572 F.3d 838 (10th Cir. 2009), n.369

Carlton, In re, No. 10-00079-8-RDD, 2013 WL 2297082 (Bankr. E.D.N.C. May 

24, 2013), n.130

Carolina, Municipality of, v. Gonzalez (In re Gonzalez), 490 B.R. 642 (B.A.P. 1st 

Cir. 2013), n.330

Carr, In re, 468 B.R. 806 (Bankr. E.D. Va. 2012), n.781

Carroll v. Logan, 735 F.3d 147 (4th Cir. 2013), nn.224, 225, 570

Castleberry, In re, 437 B.R. 705 (Bankr. M.D. Ga. 2010), n.681

CenturyTel of Northwest Arkansas, LLC v. Laymon (In re Laymon), 360 B.R. 902 

(Bankr. E.D. Ark. 2007), n.653

Chassie, In re, No. 10-41432-MSH, 2011 WL 133007 (Bankr. D. Mass. Jan. 14, 

2011), n.95
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

172

Chenoweth, In re, 3 F.3d 1111 (7th Cir. 1993), n.222

Chilton v. Moser, 674 F.3d 486 (5th Cir. 2012), n.285

Chrysler Financial Corp. v. Nolan (In re Nolan), 232 F.3d 528 (6th Cir. 2000), 

n.734

CirTran Corp. v. Advanced Beauty Solutions, LLC (In re Advanced Beauty Solutions, LLC), No. 11-1183-PattPe, 2012 WL 603692 (B.A.P. 9th Cir. Feb. 8, 

2012), n.32

Citizens Bank of Maryland v. Strumpf, 516 U.S. 16 (1995), n.122

Clark v. Rameker, 134 S. Ct. 2242 (2014), n.286

Clark v. Valley Federal Savings & Loan Association (In re Reliance Equities, Inc.), 

966 F.2d 1338 (10th Cir. 1992), n.332

Clements, In re, 495 B.R. 74 (Bankr. E.D. Pa. 2013), n.760

Clinton, In re, 166 B.R. 195 (Bankr. N.D. Ga. 1994), n.103

Cohen v. De La Cruz, 523 U.S. 213 (1998), n.492

Cohn, In re, 54 F.3d 1108 (3d Cir. 1995), n.490

Comprehensive Accounting Corp. v. Pearson (In re Pearson), 773 F.2d 751 (6th 

Cir. 1985), nn.550, 553

Connor, In re, 419 B.R. 304 (Bankr. E.D.N.C. 2009), n.272

Connors, In re, 497 F.3d 314 (3d Cir. 2007), n.637

Conway v. National Collegiate Trust (In re Conway), 559 F. App’x 610 (8th Cir. 

2014), n.519

Coop v. Frederickson (In re Frederickson), 545 F.3d 652 (8th Cir. 2008), n.728

Copeland v. Fink (In re Copeland), 742 F.3d 811 (8th Cir. 2014), nn.602, 604

Covel, In re, 474 B.R. 702 (Bankr. W.D. Ark. 2012), n.460

Cox, In re, 338 F.3d 1238 (11th Cir. 2003), n.315

Crawford, In re, 324 F.3d 539 (7th Cir. 2003), nn.603, 605

Crawford, In re, No. 11-24158-SBB, 2012 WL 930281 (Bankr. D. Colo. Mar. 19, 

2012), n.172

Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), nn.61, 132, 

357, 782

Credit Nation Lending Services, LLC v. Nettles, 489 B.R. 239 (N.D. Ala. 2013), 

n.203

Cruz v. Stein Strauss Trust # 1361 (In re Cruz), No. CC-13-1554-KiTaD, 2014 

WL 4258990 (B.A.P. 9th Cir. Aug. 29, 2014), n.169

DaimlerChrysler Financial Services Americas, LLC v. Rivera (In re Rivera), No. 

1:08-CV-21-TS, 2008 WL 1957896 (N.D. Ind. May 2, 2008), n.697

Dale v. Maney (In re Dale), 505 B.R. 8 (B.A.P. 9th Cir. 2014), nn.225, 570

Daley v. Mostoller (In re Daley), 717 F.3d 506 (6th Cir. 2013), n.283

Danielson v. Flores (In re Flores), 735 F.3d 855 (9th Cir. 2013), n.728
Table of Cases

173

Darden, In re, 474 B.R. 1 (Bankr. D. Mass. 2012), nn.745, 752

Davis, In re, 911 F.2d 560 (11th Cir. 1990), n.464

Davis, In re, 170 F.3d 475 (5th Cir. 1999), n.306

Davis v. Cox, 356 F.3d 76 (1st Cir. 2004), n.304

Dawson, In re, 390 F.3d 1139 (9th Cir. 2004), n.194

DeAngelis v. Holmes (In re Holmes), No. 1:12-bk-01801-RNO, 2013 WL 

4446947 (Bankr. M.D. Penn. Aug. 21, 2013), n.74

Degiacomo v. Traverse (In re Traverse), 753 F.3d 19 (1st Cir. 2014), n.221

deLone, In re, 205 F. App’x 964 (3d Cir. 2006), n.632

Derringer, In re, 375 B.R. 903 (B.A.P. 10th Cir. 2007), n.134

DeSouza, In re, 493 B.R. 669 (B.A.P. 1st Cir. 2013), nn.128, 147

Dewsnup v. Timm, 502 U.S. 410 (1992), nn.531, 532, 612

Diaz, In re, 647 F.3d 1073 (11th Cir. 2011), n.204

Dickson v. Countrywide Home Loans (In re Dickson), 655 F.3d 585 (6th Cir. 

2011), nn.63, 589

Disciplinary Board of Supreme Court of Pennsylvania v. Feingold (In re

Feingold), 730 F.3d 1268 (11th Cir. 2013), n.505

DiVittorio v. HSBC Bank USA, NA (In re DiVittorio), 670 F.3d 273 (1st Cir. 

2012), n.782

Dixon v. IRS (In re Dixon), 218 B.R. 150 (B.A.P. 10th Cir. 1998), n.657

Donald, In re, 343 B.R. 524 (Bankr. E.D.N.C. 2006), n.458

Dorsey v. PRA Receivables Management, LLC (In re Dorsey), No. 07-21082PM, 

2008 WL 2511897 (Bankr. D. Md. June 20, 2008), n.353

Dow Chemical Employees Credit Union v. Collins, No. 10-20718, 2011 WL 

2746210 (E.D. Mich. July 14, 2011), n.712

Drapeau, In re, 485 B.R. 29 (Bankr. D. Mass. 2013), n.723

Drost, In re, 228 B.R. 208 (Bankr. N.D. Ind. 1998), n.349

Drummond v. Welsh (In re Welsh), 711 F.3d 1120 (9th Cir. 2013), nn.416, 430, 

720

Dugan v. U.S. Bank (OH) (In re Dugan), No. 4:11-ap-1267, 2012 WL 6825328 

(Bankr. E.D. Ark. June 20, 2012), n.158

Dunbar v. Cox Health Alliance, LLC (In re Dunbar), 446 B.R. 306 (Bankr. E.D. 

Ark. 2011), n.377

Durham, In re, 461 B.R. 139 (Bankr. D. Mass. 2011), n.210

Dykstra Exterior, Inc. v. Nestlen (In re Nestlen), 441 B.R. 135 (B.A.P. 10th Cir. 

2010), n.276

Easley v. Pettibone Michigan Corp., 990 F.2d 905 (6th Cir. 1993), n.184

Educational Credit Management Corp. v. Jorgensen (In re Jorgensen), 479 B.R. 

79 (B.A.P. 9th Cir. 2012), n.519
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

174

Edwards, In re, 901 F.2d 1383 (7th Cir. 1990), n.457

Egebjerg v. Anderson (In re Egebjerg), 574 F.3d 1045 (9th Cir. 2009), n.431

Ellett v. Stanislaus (In re Ellett), 506 F.3d 774 (9th Cir. 2007), n.767

Elstner-Bailey v. Federal National Mortgage Association (In re Elstner-Bailey), 

No. CC-11-1038-DKiPa, 2011 WL 6934490 (B.A.P. 9th Cir. Oct. 4, 2011), 

n.181

Enewally v. Washington Mutual Bank (In re Enewally), 368 F.3d 1165 (9th Cir. 

2004), n.639

Escobar, In re, 457 B.R. 229 (Bankr. E.D.N.Y. 2011), n.181

Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance 

Agency Inc.), 134 S. Ct. 2165 (2014), n.24

Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance 

Agency Inc.), 702 F.3d 553 (9th Cir. 2012), n.25

Exum, In re, No. 08-10079-RGM, 2008 WL 465818 (Bankr. E.D. Va. Feb. 21, 

2008), n.145

Farrey v. Sanderfoot, 500 U.S. 291 (1991), n.301

Faulkner v. CEFCU (In re Faulkner), No. 12-08069, 2013 WL 2154790 (Bankr. 

C.D. Ill. May 17, 2013), n.159

FBN Food Services, Inc., In re, 82 F.3d 1387 (7th Cir. 1996), n.350

Ficken v. United States (In re Ficken), 2 F.3d 299 (8th Cir. 1993), n.553

Field v. Mans, 516 U.S. 59 (1995), n.488

Fink v. Thompson (In re Thompson), 439 B.R. 140 (B.A.P. 8th Cir. 2010), n.721

Fisette v. Keller (In re Fisette), 455 B.R. 177 (B.A.P. 8th Cir. 2011), n.623

Fisette v. Keller (In re Fisette), 695 F.3d 803 (8th Cir. 2012), n.623

Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265 (1st Cir. 1999), n.189

Florida Department of Revenue v. Diaz (In re Diaz), 647 F.3d 1073 (11th Cir. 

2011), nn.204, 770

Florida Department of Revenue v. Rodriguez (In re Rodriguez), 367 F. App’x 25 

(11th Cir. 2010), nn.128, 149

Fort, In re, 412 B.R. 840 (Bankr. W.D. Va. 2009), n.149

Foy, In re, 469 B.R. 209 (Bankr. E.D. Pa. 2012), n.374

Francisco, In re, 390 B.R. 700 (B.A.P. 10th Cir. 2008), n.110

Fredman, In re, 471 B.R. 540 (Bankr. S.D. Ill. 2012), n.429

Freeman v. Schulman (In re Freeman), 86 F.3d 478 (6th Cir. 1996), n.730

French, In re, 499 F.3d 345 (4th Cir. 2007), n.465

Fridley v. Forsythe (In re Fridley), 380 B.R. 538 (B.A.P. 9th Cir. 2007), n.740

Fussell, In re, 928 F.2d 712 (5th Cir. 1991), n.141

Gauthier, In re, 459 B.R. 526 (Bankr. D. Mass. 2011), n.375
Table of Cases

175

Gebhart, In re, 621 F.3d 1206 (9th Cir. 2010), n.280

Geller v. Grijalva (In re Grijalva), No. 4:11-bk-25386-EWH, 2012 WL 1110291 

(Bankr. D. Ariz. Apr. 2, 2012), n.638

General Lending Corp. v. Cancio, 505 B.R. 63 (S.D. Fla. 2014), n.551

Geradin, In re, 447 B.R. 342 (Bankr. S.D. Fla. 2011), n.620

Gibson v. Dockery (In re Gibson), No. CC-10-1399-PaHKi, 2011 WL 7145612 

(B.A.P. 9th Cir. Dec. 1, 2011), nn.87, 109

Gilbert, In re, 472 B.R. 126 (Bankr. S.D. Fla. 2012), n.640

Gold v. Robins (In re Rowe), 750 F.3d 392 (4th Cir. 2014), n.442

Gonzalez v. Massachusetts Department of Revenue (In re Gonzalez), 506 B.R. 

317 (B.A.P. 1st Cir. 2014), n.482

Goodman v. IRS (In re Adams), 502 B.R. 645 (Bankr. N.D. Ga. 2013), n.339

Gordon, In re, 471 B.R. 614 (D. Colo. 2012), nn.51, 598

Gorman v. Birts (In re Birts), No. 1:12cv427 (LMB/TCB), 2012 WL 3150384 

(E.D. Va. Aug. 1, 2012), n.607

Gould, In re, 603 F.3d 1100 (9th Cir. 2010), n.155

Grady v. A.H. Robins Co., Inc., 839 F.2d 198 (4th Cir. 1998), n.169

Graves, In re, 609 F.3d 1153 (10th Cir. 2010), n.227

Greenpoint Mortgage Funding, Inc. v. Herrera (In re Herrera), 422 B.R. 698 

(B.A.P. 9th Cir. 2010), n.635

Griffin, In re, 415 B.R. 64 (Bankr. N.D.N.Y. 2009), n.205

Grogan v. Garner, 498 U.S. 279 (1991), n.480

Guariglia v. Community National Bank & Trust Co., 382 F. Supp. 758 (E.D.N.Y. 

1974), n.142

Hack, In re, No. 08-72553, 2009 WL 1392068 (Bankr. C.D. Ill. May 14, 2009), 

n.391

Hall, In re, 441 B.R. 680 (B.A.P. 10th Cir. 2009), n.223

Hallahan, In re, 936 F.2d 1496 (7th Cir. 1991), n.493

Hamilton, In re, 493 B.R. 31 (Bankr. M.D. Tenn. 2013), n.758

Hamilton v. Lanning, 560 U.S. 505 (2010), nn.707–08

Hamilton v. Wells Fargo Bank, N.A. (In re Hamilton), 401 B.R. 539 (B.A.P. 1st 

Cir. 2009), n.696

Hammonds, In re, 729 F.2d 1391 (11th Cir. 1984), n.538

Hann v. Educational Credit Management Corp. (In re Hann), 711 F.3d 235 (1st 

Cir. 2013), n.383

Hann v. Educational Credit Management Corp. (In re Hann), 476 B.R. 344 

(B.A.P. 1st Cir. 2012), n.770 

Hanover National Bank v. Moyses, 186 U.S. 181 (1902), n.259
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

176

Harchar v. United States (In re Harchar), 694 F.3d 639 (6th Cir. 2012), nn.123, 

136, 155, 205

Harp, In re, No. A10-00021-DMD, 2011 WL 6099551 (Bankr. D. Alaska Dec. 7, 

2011), n.340

Hart v. Southern Heritage Bank (In re Hart), 564 F. App’x 773 (6th Cir. 2014), 

n.493

Harwood, In re, 637 F.3d 615 (5th Cir. 2011), n.497

Heath, In re, 115 F.3d 521 (7th Cir. 1997), n.644

Hedlund v. Educational Resources Institute, Inc. 718 F.3d 848 (9th Cir. 2013), 

n.509

Heffron-Clark, In re, 714 F.3d 559 (7th Cir. 2013), nn.285, 286

Hence, In re, 255 F. App’x 28 (5th Cir. 2007), nn.632, 642

Henry, In re, 457 B.R. 402 (Bankr. E.D. Pa. 2011), n.690

Herrera, In re, 650 F.3d 1300 (9th Cir. 2011), n.597

Hinkle, In re, 474 B.R. 460 (Bankr. M.D. Pa. 2012), n.640

Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813 (B.A.P. 8th Cir. 2008), 

n.163

Holland, In re, 151 F.3d 547 (6th Cir. 1998), n.303

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), n.73

Holloway v. Community Bank, No. 3:10-CV-75, 2011 WL 4500042 (E.D. Tenn. 

