Note: the following cases have been gathered by the trustee/staff attorney from a variety of sources. We have tried to give one sentence summaries of the holding, but please read the cases before citing them. We will be adding to the list as find cases we think are of interest to the Chapter 13 bar. (And many thanks to Trustee Herbert Beskins of Charlottesville, Va., for his case law updates.)
Long v. Bullard, 117 U.S. 617, 619-621 (1886).
A pre-petition mortgage lien on the property of the debtor survives, and is not affected by, the issuance of discharge.
White v. Stump, 266 U.S. 310 (1924).
Exemptions are determined as of the filing date.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Everything in bankruptcy is premised on due process, which itself is based upon “notice and the opportunity for a hearing.”
Butner v. United States, 440 U.S. 48, 55, 99 S. Ct. 914, 918 59 L. Ed. 2d 136, 141-142 (1979).
Property interests in bankruptcy are defined by state law.
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982). Boundaries of Bankruptcy Court authority.
United States v. Whiting Pools, Inc., 462 U.S. 198, 203, 103 S. Ct. 2309, 76 L. Ed. 2d 515 (1983).
IRS just another creditor in bankruptcy.
Blum v. Stenson, 465 U.S. 886 (1984).
Court clarifies computation of fees using lodestar analysis. Court overrules that aspect of the lodestar analysis of fee applications [such as that used by the 4th Circuit in Anderson v. Morris ] that requires the court to adjust the lodestar fee on the basis of other factors once the initial amount of the fee (customary hourly rate x reasonable number of hours expended) is determined.
United Savings Association of Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365, 370-371, 98 L. Ed. 2d 740, 108 S. Ct. 626 (1988).
Burden of proof in motions to lift stay. And, Timbers also held that when secured collateral is declining in value, the secured creditor is entitled to cash payments or additional security in the amount of the decline.
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989).
All oversecured creditors get interest on their claims.
Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991).
Evidentiary standards in bankruptcy cases.
Farrey v. Sanderfoot, 500 U.S. 111 (1991).
522(f)(1) can’t avoid a judicial lien where the lien fixed on the property before the debtor obtained an interest in that property
Johnson v. Home State Bank, 501 U.S. 78 (1991).
Using a “Chapter 20” to avoid liens left over from Chap. 7 case.
Dewsnup v. Timm, 502 U.S. 410; 112 S. Ct. 773; 116 L. Ed. 2d 903 (1992).
Strip down disallowed.
Taylor v. Freeland & Kronz, 503 U.S. 638 (1992).
Exemptions allowed if Trustee doesn’t object, even if debtors not entitled to them.
Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 389 (1993).
No excusable neglect for untimely filed Proof of Claim in Chapter 7 [and 13] case.
Nobleman v. American Savings Bank, 508 U.S. 324, 113 S. Ct. 2106, 124 L. Ed. 2d 228 (1993).
Can’t strip down mortgage lien secured solely by primary residence
Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 166 S.Ct. 286, 133 L.Ed.2d 258 (1995).
Creditor can freeze bank account to preserve right to set off. However, if the accounts are frozen, the creditor has move quickly to seek relief from stay to effectuate a setoff.
Associates Commercial Corp. v. Rash, 520 U.S. 953 (1997).
Valuation of collateral in cramdown situation.
Fidelity Financial Serv. V. Fink, 522 U.S. 211 (1998).
State law cannot extend 547(c)(3)(B) 20 day period in which to perfect a security interest to prevent avoidance by the Trustee.
Till v. SCS Credit Corp., 541 U.S. 465 (2004).
Required interest rate on cramdowns and pay-in-fulls is prime+.
Howard Delivery Service, Inc. v. Zurich American Ins. Co., 547 U.S. 651 (2006).
Liability for worker’s compensation benefits are not entitled to priority under §507(a)(5). The Supreme Court reversed the Fourth Circuit and held “that carriers’ claims for unpaid workers’ compensation premiums remain outside the priority allowed by § 507(a)(5)” because it is not an “employee benefit plan.” Rather, “[t]hey modify, or substitute for, the common-law tort liability to which employers were exposed for work-related accidents.”
Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 367, 127 S. Ct. 1105 (2007).
Conversion from Chapter 7 to 13: Court can deny if fraudulent.
