OpinionsThe Chapter 13 trustee objected to the debtor's amended plan, specifically the provision for direct payments to Freedom Mortgage Corporation. Disbursement by the trustee, however, is not mandatory. 11 U.S.C. §§ 1322(a) and 1326(c) do not prohibit direct payments. Rather, the Court may exercise its discretion to require payment via trustee disbursement. Matter of Aberegg, 961 F.2d 1307, 1308 (7th Cir. 1992). In determining whether to confirm a plan providing for debtor-direct payments, courts have devised several factors by which to apply their discretion. In re Perez, 339 B.R. 385, 409 (Bankr. S.D. Tex. 2006), aff'd sub nom., Perez v. Peake, 373 B.R. 468 (S.D. Tex. 2007). After considering the Perez factors relevant to this debtor's history and proposed amended plan—such as the debtor's reason for filing the case, whether it is a consumer loan, the number of payments to be made, and whether the trustee's ability to perform her duties will be hindered—the Court held that disbursement of payments by the trustee to Freedom Mortgage offered a greater likelihood of achieving the debtor's goals for her Chapter 13 plan. In re Teclaw, Case No. 22-24591-beh, __ B.R. __, 2023 WL 3331553 (May 2023) -- Judge B.E. Hanan The individual chapter 13 debtor scheduled an interest in several LLCs, two of which owned commercial buildings with mortgage debt owed to Summit Credit Union. Summit filed a motion for relief from the co-debtor stay under § 1301(a)(1), arguing the stay did not apply to the LLCs because they were not individual debts. Alternatively, Summit asked for adequate protection. The debtor conceded the co-debtor stay did not extend to his LLCs, but asked the Court to invoke its equitable powers under § 105(a) to find that the automatic stay of § 362(a) was in effect, arguing there were unique circumstances. The Court agreed that the co-debtor stay did not apply to the LLCs, as the debts were not incurred for a household purpose as defined in § 101(8), and LLCs are routinely distinguished from individuals, as discussed in Consol. Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147 (N.D. Ill. 1992) and In re McCormick. 381 B.R. 594, 598 (Bankr. S.D.N.Y. 2008). The Court declined to exercise its equitable powers to find the automatic stay applied to the LLCs because doing so would create a substantive right that conflicts with another applicable provision of the Bankruptcy Code (§ 1301), citing Law v. Siegel, 571 U.S. 415, 421 (2014). The Court also did not view the debtor’s circumstances as any more unusual than those that plague debtors in similar circumstances, and in any event, the LLCs had the option of filing their own bankruptcy petitions. Charmoli v. Aspen American Insurance Company, Adv. Proc. No. 22-02130 (April 2023) -- Chief Judge G.M. Halfenger The plaintiff-debtor seeks declaratory relief with respect to insurance coverage under several policies issued by the defendant. The defendant moved to dismiss the plaintiff's claims, arguing that there are no disputes of material fact with respect to whether it validly rescinded the policies at issue. The court denied the defendant’s motion because Wisconsin Statutes section 631.11, as applicable here, requires an insurer to "notif[y] the insured . . . of its intention to . . . rescind [a] policy" no later than 60 days after it "acquires knowledge of sufficient facts to constitute grounds for rescission of the policy" and the allegations in the operative complaint allow for the plausible inference to be drawn that the defendant acquired such knowledge more than 60 days before it gave the plaintiff notice of its intention to rescind the policies at issue. SLK Capital, LLC v. Beach et al. (In re Beach), Case No. 21-2103, 2023 WL 2780880 (April 2023) -- Judge B.E. Hanan The state court had entered a judgment in favor of creditor SLK Capital, LLC for $220,948.18 against debtor Brian Beach and his LLC for defaulting on business loans that were issued to Mr. Beach and his restaurant. Mr. Beach had personally guaranteed the loans. As part of the loan application, Mr. Beach had represented to SLK that the real property on which the restaurant operated was not encumbered by any liens or mortgages, the restaurant had no other significant debts, and that he made a capital investment of $160,000 with his cash purchase of the restaurant one year earlier. His mother had given him the cash. Two years later, shortly before his marriage to the joint debtor, Mr. Beach granted a mortgage on the real estate to his mother. After Mr. and Mrs. Beach filed their joint Chapter 7 petition, SLK filed an adversary proceeding under § 523(a)(2)(B), alleging that the debtor made misrepresentations on his SLK loan application, when he should have acknowledged a loan from his mother. After a trial, the court concluded that the debt was dischargeable because SLK had not established that the representation was false or that Mr. Beach intended to deceive the creditor. At the time of the loan application, there were no “hallmarks of a loan” attaching to the funds Mr. Beach’s mother had given him. In re Seymore, Case No. 19-22084 (March 2023) -- Judge R.M. Blise The Court denied a chapter 13 debtor’s motion seeking the release of a secured creditor’s lien on real estate at discharge. The creditor’s claim was secured by real estate other than the debtor’s primary residence, and the debtor’s confirmed plan provided for “cram down” of the claim. Under the plan, the creditor was to be paid $12,500, and the creditor would be required to release its lien at discharge. The plan also provided that a proof of claim must be filed for any creditor