Sept. 27, 2011), n.376

Home Funds Direct v. Monroy (In re Monroy), 650 F.3d 1300 (9th Cir. 2011), 

n.635

Hopkins v. Asset Acceptance LLC (In re Salgado-Nava), 473 B.R. 911 (B.A.P. 9th 

Cir. 2012), n.442

Huang, In re, 275 F.3d 1173 (9th Cir. 2002), nn.156, 477

Hubbell, In re, 496 B.R. 784 (Bankr. E.D.N.C. 2013), n.638

Huckfeldt, In re, 39 F.3d 829 (8th Cir. 1994), n.411

Hudson, In re, 504 B.R. 569 (B.A.P. 9th Cir. 2014), n.169

Hussain v. Malik (In re Hussain), 508 B.R. 417 (B.A.P. 9th Cir. 2014), n.467

Ingram, In re, 460 B.R. 904 (B.A.P. 6th Cir. 2011), nn.87, 109

Jacks v. Wells Fargo Bank, N.A. (In re Jacks), 642 F.3d 1323 (11th Cir. 2011), 

nn.118, 124, 777

Jackson, In re, 482 B.R. 659 (Bankr. S.D. Fla. 2012), n.382

Jacobsen v. Moser (In re Jacobsen), 609 F.3d 647 (5th Cir. 2010), n.752

Javery v. Lucent Technologies, Inc., 741 F.3d 686 (6th Cir. 2014), n.251

Jefferson, In re, 144 B.R. 620 (Bankr. D.R.I. 1992), n.131

Jendusa-Nicolai v. Larsen, 677 F.3d 320 (7th Cir. 2012), n.504
Table of Cases

177

Johnson, In re, 445 B.R. 50 (Bankr. D. Mass. 2011), n.300

Johnson, In re, No. 10-03184C, 2011 WL 1671536 (Bankr. N.D. Iowa May 3, 

2011), n.710

Johnson v. Fink (In re Johnson), 458 B.R. 745 (B.A.P. 8th Cir. 2011), n.736

Johnson v. Home State Bank, 501 U.S. 78 (1991), nn.524, 558, 566

Johnson v. Smith (In re Johnson), 501 F.3d 1163 (10th Cir. 2007), nn.129, 660

Johnson v. Zimmer, 686 F.3d 224 (4th Cir. 2012), nn.44, 426, 715

Jones, In re, 657 F.3d 921 (9th Cir. 2011), n.485

Jones v. United States, 476 F. App’x 815 (11th Cir. 2012), n.248

Jones v. U.S. Trustee (In re Jones), 726 F.3d 897 (9th Cir. 2013), n.520

Jordahl, In re, 516 B.R. 573 (Bankr. D. Minn. 2014), n.607

Jordan, In re, 521 F.3d 430 (4th Cir. 2008), n.474

Joye v. Franchise Tax Board (In re Joye), 578 F.3d 1070 (9th Cir. 2009), n.656

Junk v. CitiMortgage, Inc. (In re Junk), 512 B.R. 584 (Bankr. S.D. Ohio 2014), 

n.178

Kadlecek v. Schwank USA, Inc., 486 B.R. 336 (M.D.N.C. 2013), n.169

Kaler v. Charles (In re Charles), 474 B.R. 680 (B.A.P. 8th Cir. 2012), n.471

Kane v. National Union Fire Insurance Co., 535 F.3d 380 (5th Cir. 2008), n.450

Kawaauhau v. Geiger, 523 U.S. 57 (1998), n.503

Keeney, In re, 227 F.3d 679 (6th Cir. 2000), n.462

Kelly v. Robinson, 479 U.S. 36 (1986), n.506

Kennedy, In re, 108 F.3d 1015 (9th Cir. 1997), n.493

Key, In re, 465 B.R. 709 (Bankr. S.D. Ga. 2012), nn.572, 654

Khalil, 478 F.3d 1167 (9th Cir. 2009), n.469

Khan v. Regions Bank (In re Khan), 544 F. App’x 617 (6th Cir. 2013), n.348

Kimberlin v. Dollar General Corp., 520 F. App’x 312 (6th Cir. 2013), n.248

King v. Robenhorst, No. 11-C-573, 2011 WL 5877081 (E.D. Wis. Nov. 23, 2011), 

n.739

Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885 

(11th Cir. 1983), n.673

Kline, In re, 472 B.R. 98 (B.A.P. 10th Cir. 2012), n.187

Knaus, In re, 889 F.2d 77 (8th Cir. 1989), n.202

Knowles, In re, 501 B.R. 409 (Bankr. D. Kan. 2013), n.

Knowles v. Bayview Loan Servicing, LLC (In re Knowles), 442 B.R. 150 (B.A.P. 

1st Cir. 2011), nn.125, 132, 606, 783

Kontrick v. Ryan, 540 U.S. 443 (2004), n.481

Kramer v. Bankowski (In re Kramer), 505 B.R. 614 (B.A.P. 1st Cir. 2014), n.719

Krebs, In re, 527 F.3d 82 (3d Cir. 2008), n.253
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

178

Krieger v. Educational Credit Management Corp., 713 F.3d 882 (7th Cir. 2013), 

n.509

Kubeczko, In re, No. 12-13766 HRT, 2012 WL 2685115 (Bankr. D. Colo. July 6, 

2012), nn.608, 663

Kulakowski v. U.S. Trustee (In re Kulakowski), 735 F.3d 1296 (11th Cir. 2013), 

n.406

Kulp, In re, 949 F.2d 1106 (10th Cir. 1991), n.308

Kyle, In re, 510 B.R. 804 (Bankr. S.D. Ohio 2014), n.254

Larson, In re, 513 F.3d 325 (1st Cir. 2008), nn.297, 479

Latman v. Burdette, 366 F.3d 774 (9th Cir. 2004), n.314

LaVictoire, In re, Nos. 10-10076 & 10-10325, 2011 WL 1168288 (Bankr. D. Vt. 

Mar. 25, 2011), n.542

Law v. Siegel, 134 S. Ct. 1188 (2014), nn.309, 316–17

Law v. Siegel, 435 F. App’x 697 (9th Cir. 2011), n.310

Lazaro, In re, 128 B.R. 168 (Bankr. W.D. Tex. 1991), n.67

Lee v. Anasti (In re Lee), 461 F. App’x 227 (4th Cir. 2012), nn.170, 590

Lee v. Yeutter, 917 F.2d 1104 (8th Cir. 1990), n.523

Lehman, In re, 205 F.3d 1255 (11th Cir. 2000), n.303

Lepe, In re, 470 B.R. 851 (B.A.P. 9th Cir. 2012), n.624

Lesser, In re, 939 F.2d 669 (8th Cir. 1991), n.604

Lodge v. Kondaur Capital Corp., 750 F.3d 1263 (11th Cir. 2014), n.193

Long, In re, 470 B.R. 186 (Bankr. D. Kan. 2012), n.269

Lovald v. Falzerano (In re Falzerano), 686 F.3d 885 (8th Cir. 2012), n.240

Love, In re, 957 F.2d 1350 (7th Cir. 1992), n.672

Lowry Federal Credit Union v. West, 882 F.2d 1543 (10th Cir. 1989), n.456

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1962), n.174

Lytell, In re, No. 11-2473, 2012 WL 253111 (E.D. La. Jan. 26, 2012), n.374

MacFarland, In re, 462 B.R. 857 (Bankr. S.D. Fla. 2011), nn.361, 366

Mahorn v. Petty (In re Petty), 491 B.R. 554 (B.A.P. 8th Cir. 2013), n.494

Malley v. Agin, 693 F.3d 28 (1st Cir. 2012), n.313

Mallon v. Keenan (In re Keenan), 431 B.R. 308 (B.A.P. 10th Cir. 2009), n.677

Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365 (2007), nn.527, 563, 

750

Marrama v. Citizens Bank of Massachusetts (In re Marrama), 430 F.3d 474 (1st 

Cir. 2005), n.565

Martindale v. Meenderinck (In re Meenderinck), 256 F. App’x 913 (9th Cir. 

2007), n.550

Mason, In re, No. 13-1391, 2013 WL 2423893 (3d Cir. June 5, 2013), n.133
Table of Cases

179

Massachusetts v. U.S. Department of Health & Human Services, 682 F.3d 1 (1st 

Cir. 2012), n.71

Matson, In re, 509 B.R. 860 (Bankr. E.D. Wis. 2014), n.69

Matthews v. Rosene, 739 F.3d 249 (7th Cir. 1984), n.183

Mattox v. Wells Fargo, NA (In re Mattox), No. 07-51925, 2011 WL 3626762 

(Bankr. E.D. Ky. Aug. 17, 2011), n.786

Mattson v. Howe (In re Mattson), 468 B.R. 361 (B.A.P. 9th Cir. 2012), nn.730, 

737

Mayberry, In re, No. 13-31233-H3-13, 2013 WL 1694471 (Bankr. S.D. Tex. Apr. 

18, 2013), n.164

Mazzeo v. United States (In re Mazzeo), 131 F.3d 295 (2d Cir. 1997), n.546

McAllister, In re, 510 B.R. 409 (Bankr. N.D. Ga. 2014), nn.225, 572

McCarty v. Lasowski (In re Lasowski), 575 F.3d 815 (8th Cir. 2009), nn.432, 726

McCoy v. Kuiken (In re Kuiken), 484 B.R. 766 (B.A.P. 9th Cir. 2013), n.302

McCoy v. Mississippi State Tax Commission (In re McCoy), 666 F.3d 924 (5th 

Cir. 2012), n.482

McGavin, In re, 189 F.3d 1215 (10th Cir. 1999), n.493

McGrahan, In re, 459 B.R. 869 (B.A.P. 1st Cir. 2011), n.149

McGregor, In re, 449 B.R. 468 (Bankr. D.S.C. 2011), n.687

McIntosh v. LeBarge (In re McIntosh), 491 B.R. 905 (B.A.P. 8th Cir. 2013), n.597

McKenzie, In re, 737 F.3d 1034 (6th Cir. 2013), n.168

McLaren, In re, 3 F.3d 958 (6th Cir. 1993), n.493

McMaster v. Small (In re Small), 486 F. App’x 436 (5th Cir. 2012), n.141

Mercado, In re, 376 B.R. 430 (Bankr. M.D. Fla. 1990), n.540

Meridian Bank v. Alten, 958 F.2d 1226 (3d Cir. 1992), n.467

Messick v. Ascend Federal Credit Union, 424 B.R. 344 (E.D. Tenn. 2010), n.137

Messina, In re, 687 F.3d 74 (3d Cir. 2012), n.221

Meyer v. Scholz (In re Scholz), 477 B.R. 877 (B.A.P. 9th Cir. 2011), n.417

Michael, In re, 699 F.3d 305 (3d Cir. 2012), n.758

Michigan Department of Treasury v. Hight (In re Hight), 670 F.3d 699 (6th Cir. 

2012), nn.330, 655

Miller, In re, 443 B.R. 54 (Bankr. D. Del. 2011), n.459

Miller v. Deutsche Bank National Trust Co. (In re Miller), 666 F.3d 1255 (10th 

Cir. 2012), nn.180, 182, 774

Miller v. United States Trustee (In re Miller), BAP No. WY-14-002, Bankr. No. 

13-20384, 2014 WL 5018464 (B.A.P. 10th Cir. Oct. 8, 2014), n.415

Minnesota Housing Finance Agency v. Schmidt (In re Schmidt), 765 F.3d 877 

(8th Cir. 2014), n.615

Mitrano, In re, 409 B.R. 812 (E.D. Va. 2009), n.107

Mitrano, In re, 472 B.R. 706 (E.D. Va. 2012), n.752
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

180

Mondelli, In re, 558 F. App’x 260 (3d Cir. 2014), n.756

Moore, In re, No. 10-11491, 2012 WL 1192776 (Bankr. N.D.N.Y. Apr. 10, 2012), 

n.338

Moore v. Robbins, No. CV 13-1122 (BAH), 2014 WL 930852 (D.D.C. Mar. 11, 

2014), n.473

Moran v. Frisard (In re Ulmer), 19 F.3d 234 (5th Cir. 1994), n.211

Morris v. Quigley (In re Quigley), 673 F.3d 269 (4th Cir. 2012), nn.709, 719

Morrison, In re, 555 F.3d 473 (5th Cir. 2009), n.493

Mort Ranta v. Gorman, 721 F.3d 241 (4th Cir. 2013), nn.416, 721

Moses v. Howard University Hospital, 606 F.3d 789 (D.C. Cir. 2010), n.248

Mouzon Enterprises, Inc., In re, 610 F.3d 1329 (11th Cir. 2010), n.346

Muhaimin, In re, 343 B.R. 159 (Bankr. D. Md. 2006), n.153

Mullen v. Hamlin (In re Hamlin), 465 B.R. 863 (B.A.P. 9th Cir. 2012), n.285

Munoz, In re, 428 B.R. 516 (Bankr. S.D. Cal. 2010), n.556

Murphy v. O’Donnell (In re Murphy), 474 F.3d 143 (4th Cir. 2007), n.736

Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 764 F.3d 1168 (9th Cir. 

2014), n.122

Myers, In re, 491 F.3d 120 (3d Cir. 2007), nn.169, 562, 756

Nady v. DeFrantz (In re DeFrantz), 454 B.R. 108 (B.A.P. 9th Cir. 2011), n.751

Nardello v. Balboa, 514 B.R. 105 (D.N.J. 2014), n.576

NCI Building Systems LP v. Harkness (In re Harkness), 189 F. App’x 311 (5th 

Cir. 2006), n.550

Nealen, In re, 407 B.R. 194 (Bankr. W.D. Pa. 2009), n.543

Nessa, In re, 426 B.R. 312 (B.A.P. 8th Cir. 2010), n.285

Ng v. Farmer (In re Ng), 477 B.R. 118 (B.A.P. 9th Cir. 2012), n.407

Nicholas, In re, 458 B.R. 516 (Bankr. E.D. Ark. 2011), n.712

Nicholas v. Oren (In re Nicholas), 457 B.R. 202 (Bankr. E.D.N.Y. 2011), n.378

Nielsen v. ACS, Inc. (In re Nielsen), 473 B.R. 755 (B.A.P. 8th Cir. 2012), n.511

Nixon, In re, 419 B.R. 281 (Bankr. E.D. Pa. 2009), n.190

Nobelman v. American Savings Bank, 508 U.S. 324 (1993), nn.613, 615

Northern California Glaziers v. Wolter, No. 08-4487SC, 2009 WL 1458272 (N.D. 