Milavetz, Gallop, et al, v. U.S., 559 U.S. ____, No. 08-1119, 3/8/10 Opinion.
Attorneys prohibited from advising debtors to incur more debt because they’re filing for bankruptcy (OK if for a valid purpose); sec. 528 required disclosures are constitutional.
United Student Aid Funds, v. Espinosa, 559 U.S. ____, 130 S. Ct. 1367, 3/23/10 Opinion.
Finality of confirmation order; Court’s obligation to address plan defects.
|Ogle v. Fidelity & Deposit Co. of Maryland, 559 U.S. _____ (4/30/10 denial of certiorari).
Attorney Fees – Unsecured creditor’s recovery of postpetition attorneys fees authorized by valid prepetition contract. Denying certiorari, the United States Supreme Court has let stand a decision by the Second Circuit Court of Appeals that an unsecured claim for postpetition attorneys fees, authorized by a valid prepetition contract, is allowable under 502(b) of the Bankruptcy Code and is deemed to have arisen prepetition.
Hamilton v. Lanning, 560 U.S. ____, 177, 130 S. Ct. 2464, # 08-998, decided 6/7/10 (8-1 decision; opinion by Alito). Calculation of disposable income. Held: “…when a bankruptcy court calculates a debtor’s projected disposable income, the court may account for changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation.”
Schwab v. Reilly, 560 U.S. _____, #08-538, decided 6/17/10 [6-3; Thomas opinion]
Exemption claim does not cover excess of asset value over value disclosed
|AmeriCredit Financial Services, Inc. v. Penrod, ___ U.S. ____, 132 S. Ct. 108, 181 L. Ed. 2d 34 (October 3, 2011). Negative equity in a car loan is not purchase money for purposes of the hanging paragraph in § 1325.
Baud v. Carroll, 132 S. Ct. 997, # 11-27, 1/10/12.
Applicable commitment period for above-median debtors is 60 months. The Supreme Court of the United States denied the Petition for Writ of Certiorari thus the United States Court of Appeals for the Sixth Circuit decision, Baud v. Carroll, 634 F.3d 327 (6th Cir. 2011), stands. When an above-median-income debtor has positive disposable income, as calculated under section 1325(b)(2) of the Bankruptcy Code and Form B22C, the debtor’s Chapter 13 plan must run for five years equivalent to the applicable commitment period. Further, section 1325(b)(1)(B) of the Bankruptcy Code requires the Chapter 13 plan of an above-median-income debtor to last the full five-year period.
Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir. 1978), cert den., 439 U.S. 934 (1978)
Factors to be considered by the Court in reviewing attorney’s fees. The twelve factors originally articulated in Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir.1978), cert. denied, 439 U.S. 934 (1978) are: (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney fees awards in similar cases. Harman v. Levin, 772 F.2d 1150, 1151, n. 1, citing Barber v. Kimbrell’s Inc., 577 F.2d at 226, n. 28.
Harman v. Levin, 772 F.2d 1150 (4th Cir. 1985).
Fourth Circuit specifically adopted the Johnson v. Kembrell’s, Inc., factors for use in determining fee awards under Code sec. 330(a) to professionals in bankruptcy cases.
Neufeld v. Freeman, 794 F.2d 149 (4th Cir. 1986) and Deans v. O’Donnell, 692 F.2d 968, 972 (4th Cir. 1982)].
Good faith: totality of the circumstances. Whether a Chapter 13 plan has been proposed in good faith is governed by a totality of the circumstances inquiry. Factors: proposed % payout; debtor’s financial situation; proposed period of repayment; debtor’s employment history and prospects; nature and amount of unsecured claims; past bankruptcy filings; debtor’s honest in presenting facts of the case; nature of the pre-petition conduct giving rise to the debts; are debts dischargeable in Chap. 7; any other unusual problems facing the debtor.
Harford v. Moore Bros. Co. (In re Harford), 802 F.2d 451 (4th Cir. 1986).
Bad faith factors in Chapter 13 include lack of honesty in representing facts to the court and burden on the Trustee. The Court observed that, “‘the totality of the circumstances must be examined on a case by case basis’ in determining whether a plan meets the general good faith standard of § 1325(a)(3). One factor in determining good faith is the debtors’ honesty in representing facts. The Eighth Circuit Court of Appeals has expanded the Deans catalogue of factors to include ‘the burden which the plan’s administration would place upon the trustee.’ Misrepresentations place a burden on the trustee because ‘most of the burden of checking upon debtors’ schedules falls upon the Chapter 13 trustee and upon counsel for the Chapter 13 debtor.’” (citations omitted).
