You are here

Opinions


    In re Lewis, Case. No. 18-26550-BEH, 2022 WL 7171238 (October 2022) -- Judge B.E. Hanan
    The Chapter 13 debtor sought to amend two prior court orders: (1) the order confirming his most recent Chapter 13 plan—which provided for a plan payment period of 84 months, under now-expired 11 U.S.C. section 1329(d)—and (2) a “doomsday” order requiring him to make timely plan payments to the trustee for six months. The debtor sought to amend the prior confirmation order to change the amount of his required plan payments for a several-month period, and also sought relief from the doomsday order by asking that the trustee’s ability to seek immediate dismissal of his case be predicated on whether he made payments under his proposed revised payment schedule, rather than the payment schedule imposed by his confirmed plan.

    Although the debtor avoided describing his first request as a plan modification under 11 U.S.C. section 1329, the Court considered that the substance of the relief sought appeared to qualify as a modification of the type described in section 1329(a). To the extent the debtor's request to amend the confirmation order was the equivalent of a plan modification, it would result in a plan payment period exceeding 60 months, in contravention of the plain language of 11 U.S.C. § 1329(c), and could not be granted. Alternately, if the debtor’s request to amend the confirmation order were viewed solely as a motion for relief under Civil Rule of Federal Procedure 60(b)(1) or (6), it did not establish excusable neglect or any extraordinary circumstances sufficient to warrant relief from a final order. As for the debtor's companion request for relief from the prior “doomsday” order, the Court found that the moving papers appeared to state a basis for relief, but held its ruling an abeyance to allow the debtor an opportunity to supply evidence—rather than counsel argument—to convince the court that there was a compelling reason to reconsider its prior non-final order.


    In re Nelson, Case No. 19-24458-beh, and In re Ramos, Case No. 20-21169-beh, 2022 WL 6795096 (on appeal) (October 2022) -- Judge B.E. Hanan
    Chapter 13 debtors who previously extended their plan payment periods beyond 60 months under now-expired 11 U.S.C. section 1329(d) could not modify another aspect of their plans (such as the amount of plan payments) while retaining the extended payment period. Under the plain language of 11 U.S.C. section 1329(c), a court cannot confirm a plan that expressly provides for payments over a period that exceeds 60 months.


    In re Peete, Case No. 21-23863-beh, 642 B.R. 299 (June 2022) -- Judge B.E. Hanan
    The City of Milwaukee filed an amended proof of claim and an objection to confirmation of the debtor’s Chapter 13 plan. The City asserted that special charges included on the debtor’s tax bill were entitled to priority status under 11 U.S.C. sec. 507(a)(8)(B), as property taxes. The special charges were for past due water/sewer bills, health hazard abatement and related services. The debtor objected to the amended claim, arguing that because the special charges reflected the City’s attempt to recoup monies for specific services, and were not collected for the general benefit of the public, they were not taxes and should be treated like other general unsecured claims. Seventh Circuit caselaw directs courts to undertake a functional analysis and consider the purpose of each charge in determining whether such charge is a tax or a fee. Generally, if a charge levied by a taxing authority is designed to generate public revenue, it is a tax; if the charge is designed to punish or to compensate for specific services, it is not a tax. The City submitted multiple affidavits but none of them explained the nature or purpose of the underlying special charges imposed, and consequently the City did not meet its burden to establish that those charges were taxes entitled to priority treatment. The City’s proof of claim also asserted that interest and penalties on the unpaid balance for these special charges were entitled to priority status under 11 U.S.C. sec. 507(a)(8)(B). The City did not offer authority to entitle the penalties to priority status as taxes, and its argument that the penalties were not dischargeable under 11 U.S.C. sec. 523(a)(7) was countermanded by 11 U.S.C. sec. 1328(a). As for the interest charges included on the tax bill, the Court held that to the extent they were attributable to the actual property tax principal owed (and not the special charges), they were entitled to priority status.


