Cases interpreting the Reform Act

In re Watson ___ B.R. ___ (Bankr.E.D.Va. 2005) Credit-counseling requirements imposed by Reform Act not unconstitutional; exigent circumstances alone do not waive requirement of pre-petition credit counseling; Certification of Exigent Circumstances must specify that debtor actually sought but was unable to obtain credit counseling prior to filing. _______________________

In re Charles ___ B.R. ___ (Bankr.S.D.Tex 2005) Under the Act, where debtor filed a case within 12 months of the current filing the automatic stay self-terminates in 30 days unless debtor also files and has the Court hear a motion to extend the stay within that same 30 days. Here, since the debtor had filed a case within 12 months of the current filing he also filed a motion to extend and for an expedited hearing. The Court held that: (a) debtor's burden is to establish good faith as to the creditors to be stayed (b) motion cannot seek a general extension of the stay: it must demonstrate that extension of the stay is appropriate as to each creditor; (c) the court should grant a motion to extend only if the debtor can establish “sufficient equitable factors” to justify doing so; (d) if there is no timely ojection to the motion, it may be granted without a hearing. ______________________

In re Maronde, ___ B.R. ___ (Bankr.D.Minn. 2005) Under Code § 522(b)(3)(A), the value of the debtor's homestead exemption shall be reduced to the extent the value is attributable to any property that the debtor disposed of in the 10-year period ending as of the petition date, with the intent to hinder, delay, or defraud a creditor. Code § 522(o). The court reduced the debtor's homestead exemption by the amount of equity created when the debtor reduced the balance owed on a line of credit secured by the home by selling a truck and trailer and using the proceeds to pay down the balance. Under the circumstances of this case, the court held that turning non-exempt assets into exempt assets was fraud against the creditors. ___________________

In re Gee, 332 B.R. 602 (Bankr.W.D.Mo. 2005) Held, BAPCPA requires that in seeking to be excused from the pre-petition credit counseling requirement the debtor must certify that he/she sought credit counseling and was unable to get it. _______________________

In re LaPorta, ___ B.R. ___ 2005) An unrepresented debtor filing her own petition also filed a certification asserting that all of the approved credit counseling agencies were too far for her to travel, but she was willing to take an online credit briefing should one be made available. Held, debtor's unsigned statement was not a “certificate” within the meaning of Code § 109(h)(3)(A) and failed to certify that she had requested counseling and was unable to get it. [ed. note: From whom, exactly, is a debtor supposed to "request" credit counseling, if there is none in the area?] ______________________

In re Hubbard, 332 B.R. 285 (Bankr.S.D.Tex. 2005) Held, case dismissed for failure to file the certificate of exigent circumstances excusing requirement for pre-petition credit counseling. On reconsideration, the court held that the pre-petition credit counseling requirements do not apply if the U.S. Trustee determines that adequate counseling services are not reasonably available within the district. ________________________

In re Blair, ___ B.R. ___ (Bankr.N.D.Tex. 2005) Held, the amount of equity accrued during the 1,215 day look-back period prescribed by Code § 522(o) due to the debtor's regular mortgage payments did not result in imposition of an exemption cap of $125,000. The court also cited approvingly section 522(p)(2)(B) which permits a debtor to use the proceeds from the sale of his home and reinvest them in a second residence within the time period without triggering the homestead cap. The court observed that the main legislative purpose of this section was to stop debtors from selling a home in a state with a low homestead exemption and purchasing one in a state with a high or unlimited exemption within the time period leading up to filing the bankruptcy. _______________________

In re Lucre, Inc., ___ B.R. __ (Bkrtcy.W.D.Mich. 2005) This convoluted opinion in a chapter 11 case deals swith the convoluted provisions of Code § 366(c) which establishes when a utility may or may not shut off service to a debtor in bankruptcy.