West v. Costen, 826 F.2d 1376 (4th Cir. 1987).
Objection to discharge by creditor not allowed. Creditor who did not object to confirmation of debtor’s plan that compromised claim that would have been nondischargeable in Chapter 7, and who did not appeal denial of her own motion for modification of the debtor’s plan, cannot object to debtor’s discharge under sec, 1328(a) on the basis that the repayment plan defrauded unsecured creditors.
Arnold v. Weast (In re Arnold), 869 F.2d 240, 243 (4th Cir. 1989).
1329: Post-confirmation substantial & unanticipated change in circumstances. Bankruptcy Court did not abuse its discretion by increasing a debtor’s monthly payment from $800 to $1,500 b/c debtor’s salary went from $80K/yr to $200K/yr. Res judicata prevents modification of a confirmed plan via 1329(a)(1) or (2) unless the party seeking modification demonstrates “that the debtor has experienced a ‘substantial’ and “unanticipated’ [“could not have been reasonably anticipated at the time the plan was confirmed”] post-confirmation change in his financial condition.”
Harford v. Moore Bros, 802 F.2d 451 (4th Cir. 1986).
Bad faith factors in Chapter 13.
In re Alvin E. Rife (Grundy Nat. Bank v. Rife), 876 F.2d 361 (4th Cir. 6/5/89).
Secured creditor’s right to an administrative expense claim and interest when debtor modifies plan to surrender collateral which was being retained under the initially confirmed plan. Debtors’ confirmed plan called for them to retain several cars on which the bank held a lien. Debtor’s schedules omitted the bank’s lien on a 1976 car. When the bank filed a motion to lift stay to recover the collateral and to recover as an administrative expense the debtor’s missed payments under the plan, the debtor filed a modified plan surrendering one of the cars in full satisfaction of the debt on that car. Held: (1) 507 converts a creditor’s claim where there has been a diminution in value of its secured collateral by reason of a 362 say into an admin. exp. claim under 503(b). A contrary rule would unjustly enrich the debtor. (2) The creditor is entitled to the greater of (i) the payments the debtor should have made under the plan and adequate protection orders, or (ii) the diminution in value of the car between the filing date and the date the car is surrendered to it. (3) The creditor can also recover interest, at the market rate, on the payments it should have received under the plan or had it been able to liquidate its collateral. (4) The lower Court must provide notice to affected parties before continuing the automatic stay in the face of a motion to lift, so that they may request a hearing.
Brown & Co. Sec. Corp. v. Balbus (In re Balbus), 933 F.2d 247 (4th Cir. 1991)
Computing “unsecured debt” under 109(e). In determining the amount of unsecured debt allowed under Code 109(e), “the Court must add the amount of unsecured debt to the amount by which secured creditors are undersecured..” Where the debtor is retaining the collateral, the expenses of liquidation should not be taken into account in determining the extent to which creditor’s claim is unsecured.
Coker v. Sovran Equity Mortgage Corp. (In re Coker), 973 F.2d 258 (4th Cir. 1992).
Deduction of liquidation costs in 506 lien avoidance. In connection with Chapter 13 debtor’s motion to avoid lien of allegedly undersecured creditor, hypothetical disposition costs of collateral are not to be deducted in determining extent to which a creditor is secured under sec. 506(a).
Piedmont Trust Bank v. Linkous, 990 F.2d 160 (4th Cir. 1993).
Due process requires notice to secured creditor of 506 hearing before its secured claim can be altered.
Cen-Pen Corp. v. Hanson, 58 F.3d. 89 (4th Cir. 1995).
Avoidance of liens by plan terms w/o Adv. Proceed violates due process. Further, while the underlying debt may be discharged as a personal obligation of the debtors, the lien survives and may be enforced by a proceeding in rem.
Failure to treat a claim in the plan results in it not being discharged.
Solomon v. Cosby (In re Solomon), 67 F.3d 1128 (4th Cir. 1995).
IRA not accessible to Chapter 13 creditors.
