The court ordered the debtor to file an amended chapter 13 plan by a stated deadline. The debtor failed to do so. After the deadline expired, debtor's counsel instead used the ECF withdrawal event and added text suggesting that the debtor was withdrawing her most recent pre-confirmation plan amendment because counsel determined that the "original plan was correct". In ordering the debtor to show cause why the court should not deny her the opportunity to file an amended plan and dismiss the case under 11 U.S.C. sec. 1307(c)(5), the court explained that a debtor cannot withdraw a pre-confirmation amendment—what 11 U.S.C. sec. 1323 refers to as a "modification"—because section 1323(b) provides that, once a pre-confirmation modification is filed, "the plan as modified becomes the plan." 11 U.S.C. sec. 1323(b). In order to change the terms of a pre-confirmation modification that has already been filed, the chapter 13 debtor must further amend the plan. The court also observed that the debtor's attempted pre-confirmation withdrawal of the plan amendment did not comply with Local Rule 3015(c)(1), because the debtor did not use the court's local form for pre-confirmation amendments.
In re William Wester and Diana Miletich-Wester, Case No. 17-32315 (November 2018) -- Judge G.M. Halfenger
The City of Kenosha City Treasurer filed a proof of claim two days after the expiration of the deadline for governmental units to file proofs of claim. In response to the trustee's objection, the City argued that it mistakenly calculated the proof of claim deadline as being six months— rather than 180 days—from the petition date, as stated in Federal Rule of Bankruptcy Procedure 3002(c)(1). The City asked the court to allow its claim because the minimal delay was unintentional and not prejudicial to the debtors. Rule 9006(b) does not allow the court to enlarge the time under Rule 3002(c) for filing a proof of claim except as permitted by Rule 3002(c). There was no basis for (further) enlarging the time under Rule 3002(c), and, accordingly, the court sustained the trustee's objection and disallowed the claim in its entirety.
In re Grunewald, Case No. 14-27529 (October 2018) -- Judge G.M. Halfenger
The court closed the debtors' case in August 2015 after granting them a chapter 7 discharge. In September 2018, the former chapter 7 trustee allegedly received a report that the joint debtor expects to receive a payment in settlement of a personal injury claim. Based on that report, the United States trustee moved to reopen the case contending that, because the debtors had not scheduled the personal injury claim, unadministered assets may be available for distribution. The motion's allegations, even if presumed true, do not demonstrate that the joint debtor's personal-injury claim accrued before the debtors filed their bankruptcy petition, and thus do not demonstrate that the claim is property of the bankruptcy estate. As a result, the court reopened the case for the limited purpose of determining whether the personal-injury claim, and thus the proceeds from the settlement of that claim, are property of the bankruptcy estate.
Schonscheck v. Deere & Co., Adv. Proc. No. 18-2027 (October 2018) -- Judge G.M. Halfenger
Plaintiff, a former chapter 12 debtor, is obligated to defendant to repay two loans secured by certain farm collateral. Defendant filed a replevin action in state court in 2009. In January 2010, after defendant moved for default judgment in the state-court replevin action, plaintiff filed a joint chapter 12 case with her spouse. After the bankruptcy case was filed, but before Deere or the state court received notice of it, the state court entered a default judgment and issued a writ of replevin. The court dismissed the plaintiff's chapter 12 case in 2014 and dismissed plaintiff's two subsequent cases in 2016. Defendant then returned to state court to enforce its 2010 judgment. The state court issued a new writ of replevin based on the 2010 judgment, and the defendant seized the collateral based on the new writ. Before the defendant liquidated the collateral, plaintiff filed this adversary proceeding seeking a declaration that the 2010 state-court judgment was void and damages, alleging that the 2010 judgment was void ab initio by operation of 11 U.S.C. §362(a) in the 2010 chapter 12 case. The court annulled the stay and the co-debtor stay, denied the plaintiff's request for actual and punitive damages, and entered summary judgment in favor of defendant.
Schouten v. Jakubiak (In re Jakubiak), Adv. Proc. No. 16-2141 (October 2018) -- Judge G.M. Halfenger
Creditor-plaintiff seeks a declaration that a confirmed FINRA arbitration award against debtor-defendant is excepted from discharge by 11 U.S.C. §523(a)(2), (3), (6), and (19). Both parties seek summary judgment.
The decision grants summary judgment to the debtor-defendant on the §523(a)(2) and (6) claims because the creditor-plaintiff did not timely file an adversary proceeding as required by §523(c).
The decision grants summary judgment to the debtor-defendant on creditor-plaintiff's §523(a)(19) claim because, as a matter of law, the confirmed arbitration award cannot be shown to be "for" a violation of a federal or state securities law.
