Bankruptcy Blogs

A little understood aspect of the automatic stay is the effect of a bankruptcy filing on a judgment debtor’s appeal rights. Contrary to what you might think, when a judgment is entered in a pre-bankruptcy action against the debtor, prosecution of the debtor’s appeal of that judgment is subject to the automatic stay. This is on the rationale that the appeal is a “continuation of an action” against the debtor. See, Parker v. Bain, 63 F.3d 1131, 1135-36 (9th Cir. 1995).

James and Beverly Nichols filed their 2001 federal income tax return on January 20, 2002. The return showed that they were entitled to a refund in the amount of $2,231.57. They checked the box on their return, making the irrevocable election to apply that amount to payment of future taxes, pursuant to 26 U.S.C. § 6513(d). Sixteen days later, the Nichols filed their chapter 7 petition.

Chapter 11 filings are often precipitated by the entry of a judgment against the debtor which is appealed. The parties must then argue about whether a chapter 11 plan is feasible and otherwise confirmable in the light of uncertainty over the amount of what might be the debtor's biggest liability.

On Tuesday the House Committee on the Judiciary held a day long hearing on the second anniversary of the enactment of BAPCPA. Before I assumed the responsibilities of a blogger, I didn't know that Congressional hearings were given snappy titles. The title of this hearing asked the question (no, I'm not making this up) "Are Consumers Really Being Protected Under the Act?"

Section 101(37) of the Bankruptcy Code defines “lien” as a “charge against or interest in property to secure payment of a debt . . . .” and section 101(51) defines “security interest” as a “lien created by an agreement.” Most of us who get hired to enforce homemade loan documents have encountered a promissory note or other contract that clearly contemplates the application of specific property to pay the debt in the event of a default, but which doesn’t exactly say “Joe grants a security interest to Bob.”