Colonial Auto Ctr. v. Tomlin (In re Tomlin), 105 F.3d 933, 937 (4th Cir. 1997).
Bad faith factors.
Witt v. United Companies Lending Corp. (In re Witt), 113 F.3d 508, 513 (4th Cir. 1997).
Ability to bifurcate claim secured solely by lien on residence. Case holds that 1322(b)(2) prohibits a Ch. 13 debtor from modifying in any way the terms of an undersecured claim if that claim’s only security is the debtor’s principal residence (here a mobile home and lot). Debtor can only extend payments to end of plan.
Deutchman v. IRS (In re Deutchman), 192 F.3d 457 (4th Cir. 1999).
“Providing” for a tax lien. Where debtor did not object to IRS proof of claim, did not challenge the lien by adversary proceeding, and did not seek valuation under sec. 506, completion of payments under plan that understated IRS secured claim did not extinguish IRS’ lien on the debtor’s property. In order to “provide for” a creditor for the purpose of sec. 1327(c), the plan must clearly and accurately characterize the creditor’s claim throughout the plan.
Tavenner v. Smoot, 257 F.3d 401 (4th Cir. 2001), cert. denied, 122 S. Ct. 926.
An exemption which could properly have been claimed by a debtor may be forfeited as a result of his pre-petition transfer of the otherwise exemptible asset.
Litton v. Wachovia (In re Litton), 330 F.3d 636 (4th Cir. 2003).
Curing default under consent order from prior case. Debtor could use Chapter 13 to cure default under consent order that was entered in a prior Chapter 13 case.
In re Ekenasi, 325 F.3d 541, 544 (4th Cir. 2003
On appeal, the bankruptcy court’s factual findings are entitled to deference and consequently are reviewed only for clear error. The bankruptcy court’s conclusions of law are reviewed de novo.
In re Educational Credit Mgmt. Corp. v. Frushour (In re Frushour), 433 F.3d 393, 400 (4th Cir. 2005). Adopted the Brunner three-part undue hardship test for dischargeability of student loans.
Murphy v. O’Donnell (In re Murphy) and O’Donnell v. Goralski (In re Goralski), 474 F3d 143 (4th Cir. 2007).1329: Post-confirmation substantial & unanticipated change in circumstances.
Branigan v. Bateman (In re Bateman) and Branigan v. Graves (In re Graves), 515 F.3d 272 (4th Cir. 2008). Ineligibility for discharge not a bar to filing.
Tidewater Finance Co. v. Kenney (In re Kenney), 531 F.3d 312 (4th Cir. 2008). Surrender of collateral in full satisfaction of the debt is prohibited.
Ennis v. Green Tree Servicing (In re Donnie R. Ennis), 558 F.3d 343 (4th Cir. 2009).
Cram down mobile home w/o land. Where a mobile home is still personal property (certif. of title still valid), even though it is the DR’s primary residence it can be crammed down. In re Witt, 113 F.3d. 508 (4th Cir. 1997), distinguished, b/c in that case the lower court had determined that the mobile home was real property, and lien was on both the mobile home and land.
Wells Fargo Fin. Acceptance v. Price (In re Price), 562 F3d 618 (4th Cir. 2009).
Negative equity is part of a PMSI and cannot be crammed down. For purposes of Code 1325(a)’s “hanging paragraph,” the car lender had a security interest in the entire loan, including the amount used to pay off the negative equity in the vehicle the chapter 13 debtors traded in. [But see AmeriCredit Financial Services, Inc. v. Penrod (Sup. Ct., 10/3/11): Negative equity in a car loan is not purchase money for purposes of the hanging paragraph in sec. 1325]
Educational Credit Management v. Lisa M. Kirkland, 09-1379, 4th Cir. 3/12/10.
Lack of jurisdiction of Bankruptcy Court to decide post-petition interest and collection costs on a student loan.
Suntrust Bank v. Millard (In re Derrick & Tracie Millard), #09-2266, 404 F.App’x 804 d (4th Cir. 12/15/10), affirming 414 B.R. 73 (D. Md. 2009), [per curiam].
Wholly unsecured consensual liens that attach to debtor’s real property may be avoided under sec. 506 and are not subject to the anti-modification protection of sec. 1322(b)(2).
