Welcome to the National Consumer Bankruptcy Rights Center (NCBRC), your pivotal resource for the latest developments in consumer bankruptcy law. This page is to keep you informed on the most recent court opinions and legal updates that impact consumer debtors and bankruptcy attorneys across the nation.  We have also included, when available, the briefs submitted in these cases. We hope this will assist you in drafting your appellate arguments and briefs.

Opinion/Briefs (Click)JurisdictionDateSummaryCode/Rule
In re BaurBankr. E.D. MO (en banc)3/29/2024In a case involving bifurcated chapter 7 attorney's fees, the court found the language in the attorney-client agreement not to be clear and conspicuous, as required by Section 528(a)(1), because it was not clear that the firm would continue to represent the debtors if no post-petition agreement was signed. As such it was voided. However, the court held that the contracts were not so unclear as to be misrepresentation of services in violation of Section 526(a)(3)(A).

"In each of these cases, the Acting United States Trustee for Region 13 (the "U.S. Trustee") filed United States Trustee's Motion for Examination of the Fees of the Debtor's Attorneys and for Imposition of a Civil Penalty Pursuant to 11 U.S.C. §§ 329, 526, and 528, Federal Rule of Bankruptcy Procedure 2017 [sic] (collectively, the "Motions"). The Motions concern the engagement agreements between each of the Debtors and the A & L, Licker Law Firm, LLC (the "Firm"). As we describe in detail below, each Debtor entered into two agreements with the Firm: one executed pre-petition that did not require payment of any attorneys' fees (each a "Pre-Filing Agreement"; collectively the "Pre-Filing Agreements"), and another executed post-petition that required the Debtor to pay $1,462.00 in fees (each a "Post-Filing Agreement"; collectively the "Post-Filing Agreements"; and with the Pre-Filing Agreements, the "Agreements"). Courts and practitioners commonly refer to an arrangement of this type as a "bifurcated" engagement. ...

"Bifurcation represents a potential solution to the problem of payment for a Chapter 7 debtor's attorney. In a bifurcated engagement, the lawyer and the prospective debtor enter into two agreements. The first, executed before the bankruptcy filing, covers the work required to prepare and to file a bankruptcy case. Attorneys using this system [*6] often charge a relatively low fee for this work, and in some cases, including the ones before us, charge no fee for these services. The parties enter into the second agreement after the filing, and it covers the remaining work to be done in the case.1 In theory, this second agreement creates a post-petition debt and financial obligation to the attorney that is not subject to the automatic stay or the discharge, so that the attorney may bill and collect fees from the debtor as the case proceeds. See David Cox, Why Chapter 7 Bifurcated Fee Agreements are Problematic, 40 Am. Bankr. Inst. J. 30, 30 (June 2021); Terrence L. Michael, There's A Storm A Brewin': The Ethics and Realities of Paying Debtors' Counsel in Consumer Chapter 7 Bankruptcy Cases and the Need for Reform, 94 AM. BANKR. L.J. 387, 395-400 (2020).

"Bifurcated agreements have met with mixed results. Some courts find bifurcation acceptable if counsel complies with certain requirements. See, e.g., In re Cialella, 643 B.R. 789, 814 (Bankr. W.D. Pa. 2022); In re Brown, 631 B.R. 77, 95-103, 105 (Bankr. S.D. Fla. 2021). Others disagree, concluding that bifurcated agreements are illusory, duplicitous, or otherwise impermissible. See In re Suazo, 655 F. Supp. 3d 1094, 1110-11 (D. Colo. 2023) ("Suazo II"); In re Rosenschein, 651 B.R. 677, 691 (D.S.C. 2023); In re Siegle, 639 B.R. 755, 758-59 (Bankr. D. Minn. 2022). In still other cases, judges found it unnecessary to decide whether bifurcation is generally appropriate because attorneys have violated other federal or local rules. See, e.g., In re Kolle, 641 B.R. 621, 686-87 (Bankr. W.D. Mo. 2021). A decision of the Bankruptcy Appellate Panel in our Circuit falls within this last category. See In re Allen, 628 B.R. 641, 643, 645-46 (B.A.P. 8th Cir. 2021) (finding fees unreasonable under Federal Rule of Bankruptcy Procedure 2017(a) and (b) where attorney charged clients more under bifurcated arrangements than he charged clients who paid in advance).

"Bifurcation represents a potential solution to the problem of payment for a Chapter 7 debtor's attorney. In a bifurcated engagement, the lawyer and the prospective debtor enter into two agreements. The first, executed before the bankruptcy filing, covers the work required to prepare and to file a bankruptcy case. Attorneys using this system [*6] often charge a relatively low fee for this work, and in some cases, including the ones before us, charge no fee for these services. The parties enter into the second agreement after the filing, and it covers the remaining work to be done in the case.1 In theory, this second agreement creates a post-petition debt and financial obligation to the attorney that is not subject to the automatic stay or the discharge, so that the attorney may bill and collect fees from the debtor as the case proceeds. See David Cox, Why Chapter 7 Bifurcated Fee Agreements are Problematic, 40 Am. Bankr. Inst. J. 30, 30 (June 2021); Terrence L. Michael, There's A Storm A Brewin': The Ethics and Realities of Paying Debtors' Counsel in Consumer Chapter 7 Bankruptcy Cases and the Need for Reform, 94 AM. BANKR. L.J. 387, 395-400 (2020).

"Bifurcated agreements have met with mixed results. Some courts find bifurcation acceptable if counsel complies with certain requirements. See, e.g., In re Cialella, 643 B.R. 789, 814 (Bankr. W.D. Pa. 2022); In re Brown, 631 B.R. 77, 95-103, 105 (Bankr. S.D. Fla. 2021). Others disagree, concluding that bifurcated agreements are illusory, duplicitous, or otherwise impermissible. See In re Suazo, 655 F. Supp. 3d 1094, 1110-11 (D. Colo. 2023) ("Suazo II"); In re Rosenschein, 651 B.R. 677, 691 (D.S.C. 2023); In re Siegle, 639 B.R. 755, 758-59 (Bankr. D. Minn. 2022). In still other cases, judges found it unnecessary to decide whether bifurcation is generally appropriate because attorneys have violated other federal or local rules. See, e.g., [*7] In re Kolle, 641 B.R. 621, 686-87 (Bankr. W.D. Mo. 2021). A decision of the Bankruptcy Appellate Panel in our Circuit falls within this last category. See In re Allen, 628 B.R. 641, 643, 645-46 (B.A.P. 8th Cir. 2021) (finding fees unreasonable under Federal Rule of Bankruptcy Procedure 2017(a) and (b) where attorney charged clients more under bifurcated arrangements than he charged clients who paid in advance). ...

"The Pre-Filing Agreement states [*27] both that a debtor must execute a Post-Filing Agreement to receive Post-Filing and Supplemental Post-Filing Services and that the debtor has the right to "all legal services necessary" without signing a Post-Filing Agreement.5 An individual lacking experience in consumer bankruptcy practice would not understand whether one set of services is more expansive than the other. See In re Reeves, 648 B.R. 289, 295 (Bankr. D.S.C. 2023) ("[A] layperson is not likely to understand what services are required for a bankruptcy case to be successfully completed.").

"The Agreements Are Not Clear and Conspicuous, as Required by Section 528(a)(1)

"Section 528(a)(1) of the Bankruptcy Code requires a debt relief agency, including a bankruptcy attorney, to execute a written contract with a debtor that clearly and conspicuously explains the services the agency will provide and the fees and charges for those services. 11 U.S.C. § 528(a)(1); see Milavetz, 559 U.S. at 237-38. Any contract that does not comply is "void and may not be enforced by any Federal or State court or by any other person," other than the debtor. 11 U.S.C. § 526(c)(1). One court summarized this principle as follows: "Agreements cannot be sufficiently 'clear' if they make inconsistent statements about what [the attorney] will or will not do for [a debtor] in [a] case." Siegle, 639 B.R. at 759. ...

"To begin, it is unclear what services a debtor could expect to receive under the Pre-Filing Agreement. The File [*26] Now Pay Later option in the Pre-Filing Agreement provides a debtor with three explicit options after the bankruptcy case commences: (1) proceed pro se for the remainder of the case; (2) hire a different attorney; or (3) enter into a Post-Filing Agreement. Pre-Filing Agreement at 3-4. This might be sufficiently clear if the universe of possibilities constituted only these three options. But the Firm separately guarantees to "provide all legal services necessary for representation of [the client] in connection with the bankruptcy case until conclusion of the case regardless of [the client's] signing a post petition agreement or making post petition payments." Id. at 4. This fourth option's existence—where a debtor receives all legal services necessary for completion of the case without signing a second agreement or paying any fees—is implicit at best. See Siegle, 639 B.R. at 759 ("The Agreements as written obscure the reality that execution of the Post-Petition Agreement was not necessary to ensure the provision of legal services."). ...

"The Firm's reservation of the right to withdraw from the representation for "important reasons" under the fourth option amplifies this uncertainty. Pre-Filing Agreement at 1. This qualification is unclear in at least two respects. First, because the Pre-Filing Agreement does not mention the possibility of withdrawal for ethical or other reasons even if the client signs the Post-Filing Agreement, the Pre-Filing Agreement implies that the client would receive less comprehensive representation from the Firm under the fourth option. In fact, any truly important reason that might justify the Firm's withdrawal under the fourth option, such as the client's perjury or an irreparable breakdown in communication, would apply equally to any engagement, regardless of whether a client signed a Post-Filing Agreement. And second, a client unfamiliar with legal ethics principles would not understand what a court could or would consider important enough to justify counsel's withdrawal.

"One thing is perfectly clear: a client's refusal to sign a Post-Filing Agreement or to pay post-petition legal fees cannot be among the "important reasons" for withdrawal referred to in the Agreements, because the Pre-Filing Agreement states that the Firm will provide legal services "regardless of [the client's] signing a post petition agreement or making post petition payments." ...

"The Post-Filing Agreement also lacks clarity. The five commitments in the Pre-Filing Agreement to provide "all legal services necessary" may help the Firm minimize the chances that it violates Local Rule 2093(C)(3), but they create considerable uncertainty about the services provided to a debtor under the Post-Filing Agreement. In particular, the Firm's undertaking in the Post-Filing Agreement to provide the Post-Filing and Supplemental Post-Filing Services—although those terms do not appear in the Post-Filing Agreement—is legally superfluous. Because the Firm previously contracted to provide a client all necessary services in the Pre-Filing Agreement, the Firm's obligations under the Post-Filing Agreement comprise an empty set.6 As a functional matter, then, the Post-Filing Agreement does not document an exchange of legal fees for legal services; instead, it obligates the client [*30] to pay for services that the Firm agreed to provide pre-petition. See Siegle, 639 B.R. at 759 ("In fact, the real purpose of the Post-Petition Agreement is to ensure the collectability of [the attorney's] unpaid legal fees.").

"The Firm's disclosures on the Form B2030s compound these problems. All five Form B2030s state that "[t]he second, post-petition fee agreement was signed after the petition was filed." See, e.g., Doc. 1 at 9. However, this Court's docket shows that two of the five disclosure forms were attached to the clients' bankruptcy petitions. ...

"For these reasons, we conclude that the Pre-and Post-Filing Agreements do not clearly describe the services to be provided by the Firm. Thus, they do not comply with Section 528(a)(1).

" The Firm's Fees Are Unreasonable Under Section 329(b)

"Section 329(b) of the Bankruptcy Code authorizes courts to cancel a fee agreement or to order a refund of fees to the extent that an attorney's compensation exceeds the reasonable value of their services. 11 U.S.C. § 329(b). Rule 2017 implements the statute, authorizing courts to determine whether fees are "excessive." Fed. R. Bankr. P. 2017(b). This analysis involves "the comparison of the amount of compensation received by the attorney with the reasonable value of the services performed." In re Redding, 247 B.R. 474, 478 (B.A.P. 8th Cir. 2000) (cleaned up). The Firm has the burden to demonstrate the reasonableness of its fees. In re Clark, 223 F.3d 859, 863 (8th Cir. 2000).

