OpinionsCommerce State Bank initiated a state-court, pre-petition garnishment action against the debtor's lawyers to collect on its judgment against the debtor. Before the debtor commenced this bankruptcy case, Commerce filed a motion for default judgment against the lawyers, alleging that they had failed to timely answer the garnishment complaint. Before the state court could conduct a scheduled hearing on Commerce's default judgment motion, the debtor commenced this case and requested that Commerce cancel the motion hearing. After Commerce refused that request, the debtor moved for sanctions claiming that Commerce's refusal violated the automatic stay. This Court denied the debtor's motion. It held that §362(a) did not stay the state-court motion hearing (a fortiori imposing no duty to cancel that hearing) because, under Wisconsin law, the default judgment motion only sought relief personal to the debtor's lawyers, rather than from the debtor, the debtor's property, or the debtor's bankruptcy estate. In re Lowell E. Davis, Case No. 12-21160, Debtor v. City of Milwaukee, Adv. No. 12-2321 (April 2013) -- Judge M.D. McGarity Material facts in dispute precluded summary judgment in debtor's adversary proceeding to recover transfer of non-homestead property in real estate tax foreclosure allegedly done in violation of the automatic stay and for less than reasonably equivalent value. In re Amanda Jaeger-Jacobs, Case No. 12-20021, Ryan Jacobs v. Debtor, Adv. No. 12-2227 (April 2013) -- Judge M.D. McGarity Although the chapter 7 debtor was assigned payment of joint credit card obligations under the parties' Marital Settlement Agreement, after the debtor stopped making payments and the default was reported negatively on her former spouse's credit report, the former spouse made the credit card payments. The court rejected the debtor's argument that, because the creditor had not sued or threated legal action against her former spouse, she was not liable to reimburse her former spouse for his "voluntary" payments. The debtor's responsibility to hold her former spouse harmless became a nondischargeable obligation under sec. 523(a)(15) when the judgment incorporating the MSA was granted. In re 4848, LLC, Case No. 12-36114 (April 2013) -- Judge M.D. McGarity Court granted relief from automatic stay under sec. 362(d)(3)(A) because single asset real estate debtor's proposed chapter 11 plan did not have reasonable possibility of being confirmed within reasonable time. Additional factor establishing "cause" for relief under sec. 362(d)(1) was prepetition stay waiver within forbearance agreement between debtor and secured lender. In re Brown (13-23093) (April 2013) -- Chief Judge G.M. Halfenger Debtor filed a petition without the required schedules. On the 14th day, rather than filing the documents required by Rule 1007, the debtor, through her counsel, filed a motion to extend time stating only that “[t]he Debtor is currently gathering documentation in order to file her completed bankruptcy schedules.” The court has received other motions using identical boilerplate language. The court found that the motion did not show “cause” for an extension as required by Rule 1007 but held the debtor's motion in abeyance for 2 days to allow the debtor an opportunity to show cause why additional time is needed. The court further ordered that any future motions to extend based on unspecified emergencies and claims that documents are being gathered will be denied. In re Dillon, 10-26265 (February 2013) -- Judge P. Pepper The debtors had filed an objection to the creditor's Rule 3002.1 notices of postpetition fees, expenses and charges. The debtors argued that the creditor had charged monthly property inspection fees for a number of months, and that those fees were not reasonable. The Court agreed. The Court noted that Rule 3002.1(e) allowed a debtor to file a motion, asking the court to determine whether certain fees, expenses or charge were reasonable. The Court stated that it understood that mortgage creditors conducted property inspections in situations in which the debtor had defaulted, and the creditor needed to make certain that the debtor had not walked away from the property. The Court stated that it made sense for a creditor to conduct an inspection, and charge the fee, in months in which a debtor had not made a payment. But in months in which the debtor had made the mortgage payment, the Court stated that the creditor should be able to deduce from that fact that the debtor remained in the property and was maintaining it. In the current case, the debtors had missed only two payments. While these two missed payments had resulted in the debtors carrying a running two-month arrearage for almost a year, the Court found it significant that the debtors had made regular, monthly payments for most of that year. The Court concluded that the inspection fees of $13.50 each were reasonable for the two months in which the debtors had missed payments, but were not reasonable for the months in which they had actively made payments in spite of being in arrears. The Court therefore deemed the two months' worth of inspection fees (totalling $27) reasonable and collectible (as well as the one broker's price opinion fee, which the parties agreed was not in dispute), and deemed the remaining inspection fees unreasonable and uncollectible. In re Eckerman, 12-30068 (February 2013) -- Judge P. Pepper The