OpinionsThe debtor filed a Chapter 13 case and subsequently converted that case to Chapter 7, wherein she received a discharge . More than two years but less than four years later, the debtor filed a new Chapter 13 case. The court ruled that the four-year waiting period contained within 11 U.S.C. § 1328(f)(1) was applicable to this fact pattern (rather than the two-year waiting period contained within 11 U.S.C. § 1328(f)(2)). Accordingly, the court found that the debtor was ineligible to receive a discharge in the present bankruptcy case because four years had not elapsed since the filing of her prior bankruptcy case. 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. In re Brad & Leanna Westenberg, Case No. 03-21749 Published: In re Westenberg, 365 B.R. 895 (March 2007) -- Judge M.D. McGarity Following completion of the chapter 13 debtors' payments under their confirmed plan, the trustee moved to dismiss, on the ground that secured creditors had not been paid in full and the debtors could not feasibly satisfy the secured debts within the maximum five-year term. The court denied the motion, finding the debtors were entitled to a discharge under the confirmed plan, even though secured claims had not been paid in full, because creditors received adequate notice of their rights under the plan and plan clearly spelled out the longer amortization periods of the secured claims. In re Stimac, 366 B.R. 889 (March 2007) -- Judge S.V. Kelley For purposes of Form B22C, above-median debtors may deduct expenses for both their "basic home telephone service" (Line 25A) as well as cell phones and other telecommunications expenses (Line 37), as long as these other expenses are necessary for the health and welfare of the debtor or for the production of income. With respect to the Line 30 deduction for taxes, an above-median debtor may simply deduct the amount withheld from the debtor's paycheck as long as the debtor dedicates 50% of any tax refunds to the plan. If the debtor chooses not to dedicate 50% of the tax refunds, the correct Line 30 tax deduction will be presumed to be the amount actually paid in taxes as evidenced by the most recent tax return filed. The debtor may rebut this presumption by showing that the taxes paid in the most recent year would constitute an inaccurate deduction due to a change in circumstances; the trustee will then have the opportunity to challenge the accuracy or reasonableness of the debtor's calculations. In re Cline, No. 06-25495-svk (March 2007) -- Judge S.V. Kelley In Chapter 7 Cases, the U.S. Trustee must file his statement of presumed abuse under § 704(b) within 10 days of the first date set for the meeting of creditors rather than the conclusion of the meeting of creditors. Although Bankruptcy Rule 9006 does not permit extension of this deadline, the Court may use its power under § 105(a) to extend the deadline if it appears that the debtor is attempting to abuse the bankruptcy process. In re Richard S. Radbil, Case No. 04-25643, Virginia E. George, Trustee v. Argent Mortgage Co., et al., Adv. No. 05-2311 Published: In re Radbil, 364 B.R. 355 (February 2007) -- Judge M.D. McGarity Chapter 7 trustee filed an adversary proceeding to avoid a mortgage lien. The court denied the trustee's motion for partial summary judgment; issue of fact remained regarding whether or not perfection of secured interest was substantially contemporaneous with execution of mortgage. In re Snezana & Boban Ljubic, Case No. 03-32636, Virginia E. George, Trustee v. Guaranty Mortgage Co., Adv. No. 04-2213 Published: In re Ljubic, 362 B.R. 914 (February 2007) -- Judge M.D. McGarity Chapter 7 trustee brought an adversary proceeding to avoid a mortgage lien. The court denied the trustee's motion for summary judgment; because no bona fide purchaser could have acquired a lien superior to the secured creditor, the perfection of the mortgage was not a preferential transfer. In Re Sawdy 06-25130 (February 2007) -- Judge P. Pepper Chapter 13 debtors are entitled to deduct the IRS Local Standard expense for vehicle ownership from their Form B22C even if they own their vehicles outright and do not actually make note or lease payments each month. In re Gilbertson, 340 B.R. 618, vacated by 2007 WL 433096 (February 2007) -- Judge S.V. Kelley Compensation for professionals retained under § 328 cannot be reviewed for reasonableness. In Re Scofield, 07-22127 (January 2007) -- Judge P. Pepper Debtors who convert from a case under Chapter 13 to a case under Chapter 7 are required to file a Form B22A upon conversion. |