William D. Weber
Consumer Bankruptcy Law,
Texas Board of Legal Specialization
Born: 1955, Mt. Lebanon, PA.
Education: A.B. (summa cum laude) 1979, Ohio University; J.D. (cum laude) 1983, University of Houston Law Center (Class Rank: 19/332 – top 6%).
Honors: Order of the Coif; Order of the Barons.
Board Certifications: Consumer Bankruptcy Law, Texas Board of Legal Specialization (1997) (recertified 2002, 2008 & 2012).
Courts Admitted: All Texas state courts (1983); U.S. District Courts – Southern, Northern & Western Districts of Texas; U.S. Court of Appeals, Fifth Circuit (1983); U.S. Supreme Court (1994).
Memberships: Member, State Bar of Texas (1983-present); Member, State Bar of Texas, Bankruptcy Section; Member, National Association of Consumer Bankruptcy Attorneys (1998-2008, 2013-Present); Member, Houston Association of Consumer Bankruptcy Attorneys (1997-Present).
McDonald, 486 B.R. 843 (Bankr. S.D. Tex. 2013).
Description: Did Debtor abandon her homestead by temporarily moving from her Texas home to New Orleans to pursue an employment opportunity.
Outcome: No. Debtor did not abandon her homestead under the circumstances. A homestead exemption may be lost or abandoned by a removal from the premises under circumstances clearly indicating that the removal is not merely temporary. A homestead claimant is not required to remain on the homestead property at all times; rather, the claimant may be absent from the property as long as the absence is temporary. One does not necessarily abandon a homestead by merely moving his home. The length of time of an absence is not dispositive in determining whether an absence is temporary or permanent; rather, the overriding consideration in determining whether an absence is temporary or permanent is the homestead claimant’s intent.
Husky Int’l Elecs., Inc. v. Ritz (In re Ritz), 459 B.R. 623 (Bankr. S.D. Tex. 2011), affirmed, 513 B.R. 510 (S.D. Tex. 2014), affirmed, , 787 F.3d 312 (5th Cir. 2015), reversed, 136 S. Ct. 1581 (2016), opinion on remand, 2016 U.S. App. Lexis 14750 (5th Cir. 2016).
Description: Creditor filed a lawsuit claiming that Debtor, a shareholder of a Corporation, was personally liable for a contract debt owed by the Corporation to the Creditor. Creditor alleged debt was non-dischargeable in bankruptcy, alleging theories of fraud, breach of fiduciary duty, and willful injury to property.
Outcome: Proof that the debtor made a misrepresentation is an essential element of a claim that a debt is non-dischargeable under the “actual fraud” prong of 11 U.S.C. 523(a)(2).
Oparaji v. Wells Fargo Bank, N.A. (In Re Oparaji), 454 B.R. 725 (Bankr. S.D. Tex. 2010), affirmed, 458 B.R. 881 (S.D. Tex. 2011), reversed, 698 F.3d 231 (5th Cir. 2013).
Description: Plaintiff Chapter 7 debtor filed a motion for summary judgment on his claim that defendant creditor should be judicially estopped from asserting charges that could have been, but were not, included in its proof of claim filed in debtor’s previous bankruptcy case.
Outcome: In the Bankruptcy Court and District Court appeal, the Courts ruled the Creditor was judicially estopped from claiming charges or fees in a second bankruptcy case that were inconsistent with charges or fees claimed in a proof of claim filed in a prior, dismissed bankruptcy case. This ruling was reversed by the Fifth Circuit Court of Appeals.
Endeavour GP, LLC v. Endeavour Highrise, L.P. et al, 432 B.R. 583 (Bankr. S.D. Tex. 2010).
Description: Is an IRA Account a proper party that may be named as a party to a lawsuit?
Outcome: Yes. If faced with the issue of an IRA’s ability to be sued, the Texas Supreme Court would decide that IRAs should be treated like trusts.
Gonzalez, 388 B.R. 292 (Bankr. S.D. Tex. 2008).
Description: Debtors intended to retain and pay the mortgage debt on their home at the time they filed for Chapter 13. Post petition, they changed their mind and surrendered the home. May Debtors still claim a Form B22C deduction for the monthly home mortgage payments on the surrendered home?
