Author Archives: Richard Weltman

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About Richard Weltman

Richard E. Weltman a bankruptcy attorney & partner at Weltman & Moskowitz, LLP in New Jersey and New York.

EMAIL: rew@weltmosk.com

BIO: About Richard

PHONE: 212-684-7800

Lender Alert: Bankruptcy Judge Imposes Sanctions on Mortgage Servicer for Ignoring Bankruptcy Rules
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Lender Alert: Bankruptcy Judge Imposes Sanctions on Mortgage Servicer for Ignoring Bankruptcy Rules | Richard E. Weltman

On September 12, 2016, the Chief Bankruptcy Judge for the District of Vermont directed a mortgage servicer to pay $375,000 in sanctions for failing to adequately notify debtors before imposing certain post-petition mortgage account charges. The court relied upon Rule 3002.1 of the Federal Rules of Bankruptcy Procedure (“Rules”).  In re Gravel, 2016 WL 4765773 (Bankr. D. Vt. Sept. 12, 2016). Read the full decision here.

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Weltman & Moskowitz Founding Partners Named Super Lawyers for 2016
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Weltman & Moskowitz Founding Partners Named Super Lawyers for 2016  | Richard Weltman

Weltman & Moskowitz, LLP is proud to announce that Richard Weltman and Michael Moskowitz have both been selected as Metro New York Area Super Lawyers for 2016. This is the third consecutive year each has been recognized as a top bankruptcy/debtor and creditors’ rights attorney. This honor is a product of a rigorous investigative process by the publishers of Law and Politics. Attorneys are selected based on professional accomplishments, licensing and certifications, peer recognition and personal achievement. The final published list represents no more than 5% of the lawyers in each state. The Super Lawyers objective is to create a credible list of outstanding attorneys, and the partners of Weltman & Moskowitz, LLP are proud to be recognized for their hard work and client dedication.

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SCOTUS: False Representation Now Unnecessary to Find Consumer Bankruptcy Fraud
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SCOTUS: False Representation Now Unnecessary to Find Consumer Bankruptcy Fraud | Richard E. Weltman

By Richard E. Weltman and Melissa A. Guseynov We previously reported on the split among the federal circuit courts of appeal concerning circumstances under which a debtor’s discharge with regard to a particular debt may be denied based on actual fraud if, prior to filing, the debtor transferred assets away from creditors without directly misleading them. In Husky International Electronics, Inc. v. Ritz, the United States Supreme Court settled the split of opinion among the lower courts, holding that debtor’s actual misrepresentation is not a necessary prerequisite to demonstrate “actual fraud” under section 523(a)(2)(A). Husky Inter. Elect., Inc. v. Ritz, 136 S.Ct. 1581 (2016).

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Don’t Be Fooled: Bankruptcy Exemptions & Dollar Amounts Rose Again on Apr 1
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Don’t Be Fooled: Bankruptcy Exemptions & Dollar Amounts Rose Again on Apr 1 | Richard E. Weltman

A 3% cost of living adjustment became effective for new bankruptcy cases filed on and after April 1, 2016, according to the Judicial Conference of the United States. This means certain dollar amounts relating to small business chapter 11 cases, preference claims, means testing, and property exemptions went up. These adjustments to the federal Bankruptcy Code are automatically issued every three years to keep up with inflation.

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Supreme Court Expected to Take Close Look at Student Loan Debt in Bankruptcy: ‘Fresh Start’ or ‘Undue Hardship’?
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Supreme Court Expected to Take Close Look at Student Loan Debt in Bankruptcy: ‘Fresh Start’ or ‘Undue Hardship’? | Richard E. Weltman

By Richard E. Weltman and Melissa A. Guseynov We have previously reported on judicial treatment of student loan debt dischargeability in bankruptcy—more specifically, how federal courts construe section 523(a)(8) of the Bankruptcy Code, which prohibits bankruptcy courts from discharging most student loan debt “unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8).

