President’s Report
November 19th, I encourage you to visit
the online store at NACBA.org. This
webinar was presented for Consumer
Bankruptcy Attorneys by Consumer
Bankruptcy Attorneys and should leave
you prepared for the new bankruptcy
forms on December 1st.
Advocate
As DC continues to be a standstill,
NACBA remains well positioned to
leverage any opportunity. Make no
mistake about it, we continue to call
on and meet with Members of the
House and Senate, Treasury, Justice,
Education and the White House. The
results of the 2016 Presidential election
will determine what new policies or
initiatives will impact the practice of
bankruptcy law. It is as important
as ever for members of NACBA to
continue to engage with their elected
officials. We are planning our 2016 Hill
Day at Home and more details will be
shared soon. NACBA Members can be
a voice of expertise as very few elected
officials have an in-depth knowledge
of what bill or what vote can hurt the
debtor.
On the state level, NACBA Members
played very important rolls in testifying
to block bills that could negatively
impact the consumer or in the case
of California and SB 308, what bills
can help people keep more of their
assets while getting a fresh start.
Please read the story in this edition of
the CBJ written by NACBA Member
Eric Clark. The efforts by many
NACBA Members put us very close
to victory on raising the homestead
exemption. While we were successful
in the California Senate, the General
Assembly presented a road block that
forced a decision to pull back and reintroduce the bill in 2016. These types
of efforts can and will be replicated in
other states in conjunction with the
NACBA Legislative team.
National Form Plan
NACBA has been following closely
the development with the proposed
National Form Plan.
After being
snubbed by an ad hoc group that
proposed an option for local districts
to opt-out of the NFP by adopting a
single district-wide plan, with the aid of
our legislative allies, NACBA was able
to draw attention to the irregularities
in this rule-making process, delaying
implementation in expectation that the
“local opt-out” option will be published
for full comment.
While NACBA,
reflecting our members, was torn
regarding the need and value of NFP,
the local option is likely the worst of
all options as it would often enshrine
bad case law without providing any
real uniformity. This is especially true
as the representatives of the financial
services industry have been overt
in stating that this option is merely a
waystation on the road to a National
Form Plan. NACBA will continue to be
engaged in this issue and update you
with future developments.
Litigate
U.S. Trustee Best Practices
Continuing our work with the U.S.
Trustee, as well as the National
Association of Bankruptcy Trustees
National Association of Consumer Bankruptcy Attorneys
Winter 2015
and National Association of Chapter
13 Trustees, NACBA has maintained
as strong position on the use of the
previously developed Best Practices of
Trustees. At its heart, this document
stands for the proposition that before
demanding documentation beyond that
mandated by the Code or requiring
completion of blanket questionnaires,
Trustees should review the actual filing
and tailor their requests to the actual
case. NACBA was very gratified that
in these meetings, the EOUST agreed
with this position and helped NACBA
explain why such demands, while
appropriate in specific circumstances,
were overly burdensome when applied
across-the-board to all debtors.
The Ninth Circuit Court of Appeals
Finally Rights the Ship on Fees for Stay
Violations
In 2010, a panel of the Ninth Circuit
Court of Appeals held that section
362(k) of the Bankruptcy Code only
allowed debtors to recover attorneys’
fees incurred to end a stay violation.
Attorneys’ fees incurred to secure
monetary damages to compensate
the debtor for harm caused by a
stay violation were not recoverable
according to the panel. The Sternberg
decision significantly altered the
balance between debtors and creditors
by placing the cost burden for fighting
stay violations on bankruptcy debtors.
The practical effect of the decision
was to render enforcement of the
stay financially impractical, to the
detriment of the debtor and other
creditors. From a judicial perspective,
Sternberg created more work in stay
litigation cases by forcing highly factCONSUMER BANKRUPTCY JOURNAL
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