    In re Roberts, Case No. 22-20766-beh, 641 B.R. 613 (June 2022) -- Judge B.E. Hanan
    The debtors proposed to pay debts owed to Lebakkens Inc. of Wisconsin, a rent-to-own furniture dealer, in Section 3 of their Chapter 13 plan, the section reserved for secured claims. Lebakkens objected to plan confirmation, arguing that the debts owed it belong in the section of the plan reserved for unexpired leases. Lebakkens reasoned that the rent-to-own agreements did not grant the debtors a secured interest in the property until they had completed payments under the contracts or paid down a significant portion of the balance. The agreements, titled “Rental Agreement[s]with ownership provisions,” stated that Lebakkens would maintain title to the goods and afforded the debtors the monthly option either to return the property or to maintain possession of it in exchange for a payment. Applying Wis. Stat. s. 401.203, the statute distinguishing leases from security interests, as well as caselaw recognizing that a unilateral ability to cancel an obligation is a hallmark of a lease, the Court concluded that the agreements gave the debtors a unilateral right to terminate and thus were leases, not security instruments. Alternatively, using the analysis adopted by some courts which weigh factors beyond the unilateral ability to cancel, the Court likewise concluded that the facts of record demonstrated that the agreements were leases. The Court found that the presence of an option to acquire the goods for a nominal price did not convert the agreements into security instruments, noting that the value of the items is greater than the first “renewal” payment, that Lebakkens is required to maintain and service the property, and the likelihood that the consumer goods have useful lives beyond the duration of the agreements. The debtors’ argument that the Wisconsin Consumer Act, which applies to certain consumer credit transactions, controlled the determination that the agreements are credit sales and not leases, was not persuasive. The Court sustained the objection and required debtors to amend their plan.


    In re Lupton Consulting LLC, Case No. 20-27482-BEH, 638 B.R. 897 (March 2022) -- Judge B.E. Hanan
    After the court denied confirmation of two related debtors’ joint plan of reorganization—finding that it contained impermissible nonconsensual third-party releases and injunctions, was not feasible, and was not proposed in good faith—the debtors voluntarily requested that their cases be dismissed, and the debtors’ law firm filed its final application for fees and costs. The U.S. Trustee objected, asserting that the application should be denied in its entirety because counsel failed to demonstrate that its services were necessary or reasonably likely to provide any benefit to the debtors’ estates. Specifically, the U.S. Trustee argued that counsel should have known that the reorganization would not succeed based on its stated goal of obtaining (nonconsensual) releases of guaranties for the debtors’ principal and other insiders, and that the cases were never intended to benefit the debtors’ estates, or even the debtors, but instead the debtors’ principal. As a secondary argument, the U.S. Trustee objected to discrete billing entries, asserting that they should be disallowed for being vague, containing “block-billing,” and reflecting clerical work. The court overruled the first objection, declining to find that counsel's services in pursuing confirmation were not reasonably likely to benefit the estates at the time they were rendered, or that the debtors’ pursuit of third-party releases for the benefit of its principal came at the expense of the debtors’ estates and their creditors, in part because the debtors obtained consent from several creditors for the releases. The court credited the U.S. Trustee’s second objection in part and disallowed certain discrete billing entries for the reasons described above.


    In re Harris, Case No. 21-26280-beh, 2022 WL 953483 (March 2022) -- Judge B.E. Hanan
    Under a plain reading of 11 U.S.C. § 1322(c)(2), a debtor may bifurcate an undersecured first mortgage on her principal residence that matured prepetition. Section 1322(c)(2) creates an exception to the anti-modification provision of 11 U.S.C. § 1322(b)(2) for “claim[s] secured only by a security interest in real property that is the debtor's principal residence” on which “the last payment on the original payment schedule . . . is due before the date on which the final payment under the plan is due.” For such claims, section 1322(c)(2) allows a debtor’s plan to “provide for the payment of the claim as modified pursuant to section 1325(a)(5)” of the Code—which includes the option of bifurcating the claim into secured and unsecured portions under 11 U.S.C. § 506, and paying the present value of the allowed secured claim while treating the portion of the mortgage that exceeds the value of the home as unsecured. As used in section 1322(c)(2), the verb “modify” is not limited to “payment of the claim,” but instead allows modification of the claim itself.