"We agree with the U.S. Trustee that the Firm has not shown that all of its fees in these cases were reasonable. In a typical case involving Section 329(b), we would need to determine what would have been a reasonable fee for the Firm to charge and then direct the Firm to return the excess to the Debtors. See Redding, 247 B.R. at 478-79. However, this would not be a meaningful exercise in these cases because of our disposition of the Section 528(a)(1) claim above.

"The U.S. Trustee Has Not Demonstrated That the Firm Misrepresented Its Services in Violation of Section 526(a)(3)(A)

"Section 526(a)(3)(A) of the Bankruptcy Code provides that a debt relief agency may not "misrepresent . . . directly or indirectly, affirmatively or by material omission . . . the services that such agency will provide." 11 U.S.C. § 526(a)(3)(A). Section 526(a)(3)(A)'s prohibition on misrepresentation covers some of the same ground as Section 528(a)(1)'s clarity requirements, but there are distinctions. Congress used different language in the two statutes to describe the behavior that violates each statute. As a result, a document with a description of legal services that is not "clear," as required by [*33] Section 528(a)(1), does not necessarily "misrepresent" the attorney's willingness or obligation to provide those services or violate Section 526(a)(3)(A). Moreover, Section 526 violations may lead to civil penalties, but Section 528 violations do not, which suggests that the former involves more egregious conduct. See 11 U.S.C. § 526(c)(5). ...

"For these reasons, we conclude that, although the Firm's explanation of the services it agreed to provide to the Debtors was unclear, as well as inaccurate in certain respects, the U.S. Trustee has not shown that the Firm misrepresented the services it would provide for purposes of Section 526(a)(3)(A).

"Remedies

"We now address the results of our findings in these matters. Because the Post-Filing Agreements violate Section 528(a)(1) of the Code, they are void under Section 526(c)(1), and no person or court can enforce them, other than the Debtors. Moreover, because the Firm's violation of Section 528 was at least negligent, it is liable to the Debtors for any fees and charges the Firm received from them. See 11 U.S.C. § 526(c)(2)(A). Although our analysis of the merits might justify ordering the same relief as to the Pre-Filing [*39] Agreements, those agreements are no longer executory, and the Firm received no fees under them. Thus, we cannot award any meaningful relief regarding the Pre-Filing Agreements.

"Next, the Firm's obligation to refund all amounts received from the Debtors under Section 528(a)(1) means that we need not determine what portion of any fees qualifies as reasonable under Section 329(b). Finally, because we concluded that the Firm did not violate Section 526(a)(3), no basis exists to award a civil penalty under Section 526(c)(5)."


11 U.S.C. § 526(c)(2)(A)
11 U.S.C. § 528(a)
In re Walker-LightfootBankr. MD3/27/2024The court sustained the trustee's objection to debtor's exemption of a legal malpractice claim (against her former bankruptcy attorney) under a personal injury exemption under Maryland state law.

"On the record before it, however, the Court cannot find that the Debtor's claim would qualify as an exempt personal injury recovery under Maryland law. The Court notes that emotional distress may, in certain instances, rise to the level of physical injury and that Maryland law does not appear to preclude emotional distress damages in the context of a legal malpractice claim. Nevertheless, the Debtor did not offer any evidence to suggest a physical injury resulting from emotional distress. For example, the Debtor did not produce any evidence of doctor or therapist bills, time off from work, or the testimony of others who observed the physical manifestation of the distress. The Court acknowledges the Debtor's own testimony regarding how the situation and emotional distress affected her, but that testimony alone cannot suffice. Indeed, Maryland courts require "objective evidence" of emotional distress damages "to guard against feigned claims." Vance v. Vance, 408 A.2d 728, 733 (Md. 1979).

"In addition, the Court observes that the settlement between the Debtor and her former counsel is silent regarding the exact nature of the claims being settled or the allocation of the monies being paid under the settlement. If the Debtor had offered adequate evidence of an emotional distress claim under Maryland law, the terms of the settlement might be less relevant. But on the current record, the Court has no evidence of a personal injury resulting from emotional distress and no indication of a settlement of that kind of claim. The Court rejects the Debtor's attempt to cast the broad language of the release as sufficient. Again, finding an allowable exemption based on the current record would subject the process to potential fraud and abuse and not adequately "guard against feigned claims." Vance, 408 A.2d at 733."
11 U.S.C. § 522
Md. Code Ann., Cts & Jud. Proc. § 11-504(b)(2)
In re GibsonBankr. S.D. GA3/27/2024The court affirmed sanctions against debtor's attorney and Sheppard Legal Services. The court held that both parties violated § 329(a) and Bankruptcy Rule 2016(b) for failing to properly disclose their financial arrangement. Also, the parties violated § 707(b)(4)(C) and Bankruptcy Rule 9011(b)(3) for failing to conduct a reasonable inquiry before the case was filed. Further, the court held that the retainer agreement was void under §§ 528(a)(1) and 526(c) because all parties did not sign the retainer agreement. The court additionally found that Recovery Law Group engaged in the unauthorized practice of law. Finally, the court found that Recovery Law Group's business model inevitably leads to mischief.

Debtor's attorney owned and runs her own law practice and also is a non-voting, non-equity member of Sheppard Legal Services LLC. The court described Sheppard Legal Services as follows: "Under that model, prospective clients communicate by telephone and email with Recovery Law Group staff, who are not attorneys licensed to practice in the State of Georgia. Recovery Law Group staff gather the clients' financial information, advise them on the appropriate Chapter under which to file, and prepare their bankruptcy petition, schedules, statement of financial affairs, and other papers. Then Recovery Law Group has a Georgia lawyer, who has no ownership interest or management authority in Recovery Law Group, file the bankruptcy case and attend the § 341 meeting." ...

"In her Disclosure of Compensation of Attorney for Debtor(s) filed with the bankruptcy petition, Ms. Sheppard identified her law firm as Sheppard Legal Services, LLC, disclosed that she had been paid $1,500.00 by the Debtors for her services, and certified that she had not agreed to share such compensation with any other person outside her firm. What she did not disclose was that she worked for Recovery Law Group on a contract basis, that the Debtors paid $1,838.00 to Recovery Law Group, and that Ms. Sheppard received from Recovery Law Group for her services in this case only $300.00.

"After the Debtors each received a Chapter 7 discharge in April 2022, Mary Ida Townson, United States Trustee for Region 21, moved for sanctions against Ms. Sheppard and Recovery Law Group. The U.S. Trustee sought disgorgement of the fees paid by the Debtors, arguing that (1) Ms. Sheppard and Recovery Law Group violated the disclosure requirements of § 329(a) and Bankruptcy Rule 2016(b); (2) Ms. Sheppard and Recovery Law Group made false statements in violation of § 707(b)(4)(C) and Bankruptcy Rule 9011(b)(3); (3) the retainer agreement between the Debtors and Recovery Law Group was void and unenforceable under §§ 528(a)(1) and 526(c); (4) Ms. Sheppard and Recovery Law Group engaged in unauthorized fee-sharing in violation of § 504(a); and (5) Recovery Law Group engaged in the unauthorized practice of law in violation of O.C.G.A. § 15-19-51(a) and Rule 5.5(a) of the Georgia Rules of Professional Conduct. ...

"As explained below, the Court reaffirms its conclusions that Ms. Sheppard and Recovery Law Group violated § 329(a) and Bankruptcy Rule 2016(b), that they violated § 707(b)(4)(C) and Bankruptcy Rule 9011(b)(3), that they entered into a void and unenforceable retainer agreement under §§ 528(a)(1) and 526(c), and that Recovery Law Group engaged in the unauthorized practice of law. But upon further consideration, the Court now finds that it is not clear whether Ms. Sheppard and Recovery Law Group engaged in unauthorized fee-sharing in violation of § 504(a). Regardless, based on their violations of several other provisions of the Bankruptcy Code and Bankruptcy Rules, the Court will still impose a sanction on Ms. Sheppard and on Recovery Law Group. The Court [*26] agrees with them, however, that the sanction should be reduced from $1,838.00 to $1,500.00.

"Ms. Sheppard and Recovery Law Group Violated § 329(a) and Bankruptcy Rule 2016(b)

"In her Motion for Sanctions, the U.S. Trustee argued that Ms. Sheppard and Recovery Law Group made inadequate disclosures in the Disclosure of Compensation of Attorney for Debtor(s) (Official Form B2030) and thus violated § 329(a) of the Bankruptcy Code and Bankruptcy Rule 2016(b). (Dckt. 35, pp. 5-7, ¶¶ 23-26). In their Motion to Reconsider, Ms. Sheppard and Recovery Law Group argue that Ms. Sheppard was an employee—indeed, a "member or regular associate"—of Recovery Law Group when she filed the Debtors' case. They therefore contend that the disclosure form accurately reflected the Debtors' payment of $1,500.00 to Recovery Law Group and that Bankruptcy Rule 2016(b) did not require them to disclose the particulars of any fee-sharing agreement. (Dckt. 51, pp. 3-5, ¶¶). The Court disagrees. ...

"Although nothing in the Bankruptcy Code defines the exact parameters of an employment relationship for purposes of § 329(a) and Rule 2016(b),19 the employment contract between Ms. Sheppard and Recovery Law Group belies their contention that she was an employee of that firm, much less a member or regular associate. Although the contract described [*29] her as a "partner/member" of Recovery Law Group, it also stated that she had no equity or voting rights in the firm and that she was employed in a "part-time contract" capacity. Clients signed retainer agreements with Recovery Law Group, not with Ms. Sheppard, and Recovery Law Group paid her on a case-by-case basis.

"And, as evidenced by her disclosure form, Ms. Sheppard maintained a separate law practice, Sheppard Legal Services, LLC. It is "quite unusual for one lawyer to have two competing law practices[.]" In re Deighan Law LLC, 637 B.R. 888, 896 (Bankr. M.D. Ala. 2022). "This aspect of the relationship alone is more consistent with the notion" that Ms. Sheppard was "hired on a contract or 'piece work" basis rather than being [a] true partner[] or regular associate[]." Id.

"Above all, nothing in Ms. Sheppard's disclosure form so much as hinted at her relationship with Recovery Law Group. She failed to disclose that she only received $300.00 from the $1,838.00 the Debtors paid Recovery Law Group. Instead, she falsely certified that she had not agreed to share the $1,500.00 with anyone other than "members and associates of [her] law firm," which she identified as Sheppard Legal Services, LLC. In nearly identical circumstances, another bankruptcy [*30] court found that Recovery Law Group's "disclosures [fell] short of providing accurate information." In re Burnett, No. 21-02018-dd, 2022 WL 802586, at *9 (Bankr. D.S.C. March 16, 2022). So too here. The Court finds that Ms. Sheppard was not a member or regular associate of Recovery Law Group and that their inadequate disclosures violated § 329(a) and Bankruptcy Rule 2016(b).

"Ms. Sheppard and Recovery Law Group Violated § 707(b)(4)(C) and Bankruptcy Rule 9011(b)(3) ...

"..."The 'reasonable investigation' required under Section 707(b)(4)(C) is coterminous with the 'reasonable inquiry' required under Rule 9011." Dignity Health v. Seare (In re Seare), 493 B.R. 158, 209 (Bankr. D. Nev. 2013). "A reasonable investigation by counsel" is "essential to the administration of the bankruptcy case because the court, the trustee, and creditors are dependent upon debtors and their counsel providing accurate and complete information in the petition and schedules[.]" In re Beinhauer, 570 B.R. 128, 136 (Bankr. E.D.N.Y. 2017) (quoting In re Hanson, No. 8-13-73855-las, 2015 WL 891669, at *6 (Bankr. E.D.N.Y. Feb. 27, 2015)).

"Here, it was Recovery Law Group, not Ms. Sheppard, that gathered financial information from the Debtors. Mrs. Gibson testified that she and her husband sent their pay stubs and tax returns to Recovery Law Group. Patricia Mulcahy, a Recovery Law Group employee, recommended, based on the Debtors' financial circumstances, that they file under Chapter 7. Using the documentation the Debtors submitted, Recovery Law Group prepared the Debtors' petition, schedules, statement of financial affairs, and other papers. Based on the testimony in this case, it appears Ms. Sheppard's investigation into the Debtors' finances was limited to a 45-minute phone call three days before filing their bankruptcy petition.

