Building Trades v. Mueller, 2011 Bankr. LEXIS (June 2011) -- Judge Kelley
Creditor's Motion for Summary Judgment denied where factual issues remained on whether Debtor's violation of theft by contractor statute was more than merely negligent.
In re Robenhorst, 2011 Bankr. LEXIS 1383 (April 2011) -- Judge Kelley
Above median income Chapter 13 debtors not required to dedicate one-half of their tax refunds to unsecured creditors in a post-confirmation plan modification where the original plan contained no such requirement, the modification was necessary to accommodate an increased mortgage arrearage claim, and the debtors reduced their expenses in good faith.
Debtor v. M&I Bank FSB (In re Jeannie Lindskog) (April 2011) -- Judge Shapiro
Debtor filed a chapter 13 case in which she was ineligible to receive a discharge pursuant to § 1328(f), because the case was filed less than four years after she filed a chapter 7 case in which she received a discharge. Debtor commenced an adversary proceeding seeking to “strip off” her second mortgage because there was no equity for the lien to attach to. The creditor filed a motion to dismiss the adversary proceeding arguing that a discharge is a requirement for lien avoidance under § 506(d). An objection to confirmation of plan was filed on the same grounds. The court held that to allow a debtor in a no-discharge chapter 13 to avoid a junior lien would run afoul of § 1325(a)(5)(B)(i)(I)(aa) which provides that the holder of a secured claim shall retain such lien until the earlier of the payment of the underlying debt or discharge. The court further stated that permitting such action would be contrary to both the Congressional intent in enacting BAPCPA and the ruling of the U.S. Supreme Court in Dewsnup v. Timm. The court granted the motion to dismiss adversary proceeding and sustained the objection to confirmation of plan without prejudice to the right of the debtor to file an amended plan. **Affirmed on appeal**
In re Johnson, 446 B.R. 921 (March 2011) -- Judge Kelley
Chapter 13 Debtor's student loans did not qualify for "special circumstance" treatment, but could be separately classified without unfairly discriminating against other unsecured creditors because the student loans were long-term debts extending beyond the length of the plan.
Patterson v. Homecomings Financial, LLC, 444 (February 2011) -- Judge Kelley
Chapter 13 Debtors' complaint alleging that mortgage servicer violated stay by charging and collecting post-petition, pre-confirmation attorneys' fees without disclosing those fees to the Court, survived motion to dismiss.
In re Jerimiah Snyder, Case No. 10-32042 (February 2011) -- Judge McGarity
Debtor's counsel was sanctioned $500 for filing chapter 7 petition for debtor who was ineligible for discharge, for sole purpose of delaying garnishment creditor until such time as debtor was eligible for discharge.
In re Jiter, 2011 Bankr. LEXIS 446 (February 2011) -- Judge Kelley
Chapter 13 debtors violated the disposable income requirement by including priority tax claims in the calculation of payments to unsecured creditors.
In re Willems, 442 B.R. 918 (February 2011) -- Judge Kelley
Supreme Court's decision in Ransom (preventing deduction of ownership expense to vehicles owned free and clear) applies retroactively to plans that have been filed, but not confirmed, when decision was issued on January 11, 2011.
In re Hilgendorf, 2011 Bankr. LEXIS 429 (February 2011) -- Judge Kelley
Chapter 13 debtors could not apply tax refunds to shorten length of plan, rather tax refunds had to be applied to unsecured creditors.