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) -- Chief 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.
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.
Schouten v. Jakubiak (In re Jakubiak), Adv. Proc. No. 16-2141 (October 2018) -- Chief 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) -- Chief 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 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.
In re Justin Daniel Paul Camacho, Case No. 18-27653 (September 2018) -- Chief 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.
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.
In re Salinas, Case No. 18-25509 (August 2018) -- Chief Judge G.M. Halfenger
The debtor failed to file payment advices before the expiration of the 45-day deadline set by 11 U.S.C. §521(i). The court issued an order to show cause why the debtor's case was not automatically dismissed on the 46th day for failing to file payment advices. The debtor thereafter filed payment advices. The court entered an order stating that the case was automatically dismissed on the 46th day. The debtor filed a motion to reconsider the dismissal order and provided a detailed explanation of the reasons for the failure to timely file her payment advices. The court denied the debtor's motion to reconsider because the case terminated by operation of law on the 46th day once the payment advices were not timely filed. The court reasoned that §521(i) does not afford any discretion to reinstate the case after it was automatically dismissed by statute.
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).