We open the year with several events of major significance. The unlawful invasion of Ukraine by Russia is justifiably dominating the news cycle, with harrowing images of the impact of Russia's indiscriminate military bombardment on Ukrainian cities and towns. The invasion will have a substantial impact on the global economy. The conflict is also highly likely to have implications for our own domestic markets despite the geographical distance between us. Local sharemarkets have been volatile and oil prices have spiked in the last week.

In its top consumer credit law decisions of 2021, the U.S. Court of Appeals for the Fifth Circuit determined that settlement of an FDCPA claim does not trigger an attorney fee award, examined third-party contact as a “communication” under the FDCPA, and ruled there was no “partial surrender” of collateral in a Chapter 13 plan.

Tejero v. Portfolio Recovery Assocs., LLC, 993 F.3d 393 (5th Cir. 2021)

When 2020 ended, many of us were unsure what 2021 would look like from a bankruptcy perspective. Would consumer filings increase? Could we see bankruptcy reform and particularly in the area of discharge of student loans? There was a lot to consider throughout the year. This article will provide some insight as to what we saw and where we may be headed in 2022.

Bankruptcy Filings Down in 2021

Bankruptcy filings through the first 11 months of 2021 were at their lowest levels since the 1980’s.

The U.S. Court of Appeals for the Seventh Circuit recently affirmed the dismissal of several actions by a borrower against a mortgagee, and in so ruling also held that it did not have jurisdiction to review the lower court’s remand order, and that the borrower had waived his right to challenge an award of attorney fees and costs in connection with the remand.

The U.S. Court of Appeals for the Fifth Circuit recently rejected a borrower’s objections to a bankruptcy court’s jurisdiction and held that the doctrine of res judicata barred the borrower’s claim objection as it was ultimately based on the alleged impropriety of the creditor’s claim from a prior bankruptcy.

A copy of the opinion in BVS Construction v. Prosperity Bank is available at: Link to Opinion.

The Appellate Court of Illinois, Second District, recently affirmed a trial court’s ruling denying a borrower’s motion to vacate the default judgment of foreclosure against him and confirming the judicial sale of the borrower’s property.

The U.S. Court of Appeals for the Eleventh Circuit recently ruled that a debtor’s appeal of a sale order was statutorily mooted by Subsection 363(m) of the Bankruptcy Code.

In so ruling, the Eleventh Circuit held that: (1) while the Bankruptcy Code bars relief for an appeal pursuant to 11 U.S.C. § 363(m), it does not defeat jurisdiction; and (2) Subsection 363(m) applies to appeals from any sale authorized by the bankruptcy court, not just those properly authorized by the Bankruptcy Code.

The New Zealand economy has weathered the COVID-19 pandemic better than many commentators predicted in April last year, in part due to the significant economic stimulus from the government, coupled with record high house prices and rock bottom interest rates. This is reflected in RITANZ's latest formal insolvency statistics, which show record low liquidation application numbers for September 2021 compared to the three previous years.

The U.S. Court of Appeals for the Third Circuit recently affirmed lower court rulings that a bankrupt debtor was entitled to receive damages and attorneys’ fees for a creditor’s violation of the automatic stay in bankruptcy.

In so ruling, the Court held that:

The U.S. Bankruptcy Appellate Panel for the Eighth Circuit vacated the bankruptcy court’s order confirming a farm debtor’s chapter 12 plan, concluding that the bankruptcy court erred by failing to hold an evidentiary hearing to determine the value of a bank’s collateral where the collateral was disputed. The Panel also concluded that the bank needed to file a proof of claim.