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.

1. 119 STAT. 1993PUBLIC LAW 109–63—SEPT. 9, 2005
Public Law 109–63
109th Congress
An Act
To allow United States courts to conduct business during emergency conditions,
and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Federal Judiciary Emergency
Special Sessions Act of 2005’’.
SEC. 2. EMERGENCY AUTHORITY TO CONDUCT COURT PROCEEDINGS
OUTSIDE THE TERRITORIAL JURISDICTION OF THE
COURT.
(a) CIRCUIT COURTS.—Section 48 of title 28, United States
Code, is amended by adding at the end the following:
‘‘(e) Each court of appeals may hold special sessions at any
place within the United States outside the circuit as the nature
of the business may require and upon such notice as the court
orders, upon a finding by either the chief judge of the court of
appeals (or, if the chief judge is unavailable, the most senior avail-
able active judge of the court of appeals) or the judicial council
of the circuit that, because of emergency conditions, no location
within the circuit is reasonably available where such special ses-
sions could be held. The court may transact any business at a
special session outside the circuit which it might transact at a
regular session.
‘‘(f) If a court of appeals issues an order exercising its authority
under subsection (e), the court—
‘‘(1) through the Administrative Office of the United States
Courts, shall—
‘‘(A) send notice of such order, including the reasons
for the issuance of such order, to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary
of the House of Representatives; and
‘‘(B) not later than 180 days after the expiration of
such court order submit a brief report to the Committee
on the Judiciary of the Senate and the Committee on
the Judiciary of the House of Representatives describing
the impact of such order, including—
‘‘(i) the reasons for the issuance of such order;
‘‘(ii) the duration of such order;
‘‘(iii) the impact of such order on litigants; and
‘‘(iv) the costs to the judiciary resulting from such
order; and
Deadline.
Reports.
Notice.
Federal Judiciary
Emergency
Special Sessions
Act of 2005.
28 USC 1 note.
Sept. 9, 2005
[H.R. 3650]
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2. 119 STAT. 1994 PUBLIC LAW 109–63—SEPT. 9, 2005
‘‘(2) shall provide reasonable notice to the United States
Marshals Service before the commencement of any special ses-
sion held pursuant to such order.’’.
(b) DISTRICT COURTS.—Section 141 of title 28, United States
Code, is amended—
(1) by inserting ‘‘(a)(1)’’ before ‘‘Special’’;
(2) by inserting ‘‘(2)’’ before ‘‘Any’’; and
(3) by adding at the end the following:
‘‘(b)(1) Special sessions of the district court may be held at
such places within the United States outside the district as the
nature of the business may require and upon such notice as the
court orders, upon a finding by either the chief judge of the district
court (or, if the chief judge is unavailable, the most senior available
active judge of the district court) or the judicial council of the
circuit that, because of emergency conditions, no location within
the district is reasonably available where such special sessions
could be held.
‘‘(2) Pursuant to this subsection, any business which may be
transacted at a regular session of a district court may be transacted
at a special session conducted outside the district, except that
a criminal trial may not be conducted at a special session outside
the State in which the crime has been committed unless the defend-
ant consents to such a criminal trial.
‘‘(3) Notwithstanding any other provision of law, in any case
in which special sessions are conducted pursuant to this section,
the district court may summon jurors—
‘‘(A) in civil proceedings, from any part of the district
in which the court ordinarily conducts business or the district
in which it is holding a special session; and
‘‘(B) in criminal trials, from any part of the district in
which the crime has been committed and, if the defendant
so consents, from any district in which the court is conducting
business pursuant to this section.
‘‘(4) If a district court issues an order exercising its authority
under paragraph (1), the court—
‘‘(A) through the Administrative Office of the United States
Courts, shall—
‘‘(i) send notice of such order, including the reasons
for the issuance of such order, to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary
of the House of Representatives; and
‘‘(ii) not later than 180 days after the expiration of
such court order submit a brief report to the Committee
on the Judiciary of the Senate and the Committee on
the Judiciary of the House of Representatives describing
the impact of such order, including—
‘‘(I) the reasons for the issuance of such order;
‘‘(II) the duration of such order;
‘‘(III) the impact of such order on litigants; and
‘‘(IV) the costs to the judiciary resulting from such
order; and
‘‘(B) shall provide reasonable notice to the United States
Marshals Service before the commencement of any special ses-
sion held pursuant to such order.’’.
(c) BANKRUPTCY COURTS.—Section 152(c) of title 28, United
States Code, is amended—
(1) by inserting ‘‘(1)’’ after ‘‘(c)’’; and
Notice.
Deadline.
Reports.
Notice.
Notice.
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3. 119 STAT. 1995PUBLIC LAW 109–63—SEPT. 9, 2005
(2) by adding at the end the following:
‘‘(2)(A) Bankruptcy judges may hold court at such places within
the United States outside the judicial district as the nature of
the business of the court may require, and upon such notice as
the court orders, upon a finding by either the chief judge of the
bankruptcy court (or, if the chief judge is unavailable, the most
senior available bankruptcy judge) or by the judicial council of
the circuit that, because of emergency conditions, no location within
the district is reasonably available where the bankruptcy judges
could hold court.
‘‘(B) Bankruptcy judges may transact any business at special
sessions of court held outside the district pursuant to this paragraph
that might be transacted at a regular session.
‘‘(C) If a bankruptcy court issues an order exercising its
authority under subparagraph (A), the court—
‘‘(i) through the Administrative Office of the United States
Courts, shall—
‘‘(I) send notice of such order, including the reasons
for the issuance of such order, to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary
of the House of Representatives; and
‘‘(II) not later than 180 days after the expiration of
such court order submit a brief report to the Committee
on the Judiciary of the Senate and the Committee on
the Judiciary of the House of Representatives describing
the impact of such order, including—
‘‘(aa) the reasons for the issuance of such order;
‘‘(bb) the duration of such order;
‘‘(cc) the impact of such order on litigants; and
‘‘(dd) the costs to the judiciary resulting from such
order; and
‘‘(ii) shall provide reasonable notice to the United States
Marshals Service before the commencement of any special ses-
sion held pursuant to such order.’’.
(d) UNITED STATES MAGISTRATE JUDGES.—Section 636 of title
28, United States Code, is amended in subsection (a) by striking
‘‘territorial jurisdiction prescribed by his appointment—’’ and
inserting ‘‘district in which sessions are held by the court that
Notice.
Deadline.
Reports.
Notice.
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4. 119 STAT. 1996 PUBLIC LAW 109–63—SEPT. 9, 2005
LEGISLATIVE HISTORY—H.R. 3650 (S. 1634):
CONGRESSIONAL RECORD, Vol. 151 (2005):
Sept. 7, considered and passed House.
Sept. 8, considered and passed Senate.
Æ
appointed the magistrate judge, at other places where that court
may function, and elsewhere as authorized by law—’’.
Approved September 9, 2005.
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5. WILLIAM D. WEBER
BOARD CERTIFIED,
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).
Significant Decisions:
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).

6. 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

7. 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.
Uploaded by: William Weber, Attorney at Law | Houston TX Bankruptcy Attorney
Weber Law Firm, P.C.
6666 Harwin Drive #220
Houston, TX 77036
Phone: 713-789-3300
Web: https://weberlaw.com
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