OpinionsThe debtor objected to a creditor’s partially secured claim, arguing that the claim should be disallowed in its entirety because it lacked evidence of (1) the transfer from the original claim-holder to the current claimant, and (2) the creditor’s security interest (which, in substance, was actually an assertion that the claim lacked evidence of perfection). The court rejected the debtor’s arguments, noting that Rule 3001 does not require proof of a prepetition transfer of a claim and, even if it did, lack of such evidence is not a basis for disallowance under 11 U.S.C. § 502(b). The debtor did not dispute that she owed the debt, but rather listed both the claimant and the debt (as uncontested and unsecured) on her schedules. In addition, the debtor’s challenge to the secured portion of the claim was really an implied argument that the security interest was not perfected and therefore avoidable under the trustee’s strong-arm powers of § 544(a). This allegation was supported by an affidavit from the debtor’s attorney, not from the debtor or someone with personal knowledge of the relevant facts as required by Local Rule 3007(b), and was insufficient to establish a basis for disallowance. Robert 100, LLC v. Draper (In re Draper), Case No. 17-26352-beh, Adv. No. 17-2296-beh, 2018 WL 6252865 (November 2018) -- Judge B.E. Hanan The plaintiff, a commercial property lessor, brought an adversary proceeding alleging that it relied upon a false financial statement signed by the defendant/debtor when it agreed to lease restaurant premises to the debtor’s and his son’s limited liability company, and therefore the $40,817 debt stemming from the breached lease was nondischargeable under 11 U.S.C. § 523(a)(2)(B). Both parties agreed that the financial statement at issue was false, but the debtor denied that he signed either the financial statement or the lease, testifying that his son, who bears the same name, signed both without his knowledge. After trial, the Court determined that: (i) the debtor did not make a statement in writing, because the signature on the financial statement was not his and he did not present the statement to the plaintiff; (ii) the statement at issue was a statement respecting the debtor's or an insider's financial condition; (iii) the plaintiff actually and reasonably relied on the financial statement; and (iv) the plaintiff failed to establish that the debtor caused the written statement to be made or published with intent to deceive, because he did not make the statement and did not intend to deceive. The Court found in favor of the defendant. In re Kolchinsky, Case No. 17-30872-beh, 2018 WL 5779861 (November 2018) -- Judge B.E. Hanan In response to the Chapter 13 debtor’s Schedule I disclosure that she is unemployed and her only source of income is a $2,000 monthly contribution from her elderly mother, the Court issued an order requiring the debtor to show cause why her case should not be dismissed for ineligibility under 11 U.S.C. § 109(e), which limits debt relief to “individual[s] with regular income.” The Bankruptcy Code does not define “income” but does define an “individual with regular income” as one “whose income is sufficiently stable and regular to enable such individual to make payments under a plan under chapter 13.” Courts have recognized that whether nontraditional sources of income, such as family contributions, create chapter 13 eligibility depends on a matter’s particular facts and circumstances. Although purely gratuitous contributions generally do not qualify as regular income, other considerations may result in a different outcome. Here, the Court found that because the debtor and her mother have shared a household for the preceding eight years and appear to provide mutual support (the debtor’s mother is a widow and the debtor is a disabled, divorced mother with sons living at home), the debtor’s mother has a substantial interest in the debtor's successful completion of her plan, and the contribution is thus consistent and stable enough to qualify the debtor as an “individual with regular income” under § 109(e). CoVantage Credit Union v Stangel (In re Stangel), Adv. No. 17-2132, Case No. 17-20394, 593 B.R. 607 (October 2018) -- Judge B.E. Hanan The court granted the creditor’s motion for default judgment against the debtor for her alleged fraudulent tender of NSF checks, concluding that the creditor had made a prima facie case of “actual fraud” under § 523(a)(2)(A), based on circumstantial evidence that the debtor did not intend to repay the debt when she incurred it. Relevant evidence included the debtor’s retention of bankruptcy counsel before issuing the bad checks, the large amount of the checks in relation to her income at the time, the issuance and cashing of four separate checks in less than 30 hours, and the fact that the checks were issued from a checking account that had been closed for over three months. As to the state law question of the appropriate amount of damages to award under Wis. Stat. § 895.446, the court rejected the creditor’s argument that the statute mandated an award of exemplary damages, recited factors Wisconsin courts consider in determining whether to exercise discretion in