Cal. May 26, 2009), n.342

Northern Pipeline Construction Co. v. Marathon Pipeline, 458 U.S. 50 (1982), 

n.14

Nowlin v. Peake (In re Nowlin), 576 F.3d 258 (5th Cir. 2009), n.726

Nussman, In re, 501 B.R. 297 (Bankr. E.D.N.C. 2013), n.358

Ocasio, In re, 272 B.R. 815 (B.A.P. 1st Cir. 2002), n.127

Okosisi, In re, 451 B.R. 90 (Bankr. D. Nev. 2011), n.621
Table of Cases

181

Oliver v. Samadi (In re Oliver), 306 F. App’x 458 (11th Cir. 2008), n.694

Omine, In re, 485 F.3d 1305, withdrawn pursuant to settlement, 2007 WL 6813797 

(11th Cir. 2007), n.147

Onubah, In re, 375 B.R. 549 (B.A.P. 9th Cir. 2007), n.314

Option One Mortgage Corp. v. Sterten (In re Sterten), 546 F.3d 278 (3d Cir. 

2008), n.782

Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 665 F.3d 906 (7th Cir. 2011), n.39

Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 477 B.R. 714 (E.D. Wis. 2012) 

(withdrawn), nn.23, 39

Orton, In re, 687 F.3d 612 (3d Cir. 2012), n.281

Owen v. Owen, 500 U.S. 305 (1991), n.257

Pace, In re, 67 F.3d 187 (9th Cir. 1995), n.197

Padilla, In re, 222 F.3d 1184 (9th Cir. 2000), n.411

Padilla v. GMAC Mortgage Corp., 389 B.R. 409 (Bankr. E.D. Pa. 2008), n.779

Padilla v. Wells Fargo Home Mortgage, Inc., 379 B.R. 643 (Bankr. S.D. Tex. 

2007), n.779

Pajian, In re, 508 B.R. 708 (Bankr. N.D. Ill. 2014), n.322

Parks v. Drummond (In re Parks), 475 B.R. 703 (B.A.P. 9th Cir. 2012), nn.233, 

720, 723, 724

Patrick v. PYOD, LLC, No. 1:14-cv539-RLY-TAB, 2014 WL 4100414 (S.D. Ind. 

Oct. 20, 2014), nn.61, 357,

Patterson v. Homecomings Financial LLC, 425 B.R. 499 (E.D. Wis. 2010), n.126

Patterson v. Shumate, 504 U.S. 753 (1992), n.235

Paulson v. Wein (In re Paulson), 477 B.R. 740 (B.A.P. 8th Cir. 2012), n.754

Payton, In re, 481 B.R. 460 (Bankr. N.D. Ill. 2012), n.210

Peake, In re, 480 B.R. 367 (Bankr. D. Kan. 2012), n.296

Pellegrino v. Boyajian (In re Pellegrino), 423 B.R. 586 (B.A.P. 1st Cir. 2010), 

n.541

Penaran, In re, 424 B.R. 868 (Bankr. D. Kan. 2010), nn.146, 392, 595

Pence, In re, 469 B.R. 643 (Bankr. W.D. Va. 2012), n.164

Pendergast v. Massachusetts Department of Revenue (In re Pendergast), 510 B.R. 

1 (B.A.P. 1st Cir. 2014), n.482

Perez, In re, 954 F.2d 1026 (5th Cir. 1992), n.471

Perl, In re, 513 B.R. 566 (B.A.P. 9th Cir. 2014), nn.118, 134

Perle v. Fiero (In re Perle), 725 F.3d 1023 (9th Cir. 2013), n.494

Perlin v. Hitachi Capital America Corp., 497 F.3d 364 (3d Cir. 2007), n.408

Phillips, In re, 476 F. App’x 813 (11th Cir. 2012), nn.468, 469

Piazza v. Nueterra Healthcare Physical Therapy, LLC (In re Piazza), 719 F.3d 

1253 (11th Cir. 2013), n.410
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

182

Pittman, In re, 506 B.R. 496 (Bankr. S.D. Ohio 2014), n.404

Pliler v. Stearns, 747 F.3d 260 (4th Cir. 2014), n.728

Pompa v. Wells Fargo Home Mortgage, Inc. (In re Pompa), No. 06-31759, ADV 

11-3651, 2012 WL 2571156 (Bankr. S.D. Tex. June 29, 2012), n.781

Pratt, In re, 411 F.3d 561 (5th Cir. 2005), n.463

Pratt v. GMAC (In re Pratt), 462 F.3d 14 (1st Cir. 2006), n.684

Puffer, In re, 674 F.3d 78 (1st Cir. 2012), n.675

Pulaski, In re, 475 B.R. 681 (Bankr. W.D. Wis. 2012), n.34

Pursley, In re, 451 B.R. 213 (Bankr. M.D. Ga. 2011), nn.360, 368

Pyatt, In re, 486 F.3d 423 (8th Cir. 2007), n.239

Rainey v. United Parcel Service, Inc., 466 F. App’x 542 (7th Cir. 2012), n.250

Rake v. Wade, 508 U.S. 464 (1993), nn.342, 641

Ransom v. FIA Card Services, N.A., 131 S. Ct. 716 (2011), nn.428, 706, 717–18

Ray Cai v. Shenzhen Smart-In Industry Co. (In re Ray Cai), 571 F. App’x 580 

(9th Cir. 2014), n.493

Realty Portfolio, Inc. v. Hamilton (In re Hamilton), 125 F.3d 292 (5th Cir. 1997), 

n.590

Reed v. City of Arlington, 650 F.3d 571 (5th Cir. 2011), n.252

Reese, In re, 91 F.3d 37 (7th Cir. 1996), n.512

Regan v. Ross, 691 F.2d 81 (2d Cir. 1982), n.537

Renteria, In re, 470 B.R. 838 (B.A.P. 9th Cir. 2012), n.601

Renz, In re, 476 B.R. 382 (Bankr. E.D.N.Y. 2012), n.624

Reswick v. Reswick (In re Reswick), 446 B.R. 362 (B.A.P. 9th Cir. 2011), n.163

Retz, In re, 606 F.3d 1189 (9th Cir. 2010), nn.468, 470

Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522 (3d Cir. 1994), n.183

Reynolds, In re, 470 B.R. 138 (Bankr. D. Colo. 2012), nn.371–73

Reynolds, In re, 425 F.3d 526 (8th Cir. 2005), n.510

Rhodes v. Stewart, 705 F.2d 159 (6th Cir. 1983), n.260

Richardson v. Schafer (In re Schafer), 689 F.3d 601 (6th Cir. 2012), n.307

Richter, In re, No. 10-01260, 2010 WL 4272915 (Bankr. N.D. Iowa Oct. 22, 

2010), n.209

Richter, In re, 478 B.R. 30 (Bankr. D. Colo. 2012), n.364

Rivera v. Matos (In re Rivera), 494 B.R. 101 (B.A.P. 1st Cir. 2013), n.208

Rivera v. Orange County Probation Department (In re Rivera), 511 B.R. 643 

(B.A.P. 9th Cir. 2014), nn.143, 386

Roberts, In re, 450 B.R. 159 (N.D. Iowa 2011), n.268

Roberts, In re, 906 F.2d 1440 (10th Cir. 1990), n.483

Roberts, In re, 514 B.R. 358 (Bankr. E.D.N.Y. 2014), nn.225, 570

Roberts v. Pierce (In re Pierce), 435 F.3d 891 (8th Cir. 2006), n.356
Table of Cases

183

Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010), n.249

Rocco v. J.P. Morgan Chase Bank, 255 F. App’x 638 (3d Cir. 2007), n.171

Rocco v. King (In re King), No. AZ-07-1317-PaJuk, 2008 WL 8444814 (B.A.P. 

9th Cir. Mar. 12, 2008), n.674

Rodriguez, In re, 487 B.R. 275 (Bankr. D.N.M. 2013), n.162

Rodriguez, In re, 367 F. App’x 25 (11th Cir. 2010), n.149

Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 695 F.3d 360 

(5th Cir. 2012), n.773

Rogers v. Eastern Savings Bank (In re Rogers), 489 B.R. 327 (D. Conn. 2013), 

n.623

Rose, In re, 512 B.R. 790 (Bankr. W.D.N.C. 2014), nn.138, 684

Roseman v. Roseman, 14 F.3d 602 (6th Cir. 1993), n.157

Rosenfeld, In re, 23 F.3d 833 (4th Cir. 1994), n.516

Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764 (9th Cir. 2008), n.752

Roth v. Educational Credit Management Corp., 490 B.R. 908 (B.A.P. 9th Cir. 

2013), n.507

Rousey v. Jacoway, 544 U.S. 320 (2005), n.237

Ruiz, In re, 455 B.R. 745 (B.A.P. 10th Cir. 2011), n.239

Russell v. Kuhnel (In re Kuhnel), 495 F.3d 1177 (10th Cir. 2007), n.247

Russo v. Freda (In re Russo), No. 09-3274 (FLW), 2009 WL 4672669 (D.N.J. 

Dec. 7, 2009), n.339

Ryan v. United States (In re Ryan), 725 F.3d 623 (7th Cir. 2013), n.616

Safanda v. Castellano (In re Castellano), 514 B.R. 555 (Bankr. N.D. Ill. 2014), 

n.23

Salander O’Reilly Galleries, In re, 453 B.R. 106 (Bankr. S.D.N.Y. 2011), n.31

Salazar, In re, 449 B.R. 890 (Bankr. N.D. Tex. 2011), n.279

Santander Consumer USA, Inc. v. Brown (In re Brown), 746 F.3d 1236 (11th Cir. 

2014), n.688

Santos v. Dockery (In re Santos), 540 F. App’x 622 (9th Cir. 2013), n.554

Sardana v. Bank of America, N.A. (In re Sardana), No. AZ-10-1368-DMkMa, 

2011 WL 3299861 (B.A.P. 9th Cir. June 7, 2011), n.178

Sarner, In re, No. 10-17487-JNF, 2011 WL 5240200 (Bankr. D. Mass. Oct. 31, 

2011), nn.158, 573

Scarborough, In re, 457 F. App’x 193 (3d Cir. 2012), nn.161, 699

Scarborough v. Chase Manhattan Corp. (In re Scarborough), 461 F.3d 406 (3d 

Cir. 2006), nn.626, 628

Schauer, In re, No. 99-31918, 2000 WL 33792712 (Bankr. D.N.D. Aug. 14, 2000), 

n.536

Schena, In re, 439 B.R. 776 (Bankr. D.N.M. 2010), n.273
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

184

Schoppe v. Commissioner of Internal Revenue, 711 F.3d 1190 (10th Cir. 2013), 

n.121

Schwab v. Reilly, 560 U.S. 770 (2010), n.278

Schwartz, In re, 954 F.2d 569 (9th Cir. 1992), n.183

Schwartz-Tallard v. America’s Servicing Co. (In re Schwartz-Tallard), 765 F.3d 

1096 (9th Cir. 2014), nn.195, 200

Scioli, In re, No. 13-2762, 2014 WL 2119187 (3d Cir. May 22, 2014), n.288

Scotto-DiClemente, In re, 463 B.R. 308 (Bankr. D.N.J. 2012), n.557

Scovis v. Henrichsen (In re Scovis), 249 F.3d 975 (9th Cir. 2001), nn.549, 550, 

553, 556

Scrivner, In re, 535 F.3d 1258 (10th Cir. 2008), nn.311–12

Scroggin, In re, 364 B.R. 772 (B.A.P. 10th Cir. 2007), n.135

Seafort v. Burden (In re Seafort), 669 F.3d 662 (6th Cir. 2012), nn.232, 432, 724, 

726

Secrest, In re, 453 B.R. 623 (Bankr. E.D. Va. 2011), n.145

Serafini, In re, 938 F.2d 1156 (10th Cir. 1991), n.480

Sexton v. Department of Treasury, 508 B.R. 646 (Bankr. W.D. Va. 2014), nn.120, 

155

Shaia v. Taylor (In re Connelly), 476 B.R. 223 (Bankr. E.D. Va. 2012), n.36

Shapiro v. Henson, 739 F.3d 1198 (9th Cir. 2014), n.239

Sheehan v. Dobin, No. 10-6288 (FLW), 2012 WL 426285 (D.N.J. Feb. 9, 2012), 

n.35

Sheehan v. Peveich, 574 F.3d 248 (4th Cir. 2009), n.308

Shelton v. CitiMortgage, Inc. (In re Shelton), 477 B.R. 749 (B.A.P. 8th Cir. 2012), 

n.326

Sheppard, In re, No. 10-33959-KRH, 2012 WL 1344112 (Bankr. E.D. Va. Apr. 18, 

2012), n.781

Siciliano, In re, 13 F.3d 748 (3d Cir. 1994), n.186

Sikes v. Crager (In re Crager), 691 F.3d 671 (5th Cir. 2012), n.675

Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir. 1989), n.185

Silveira, In re, 141 F.3d 34 (1st Cir. 1998), n.303

Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2d Cir. 2010), n.354

Singh v. Cusick (In re Singh), No. EC-11-1700-DJUMk, 2013 WL 1615849 

(B.A.P. 9th Cir. Apr. 15, 2013), n.165

Smith, In re, 522 F. App’x 760 (7th Cir. 2013), n.175

Smith, In re, 511 B.R. 612 (Bankr. W.D. Mo. 2014), n.53

Smith, In re, No. 09-43823, 2010 WL 5018379 (Bankr. W.D. Wash. Dec. 3, 

2010), n.344

Smith, In re, 465 B.R. 350 (Bankr. D. Mass. 2012), n.379

Smith, In re, 507 F.3d 64 (2d Cir. 2007), n.409
Table of Cases

185

Smith, In re, 582 F.3d 767 (7th Cir. 2009), n.496

Smith v. Rockett (In re Smith), 522 F.3d 1080 (10th Cir. 2008), n.591

Smith v. Rojas (In re Smith), 435 B.R. 637 (B.A.P. 9th Cir. 2010), n.554

Snowden v. Check Into Cash of Washington, Inc. (In re Snowden), 769 F.3d 651 

(9th Cir. 2014), n.201

Snyder, In re, No. 10-62052, 2012 WL 1110119 (Bankr. N.D.N.Y. Apr. 2, 2012), 

n.683

Soares, In re, 107 F.3d 969 (1st Cir. 1997), n.183

Solow v. Kalikow (In re Kalikow), 602 F.3d 82 (2d Cir. 2010), n.525

Somers, In re, 448 B.R. 677 (Bankr. S.D.N.Y. 2011), n.71

Sood v. Business Lenders, LLC, No. MJG-11-2528, 2012 WL 2847613 (D. Md. 

