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Cases in Review December , 2016
“ Cases in Review ” highlights recent cases that may be of particular interest to consumer bankruptcy practitioners . It is brought to you by Consumer Bankruptcy Abstracts & Research ( www . cbar . pro ) and the National Consumer Bankruptcy Rights Center ( www . ncbrc . org ).
Chapter 7 — Denial of discharge : As there was no " case or controversy ," the bankruptcy court lacked jurisdiction over a proceeding in which a creditor holding only a claim for a nondischargeable debt sought to deny the Chapter 7 debtor ' s discharge under Code § 727 . Reed v . Blount , 2016 WL 6211691 ( E . D . Mich . Oct . 25 , 2016 ) ( case no . 2:16-cv-11777 ).
Chapter 7 — Surrender of collateral for secured debt : Code § 521 ( a )( 2 ) requires a Chapter 7 debtor who files a statement of intention to surrender the property serving as collateral for a secured claim to surrender the property both to the Chapter 7 trustee and to the creditor . Even if the trustee abandons the property , the debtor ' s duty to surrender the property to the creditor remains . Moreover , “ surrender ” requires a debtor to discontinue his opposition to a foreclosure action , and the bankruptcy court has the authority to order a debtor to cease his opposition . In re Failla , 838 F . 3d 1170 ( 11th Cir . Oct . 4 , 2016 ) ( case no . 15-15626 ).
Chapter 7 — Surrender of collateral for secured debt : Explicitly disagreeing with In re Failla , 838 F . 3d 1170 ( 11th Cir . Oct . 4 , 2016 ), above , the bankruptcy court held that surrender under Code § 521 ( a )( 2 ) does not require a Chapter 7 debtor to give up all rights to defend against a post-discharge foreclosure . Instead , the debtor ' s stated intent to surrender merely means that the debtor does not intend to reaffirm , redeem , or exempt the property . In re Ryan , --- B . R . ---- , 2016 WL 6102312 ( Bankr . D . Haw . Oct . 19 , 2016 ) ( case no . 1:09-bk-1604 ), appeal filed , Case No . 16-1391 ( 9th Cir . B . A . P ., filed Nov . 4 , 2016 ).
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