Harker v. PNC Mortgage Company (In re Oakes)

(6th Cir. B.A.P. Feb. 6, 2018)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s order denying the mortgage holder’s motion for judgment on the pleading in this mortgage avoidance action. The creditor argued that recently-enacted Ohio statutes provide that the bankruptcy trustee, as a hypothetical judicial lien creditor, cannot avoid the mortgage, which was improperly executed and recorded. The B.A.P. holds that, pursuant to Ohio law at the time the case was filed, the trustee takes priority over the creditor’s defective mortgage. Opinion below.

Judge: Opperman

Attorneys for Trustee: Donald F. Harker, III; Rieser & Marx, Dianne F. Marx, John Paul Rieser

Attorneys for Creditor: Plunkett Cooney, Amelia A. Bower

2018-02-06 – in re oakes

Author: Matt Lindblom

In re Odell

(6th Cir. B.A.P. Jan. 30, 2018)

The Sixth Circuit B.A.P. dismisses the appeal as moot. The debtor claimed an exemption in her real property that was greater than its value. The mortgagee obtained stay relief to foreclose on the debtor’s real property, and the debtor appealed. The court holds that because the exemption amount exceeded the value of the property, the property was no longer property of the estate and thus not subject to the automatic stay. Even if the court were to reverse the bankruptcy court’s stay relief order, the outcome would be the same. Opinion below.

Judge: Preston

Debtor: Pro Se

Attorney for Creditor: Lerner, Sampson & Rothfuss, Joel K. Jensen

2018-01-30 – in re odell

Author: Matt Lindblom

(B.A.P. 6th Cir. Nov. 28, 2017)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s dismissal of the Chapter 12 bankruptcy case. The court finds that the bankruptcy court failed to give the debtor proper notice and opportunity to be heard prior to the dismissal. However, the violation of due process was harmless error. The delay in filing a confirmable plan and continuing loss to the estate warranted the dismissal. Opinion below.

Judge: Preston

Attorney for Appellant: Heather McKeever

Attorneys for Appellees: Carrie Ann Rohrscheib; Bradley Arant Boult Cummings LLP, Edmund S. Sauer

2017-11-28 – in re haffey

Author: Matt Lindblom

Isaacs v. DBI-ASG Coinvester Fund III, LLC (In re Isaacs)

(6th Cir. B.A.P. July 3, 2017)

The Sixth Circuit B.A.P. vacates the bankruptcy court’s judgment and remands for dismissal based on lack of subject matter jurisdiction. The creditor failed to record its mortgage prior to the first Chapter 7 case, recorded it during that case, and it was not challenged. The creditor then sought to foreclose on the mortgage and obtained a state court in rem judgment permitting foreclosure. The debtor then filed a Chapter 13 case and challenged the state court judgment, based on the stay violation in the Chapter 7. The bankruptcy court held that the Rooker-Feldman doctrine did not apply because the state court judgment modified the discharge injunction inappropriately, as the lien was not valid based on the Chapter 7 discharge. The B.A.P. reverses, finding that the Rooker-Feldman doctrine does apply, and that the lien was effective under Kentucky law even if not perfected prior to the Chapter 7. Opinion below.

Judge: Humphrey

Attorney for Debtor: Marcus H. Herbert

Attorney for Creditor: DBI-ASG Coinvester Fund, III, LLC

2017-07-03 – in re isaacs

Author: Matt Lindblom

Trost v. Trost (In re Trost)

(6th Cir. B.A.P. June 28, 2017)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s entry of summary judgment, finding the debt owed to the plaintiff nondischargeable under 11 U.S.C. § 523(a)(6). The plaintiff had obtained a judgment against the debtors in state court on a conversion claim. The court holds that collateral estoppel applies and the elements of § 523(a)(6) were satisfied by the state court judgment. Opinion below.

Judge: Delk

Attorneys for Debtors: Schram, Behan & Behan, Michael R. Behan; Eiler Law Firm, Christian Michael Eiler

Attorneys for Plaintiff: Troy Richmond Hendrickson

2017-06-28 – in re trost

Author: Matt Lindblom

In re Pace

(B.A.P. 6th Cir. June 20, 2017)

The Sixth Circuit B.A.P. holds that 11 U.S.C. § 522(f)(2)(C) does not preclude avoidance of mortgage deficiency judgment liens. Rather, based on the plain meaning of the statute, that section simply makes clear that entry of a judgment in a foreclosure action does not convert the underlying mortgage agreement into a judicial lien that may be avoided. Here, the bankruptcy court denied the debtor’s motion to avoid a deficiency judgment lien following a real property foreclosure action, stating that § 522(f)(2)(C) bars avoidance of a foreclosure deficiency judgment lien. The B.A.P. analyzes conflicting case law from multiple jurisdictions and reverses the bankruptcy court.

Judge: Wise

Attorney for Debtor: T. Robert Bricker

Author: Matt Lindblom

2017-06-20 – in re pace

Edmondson v. Gordon (In re Gordon)

(6th Cir. B.A.P. May 18, 2017)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s contempt order, but remands the matter for the limited purpose of providing the debtor sufficient notice and an opportunity to be heard on the issue of whether monetary sanctions were reasonable. The debtor sold property of the estate in direct violation of the bankruptcy court’s order. The bankruptcy court held the debtor in contempt and awarded the trustee his attorney fees as a sanction. However, the hearing notice for the contempt order did not make clear that monetary sanctions could be entered against the pro se debtor. Opinion below.

Judge: Opperman

Appellant: Pro Se

Attorney for Appellee: Thompson Burton PLLC, Phillip G. Young, Jr.

2017-05-18 – in re gordon

Author: Matt Lindblom