July 10, 2012), n.568

Soto v. Doral Bank (In re Soto), 491 B.R. 307 (B.A.P. 1st Cir. 2013), n.88

Stella, In re, No. 05-05422-TLM, 2006 WL 2433443 (Bankr. D. Idaho June 28, 

2006), n.604

Stephenson v. Malloy, 700 F.3d 265 (6th Cir. 2012), n.252

Stern v. Marshall, 131 S. Ct. 2594 (2011), nn.21–22, 23, 24, 36, 785

Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010), nn.196, 200

Sterrenberg, In re, 471 B.R. 131 (Bankr. E.D.N.C. 2012), n.429

Stewart v. Batmanghelich (In re Stewart), 373 F. App’x 682 (9th Cir. 2010), n.359

Stewart v. Chase Bank (In re Stewart), 473 B.R. 612 (Bankr. W.D. Pa. 2012), 

n.784

Stoker v. Aurora Loan Services, Inc. (In re Stoker), No. 09-33976, 2010 WL 

958030 (Bankr. S.D. Tex. Mar. 10, 2010), n.191

Storey v. Pees (In re Storey), 392 B.R. 266 (B.A.P. 6th Cir. 2008), n.738

Strictland, In re, 504 B.R. 542 (Bankr. D. Minn. 2014), n.415

Suggs, In re, 377 B.R. 198 (B.A.P. 8th Cir. 2007), n.130

Sullivan, In re, 680 F.2d 1131 (7th Cir. 1982), n.260

Tamecki, In re, 229 F.3d 205 (3d Cir. 2000), n.411

Tanaka Bros. Farms, Inc., In re, 36 F.3d 996 (10th Cir. 1994), n.381

Taranto, In re, No. 10-76041-ast, 2012 WL 1066300 (Bankr. E.D.N.Y. Mar. 27, 

2012), nn.358, 363

Taumoepeau v. Manufacturers & Traders Trust Co. (In re Taumoepeau), 523 

F.3d 1213 (10th Cir. 2008), n.749

Taylor, In re, 655 F.3d 274 (3d Cir. 2011), nn.361, 766

Taylor, In re, 3 F.3d 1512 (11th Cir. 1993), n.457

Taylor, In re, 15 B.R. 596 (Bankr. D. Ariz. 1981), n.539

Taylor, In re, 472 B.R. 570 (C.D. Cal. 2012), n.751

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), n.277
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

186

TD Bank, N.A. v. Landry, 479 B.R. 1 (D. Mass. 2012), n.627

TD Bank, N.A. v. LaPointe (In re LaPointe), 505 B.R. 589 (B.A.P. 1st Cir. 2014), 

n.637

Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), n.646

Thomas, In re, 469 B.R. 915 (B.A.P. 10th Cir. 2012), nn.152, 182

Thomas v. Indiana Oxygen Co., No. 1:14-cv-00476-JMS-DKL, 2014 WL 3509693 

(S.D. Ind. July 15, 2014), n.591

Thompson, In re, 426 B.R. 759 (Bankr. N.D. Ill. 2010), n.198

Thompson v. General Motors Acceptance Corp., 566 F.3d 699 (7th Cir. 2009), 

nn.129, 188, 215, 238

Thompson v. Greenwood, 507 F.3d 416 (6th Cir. 2007), n.66

Thunberg, In re, 641 F.3d 559 (1st Cir. 2011), n.521

Tibbs, In re, 478 B.R. 458 (Bankr. S.D. Fla. 2012), n.741

Till v. SCS Credit Corp., 541 U.S. 465 (2004), n.693

Tinney, In re, No. 07-42020-JJR13, 2012 WL 2742457 (Bankr. N.D. Ala. July 9, 

2012), nn.225, 571

Toye v. O’Donnell (In re O’Donnell), 728 F.3d 41 (1st Cir. 2013), n.489

Turner, In re, 574 F.3d 349 (7th Cir. 2009), n.719

Turner v. Citizens National Bank (In re Turner), 207 B.R. 373 (B.A.P. 2d Cir. 

1997), n.567

Tynan, In re, 773 F.2d 177 (7th Cir. 1985), n.637

United States v. Coney, 689 F.3d 365 (5th Cir. 2012), n.486

United States v. Cushing (In re Cushing), 401 B.R. 528 (B.A.P. 1st Cir. 2009), 

n.586

United States v. Estus (In re Estus), 695 F.2d 311 (8th Cir. 1982), n.673

United States v. Ripley (In re Ripley), 926 F.2d 440 (5th Cir. 1991), n.658

United States v. Robinson (In re Robinson), 764 F.3d 554 (6th Cir. 2014), n.140

United States v. White, 466 F.3d 1241 (11th Cir. 2006), n.183

United States v. Whiting Pools, Inc., 462 U.S. 198 (1983), n.214

United States v. Windsor, 133 S. Ct. 2675 (2013), n.72

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010), nn.664, 670, 

682, 742, 744

Unroe, In re, 937 F.2d 346 (7th Cir. 1991), n.380

Van Winkle, In re, No. 11-13861-j13, 2012 WL 404956 (Bankr. D.N.M. Feb. 8, 

2012), n.544

Vannordstrand v. Hamilton (In re Vannordstrand), 356 B.R. 788 (B.A.P. 10th 

Cir. 2007), n.570

Varona, In re, 388 B.R. 705 (Bankr. E.D. Va. 2008), n.354
Table of Cases

187

Veal, In re, 449 B.R. 542 (B.A.P. 9th Cir. 2011), n.177

Velez, In re, 431 B.R. 567 (Bankr. S.D.N.Y. 2010), n.630

Viegelahn v. Harris (In re Harris), 757 F.3d 468 (5th Cir. 2014), n.759

Wadsworth v. Word of Life Christian Center (In re McGough), 737 F.3d 1268 

(10th Cir. 2013), n.413

Waldman v. Stone, 698 F.3d 910 (6th Cir. 2012), n.28

Waldron, In re, 536 F.3d 1239 (11th Cir. 2008), n.571

Warth v. Seldin, 422 U.S. 490 (1975), n.173

Waugh, In re, 109 F.3d 489 (8th Cir. 1997), n.151

Weber v. SEFCU (In re Weber), 719 F.3d 72 (2d Cir. 2013), nn.129, 215, 218, 238

Weise, In re, 455 B.R. 702 (Bankr. E.D. Wis. 2011), n.327

Wellness International Network, Ltd. v. Sharif, 134 S. Ct. 2901 (2014), nn.26, 33

Wellness International Network, Ltd. v. Sharif, 727 F.3d 751 (7th Cir. 2013), 

nn.26, 29, 33

Wells Fargo Bank, N.A. v. Scantling (In re Scantling), 754 F.3d 1323 (11th Cir. 

2014), nn.620, 623

Wesley v. Oh (In re Oh), No. NC-07-1325-MdKB, 2008 WL 8448837 (B.A.P. 9th 

Cir. Apr. 16, 2008), n.133

Westby, In re, 486 B.R. 509 (B.A.P. 10th Cir. 2013), n.308

Wetzel v. Regions Bank, 649 F.3d 831 (8th Cir. 2011), n.234

Whaley v. Tennyson (In re Tennyson), 611 F.3d 873 (11th Cir. 2010), n.728

Whetzel v. Alderson, 32 F.3d 1302 (8th Cir. 1994), n.236

White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. 2010), 

n.248

Wiess, In re, 132 B.R. 588 (Bankr. E.D. Ark. 1991), n.466

Willcut, In re, 472 B.R. 88 (B.A.P. 10th Cir. 2012), nn.293, 295

Williams, In re, No. 12-02129-8-RDD, 2012 WL 2856124 (Bankr. E.D.N.C. July 

11, 2012), n.166

Wilmoth, In re, 397 B.R. 915 (B.A.P. 8th Cir. 2008), n.292

Wilson v. Dollar General Corp., 717 F.3d 337 (4th Cir. 2013), n.591

Wingerter, In re, 594 F.3d 931 (6th Cir. 2010), n.361

Witcher v. Early (In re Witcher), 700 F.3d 619 (11th Cir. 2012), n.405

Wogoman v. IRS (In re Wogoman), 475 B.R. 110 (B.A.P. 10th Cir. 2012), n.482

Wolf, In re, 22 B.R. 510 (B.A.P. 9th Cir. 1982), n.603

Wolfe v. Jacobson (In re Jacobson), 676 F.3d 1193 (9th Cir. 2012), n.275

Woodard v. Taco Bueno Restaurants, Inc., No. 4:05-CV-804-Y, 2006 WL 

3542693 (N.D. Tex. Dec. 8, 2006), n.649

Woolsey v. Citibank, N.A. (In re Woolsey), 696 F.3d 1266 (10th Cir. 2012), 

nn.532, 614, 616
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

188

Young v. Repine (In re Repine), 536 F.3d 512 (5th Cir. 2008), nn.193, 199, 202

Young v. United States, 535 U.S. 43 (2002), n.485

Zedan v. Habash, 529 F.3d 398 (7th Cir. 2008), n.520

Zeman v. Liehr (In re Liehr), 439 B.R. 179 (B.A.P. 10th Cir. 2010), n.719

Zick, In re, 931 F.2d 1124 (6th Cir. 1991), nn.411, 530

Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir. 2002), 

n.615

Zotow, In re, 432 B.R. 252 (B.A.P. 9th Cir. 2010), n.126

By Court

Supreme Court of the United States

Associates Commercial Corp. v. Rash, 520 U.S. 953 (1997), n.689

Bennett v. Spear, 520 U.S. 154 (1997), n.175

Bullock v. BankChampaign, N.A., 133 S. Ct. 1754 (2013), nn.499–500

Butner v. United States, 440 U.S. 48 (1979), nn.37, 217

Citizens Bank of Maryland v. Strumpf, 516 U.S. 16 (1995), n.122

Clark v. Rameker, 134 S. Ct. 2242 (2014), n.286

Cohen v. De La Cruz, 523 U.S. 213 (1998), n.492

Dewsnup v. Timm, 502 U.S. 410 (1992), nn.531, 532, 612

Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance 

Agency Inc.), 134 S. Ct. 2165 (2014), n.24

Farrey v. Sanderfoot, 500 U.S. 291 (1991), n.301

Field v. Mans, 516 U.S. 59 (1995), n.488

Grogan v. Garner, 498 U.S. 279 (1991), n.480

Hamilton v. Lanning, 560 U.S. 505 (2010), nn.707–08

Hanover National Bank v. Moyses, 186 U.S. 181 (1902), n.259

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), n.73

Johnson v. Home State Bank, 501 U.S. 78 (1991), nn.524, 558, 566

Kawaauhau v. Geiger, 523 U.S. 57 (1998), n.503

Kelly v. Robinson, 479 U.S. 36 (1986), n.506

Kontrick v. Ryan, 540 U.S. 443 (2004), n.481

Law v. Siegel, 134 S. Ct. 1188 (2014), nn.309, 316–17

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1962), n.174

Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365 (2007), nn.527, 563, 

750
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189

Nobelman v. American Savings Bank, 508 U.S. 324 (1993), nn.613, 615

Northern Pipeline Construction Co. v. Marathon Pipeline, 458 U.S. 50 (1982), 

n.14

Owen v. Owen, 500 U.S. 305 (1991), n.257

Patterson v. Shumate, 504 U.S. 753 (1992), n.235

Rake v. Wade, 508 U.S. 464 (1993), nn.342, 641

Ransom v. FIA Card Services, N.A., 131 S. Ct. 716 (2011), nn.428, 706, 717–18

Rousey v. Jacoway, 544 U.S. 320 (2005), n.237

Schwab v. Reilly, 560 U.S. 770 (2010), n.278

Stern v. Marshall, 131 S. Ct. 2594 (2011), nn.21–22, 23, 24, 36, 785

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), n.277

Till v. SCS Credit Corp., 541 U.S. 465 (2004), n.693

United States v. Whiting Pools, Inc., 462 U.S. 198 (1983), n.214

United States v. Windsor, 133 S. Ct. 2675 (2013), n.72

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010), nn.664, 670, 

682, 742, 744

Warth v. Seldin, 422 U.S. 490 (1975), n.173

Wellness International Network, Ltd. v. Sharif, 134 S. Ct. 2901 (2014), nn.26, 33

Young v. United States, 535 U.S. 43 (2002), n.485

First Circuit

Ameriquest Mortgage Co. v. Nosek (In re Nosek), 544 F.3d 34 (1st Cir. 2008), 

nn.633, 778

Barbosa v. Soloman, 235 F.3d 31 (1st Cir. 2000), n.647

Baylis, In re, 313 F.3d 9 (1st Cir. 2002), n.498

Bullard v. Hyde Park Savings Bank (In re Bullard), 752 F.3d 483 (1st Cir. 2014), 

n.640

Canning, In re, 706 F.3d 64 (1st Cir. 2013), nn.517, 684

Davis v. Cox, 356 F.3d 76 (1st Cir. 2004), n.304

Degiacomo v. Traverse (In re Traverse), 753 F.3d 19 (1st Cir. 2014), n.221

DiVittorio v. HSBC Bank USA, NA (In re DiVittorio), 670 F.3d 273 (1st Cir. 

