In re Pfetzer

(Bankr. E.D. Ky. Mar. 22, 2018)

The bankruptcy court addresses the issue of whether a motion to dismiss for lack of good faith under 11 U.S.C. § 1307(c) can save an otherwise untimely § 1325(a)(7) objection to confirmation of a Chapter 13 plan. The court holds that because § 1325(a)(7) requires the determination of the debtor’s good faith in filing the petition as part of the plan confirmation process, a motion to dismiss under § 1325(a)(7) cannot rely on an allegation of lack of good faith if the motion is filed after the deadline to object to confirmation. Opinion below.

Judge: Wise

Attorney for Debtor: Michael B. Baker

Attorney for Creditor: Finney Law Firm, LLC, Justin C. Walker

2018-03-22 – in re pfetzer

Author: Matt Lindblom

Marshall v. Blake

(7th Cir. Mar 22, 2018)

The Seventh Circuit affirms the bankruptcy court after determining it has jurisdiction to hear the direct appeal from the bankruptcy court pursuant to Bankruptcy Rule 8008. The court holds that the bankruptcy court correctly overruled the trustee’s objection to confirmation of the Chapter 13 plan. The plan appropriately applied the debtor’s tax credit and refund to the debtor’s disposable income calculation by converting it to an increase to monthly income. The trustee argued that the refund should be applied to additional plan payments and that it was inappropriate to apply it to the debtor’s monthly income. Opinion below.

Judge: Flaum

Attorney for Trustee: Lauren L. Tobiason

Attorneys for Debtor: James A. Brady, Jamie F. Reisman

2018-03-22 – in re blake

Author: Matt Lindblom

Owens v. Coffey (In re Coffey)

(Bankr. W.D. Ky. Mar. 1, 2018)

The bankruptcy court denies the debtor’s motion for judgment on the pleadings. The plaintiff commenced a state court action prior to the bankruptcy that asserted claims against the debtor, including fraud. The debtor argued that the plaintiff’s non-dischargeability claims were barred by res judicata, as the Chapter 13 plan had already been confirmed. The court notes that there was no express provision in the plan that provided the plaintiff’s claims were deemed dischargeable. Further, the debtor’s arguments as to the merits of the underlying claim should be asserted in the state court action and would not defeat the non-dischargeability claims at this stage. The court holds the adversary proceeding in abeyance so the state court action can proceed. Opinion below.

Judge: Stout

Attorney for Debtor: Joseph S. Elder, II

Attorney for Creditor: Willam R. Noelker

2018-03-01 – in re coffey

Author: Matt Lindblom

In re Lane

(Bankr. W.D. Ky. Feb. 5, 2018)

The bankruptcy court denies the creditors’ motion to dismiss the Chapter 13 case. The motion raised issues that could have been raised in an objection to confirmation of the plan. The confirmation order operates as res judicata of all issues which could have been raised at the confirmation hearing. Opinion below.

Judge: Lloyd

Attorneys for Debtor: Seiller Waterman LLC, Neil Charles Bordy

Creditor: Pro Se

2018-02-05 – in re lane

Author: Matt Lindblom

Jodway v. Fifth Third Bank (In re Jodway)

(Sixth Circuit Jan. 5, 2018)

The Sixth Circuit affirms the bankruptcy court’s dismissal of the debtor’s Chapter 13 case. The debtor’s plan provided that he would surrender his property to the bank and make deficiency payments. However, the debtor failed to comply with these terms and instead challenged the bank’s foreclosure case in state court. The bankruptcy court dismissed the case for failure to comply with the terms of the plan. The Sixth Circuit summarily rejects numerous arguments from the debtor, including arguments based on subject-matter jurisdiction, due process, and validity of the mortgage. Opinion below.