"The Court finds that Ms. Sheppard's investigation was objectively unreasonable. Debtor's counsel has "an affirmative duty . . . to take steps to ensure that the client is providing complete and accurate information. Seare, 493 B.R. at 210. "Merely relying on what the debtor provides is insufficient." Id. Instead, "[t]he attorney must engage with the client and not just take a passive role[.]" Id. "[A]ttorneys must exercise not only supervision, but, more importantly, professional judgment that derives only through personal involvement in the case and evaluation of the client's needs." Id. (emphasis in original). Under her contract with Recovery Law Group, Ms. Sheppard had to take her marching orders from managing attorneys who may not have been admitted to practice in Georgia. And although "there is nothing inherently wrong with consulting a client by telephone," attorneys "must meet their clients." In re Mitchell-Fields, No. 23-20721-GLT, 2023 WL 6396022, at *3 (Bankr. W.D. Pa. Sept. 29, 2023). Based on her limited investigation before filing this case, Ms. Sheppard violated § 707(b)(4)(C) and Bankruptcy Rule 9011(b)(3).

"The Retainer Agreement is Void under §§ 528(a)(1) and 526(c)

"In the Motion for Sanctions, the U.S. Trustee argues that the retainer agreement between the Debtors and Recovery Law Group does not materially comply with the Bankruptcy Code's debt relief agency provisions of §§ 526 and 528 for two reasons: first, that it was not signed by all the parties, and second, that it did not adequately account for "[w]here and to whom" the $1,838.00 flat fee would go. (Dckt. 35, pp. 8-9, ¶¶ 30-31). Ms. Sheppard and Recovery Law Group address only the U.S. Trustee's second argument, stating that the retainer agreement "specifically detail[s] the flat fee attorney fees and costs and whatever other possible fees could be charged." (Dckt. 51, p. 7, ¶ 21). At the August 10, 2023 hearing, the Court agreed with the U.S. Trustee's first argument that the lack of signatures renders the retainer agreement void and unenforceable. The court did not address the second argument regarding the adequacy of disclosures about the fee and thus need not do so here. ...

"Here, Ms. Sheppard and Recovery Law Group do not dispute that they are debt relief agencies or that the Debtors are assisted persons as defined in the Bankruptcy Code. The retainer agreement, therefore, is subject to the requirements of §§ 526 and 528, and the Court finds that it fails to satisfy those requirements. On behalf of Recovery Law Group, the agreement was signed by someone identified only as Nicholas, whose surname does not appear in that document. Mrs. Gibson signed it, but Mr. Gibson did not. And the agreement made no mention of Ms. Sheppard or of Sheppard Legal Services, LLC. For all three reasons, the agreement was inadequate. "A fully executed and completed contract must be signed by all the parties." In re Negron, 616 B.R. 583, 592 (Bankr. D.P.R. 2020). See also [*36] In re Thomas, --- B.R. ---, 2024 WL 628591, at *8 (Bankr. C.D. Ill. Feb. 14, 2024) (holding local contract attorney "fail[ed] to execute a written attorney retention and fee agreement"); Seare, 493 B.R. at 215 (holding attorney "failed . . . to provide a 'fully executed and completed contract' because he did not sign the [r]etainer [a]greement"). Because the retainer agreement was not "fully executed and completed" under § 528(a), it is void and unenforceable under § 526(c)(1). ...

"Recovery Law Group Engaged in the Unauthorized Practice of Law

"The U.S. Trustee argues that Recovery Law Group engaged in the unauthorized practice of law because "staff at [Recovery Law Group] not licensed to practice in Georgia or admitted in the Southern District of Georgia provide[d] a substantial portion of the pre-petition services and counseling" in this case. (Dckt. 35, p. 10, ¶ 34). Ms. Sheppard and Recovery Law Group disagree, stating that Ms. Sheppard "is a duly licensed attorney in the state of Georgia" and that she "filed the bankruptcy case as attorney of record for the Debtors" after reviewing their papers prepared by Recovery Law Group. (Dckt. 51, p. 8, ¶¶ 26-27). Notably, they did not identify any other lawyer with Recovery Law Group licensed to practice in the State of Georgia. In any event, the Court rejects Ms. Sheppard and Recovery Law Group's contentions and finds that Recovery Law Group engaged in the unauthorized practice of law. ...

" Recovery Law Group's Business Model Inevitably Leads to Mischief

"Finally, a few words about Recovery Law Group's business model, which appears calculated to maximize revenue and to minimize professionalism. Under that model, prospective clients communicate by telephone and email with Recovery Law Group staff, who are not attorneys licensed to practice in the State of Georgia. Recovery Law Group staff gather the clients' financial information, advise them on the appropriate Chapter under which to file, and prepare their bankruptcy petition, schedules, statement of financial affairs, and other papers. Then Recovery Law Group has a Georgia lawyer, who has no ownership interest or management authority in Recovery Law Group, file the bankruptcy case and attend the § 341 meeting. Clients in need of time-sensitive bankruptcy relief may be out of luck: the Debtors in this case signed the retainer agreement with Recovery Law Group on June 30, 2021, but did not file for bankruptcy until November 14, 2021, over four months later, and more than two months after they had paid the requested fees of $1,838.00.

"Courts have criticized similar business models for "foster[ing] an environment of confusion, incompetence, and apathy." Deighan Law, 637 B.R. at 921. Perhaps the biggest issue with [Recovery Law Group's] business model is that non-lawyer staff[,] . . . hundreds of miles away and with no effective supervision, are practicing law in bankruptcy cases" filed in the Southern District of Georgia. [*46] Id. at 922. It is no surprise, then, that several courts have sanctioned Recovery Law Group.24 Regardless, the Georgia Rules of Professional Conduct require a lawyer to "provide competent representation to a client," defining competence as "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Georgia Rules of Professional Conduct 1.1. "If the business model under which [an attorney] is employed does not allow him the means to provide competent representation, then he is obligated [to] cut ties and seek another position elsewhere." Deighan Law, 637 B.R. at 921-22. To her credit, Ms. Sheppard has done just that. (Tr. at p. 63)."

11 U.S.C. § 329(a)
11 U.S.C. § 526(c)
11 U.S.C. § 528(a)(1)
11 U.S.C. § 707(b)(4)(c)
Fed. R. Bankr. P. 2016(b)
Sugar v BurnettD. E.D. NC3/27/2024The court affirmed the dismissal of debtor's chapter 13 case after the debtor sold her residence without permission from the bankruptcy court (per local rule) despite language in the chapter 13 plan that vested that property in the debtor upon confirmation.

"Appellant's case was dismissed for willful failure to comply with Local Bankruptcy Rule 4002-1(g)(4), which prohibits disposal of "non-exempt property" valued above $10,000 without "prior approval of the trustee and an order of the court." Local Bankruptcy Rule 4002-1(g)(4). According to appellant, the sale of her home did not violate the foregoing provision where her home was not part of the bankruptcy estate. Appellant argues in the alternative that the foregoing provision exceeds the bankruptcy court's rulemaking authority. Finally, appellant maintains that dismissal for failure to follow Local Bankruptcy Rule 4002-1(g)(4) was improper. ...

Vesting Doesn't Remove Property From The Bankruptcy Estate

"Appellant argues that no part of her residence was part of the bankruptcy estate because upon the confirmation of the plan all the property constituting such estate vested in her, was removed from the jurisdiction of the bankruptcy court, and became unburdened from the claims of her creditors. She relies on 11 U.S.C. § 1327(b)-(c), which provides in part that the “confirmation of a plan vests all property of the estate in the debtor,” and such vested property is “free and clear of any claim or interest of any creditor provided for by the plan.” (See also DE 16 at 18). As set forth below, this argument omits key language from the portion of the bankruptcy code that it cites, has been rejected by the United States Court of Appeals for the Fourth Circuit, and simply ignores other provisions of the bankruptcy code.

"First, appellant quotes § 1327(c) selectively. The full section reads, “[e]xcept as otherwise provided in the plan or in the order confirming the plan, the property vesting in the debtor under subsection (b) of this section is free and clear of any claim or interest of any creditor provided for by the plan.” § 1327(c) (emphasis added). All appellant’s arguments thus are ineffective if the plan or the order confirming it stipulates that vested property continues to be governed by the bankruptcy court. (Citations omitted.)

"The confirmed plan reads, “regardless of when property of the estate vests in the [d]ebtor[], property not surrendered or delivered to the Trustee . . . shall remain in the possession and control of the [d]ebtor[].” (Chapter 13 Plan (DE 5-1 at 62)) (emphasis added). “The use of property by the [d]ebtor[] remains subject to the requirements of 11 U.S.C. § 363, all other provisions of the Bankruptcy Code, Bankruptcy Rules, and Local Rules.” (Id.). § 363(b)(1), in turn, provides that the “trustee, after notice and a hearing, may . . . sell . . . property of the estate.” § 363 (emphasis added). See also § 1303 (providing that the debtor has the same rights as a trustee under §§ 363(b)). The statute on which debtor relies provides that its applicability is subject to exceptions provided for in the plan, and the plan in this case specifically stipulates that all estate property is governed by the Bankruptcy Code and local rules regardless of vesting. ...

Validity of Local Rule Requiring Court Approval for Sale of Property Exceeding $10,000

"Appellant argues that Local Bankruptcy Rule 4002-1(g)(4) exceeds the bankruptcy court’s rulemaking authority. ... The court holds that Local Bankruptcy Rule 4002-1(g)(4) is valid as applied to appellant. ...

"Appellant argues first that Local Bankruptcy Rule 4002-1(g)(4) is substantive, rather than procedural. A procedural rule governs “the manner and means by which the litigants’ rights are enforced” as opposed to a substantive “rule[] of decision by which the court will adjudicate those rights.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010). “The test is not whether the rule affects a litigant’s substantive rights; most procedural rules do.” Id.; see In re Walat, 87 B.R. 408, 411 (Bankr. E.D. Va. 1988) (Local Bankruptcy Rules “are entitled to a presumption that they were promulgated with the proper authority and do not affect substantive right[s.]”).

"Appellant has not identified any substantive right that was violated in this instance. Appellant does not identify, and the court has not found, any provision of the Bankruptcy Code that gives a Chapter 13 debtor an absolute right to sell property of the estate. To the contrary, § 363 curtails a debtor’s ability to sell property of the estate by requiring “notice and hearing” before any sale may take place. See §363(b); see also § 1303 (providing that the debtor has the same rights as a trustee under § 363(b)). Upon request of an entity with an interest in the property proposed to be sold, “the court, with or without a hearing,” is empowered to prohibit the sale of property in order to protect such interest. § 363(e). Board of Regents v. Roth, to which appellant refers for the principle that the right to contract is protected by the United States Constitution, is an employment case which references neither bankruptcy nor the buying and selling of property. 408 U.S. 564, 572 (1972). Nor does appellant explain how Local Bankruptcy Rule 4002-1(g)(4) implements a “rule of decision.” Shady Grove Orthopedic Associates, P.A., 559 U.S. at 407. Appellant thus fails to meet her burden. ..."
11 U.S.C. § 363
11 U.S.C. § 1307
11 U.S.C. § 1327(b)-(c)
In re RodriguezBankr. OR3/26/2024The court held that Concast's post-petition collection efforts were not a violation of the automatic stay because they were collecting upon post-petition obligations for service. Further, the court held that post-petition reporting of overdue or delinquent payments, without more, does not violate the automatic stay and that negative credit reporting, without more, does not violate the discharge injunction.

"Rodriguez alleges that Comcast violated the automatic stay by "the mailing of at least one (1) collection letter" after receiving notice of Rodriguez's bankruptcy case. She also alleges that Comcast violated the discharge by "pulling Debtor's credit for collection purposes," "contacting Debtor via its debt collectors and agents, Valor and Sunrise, by mailing at least three (3) collection letters, all regarding a discharged debt . . .," and because "Sunrise, as agent for and on behalf of Comcast, is reporting the discharged debt as an outstanding collections account to the credit bureaus in an attempt to persuade payment." ...