2012), n.782

Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265 (1st Cir. 1999), n.189

Hann v. Educational Credit Management Corp. (In re Hann), 711 F.3d 235 (1st 

Cir. 2013), n.383

Larson, In re, 513 F.3d 325 (1st Cir. 2008), nn.297, 479

Malley v. Agin, 693 F.3d 28 (1st Cir. 2012), n.313

Marrama v. Citizens Bank of Massachusetts (In re Marrama), 430 F.3d 474 (1st 

Cir. 2005), n.565
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

190

Massachusetts v. U.S. Department of Health & Human Services, 682 F.3d 1 (1st 

Cir. 2012), n.71

Pratt v. GMAC (In re Pratt), 462 F.3d 14 (1st Cir. 2006), n.684

Puffer, In re, 674 F.3d 78 (1st Cir. 2012), n.675

Silveira, In re, 141 F.3d 34 (1st Cir. 1998), n.303

Soares, In re, 107 F.3d 969 (1st Cir. 1997), n.183

Thunberg, In re, 641 F.3d 559 (1st Cir. 2011), n.521

Toye v. O’Donnell (In re O’Donnell), 728 F.3d 41 (1st Cir. 2013), n.489

Second Circuit

Adams v. Zarnel (In re Zarnel), 619 F.3d 156 (2d Cir. 2010), n.108

Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d 

Cir. 1987), nn.508, 509, 511, 519

Bulan v. Calloway (In re 1256 Hertel Avenue Associates, LLC), 761 F.3d 252 (2d 

Cir. 2014), n.254

Mazzeo v. United States (In re Mazzeo), 131 F.3d 295 (2d Cir. 1997), n.546

Regan v. Ross, 691 F.2d 81 (2d Cir. 1982), n.537

Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2d Cir. 2010), n.354

Smith, In re, 507 F.3d 64 (2d Cir. 2007), n.409

Solow v. Kalikow (In re Kalikow), 602 F.3d 82 (2d Cir. 2010), n.525

Weber v. SEFCU (In re Weber), 719 F.3d 72 (2d Cir. 2013), nn.129, 215, 218, 238

Third Circuit

Allen, In re, No. 13-3543, 2014 WL 267211 (3d Cir. Sept. 26, 2014), n.244

Cohn, In re, 54 F.3d 1108 (3d Cir. 1995), n.490

Connors, In re, 497 F.3d 314 (3d Cir. 2007), n.637

deLone, In re, 205 F. App’x 964 (3d Cir. 2006), n.632

Krebs, In re, 527 F.3d 82 (3d Cir. 2008), n.253

Mason, In re, No. 13-1391, 2013 WL 2423893 (3d Cir. June 5, 2013), n.133

Meridian Bank v. Alten, 958 F.2d 1226 (3d Cir. 1992), n.467

Messina, In re, 687 F.3d 74 (3d Cir. 2012), n.221

Michael, In re, 699 F.3d 305 (3d Cir. 2012), n.758

Mondelli, In re, 558 F. App’x 260 (3d Cir. 2014), n.756

Myers, In re, 491 F.3d 120 (3d Cir. 2007), nn.169, 562, 756

Option One Mortgage Corp. v. Sterten (In re Sterten), 546 F.3d 278 (3d Cir. 

2008), n.782

Orton, In re, 687 F.3d 612 (3d Cir. 2012), n.281

Perlin v. Hitachi Capital America Corp., 497 F.3d 364 (3d Cir. 2007), n.408

Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522 (3d Cir. 1994), n.183
Table of Cases

191

Rocco v. J.P. Morgan Chase Bank, 255 F. App’x 638 (3d Cir. 2007), n.171

Scarborough, In re, 457 F. App’x 193 (3d Cir. 2012), nn.161, 699

Scarborough v. Chase Manhattan Corp. (In re Scarborough), 461 F.3d 406 (3d 

Cir. 2006), nn.626, 628

Scioli, In re, No. 13-2762, 2014 WL 2119187 (3d Cir. May 22, 2014), n.288

Siciliano, In re, 13 F.3d 748 (3d Cir. 1994), n.186

Tamecki, In re, 229 F.3d 205 (3d Cir. 2000), n.411

Taylor, In re, 655 F.3d 274 (3d Cir. 2011), nn.361, 766

Fourth Circuit

Belanger, In re, 962 F.2d 345 (4th Cir. 1992), n.456

Botkin v. Dupont Community Credit Union, 650 F.3d 396 (4th Cir. 2011), n.299

Branigan v. Bateman (In re Bateman), 515 F.3d 272 (4th Cir. 2008), nn.625, 676

Branigan v. Davis (In re Davis), 716 F.3d 331 (4th Cir. 2013), n.623

Brown & Co. Securities Corp. v. Balbus (In re Balbus), 933 F.2d 246 (4th Cir. 

1991), n.553

Byrd, In re, 357 F.3d 433 (4th Cir. 2004), n.116

Calhoun v. United States Trustee, 650 F.3d 338 (4th Cir. 2011), n.406

Carroll v. Logan, 735 F.3d 147 (4th Cir. 2013), nn.224, 225, 570

French, In re, 499 F.3d 345 (4th Cir. 2007), n.465

Gold v. Robins (In re Rowe), 750 F.3d 392 (4th Cir. 2014), n.442

Grady v. A.H. Robins Co., Inc., 839 F.2d 198 (4th Cir. 1998), n.169

Johnson v. Zimmer, 686 F.3d 224 (4th Cir. 2012), nn.44, 426, 715

Jordan, In re, 521 F.3d 430 (4th Cir. 2008), n.474

Lee v. Anasti (In re Lee), 461 F. App’x 227 (4th Cir. 2012), nn.170, 590

Morris v. Quigley (In re Quigley), 673 F.3d 269 (4th Cir. 2012), nn.709, 719

Mort Ranta v. Gorman, 721 F.3d 241 (4th Cir. 2013), nn.416, 721

Murphy v. O’Donnell (In re Murphy), 474 F.3d 143 (4th Cir. 2007), n.736

Pliler v. Stearns, 747 F.3d 260 (4th Cir. 2014), n.728

Rosenfeld, In re, 23 F.3d 833 (4th Cir. 1994), n.516

Sheehan v. Peveich, 574 F.3d 248 (4th Cir. 2009), n.308

Wilson v. Dollar General Corp., 717 F.3d 337 (4th Cir. 2013), n.591

Fifth Circuit

Bandi, In re, 683 F.3d 671 (5th Cir. 2012), n.491

Beaulieu v. Ragos (In re Ragos), 700 F.3d 220 (5th Cir. 2012), nn.416, 721

Camp v. Ingalls (In re Camp), 631 F.3d 757 (5th Cir. 2011), nn.269, 271
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

192

Campbell v. Countrywide Home Loans, Inc., No. 07-20499, 2008 WL 3906382 

(5th Cir. Aug. 26, 2008), opinion withdrawn & superseded by Campbell v. 

Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008), nn.126, 783

Chilton v. Moser, 674 F.3d 486 (5th Cir. 2012), n.285

Davis, In re, 170 F.3d 475 (5th Cir. 1999), n.306

Fussell, In re, 928 F.2d 712 (5th Cir. 1991), n.141

Harwood, In re, 637 F.3d 615 (5th Cir. 2011), n.497

Hence, In re, 255 F. App’x 28 (5th Cir. 2007), nn.632, 642

Jacobsen v. Moser (In re Jacobsen), 609 F.3d 647 (5th Cir. 2010), n.752

Kane v. National Union Fire Insurance Co., 535 F.3d 380 (5th Cir. 2008), n.450

McCoy v. Mississippi State Tax Commission (In re McCoy), 666 F.3d 924 (5th 

Cir. 2012), n.482

McMaster v. Small (In re Small), 486 F. App’x 436 (5th Cir. 2012), n.141

Moran v. Frisard (In re Ulmer), 19 F.3d 234 (5th Cir. 1994), n.211

Morrison, In re, 555 F.3d 473 (5th Cir. 2009), n.493

NCI Building Systems LP v. Harkness (In re Harkness), 189 F. App’x 311 (5th 

Cir. 2006), n.550

Nowlin v. Peake (In re Nowlin), 576 F.3d 258 (5th Cir. 2009), n.726

Perez, In re, 954 F.2d 1026 (5th Cir. 1992), n.471

Pratt, In re, 411 F.3d 561 (5th Cir. 2005), n.463

Realty Portfolio, Inc. v. Hamilton (In re Hamilton), 125 F.3d 292 (5th Cir. 1997), 

n.590

Reed v. City of Arlington, 650 F.3d 571 (5th Cir. 2011), n.252

Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 695 F.3d 360 

(5th Cir. 2012), n.773

Sikes v. Crager (In re Crager), 691 F.3d 671 (5th Cir. 2012), n.675

Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir. 1989), n.185

United States v. Coney, 689 F.3d 365 (5th Cir. 2012), n.486

United States v. Ripley (In re Ripley), 926 F.2d 440 (5th Cir. 1991), n.658

Viegelahn v. Harris (In re Harris), 757 F.3d 468 (5th Cir. 2014), n.759

Young v. Repine (In re Repine), 536 F.3d 512 (5th Cir. 2008), nn.193, 199, 202

Sixth Circuit

Baud v. Carroll, 634 F.3d 327 (6th Cir. 2011), nn.416, 721, 728

Chrysler Financial Corp. v. Nolan (In re Nolan), 232 F.3d 528 (6th Cir. 2000), 

n.734

Comprehensive Accounting Corp. v. Pearson (In re Pearson), 773 F.2d 751 (6th 

Cir. 1985), nn.550, 553

Daley v. Mostoller (In re Daley), 717 F.3d 506 (6th Cir. 2013), n.283
Table of Cases

193

Dickson v. Countrywide Home Loans (In re Dickson), 655 F.3d 585 (6th Cir. 

2011), nn.63, 589

Easley v. Pettibone Michigan Corp., 990 F.2d 905 (6th Cir. 1993), n.184

Freeman v. Schulman (In re Freeman), 86 F.3d 478 (6th Cir. 1996), n.730

Harchar v. United States (In re Harchar), 694 F.3d 639 (6th Cir. 2012), nn.123, 

136, 155, 205

Hart v. Southern Heritage Bank (In re Hart), 564 F. App’x 773 (6th Cir. 2014), 

n.493

Holland, In re, 151 F.3d 547 (6th Cir. 1998), n.303

Javery v. Lucent Technologies, Inc., 741 F.3d 686 (6th Cir. 2014), n.251

Keeney, In re, 227 F.3d 679 (6th Cir. 2000), n.462

Khan v. Regions Bank (In re Khan), 544 F. App’x 617 (6th Cir. 2013), n.348

Kimberlin v. Dollar General Corp., 520 F. App’x 312 (6th Cir. 2013), n.248

McKenzie, In re, 737 F.3d 1034 (6th Cir. 2013), n.168

McLaren, In re, 3 F.3d 958 (6th Cir. 1993), n.493

Michigan Department of Treasury v. Hight (In re Hight), 670 F.3d 699 (6th Cir. 

2012), nn.330, 655

Rhodes v. Stewart, 705 F.2d 159 (6th Cir. 1983), n.260

Richardson v. Schafer (In re Schafer), 689 F.3d 601 (6th Cir. 2012), n.307

Roseman v. Roseman, 14 F.3d 602 (6th Cir. 1993), n.157

Seafort v. Burden (In re Seafort), 669 F.3d 662 (6th Cir. 2012), nn.232, 432, 724, 

726

Stephenson v. Malloy, 700 F.3d 265 (6th Cir. 2012), n.252

Thompson v. Greenwood, 507 F.3d 416 (6th Cir. 2007), n.66

United States v. Robinson (In re Robinson), 764 F.3d 554 (6th Cir. 2014), n.140

Waldman v. Stone, 698 F.3d 910 (6th Cir. 2012), n.28

White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. 2010), 

n.248

Wingerter, In re, 594 F.3d 931 (6th Cir. 2010), n.361

Zick, In re, 931 F.2d 1124 (6th Cir. 1991), nn.411, 530

Seventh Circuit

Adair v. Sherman, 230 F.3d 890 (7th Cir. 2000), n.350

Aliello v. Providian Financial Corp., 239 F.3d 876 (7th Cir. 2001), n.192

Chenoweth, In re, 3 F.3d 1111 (7th Cir. 1993), n.222

Crawford, In re, 324 F.3d 539 (7th Cir. 2003), nn.603, 605

Edwards, In re, 901 F.2d 1383 (7th Cir. 1990), n.457

FBN Food Services, Inc., In re, 82 F.3d 1387 (7th Cir. 1996), n.350

Hallahan, In re, 936 F.2d 1496 (7th Cir. 1991), n.493
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

194

Heath, In re, 115 F.3d 521 (7th Cir. 1997), n.644

Heffron-Clark, In re, 714 F.3d 559 (7th Cir. 2013), nn.285, 286

Jendusa-Nicolai v. Larsen, 677 F.3d 320 (7th Cir. 2012), n.504

Krieger v. Educational Credit Management Corp., 713 F.3d 882 (7th Cir. 2013), 

n.509

Love, In re, 957 F.2d 1350 (7th Cir. 1992), n.672

Matthews v. Rosene, 739 F.3d 249 (7th Cir. 1984), n.183

Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 665 F.3d 906 (7th Cir. 2011), n.39

Rainey v. United Parcel Service, Inc., 466 F. App’x 542 (7th Cir. 2012), n.250

Reese, In re, 91 F.3d 37 (7th Cir. 1996), n.512

Ryan v. United States (In re Ryan), 725 F.3d 623 (7th Cir. 2013), n.616

Smith, In re, 522 F. App’x 760 (7th Cir. 2013), n.175

Smith, In re, 582 F.3d 767 (7th Cir. 2009), n.496

Sullivan, In re, 680 F.2d 1131 (7th Cir. 1982), n.260

Thompson v. General Motors Acceptance Corp., 566 F.3d 699 (7th Cir. 2009), 

nn.129, 188, 215, 238

Turner, In re, 574 F.3d 349 (7th Cir. 2009), n.719

Tynan, In re, 773 F.2d 177 (7th Cir. 1985), n.637

Unroe, In re, 937 F.2d 346 (7th Cir. 1991), n.380

Wellness International Network, Ltd. v. Sharif, 727 F.3d 751 (7th Cir. 2013), 

nn.26, 29, 33

Zedan v. Habash, 529 F.3d 398 (7th Cir. 2008), n.520

Eighth Circuit

Addison, In re, 540 F.3d 805 (8th Cir. 2008), n.291

Burnett, In re, 656 F.3d 575 (8th Cir. 2011), n.594

Conway v. National Collegiate Trust (In re Conway), 559 F. App’x 610 (8th Cir. 

