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

(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

McKinstry v. Richard Holmes Enterprises, LLC (In re Black Diamond Mining Company, LLC)

(E.D. Ky. June 16, 2016)

The district court affirms the bankruptcy court’s order dismissing the reopened bankruptcy case. The creditor consented to the unsecured creditors trusts’ settlement of a claim, which was followed by a distribution to creditors and closure of the case. The creditor then moved to reopen the case, and the bankruptcy court granted the motion on condition that the creditor deposit its distribution amount in escrow. The creditor failed to do so, and the case was then dismissed. The bankruptcy court did not err in placing a condition on reopening the case. Because the creditor waited to challenge the settlement and bring claims against the trusts’ attorneys after distribution, there were no fund to indemnify the trust. Thus, the requirement to deposit funds in escrow was appropriate. Opinion below.

Judge: Thapar

Attorneys for Creditor: The Getty Law Group, PLLC, C. Thomas Ezzell, Richard A. Getty, Ware Jackson Lee O’Neill Smith & Barrow, LLP, Paul Smith, Timothy F. Lee

Attorneys for Trust and Its Attorneys: Foley & Lardner, LLP, David B. Goroff, Geoffrey S. Goodman, Dinsmore & Shoal LLP, David James Treacy, Hoover Hull Turner LLP, Michael R. Limrick, Patrick A. Ziepolt, Wayne C. Turner

2016-06-16 – in re black diamond mining company

In re Witty

(Bankr. W.D. Ky. Jan. 4, 2016)

The bankruptcy court denies the United States Trustee’s (“UST”) motion to dismiss the Chapter 7 bankruptcy case under 11 U.S.C. § 707(b). The UST argued that the debtor’s monthly expenses were excessive. The court finds that the expenses are not excessive considering the debtor’s current employment demands significant expenses for travel and clothing. The compensation warranted the expenses, and the debtor was required to travel for weekend visits with her children following her 2013 divorce. Opinion below.

[For a copy of this opinion, send request to Author below]

Author: Matt Lindblom

In re Horn

(Bankr. S.D. Ind. Jan. 4, 2016)

The bankruptcy court denies the United States Trustee’s (“UST”) motion to dismiss the Chapter 7 bankruptcy case under 11 U.S.C. § 707(b). The UST did not argue that the debtor filed in bad faith, but instead the totality of the circumstances of the debtor’s financial situation warranted dismissal. The debtor scheduled significant monthly retirement payments and tax overpayments that the UST contended could be used to fund a Chapter 13 plan. The court finds that the circumstances here did not warrant dismissal, in part due to the debtor’s age and retirement savings to date. Opinion below.

2016-01-04 – in re horn

Author: Matt Lindblom

Lynn v. Pry

(S.D. Ind. Nov. 13, 2015)

The district court denies the trustee’s motion to dismiss the appeal for numerous procedural errors committed by the appellants. The court describes errors including missed deadlines, improper brief formatting, and ECF filing errors. The court finds that it is a “close call” but the appellants’ attorney’s explanations support a finding of excusable neglect, and thus dismissal is not appropriate. Opinion below.

2015-11-13 – lynn v pry

Author: Matt Lindblom

Mileusnic v. Planet Home Lending LLC

(N.D. Ind. Aug. 11, 2015)

The district court grants appellee’s motion to dismiss the appeal. The pro se appellant failed to file an appellate brief by the deadline and failed to explain that failure in response to the motion to dismiss the appeal. Opinion below.

2015-08-11 – mileusnic v planet home lending

Author: Matt Lindblom

In re Henry

(6th Cir. B.A.P. Aug. 3, 2015)

The Sixth Circuit Bankruptcy Appellate Panel affirms the bankruptcy court’s dismissal of the pro se debtor’s chapter 13 case. The debtor’s proposed plan could not be confirmed, and the court directed that the debtor remedy errors in the plan within 14 days. The debtor failed to timely submit an amended plan. Opinion below.

2015-08-03 – in re henry

Author: Matt Lindblom

Rinaldi v. HSBC Bank USA, N.A. (In re Rinaldi)

(7th Cir. Feb. 11, 2015)

The Seventh Circuit affirms the bankruptcy court’s dismissal of the debtors’ adversary claims against the mortgage holder and the bankruptcy court’s order sanctioning the debtor’s attorney for frivolous court filings. The debtors asserted fraud, breach of contract, tortious interference, and related claims against the mortgage holder, all of which were dismissed by the bankruptcy court. The debtors appealed, and the district court affirmed. The debtors appealed to the circuit court and then dismissed their bankruptcy case, stating they intended to now bring the dismissed claims in state court. The attorney filed numerous motions that the district court held were frivolous, rambling, and not compliant with court rules. The court entered an order holding that any further frivolous filings would result in an award of sanctions. The attorney then filed a motion to withdraw as counsel and intervene as a party in the case. The court allowed the withdraw but held she had no standing to intervene, and then entered the sanctions order. The Seventh Circuit holds that it will not dismiss the appeal for mootness but instead affirms the orders below, including the award of sanctions. Opinion below.

2015-02-11 – in re rinaldi

A second opinion was issued on the same day, sanctioning the same attorney for behavior in a foreclosure case. That opinion can be found here:

2015-02-11 – in re nora

Author: Matt Lindblom

In re Peterson

(Bankr. S.D. Ind. Feb. 4, 2015)

The bankruptcy court denies the creditor’s motion to dismiss or convert the chapter 7 case. The creditor had obtained a judgment against the debtor and her employer for the debtor’s unlawful accessing and dissemination of the creditor’s medical information. The creditor sought dismissal of the case under § 707(b) (failure of means test), but the court determined the debtor’s debts were not primarily consumer debts and thus that section did not apply. While the judgment was not a business debt, that did not necessarily mean it was a consumer debt. The creditor also sought dismissal for cause under § 707(a). The court recognized that seeking to pay a large debt of one creditor is a factor in favor of dismissal, but that alone did not warrant dismissal for cause. There was no evidence of the debtor’s ability to pay the large judgment. Finally, the creditor alternatively sought to convert the case to chapter 11, but the court denied the request, finding no credible evidence of the debtor’s ability to pay the debt or that chapter 11 would benefit creditors more than chapter 7 (in part because the creditor could collect the judgment from the debtor’s employer). Opinion below.

2015-02-04 – in re peterson

Author: Matt Lindblom