Jacobsen v. Moser (In re Jacobsen), 609 F.3d 647 (5th Cir. 2010)
Chapter 13 debtor does not have an absolute right to dismiss a case where the debtor has acted in bad faith or abused the bankruptcy process and requested dismissal under §1307(b) in response to a request for conversion.]
Goldman v. Capital City Mortage Co. (In re Walter Nieves), 648 F.3d 232 (4th Cir., 6/10/11, # 08-2160).
Trustee’s rights and burdens re recovering property under sec 544(b) and 550(a).
In re John G. McCormick (SunTrust Bank v. Northen), 669 F.3d 177, # 10-2027, 4th Cir., 2/10/12. Improper filing of deed of trust means that Trustee could avoid the bank’s lien using 544(a)(3).
Morris v. Quigley (In re Susan Quigley), 673 F.3d 269, #09-2102, 4th Cir., 3/7/12 Opinion.
Lanning requires that payments to secured creditors on property being surrendered or paid by non-debtor cannot be deducted from disposable income.
Johnson v. Zimmer (In re Tanya R. Johnson), 686 F.3d 224, (4th Cir.) # 11-2034, 7/11/12.
It was not error for the lower court to use the “fractional economic unit” approach to determine household size for purposes of Form B22C.
In re Davis, ____ F.3d. ______, #12-1184, 5/10/13 opinion.
A Chapter 13 debtor ineligible for a discharge may, upon completion of the plan, strip a wholly-unsecured lien.
Mort Ranta v. Gorman (In re Ranta), 2013 WL 3286252, _____ F3d _______ (4th Cir. 7/1/13) Social Security benefits are excluded from a debtor’s projected disposable income for both above and below median debtors, but can be voluntarily offered by the debtor to show plan feasibility;
In re Josephine Thornton, 21 B.R. 462 (Bankr. W.D. Va. 4/14/82),
Post-petition medical expenses are allowable under 1305 and covered by a hardship discharge.
In re Joan Pritchett, 55 B.R. 557, 560, Bankr. W.D. Va., 11/27/85 (Bankr. W.D. Va. 1985).
1305 claims filed after plan payments completed are disallowed and not subject to discharge.
Nunley v. Jessee, 92 B.R. 153 (W.D. Va. 1988).
Attorney fees on appeal for defending fees awarded initially are routinely entitled to additional fees required to defend those fees on appeal.
In re Mitchell, 116 B.R. 63, Bankr. W.D. Va. (Anderson, 3/29/90).
Debtors must increase plan payments by the amount incorrectly refunded to them by the IRS.
In re Saunders, 130 B.R. 208 (Bankr. W.D. Va. 1991)
506(b) allows contractually authorized attorney’s fees for fully secured claims only.
In re Leftwich, 174 B.R. 54 (Bankr. W.D. Va. 1994)
Debtor’s signature on related document sufficient to create security agreement.
In re Duncan, 182 B.R. 156 (Bankr. W.D. Va. 1995).
109(g)(2) requires causal connection. In order to apply the statute and dismiss the subsequent case, the Court required a causal connection between the creditor’s motion for relief and the debtor’s voluntary dismissal of the case: the request for relief must “trigger the dismissal.” Here the debtor also incurred post-petition debt that could be grounds for a voluntary dismissal and refiling. Court did not dismiss the second case.
Elkwood Homes, LTD v. County of Culpeper, VA, 202 B.R. 232 (Bankr. W.D.Va. 1996).
In the 4th Circuit, tax assessments can be used as proper valuation of the property.
In re Donoway, 139 B.R. 156 (Bankr. D.Md. 1992).]
Real estate brokers and agents who do not have training in conducting appraisals are not qualified to testify as to the fair market value of a property.
In re Root, 203 B.R. 55 (Bankr. W.D. Va. 1996).
Co-debtor stay of 1301 applies to medical debt.
In re Waters, 227 B.R. 784 (W.D. Va. 1998).
Factors to consider in good faith analysis. Court discussed two cases which added four additional good faith factors beyond Deans v. O’Donnell : proximity in time of Chapter 13 and Chapter 7 filings; whether Debtor has incurred any change in circumstances suggesting that a second filing was appropriate and that the debtor would be able to comply with terms of the Chapter 13 plan; whether the two filings accomplished result that was not permitted in either chapter standing alone; and whether the filings treated creditors in fundamentally fair and whether they were an attempt to manipulate the system.
