The court overruled the debtors' claim objections because (1) the debtors did not serve the claimant, Waterstone Bank, by certified mail as required by Fed. R. Bankr. P. 3007(a)(2)(A)(ii) and 7004(h); and (2) the claim objections did not comply with Local Rule 3007(b) because they were not supported by an affidavit or declaration stating facts in support of the objection made by individuals with personal knowledge. The debtors attempted to support their claim objections with an affidavit from their bankruptcy attorney. The debtors' bankruptcy attorney's affidavit did not establish that the bankruptcy attorney had personal knowledge of the relevant facts and accordingly the affidavit was not sufficient to support the claim objections.
Gorokhovsky v. Ocheretner (In re Gorokhovsky), Adv. No. 17-2360 (July 2018) -- Judge B.E. Hanan
The debtor moved for sanctions against his ex-wife and her family law attorney for allegedly violating the automatic stay by filing a state court motion for contempt based on the debtor’s failure to pay “section 71” payments incurred in the parties’ prepetition divorce. The court denied the motion, first noting—without deciding—that the action may have been excepted from the automatic stay under § 362(b)(2)(B) as an attempt to collect a domestic support obligation from non-estate property, and that the debtor had failed to demonstrate any compensable injury from the action, precluding an award of damages.
In re Ali, Case No. 18-25548 (July 2018) -- Chief Judge G.M. Halfenger
The debtor filed an application to waive the filing fee. The debtor filed a detailed affidavit showing he met 28 U.S.C. §1930(f)(1)'s waiver requirements, including stating facts showing that he faced special circumstances that make a discharge extraordinarily beneficial. The court waived the debtor's filing fee and commended debtor's pro bono counsel.
Doss v. Norhardt Crossing Condominium Association (In re Doss), Adv. No. 18-2091 (June 2018) -- Judge B.E. Hanan
The court rejected the debtor's argument that statutory liens become avoidable judicial liens after the holder obtains a foreclosure judgment, dismissing the adversary complaint against the debtor's condominium association on summary judgment. The court also ruled that the statutory lien was not avoidable under sec. 506(d), regardless of whether it was "consensual" or "nonconsensual," and that sec. 523(a)(16) applies to discharge of personal liability, not liens.
In re Hicks, Case No. 17-2800 (June 2018) -- Judge B.E. Hanan
The chapter 13 trustee objected to the debtor’s motion to modify a confirmed plan on the basis that its “plan shortening” language operated as a retroactive forgiveness of missed plan payments (and would, essentially, allow for less than 36 months’ worth of plan payments). The court overruled the objection, noting that the disposable income and “applicable commitment period” requirements of § 1325(b) do not apply to modifications under § 1329, but good faith considerations remain applicable.
In re Poivey, Case No. 17-26408 (May 2018) -- Judge B.H. Ludwig
Because royalty income derived from individual property of debtor-wife was marital property, debtor-husband was entitled to exempt his interest in the royalties.
Renk v. Blawat (In re Renk) (April 2018) -- Judge S.V. Kelley
Rooker-Feldman doctrine barred the Court from considering debtor's challenge to attorneys' fees awarded in foreclosure judgment.
Layng v. Sgambati (In re Sgambati), Adv. No 17-02022, Case No. 16-26430, 584 B.R. 865 (April 2018) -- Judge B.E. Hanan
The U.S. Trustee moved to deny the debtor's discharge under 11 U.S.C. section 727(a)(4)(A), based on the debtor’s alleged failure to list all debts, income, business creditors and expenses. The debtor, who operated a pizza business and regularly mixed business and personal expenses and income, admitted some errors on his schedules but denied any fraudulent intent. After a two-day trial, the court found that some of the errors were not intentional or reckless, and that fire loss insurance proceeds and cash advances from credit cards in this case were not income that the debtor should have disclosed. Nonetheless, other omissions and mischaracterizations on the debtor’s schedules were part of a pattern of reckless disregard for the truth. The court denied debtor's discharge.
Gorokhovsky v. Huron Hudson Condo Assn. (In re Gorokhovsky), Adv. No. 18-2045 (oral ruling) (April 2018) -- Judge B.E. Hanan
The plaintiff-debtor sought an order declaring that the debt owed to the defendant-creditor, a condominium association, and its corresponding lien were dischargeable. The complaint also asserted state law causes of action for waste and destruction of personal property and trespass. The court granted the defendant’s motion to dismiss, finding that the court lacked subject matter jurisdiction over the debtor’s state law claims, that the debtor’s request for an order declaring his personal liability dischargeable was not justiciable (so the court lacked constitutional jurisdiction), and that the request for a finding that the defendant’s lien was dischargeable failed to state a claim upon which relief could be granted. The court also denied leave to amend the complaint, concluding that amendment would be futile.
In re House, Case No. 17-30434-beh (March 2018) -- Judge B.E. Hanan
After a careful consideration of the debtor’s prior filing history, the court granted a secured creditor’s motion for in rem stay relief as to the debtor’s rental property. The fact that the debtor had filed five chapter 13 cases in six-and-a-half years was not dispositive. In deciding whether in rem relief was warranted, the court reviewed the circumstances surrounding each of the debtor’s prior filings, as well as her performance in those cases, including the reasons for their failures and the debtor’s treatment of the creditor.