OpinionsCreditor objected to confirmation of the debtor's chapter 13 plan contending that the plan's payment of its secured claim in pro rata distributions did not comply with 11 U.S.C. §1325(a)(5)(B)(iii)(I)'s requirement that periodic payments on secured claims be made in “equal monthly amounts”. The court sustained the objection. In re Ashley Phillips, Case No. 14-29453 (September 2015) -- Chief Judge G.M. Halfenger The United States Department of Education filed a late claim in this chapter 13 case. The trustee objected. The Department argued that the claim should be allowed under 11 U.S.C. §105 or based on “due process considerations” because the debtor had not listed the claim and it had not received notice of the bankruptcy until after the claims bar deadline. The court sustained the objection. In re Tamera Kuchenbecker, Case No. 10-33067 (September 2015) -- Chief Judge G.M. Halfenger The debtor filed a motion to reconsider the court's denial of her post-conformation motion to modify a chapter 13 plan that would change payments on unsecured claims from 100% to 0%. She contended that she lacked a valuable interest in joint tenancy property, and, therefore, her proposed modification did not fail the best-interests-of-creditors test. Although the property deed lists her as a cotenant, she argued that her interest lacks liquidation value because she holds only “bare legal title” or, alternatively, that her interest in the property is impaired by an equitable lien. The court denied the debtor's motion for reconsideration and held that (1) as against a trustee representing the interests of creditors, the deed's designation of ownership determines the allocation of real property rights and cannot be disregarded based on the debtor's limited use of the property or lack of contribution to maintaining it; and (2) under Wisconsin law, the debtor could not employ the equitable lien doctrine to shield property from creditors. In re Thomas and Natasha Rowell (September 2015) -- Judge S.V. Kelley Construing the language of § 707(b)(2)(D) that certain veterans are exempt from "any form of means testing," the Court dismissed the case under the totality of the circumstances because the wealthy debtors had a large surplus of income over their lavish expenses and they cited no factors such as a medical condition, calamity or inability to fund a Chapter 13 plan to demonstrate their need for Chapter 7 relief. In re Guerrero, Case No. 15-26746, 536 B.R. 817 (September 2015) -- Judge B.E. Hanan Creditor and debtor were, respectively, vendor and vendee of the debtor's principal residence pursuant to a land contract. When the land contract matured, the debtor failed to make a “balloon” payment of the outstanding balance as required by the contract, and the creditor moved for strict foreclosure in state court. After the debtor filed her bankruptcy case, the creditor moved for relief from the automatic stay under sections 362(d)(1) and (2), and from the codebtor stay as to the debtor's non-filing spouse under section 1301(c), to continue the strict foreclosure action. The creditor argued that she was entitled to relief because: (1) she would be unable to pay off a second mortgage that her husband and his ex-wife took out on the creditor's own home if the debtor were allowed to spread the balloon payment over the life of her chapter 13 plan; (2) the land contract was either an executory contract that the debtor was required to accept in its entirety, or a security interest that the debtor could not modify pursuant to section 1322(b)(2); and (3) the debtor had no equity in the property until completion of the land contract. The court denied the motion. The court first looked to Wisconsin law to conclude that the land contract was a security device and not an executory contract within the meaning of the Code. The court then found that the creditor was not entitled to relief because: (1) the creditor failed to establish a decline in the value of the collateral; (2) the debtor was authorized to pay off the balloon payment through her plan under section 1322(c)(2); (3) the creditor failed to prove that the debtor lacked equity in the property; and (4) mere delay in payment does not constitute irreparable harm sufficient to lift the codebtor stay. In re Gary J. Ambrosius, 536 B.R. 814 (August 2015) -- Judge S.V. Kelley Failure to pay post-petition taxes was not cause for dismissal of Chapter 13 case where the Plan did not require the payment of § 1305 claims. The tax claims will survive the discharge, and the Debtor is liable for all applicable interest and penalties, but nonpayment did not constitute a violation of the confirmed Plan. In re Carl and Linda Segebrecht, 536 B.R. 810 (August 2015) -- Judge S.V. Kelley Homeowners Association Claim for attorneys' fees in litigating with Debtors was not allowed secured claim in Debtors' Chapter 13 case. Neitzel v. J.P. Morgan Chase Bank, N.A. (In re Neitzel), Case No. 15-2057 (July 22, 2015) (July 2015) -- Chief Judge G.M. Halfenger The debtor commenced an adversary proceeding against J.P. Morgan Chase Bank, N.A., (“Chase”) requesting a declaration that Chase's claim secured by a junior lien on the debtor's principal residence is only allowable as an unsecured claim because the residence's value was less than the amount the debtor owes a senior lienholder. The parties entered into a stipulation to resolve the adversary proceeding and requested that the court approve the stipulation. The stipulation provided, in part, that once the court approved the stipulation Chase would be permitted to file an unsecured claim for its current outstanding loan balance, despite the fact that the claims bar deadline had expired and Chase had not filed a claim. Chase argued that it could file its unsecured claim after the claims bar deadline because Federal Rule of Bankruptcy Procedure 3002(c)(3) provided an exception to the general rule that proofs of claims in chapter 13 cases must be filed within 90 days after the first date set for the meeting of creditors. The court denied the parties' request to approve the stipulation and held that Chase did not qualify for the exception set out in Fed. R. Bankr. P. 3002(c)(3). The court reasoned that Rule 3002(c)(3) only applies where a judgment both (i) gives rise to an unsecured claim or makes the claim allowable, and (ii) provides for the recovery of money or property or avoids an interest in property. The proposed judgment in the adversary proceeding would not avoid Chase's lien; thus it would not satisfy criterion (ii). And the order confirming the plan, which, depending on the plan terms, might eliminate Chase's lien, would not satisfy criterion (i). In re Jason and Laura Kauth, Case No. 14-32145 (July 2015) -- Chief Judge G.M. Halfenger The chapter 13 debtors proposed a chapter 13 plan that did not pay unsecured creditors in full but did propose to pay student loan creditors principal and interest. The chapter 13 trustee objected, arguing that the plan (A) paid more to the student loan creditors and constituted unfair discrimination in violation of section 1322(b)(1), and (B) violated section 1322(b)(10) because it paid interest to the student loan creditors but was not otherwise paying all allowed claims in full. The court concluded that the plan violated section 1322(b)(10) because it paid interest on unsecured student loan debts that are not dischargeable under section 1328(a) but did not otherwise pay all claims in full. Clay v. City of Milwaukee, Case No. 14-2315 June 19, 2015 — Judge Halfenger (June 2015) -- Chief Judge G.M. Halfenger 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. |