Above-median-income Chapter 13 debtors cannot subtract from their current monthly income secured debt payments for collateral they intend to surrender when calculating their projected disposal income.
In Re Smith, 07-30540. (Bankr.S.D. Il June, 2008) (January 2008) -- Judge P. Pepper
The debtor purchased a vehicle within 910 days of filing her Chapter 13 petition. The financing for this purchase included funds loaned to pay taxes, administrative fees, service fees, gap insurance, a service contract and the negative equity on the debtor's trade-in vehicle. The Court held that the fact that the debtor's obligation to the creditor included these components did not deprive the creditor of its purchase money security interest in the collateral, and therefore that, pursuant to the hanging paragraph of 11 U.S.C. section 1325(a), the debtor could not cram down the creditor's interest.
In Re Lackowski, 08-21496 (January 2008) -- Judge P. Pepper
Pursuant to the Wisconsin exemption statutes, debtor who lives part-time in rented apartment in Milwaukee and part-time in a mobile home she owns in Adams County can claim the homestead exemption for the Adams County property. She can do so in spite of the fact that all of the evidence presented at the evidentiary hearing on the matter indicated that the debtor considered the Milwaukee County apartment her legal residence. The Court found that the debtor "occupied" the Adams County residence for the purpose of the exemption, albeit on a part-time basis.
In Re Action Transit, 07-27904 (January 2008) -- Judge P. Pepper
Contract between debtor-in-possession and creditor was not a true lease, but was a security interest as defined in Wis. Stat. section 401.201(37), and therefore the debtor was not required to pay the creditor according to the terms of the contract. Rather, it could make adequate protection payments sufficient to protect the creditor's interest in the collateral.
In Re Stoltz, 07-22864 (October 2007) -- Judge P. Pepper
Chapter 13 plan which relied on the language of the Eastern District model plan could not be confirmed in the face of objections that it did not clearly direct the trustee to distribute the amount listed in the creditor's proof of claim rather than the amount listed in the plan, and that it did not clearly indicate when the debtors intended the property of the estate to revest in the debtors.
Fritz v. USA Funding Corp. and GMAC Mortgage Corp., 06-2085. (BR case 05-45778) (October 2007) -- Judge P. Pepper
The Court dismissed the plaintiffs'/debtors' Truth-in-Lending Act claims against defendant GMAC Mortgage Corp. in their entirety, and dismissed the plaintiffs'/debtors' TILA claims against defendant USA Funding Corp. in part, because (1) some claims were barred by the Rooker-Feldman doctrine, (2) others were barred by the doctrine of claim preclusion, and (3) still others failed to state a claim upon which relief could be granted. The only claims to survive the motions to dismiss were the plaintiffs'/debtors' claims for declaratory judgment and damages against USA Funding Corp. for alleged violations to TILA.
In Re Davis 07-24688 (September 2007) -- Judge P. Pepper
In a case in which the debtors' plan proposed to pay 100% to the unsecured creditors, the court overruled the Chapter 13 trustee's objection to the debtors' proposal to pay the consenting secured auto lender's claim outside the plan.
In Re Kirsch 07-20338 (August 2007) -- Judge P. Pepper
Contested Chapter 13 plan which was silent as to treatment of tax refunds in a case where below-median-income debtor listed the refund as income on Schedule I and utilized it for expenses on Schedule J could not be confirmed, because it violated the disposable income requirement of 11 U.S.C. 1325(b).
In Re Kiedrowski 06-24318 (August 2007) -- Judge P. Pepper
The district court's decision in In re Ross-Tousey effectively overrules this Court's decision in In re Sawdy, and therefore Chapter 13 debtors may deduct the vehicle ownership expense on their Form B22C only if they have a note or loan payment, and not if they own a vehicle outright.
In Re Walls 06-21228 (April 2007) -- Judge P. Pepper
The appropriate way for a below-median-income debtor to secure for her own needs the entirety of any tax refund she may receive over the life of the Chapter 13 plan is not by writing such a provision in the plan. Rather, it is by asking the trustee, and if necessary the Court, to allow her to keep the refund for any particular year based on her need to retain for her support and maintenance.