Post-Petition Collection

"Rodriguez relies on 11 U.S.C. § 365(g)(1), under which rejection "constitutes a breach" of an unassumed executory contract, effective "immediately before" bankruptcy. That section works in conjunction with 11 U.S.C. § 502(g)(1), under which a rejection claim "shall be determined, and shall be allowed . . . as if such claim had arisen before" bankruptcy.

"Rejection relieves the estate of the obligation to perform the contract after the petition. Deeming the breach from rejection to have occurred before bankruptcy relegates any claim for breach damages to the status of a prepetition, nonpriority, unsecured claim, rather than a postpetition, priority administrative expense. Just as not every contract breach damages the nonbreaching party, neither 365(g)(1) nor 502(g)(1) determines that every rejection breach damages the counterparty. That conclusion is enforced by 502(g)(1)'s mandate that a rejection claim "be determined" as if the claim had arisen before bankruptcy. The existence and amount of claims in bankruptcy turns on nonbankruptcy law. Nothing in 365(g)(1) or 502(g)(1) declares that damages from the debtor's postpetition acts or omissions are part of, or merge backward into, the counterparty's claim for rejection damages. Because rejection does not nullify or terminate the contract, rejection can be followed by further performance and future breaches. ...

"Following the plain meaning of the statute leads to a more sensible understanding of how it works. The trustee's nonassumption of a contract means that the estate will have no liability for future breaches. But it leaves the debtor and counterparty free to continue their contractual relationship as they please. Because virtually all executory contracts in chapter 7 consumer cases—including for utility service, mobile-phone service, newspaper subscriptions, and online application or video-streaming subscriptions, as well as cable TV and internet subscriptions—are worthless to the estate but valuable to the individual debtor, this approach makes sense.

"These practical considerations only emphasize what is already unambiguous in the statutory text: rejection by itself constitutes a prepetition breach, but subsequent actual breaches do not merge into it and are not treated as prepetition events.

Credit Reporting

"I agree with the conclusion of the 2020 decision of a Western District of Texas bankruptcy judge that "the singular act of pulling a credit report is neither the commencement of a legal proceeding under § 362(a)(1), an act to obtain possession of property of the estate under § 362(a)(3), nor an act to collect, assess, or recover claims against the debtor under § 362(a)(6)."39 And Keller v. New Penn Financial, LLC (In re Keller), a 2017 decision of the Ninth Circuit Bankruptcy Appellate Panel cited by Rodriguez, acknowledges that "postpetition credit reporting of overdue or delinquent payments, without more, does not violate the automatic stay as a matter of law" and that "negative credit reporting, without more, does not violate the discharge injunction."
11 U.S.C. § 362
11 U.S.C. § 365(g)(1)
11 U.S.C. § 502(g)(1)
In re EsterBankr. N.D. OK3/26/2024In a discharge proceeding concerning a private student loan (reduced to judgment and collection), the court allowed the discharge of the debt. The beginning of the opinion states:

"The burden of a debt which can never realistically be repaid constitutes an undue hardship. The debtor must be able, at least over the long haul, to slay the beast, not merely keep it at bay. (Citation omitted)."

In applying the Brunner test for dischargeability the court made several findings helpful for other debtors.

"A "determination of undue hardship is case- and fact-specific." Courts should not be "overly restrictive [in their] interpretation of the Brunner test" lest they undermine "the Bankruptcy Code's goal of providing a 'fresh start' for the honest but unfortunate debtor." Nor must a debtor's circumstances be so dire as to evince a "certainty of hopelessness." In analyzing a debtor's prospects for the future, courts should not rely on "unfounded optimism" that cannot be supported by "specific articulable facts." Bankruptcy courts have "discretion to weigh all the relevant considerations" and should apply the Brunner test "such that debtors who truly cannot afford to repay their loans may have their loans discharged."

Present Inability to Pay

"The first step under the Brunner test is to determine whether, if required to repay the Loan, Ester can maintain a minimal standard of living based on his current income and expenses. The "minimal standard of living" requirement does not compel a debtor to live in poverty. The standard allows a debtor to meet basic needs with some allowances for recreation. The amount of the debt and the ability of the debtor to make meaningful payments toward amortization of the debt are other factors to be considered. As previously noted, "[t]he burden of a debt which can never realistically be repaid constitutes an undue hardship. ...

Footnote 49: "... No bankruptcy debtor, including Ester, is required to sacrifice his fresh start at the altar of student loan nondischargeability. ...

"Ester eats just one meal a day, and rarely if ever dines at restaurants, which the Court finds to be immanently reasonable. As for other expenses NCSLT demands he eliminate, Ester intends to remove any remaining "luxuries" from his budget, such as his satellite television service, charitable contributions, and IRA contribution, in order to make payments to ECMC. There are no items left for Ester to cut. While Ester is currently able to maintain a minimal standard of living, he does not have the ability to pay the entire balance of the Loan. Allowing NCSLT to garnish an additional $900 each month from his already modest budget would impose a tremendous hardship on Ester. In fact, NCSLT admits as much. Ester has met the first element under Brunner."

Future Ability to Pay

"The second element of the Brunner test requires a determination of whether Ester's present "state of affairs is likely to persist for a significant portion of the repayment period," with the inquiry "limited to the foreseeable future, at most over the term of the loan." In particular, courts should be wary to impute future ability to repay a student loan for which the debtor did not receive the sought degree. The question in this case is whether Ester's inability to pay is likely to continue over the next decade, which is approximately the repayment period if NCSLT were allowed to garnish Ester's wages at the legal rate under Oklahoma law.

"Ester's employment as an airplane detailer provides him with a moderate income. Despite devoting considerable time and effort to the Course at Spartan, he did not complete the necessary training as a flight instructor that would allow him to benefit economically from the program. Without additional credentials from the Course, Ester is unlikely to find more gainful employment. ... The Court is satisfied that Ester has undertaken all reasonable attempts to maximize his earnings given his education and work experience. At least for the foreseeable future, Ester has reached his earning potential, and it is unrealistic to expect him to substantially increase his earnings.

"NCSLT asserts Ester could generate additional income by opening his home to a roommate. This argument ignores Ester's testimony that at least one "available" room in Ester's home is unlivable due to foundation issues. ... Application of the Brunner test "should not be used as a means for courts to impose their own values on a debtor's life choices." This sentiment should likewise prevent a court from imposing its will on the intimacy of a debtor's home. ...

"Ester's current inability to squeeze an additional $900 from his budget without undue hardship will extend into the foreseeable future, and at least for the next decade. The second element of the Brunner test has been satisfied."

Good Faith

"Under the third prong of Brunner, courts must determine if a debtor has made a good faith effort to repay their student loans. This inquiry "should focus on questions surrounding the legitimacy of the basis for seeking a discharge[,]" in order to prevent a debtor who "willfully contrives a hardship" from receiving a discharge of loans under § 523(a)(8). A finding of good faith is not precluded by failure to make payments on a loan.Rather, the inquiry is whether the debtor has made "efforts to obtain employment, maximize income, and minimize expenses." For Ester, the answer is a resounding yes. ...

"When analyzing whether a debtor has acted in good faith, courts will often consider a debtor's effort to cooperate with a lender or otherwise work out a payment plan.Because the Loan was a private student loan, NCSLT was not required to offer any option to Ester to rehabilitate the Loan under alternative, more affordable terms, such as forbearance or deferment, of bad faith and it chose not to do so. Ester's only option has been to pay the Loan on NCSLT's terms. As part of this adversary proceeding, he settled his debt with ECMC and is resuming payments. Ester sought to settle NCSLT's loan during both the state court litigation and this adversary, to no avail. The failure to reach a settlement does not impute a lack of cooperation on Ester's part. Based on Ester's actions and lifestyle, the Court is satisfied that he has acted in good faith to repay the Loan. Ester has met the final element of the Brunner test.

Footnote 61: "Nothing in this Memorandum Opinion should be construed as requiring participation in such programs as a prerequisite to a finding of undue hardship. See In reAlderete, 412 F.3d at 1206 (10th Cir. 2005) (recognizing that participation in repayment plans is not required, but can be an indicator of good faith when such programs are available);..."

11 U.S.C. § 523(a)(8)
North Dakota v HaugenD. ND3/25/2024In affirming the dischargeability (of student loans cosigned for her mother) under 11 U.S.C. § 523(a)(8) under the totality of circumstances test, the court recognized that the cosignor status is relevant factually in its determination.

"When evaluating other relevant factors and circumstances in this case, the Bankruptcy Court noted that this adversary proceeding is "unlike the typical section 523(a)(8) case" because the Debtor is not seeking to discharge a student loan she borrowed to attend college. See Doc. No. 1-1, p.28. Rather, she is seeking to discharge a cosigned loan disbursed to her mother for her mother's education. The Bankruptcy Court acknowledged that as a result, some of the factors typically considered in a 523(a)(8) analysis are not easily applicable in this case. For example, the Bankruptcy Court noted that the factors relating to student loan repayment and the Debtor's intent to discharge debt in part weigh in favor of discharge and in part weigh against discharge. Haugen did not make payments to North Dakota toward the cosigned loan for her mother and conceded that she petitioned for bankruptcy relief because she could not afford to pay the debt arising from the cosigned loan. However, Haugen is not seeking to discharge the student loans she borrowed for her own education. She makes a monthly income-based payment of $89 on her own student loans. The Bankruptcy Court also determined Haugen's failure to make payments or negotiate a deferment or forbearance with North Dakota and her decision to petition for bankruptcy relief to discharge the cosigned loan are mitigated by 1) her mother's representation that she was taking care of the debt and 2) her status as a cosigner1. Among other considerations, the Bankruptcy Court also determined Haugen's failure to make payments while the loan was in deferment or forbearance and when the loan was delinquent did not demonstrate bad faith. The Court finds no clear error in the Bankruptcy Court's consideration of other relevant factors and circumstances. ...

Footnote 1:

"In considering the Debtor's cosigner status as a mitigating factor, the Bankruptcy Court cited to In re Kinney, 593 B.R. 618, 624 (Bankr. N.D. Iowa 2018), where the Bankruptcy Court for the North District of Iowa held that although the debtor's status as a consigner has 'no legal bearing on this Court's undue hardship determination, it becomes relevant factually. Courts must generally consider the educational benefit obtained and the effect on the debtor's future earning capacity. In this case, Debtor as a cosigner received no educational benefit. This lack of educational benefit thus cuts against prohibiting discharge of the loan.'"
11 U.S.C. § 523(a)(8)
In re LintonBankr. CT3/20/2024The court rejected the United States Trustee's (UST) motion to dismiss which argued that the debtors' income in a chapter 7 case (converted from chapter 13) must be their gross income as of the chapter 13 petition date.

After the debtors filed their chapter 13 bankruptcy, one of the debtors retired from her second job. Once the case was converted, the debtors filed an amended schedule I which showed a $1,342.91 reduction in their original income.

"On November 24, 2023, the U.S. Trustee then timely filed the Motion, arguing that, for the purposes of Section 707(b)(2), the Debtors must rely on their income disclosures as of the Petition Date (pre-retirement), rather than the post-retirement income disclosed as part of their Chapter 7 filings. (ECF No. 49). In response, Debtor's Counsel filed her Objection to Motion to Dismiss Case for Abuse (the "Objection") on December 27, 2023, arguing that Mrs. Linton's retirement constitutes a special circumstance such that the case should not be dismissed. (ECF No. 64). In response, Debtors' Counsel has filed further amended schedules that properly referenced the Debtors' income on the Petition Date. ...