awarding exemplary damages, and concluded that exemplary damages were not warranted. In re CF Beef & Grain, LLC, Case No. 18-20898, 590 B.R. 849 (September 2018) -- Judge B.E. Hanan After multiple creditors and the Chapter 12 trustee objected, the court denied confirmation of the debtor’s amended chapter 12 plan, due to lack of feasibility and failure to meet the best-interests test. The court found that the debtor’s cash flow projections were not reasonably possible because they appeared to understate expenses and overstate revenue; the plan did not take into account the possible loss of farmland (and attendant outbuildings) owned by the debtor’s individual members, which was in foreclosure at the time, and would mean the inability to earn any income from grain drying and storing and a reduction in the debtor’s crop acreage by almost a third; and, most significantly, the plan’s success hinged on significant “cash infusions” from another LLC owned by the same individual members, which would be possible only if the other LLC continued to default on its own loan to the debtor’s main secured creditor. In addition, the debtor’s liquidation analysis used excessive discount rates and miscalculated the required secured debt payment in a hypothetical liquidation, and the plan lacked clarity about the precise amount to be paid to unsecured creditors; based on the record, the court could not conclude that the debtor had proven the plan met the best-interests test. Because it appeared the debtor would be unable to propose a confirmable plan in the circumstances, the court granted the requests of both the trustee and an unsecured creditor to dismiss the case. Pansier et al v. State of Wisconsin et al (In re Pansier), Adv. No. 18-2129, Case No. 18-22297-beh, 2018 WL 4191851 (August 2018) -- Judge B.E. Hanan The court denied the pro se debtors’ motion for leave to amend their adversary complaint to add the U.S. Trustee as a defendant and seek an injunction barring the U.S. Trustee from investigating the debtors’ interest in property listed on their current bankruptcy schedules via a previously approved Rule 2004 examination or subsequent investigation of the debtors’ property interests. The debtors claimed that res judicata and collateral estoppel applied because they had listed the property in their prior bankruptcy cases such that receiving discharges in one or more of those cases resulted in a final determination that they had no ownership interest in the property. The court denied leave because the amendment would be futile, res judicata and collateral estoppel did not apply, and the debtors could not use a complaint for injunctive relief against the U.S. Trustee to circumvent their obligation to provide full and accurate disclosures in the present bankruptcy case. Wisconsin Mutual Insurance Company v. Cross (In re Cross), Adv. No. 17-02153, Case No. 17-20977-beh, 2018 WL 3965191 (August 2018) -- Judge B.E. Hanan The court granted the creditor’s motion for default judgment against the debtor, concluding that the creditor made a prima facie showing of a nondischargable debt under 11 U.S.C. section 523(a)(9), based on a police report (portions of which were considered under Federal Rule of Evidence 803(8)(c)) and a court record evidencing debtor’s guilty plea to the charge of operating while intoxicated (of which the court took judicial notice). Gorokhovsky v. Ocheretner (In re Gorokhovsky), Adv. No. 17-2360 (July 2018) -- Judge B.E. Hanan The debtor moved for sanctions against his ex-wife and her family law attorney for allegedly violating the automatic stay by filing a state court motion for contempt based on the debtor’s failure to pay “section 71” payments incurred in the parties’ prepetition divorce. The court denied the motion, first noting—without deciding—that the action may have been excepted from the automatic stay under § 362(b)(2)(B) as an attempt to collect a domestic support obligation from non-estate property, and that the debtor had failed to demonstrate any compensable injury from the action, precluding an award of damages. Doss v. Norhardt Crossing Condominium Association (In re Doss), Adv. No. 18-2091 (June 2018) -- Judge B.E. Hanan The court rejected the debtor's argument that statutory liens become avoidable judicial liens after the holder obtains a foreclosure judgment, dismissing the adversary complaint against the debtor's condominium association on summary judgment. The court also ruled that the statutory lien was not avoidable under sec. 506(d), regardless of whether it was "consensual" or "nonconsensual," and that sec. 523(a)(16) applies to discharge of personal liability, not liens. In re Hicks, Case No. 17-2800 (June 2018) -- Judge B.E. Hanan The chapter 13 trustee objected to the debtor’s motion to modify a confirmed plan on the basis that its “plan shortening” language operated as a retroactive forgiveness of missed plan payments (and would, essentially, allow for less than 36 months’ worth of plan payments). The court overruled the objection, noting that the disposable income and “applicable commitment period” requirements of § 1325(b) do not apply to modifications under § 1329, but good faith considerations remain applicable. |