    In re Syverson, Case No. 21-26184-beh, 638 B.R. 765 (February 2022) -- Judge B.E. Hanan
    The court granted a mortgage creditor’s motion for in rem relief from the automatic stay under 11 U.S.C. § 362(d)(4), based on the debtor’s history of unsuccessful bankruptcy filings and lack of apparent effort to pay or to adequately address her mortgage debt. The debtor had filed six Chapter 13 cases in fewer than six years. All five of her prior cases were dismissed without a confirmed plan, and the fifth was dismissed with a 180-day bar to future bankruptcy filings. During her prior cases, the debtor neglected basic obligations under the Bankruptcy Code--including the duty to timely file her schedules and plan and to attend the § 341 meeting of creditors--and repeatedly failed to comply with court orders requiring her to timely file amended feasible plans (or successfully participate in mortgage modification mediation) and to resume payments to her mortgage creditor. When she filed her sixth case, the debtor was entering her eighth consecutive year of mortgage default. Based on this record, the court concluded that the debtor’s conduct demonstrated a scheme to delay or hinder the mortgage creditor’s efforts to protect its interest in the property, warranting in rem relief under § 362(d)(4).


    In re Kleynerman, Case No. 18-26659-BEH, 638 B.R. 111 (Bankr. E.D. Wis. 2022), aff’d sub nom. Smith v. Kleynerman, No. 22-CV-162-JPS, 2022 WL 4643007 (E.D. Wis. Sept. 30, 2022) (on appeal). (January 2022) -- Judge B.E. Hanan
    The court granted the debtor’s motion to reopen his case and to avoid a judicial lien where the case had been closed only two months prior and the motion was a response to a recent state court ruling construing a 2018 charging order as outside the reach of a bankruptcy discharge under applicable state law. The court found that the debtor met the criteria to avoid the lien under 11 U.S.C. § 522(f) and the relatively short passage of time did not prejudice the creditor, particularly where the creditor did not dispute the valuation of the asset while the case was open and had not previously asserted its rights under the charging order. To ameliorate potential prejudice, the court ordered the debtor to pay those fees and costs of the creditor attributable to the recent collection effort.


    In re Pagan, Case No. 19-20047-BEH, 638 B.R. 887 (January 2022) -- Judge B.E. Hanan
    The Chapter 13 debtor’s special plan provision in section 8.1 providing that secured creditors would retain their liens until the earlier of payment in full of the secured portion of the creditor’s proof of claim or discharge was ambiguous when compared with the model plan language in section 3.3 mirroring lien retention rights in 11 U.S.C. § 1325(a)(5)(B)(i)(I). Section 3.3 provided that the named car creditor would retain its lien until discharge or the payment of the underlying debt under nonbankruptcy law. The creditor did not object to plan confirmation. After an accident that totaled her car, the debtor proposed a plan modification to keep the balance of the insurance proceeds that exceeded the remainder of her plan payments on this claim. The creditor objected, arguing that it was entitled to retain the lien on the entirety of the proceeds because they were less than the amount the debtor owed on the claim under applicable nonbankruptcy law. The creditor also sought to be paid at the contractual interest rate instead of the lower rate prescribed in the confirmed plan. The court found the special provision language ambiguous and construed it against the drafter. The interest rate language was not ambiguous. Accordingly, the creditor could retain its lien on the entirety of the proceeds during the term of the plan, with the disputed balance held in trust to allow the debtor an opportunity to obtain a discharge and retain the excess proceeds. The creditor’s objection as to the interest rate was overruled.


    In re Randell, Case No. 21-25175-BEH, and In re Sellers, Case No. 21-25284, 638 B.R. 104 (January 2022) -- Judge B.E. Hanan
    On motions for reconsideration of orders sustaining an objection to confirmation and requiring equal monthly payments to a secured creditor, the court did not accept the debtors’ argument that cure-and-maintain mortgage claims paid “within a reasonable time” in accordance with 11 U.S.C. § 1322(b)(5) were exempt from § 1325(a)(5)(B)(iii)(I)’s mandate that property be distributed “in equal monthly payments,” relying in part on Rake v. Wade, 508 U.S. 464 (1993). The fact that the debtors’ plans proposed to pay only prepetition mortgage arrearages through the plans did not alter the conclusion that the enactment of § 1322(e) (which partially abrogated Rake v. Wade) did not remove cure payments from coverage under § 1325(a)(5). The court also reminded that an order denying plan confirmation is not a final, appealable order subject to reconsideration under Fed. R. Civ. P. 60(b) or 59(e), but instead exercised its discretion to reconsider its interlocutory order.