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Lender Alert: Two New York Federal Courts Find No FDCPA Violation -Where Debtor Account Numbers Appear on Collection Envelopes
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Lender Alert: Two New York Federal Courts Find No FDCPA Violation - Where Debtor Account Numbers Appear on Collection Envelopes | Richard E. Weltman

By Richard E. Weltman and Melissa A. Guseynov We have previously reported on the nuances of the federal Fair Debt Collection Practices Act (“FDCPA”) and the pitfalls to lenders who fail to strictly adhere to its requirements. However, in two recent unrelated federal court decisions, Judge Colleen McMahon of the District Court for the Southern District of New York and Judge John Curtin of the District Court for the Western District of New York, both concluded that the mere appearance of an account number on a collection envelope, without more, does not violate FDCPA.

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Lender Advisory: E.D.Pa. Clarifies Interplay Between FDCPA and Bankruptcy Code
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Lender Advisory: E.D.Pa. Clarifies Interplay Between FDCPA and Bankruptcy Code | Richard Weltman

By Richard E. Weltman and Melissa A. Guseynov In a recent decision important to lenders, Torres v. Asset Acceptance, LLC, the Hon. Eduardo C. Robreno, U.S.D.J., held that filing a stale proof of claim in bankruptcy court cannot form the basis of a claim under the Fair Debt Collection Practices Act (“FDCPA”). The facts are as follows: Margaret Torres filed for relief under Chapter 13 in the United States Bankruptcy Court for the Eastern District of Pennsylvania. Creditor, Asset Acceptance, thereafter filed a proof of claim for “money loaned.” Importantly, the proof of claim stated that the last transaction and payment date was outside of Pennsylvania’s four-year statute of limitations period for contract claims. Torres then commenced an adversary proceeding, claiming that lender’s filing of the proof of claim on the time-barred debt constituted a FDCPA violation. Asset Acceptance moved to dismiss.

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One Size Fits Some: Defending Preference and Fraudulent Transfer Claims
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One Size Fits Some: Defending Preference and Fraudulent Transfer Claims | Richard E. Weltman

Most debtors see bankruptcy as a way to wipe out debt at the expense of creditors. This is sometimes true, but only part of the story. The bankruptcy code also protects creditors in many important ways. One way is by preserving the equal distribution of a debtor’s assets. One of the bankruptcy code provisions that seeks to level the playing field respecting equal asset distribution among unsecured creditors is section 547.

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Supreme Court Asked to Resolve Circuit Split Regarding Consumer Bankruptcy Fraud
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Supreme Court Asked to Resolve Circuit Split Regarding Consumer Bankruptcy Fraud | Richard E. Weltman

By Richard E. Weltman and Melissa A. Guseynov The United States Supreme Court has been asked to resolve another split among the circuit courts assessing fraud in consumer bankruptcy cases. At issue is whether debtors in chapter 7 and chapter 13 cases can have their debt discharges blocked under section 523(a)(2)(A) of the bankruptcy code, following pre-petition efforts to transfer assets away from creditors without directly misleading them. The First and Seventh Circuit Courts of appeal have both issued holdings that directly conflict with a recent ruling by the Fifth Circuit. The Second Circuit has not directly addressed whether a court may find “actual fraud” absent a specific finding of misrepresentation by a debtor.

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Most Recent Success Story: Tenacity and Preparation Save Creditor’s Late Claim
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Most Recent Success Story Tenacity and Preparation Save Creditor’s Late Claim | Richard E Weltman

{3:36 minutes to read} When representing a creditor in a bankruptcy case, it helps when counsel understands that being told it is “too late” to file a claim may not be the last word. The filing of a late claim may still be possible in certain circumstances. Our client, a personal injury attorney, represented the administrator of his wife’s estate in a wrongful death lawsuit. The decedent was severely burned when her clothing caught fire. She ultimately succumbed to her burn injuries.

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NJ Court: Bank Has Duty to Prevent Injury in Foreclosed Home
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NJ Court Bank Has Duty to Prevent Injury in Foreclosed Home | Richard Weltman

{1:54 minutes to read} Wells Fargo Bank, as the owner of a foreclosed home in New Jersey, owed a duty of care to a prospective homebuyer who was injured when she tripped on a piece of glass while touring the home, a federal court judge in Newark ruled on January 28, 2015. In reaching his decision, U.S. Magistrate Judge Michael A. Hammer explained that commercial lenders taking possession of a residential property through mortgage foreclosure assume the position of the owner, and thus assume the owner’s non-delegable duty to protect visitors

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