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

Cox v. Specialty Vehicle Solutions, LLC

(6th Cir. Nov. 14, 2017)

The Sixth Circuit vacates the district court’s judgment dismissing the creditor’s lawsuit against the debtor. The lawsuit was filed after the petition date, and the bankruptcy court entered an order that vacated the automatic stay so that the creditor was permitted “to resume and prosecute to conclusion” the lawsuit. The debtor then filed a motion to dismiss the lawsuit, arguing the initial case filed was null and void because it had been filed in violation of the automatic stay and a second action filed was outside the 30-day period allowed by 11 U.S.C. § 108(c) after lifting of the stay. The court finds that the stay lift order is ambiguous because it doesn’t clearly state that the stay was “annulled” or that the relief granted is retroactive to validate the first lawsuit filed. The court remands for consideration of additional evidence and correct application of Easley v. Petit One Mich. Corp. Opinion below.

Judge: White

Attorneys for Creditor: Seiller Waterman, David M. Cantor, Keith James Larson; Taliaferro, Carran & Keys, Philip Taliaferro, III

Attorneys for Debtor: Casey, Bailey & Maines, Susan L. Maines

2017-11-14 – in re cox

Author: Matt Lindblom

In re Wilson

(Bankr. W.D. Ky. Nov. 1, 2017)

The bankruptcy court grants the creditor’s motion for stay relief to proceed with a state court foreclosure action. The creditor had obtained an order granting stay relief in a prior bankruptcy filed by the debtor’s son, the owner of the property. The debtor’s life estate interest in the property does not prevent the foreclosure action from proceeding. Opinion below.

Judge: Lloyd

Attorney for Debtor: Mark H. Flener

Attorney for Creditor: Bradley S. Salyer

2017-11-01 – in re wilson

Author: Matt Lindblom

In re Buckman

(Bankr. W.D. Ky. Mar. 9, 2017)

The bankruptcy court grants the secured creditor’s motion for stay relief because it was inadequately protected as a result of there being insufficient funds to make the first payment to the creditor under the confirmed Chapter 12 plan. Opinion below.

Judge: Lloyd

Atttorneys for the Debtor: Kaplan & Partners LLP, James Edwin McGhee, III, Charity Bird Neukomm

Attorneys for Creditor:  Andrews Law Firm, PLLC, Ashley Sanders Cox

2017-03-09 – in re buckman

Author: Matt Lindblom

Hollowell v. JPMorgan Chase National Association

(N.D. Ind. Dec. 22, 2016)

The district court affirms the bankruptcy court’s order lifting the stay to permit the creditor to proceed with the real property foreclosure action. The debtor failed to provide factual or legal support for his claims of fraud by the creditor. Opinion below.

Judge: Miller

Plaintiff: Pro Se

Attorneys for Defendants: Dykema Gossett PLLC, Jordan S. Huttenlocker, Louis S. Chronowski

2016-12-22-hollowell-v-jpmorgan-chase

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

In re Webb

(Bankr. W.D. Ky. Sep. 12, 2016)

The bankruptcy court grants the motion to terminate the automatic stay. The creditor and the debtor entered into a sale contract prepetition for sale of the debtor’s real property. The debtor argued that the sale contract terminated prepetition, and the creditor argued that it should be permitted to pursue its claims on the contract in state court. The court finds that the debtor has no equity in the property and that it is not necessary to an effective reorganization. Thus, stay relief is appropriate. Opinion below.

Judge: Lloyd

Attorney for Debtor: Kruger & Schwartz, Richard A. Schwartz

Attorney for Creditor: Eddins Domine Law Group, PLLC, H. Kevin Eddins

2016-09-12-in-re-webb

Author: Matt Lindblom

In re Licking River Mining, LLC

(Bankr. E.D. Ky. June 6, 2016)

In these jointly administered cases converted to chapter 7, the bankruptcy court modifies the stay for the limited purpose of paying defense costs from the debtor’s D&O insurance policy to the two individual creditors. The creditors were directors and shareholders of one of the debtors and were named defendants in the trustee’s adversary complaint, which alleged the debtors breached their fiduciary duties to the debtor. The court holds it is premature to make a determination as to whether the policy proceeds are property of the estate. Opinion below.

Judge: Wise

Attorneys for creditors: Fowler Bell PLLC, Taft A. McKinstry, Matthew D. Ellison

Trustee: Phaedra Spradlin

2016-06-06 – in re licking river mining

Author: Matt Lindblom

In re Nierzwicki Holdings, LLC

(Bankr. E.D. Ky. Dec. 30, 2015)

The bankruptcy court denies the motion for stay relief to proceed with prepetition litigation. The movants were seeking to enjoin the debtors’ operation of a nightclub due to an alleged noise nuisance. The bankruptcy court applies the factors for considering whether stay relief should be granted to allow prepetition litigation to continue. While some of the factors were not determinative, allowing the litigation to continue would cause serious damage to the debtors’ reorganization efforts. The court ultimately concludes that stay relief is inappropriate. Opinion below.

2015-12-30 – in re nierzwicki holdings

Author: Matt Lindblom

In re Martin

(6th Cir. B.A.P. Dec. 16, 2015)

The Sixth Circuit B.A.P. affirms the decision of the bankruptcy court granting relief from the automatic stay so that the creditor can continue with state court litigation against the debtor. The court discusses the factors considered in deciding whether to lift the stay for prepetition litigation, but ultimately affirms the bankruptcy court. The state court litigation was further along than the bankruptcy, additional parties not involved in the bankruptcy were involved in the state court litigation, and the creditor had included a jury demand in state court. Opinion below.

2015-12-16 – in re martin

Author: Matt Lindblom