Debtor could avoid Dept. of Workforce Development lien as a judicial lien impairing debtor's exemptions.
In re Gibas, Case No. 15-31102, 543 B.R. 570(January 2016) -- Judge Hanan
A couple filed for chapter 11 relief after obtaining a voluntary dismissal of their prior joint chapter 13 case in which a secured creditor had moved for relief from the automatic stay shortly before the debtors requested dismissal. The husband moved to continue the automatic stay; the wife moved to impose the stay; and the court ordered the couple to show cause why they were eligible to be debtors under section 109(g)(2). Interpreting the word “following” in section 109(g)(2) to mean “after,” rather than requiring a causal connection between the dismissal and motion for relief from stay, the court concluded that the couple were not eligible for relief under Title 11. Based on the couple's past history of serial filings and egregious conduct in eight bankruptcy cases filed since 2011, the court dismissed the case with a one-year bar to refiling. The court further held that, even if the couple were eligible under section 109(g)(2), their conduct demonstrated bad faith, which would preclude the court from continuing or imposing the automatic stay as to either.
Reconsidering In re Washington, the Court disallowed a late-filed claim in a Chapter 13 case filed by a creditor without notice of the bar date. The Court held that the Supreme Court's Law v. Siegel decision required that equitable principles could not trump the Bankruptcy Code, and that due process was not violated because the unscheduled claim would not be discharged.
A secured creditor objected to the debtor's plan because the debtor's plan did not provide for its claim. Overruling the objection, the court held that nothing in section 1322 or 1325 required the debtor to include the secured claim in her plan.
In re Schmaling, Case No. 11-32516(December 2015) -- Judge Hanan
Wilmington Savings Fund Society, FSB, a mortgage creditor of the chapter 13 debtors, sought relief from the automatic stay and abandonment. The debtors did not oppose the motion, so Wilmington filed an affidavit of no objection and proposed order in accordance with Local Rule 9014.1. While granting Wilmington relief from the automatic stay and abandonment as to the subject property was appropriate, Wilmington's proposed order requested that its claim be deemed withdrawn so it could avoid the requirements of Federal Rule of Bankruptcy Procedure 3002.1 (which requires mortgage creditors to provide chapter 13 debtors, who propose a "cure and maintain" on their principal residence under 11 U.S.C. section 1322(b)(5), notice of mortgage payment changes and a statement about whether the debtors cured their default and whether they are otherwise current with their mortgage payments upon plan completion), and also requested an award of attorneys' fees. The court granted Wilmington relief from the automatic stay and abandonment and deemed its claim withdrawn, but explained that without a timely-filed proof of claim in the claims register, an award of attorneys' fees was not appropriate.
Plaintiff filed complaint to determine dischargeability of debt based on a fraudulent check tendered for the down payment on a vehicle purchased by Chapter 7 Debtor. The debt owed by the Debtor was found to be excepted from discharge under 11 U.S.C. § 523(a)(2)(A) due to Debtor’s silence and concealment of a material fact.
Debtor's Chapter 13 plan violated equal payments requirement by proposing to pay adequate protection to creditor until attorney's fees were paid and then increasing payments to secured creditor. The decision offers suggestions for provisions that do not violate the equal payments requirement.
In re Ashley Phillips, Case No. 14-29453(September 2015) -- Judge Halfenger
The United States Department of Education filed a late claim in this chapter 13 case. The trustee objected. The Department argued that the claim should be allowed under 11 U.S.C. §105 or based on “due process considerations” because the debtor had not listed the claim and it had not received notice of the bankruptcy until after the claims bar deadline. The court sustained the objection.
Creditor objected to confirmation of the debtor’s chapter 13 plan contending that the plan’s payment of its secured claim in pro rata distributions did not comply with 11 U.S.C. §1325(a)(5)(B)(iii)(I)’s requirement that periodic payments on secured claims be made in “equal monthly amounts”. The court sustained the objection.
The debtor filed a motion to reconsider the court’s denial of her post-conformation motion to modify a chapter 13 plan that would change payments on unsecured claims from 100% to 0%. She contended that she lacked a valuable interest in joint tenancy property, and, therefore, her proposed modification did not fail the best-interests-of-creditors test. Although the property deed lists her as a cotenant, she argued that her interest lacks liquidation value because she holds only “bare legal title” or, alternatively, that her interest in the property is impaired by an equitable lien.
The court denied the debtor’s motion for reconsideration and held that (1) as against a trustee representing the interests of creditors, the deed’s designation of ownership determines the allocation of real property rights and cannot be disregarded based on the debtor’s limited use of the property or lack of contribution to maintaining it; and (2) under Wisconsin law, the debtor could not employ the equitable lien doctrine to shield property from creditors.