Creditor opposed the chapter 11 debtors' proposed disclosure statement on the grounds that it did not adequately describe the cross-collateralization of the debtors' obligations to it. The court determined the debtors' original mortgage on their homestead did not secure the subsequent business notes.
Debtor who was currently incarcerated in a prison that was experiencing difficulties with its telephone service moved for at least a temporary waiver of the prepetition credit counseling requirement. Prisoner's motion for exemption from credit counseling was denied by the court because no "exigent circumstances" existed, of a kind entitling the debtor to a temporary waiver of the requirement. Furthermore, the debtor's incarceration did not rise to the level of "disability," of a kind warranting a permanent waiver of the credit counseling requirement.
When the UST discovered at the 341 meeting of creditors that debtor had failed to list some jewelry on his schedules, he commenced an adversary proceeding, seeking denial of debtor’s discharge under §§ 727(a)(40(A) and 727(a)(2) of the Bankruptcy Code. The court concluded that in failing to list substantial assets on his schedules, the debtor did intend to actually defraud the trustee and his creditors, or at least acted with reckless disregard for the truth, and should be denied a discharge. The fact that he later amended his schedules to include the omitted assets did not expunge the falsity of his prior oath. The court also rejected debtor’s attempt to shift blame onto his bankruptcy attorney, declaring that debtor has an independent responsibility to verify the information given to his counsel. The court also sustained the chapter 7 trustee’s objection to debtor’s claims of exemption.
The Court concluded that the totality of the debtors' circumstances demonstrated an abuse of the provisions of Chapter 7, and therefore granted the United States Trustee's motion to dismiss if the debtors did not convert within 30 days. The Court based its decision on the fact that the debtors appeared to have funds and assets available that gave them some ability to pay their creditors. The Court noted, however, that the fact that the debtors were contributing to a 401k plan and were repaying a 401k loan did not, by themselves, justify dismissal of the case, as those payments would be deductible in a Chapter 13 context. The Court also concluded that the United States Trustee had failed to present any evidence regarding how long the debtors would have to make the 401k loan repayments, and whether, at some point during the life of a Chapter 13 plan, those funds would become available to pay unsecured creditors.
Trustee's objection to debtor's motion for modification of confirmed chapter 13 plan was sustained. Although debtor failed to remit one-half of tax refunds as required by confirmed plan, she proposed to cease payments to unsecured creditors, arguing they had already received the dividend provided for in the confirmed plan. The court concluded the debtor's attempt to receive a discharge after defaulting on the plan and violating the terms of the confirmation order was impermissible.
Lender's security interest, perfected within 90 days of the debtor's petition date, was avoided under s. 547 of the Code. The lender's defenses of equity and equitable subrogation were rejected by the court.
Secured creditors' objections to chapter 13 plans were sustained, in part, and overruled, in part. The plan provision providing for separate treatment of prepetition arrearage(s) as contractually current was allowed, as interpreted by the court. The plan provision providing the mortgage(s) was current upon discharge was not allowed.
Creditor filed a motion to have its adversary complaint objecting to the dischargeability of an obligation, which was filed before the deadline to file proofs of claim in the debtor's chapter 13 case, construed as an informal proof of claim. The court denied the motion. Although the complaint evidenced the creditor's intent to hold the debtor liable for the obligation, it did not express an intent to hold the chapter 13 estate liable.