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§ 526

Zelotes v. Adams

Feb
27
2007
Ruling
Trustee permanently enjoined from enforcing section 526(a)(4) which court held to be unconstitutional.
Procedural posture

Plaintiff bankruptcy attorney sued defendant bankruptcy trustee challenging 11 U.S.C. § 526(a)(4) as violative of the First Amendment. The court denied the trustee's motion to dismiss for failure to state a claim and found that section 526(a)(4) was facially unconstitutional. The attorney moved for a judgment declaring that section 526(a)(4) was unconstitutional and enjoining its enforcement. The trustee moved for reconsideration and for summary judgment.

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opinion summary, case decided on February 27, 2007 , LexisNexis #0307-114
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Milavetz Gallop & Milavetz PA v. United States

Dec
07
2006
Ruling
BAPCPA provision requiring "debt relief agencies" to give advice favoring creditors over debtor clients violated duty of loyalty as applied to attorneys.
Procedural posture

Plaintiffs, practicing bankruptcy attorneys, sought an order declaring portions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") that restricted and compelled speech on the part of debt relief agencies unconstitutional as violative of the First Amendment, at least as applied to attorneys. Defendant United States moved to dismiss the claim for failure to state a claim upon which relief can be granted.

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opinion summary, case decided on December 07, 2006 , LexisNexis #0107-003
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In re Gutierrez

Dec
01
2006
Ruling
Debtor's former attorney ordered to disgorge fees due to failure to comply with BAPCPA provisions for Bankruptcy Truthfulness Notice or fee agreements.
Procedural posture

Chapter 7 debtor filed a motion, seeking an order compelling his former bankruptcy attorney to disgorge pursuant to 11 U.S.C. § 526(c) all monies received in connection with his representation of debtor.

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opinion summary, case decided on December 01, 2006 , LexisNexis #0107-004
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Zelotes v. Martini

Nov
07
2006
Ruling
Section 526(a)(4), enacted under BAPCPA is an overbroad restriction on attorney communication and unconstitutional.
Procedural posture

Plaintiff bankruptcy attorney filed an action, alleging that 11 U.S.C. § 526(a)(4), which was enacted in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, violated the First Amendment. Defendant trustee filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss the complaint.

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opinion summary, case decided on November 07, 2006 , LexisNexis #1206-041
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Olsen v. Gonzales

Aug
11
2006
Ruling
BAPCPA provisions regarding debt relief agencies did not violate First Amendment.
Procedural posture

Defendants, the U.S. Attorney General and the U.S. Trustee, filed a Fed. R. Civ. P. 12(b)(1) motion to dismiss an action in which plaintiff attorneys challenged 11 U.S.C. §§ 526(a)(1), 526(a)(4), 527 and 528 of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA") as violative of the First Amendment and 11 U.S.C. §§ 526-528 as too vague in violation of the Fifth Amendment's Due Process Clause.

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opinion summary, case decided on August 11, 2006 , LexisNexis #0906-006
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