In re Branch, 228 B.R. 831, 835 (Bankr. W.D. Va. 1998)
Creditor must file a claim to be paid.
In re Spradlin, Bankr. W.D. Va., # 7-98-02835, 5/11/00 Opinion.
Surrender of damaged collateral post-confirmation when it was initially being retained by the debtor. Court declined to confirm a modified plan which proposed to surrender a car with a blown engine where the confirmed plan had the debtor keeping the car and paying the creditor for it as a cram down. The secured creditor “should not bear the risk of loss of value in the collateral when the debtor originally chooses to keep the property … but then later… chooses to give it up.” The debtor must be free to surrender assets after confirmation when such a change is necessary, but the secured creditor must be dealt with “fairly and equitably.” One way would be to treat the difference between the current value and the secured value that was being pain in the confirmed plan as an administrative expense, which might require increasing payments so that the unsecured creditors maintain their prior treatment. If that’s not possible, Court can still allow the debtor to surrender the collateral but only after allowing the affected creditors a chance to be heard in Court.
Montclair Property Owners Ass’n. v. Reynard (In re Reynard), 250 B.R. 242 (Bankr. E.D. Va. 2000)
Chapter 13 estate continues after confirmation and includes all post-confirmation earnings.
In re Anthony & Carol Conley and Charles & Belinda Matney, Bankr. W.D. Va., #7 02 05116 & 7 02 04796, 7/30/03 opinion (Stone). [cited in In re Jason E. Gillenwater, Bankr. W.D. Va., #12 71022, 9/18/12 opinion]
Under sec. 522, debtor can only exempt property recovered by the Trustee under 550 if the transfer of the property by the debtor was not voluntary and the debtor did not conceal the property.
In re John and Melissa Agnew, 03-03057 (W.D. Bankr. 10/24/03)
Damages can be awarded against creditor for failure to return repossessed car once case filed.
In re Grover and Cynthia Clark, #5-00-00969, Bankr. W.D. Va., 4/1/04 Opinion.
Debtors not allowed to modify Chapter 13 plan simply because claims came in lower than anticipated. Debtors are expected to “repay to their creditors the debt owed to the extent of their ability during the Ch. 13 plan payment period.”
In re Ronald and Cynthia Cash, Bankr. W.D. Va., #03-04003 (11/23/04)
Proper standard by which to determine a reasonable attorney’s fee for debtor’s counsel.
In re Thelma Jenkins, #05,74827 (W.D. Va., Judge Stone, 3/1/06).
Debtor’s attorney sanctioned $100 for failure to advise Trustee in a timely manner regarding a requested document.
In re Kimberly Campbell, 06-60678 (Anderson, 7/13/06 opinion).
1328: Eligibility for Discharge: time periods; §1328(f) means that the 2 and 4 year disqualification periods are to be measured from the date the former case was filed to the date the current case was filed.
In re Miller, 344 B.R. 769 (Bankr. W.D. Va. 2006) [Stone].
Under-secured creditor cannot recover post-petition attorney’s fees and costs.
In re Winters, 2006 WL 3392890, Bankr. W.D. Va. (Krumm, 11/22/06 Opinion)
Standard of proof to extend automatic stay. Good faith for purposes of section 362(c)(4) requires showing good faith factors defined in Neufeld v. Freeman, 794 F.2d 149) (4th Cir. 1986).
In re Suzanne Mullins, 360 B.R. 493, #05-73530, 2/12/07 (W.D. Bankr.,)
109(e): must include undersecured amounts on Sch. D in determining amount of unsecured debt.
In re Gabriel Taylor, # 07-31055, Bankr. ED of VA, 4/26/07 Opinion
“362(c)(3)(A) does not extend termination of the stay to include property of the estate… [it] effects a termination of the stay only with respect to actions taken against the debtor and against property of the debtor.”
In re William and Catherine Shifflett, #05-50345, Bankr. W.D. Va., [12/14/07 opinion).
Hardship discharge: evidence required. Hardship discharge denied b/c even though debtor had a rare illness and was receiving Social Security disability payments, illness not catastrophic; no showing the debtor won’t improve; and no showing that the debtor has tried to find alternative job, etc.
