Consumer Bankruptcy Journal Fall 2015 - Page 5

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 5