Fifth Circuit Court of Appeals

Mortgage Wars Part 2--Attack of the Robo-Signers

08/23/13
The first post in this series discussed successful and (largely) unsuccessful claims brought against mortgage servicers.   In Ashley Martins v. BAC Home Loans Servicing, LP, No. 12-20559 (5th Cir. 6/26/13)(also discussed in part 1 of this series) and Reinagel v. Deutsche Bank National Trust Company, No. 12-50569 (5th Cir.
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Mortgage Wars Part 1--Debtor Wins Rare (But Limited) Victory Under TDCA

08/17/13
The life of an appellate court judge is largely occupied by consideration of criminal appeals and prisoner petitions.    In FY2012, these cases made up 64% of the Fifth Circuit's docket.   (By contrast, bankruptcy appeals made up only 1.7% of cases docketed).    While they are statistically insignificant, the Fifth Circuit is having to devote an increasing amount of its time to cases involving persons unhappy about the foreclosure of their residence.   By my count, the Fifth Circuit has issued two published opi
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Mortgage Wars Part 1--Debtor Wins Rare (But Limited) Victory Under TDCA

08/17/13
The life of an appellate court judge is largely occupied by consideration of criminal appeals and prisoner petitions.    In FY2012, these cases made up 64% of the Fifth Circuit's docket.   (By contrast, bankruptcy appeals made up only 1.7% of cases docketed).    While they are statistically insignificant, the Fifth Circuit is having to devote an increasing amount of its time to cases involving persons unhappy about the foreclosure of their residence.   By my count, the Fifth Circuit has issued three published o
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Secured Claims and the Non-Participating Creditor

08/06/13

It is a much misunderstood truism that  a "secured creditor ‘with a loan secured by a lien on the assets of a debtor who becomes bankrupt before the loan is repaid may ignore the bankruptcy proceeding and look to the lien for satisfaction of the debt.'"     In re Howard, 972 F.2d 639, 641 (5th Cir. 1992).   Of course, the Bankruptcy Code does not say this.    In the case of a chapter 11 proceeding, what the Code does say is that 

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Secured Claims and the Non-Participating Creditor

08/06/13

It is a much misunderstood truism that  a "secured creditor ‘with a loan secured by a lien on the assets of a debtor who becomes bankrupt before the loan is repaid may ignore the bankruptcy proceeding and look to the lien for satisfaction of the debt.'"     In re Howard, 972 F.2d 639, 641 (5th Cir. 1992).   Of course, the Bankruptcy Code does not say this.    In the case of a chapter 11 proceeding, what the Code does say is that 

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Fifth Circuit Finds That Absolute Priority Rule Applies in Individual Chapter 11 Cases

06/30/13
Joining the Fourth and Tenth Circuits, the Fifth Circuit has ruled that BAPCPA did not implicitly repeal the absolute priority rule in individual chapter 11 cases.    Matter of Lively, No. 12-20277 (5th Cir. 5/29/13), which can be found here.
What Happened
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Wife's Homestead Claim Remains in Limbo With No Answer From Fifth Circuit

04/18/13
The plight of the non-filing spouse who stands to lose an interest in the homestead is a trap that is easy to overlook.   Under 11 U.S.C. Sec.
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Fifth Circuit Issues Two Decisions Easing Path for Chapter 11 Debtors

03/19/13
Within the span of a few days, Judge Patrick Higginbotham of the Fifth Circuit released two decisions which will ease the way for chapter 11 debtors to confirm their plans.   In the first decision, the Court definitively put a stake through the heart of the artificial impairment doctrine, while in the second, the Court held that the Till prime + formula, while not mandatory, was becoming the "default" rule for calculating interest in chapter 11 plans.    The cases are Matter of Village at Camp Bowie I, LP, No.
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Fifth Circuit Affirms Ruling That "The Loan Has Been Paid!!!;" Rejects Stern and Jurisdictional Defenses

03/14/13
The case of a creditor who did not want to acknowledge that its debt had really and truly been paid received little sympathy from the Fifth Circuit which rejected a panoply of defenses and affirmed the Bankruptcy Court ruling that "The Senior Loan Has Been PAID!!!"   Fire Eagle, LLC v. Bischoff (Matter of Spillman Development Group, Ltd., Case No. 11-51057 (5th Cir.
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