2014), n.519

Coop v. Frederickson (In re Frederickson), 545 F.3d 652 (8th Cir. 2008), n.728

Copeland v. Fink (In re Copeland), 742 F.3d 811 (8th Cir. 2014), nn.602, 604

Ficken v. United States (In re Ficken), 2 F.3d 299 (8th Cir. 1993), n.553

Fisette v. Keller (In re Fisette), 695 F.3d 803 (8th Cir. 2012), n.623

Huckfeldt, In re, 39 F.3d 829 (8th Cir. 1994), n.411

Knaus, In re, 889 F.2d 77 (8th Cir. 1989), n.202

Lee v. Yeutter, 917 F.2d 1104 (8th Cir. 1990), n.523

Lesser, In re, 939 F.2d 669 (8th Cir. 1991), n.604

Lovald v. Falzerano (In re Falzerano), 686 F.3d 885 (8th Cir. 2012), n.240

McCarty v. Lasowski (In re Lasowski), 575 F.3d 815 (8th Cir. 2009), nn.432, 726
Table of Cases

195

Minnesota Housing Finance Agency v. Schmidt (In re Schmidt), 765 F.3d 877 

(8th Cir. 2014), n.615

Pyatt, In re, 486 F.3d 423 (8th Cir. 2007), n.239

Reynolds, In re, 425 F.3d 526 (8th Cir. 2005), n.510

Roberts v. Pierce (In re Pierce), 435 F.3d 891 (8th Cir. 2006), n.356

United States v. Estus (In re Estus), 695 F.2d 311 (8th Cir. 1982), n.673

Waugh, In re, 109 F.3d 489 (8th Cir. 1997), n.151

Wetzel v. Regions Bank, 649 F.3d 831 (8th Cir. 2011), n.234

Whetzel v. Alderson, 32 F.3d 1302 (8th Cir. 1994), n.236

Ninth Circuit

Adeeb, In re, 787 F.2d 1339 (9th Cir. 1986), n.464

AmeriCredit Financial Services, Inc. v. Penrod (In re Penrod), 611 F.3d 1158 

(9th Cir. 2010), n.629

Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186 (9th Cir. 2012), n.525

Blausey v. U.S. Trustee, 552 F.3d 1124 (9th Cir. 2009), n.418

Bonham, In re, 229 F.3d 750 (9th Cir. 2000), n.102

California Franchise Tax Board v. Jones (In re Jones), 657 F.3d 921 (9th Cir. 

2011), n.645

Danielson v. Flores (In re Flores), 735 F.3d 855 (9th Cir. 2013), n.728

Dawson, In re, 390 F.3d 1139 (9th Cir. 2004), n.194

Drummond v. Welsh (In re Welsh), 711 F.3d 1120 (9th Cir. 2013), nn.416, 430, 

720

Egebjerg v. Anderson (In re Egebjerg), 574 F.3d 1045 (9th Cir. 2009), n.431

Ellett v. Stanislaus (In re Ellett), 506 F.3d 774 (9th Cir. 2007), n.767

Enewally v. Washington Mutual Bank (In re Enewally), 368 F.3d 1165 (9th Cir. 

2004), n.639

Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance 

Agency Inc.), 702 F.3d 553 (9th Cir. 2012), n.25

Gebhart, In re, 621 F.3d 1206 (9th Cir. 2010), n.280

Gould, In re, 603 F.3d 1100 (9th Cir. 2010), n.155

Hedlund v. Educational Resources Institute, Inc. 718 F.3d 848 (9th Cir. 2013), 

n.509

Herrera, In re, 650 F.3d 1300 (9th Cir. 2011), n.597

Home Funds Direct v. Monroy (In re Monroy), 650 F.3d 1300 (9th Cir. 2011), 

n.635

Huang, In re, 275 F.3d 1173 (9th Cir. 2002), nn.156, 477

Jones, In re, 657 F.3d 921 (9th Cir. 2011), n.485

Jones v. U.S. Trustee (In re Jones), 726 F.3d 897 (9th Cir. 2013), n.520
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

196

Joye v. Franchise Tax Board (In re Joye), 578 F.3d 1070 (9th Cir. 2009), n.656

Kennedy, In re, 108 F.3d 1015 (9th Cir. 1997), n.493

Khalil, 478 F.3d 1167 (9th Cir. 2009), n.469

Latman v. Burdette, 366 F.3d 774 (9th Cir. 2004), n.314

Law v. Siegel, 435 F. App’x 697 (9th Cir. 2011), n.310

Martindale v. Meenderinck (In re Meenderinck), 256 F. App’x 913 (9th Cir. 

2007), n.550

Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 764 F.3d 1168 (9th Cir. 

2014), n.122

Pace, In re, 67 F.3d 187 (9th Cir. 1995), n.197

Padilla, In re, 222 F.3d 1184 (9th Cir. 2000), n.411

Perle v. Fiero (In re Perle), 725 F.3d 1023 (9th Cir. 2013), n.494

Ray Cai v. Shenzhen Smart-In Industry Co. (In re Ray Cai), 571 F. App’x 580 

(9th Cir. 2014), n.493

Retz, In re, 606 F.3d 1189 (9th Cir. 2010), nn.468, 470

Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764 (9th Cir. 2008), n.752

Santos v. Dockery (In re Santos), 540 F. App’x 622 (9th Cir. 2013), n.554

Schwartz, In re, 954 F.2d 569 (9th Cir. 1992), n.183

Schwartz-Tallard v. America’s Servicing Co. (In re Schwartz-Tallard), 765 F.3d 

1096 (9th Cir. 2014), nn.195, 200

Scovis v. Henrichsen (In re Scovis), 249 F.3d 975 (9th Cir. 2001), nn.549, 550, 

553, 556

Shapiro v. Henson, 739 F.3d 1198 (9th Cir. 2014), n.239

Snowden v. Check Into Cash of Washington, Inc. (In re Snowden), 769 F.3d 651 

(9th Cir. 2014), n.201

Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010), nn.196, 200

Stewart v. Batmanghelich (In re Stewart), 373 F. App’x 682 (9th Cir. 2010), n.359

Wolfe v. Jacobson (In re Jacobson), 676 F.3d 1193 (9th Cir. 2012), n.275

Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir. 2002), 

n.615

Tenth Circuit

Anderson v. Cranmer (In re Cranmer), 697 F.3d 1314 (10th Cir. 2012), nn.416, 

721

Caplan v. B-Line, LLC (In re Kirkland), 572 F.3d 838 (10th Cir. 2009), n.369

Clark v. Valley Federal Savings & Loan Association (In re Reliance Equities, Inc.), 

966 F.2d 1338 (10th Cir. 1992), n.332

Graves, In re, 609 F.3d 1153 (10th Cir. 2010), n.227

Johnson v. Smith (In re Johnson), 501 F.3d 1163 (10th Cir. 2007), nn.129, 660
Table of Cases

197

Kulp, In re, 949 F.2d 1106 (10th Cir. 1991), n.308

Lowry Federal Credit Union v. West, 882 F.2d 1543 (10th Cir. 1989), n.456

McGavin, In re, 189 F.3d 1215 (10th Cir. 1999), n.493

Miller v. Deutsche Bank National Trust Co. (In re Miller), 666 F.3d 1255 (10th 

Cir. 2012), nn.180, 182, 774

Roberts, In re, 906 F.2d 1440 (10th Cir. 1990), n.483

Russell v. Kuhnel (In re Kuhnel), 495 F.3d 1177 (10th Cir. 2007), n.247

Schoppe v. Commissioner of Internal Revenue, 711 F.3d 1190 (10th Cir. 2013), 

n.121

Scrivner, In re, 535 F.3d 1258 (10th Cir. 2008), nn.311–12

Serafini, In re, 938 F.2d 1156 (10th Cir. 1991), n.480

Smith v. Rockett (In re Smith), 522 F.3d 1080 (10th Cir. 2008), n.591

Tanaka Bros. Farms, Inc., In re, 36 F.3d 996 (10th Cir. 1994), n.381

Taumoepeau v. Manufacturers & Traders Trust Co. (In re Taumoepeau), 523 

F.3d 1213 (10th Cir. 2008), n.749

Wadsworth v. Word of Life Christian Center (In re McGough), 737 F.3d 1268 

(10th Cir. 2013), n.413

Woolsey v. Citibank, N.A. (In re Woolsey), 696 F.3d 1266 (10th Cir. 2012), 

nn.532, 614, 616

Eleventh Circuit

Brown v. Gore (In re Brown), 742 F.3d 1309 (11th Cir. 2014), nn.561, 675

Cox, In re, 338 F.3d 1238 (11th Cir. 2003), n.315

Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), nn.61, 132, 

357, 782

Davis, In re, 911 F.2d 560 (11th Cir. 1990), n.464

Diaz, In re, 647 F.3d 1073 (11th Cir. 2011), n.204

Disciplinary Board of Supreme Court of Pennsylvania v. Feingold (In re

Feingold), 730 F.3d 1268 (11th Cir. 2013), n.505

Florida Department of Revenue v. Diaz (In re Diaz), 647 F.3d 1073 (11th Cir. 

2011), nn.204, 770

Florida Department of Revenue v. Rodriguez (In re Rodriguez), 367 F. App’x 25 

(11th Cir. 2010), nn.128, 149

Hammonds, In re, 729 F.2d 1391 (11th Cir. 1984), n.538

Jacks v. Wells Fargo Bank, N.A. (In re Jacks), 642 F.3d 1323 (11th Cir. 2011), 

nn.118, 124, 777

Jones v. United States, 476 F. App’x 815 (11th Cir. 2012), n.248

Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885 

(11th Cir. 1983), n.673
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

198

Kulakowski v. U.S. Trustee (In re Kulakowski), 735 F.3d 1296 (11th Cir. 2013), 

n.406

Lehman, In re, 205 F.3d 1255 (11th Cir. 2000), n.303

Lodge v. Kondaur Capital Corp., 750 F.3d 1263 (11th Cir. 2014), n.193

Mouzon Enterprises, Inc., In re, 610 F.3d 1329 (11th Cir. 2010), n.346

Oliver v. Samadi (In re Oliver), 306 F. App’x 458 (11th Cir. 2008), n.694

Omine, In re, 485 F.3d 1305, withdrawn pursuant to settlement, 2007 WL 6813797 

(11th Cir. 2007), n.147

Phillips, In re, 476 F. App’x 813 (11th Cir. 2012), nn.468, 469

Piazza v. Nueterra Healthcare Physical Therapy, LLC (In re Piazza), 719 F.3d 

1253 (11th Cir. 2013), n.410

Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir. 2010), n.249

Rodriguez, In re, 367 F. App’x 25 (11th Cir. 2010), n.149

Santander Consumer USA, Inc. v. Brown (In re Brown), 746 F.3d 1236 (11th Cir. 

2014), n.688

Taylor, In re, 3 F.3d 1512 (11th Cir. 1993), n.457

Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), n.646

United States v. White, 466 F.3d 1241 (11th Cir. 2006), n.183

Waldron, In re, 536 F.3d 1239 (11th Cir. 2008), n.571

Wells Fargo Bank, N.A. v. Scantling (In re Scantling), 754 F.3d 1323 (11th Cir. 

2014), nn.620, 623

Whaley v. Tennyson (In re Tennyson), 611 F.3d 873 (11th Cir. 2010), n.728

Witcher v. Early (In re Witcher), 700 F.3d 619 (11th Cir. 2012), n.405

District of Columbia Circuit

Moses v. Howard University Hospital, 606 F.3d 789 (D.C. Cir. 2010), n.248

Federal Circuit

Bronson v. United States, 46 F.3d 1573 (Fed. Cir. 1995), n.185

District Courts

America’s Servicing Co. v. Schwartz-Tallard, 438 B.R. 313 (D. Nev. 2010), n.195

Annese v. Kolenda (In re Kolenda), 212 B.R. 851 (W.D. Mich. 1997), n.648

Bank One, NA v. Leuellen (In re Leuellen), 322 B.R. 648 (S.D. Ind. 2005), n.735

California v. Villalobos, 453 B.R. 404 (D. Nev. 2011), n.150

Credit Nation Lending Services, LLC v. Nettles, 489 B.R. 239 (N.D. Ala. 2013), 

n.203
Table of Cases

199

DaimlerChrysler Financial Services Americas, LLC v. Rivera (In re Rivera), No. 

1:08-CV-21-TS, 2008 WL 1957896 (N.D. Ind. May 2, 2008), n.697

Dow Chemical Employees Credit Union v. Collins, No. 10-20718, 2011 WL 

2746210 (E.D. Mich. July 14, 2011), n.712

General Lending Corp. v. Cancio, 505 B.R. 63 (S.D. Fla. 2014), n.551

Gordon, In re, 471 B.R. 614 (D. Colo. 2012), nn.51, 598

Gorman v. Birts (In re Birts), No. 1:12cv427 (LMB/TCB), 2012 WL 3150384 

(E.D. Va. Aug. 1, 2012), n.607

Guariglia v. Community National Bank & Trust Co., 382 F. Supp. 758 (E.D.N.Y. 

1974), n.142

Holloway v. Community Bank, No. 3:10-CV-75, 2011 WL 4500042 (E.D. Tenn. 

Sept. 27, 2011), n.376

Kadlecek v. Schwank USA, Inc., 486 B.R. 336 (M.D.N.C. 2013), n.169

King v. Robenhorst, No. 11-C-573, 2011 WL 5877081 (E.D. Wis. Nov. 23, 2011), 

n.739

Lytell, In re, No. 11-2473, 2012 WL 253111 (E.D. La. Jan. 26, 2012), n.374

Messick v. Ascend Federal Credit Union, 424 B.R. 344 (E.D. Tenn. 2010), n.137

Mitrano, In re, 409 B.R. 812 (E.D. Va. 2009), n.107

Mitrano, In re, 472 B.R. 706 (E.D. Va. 2012), n.752

Moore v. Robbins, No. CV 13-1122 (BAH), 2014 WL 930852 (D.D.C. Mar. 11, 

2014), n.473

Nardello v. Balboa, 514 B.R. 105 (D.N.J. 2014), n.576

Northern California Glaziers v. Wolter, No. 08-4487SC, 2009 WL 1458272 (N.D. 

Cal. May 26, 2009), n.342

Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 477 B.R. 714 (E.D. Wis. 2012) 

(withdrawn), nn.23, 39

Patrick v. PYOD, LLC, No. 1:14-cv539-RLY-TAB, 2014 WL 4100414 (S.D. Ind. 

Oct. 20, 2014), nn.61, 357,

Patterson v. Homecomings Financial LLC, 425 B.R. 499 (E.D. Wis. 2010), n.126

Roberts, In re, 450 B.R. 159 (N.D. Iowa 2011), n.268

Rogers v. Eastern Savings Bank (In re Rogers), 489 B.R. 327 (D. Conn. 2013), 

n.623

Russo v. Freda (In re Russo), No. 09-3274 (FLW), 2009 WL 4672669 (D.N.J. 

Dec. 7, 2009), n.339

Sheehan v. Dobin, No. 10-6288 (FLW), 2012 WL 426285 (D.N.J. Feb. 9, 2012), 

n.35

Sood v. Business Lenders, LLC, No. MJG-11-2528, 2012 WL 2847613 (D. Md. 

