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Opinions


    In Re Kinnee, 06-21356 (May 2006) -- Judge P. Pepper
    Debtors whose debt is primarily business debt, rather than consumer debt, are not required to file Form B22A (the means test calculations). For a debtor to have debt that is "primarily" business debt, the business debt must comprise more than 50% of the overall debt.

    In Re Adams, 06-20190 (April 2006) -- Judge P. Pepper
    It was inappropriate for a bank to require a debtor to execute a reaffirmation agreement as a condition of re-activating her credit card, when debtor did not owe a debt to the bank and the bank did not hold a claim in the bankruptcy.

    In Re Berntsen, 06-20644 (April 2006) -- Judge P. Pepper
    Section 362(d)(4) of BAPCPA provides that in cases where the court finds that the debtor filed the petition as part of a scheme to hinder, delay or defraud creditors by multiple bankruptcy filings involving real property, if the order lifting the stay on the real property is recorded in compliance with state laws governing notices of interest or liens on real property, the order lifting the stay runs with the property and remains in effect as to anyone who files bankruptcy regarding that property for a period of two years after the date of the order, unless the subsequent filer can demonstrate a change in circumstances or good cause.

    In Re Perkins, 05-45816 (March 2006) -- Judge P. Pepper
    Section 1325(a) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 does not abrogate the Supreme Court's holding in Till v. SCS Credit Corporation as it relates to vehicles purchased for the debtor's personal use within 910 days of the bankruptcy filing. The 'hanging paragraph' of section 1325(a) does away with the practice of bifurcating claims into secured and unsecured portions; it does not alter the Till rate on post-petition interest.

    In Re French, 06-20066 (March 2006) -- Judge P. Pepper
    The trustee withheld recommending confirmation until such time as the debtor could file her 2005 tax returns, relaying on section 1308 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. That section requires debtors to file the tax returns for the four years preceding the filing of the petition before confirmation can be recommended. The debtor argued that, because her 2005 return was not yet due under applicable tax law, she was not required to file it, and therefore the trustee was unreasonably delaying its discharge recommendation. The Court held that the trustee correctly delayed recommending confirmation until the 2005 return could be filed--the statue envisions and allows for just such a delay in cases where a debtor files for bankruptcy in the first 3 1/2 months of the year, before the previous year's returns are due.

    In Re Farchmin, 05-45947 (February 2006) -- Judge P. Pepper
    In most cases, it is not necessary or appropriate to move the court to extend the time for filing tax returns under section 521 of BAPCPA. Section 521(e) requires certain tax returns to be provided to the trustee, and therefore the trustee is the person to whom requests to extend time should be addressed. Section 521(f) requires tax returns to be filed with the court only if the court, the U.S. Trustee, or a party in interests requests that they be filed. If such a request has been made by the U.S. Trustee or a party, debtors seeking an extension should confer with the party requesting the filing, and should indicate in the motion whether that party agrees to the extension of time.

    In Re Gray, No. 05-45793 (January 2006) -- Judge P. Pepper
    A debtor for whom the automatic stay terminates after 30 days under section 362(c)(3)(A) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 because she had a previous filing dismissed within the year preceding the current petition may seek to have the stay re-imposed under section 362(c)(4)(B), if her request is filed within 30 days of the date of the current petition, she provides adequate notice to the appropriate creditors, and she rebuts the presumption that the current filing was made in bad faith.

    In Re Berntsen, 05-45950 (January 2006) -- Judge P. Pepper
    Section 362(j) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 mandates that, upon the request of a party, the court shall issue a comfort order indicating that the 30-day stay has terminated in cases governed by section 362(c)(3) of the Act.

    In Re Harvey, 05-44655; In Re Ramirez, 05-44654; In Re Martin, 05-44653; In Re Stelmack, 05-44652; In Re Green, 05-44651; and, In Re Johnson, 05-44650 (December 2005) -- Judge P. Pepper
    Debtors' cases were filed electronically. They were not received by the clerk's office until the early minutes of October 17, 2005--the date the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was implemented. Debtors argued that the matters would have been filed on October 16--under the Bankruptcy Code--but for a problem with the Court's CM/ECF system. The Court held that documents submitted electronically are not "filed" until they are received by the clerk's office and the clerk's office issues a Notice of Filing. The Court further found that there was insufficient evidence to demonstrate a problem with the CM/ECF system. Accordingly, the Court denied the debtors' request to find that their cases were filed under the Bankruptcy Code.

    In Re Reed, 05-45739 (November 2005) -- Judge P. Pepper
    Debtors who request a "waiver" of the BAPCPA requirement of pre-filing credit briefing must both describe exigent circumstances and indicate that they tried to get the briefing but couldn't do so within five days of their request. Even when they meet both of these requirements, debtors do not receive a "waiver" of the credit briefing requirement, but must obtain a credit briefing within 30 days of the date of filing, with a possible 15-day extension for cause.