Judge: Thapar

Attorney for Debtor: Alaina Zanke-Jodway

Attorney for Bank: Elizabeth Abood-Carroll

2018-01-05 – in re jodway

Author: Matt Lindblom

In re Dior

(Bankr. S.D. Ind. Apr. 14, 2017)

The court grants the debtor’s motion for a hardship discharge under 11 U.S.C. § 1328(b)(1). The debtor had made 44 plan payments but was unable to make the 16 remaining payments. The court finds the recent change in the debtor’s economic circumstances warranted the relief requested. Opinion below.

Judge: Carr

Attorney for Debtor: Steven P. Taylor

2017-04-14 – in re dior

Author: Matt Lindblom

 

In re Parker

(Bankr. E.D. Ky. Jan. 6, 2017)

The bankruptcy court sustains the creditor’s objection to confirmation of the Chapter 13 plan. The debtor filed her bankruptcy petition after the creditor obtained a judgment and order of sale with respect to the debtor’s residence, after the creditor was the successful bidder at the resulting foreclosure sale, but before the state court confirmed the foreclosure sale. The creditor argued the debtor was not permitted to cure the default through her plan. The court discusses 11 U.S.C. § 1322(c) and holds that the debtor may not cure the default through a plan after the “gavel comes down on the last bid.” Confirmation of the sale and the right of redemption do not affect the analysis. Opinion below.

Judge: Schaaf

Attorney for Debtor: DelCotto Law Group PLLC, Dean A. Langdon

Attorneys for Creditor: Goldberg Simpson, LLC, Stephen R. Solomon, Megan P. Keane

2017-01-06-in-re-parker

Author: Matt Lindblom

In re Neace

(Bankr. E.D. Ky. Jan. 6, 2017)

The bankruptcy court overrules the creditor’s objection to confirmation of the Chapter 13 plan. The creditor argued its claim, secured by the debtors’ mobile home, should be increased by the cost of delivery and set-up of the home. The court holds that set-up and delivery costs may not be used as a means to increase the replacement value as a matter of law. Opinion below.

Judge: Wise

Attorney for Debtor: Daryle M. Ronning

Attorneys for Creditor: McBrayer, McGinnis, Leslie & Kirkland, Zachary A. Horn

2017-01-06-in-re-neace

Author: Matt Lindblom

Smith v. Capital One Bank (USA), N.A.

(7th Cir. Dec. 22, 2016)

The Seventh Circuit affirms the district court’s judgment that the action against the debtor’s spouse did not violate the Chapter 13 co-debtor stay. The action against the spouse was based on a credit card account held only by the spouse. The debtor argued that, based on Wisconsin law, her assets were subject to the spouse’s credit card debt. The court holds that, while the automatic stay would prevent collection from property of the estate, the co-debtor stay did not prevent the action against the spouse because the debtor was not a “co-debtor” on that debt. Opinion below.

Judge: Flaum

Attorneys for Debtor: Kerkman & Dunn, Briane F. Pagel, Jr., Gregory M. Schreiber

Attorneys for Appellee: Hunton & Williams, Jarrett Lee Hale, Gregory G. Hesse, Eric W. Flynn, Faegre Baker Daniels LLP,  Jeffrey P. Justman, Jane E. Maschka, Aaron D. Van Oort

2016-12-22-smith-v-capital-one-bank

Author: Matt Lindblom

In re Elkins

(Bankr. E.D. Ky. Nov. 22, 2016)

The bankruptcy court grants the creditor’s motion to modify the stay to allow the creditor to proceed with the state court real property foreclosure action. The court finds that cause exists for stay relief for reasons including that this second bankruptcy filing by the debtor was pending for three months, the debtor’s plan depended on a sale of the property, the debtor had not taken any action to proceed with the sale, and there was no proof that the debtor’s spouse (co-owner of the property) would consent to the sale. Opinion below.

Judge: Schaaf

Attorney for Debtor: DelCotto Law Group PLLC, Dean A. Langdon

Attorney for Creditor: Miller, Griffin & Marks, P.S.C., Carroll M. Redford, III

2016-11-22-in-re-elkins

Author: Matt Lindblom