Chapter 7 trustee objected to the debtor's claimed exemption in three EdVest college savings accounts. The trustee argued (a) that the debtor had transferred money into the accounts in order to hinder, delay or defraud creditors, (b) that pursuant to the reasoning in Judge Utschig's 2011 decision in In re Bronk, a debtor could not use the Wisconsin exemptions to exempt that debtor's interest in college savings plans, and (c) that rather that exempting the "fair market value" of the accounts, the Court should require the debtor to list a dollar value for the exemption. The parties had submitted briefs on the second issue--the question of whether a debtor could use Wisconsin exemptions to exempt the debtor's interest in college savings accounts--and the Court issued an oral ruling on that issue on February 25, 2013. The Court respectfully disagreed with Judge Utschig's decision in In re Bronk, 444 B.R. 902 (Bankr. W.D. Wis. 2011) (affirmed by Judge Conley on appeal, currently on appeal to the Seventh Circuit). In Bronk, Judge Utschig held that one should read Wis. Stat. section 815.18(3)(p) in conjunction with Wis. Stat. section 16.641(7) and Wis. Stat. section 16.64(8), and that to do so mandated the conclusion that only the beneficiary's interest in a college savings plan could be exempted. The Court in the instant case found that the language of section 815.18(3)(p) clearly allowed a debtor to exempt the debtor's interest in a college savings plan. The Court also found that section 16.641(7) did not conflict with 815.18(3)(p)--rather that negate a debtor's ability to exempt his interest in such a plan, it merely supplemented 815.18(3)(p) by also protected a beneficiary's right to qualified withdrawals from garnishment, attachment, execution or other process of law. The Court further concluded that it was not appropriate to look to the language of section 16.64(8)--protection monies deposited in and a beneficiary's interest in tuition and expense programs when interpreting 815.18(3)(p), because 815.18(3)(p) did not incorporate that statute by reference, and the two types of plans--college savings plans and tuition and expense programs--were different in purpose and structure. Accordingly, the Court overruled the trustee's objection to the debtor's claim of exemption to the extent that that objection was based on the In re Bronk reasoning, and held that a debtor could exempt his own interest in EdVest accounts. The Court scheduled a further hearing date on the other grounds stated in the trustee's objection. Rinaldi v. HSBC Bank USA, N.A. (In re Rinaldi), 487 B.R. 516 (February 2013) -- Judge S.V. Kelley Court dismissed Debtors' challenges to mortgage note and mortgage that had been transferred to securitized trust based on Wisconsin law concerning endorsement of negotiable instruments and also denied Debtors' RICO, FDCPA and common law fraud claims. The Decision discusses the procedure for deciding an adversary proceeding that involves core and non-core claims as well as the Rooker Feldman doctrine. 12-25938, Grisham (February 2013) -- Judge P. Pepper "Chapter 13 debtor had made a series of payments to her uncle during the year prior to filing her bankruptcy petition. The trustee objected to confirmation of the debtor's plan, arguing that it failed the liquidation analysis because if the case were a Chapter 7, the trustee would be able to recover those payments as preferences and distribute them to creditors. At the evidentiary hearing, the debtor conceded that she'd made the payments during the preference period, but argued that they were subject to the ordinary-course-of-business defense under section 547(c)(2). She argued that she had taken three loans from her uncle over a ten-year period, and had repaid each with interest by having regular payments deducted from each of her paychecks. She argued that it was her ordinary course of business to borrow money from her uncle and to pay it back in this way. The trustee argued that a personal loan could not fall under the ordinary-course defense. The debtor responded that in cases such as In re Jackson, 90 B.R. 793 (Bankr. D.S.C. 1988); In re Gawronski, 411 B.R. 139 (Bankr. W.D.N.Y. 2009); and In re Eckman, 447 B.R. 546 (Bankr. N.D. Ohio 2010), courts had left open the possibility that repayment of a personal, family loan could be subject to the ordinary-course defense, although it would be very difficult for the debtor or the creditor to prove the defense. The Court found that, in this case, while the debtor may have presented evidence that it was in her ordinary course of financial affairs to borrow money from her uncle and repay it through wage deductions, she had not presented any evidence that it was in her uncle's ordinary course to make such loans, and that section 547(c)(2) required the debt to be incurred in the ordinary course of the financial affairs of both the debtor and the transferee. The Court nonetheless acknowledged that the cases the debtor had cited indicated that there could exist a set of facts which would make the ordinary course defense applicable to repayments of a personal, family loan." Fischer v. Bank of America, N.A. (In re Fischer), 483 B.R. 877 (December 2012) -- Judge S.V. Kelley Based on Rooker-Feldman doctrine and doctrine of claim preclusion, Chapter 13 Debtors' attempt to strip mortgage lien denied when state court previously determined that mortgage was in first position. |