July 10, 2012), n.568

Taylor, In re, 472 B.R. 570 (C.D. Cal. 2012), n.751

TD Bank, N.A. v. Landry, 479 B.R. 1 (D. Mass. 2012), n.627
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

200

Thomas v. Indiana Oxygen Co., No. 1:14-cv-00476-JMS-DKL, 2014 WL 3509693 

(S.D. Ind. July 15, 2014), n.591

Woodard v. Taco Bueno Restaurants, Inc., No. 4:05-CV-804-Y, 2006 WL 

3542693 (N.D. Tex. Dec. 8, 2006), n.649

Bankruptcy Appellate Panels (by Circuit)

Allen v. Wayside Transportation Corp. (In re Allen), No. MB 00-115, 2001 WL 

36381911 (B.A.P. 1st Cir. June 15, 2001), n.206

Aoki, In re, 323 B.R. 803 (B.A.P. 1st Cir. 2005), n.472

Aroesty, In re, 385 B.R. 1 (B.A.P. 1st Cir. 2008), n.296

Boyajian v. Vargas (In re Vargas), No. 10-13103-ANV, 2012 WL 2450170 (B.A.P. 

1st Cir. June 8, 2012), n.746

Bullard v. Hyde Park Savings Bank (In re Bullard), 494 B.R. 92 (B.A.P. 1st Cir. 

2013), n.640

Carolina, Municipality of, v. Gonzalez (In re Gonzalez), 490 B.R. 642 (B.A.P. 1st 

Cir. 2013), n.330

DeSouza, In re, 493 B.R. 669 (B.A.P. 1st Cir. 2013), nn.128, 147

Gonzalez v. Massachusetts Department of Revenue (In re Gonzalez), 506 B.R. 

317 (B.A.P. 1st Cir. 2014), n.482

Hamilton v. Wells Fargo Bank, N.A. (In re Hamilton), 401 B.R. 539 (B.A.P. 1st 

Cir. 2009), n.696

Hann v. Educational Credit Management Corp. (In re Hann), 476 B.R. 344 

(B.A.P. 1st Cir. 2012), n.770 

Knowles v. Bayview Loan Servicing, LLC (In re Knowles), 442 B.R. 150 (B.A.P. 

1st Cir. 2011), nn.125, 132, 606, 783

Kramer v. Bankowski (In re Kramer), 505 B.R. 614 (B.A.P. 1st Cir. 2014), n.719

McGrahan, In re, 459 B.R. 869 (B.A.P. 1st Cir. 2011), n.149

Ocasio, In re, 272 B.R. 815 (B.A.P. 1st Cir. 2002), n.127

Pellegrino v. Boyajian (In re Pellegrino), 423 B.R. 586 (B.A.P. 1st Cir. 2010), 

n.541

Pendergast v. Massachusetts Department of Revenue (In re Pendergast), 510 B.R. 

1 (B.A.P. 1st Cir. 2014), n.482

Rivera v. Matos (In re Rivera), 494 B.R. 101 (B.A.P. 1st Cir. 2013), n.208

Soto v. Doral Bank (In re Soto), 491 B.R. 307 (B.A.P. 1st Cir. 2013), n.88

TD Bank, N.A. v. LaPointe (In re LaPointe), 505 B.R. 589 (B.A.P. 1st Cir. 2014), 

n.637

United States v. Cushing (In re Cushing), 401 B.R. 528 (B.A.P. 1st Cir. 2009), 

n.586
Table of Cases

201

Turner v. Citizens National Bank (In re Turner), 207 B.R. 373 (B.A.P. 2d Cir. 

1997), n.567

Andersson, In re, 209 B.R. 76 (B.A.P. 6th Cir. 1997), n.211

Badovick v. Greenspan (In re Greenspan), 464 B.R. 61 (Table) (B.A.P. 6th Cir. 

2011), n.526

Brown v. Brown (In re Brown), 378 B.R. 416 (B.A.P. 6th Cir. 2007), n.731

Cain, In re, 513 B.R. 316 (B.A.P. 6th Cir. 2014), n.623

Ingram, In re, 460 B.R. 904 (B.A.P. 6th Cir. 2011), nn.87, 109

Storey v. Pees (In re Storey), 392 B.R. 266 (B.A.P. 6th Cir. 2008), n.738

Barcal v. Laughlin (In re Barcal), 213 B.R. 1008 (B.A.P. 8th Cir. 1997), n.545

Bates v. BAC Home Loans (In re Bates), 446 B.R. 301 (B.A.P. 8th Cir. 2011), 

n.165

Fink v. Thompson (In re Thompson), 439 B.R. 140 (B.A.P. 8th Cir. 2010), n.721

Fisette v. Keller (In re Fisette), 455 B.R. 177 (B.A.P. 8th Cir. 2011), n.623

Holcomb v. Hardeman (In re Holcomb), 380 B.R. 813 (B.A.P. 8th Cir. 2008), 

n.163

Johnson v. Fink (In re Johnson), 458 B.R. 745 (B.A.P. 8th Cir. 2011), n.736

Kaler v. Charles (In re Charles), 474 B.R. 680 (B.A.P. 8th Cir. 2012), n.471

Mahorn v. Petty (In re Petty), 491 B.R. 554 (B.A.P. 8th Cir. 2013), n.494

McIntosh v. LeBarge (In re McIntosh), 491 B.R. 905 (B.A.P. 8th Cir. 2013), n.597

Nessa, In re, 426 B.R. 312 (B.A.P. 8th Cir. 2010), n.285

Nielsen v. ACS, Inc. (In re Nielsen), 473 B.R. 755 (B.A.P. 8th Cir. 2012), n.511

Paulson v. Wein (In re Paulson), 477 B.R. 740 (B.A.P. 8th Cir. 2012), n.754

Shelton v. CitiMortgage, Inc. (In re Shelton), 477 B.R. 749 (B.A.P. 8th Cir. 2012), 

n.326

Suggs, In re, 377 B.R. 198 (B.A.P. 8th Cir. 2007), n.130

Wilmoth, In re, 397 B.R. 915 (B.A.P. 8th Cir. 2008), n.292

Alakozai, In re, 499 B.R. 698 (B.A.P. 9th Cir. 2013), n.153

Allen v. US Bank, National Association (In re Allen), 472 B.R. 559 (B.A.P. 9th 

Cir. 2012), n.775

Applebaum, In re, 422 B.R. 684 (B.A.P. 9th Cir. 2009), n.308

B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225 (B.A.P. 9th Cir. 2008), 

n.355

Benafel v. One West Bank, FSB (In re Benafel), 461 B.R. 581 (B.A.P. 9th Cir. 

2011), n.627

Blixseth, In re, 454 B.R. 92 (B.A.P. 9th Cir. 2011), n.90
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

202

California Franchise Tax Board v. Jones (In re Jones), 420 B.R. 506 (B.A.P. 9th 

Cir. 2009), n.645

CirTran Corp. v. Advanced Beauty Solutions, LLC (In re Advanced Beauty Solutions, LLC), No. 11-1183-PattPe, 2012 WL 603692 (B.A.P. 9th Cir. Feb. 8, 

2012), n.32

Cruz v. Stein Strauss Trust # 1361 (In re Cruz), No. CC-13-1554-KiTaD, 2014 

WL 4258990 (B.A.P. 9th Cir. Aug. 29, 2014), n.169

Dale v. Maney (In re Dale), 505 B.R. 8 (B.A.P. 9th Cir. 2014), nn.225, 570

Educational Credit Management Corp. v. Jorgensen (In re Jorgensen), 479 B.R. 

79 (B.A.P. 9th Cir. 2012), n.519

Elstner-Bailey v. Federal National Mortgage Association (In re Elstner-Bailey), 

No. CC-11-1038-DKiPa, 2011 WL 6934490 (B.A.P. 9th Cir. Oct. 4, 2011), 

n.181

Fridley v. Forsythe (In re Fridley), 380 B.R. 538 (B.A.P. 9th Cir. 2007), n.740

Gibson v. Dockery (In re Gibson), No. CC-10-1399-PaHKi, 2011 WL 7145612 

(B.A.P. 9th Cir. Dec. 1, 2011), nn.87, 109

Greenpoint Mortgage Funding, Inc. v. Herrera (In re Herrera), 422 B.R. 698 

(B.A.P. 9th Cir. 2010), n.635

Hopkins v. Asset Acceptance LLC (In re Salgado-Nava), 473 B.R. 911 (B.A.P. 9th 

Cir. 2012), n.442

Hudson, In re, 504 B.R. 569 (B.A.P. 9th Cir. 2014), n.169

Hussain v. Malik (In re Hussain), 508 B.R. 417 (B.A.P. 9th Cir. 2014), n.467

Lepe, In re, 470 B.R. 851 (B.A.P. 9th Cir. 2012), n.624

Mattson v. Howe (In re Mattson), 468 B.R. 361 (B.A.P. 9th Cir. 2012), nn.730, 

737

McCoy v. Kuiken (In re Kuiken), 484 B.R. 766 (B.A.P. 9th Cir. 2013), n.302

Meyer v. Scholz (In re Scholz), 477 B.R. 877 (B.A.P. 9th Cir. 2011), n.417

Mullen v. Hamlin (In re Hamlin), 465 B.R. 863 (B.A.P. 9th Cir. 2012), n.285

Nady v. DeFrantz (In re DeFrantz), 454 B.R. 108 (B.A.P. 9th Cir. 2011), n.751

Ng v. Farmer (In re Ng), 477 B.R. 118 (B.A.P. 9th Cir. 2012), n.407

Onubah, In re, 375 B.R. 549 (B.A.P. 9th Cir. 2007), n.314

Parks v. Drummond (In re Parks), 475 B.R. 703 (B.A.P. 9th Cir. 2012), nn.233, 

720, 723, 724

Perl, In re, 513 B.R. 566 (B.A.P. 9th Cir. 2014), nn.118, 134

Renteria, In re, 470 B.R. 838 (B.A.P. 9th Cir. 2012), n.601

Reswick v. Reswick (In re Reswick), 446 B.R. 362 (B.A.P. 9th Cir. 2011), n.163

Rivera v. Orange County Probation Department (In re Rivera), 511 B.R. 643 

(B.A.P. 9th Cir. 2014), nn.143, 386

Rocco v. King (In re King), No. AZ-07-1317-PaJuk, 2008 WL 8444814 (B.A.P. 

9th Cir. Mar. 12, 2008), n.674
Table of Cases

203

Roth v. Educational Credit Management Corp., 490 B.R. 908 (B.A.P. 9th Cir. 

2013), n.507

Sardana v. Bank of America, N.A. (In re Sardana), No. AZ-10-1368-DMkMa, 

2011 WL 3299861 (B.A.P. 9th Cir. June 7, 2011), n.178

Singh v. Cusick (In re Singh), No. EC-11-1700-DJUMk, 2013 WL 1615849 

(B.A.P. 9th Cir. Apr. 15, 2013), n.165

Smith v. Rojas (In re Smith), 435 B.R. 637 (B.A.P. 9th Cir. 2010), n.554

Veal, In re, 449 B.R. 542 (B.A.P. 9th Cir. 2011), n.177

Wolf, In re, 22 B.R. 510 (B.A.P. 9th Cir. 1982), n.603

Wesley v. Oh (In re Oh), No. NC-07-1325-MdKB, 2008 WL 8448837 (B.A.P. 9th 

Cir. Apr. 16, 2008), n.133

Zotow, In re, 432 B.R. 252 (B.A.P. 9th Cir. 2010), n.126

Derringer, In re, 375 B.R. 903 (B.A.P. 10th Cir. 2007), n.134

Dixon v. IRS (In re Dixon), 218 B.R. 150 (B.A.P. 10th Cir. 1998), n.657

Dykstra Exterior, Inc. v. Nestlen (In re Nestlen), 441 B.R. 135 (B.A.P. 10th Cir. 

2010), n.276

Francisco, In re, 390 B.R. 700 (B.A.P. 10th Cir. 2008), n.110

Hall, In re, 441 B.R. 680 (B.A.P. 10th Cir. 2009), n.223

Kline, In re, 472 B.R. 98 (B.A.P. 10th Cir. 2012), n.187

Mallon v. Keenan (In re Keenan), 431 B.R. 308 (B.A.P. 10th Cir. 2009), n.677

Miller v. United States Trustee (In re Miller), BAP No. WY-14-002, Bankr. No. 

13-20384, 2014 WL 5018464 (B.A.P. 10th Cir. Oct. 8, 2014), n.415

Ruiz, In re, 455 B.R. 745 (B.A.P. 10th Cir. 2011), n.239

Scroggin, In re, 364 B.R. 772 (B.A.P. 10th Cir. 2007), n.135

Thomas, In re, 469 B.R. 915 (B.A.P. 10th Cir. 2012), nn.152, 182

Vannordstrand v. Hamilton (In re Vannordstrand), 356 B.R. 788 (B.A.P. 10th 

Cir. 2007), n.570

Westby, In re, 486 B.R. 509 (B.A.P. 10th Cir. 2013), n.308

Willcut, In re, 472 B.R. 88 (B.A.P. 10th Cir. 2012), nn.293, 295

Wogoman v. IRS (In re Wogoman), 475 B.R. 110 (B.A.P. 10th Cir. 2012), n.482

Zeman v. Liehr (In re Liehr), 439 B.R. 179 (B.A.P. 10th Cir. 2010), n.719

Bankruptcy Courts

Ahmadi v. CitiMortgage, Inc. (In re Ahmadi), 467 B.R. 782 (Bankr. M.D. Pa. 

2012), n.367

Airhart, In re, 473 B.R. 178 (Bankr. S.D. Tex. 2012), n.757

Alcide, In re, 450 B.R. 526 (Bankr. E.D. Pa. 2011), n.179

Aleman, In re, 499 B.R. 236 (Bankr. D.P.R. 2013), n.340
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

204

Ames, In re, 447 B.R. 680 (Bankr. D. Mass. 2011), n.517

Arkuszewski, In re, 507 B.R. 242 (Bankr. N.D. Ill. 2014), nn.110, 559

Armistead, In re, No. 11-36535, 2012 WL 3202964 (Bankr. S.D. Tex. Aug. 3, 

2012), n.53

Arsenault, In re, 456 B.R. 627 (Bankr. S.D. Ga. 2011), n.138

Bailey, In re, No. 09-2564, 2010 WL 3813847 (Bankr. N.D. W. Va. Sept. 24, 

2010), n.700

Balas, In re, 449 B.R. 567 (Bankr. C.D. Cal. 2011), n.71

Batista-Sanchez, In re, 502 B.R. 227 (Bankr. N.D. Ill. 2013), n.333

Bene v. Educational Credit Management Corp. (In re Bene), 474 B.R. 56 (Bankr. 