In re Andrea Clauden, #07-61438, Bankr. W.D. Va., 2/5/08 Opinion.
Adequate protection payments when plan goes from retain to surrender. If Ch. 13 plan initially proposes Trustee to pay claim in full and Creditor to get adequate protection payments, and plan is [115 days] later modified to surrender the collateral, the Creditor is entitled to receive Adequate Protection payments from the date of filing until the date the collateral is surrendered, and the Trustee must forward such payments to the Creditor. Creditor’s timely filed POC must be given effect nunc pro tunc from the petition date.
In re Wyatt, 2008 WL 4572506 (Bankr. E.D. Va. 2008)
B22C issue: VA benefits held to be income.
In re Gibson, #08-71770, Bankr. W.D. Va., 2/12/09 Opinion.
Reduction of attorney fees in second case. DR filed second case w/I 3 months of prior case being dismissed. Trustee objected to $500 of the requested $2,600 fee. Court agreed, noting that schedules were virtually identical, and disallowed portion of fee based on Code 30(a)(4)(A)(i) re duplication of services.
In re Keith and Lucy Holmes, #08-62195, Bankr. W.D. Va., 6/5/09 Order
Service of process on objections to claims under Rules 7004 & 9014. If creditor is a corporation, serving an objection to claim on a general corporate mail box address is not sufficient process. But if the creditor has designated a party (e.g., attorney, law firm, or corporate employee) and an address at the top of the POC form, then service on that party at that address does satisfy the Rules.
In re Tomer, 2009 WL 2029798 (W.D. Va. 2009)
Good faith standard: petition vs. case. Analysis of whether a petition was filed in good faith (a “broader and more subjective test”) is separate from that required to determine whether the plan was filed in good faith (a totality of the circumstances test).
In re Taylor, #09-72532, Bankr. W.D. Va., (1/13/10 opinion,).
Court, finding bad faith because debtor filed case to retain encumbered property without the present financial means to propose a confirmable plan, supported dismissal with prejudice.
In re Williams, 424 B.R. 207, 213 (Bankr. W.D. Va. 2010).
Satellite TV and internet services; support for adult child. (1) Court found no evidence that “satellite tv services” were “necessary for the health and welfare of themselves and their dependents,” and disallowed such amounts. (2) Court did find $51/mo for “internet services” was allowable because “for employment related matters.” (3) Court disallowed deduction of $200 for a 40 year old daughter by a previous marriage who had no diagnosed physical or mental impairment.
In re Tinsley, #09-51194, Bankr. W.D. Va., 4/8/10 opinion
Mileage reimbursement was income to be used in calculating “projected disposable income” for below-median debtors; employer per diem is evidence of such expenses. Near the end of the opinion the Court says that it “agrees with the Trustee on the general proposition that debtors must document their expenses and that only expenses that can be confirmed by documentation can be allowed. The Court further agrees with the Trustee on the general proposition that the expenses must be reasonably necessary…”
In re Grunauer, No. 10-11502-SSM, 2010 WL 2425945 at *3 (Bankr. E.D. Va. Jun. 9, 2010).
Tax refunds received within 6 months of filing must be included in calculating CMI income.
In re Marilyn Myers, #10-60880, Bankr. WD VA, 6/21/10 Opinion
109(g)(2) issue: causal connection between motion to lift stay and motion to dismiss case.
In re Bernick, Bankr. ED VA, 1/4/11:
109(e) eligibility for unsecured debts includes undersecured deed of trust debt.
In re Sara M. Travis, #08-71735, W.D. Va. Bankr., 1/19/11 opinion
Debtor attorney fees denied for lift stay motion soon after confirmation of modified plan.
In re Marvin & Wanda Crewey, #11-71179, Bank. W.D. Va., 6/28/11 Opinion
Pre-petition credit counseling session can be taken same day as filing, but must be taken before actual filing
In re Donald and Regina Wallace, #10-72504, Bankr. W.D. Va., 7/8/11 Opinion
Court rules on specific monthly living expenses in below-median case; cigarette expense not allowed.
In re Cathy Knupp, 461 B.R. 351, #06-50342, AP # 10-05012, 7/26/11 opinion
Revocation of debtor’s discharge. Burden of proof on the party seeking the revocation; all 3 elements of 1328(e) must be proven by a preponderance of the evidence.
