OpinionsChapter 13 debtor-mortgagors sued defendant-mortgagees in seven adversary proceedings, which were consolidated, 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). On remand, the court determined that the adversary proceedings were not moot as to those debtors who received discharges. The debtors conceded that § 105 did not create a private right of action, and the court dismissed that count. The court found that none of the equitable defenses of judicial estoppel, waiver, or laches raised by the defendants warranted dismissal. However, the court held that the confirmed plans proposed by the debtors are entitled to res judicata effect pursuant to § 1327(a). The court also held that § 1322(e) is a discretionary provision which did not render the orders confirming the plans in each of the adversary proceedings nugatory. As a result, the court dismissed all of the adversary proceedings. Aff'd on appeal. In Re Kowalewski 06-20774 (October 2006) -- Judge P. Pepper In In re Balcerowski, the Court held that a debtor must subtract his actual tax expense from his Schedule I income to determine projected disposable income for Chapter 13 purposes. In this matter, the Court declines to dictate to the parties the method they should use to determine the actual tax expense. Debtors must make a good-faith effort, under the circumstances of their particular cases, to determine what their actual tax expenses will be. In Re Balcerowski, 06-21695 (October 2006) -- Judge P. Pepper The appropriate expense for the purpose of determining disposable income under section 1325(b)(1)(B) of BAPCPA is for the debtor to estimate, and subtract from his income, the actual tax he will incur, not the amount he has withheld from his wages. The debtor should calculate this actual tax based on his income at the time he filed his petition, and not solely upon his historical, "current monthly income" income figure. In Re Richie, 06-20188 (October 2006) -- Judge P. Pepper A debtor who, at the time of the hearing on the trustee's motion to dismiss, lacks the ability to pay her creditors because she has not engaged in a broad employment search, does not wish to work outside her chosen field, does not wish to work within her chosen field outside of southeastern Wisconsin, and takes this position at the expense of her creditors, "abuses" the provisions of Chapter 7 as that term is used in the new version of section 707(b) promulgated by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. In re John D. Brill & Kimberly M. Quass-Brill, Case No. 06-21600 Published: In re Brill, 350 B.R. 853 (September 2006) -- Judge M.D. McGarity Creditor whose claim was secured by purchase-money security interest in motor vehicle that chapter 13 debtors had acquired for their personal use by debt incurred within 910 days of petition date objected to confirmation of the debtors' plan. The court sustained the objection, finding the Till analysis applied to establish the interest rate on the secured claim at "prime rate plus risk factor" over the life of the plan, even though the original contract provided for 0% interest. In Re Fuller, 06-30313. (Bankr. S.D. Il June 16, 2006) (September 2006) -- Judge P. Pepper In order to determine whether a Chapter 13 debtor is committing all of her "projected disposable income" to a plan under section 1325(b)(1)(B) of BAPCPA, parties must not limit their consideration to Form B22C ("Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income"), but must also consider the income at the time of filing as reflected on Schedule I. In Re Maxwell, 06-21226 (September 2006) -- Judge P. Pepper Under the facts and circumstances of these particular cases, one month after the date the debtors filed their petitions was too soon to conclude that the $2,500 presumptively reasonable fee charged by debtors' counsel was unreasonable. This is partly because one of the factors this Court considers in determining the reasonableness of the presumptively reasonable fee is the range of services counsel provides in exchange for the presumptively reasonable fee, and a month into the matter is too soon to determine whether counsel is providing a comprehensive range of services in exchange for the fee. In Re Baldewicz, 06-21117 (September 2006) -- Judge P. Pepper Under the facts and circumstances of these particular cases, one month after the date the debtors filed their petitions was too soon to conclude that the $2,500 presumptively reasonable fee charged by debtors' counsel was unreasonable. This is partly because one of the factors this Court considers in determining the reasonableness of the presumptively reasonable fee is the range of services counsel provides in exchange for the presumptively reasonable fee, and a month into the matter is too soon to determine whether counsel is providing a comprehensive range of services in exchange for the fee. In re Tina Dawn Hilbelink, Case No. 05-30111, Alma P. Leach v. Debtor, Adv. No. 06-2178 (September 2006) -- Judge M.D. McGarity State court judgment deemed nondischargeable pursuant to s. 523(a)(4) due to issue preclusion. In re FV Steel & Wire, 349 B.R. 181 (September 2006) -- Judge S.V. Kelley Judicial estoppel does not apply to block claim of debtor who had inadvertently neglected to schedule claim and who cured the omission as soon as she learned of it. Also, Trustee had succeeded to claim and was not judicially estopped by debtor's omission. |