OpinionsPlayer who was injured during prepetition hockey game when he was punched by the chapter 7 debtor in head, face, and nose brought an adversary proceeding for a determination that potential obligations owed him by the debtor were excepted from the discharge. The court granted the player's motion for summary judgment. The debtor's no contest plea to charges of misdemeanor battery and disorderly conduct did not have an issue preclusive effect under Wisconsin law. Nevertheless, the state court's findings in a separate personal injury action about the intentional nature of the debtor's conduct, along with the debtor's statements to his insurer established the willful and malicious nature of the debtor's actions. In re Douglas C. Wilke, Case No. 06-26904 (January 2007) -- Judge M.D. McGarity Because hearing was not held within 30 days of petition date, automatic stay was not extended in debtor's second bankruptcy case. (This decision is a court minute decision, only.) In re Darrin J. Schultz, Case No. 06-24781 Published: In re Schultz, 363 B.R. 902 (January 2007) -- Judge M.D. McGarity Chapter 13 trustee filed an objection to confirmation of the debtor's plan, arguing it did not comply with the equal payment requirement of sec. 1325(a)(5)((B)(iii)(I). The plan provided for monthly payments at the rate due under the mortgage with a balloon payment at the end of the 60-month term. The court overruled the objection because the secured creditor accepted the plan. In re Nockerts, 357 B.R. 497 (December 2006) -- Judge S.V. Kelley "Scheduled as contractually due" for purposes of § 707(b)(2)(A)(iii) means due under the contract between the debtor and secured creditor. The determination is to be made as of the date of the Chapter 7 petition, for purposes of the "presumption of abuse" in § 707(b)(2)(A)(i), and debtor's intent not to reaffirm is not relevant, as long as debtor is contractually obligated to make the payments on the date of the petition. For purposes of § 707(b)(3), more than the ability to pay some of the debt in a chapter 13 plan is needed to show an abuse under the "totality of the circumstances" test. In re Art Unlimited, Case No. 02-23992, Neil McKloskey, Trustee v. Galva Foundry Co., et al., Adversary No. 04-2098 Published: In re Art Unlimited, LLC, 356 B.R. 700 (December 2006) -- Judge M.D. McGarity Chapter 7 trustee brought an adversary proceeding to set aside alleged fraudulent transfers. The debtor's principal was found liable for avoided transfer, but bank that structured the complex prepetition sales transaction was not. In re McCormick, 2006 WL 3499226 (December 2006) -- Judge S.V. Kelley Till applies to 910 claims, and interest needs to be paid on such claims. In this case, given the very low risk of default, no additional interest was required to be added to the prime rate. In re Grunert, 353 B.R. 591 (November 2006) -- Judge S.V. Kelley Above-median debtors could take Local Standard expense deduction for vehicle ownership/lease expense, even though they owned their vehicle free and clear of liens. In re Turkowitch, 355 B.R. 120 (November 2006) -- Judge S.V. Kelley Surrender of collateral in complete satisfaction of 910-car creditor's claim is permitted by hanging paragraph of § 1325(a). Case -v- Wells Fargo Bank, NA (In re Case), Johnson -v- US Bank Nat’l Ass’n (In re Johnson), Herrera -v- JPMorgan Chase Bank (In re Herrera), Oven -v- Universal Savings Bank (In re Oven), Newsom -v- Bank of America Corp. (In re Newsom), Jendusa -v- No (October 2006) -- Judge J.E. Shapiro Chapter 13 debtor-mortgagors sued defendant-mortgagees for violating 11 U.S.C. § 1322(e) by wrongfully receiving interest-on-interest on their claims. The debtor-mortgagors sought disgorgement of the wrongfully paid interest-on-interest pursuant to 11 U.S.C. §§ 502(j) and 1322(e), and claimed abuse of process under 11 U.S.C. § 105(a). The court found that plaintiffs had standing to pursue this action on behalf of the Chapter 13 estate pursuant to Bankruptcy Rule 6009. Nonetheless, the court dismissed these actions, finding that the actions were procedurally deficient. The court reasoned that the parties were required to invoke Bankruptcy Rule 3008 and proceed by means of a motion to reconsider and only if then successful seek further relief. *Note- reversed and remanded. Maxwell, Trustee -v- Michigan Fidelity Acceptance Corp. (In re Maestas) (October 2006) -- Judge J.E. Shapiro The trustee successfully avoided the defendant's mortgage and preserved it for the benefit of the estate pursuant to 11 U.S.C. §§ 547 and 551. The trustee then brought a second action to recover a money judgment on the avoided transfer pursuant to 11 U.S.C. § 550. The court found that even though res judicata appeared to bar the second action, the "statutory scheme" exception to res judicata was applicable and allowed the trustee to bring a separate action to recover the value of the avoided transfer under 11 U.S.C. § 550. Consequently, the court found that the second action was properly brought and denied the defendant's motion to dismiss or, in the alternative, for judgment on the pleadings. |