NACBA Case Update

Inherited IRAs

On May 4, NACBA filed an amicus brief in the consolidated cases of

Rameker v. Clark, No. 12-1241 and, Adili v. Clark, No. 12-1255 (7th Cir.), on the issue of whether a debtor

may exempt an inherited IRA under section 522(b)(3)(C). NACBA has been actively involved in the successful presentation of this issue in courts around the country, arguing that the plain language of the Bankruptcy Code and the Internal Revenue Code militates in favor of recognizing the exemption. The Bankruptcy Code exempts from the debtor’s estate "retirement funds to the extent that those fund are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986." Section 408(e) of the IRC provides that

any IRA, including one that is inherited from a non-spouse, is exempt from taxation.

NACBA filed amicus briefs in several other cases that have recently come down in favor of debtors on this issue.

In re Chilton, No. 11-40377 (5th Cir., March 12, 2012) (exemption under section 522(d)(12)), In re Hamlin, No. 11-1083 (B.A.P. 9th Cir. February 21, 2012); In re Seeling, No. 11-30957 (Bankr. D. Mass., May 24, 2012).

Absolute Priority Rule

Dan Press filed an amicus brief on behalf of NACBA in

In re Stephens, No. 11-6309 (10th Cir.) on the issue of whether the absolute priority rule applies to individual debtors in chapter 11. NACBA has been involved in arguing this issue on behalf of debtors in appellate courts around the country. See In re Maharaj, No. 11-1747 (4th Cir.) (argued March 22, 2012); P+P v. Friedman, No. 12-60033 (9th Cir.) (Debtors won in the BAP). NACBA intends to file an amicus brief on this issue in In re Lively, No. 12-90014 (5th Cir.).


In re Michael

, No. 11-1992 (3d Cir.)

Issue: Whether 1329(b)(1) places obligation on trustee to distribute funds collected prior to conversion to 7 or whether 348(e) divests trustee of that responsibility.

Argued: May 7, 2012

NACBA filed an amicus brief in this case and participated in the oral argument.

Assistance on Debtor’s Briefs

Tara Twomey of NCBRC assisted debtor’s attorney in writing debtor’s brief in the case of

In re Mycek, No. 12-369 (C.D. Cal), where the chapter 13 debtor is appealing Riverside Bankruptcy Judge Johnson’s denial of confirmation and dismissal of his case on the basis of bad faith and infeasibility because the plan did not allow for "surprise expenses."

In re Gomez

, No. 08-72134, AP 11-7157 (Bankr. W.D. Ark) involved the issue of whether the debtor reaffirmed a debt under section 524(c) or whether, by failing to comply with disclosure requirements in the reaffirmation agreement, Wells Fargo violated the discharge injunction by seeking to collect on the debt. On May 24, 2012, the bankruptcy court denied the debtor’s complaint.