"...At the hearing, the U.S. Trustee acknowledged the "stressful and physical" nature of Mrs. Linton's work at Avery Heights Nursing Home, and that Mrs. Linton, at her age, "could not keep that level of work going anymore." (ECF No. 68 at 2:55-3:07). Unopposed, Debtors' Counsel represented that Mrs. Linton's retirement "wasn't voluntary; she just couldn't do both jobs anymore." (ECF No. 68 at 9:20-9:35). Importantly, the U.S. Trustee does not challenge that this "retirement" was proper in the context of Mrs. Linton's age and overall health. (ECF No. 68 at 2:20-3:10). .... The U.S. Trustee has acknowledged that, despite the fact that the U.S. Trustee does not challenge the bona fides of Mrs. Linton's retirement, he was required to raise this issue as part of his gatekeeper duties as U.S. Trustee. ...

"The presumption of abuse established under the Means Test may only be rebutted by "demonstrating special circumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circumstances that justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative." Bankruptcy Code § 707(b)(2)(B)(i). "In order to establish special circumstances, the debtor [*8] shall be required to itemize each additional expense or adjustment of income and to provide[—] (I) documentation for such expense or adjustment to income; and (II) a detailed explanation of the special circumstances that make such expenses or adjustments to income necessary and reasonable." Bankruptcy Code § 707(b)(2)(B)(ii). ...

"Various expenses or reductions in income have been considered by courts in the context of the "special circumstance" provision of Section 707(b)(2)(B). "What constitutes a 'special circumstance' is by no means well settled." In re Cotto, 425 B.R. 72, 77 (Bankr. E.D.N.Y. 2010). Courts have acknowledged, however, at minimum, "whether special circumstances exist must be decided on a case-by-case basis." In re Livingston, Case No. 21-10879 (LSS), 2022 Bankr. LEXIS 815, 2022 WL 951339, at *14 (Bankr. D. Del. Mar. 29, 2022); see also In re Delbecq, 368 B.R. 754, 758 (Bankr. S.D. Ind. 2007) (holding, in the context of a Chapter 13 case, that: "The Report[ of the Senate Judiciary Committee] strongly suggests to the [c]ourt that the term 'special circumstances' requires a fact-specific, case-by-case inquiry into whether the debtor has a 'meaningful ability' to pay his or her debts in light of an additional expense or adjustment to income not otherwise reflected in the means test calculation"); In re Howell, 477 B.R. 314 (Bankr. W.D.N.Y. 2012) (holding that nondischargeable student loans that resulted in only $40 of monthly disposable income constituted a special circumstance sufficient to rebut the presumption of abuse); In re Graham, 363 B.R. 844, 851-52 (Bankr. S.D. Ohio 2007) (holding that additional costs of maintaining a separate household in the face of a long commuting distance was a special circumstance); [*10] In re Scarafiotti, 375 B.R. 618 (Bankr. D. Colo. 2007) (holding that additional expenses to live near a school appropriate for their child with special needs was a special circumstance); but see In re Anderson, 444 B.R. 505, 507-08 (Bankr. W.D.N.Y. 2011) (holding that the mere desire to retire did not constitute a special circumstance but noting that the debtor in that case "cited no medical or other reason why he cannot continue to work").

"Here, Mrs. Linton provided a sworn affidavit that she has numerous health conditions and that her role as a Certified Nursing Assistant at Avery Heights Nursing Home was very physically demanding. Those assertions have been unopposed. The Court is struck not only by the demanding physical nature of her work, but also the extended duration of her workday. Furthermore, Mrs. Linton's Affidavit provided appropriate documentation of the adjustment to income, as well as a detailed and credible explanation sufficient to satisfy the requirements of Section 707(b)(2)(B)(ii). The Court notes the U.S. Trustee's recognition, on the record, of the stressful and physical nature of Mrs. Linton's work, as well as the fact that—due to the reasons mentioned—Mrs. Linton could no longer sustain the level of work required for both roles. The Court accordingly finds that the presumption of abuse has been rebutted as "special circumstances" of the Debtors' means have been sufficiently demonstrated."
11 U.S.C. § 707(b)(2)(B)(ii)
In re TerryBankr. KS3/19/2024The court held that other pleadings filed in the case, prior to the deadline to object to the homestead exemption, constituted a timely objection to the debtor's exemption.

Prior to filing the bankruptcy, it is alleged that the debtor used embezzled funds to purchase his residence. The debtor claimed a homestead exemption and the creditor filed an objection to the homestead exemption one day after the deadline as set out in bankruptcy rule 4003 . However prior to that deadline the creditor had filed a motion for relief from stay, and adversary objecting to discharge ability, and a motion to transfer venue which the creditor claims challenged the homestead exemption. The creditor argued that these pleadings were filed timely and therefore the objection to exemption should be allowed.

"Under Rule 4003(b), to object to a debtor's claimed exemptions under 11 U.S.C. § 522(l), a party in interest must file an objection within 30 days after the § 341(a) meeting concludes or the debtor amends their schedules. Fed. R. Bankr. P. 4003(b)(1). The 30-day deadline is strictly enforced, and-if a party fails to timely object-the property is exempt regardless of whether the debtor had "colorable statutory basis for claiming [the exemption]." Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44 (1992); see generally Brayshaw v. Clark (In re Brayshaw), 110 B.R. 935, 937 (D. Colo. 1990), aff'd, 912 F.2d 1255 (10th Cir. 1990) ("Courts strictly enforce the 30-day time limit for filing objections").

"Although Rule 4003(b) dictates the timing of the objection, it neither requires nor discusses a particular form for such objections. See Lee v. Field (In re Lee), 889 F.3d 639, 642 (9th Cir. 2018) (citing Spenler v. Siegel (In re Spenler), 212 B.R. 625, 629 (9th Cir. B.A.P. 1997)). Because of this, courts will allow other filings to constitute an objection to exemption so long as the filing is timely under Rule 4003(b) and puts the debtor on notice of the objection by clearly questioning the validity of the debtor's claimed exemption.Following this approach, courts have found adequate objections to exemptions in, for example, motions for relief from stay, lien avoidance actions, and adversary complaints.

"Under this approach, Southampton claims that its three prior filings satisfy the stated requirements and should be considered objections to exemption, enabling it to contest Terry's homestead exemption. Indeed, all three were filed either before the § 341 meeting concluded or shortly after. However, although the other two filings, the motion to transfer and motion for relief, contain some allegations that could provide notice, the adversary complaint contains clear allegations that directly challenge Terry's ability, or lack thereof, to exempt the Property, which is sufficient to put her on notice of the objection. Such allegations include: Terry "knowingly and fraudulently misrepresented on her Schedules that the [Property] is her own property subject to a homestead exemption when the [Property] is actually fraudulently transferred property. . ." that belongs to Southampton; and the funds used to purchase the Property are "traceable to funds fraudulently transferred that belong to Southampton. . . ." Therefore, the complaint will be considered a timely objection to exemption that preserved Southampton's ability to contest Terry's homestead exemption."
11 U.S.C. § 522(l)
Fed. R. Bankr. P. 4003(b)
In re PughBankr. E.D. MI3/18/2024The court held that the trustee had not demonstrated good reason to include in the bankruptcy estate post-petition increases in equity for the debtor's residence.

The debtor filed a chapter 13 and proposed to surrender or refinance his residence. The plan proposed that his property would vest in the debtor upon confirmation. The value of the residence was $33,189.46 below the amount of the first mortgage leaving no equity. The trustee objected to confirmation of the plan unless the confirmation changed the vesting provision.

"This Court recently held that a chapter 13 debtor need not turn over sale proceeds arising from her property's post-confirmation appreciation to pay unsecured creditors.[In re Elassal, 654 B.R. 434 (Bankr. E.D. Mich. 2023).] However, in a footnote, the Court indicated that a plan or an order confirming a plan could include a provision excluding any property or appreciation from vesting in a debtor. The chapter 13 Trustee believes this footnote provides an Elassal workaround, because regardless of the real estate market's vagaries, such a blanket provision would always allow the chapter 13 estate—not the debtor—to reap any post-confirmation property appreciation. But a workaround without good reason to change course was not what the Court had in mind. ...

"Trustee's Objection invites the Court to exercise its discretion and delay the otherwise automatic vesting in Debtor of the Property at confirmation pursuant to our model plan and 11 U.S.C. § 1327(b): "[e]xcept as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor." Debtor and the Trustee could have stipulated to a delay in the vesting provision. However, absent a stipulation, there must be a good reason for the Court to exercise its discretion and order delayed vesting. ... Here, because no good cause exists, the Court declines to exercise its discretion.

"As an initial matter, the Trustee cannot unilaterally impose a change to the vesting provision. Under 11 U.S.C. § 1321, "[t]he Debtor shall file a plan." Further, 11 U.S.C. § 1323(a) provides "[t]he debtor may modify the plan at any time before confirmation. . . ." Thus, the Bankruptcy Code exclusively reserves to a debtor the right to both file a plan and modify it before confirmation. The Trustee may not do either. A trustee may raise objections and be heard as it relates to confirmation, and importantly here, on the value of property subject to a lien. 11 U.S.C. § 1302. But any trustee objection must be code based, such as those enumerated under 11 U.S.C. §§ 1322 and 1325. ...

" No Cause Exists To Delay Vesting

"The Court must be shown facts which indicate good cause to modify the statutory standard, because while section 1327(b) allows a court to exercise its discretion, "like the exercise of all judicial discretion—[it] requires good reason." Steenes, 918 F.3d at 557. The Court finds good reason to delay vesting may include a debtor's bad faith, or material undervaluation of his property. Neither circumstance is apparent here. ...

" In re Elassal Footnote Three is not a Workaround

"The Court acknowledges that the Trustee is attempting to follow the guidance offered in its recent opinion In re Elassal, 654 B.R. 434 (Bankr. E.D. Mich. 2023). In the Objection, the Trustee points to footnote three of the Elassal opinion. The Court's guidance is code based. 11 U.S.C. § 1327(b); 11 U.S.C. § 1322(b)(9) ("the plan may.. . provide for the vesting of property of the estate, on confirmation of the plan or at a later time, in the debtor or in any other entity"). However, the operative word in the footnote is "could." The Court's footnote did not state or imply that if the Trustee were to make a pre-confirmation objection to the fate of any, unanticipated, post-confirmation appreciation sale proceeds, and insist on a delayed vesting provision, that the Court would—without good cause—sustain such objection."
11 U.S.C. § 1322(b)(9)
11 U.S.C. § 1327(b)
In re SorensonBankr. KS3/15/2024In a chapter 13 confirmation proceeding, the court held that while a separate classification in the plan to pay student loans was acceptable, the debtor could not use that separate classification to avoid paying all unsecured creditors the minimum requirements pursuant to 11 U.S.C. § 1325(a)(4).

"The Trustee argues that the plan at issue fails the liquidation test because it proposes to pay the entire liquidation value of the debtors' non-exempt assets ($21,406) to their student loan creditor(s). The Sorensons respond that according to this Court's decision in In re Engen, 561 B.R. 523 (Bankr. D. Kan. 2016), their proposal is permissible.

"The Trustee is correct. Engen held that separate classification of student loan debt in a Chapter 13 plan did not "discriminate unfairly" against other unsecured claims for purposes of § 1322(b)(1). It was not about § 1325(a)(4)'s liquidation test. Indeed, the plan at issue in Engen provided that the debtors' non-exempt assets had zero liquidation value6 (such that general unsecured creditors would receive nothing in Chapter 7). In other words, the Engens' plan passed the liquidation test. Nothing about Engen should be read to suggest that compliance with § 1325(a)(4), which applies the liquidation test to "each allowed unsecured claim," is optional when student loans are involved.

"If the Sorensons' case were in Chapter 7, each of their unsecured creditors would receive a pro rata share of $21,406. Under the Sorensons' proposed Chapter 13 plan, some of those creditors (i.e., the ones with non-student-loan claims) would receive nothing. That does not comply with § 1325(a)(4). For that reason, the Trustee's objection to confirmation is hereby sustained."
11 U.S.C. § 1322(b)(1)
11 U.S.C. § 1325(a)(4)
In re Goetz

NCBRC-NACBA Amicus Brief - Goetz
8th Cir.3/8/2024The rise in equity in the appellant's residence after filing for bankruptcy but before conversion became part of her bankruptcy estate after conversion, as outlined in 11 U.S.C.S § 348(f)(1)(A). This occurred because the residence was already part of the appellant's estate, and she maintained possession and control over it at the time of filing for bankruptcy.