The decision denies summary judgment to both parties on creditor-plaintiff's §523(a)(3) claim. As to §523(a)(3)(A), the uncontested facts show that (i) the debtor-defendant did not list the creditor-plaintiff or schedule the debt to him in time allow him to file a timely claim under Federal Rule of Bankruptcy Procedure 3002(c), and (ii) the creditor-plaintiff did not have notice or actual knowledge of the bankruptcy in time to meet that deadline. The decision reads the plain language of §523(a)(3)(A) to render the debt excepted from discharge. But the decision construes the controlling case law to allow the debtor-defendant to avoid §523(a)(3)(A)'s discharge exception if (i) the clerk gave notice under Federal Rule of Bankruptcy Procedure 2002(e) that there appeared not to be assets available for distribution, (ii) the debt is a garden-variety debt, and (iii) the equities weigh in favor of discharge. The decision concluded neither party was entitled to summary judgment on whether §523(a)(3)(A) excepts the debt from discharge because there is a genuine dispute over the nature of the debt and the parties' summary judgment filings did not address the equities.
As to §523(a)(3)(B), the decision denies summary judgment to both parties because, although the debtor-defendant failed to list or schedule the creditor-plaintiff's debt in time for the creditor-plaintiff to file an adversary proceeding for a determination of nondischargeability, and the creditor-plaintiff lacked notice or knowledge of the bankruptcy during that time, there are genuine disputed issues of material fact regarding whether the debt is of a kind covered by §523(a)(2) or (6).
The decision also rejects the creditor-plaintiff's arguments that the Rooker-Feldman doctrine afforded him a right to summary judgment, and rejects both parties’ arguments that issue and claim preclusion apply.
In re Huenerberg, Case No. 17-28645 (September 2018) -- Judge G.M. Halfenger
A portion of the Internal Revenue Service's proof of claim arises from an assessment for a shared responsibility payment. That payment is required as a result of the debtors' failure to comply with the Patient Protection and Affordable Care Act’s individual mandate to maintain health insurance. The IRS asserts that the unremitted shared responsibility payment is an excise-tax debt entitled to priority under 11 U.S.C. section 507(a)(8). The debtors objected to the claim, contending that the shared-responsibility-payment debt is not entitled to priority. The court sustained the objection, ruling that the shared responsibility payment is not an excise tax on a transaction as required by section 507(a)(8).
In re Justin Daniel Paul Camacho, Case No. 18-27653 (September 2018) -- Judge G.M. Halfenger
The debtor filed a motion for a temporary waiver of the credit counseling requirement. The court denied the motion and dismissed the case because the debtor failed to meet the requirements for waiver provided in section 109(h) of title 11: that the debtor faced exigent circumstances and attempted to obtain the credit counseling within the seven days before the case was filed but was unable to do so. As a result, the debtor failed to meet the credit-counseling requirement imposed by section 109(h) on individuals desiring to file a bankruptcy case. The debtor's counsel then filed a letter explaining the circumstances that led the debtor to file bankruptcy and requested that the court "reinstate" the case. The court construed the letter as a motion to vacate the dismissal order under Federal Rule of Bankruptcy Procedure 9024. The court denied the motion because, even presuming the truth of the unverified statements in the letter, the debtor did not plausibly suggest that he could establish exigent circumstances or that he attempted to complete credit counseling before he filed his case.
Heinrich v. Bagg, Adv. No. 17-2247 (August 2018) -- Judge B.H. Ludwig
Court found debts based on state court civil judgment for tortious interference with contract and unlawful harvesting of timber dischargeable. Creditor failed to establish at trial that debts were for willful and malicious injury under section 523(a)(6).
In re Bernhard, Case No. 17-27843 (August 2018) -- Judge B.H. Ludwig
Court granted creditor and chapter 13 trustee's motions to dismiss because the debtor's total noncontingent, liquidated unsecured debts exceeded the chapter 13 debt limits. The debtor had scheduled a substantial debt as "unliquidated" because she had several affirmative defenses to it. Nevertheless, since it was readily ascertained by reference to an agreement and through simple mathematics, it was a liquidated debt and counted toward the §109(e) debt limits.
In re Stanley Immel, Case No. 17-22036 (August 2018) -- Judge G.M. Halfenger
Section 522(f)(3)(B) of title 11 provides that if a debtor elects state-law exemptions for implements and tools of the trade under a law of a state that "prohibits avoidance of a consensual lien on property otherwise eligible to be claimed as exempt", then the debtor may not avoid the lien "to the extent the value of such implements . . . [and] tools of the trade . . . exceeds $6,425." Wisconsin law "prohibits avoidance of a consensual lien on property". A debtor electing Wisconsin exemptions can only avoid a lien on implements and tools of the trade up to $6,425.