Outcome: Debtors may not claim a Form B22C mortgage payment deduction for a home that they intend to surrender.
Beacher, 358 B.R. 917 (Bankr. S.D. Tex. 2007).
Description: Debtors, whose debts were primarily non-consumer (business) debts, filed a motion requesting the Court to relieve them of the obligation to file Form B22A (the BAPCPA means testing form).
Outcome: Although BAPCPA requires all debtors to file a Form B22A, the Court: (1) granted Debtors a waiver of that requirement; and (2) announced uniform Form B22A waiver procedures, applicable to all future cases filed in the Southern District of Texas.
Ortiz, 2006 Bankr. Lexis 2797 (Bankr. S.D. Tex. 2006).
Description: Mr. Ortiz, a licensed Texas attorney, filed a pro se bankruptcy petition that was dismissed with prejudice for 180 days. He then filed a second pro se bankruptcy petition in violation of the dismissal order entered in the first case.
Outcome: Mr. Oriz was sanctioned for filing an improper Chapter 7 case.
Tirey, 350 B.R. 62 (Bankr. S.D. Tex. 2006).
Description: Bench trial involved the following issue: Is a mobile home, connected to utilities, on blocks and anchored to the ground, personal or real property under Texas law?
Outcome: Bankruptcy Code §1322(b)(2) does not prohibit modification of secured claim relating a mobile home and the land on which it was situated because at the time the home was purchased, Texas law provided that a mobile home was personal property unless it was permanently attached to the land.
Hopson, 324 B.R. 284 (S.D. Tex. 2005).
Description: Appeal of bankruptcy court judgment holding that debtor’s former attorney, who was the holder of a priority administrative claim: (1) was not the holder of an “allowed unsecured claim” within the meaning of Bankruptcy Code § 1329; and (2) lacked standing to propose a plan modification under Bankruptcy Code § 1329.
Outcome: Reversed and remanded. The phrase “allowed unsecured claim” is not ambiguous. The holder of a priority administrative claims is the holder of an “allowed unsecured claim” within the meaning of § 1329.
Safeco Insurance Company of America v. Rehabilitation Specialists, Inc., et al., 93-2327 (5th Cir. 1994), cert denied, 513 U.S. 929 (1994).
Description: Appeal of take nothing judgment issued by trial court in favor of Defendants on breach of contract and payment bond claims.
Outcome: Reversed and rendered judgment against Defendant Baytown for $157,042 on breach of contract claims. Affirmed take nothing judgment in favor of Defendant Safeco (bonding company) on payment bond claims.
Protechnics International, Inc. v. Tru-Tag Systems, Inc., et al., 843 S.W.2d 734 (Tex. App. – Houston [14th Dist.] 1992, no writ).
Description: Appeal from a trial court judgment: (1) dismissing petition for injunction, (2) finding non-compete clause in employment agreement unenforceable, (3) awarding interest on prospective attorney’s fees to accrue from the date of the judgment, (4) finding that technology did not constitute a trade secret, and (5) finding no breach of the employment agreement.
Outcome: Judgment reformed to reflect that interest on appellate attorney’s fees does not begin until the appellate court’s judgment is final and affirmed in all other respects.
NCL Studs, Inc. v. Judith Jandl, 792 S.W.2d 182 (Tex. App. – Houston [1st Dist.] 1990, writ denied).
Description: Appeal of take nothing judgment in favor of defendant on note and guaranty agreement claiming that trial court erred in: (1) permitting defendant and a third party witness to testify because they were not identified as a witnesses in response to interrogatories; and (2) concluding that the guarantee agreements were not the personal debt of defendant.
Outcome: Trial court judgment was reversed and remanded with instructions that defendant was individually liable for the balance due on the promissory notes and for attorney’s fees.
Sheldon Pollack Corp. v. Pioneer Concrete of Texas, Inc., 765 S.W.2d 843 (Tex. Civ. App. – Dallas 1989, writ denied).
Description: Appeal of judgment against general contractor on its bond to indemnify a mechanic’s lien claim and awarding attorney’s fees.
Outcome: Judgment of liability on indemnity bond affirmed; award of attorney’s fees reversed, rendered and remanded for new trial.