Creditor obtained relief from stay during debtors’ chapter 13 case and sold the collateral securing debtors’ loan resulting in a deficiency balance of over $15,000. Debtors subsequently completed their plan and were granted a discharge. Creditor then initiated an adversary proceeding seeking a determination that the deficiency balance was a nondischargeable debt under § 1328(c)(1). The court held that it was a long term debt, but that the debtors’ plan did not provide for it under § 1322(b)(5) such that it would be a nondischargeable debt under § 1328(c)(1). Creditor never objected to the debtors’ chapter 13 plan, nor did it timely file a proof of claim for the deficiency balance after sale. The court denied creditor’s motion for summary judgment and dismissed the complaint.
Creditor was denied summary judgment and sec. 523(a)(3)(A) cause of action against chapter 7 debtors was dismissed. Although creditor had not received notice of bankruptcy in time to file a timely proof of claim in asset case, it had knowledge of bankruptcy case in time to file a tardy proof of claim and fully participate in the distribution under sec. 726(a)(2)(C), but chose not to do so.
In re Tekavec, 476 B.R. 555(August 2012) -- Judge Kelley
Partially secured short term home equity line of credit could be crammed down under § 1322(c)(2), even though the initial term of the agreement was extendable and renewable at the option of the creditor.
Creditor objected to debtors’ discharge under §§ 727(a)(2), (4), and (5) based primarily on debtors’ conversion of cash into an exempt IRA, and on debtors’ termination of a collateral assignment agreement resulting in a loan to an insider becoming unsecured, shortly before filing. Following a trial, the court ruled that such acts were done on the advice of counsel and without an actual intent to defraud, and granted the debtors a discharge.
Creditor's motion for summary judgment seeking an order requiring the marshaling of assets, namely by requiring another bank to liquidate the real property mortgaged by non-debtors prior to executing on the real property mortgaged by the chapter 12 debtors, in which creditor also had a secured interest, was denied.
Chapter 13 debtors objected to mortgagee's secured claims. Error in description of mortgage caused it to be indexed outside chain of title, resulting in a voidable lien. Reversed: Bank of New York Mellon Trust Co. v. Debtors, Case No. 12-C-846 (E.D. Wis. Jan. 15, 2013) (holding search of tract index is not sufficient for a purchaser to be considered in good faith and without notice)
The debtors operated a business through a limited liability company, which borrowed money from the defendants. The note was not personally guaranteed by either of the debtors. After the debtors filed bankruptcy and received a bankruptcy discharge, the defendants learned of the debtors’ bankruptcy. They subsequently filed a lawsuit in state court, which was ultimately voluntarily dismissed as to the debtors. They also made numerous attempts to collect the debt through both texts and voicemails directed at the debtors. The debtors then filed an adversary proceeding against the defendants for willful violation of the discharge injunction. After trial, the court dismissed the adversary proceeding because the demands for payment did not involve a debt due by the debtors personally to the defendants, so such debt was not a debt which was discharged in the debtors’ personal bankruptcy. The court stated that the debtors may have a claim for harassment, but that such a claim does not belong in the bankruptcy court.
Order imposing $5,000 sanction on Attorney Emory H. Booker, III for violating the Bankruptcy Code and Rules through his provision of unbundled bankruptcy services.
The UST objected to the debtor’s discharge based on § 727(a)(4)(A). The court found that the debtor’s failure to disclose a $50,000 inheritance, large IRA withdraws, ownership of 5 guns, and a transfer of $66,000 to an insider within the 2 years prior to filing constituted a false oath and denied the debtor’s discharge.
In debtors' adversary proceeding to avoid the transfer of their real properties to the City of Milwaukee via tax lien foreclosure, the Court held that the City's "strict foreclosure" process under Wis. Stat. section 75.521, which did not involve any kind of sale, was not sufficient to establish the "reasonably equivalent value" element of a section 548 fraudulent conveyance action.