to receive a distribution under the plan. Neither the creditor nor the debtor filed a proof of claim, so the creditor received no distribution from the chapter 13 trustee. After the debtor completed plan payments, she argued that the plan compelled release of the lien even though the creditor had received no payment. The Court disagreed. Relying on Seventh Circuit precedent, the Court concluded that secured creditors may ignore a bankruptcy proceeding and look to the lien for satisfaction of the debt. The Court noted that Fed. R. Bankr. P 3004 permits a debtor to file a proof of claim on behalf of a creditor and thereby force the creditor to participate in the chapter 13 plan. The Court declined to interpret the district’s model plan to require release of a lien without any compensation where the debtor had acknowledged that the lien had value at the outset of the case and had not taken action to ensure that the creditor received the value of its lien. Heinrich v. Bagg, No. 18-cv-1308-PP (E.D. Wis. March 24, 2023) (March 2023) -- District Court The district court affirmed the bankruptcy court’s decision that found debts based on state court civil judgment for tortious interference with contract and unlawful harvesting of timber dischargeable. Dubis v. BMO Harris Bank (In re Cruz), Ch. 7 Case No. 21-26297, Adv. No. 22-2030, 2023 Bankr. LEXIS 755 (Bankr. E.D. Wis. March 20, 2023) (March 2023) -- Judge K.M. Perhach The Chapter 7 trustee could avoid a home mortgage recorded within the 90-day preference period as part of a refinancing transaction. The earmarking doctrine did not save the bank from the tardy perfection of the mortgage during the preference period. The doctrine of equitable subrogation also did not provide a defense to the trustee’s preference action. Finally, the court rejected any contention that equity would shield the creditor from preference liability even if the COVID-19 pandemic caused the delay in the recording of the mortgage. In re Java Berry, Case No. 22-22162 (March 2023) -- Chief Judge G.M. Halfenger The debtor's mother, who passed away prepetition, borrowed money and promised to repay it on a non-recourse basis from the sale of her home after her death, a transaction commonly known as a "reverse mortgage." The debtor's mother's probate estate has not been administrated. The debtor, who lived in the home for many years with his mother and continues to reside there, filed a chapter 13 bankruptcy petition and a plan proposing to pay the mortgage creditor an amount equal to the home's value. The mortgage creditor, which timely filed a proof of claim alleging it to be secured in full, objected to confirmation, arguing that the debtor did not have an interest in the property that could be provided for in his chapter 13 plan and that the legal owner of the property could not be determined until his mother's probate estate was administered. The court partially overruled the objection, reserving for an evidentiary hearing the mortgage creditor's contention that the plan understates the property's value. The court concluded that the debtor's plan could, consistent with the plan confirmation requirements of §1325, provide for the creditor's claim against the bankruptcy estate by affording the creditor the value of the property, which is all that the creditor could recover under nonbankruptcy law. Charmoli v. Aspen American Insurance Company, Adv. Proc. No. 22-02130 (March 2023) -- Chief Judge G.M. Halfenger The defendant filed a motion asking the district court to withdraw the reference of this proceeding from the bankruptcy court. The bankruptcy court entered a report and recommendation explaining that, in the interests of judicial economy and fidelity to Congress's division of labor between the district courts and bankruptcy courts with respect to bankruptcy proceedings, the defendant’s motion should be denied as premature and the reference should remain in place through the pre-trial stage or the motion should be granted only to the extent that the reference is withdrawn for the purpose of conducting a trial. In re Rios, No. 22-21161, 649 B.R. 30 (Bankr. E.D. Wis. March 3, 2023) (appeal pending, No. 23-cv-00358-PP) (March 2023) -- Judge K.M. Perhach Chapter 13 debtors proposed to use their Social Security benefits to cover their expenses and make their plan payments. The debtors’ plan proposed to pay the arrears owed on the debtors’ first and second mortgages, a loan secured by a vehicle, a tax claim filed by the Wisconsin Department of Revenue, the trustee’s fees, and the debtors’ attorney’s fees. The debtors’ plan further proposed to pay the IRS’s $31,000 priority claim, but did not propose to pay anything to the IRS on its $220,000 secured claim. The IRS requested that the court modify the automatic stay to allow the United States to levy from the debtors’ combined monthly Social Security payments “to implement its right of setoff and/or to enforce its statutory liens to the extent the Debtors have ‘rights to property’” under 26 U.S.C. § 6321. The court found that the IRS demonstrated an interest in the debtors’ property, a pre-petition federal tax lien on the debtors’ Social Security benefits, and this interest was entitled to adequate protection. Because the debtors did not propose adequate protection of the IRS’s interest in that property, the court held that the IRS was entitled to relief from the automatic stay. The court modified the stay to permit the IRS to enforce its federal tax liens on the debtors’ right to Social Security benefits in accordance with applicable nonbankruptcy law. The debtors have appealed this decision. |