In re Edward Dunn, # 11-60847, W.D. Bankr Ct., 8/18/11 opinion
Debtors’ attorney ordered to disgorge $5,000 in fees received.
In re Alan & Amy Askew, Bankr. Ct. W.D. Va., #09-60155, 9/15/11 Opinion
Trustee will not be compelled to recover and redistribute properly-distributed funds in re-opened case.
Even though a confirmed plan provides for payments on a claim, the creditor is not entitled to receive a distribution unless it has filed a timely proof of claim.
In re Nolan Burnett, #11-71622, Bankr. W.D. Va. (11/18/11 Order).
Secured creditor cannot file as unsecured, and must amend its POC to secured. Debtor objected to a mortgage POC that was filed as “unsecured” but had attached to it a perfected deed of trust. The claim was listed in the schedules as a fully secured second lien deed of trust, and the plan proposed to cure the arrearage and have the debtor continue to make the regular monthly payment directly. The creditor had informed debtor’s counsel that it had made a “business decision” to file as unsecured even though it held a perfected lien, and declined to amend its claim. If the claim were treated as unsecured, it would frustrate the debtor’s ability to pay his creditors in full. The Court found that “…the intentional filing of an unsecured claim by the creditor which in fact has a fully secured claim and is being so treated in the Plan may violate Rule 9011(b)(1)(2) and (4) and subject the creditor to possible sanctions.” Held: The objection is sustained and the creditor’s claim is disallowed. The creditor shall, w/i 30 days, file an amended claim as a secured creditor and complete all appropriate sections of the official POC form, including the amount of the arrearage. Failing that, it will be bound by the amount of the arrearage set forth in the debtor’s confirmed plan.
White v. FIA Card Services, et al (In re Angela D. White), #4:12cv00022, Dist. Ct. WD Va., 11/7/12 opinion
Secured creditor’s lien should be avoided under 506(d) when it files an unsecured claim.
In re Sandra D. Carr,, 468 B.R. 806, # 06-11472 (ED VA Bankr. Ct., 3/19/12 opinion).
Rule 3002.1: no creditor attorney’s fee for responding to Trustee’s final notice.
In re Mitrano, E.D. Va. 4/16/12), #1:12cv32,
Debtor’s right to dismiss a Chapter 13 case can be forfeited by bad faith; proper for Court to convert case to Chapter 7.
In re Williams, No. 11-15920-RGM, 2012 WL 1556532, at *3 (Bankr. E.D. Va. May 1, 2012)
Proposed plan not confirmed because recent purchase of luxury car showed bad faith.
In re Judith M. Burke, # 11-51585, Bankr. Ct., WD Va (6/14/12 Opinion).
Late filed POC in Chapter 13 must be disallowed; Court has no discretion.
In re Jerrilan Keys, # 11-62887, Bankr. WD Va., 10/25/12 Order
Rule 3002.1 charge of $425 assessed by mortgagee against a totally current debtor disallowed, and debtor awarded $500 in attorney fees.
In re Bobby Bateman, Bankr. W.D. Va., #12-62722, 1/29/13 Order
Disallowance of claim for failure to comply with Rule 3001(3)
In re Jean K. Mitchell, Bankr. W.D. Va., # 12 70856, 1/30/13 opinion
Discussion of liquidated, non-contingent, and undisputed debts under 109(e); Court must decide based on the schedules; debtor has the burden of proof.
In re Leroy and Mary Jane Mull, Bankr. W.D. Va., # 12 71486, 2/5/13 opinion
Debtor can’t reopen a dismissed but still open case; Rule 9024 is the correct avenue.
In re Leslie L. Ludwig, Bankr. W.D. Va., #12 51167, 02/25/13 opinion
Factors in determining support obligation vs. property settlement obligation.
In re Michael and Brandy Perrow, Bank. W.D. Va., #09-61234, A.P. # 11-06082, 9/5/13 Opinion
Ch. 13 Trustee can use his strong-arm powers under Code 544(a)(3) to avoid an unrecorded deed of trust; numerous equitable remedies overruled.
In re Pearson, 08-01970 (N.D. W.Va. May 26, 2015),
Only debtor who can be called upon to pay prepetition claims may qualify for relief under Chapter 13 of the Bankruptcy Code.