W.D.N.Y. 2012), n.511

Boscaccy, In re, 442 B.R. 501 (Bankr. N.D. Miss. 2010), n.606

Brewster, In re, No. 10-54254, 2011 WL 4458792 (Bankr. W.D. Tex. Sept. 14, 

2011), n.378

Briggs, In re, 143 B.R. 438 (Bankr. E.D. Mich. 1992), n.132

Brunson, In re, 486 B.R. 759 (Bankr. N.D. Tex. 2013), n.365

Carlton, In re, No. 10-00079-8-RDD, 2013 WL 2297082 (Bankr. E.D.N.C. May 

24, 2013), n.130

Carr, In re, 468 B.R. 806 (Bankr. E.D. Va. 2012), n.781

Castleberry, In re, 437 B.R. 705 (Bankr. M.D. Ga. 2010), n.681

CenturyTel of Northwest Arkansas, LLC v. Laymon (In re Laymon), 360 B.R. 902 

(Bankr. E.D. Ark. 2007), n.653

Chassie, In re, No. 10-41432-MSH, 2011 WL 133007 (Bankr. D. Mass. Jan. 14, 

2011), n.95

Clements, In re, 495 B.R. 74 (Bankr. E.D. Pa. 2013), n.760

Clinton, In re, 166 B.R. 195 (Bankr. N.D. Ga. 1994), n.103

Connor, In re, 419 B.R. 304 (Bankr. E.D.N.C. 2009), n.272

Covel, In re, 474 B.R. 702 (Bankr. W.D. Ark. 2012), n.460

Crawford, In re, No. 11-24158-SBB, 2012 WL 930281 (Bankr. D. Colo. Mar. 19, 

2012), n.172

Darden, In re, 474 B.R. 1 (Bankr. D. Mass. 2012), nn.745, 752

DeAngelis v. Holmes (In re Holmes), No. 1:12-bk-01801-RNO, 2013 WL 

4446947 (Bankr. M.D. Penn. Aug. 21, 2013), n.74

Donald, In re, 343 B.R. 524 (Bankr. E.D.N.C. 2006), n.458

Dorsey v. PRA Receivables Management, LLC (In re Dorsey), No. 07-21082PM, 

2008 WL 2511897 (Bankr. D. Md. June 20, 2008), n.353

Drapeau, In re, 485 B.R. 29 (Bankr. D. Mass. 2013), n.723

Drost, In re, 228 B.R. 208 (Bankr. N.D. Ind. 1998), n.349

Dugan v. U.S. Bank (OH) (In re Dugan), No. 4:11-ap-1267, 2012 WL 6825328 

(Bankr. E.D. Ark. June 20, 2012), n.158
Table of Cases

205

Dunbar v. Cox Health Alliance, LLC (In re Dunbar), 446 B.R. 306 (Bankr. E.D. 

Ark. 2011), n.377

Durham, In re, 461 B.R. 139 (Bankr. D. Mass. 2011), n.210

Escobar, In re, 457 B.R. 229 (Bankr. E.D.N.Y. 2011), n.181

Exum, In re, No. 08-10079-RGM, 2008 WL 465818 (Bankr. E.D. Va. Feb. 21, 

2008), n.145

Faulkner v. CEFCU (In re Faulkner), No. 12-08069, 2013 WL 2154790 (Bankr. 

C.D. Ill. May 17, 2013), n.159

Fort, In re, 412 B.R. 840 (Bankr. W.D. Va. 2009), n.149

Foy, In re, 469 B.R. 209 (Bankr. E.D. Pa. 2012), n.374

Fredman, In re, 471 B.R. 540 (Bankr. S.D. Ill. 2012), n.429

Gauthier, In re, 459 B.R. 526 (Bankr. D. Mass. 2011), n.375

Geller v. Grijalva (In re Grijalva), No. 4:11-bk-25386-EWH, 2012 WL 1110291 

(Bankr. D. Ariz. Apr. 2, 2012), n.638

Geradin, In re, 447 B.R. 342 (Bankr. S.D. Fla. 2011), n.620

Gilbert, In re, 472 B.R. 126 (Bankr. S.D. Fla. 2012), n.640

Goodman v. IRS (In re Adams), 502 B.R. 645 (Bankr. N.D. Ga. 2013), n.339

Griffin, In re, 415 B.R. 64 (Bankr. N.D.N.Y. 2009), n.205

Hack, In re, No. 08-72553, 2009 WL 1392068 (Bankr. C.D. Ill. May 14, 2009), 

n.391

Hamilton, In re, 493 B.R. 31 (Bankr. M.D. Tenn. 2013), n.758

Harp, In re, No. A10-00021-DMD, 2011 WL 6099551 (Bankr. D. Alaska Dec. 7, 

2011), n.340

Henry, In re, 457 B.R. 402 (Bankr. E.D. Pa. 2011), n.690

Hinkle, In re, 474 B.R. 460 (Bankr. M.D. Pa. 2012), n.640

Hubbell, In re, 496 B.R. 784 (Bankr. E.D.N.C. 2013), n.638

Jackson, In re, 482 B.R. 659 (Bankr. S.D. Fla. 2012), n.382

Jefferson, In re, 144 B.R. 620 (Bankr. D.R.I. 1992), n.131

Johnson, In re, 445 B.R. 50 (Bankr. D. Mass. 2011), n.300

Johnson, In re, No. 10-03184C, 2011 WL 1671536 (Bankr. N.D. Iowa May 3, 

2011), n.710

Jordahl, In re, 516 B.R. 573 (Bankr. D. Minn. 2014), n.607

Junk v. CitiMortgage, Inc. (In re Junk), 512 B.R. 584 (Bankr. S.D. Ohio 2014), 

n.178

Key, In re, 465 B.R. 709 (Bankr. S.D. Ga. 2012), nn.572, 654

Knowles, In re, 501 B.R. 409 (Bankr. D. Kan. 2013), n.

Kubeczko, In re, No. 12-13766 HRT, 2012 WL 2685115 (Bankr. D. Colo. July 6, 

2012), nn.608, 663

Kyle, In re, 510 B.R. 804 (Bankr. S.D. Ohio 2014), n.254
Consumer Bankruptcy Law: Chapters 7 & 13 ~ Federal Judicial Center

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LaVictoire, In re, Nos. 10-10076 & 10-10325, 2011 WL 1168288 (Bankr. D. Vt. 

Mar. 25, 2011), n.542

Lazaro, In re, 128 B.R. 168 (Bankr. W.D. Tex. 1991), n.67

Long, In re, 470 B.R. 186 (Bankr. D. Kan. 2012), n.269

MacFarland, In re, 462 B.R. 857 (Bankr. S.D. Fla. 2011), nn.361, 366

Matson, In re, 509 B.R. 860 (Bankr. E.D. Wis. 2014), n.69

Mattox v. Wells Fargo, NA (In re Mattox), No. 07-51925, 2011 WL 3626762 

(Bankr. E.D. Ky. Aug. 17, 2011), n.786

Mayberry, In re, No. 13-31233-H3-13, 2013 WL 1694471 (Bankr. S.D. Tex. Apr. 

18, 2013), n.164

McAllister, In re, 510 B.R. 409 (Bankr. N.D. Ga. 2014), nn.225, 572

McGregor, In re, 449 B.R. 468 (Bankr. D.S.C. 2011), n.687

Mercado, In re, 376 B.R. 430 (Bankr. M.D. Fla. 1990), n.540

Miller, In re, 443 B.R. 54 (Bankr. D. Del. 2011), n.459

Moore, In re, No. 10-11491, 2012 WL 1192776 (Bankr. N.D.N.Y. Apr. 10, 2012), 

n.338

Muhaimin, In re, 343 B.R. 159 (Bankr. D. Md. 2006), n.153

Munoz, In re, 428 B.R. 516 (Bankr. S.D. Cal. 2010), n.556

Nealen, In re, 407 B.R. 194 (Bankr. W.D. Pa. 2009), n.543

Nicholas, In re, 458 B.R. 516 (Bankr. E.D. Ark. 2011), n.712

Nicholas v. Oren (In re Nicholas), 457 B.R. 202 (Bankr. E.D.N.Y. 2011), n.378

Nixon, In re, 419 B.R. 281 (Bankr. E.D. Pa. 2009), n.190

Nussman, In re, 501 B.R. 297 (Bankr. E.D.N.C. 2013), n.358

Okosisi, In re, 451 B.R. 90 (Bankr. D. Nev. 2011), n.621

Padilla v. GMAC Mortgage Corp., 389 B.R. 409 (Bankr. E.D. Pa. 2008), n.779

Padilla v. Wells Fargo Home Mortgage, Inc., 379 B.R. 643 (Bankr. S.D. Tex. 

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Pajian, In re, 508 B.R. 708 (Bankr. N.D. Ill. 2014), n.322

Payton, In re, 481 B.R. 460 (Bankr. N.D. Ill. 2012), n.210

Peake, In re, 480 B.R. 367 (Bankr. D. Kan. 2012), n.296

Penaran, In re, 424 B.R. 868 (Bankr. D. Kan. 2010), nn.146, 392, 595

Pence, In re, 469 B.R. 643 (Bankr. W.D. Va. 2012), n.164

Pittman, In re, 506 B.R. 496 (Bankr. S.D. Ohio 2014), n.404

Pompa v. Wells Fargo Home Mortgage, Inc. (In re Pompa), No. 06-31759, ADV 

11-3651, 2012 WL 2571156 (Bankr. S.D. Tex. June 29, 2012), n.781

Pulaski, In re, 475 B.R. 681 (Bankr. W.D. Wis. 2012), n.34

Pursley, In re, 451 B.R. 213 (Bankr. M.D. Ga. 2011), nn.360, 368

Renz, In re, 476 B.R. 382 (Bankr. E.D.N.Y. 2012), n.624

Reynolds, In re, 470 B.R. 138 (Bankr. D. Colo. 2012), nn.371–73
Table of Cases

207

Richter, In re, No. 10-01260, 2010 WL 4272915 (Bankr. N.D. Iowa Oct. 22, 

2010), n.209

Richter, In re, 478 B.R. 30 (Bankr. D. Colo. 2012), n.364

Roberts, In re, 514 B.R. 358 (Bankr. E.D.N.Y. 2014), nn.225, 570

Rodriguez, In re, 487 B.R. 275 (Bankr. D.N.M. 2013), n.162

Rose, In re, 512 B.R. 790 (Bankr. W.D.N.C. 2014), nn.138, 684

Safanda v. Castellano (In re Castellano), 514 B.R. 555 (Bankr. N.D. Ill. 2014), 

n.23

Salander O’Reilly Galleries, In re, 453 B.R. 106 (Bankr. S.D.N.Y. 2011), n.31

Salazar, In re, 449 B.R. 890 (Bankr. N.D. Tex. 2011), n.279

Sarner, In re, No. 10-17487-JNF, 2011 WL 5240200 (Bankr. D. Mass. Oct. 31, 

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Schauer, In re, No. 99-31918, 2000 WL 33792712 (Bankr. D.N.D. Aug. 14, 2000), 

n.536

Schena, In re, 439 B.R. 776 (Bankr. D.N.M. 2010), n.273

Scotto-DiClemente, In re, 463 B.R. 308 (Bankr. D.N.J. 2012), n.557

Secrest, In re, 453 B.R. 623 (Bankr. E.D. Va. 2011), n.145

Sexton v. Department of Treasury, 508 B.R. 646 (Bankr. W.D. Va. 2014), nn.120, 

155

Shaia v. Taylor (In re Connelly), 476 B.R. 223 (Bankr. E.D. Va. 2012), n.36

Sheppard, In re, No. 10-33959-KRH, 2012 WL 1344112 (Bankr. E.D. Va. Apr. 18, 

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Smith, In re, 511 B.R. 612 (Bankr. W.D. Mo. 2014), n.53

Smith, In re, No. 09-43823, 2010 WL 5018379 (Bankr. W.D. Wash. Dec. 3, 

2010), n.344

Smith, In re, 465 B.R. 350 (Bankr. D. Mass. 2012), n.379

Snyder, In re, No. 10-62052, 2012 WL 1110119 (Bankr. N.D.N.Y. Apr. 2, 2012), 

n.683

Somers, In re, 448 B.R. 677 (Bankr. S.D.N.Y. 2011), n.71

Stella, In re, No. 05-05422-TLM, 2006 WL 2433443 (Bankr. D. Idaho June 28, 

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Sterrenberg, In re, 471 B.R. 131 (Bankr. E.D.N.C. 2012), n.429

Stewart v. Chase Bank (In re Stewart), 473 B.R. 612 (Bankr. W.D. Pa. 2012), 

n.784

Stoker v. Aurora Loan Services, Inc. (In re Stoker), No. 09-33976, 2010 WL 

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Strictland, In re, 504 B.R. 542 (Bankr. D. Minn. 2014), n.415

Taranto, In re, No. 10-76041-ast, 2012 WL 1066300 (Bankr. E.D.N.Y. Mar. 27, 

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Taylor, In re, 15 B.R. 596 (Bankr. D. Ariz. 1981), n.539
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Thompson, In re, 426 B.R. 759 (Bankr. N.D. Ill. 2010), n.198

Tibbs, In re, 478 B.R. 458 (Bankr. S.D. Fla. 2012), n.741

Tinney, In re, No. 07-42020-JJR13, 2012 WL 2742457 (Bankr. N.D. Ala. July 9, 

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Van Winkle, In re, No. 11-13861-j13, 2012 WL 404956 (Bankr. D.N.M. Feb. 8, 

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Varona, In re, 388 B.R. 705 (Bankr. E.D. Va. 2008), n.354

Velez, In re, 431 B.R. 567 (Bankr. S.D.N.Y. 2010), n.630

Weise, In re, 455 B.R. 702 (Bankr. E.D. Wis. 2011), n.327

Wiess, In re, 132 B.R. 588 (Bankr. E.D. Ark. 1991), n.466

Williams, In re, No. 12-02129-8-RDD, 2012 WL 2856124 (Bankr. E.D.N.C. July 

11, 2012), n.166
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair

Judge John D. Bates, Director of the Administrative Office of the U.S. Courts 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of 

New York 

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia 

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which 

also includes the director of the Administrative Office of the U.S. Courts and seven judges 

elected by the Judicial Conference. 

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court staff, including in-person programs, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines 

and evaluates current and alternative federal court practices and policies. This research 

assists Judicial Conference committees, who request most Center research, in developing 

policy recommendations. The Center’s research also contributes substantially to its educational mission. The Federal Judicial History Office helps courts and others study and 

preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from foreign countries and assesses how to inform 

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