FACTS

"On August 19, 2020, Machele Goetz filed a chapter 13 bankruptcy petition and plan. She owned a residence worth $130,000 and claimed a $15,000 homestead exemption under Missouri law. Freedom Mortgage held a $107,460.54 lien against the residence. It is undisputed that had the trustee liquidated the residence on the date of the petition, the estate would have received nothing net of the exemption, the lien, and the sale expenses.

"Later, on April 5, 2022, the bankruptcy court granted Goetz's motion to convert her case from chapter 13 to chapter 7. Between the chapter 13 filing and the date of the conversion order, Goetz's residence had increased in value by $75,000, and she had paid down a further $960.54 on the mortgage. Had the trustee liquidated the residence on the date of conversion, more than $62,000 net of the exemption, the lien, and the sale expenses would have been produced.

"After realizing that the trustee might sell the residence given the change in value, Goetz moved for the bankruptcy court to compel the trustee to abandon it. Goetz argued that the residence was of "inconsequential value and benefit to the estate" under 11 U.S.C. § 554(b), asserting that the post-petition, pre-conversion increase in equity must be excluded from the calculation of her residence's value to the estate. The trustee resisted Goetz's motion, arguing that, under 11 U.S.C. § 348(f), the bankruptcy estate in a converted case includes post-petition, pre-conversion increase in equity, meaning Goetz's residence was still of value to the estate."

ANALYSIS

Under 11 U.S.C. § 348(f)(1)(A)," the property of the estate in Goetz's converted chapter 7 case consists of the property of the estate as of the date she filed her chapter 13 bankruptcy petition (August 19, 2020) that remained in her possession as of the date of conversion from chapter 13 to chapter 7 (April 5, 2022). ...

"Goetz's residence is property of the converted estate because she held "legal or equitable interest[]" in it as of August 19, 2020, id. § 541(a)(1), and because it remained in her possession when she converted her case to chapter 7 on April 5, 2022, id. § 348(f)(1)(A). The question is whether the post-petition, pre-conversion increase in equity in that residence is also part of the converted estate. ... We start with the first half of the definition of property of the converted estate: whether the property in question was "property of the estate, as of the date of filing of the petition." 11 U.S.C. § 348(f)(1)(A). ...

Property of the Estate

"Property of the estate at "[t]he commencement of a case" includes "[p]roceeds . . . of or from property of the estate." Id. § 541(a)(6). A voluntary case in bankruptcy commences when the petition is filed. Id. § 301(a); see also id. § 348(a) ("Conversion of a case from a case under one chapter of this title to a case under another chapter of this title . . . does not effect a change in the date of the filing of the petition [or] the commencement of the case . . . .")."

Proceeds

"But the Code does not define "proceeds" or "equity," so "we may look to dictionaries . . . to determine the meaning." Schwab v. Reilly, 560 U.S. 770, 783, 130 S. Ct. 2652, 177 L. Ed. 2d 234 (2010); see also Franklin Cal. Tax-Free Tr., 579 U.S. at 126 (looking to Black's Law Dictionary and the Oxford English Dictionary for the meaning of "define"). Proceeds are "[t]he value [*6] of land, goods, or investments when converted into money; the amount of money received from a sale." Proceeds, Black's Law Dictionary (11th ed. 2019). HN6 Equity is "[t]he amount by which the value of or an interest in property exceeds secured claims or liens; the difference between the value of the property and all encumbrances on it." Equity, Black's Law Dictionary (11th ed. 2019). An encumbrance is "[a] claim or liability that is attached to property or some other right . . . that may lessen its value, such as a lien or mortgage." Encumbrance, Black's Law Dictionary (11th ed. 2019).

"The post-petition, pre-conversion increase in equity in Goetz's residence—i.e. the difference between its value and the homestead exemption and lien—is therefore proceeds "from property of the estate," 11 U.S.C. § 541(a) (emphasis added), because it is the amount of money that the estate would receive from a sale of the residence before sale expenses. Cf. In re Potter, 228 B.R. 422, 424 (B.A.P. 8th Cir. 1999) ("Nothing in Section 541 suggests that the estate's interest is anything less than the entire asset, including any changes in its value which might occur after the date of filing."). Accordingly, the post-petition, pre-conversion increase in equity in Goetz's residence was property [*7] of the estate at "[t]he commencement of [the] case." 11 U.S.C. § 541(a)."

11 U.S.C. § 348(f)(1)(A)
11 U.S.C. § 541
11 U.S.C. § 554(b)
In re HallBankr. KS3/6/2024The former spouse's attempts to overturn or amend the judgment regarding equalization payments, converting it into a non-dischargeable domestic support obligation, went against 11 U.S.C.S. § 362(a)(1), (a)(6). These actions amounted to efforts to reclaim or enforce a payment that would typically be absolved under 11 U.S.C.S. § 1328(a), if not paid according to the debtor's chapter 13 plan. Moreover, these breaches of § 362(a)(1), (a)(6) were intentional, as the spouse was aware of the debtor's bankruptcy filing prior to initiating the motions, did so to hinder the discharge of the debt, and persisted despite being cautioned by the debtor's counsel about the violation of the automatic stay in the initial motion.

FACTS

" In the divorce, prior to the [chapter 13] bankruptcy filing the state court awarded the marital home to debtor and ordered her to make an equalization payment to her former spouse to fairly divide the marital estate. ...

"After receiving notice of debtor's chapter 13 bankruptcy filing, the former spouse filed motions in the divorce case under K.S.A. 60-260(b) to set aside or modify the equalization payment judgment and recharacterize it as a nondischargeable DSO. That action exposed another bankruptcy minefield — the automatic stay under § 362 — and prompted debtor to file a motion asking this Court to enforce the automatic stay, to find the former spouse's actions violated the stay, and to award debtor damages and fees under § 362(k)."

ANALYSIS

" Section 362(b) describes several exceptions, or exclusions, from the automatic stay. As applicable here, § 362(b)(2) does not stay "the commencement or continuation of a civil action or proceeding" to establish paternity, to establish or modify domestic support obligations, that concern child custody, domestic violence, or dissolution of the marriage. However, the parties in the divorce are stayed to the extent the proceeding "seeks to determine the division of property that is property of the estate."

"Pray's motions seek to modify the equalization payment that was entered September 13, 2023, prior to the bankruptcy filing. The equalization payment was part of the state court's division of property. The equalization payment does just that—it equalizes the division of property between the parties to the divorce.As such it is part of the division of property made by the divorce court and is subject to the automatic stay. Pray has not sought stay relief to modify the Equalization Payment. Pray's counsel represented that Pray did not request spousal support during the divorce.

"In addition, the Pray Motions are attempts to collect or recover the equalization payment that would otherwise be discharged under § 1328(a) to the extent the equalization payment is not paid under the terms of the debtor's chapter 13 plan. The mere re-labeling or recharacterizing of that debt as a support obligation does not necessarily transform the debt to a nondischargeable DSO. The bankruptcy court is not bound by what label is placed on the debt by the divorce court. Whether the equalization payment is excepted from discharge under 523(a)(5) is a matter of federal bankruptcy law made on a case-by-case basis. It requires "a dual inquiry into both parties' intent and the substance of the obligation . . . the crucial issue is whether the obligation imposed by the divorce court has the purpose and effect of providing support for the spouse." The Pray Motions violated subsections (a)(1) and (a)(6) of § 362. ...

"Pray's stay violations were not some technical violation where he lacked notice of debtor's bankruptcy filing. Instead, Pray knew of debtor's bankruptcy filing before filing the motions to modify the equalization payment judgment, and did so in an attempt to prevent discharge of the debt in debtor's chapter 13 bankruptcy. No showing of bad motive or intent on the part of Pray is required to find a willful violation. All that is required to be shown is that Pray knew of the automatic stay and intended the actions that constituted the violation.Pray continued to pursue action related to the equalization payment in the divorce case after refusing to heed debtor's counsel's warning that Pray Motion I violated the stay; he responded by filing Pray Motion II. The Court concludes that Pray knew of debtor's bankruptcy filing and the automatic stay and intended his actions to modify the equalization payment and recharacterize it as a support obligation to prevent its discharge. Pray's stay violation was willful."
11 U.S.C. § 362(a)
11 U.S.C. § 362(b)
11 U.S.C. § 523(a)(5)
11 U.S.C. § 523(a)(15)
11 U.S.C. § 1328(a)
In re Blumsack1st Cir. BAP3/5/2024The bankruptcy court made an error by establishing a legal principle that outright barred individuals working in the cannabis industry from seeking chapter 13 relief under 11 U.S.C.S. 1325(a)(7), as the assessment of good faith should consider the entirety of the circumstances. However, the court held that chapter 13 plans funding with proceeds from Controlled Substances Act (CSA) violations are categorically prohibited by Section 1325(a)(3). The opinion appeared to open the door to allow the plan if the plan was funded from other legal sources.

The debtor earned his income as a "budtender" at a marijuana dispensary. Following his chapter 13 petition, the UST filed a motion objecting to confirmation of the Plan and seeking dismissal of the case and "alleged that the debtor, by virtue of his employment, was engaged in criminal activity proscribed by the Controlled Substances Act ("CSA") of 1970, 21 U.S.C. § 812. In the Trustee's view, the debtor's violations of the CSA precluded a determination that the Plan (or any plan) could satisfy the good faith requirements of § 1325(a)(3) and (a)(7).1 Because the debtor was incapable of confirming any plan, the Trustee asserted, the debtor was ineligible for chapter 13 relief. More generally, the Trustee argued that the bankruptcy court could not condone the debtor's "ongoing illegal activity by confirming a plan that [was] funded directly or indirectly through income derived from employment at a marijuana enterprise[.]" The Trustee also sought dismissal under § 1307(c), arguing there was "cause" to dismiss where the debtor could "confirm no plan, and continuance of the case would require the trustee to administer assets representing proceeds of an illegal business." The Trustee relied primarily on three cases: Arenas v. U.S. Trustee (In re Arenas), 535 B.R. 845 (B.A.P. 10th Cir. 2015), In re Johnson, 532 B.R. 53 (Bankr. W.D. Mich. 2015), and Burton v. Maney (In re Burton), 610 B.R. 633 (B.A.P. 9th Cir. 2020). ...

"The debtor countered: "There has never been a reported case where a W-2 employee who is legally . . . employed within their state has been denied relief in bankruptcy for that reason." On the contrary, the debtor asserted, the trend among courts is to find "creative ways to allow the debtor to take advantage of . . . relief in bankruptcy while carving out some way that marijuana business revenues do not specifically fund reorganization plans." To the extent the court deemed his wages to be a "pariah" unfit to fund a plan, the debtor asked the court to credit his testimony about alternative sources of funding a modified plan. ...

"The [bankruptcy] court agreed with the Trustee that "irrespective of any segregation of funds," a debtor's continued employment in the marijuana industry during the pendency of a bankruptcy case would "inevitably" require the court and the chapter 13 trustee to support the debtor's criminal enterprise. Id. at 596 (quoting In re Johnson, 532 B.R. at 57). Observing that neither party had requested conversion, the court ruled dismissal was appropriate. Id. at 595-96. ...

"We examine the two components of cause under § 1307(c)(5) separately, first looking at whether the bankruptcy court properly denied confirmation of the Plan and then examining whether the court properly denied the debtor an opportunity to submit a modified plan. ...

