In re Gerard, 495 B.R. 850(August 2013) -- Judge Kelley
Although the absolute priority rule continues to apply to individual chapter 11 debtors, debtor does not violate the rule by retaining exempt property.
Order denying motion to shorten notice period for failure to demonstrate cause that also discusses claimed "ministerial act" exception to automatic stay.
The US Department of Agriculture, Rural Housing Service's motion for relief from the automatic stay to effectuate a setoff of the chapter 7 debtors' tax refund against a dischargeable loan guarantee loss claim obligation was granted.
Order denying mortgagee's request for abandonment and fees.
In re McMahon Family L.P., 495 B.R. 411(July 2013) -- Judge Kelley
Debtor's tree farm operation probably did not qualify for Chapter 12, and Debtor's plan was not feasible.
Chapter 11 individual debtor filed counterclaims against the plaintiff bank for damages to the debtor's apartment complex while under the management and control of the bank. Bank's motion to dismiss counterclaims was granted because debtor, as guarantor, did not have standing under the guaranty; the claims against the bank belonged to the borrower, the debtor's LLC.
In re Noll, 491 B.R. 550(May 2013) -- Judge Kelley
When Clerk issues notice of second claims bar date in reconverted case, creditor could file claim in reliance on that notice.
The debtor, after paying the prescribed filing fee installment, sought reconsideration of an order denying her fee waiver application. The court denied the reconsideration motion because the debtor, who supplied no additional evidence and made no showing of legal error, failed to meet the applicable standard. The order further discusses the showing needed to justify a discretionary waiver of the filing fee, see In re Williams, and cautions that filing facially incredible schedules weighs against the grant of a fee waiver.
This decision explains Judge Halfenger’s fee-waiver methodology and why he denied this debtor’s application to waive the chapter 7 filing fee. When considering applications to waive the filing fee, Judge Halfenger begins with the statutory fee-waiver requirements: (1) whether the debtor’s income falls below 150% of the applicable official income poverty line, and (2) whether the debtor is unable to pay the filing fee in installments. If the debtor’s submission establishes that she meets these criteria, the grant of a fee waiver becomes a matter of judicial discretion. In exercising this discretion, Judge Halfenger considers whether there is reason to believe that the debtor faces special circumstances such that a bankruptcy discharge will afford her benefits beyond relief from typical collection efforts. In this case, although the debtor’s income was below 150% of the income official poverty line, she did not show that she was unable to pay the filing fee in installments or that a discharge would provide unusual benefits.
The Court dismissed the debtor’s case after he failed to pay the first filing fee installment. One day later, the debtor filed a motion to vacate the order of dismissal, reinstate the case, and extend the time to pay the filing fee. The motion, which was supported only by a hand-written letter of the debtor, asserted that the debtor could not timely pay the filing fee because he could not recover previously garnished funds and other bills were due. The Court denied the motion on two independently sufficient grounds: (1) the debtor failed to pay the $306 filing fee with the motion, a condition of vacatur imposed by the dismissal order, and (2) the reasons provided did not explain how the missed payment was the result of excusable neglect, as required by Rules 9024 and 9006(b)(1).