Smith v. Capital One Bank (USA) N.A., et al. (In re Karen Smith)(June 2015) -- Judge Kelley
Co-debtor stay applies to marital consumer debt incurred by nonfiling spouse.
The debtor filed an adversary complaint against the City of Milwaukee to avoid under 11 U.S.C. §§522 and 548 the City of Milwaukee’s tax foreclosure of her residence. The debtor moved for summary judgment. The City opposed the motion solely on the ground that the debtor had received reasonably equivalent value for her residence, even though the parties agreed that the property’s value was not reasonably equivalent to the delinquent tax debt satisfied by the foreclosure. The City argued that the foreclosure’s elimination of a mortgage that secured a $25,000 note was also value to the debtor. The court granted the debtor’s motion for summary judgment. It held that the elimination of the mortgage did not improve the debtor’s financial position because the debtor remained liable on the note. Therefore, the debtor did not receive value reasonably equivalent to the value of the foreclosed residence.
The debtor proposed a chapter 13 plan to modify the City of Milwaukee’s claim for back taxes on his principal residence by paying the City the value of the residence, which was less than the tax bill. The City of Milwaukee objected and argued that the debtor was not entitled to “cram down” its claim. The court concluded that section 1322(b)(2) did not apply to the City of Milwaukee’s tax claim because the tax claim is not secured by a consensual lien; rather, it is secured by a tax lien that arises by operation of law. Because of this, the court concluded that section 1322(b)(2) ‘s “anti-modification” clause does not apply to the City of Milwaukee’s tax claim.
In re Jodi L. Wagner, Case No. 09-33103(May 2015) -- Judge McGarity
The chapter 7 debtor opposed the trustee's motion to compromise a claim and administer the proceeds from a defective medical device MDL settlement award. The debtor underwent hip replacement surgery prepetition and, due to a recall of the device, hip revision surgery postpetition. The Court denied the trustee's motion for summary judgment, rejecting his argument that the claim exited prior to the debtor's filing because it was sufficiently rooted in the debtor's pre-bankruptcy past. Instead, the Court applied the "discovery rule" to determine whether or not the claim was property of the estate. Because the issue of whether or not the debtor knew of her injury or exercised reasonable diligence in discovering it prior to filing bankruptcy was a matter for trial, the debtor's motion for summary judgment was also denied.
Where creditor did not prove debtor did not intend to pay debt when the agreement to pay was made, creditor's claim under § 523(a)(2)(A) failed.
The State of Wisconsin, Department of Workforce Development (the "DWD") filed a complaint against the debtor's non-filing spouse and requested a declaration that the non-filing spouse owed it a non-dischargeable debt under 11 U.S.C. section 523(a)(2). It did so in an effort to avoid section 524(a)(3)’s bar on collection of most community debts from the debtor’s community property. The court concluded that the complaint did not state a claim against the non-filing spouse for which relief could be granted. The court granted the DWD leave to amend the complaint to add the debtor as a defendant.
Chapter 13 debtor objected to priority status of claim filed by attorney who represented the debtor's former spouse in state court proceedings. The debtor argued the state court awarded the attorney's fees with the intent to punish the debtor for misconduct in litigation, not for the purpose of enforcing the debtor's duty to support his former spouse and/or children. The court overruled the objection and allowed the claim as a priority domestic support obligation under sec. 507(a)(1)(A). The fees were incurred in litigation relating to the care, custody, and welfare of the minor children of the marriage.
Kelley v. Dahle-Fenske (In re Dahle-Fenske), 525 B.R. 912(March 2015) -- Judge Kelley
Debt incurred was community claim but phantom discharge did not apply since creditor was not scheduled and did not have notice of deadline to file dischargeability complaint.
In re Rowell, 526 B.R. 300(January 2015) -- Judge Kelley
Under § 707(b)(2)(D)(ii), as long as the 540-day exclusion from means testing for veterans has not expired when the petition is filed, the exclusion applies, and the debtor is exempt from the means test.
The defendant moved to dismiss the chapter 13 debtor's adversary proceeding to set aside a prepetition transfer of real estate pursuant to a tax foreclosure judgment. The defendant argued the debtor lacked standing to pursue the action because the property owner of record was the debtor's mother who had died six years prior to the judgment. The Court denied the motion to dismiss, finding the debtor had standing because she had acquired an interest in the real estate upon her mother's death.