No Per Se Rule Barring Disqualification Based Solely On Income Derived From An Illegal Substance

"We part ways with the bankruptcy court's analysis under § 1325(a)(7) for several reasons. First, the bankruptcy court's bright-line rule is in some tension with Puffer, which strongly discourages such bright-line rules when assaying good faith for purposes of § 1325. HN4 As a general matter, the U.S. Court of Appeals for the First Circuit has declared that the "totality of the circumstances" is the standard to be applied when adjudicating good faith under § 1325. See Puffer, 674 F.3d at 82 (citation omitted). In rejecting the holding that fee-only chapter 13 plans are, per se, filed in bad faith for purposes of § 1325(a)(3), the court declared that equitable concepts like good faith "are peculiarly insusceptible to per se rules." Id. (citations omitted). Other precedents in this circuit, in consonance with Puffer, suggest that good faith in filing the petition should be gauged based on the "totality of the circumstances." See, e.g., Gonzalez-Ruiz v. Doral Fin. Corp. (In re Gonzalez-Ruiz), 341 B.R. 371, 382-83 (B.A.P. 1st Cir. 2006). Here, although the bankruptcy court recited that the totality of the circumstances test governs the good faith inquiry, the court's ruling under § 1325(a)(7) was grounded in a single consideration—the debtor's ongoing violation of the CSA. If a fee-only plan is not per se proposed in bad faith, see Puffer, 674 F.3d at 82, then it is hard to see how the legal status of the debtor's employment, standing alone, is enough to doom the debtor on the petition date.

"Second, to the extent that bright-line rules can be drawn regarding good faith under § 1325, those rules must be meaningfully connected to the debtor's conduct in connection with the bankruptcy case. Although the term good faith is not defined in the Bankruptcy Code, the concept is not unmoored either. The good faith provisions of § 1325 are not referenda on the debtor's conduct generally; they are tethered to the debtor's actions in filing a petition and proposing a plan. The bankruptcy court's conclusion that ongoing violation of the CSA renders an individual categorically unable to file a chapter 13 petition in good faith is, in our view, unmoored from the bankruptcy-specific context in which the good faith inquiry must occur.

"Beyond that, in adopting a categorical rule that a debtor employed in the marijuana industry lacks good faith for purposes of § 1325(a)(7), the bankruptcy court established a bar to eligibility. That is a subject addressed not by § 1325, but rather in § 109. HN6 Broad categorical parameters regarding who is eligible to be a debtor are not the stuff of good faith, a fact-intensive inquiry specific to individual debtors and their particular financial circumstances. As far as eligibility goes, Congress has not articulated a "'zero-tolerance' policy that requires dismissal of any bankruptcy case involving violation of the CSA (or other activity that might be proven to be illegal)." In re Hacienda Co., 647 B.R. 748, 754 (Bankr. C.D. Cal. 2023) (citation omitted). That type of policy choice to close the doors to the bankruptcy court categorically, without regard to individual circumstances, is one more appropriately left to the legislature. ...

"Finally, although the bankruptcy court did not explicitly invoke the doctrine of unclean hands, the dismissal for abuse of process also sounds in that equitable theory. The Trustee has consistently argued that the doors to the bankruptcy court should be closed to a debtor who is violating the CSA. In his post-hearing brief, he cited several unclean hands precedents in support of this argument: Northbay Wellness Group, Inc. v. Beyries, 789 F.3d 956 (9th Cir. 2015), Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City, 861 F.3d 1052 (10th Cir. 2017), and In re Basrah Custom Design, Inc., 600 B.R. 368 (Bankr. E.D. Mich. 2019). These decisions are not persuasive on the point the Trustee advocates."

It is Per Se Bad Faith Under Section 1325(a)(3) to Fund a Chapter 13 Plan With Income Derived From Violations of the CSA

"The debtor proposed to fund the Plan with the income he derived from his employment at the dispensary; he did not offer his spouse's income or assets unrelated to marijuana activities until after the Trustee filed the Motion to Dismiss. When given the opportunity at the evidentiary hearing, the debtor did not establish that he segregated his marijuana income from his spouse's income or other assets unrelated to his employment. The Plan he proposed would have placed the chapter 13 trustee in the untenable position of knowingly administering assets derived from an activity illegal under federal criminal law.

"The debtor can point to no case law supporting the notion that a chapter 13 plan is proposed in good faith and by lawful means, as required by § 1325(a)(3), when the income the debtor would use to fund that plan is derived from activities criminalized by federal law. Instead, the caselaw—although distinguishable in some respects—stands for the opposite proposition. HN8 Bankruptcy relief is generally unavailable where the trustee "will necessarily be required to possess and administer assets which are either illegal under the CSA or constitute proceeds of activity criminalized by the CSA." In re Way to Grow, Inc., 597 B.R. 111, 120 (Bankr. D. Colo. 2018), aff'd sub nom. Way to Grow, Inc. v. Inniss (In re Way to Grow, Inc.), 610 B.R. 338 (D. Colo. 2019); accord Burton, 610 B.R. at 640-41 (affirming dismissal of chapter 13 case where debtors "failed to demonstrate that their ties to [the company] would not result in proceeds of an illegal business becoming part of the bankruptcy estate, requiring the trustee and the court to administer assets that constitute proceeds of activity criminalized by the CSA"); In re Arenas, 535 B.R. at 852-53 (affirming conclusion that debtors who lacked ability to fund plan without using proceeds of a marijuana growing operation were incapable of proposing a confirmable plan under § 1325(a)(3)); In re McGinnis, 453 B.R. 770, 772 (Bankr. D. Or. 2011) (denying confirmation because the plan's reliance on income derived from the marijuana industry violated the good faith requirement of § 1325(a)(3)). ...

"We reach this conclusion even though it establishes the sort of per se rule discouraged by Puffer. In that case, the First Circuit held that fee-only chapter 13 plans are not categorically prohibited by § 1325(a)(3). HN9 Here, we hold that plans funded with the proceeds of CSA violations are categorically prohibited by § 1325(a)(3). The distinction is that the Bankruptcy Code does not prohibit fee-only plans, but federal law does proscribe the sale of cannabis. Moreover, formulation of a plan is at the heart of the chapter 13 process. The chapter 13 trustee is, in most instances, the person who collects the debtor's payments and disburses money to creditors. HN10 While not entirely free from debate, we believe that bankruptcy courts have license to pass judgment on chapter 13 plans—including the source of funding for those plans—in a way that is materially different from passing judgment on whether a person gains access to the bankruptcy court in the first place. One can easily imagine a situation involving a debtor who needs the relief afforded by chapter 13 and can fund a plan with money that was not derived from pre-or post-petition cannabis-related employment, even while that debtor continues working in the cannabis industry. If the chapter 13 trustee is not required to receive and disburse money obtained from that employment, sound bankruptcy policy dictates that the debtor be given a chance to pursue a chapter 13 discharge. So, too, with a chapter 7 debtor whose post-petition wages are not part of the bankruptcy estate. This rationale becomes more compelling when, as the Bankruptcy Code requires, the interests of creditors are put into the calculus. Here, however, the Plan could not be confirmed because it would have been directly funded by the proceeds of illegal activity. Such a plan is, per se, proposed in bad faith."
11 U.S.C. § 1307(c)(5)
11 U.S.C. § 1325(a)(3)
11 U.S.C. § 1325(a)(7)
In re Salvador9th Cir.3/1/2024The court denied the debtor's request to reconsider following the Beard test to determine whether a document qualifies as a tax return.

"Section 523(a)(1)(B)(i) of the Bankruptcy Code provides that tax debts are only dischargeable if, among other things, the debtor has filed a return. The statute did not originally define what qualified as a "return." In the absence of a statutory definition, this court adopted the Tax Court's Beard test to determine whether a document filed by the debtor qualifies as a return. See In re Hatton, 220 F.3d 1057, 1060-61 (9th Cir. 2000) (quoting Beard v. Comm'r of Internal Revenue, 82 T.C. 766 (1984), aff'd, 793 F.2d 139 (6th Cir. 1986) (per curiam)). The Beard Test has four elements: "First, there must be sufficient data to calculate tax liability; second, the document must purport to be a return; third, there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and fourth, the taxpayer must execute the return under penalties of perjury." Beard, 82 T.C. at 777.

"Applying Beard, we held in In re Hatton that a document filed by a debtor after the IRS has already assessed his taxes does not generally qualify as a return because such a late filing is not an "honest and reasonable attempt" to comply with the tax law. 220 F.3d at 1061. 1 Then in In re Smith we held that the Beard test remains unchanged, even though Congress later defined "return" in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCA). 828 F.3d 1094, 1097 (9th Cir. 2016); 2 seealso 11 U.S.C § 523(a)(*) (BACPA defining "return" in part as a "return that satisfies the requirements of applicable nonbankruptcy law (including applicable filing requirements).").

"Salvador concedes that he loses under this court's precedent. He filed his purported returns after the IRS had already assessed his tax liability. Under a straightforward application of Beard and Smith, his filing does not qualify as a return and his tax debts are nondischargeable. We thus affirm the BAP's decision upholding summary judgment for the government.

"Salvador nevertheless brings this appeal to try to change the Ninth Circuit's case law. He filed a petition for initial hearing en banc, urging this court to adopt the Eighth Circuit's approach from In re Colsen, 446 F.3d 836 (8th Cir. 2006), a decision applying pre-BAPCA law. 3 On behalf of the court, we deny Salvador's petition for initial hearing en banc, Dkt. No. 32. There is no intra-circuit split and adopting Salvador's approach would only further entrench the existing inter-circuit split."
11 U.S.C. § 523(a)(1)(B)(i)
In re SyedBankr. N.D. IL2/28/2024The court held that a prepetition eviction order for unpaid condominium assessments does not divest the unit owner of an ownership interest. Further an unexecuted prepetition eviction order does not preclude the treatment of a judgment for condominium assessments in a chapter 13 plan or furnish groups for stay relief.

"The Debtors having defaulted on their condominium assessments, the Association obtained judgments of eviction (the "Eviction Orders") in May 2023. But as of the petition [June 2023], the Association had not secured possession of either unit. In their respective chapter 13 plans, the Debtors propose to repay the outstanding assessments and other amounts owing the Association in equal monthly payments over the term of their plan while remaining in possession of their units. The Association opposes confirmation in both cases by arguing that the entry of the Eviction Orders "terminated the Debtor's right to possession after that date unless and until the Debtor pays the judgment, with fees, costs, and interest, in full." Contending that the Bankruptcy Code does not extend the time for Debtors to regain their "right to possession" beyond the 60 days provided under section 108(b)(2), the Association argues that the court may not confirm a plan that proposes to repay its judgment for outstanding assessments over the course of years "during which the Movant is denied the right to possession." Therefore, it argues, the proposed plans impermissibly modify the Association's possessory rights and may not be confirmed under section 1322(b)(2). (Id. at 5.) For these reasons, too, the Association claims it lacks adequate protection of its rights in the property and requests modification of the automatic stay. ...

"The unit owner's right to cure recognized by the Illinois statute additionally distinguishes the condominium eviction process from a foreclosure sale. As explained by the Seventh Circuit in a decision cited by the Association, Colon v. Option One Mortgage Corp., Bankruptcy Code section 1322(c)(1)'s "wording and its legislative history both indicate an intent to set the limit on the right to cure no earlier than the date of the judicial sale," but "requires deference to state mortgage law on the scope of any right to cure after the sale." 319 F.3d 912, 920 (7th Cir. 2003). Because Illinois foreclosure law does not provide the chapter 13 debtor with a right of redemption after a foreclosure sale, Colon held section 1322(c)(1) does not "create[] a more expansive right to cure than that which the Illinois Code provides." Id. at 920-21. However, as discussed above, unlike a mortgagee facing the foreclosure sale of its property, Illinois law does not restrict the time for the unit owner to regain the right to possession by paying the amount owed and seeking vacatur of the eviction order. Instead, section 5/9-911 recognizes the condominium owner's right to do so "at any time, either during or after the period of stay." 735 ILCS 5/9-111(a).

"The Association also references section 362(b)(22) of the Bankruptcy Code in support of its argument. That section excepts from the automatic stay "the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor." 11 U.S.C. § 362(b)(22). While referring to eviction and unlawful detainer actions, that section expressly applies only to a "proceeding by a lessor" for property "in which the debtor resides as a tenant under a lease or rental agreement." But the relationship between a condominium association and a unit owner is not that of a landlord to a tenant: Illinois law determines the former relationship by statute, and not by a lease or rental agreement as it does the latter. Spanish Court, 2014 IL 115342, ¶¶ 23-24."
11 U.S.C. § 362(b)(22)
11 U.S.C. § 541
11 U.S.C. § 542(a)
11 U.S.C. § 1322(c)(2)
In re PaulBankr. N.D. IA2/28/2024The court held that a nondischargeable debt for "personal injury" as contemplated by 11 U.S.C. § 523(a)(9) includes a monetary civil judgment against the debtor for past pain and suffering, future pain and suffering, past loss of function of body and mind, and/or future loss of function of body and mind.

"Paul argues that the amounts awarded for past and future pain and suffering, as well as past medical expenses, should not be excepted from discharge because they are not debt for "personal injury" as contemplated by 11 U.S.C. § 523(a)(9). Here, Paul offers no facts to show that these damage awards are not for personal injury.

"Furthermore, Paul's position is inconsistent with the language of the Bankruptcy Code. The Code defines "debt" to mean "liability on a claim." 11 U.S.C. § 101(12). "'[D]ebt for' is used throughout to mean 'debt as a result of,' 'debt with respect to,' 'debt by reason of,' and the like . . . connoting broadly any liability arising from the specified object." Cohen v. de la Cruz, 523 U.S. 213, 220 (1998) (citing American Heritage Dictionary 709 (3d ed. 1992); Black's Law Dictionary 644 (6th ed. 1990); and Pa. Dept. of Pub. Welfare v. Davenport, 495 U.S. 552, 562 (1990)). "A non-dischargeable debt includes the full amount of the liability associated with the conduct at issue, including 'debt arising from' or 'debt on account of' that personal injury." In re Deluty, 540 B.R. 41, 47 (Bankr. E.D.N.Y. 2015) (emphasis added). Damages for pain and suffering are a kind of loss [*9] or debt arising from personal injury. In re Buchholz, 144 B.R. 443, 445 (Bankr. N.D. Iowa 1992) (citing Dan B. Dobbs, Law of Remedies § 8.1 at 540 (3d ed. 1973)) ("Dobbs describes three basic kinds of losses arising in personal injury cases—(1) time losses (lost wages and lost earning capacity); (2) the expenses incurred by reason of the injury (medical expenses and 'kindred items'); and (3) 'pain and suffering in its various forms.'").

"Here, the full amount of the debt owed to the Plaintiff arose from the injuries she sustained as a result of Paul's intoxicated operation of a motor vehicle. Therefore, the Court finds that the award for past and future pain and suffering, as well as past medical expenses, is debt for personal injury as contemplated by the Bankruptcy Code."
11 U.S.C. § 523(a)(6)
11 U.S.C. § 523(a)(9)
In re Mayen9th Cir.2/27/2024The court ruled that judicial estoppel applied to the debtor's FDCPA claim because he was aware of, but failed to disclose, the existence of his claims in his bankruptcy proceedings and any amendment to his schedules would be futile.

"The district court did not err in dismissing Mayen's action on the basis of judicial estoppel because Mayen was aware of, but failed to disclose, the existence of his claims in his bankruptcy proceedings. See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783-84 (9th Cir. 2001) (explaining that "a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor's schedules or disclosure statements" and the bankruptcy court need not actually discharge the debts for judicial estoppel to apply).

"The district court did not abuse its discretion by denying further leave to amend because amendment would have been futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that leave to amend may be denied when amendment would be futile); Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (explaining that "the district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint" (citation and internal quotation marks omitted))."
Judicial estoppel
In re WorthS.D. NY2/26/2024The court held that a one-time receipt of an inheritance by a non-filing spouse and a capitol gain from the sale of inheritance related assets was not a basis to require the debtor to amend the plan nor to dismiss the bankruptcy for failure to amend the plan.

"Here, the Debtor argues that the Bankruptcy Court erred in determining that the case would be dismissed unless the Plan was modified, because "current monthly income does not include all the income of the non-debtor spouse, but rather only amounts expended on a regular basis for household expenses." (Appellant's Br. at 12.) Thus, she contends, the one-time capital gain from the property sale (or, presumably, one-time bonuses) should not have been considered a part of her current monthly income under the Bankruptcy Code. (Id. at 13.) She relies in part on In re Malewicz, 457 B.R. 1 (Bankr. E.D.N.Y. 2010), in which a non-filing spouse sought an order that he had no obligation to remit to the Chapter 13 Trustee, for distribution to creditors, his share of a post-confirmation joint tax refund. [*16] In determining that the non-debtor spouse's failure to turn over his share of the tax refunds did not constitute a default under the Chapter 13 plan, the Malewicz court relied on In re Quarterman, 342 B.R. 647 (Bankr. M.D. Fla. 2006), which held that "based upon the explicit language of section 101(10A), current monthly income does not include all the income of the non-debtor spouse, but rather only amounts expended on a regular basis for household expenses." Id. at 651 (emphasis in original). The Malewicz court "agree[d] with the statutory analysis in Quarterman and the conclusion that a non-debtor spouse's entire income is not included in the projected disposable income analysis." In re Malewicz, 457 B.R. at 7. It concluded that the non-debtor spouse's failure to disgorge his portion of the post-confirmation joint tax refund was not a default under the Plan, see id. at 9, because "although the calculation of 'projected disposable income' under the chapter 13 means test included a portion of the Non-Debtor Spouse's monthly income, that calculation is used only to arrive at the Debtor's monthly plan payment obligation" and "[i]n and of itself this does not afford the Trustee any right to compel the Non-Debtor Spouse to contribute his property to the Plan," id. at 2.

"In arguing that there was a substantial increase [*17] in the Debtor's disposable income largely as a result of money that the Debtor's husband received from the sale of inherited property, (see A. 127-31), the Trustee relies in part on In re Solis, 172 B.R. 530 (Bankr. S.D.N.Y. 1994), where the court determined that the Debtor's receipt of $40,000 from the sale of his medical practice was a substantial change in circumstances in the form of "increased income or receipt of a large sum of money." Id. at 532. After "balanc[ing] the equities," the court concluded that allowing the debtor to receive a $40,000 windfall while his unsecured creditors only received 10% of their claims would be a "perversion" of 11 U.S.C. § 1325(a)'s good faith provision and of 11 U.S.C. § 1325(b). Id. at 533. The Trustee cites this case to support the proposition that a substantial change in the debtor's financial circumstances may warrant an increase in payment, (see Appellee's Br. at 7), but in Solis, the court was considering the debtor's receipt of a large sum of money. Here we are considering the non-filing spouse's receipt of a large sum of money. I agree with the courts that have determined that if a non-debtor spouse's income is not "'(1) expended regularly (2) on household expenses, then it is not included in the debtor's current monthly income'" because the Code [*18] defines "current monthly income" as monthly income received on a regular basis for household expenses. In re Malewicz, 457 B.R. at 7 (quoting In re Quarterman, 342 B.R. at 650-51); see 11 U.S.C. § 101(10A)(B). Thus, the one-time funds that the Debtor's husband received from the sale of inherited property cannot be considered monthly income. ...

"But in light of the plain language of section 101(10A)(B), the non-filing spouse's receipt of an inheritance or other one-time windfall does not constitute an increase in the debtor's current monthly income. Even an increase in the spouse's salary would only do so if, over time, the spouse regularly contributed that increase to household expenses. To the extent fairness might require that a Chapter 13 plan funded solely by a non-filing spouse be amended upward whenever that spouse's income or assets increase, that change would have to come from an amendment to the Code."
11 U.S.C. § 101(10A)(B)
11 U.S.C. § 1307
11 U.S.C. § 1325(b)(1)(B)
11 U.S.C. § 1329(a)
In re BeachD. NM2/15/24The court ruled that a debt is contingent if the proof of claim does not provide enough facts to support the assertion that the Debtors' are responsible and not that the Debtors dispute the debt.

The creditor challenged the Debtors' eligibility for chapter 13 bankruptcy based on their claim which would exceed the debt cap for chapter 13 under 11 U.S.C. § 109(e). The Debtors scheduled this debt as "contingent," "unliquidated," and "disputed." Pre-petition, the creditor had sued the Debtors in state court but their bankruptcy was filed prior to final judgment.

"Eligibility for Chapter 13 bankruptcy is governed by 11 U.S.C. § 109(e)—as was in effect at the time the bankruptcy petition was filed. 11 U.S.C. § 109(e). The Beaches filed their petition on June 18, 2021. App'x at 1. On June 18, 2021, married debtors were only eligible for Chapter 13 bankruptcy if they owed "noncontingent, liquidated, unsecured debts that aggregate less than $419,275."3 11 U.S.C. § 109(e) (2010).

"In the Chapter 13 eligibility context, a "debt" is "(1) the actual obligation to pay as it exists in the contemplation of applicable law, or (2) the obligation to pay as asserted by the debtor in the bankruptcy schedules or otherwise." In re Lambert, 43 B.R. 913, 919 (Bankr. D. Utah 1984). "The term 'claim' was avoided because the Congress did not wish the Section 109(e) eligibility determination for Chapter 13 debtors to be predicated upon the mere demands of creditors." Id.

"Still, when determining eligibility, the Court primarily looks to the debtor's schedules and proofs of claims, "checking only to see if these documents were filed in good faith." Kanke v. Adams (In re Adams), 373 B.R. 116, 121 (B.A.P. 10th Cir. 2007) (citation omitted). "In so doing, however, the court should neither place total reliance upon a debtor's characterization of a debt nor rely unquestionably on a creditor's proof of claim, for to do so would place eligibility in control of either the debtor or the creditor." Id. The Court may look to "other evidence offered by a debtor or the creditor to decide only whether the good faith, facial amount of the debtor's liquidated and non-contingent debts exceed statutory limits." Id. ...

Contingent v Noncontingent:

"A debt is noncontingent "if all events giving rise to liability occurred prior to the filing of the bankruptcy petition." In re Barcal, 219 B.R. at 1013. A [*9] debt is contingent "if the debt is one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor and if such triggering event or occurrence was one reasonably contemplated by the debtor and creditor at the time the event giving rise to the claim occurred." In re Lambert, 43 B.R. at 922 (citation omitted). "A debt is not automatically rendered 'contingent' solely by virtue of its being disputed." Id. at 923. ...

"A pending judicial determination of liability is not sufficient to render a debt contingent. In re Faulhaber, 269 B.R. 348, 354 (Bankr. W.D. Mich. 2001). In most cases, a debt is noncontingent even if a judge has not decided whether the debtor is liable for the debt. Id. ...

"When money is not owed until a subsequent event occurs, the debt is contingent even if the debt is the subject of litigation. C.f. In re Lambert, 43 B.R. at 923. For example, in In re Baird, a creditor filed a lawsuit for, in relevant part, a breach of contract against the debtor and a third-party company for which the debtor was a controlling shareholder. In re Baird, 228 B.R. 324, 326-27 (Bankr. M.D. Fla. 1999). While breached contracts are generally noncontingent, in In re Baird, the breached contract was not. Id. at 331; see, e.g., In re Michaelson, 74 B.R. 245, 250 (Bankr. D. Nev. 1987) (breached contracts, even when disputed, are typically noncontingent). The In re Baird bankruptcy court reasoned that the debtor was not a party to the contract. In re Baird, 228 B.R. at 331. In other words, the debtor never agreed to pay the debt, and it had not "been deemed owed by operation of law." Id. The bankruptcy court therefore held that the alleged debt was contingent because it had not been established that the debtor actually "owed" the creditor. Id. ...

"Here, the alleged loan debt is contingent. A facial review of Iron Horse's Proof of Claim #10 does not show that the Beaches are obligated to repay Iron Horse. See In re Lambert, 43 B.R. at 919 (defining a debt). Other than the self-serving statements contained in Proof of Claim #10, there is no evidence of a contract between the Beaches and Iron Horse.6 See In re Michaelson, 74 B.R. at 250 (breached contracts are typically noncontingent). There is no indication that the Beaches agreed, even orally, to repay Iron Horse. There is no indication that the Beaches agreed to an interest rate. There is no description of the terms of this alleged loan. There is no description of under what circumstances, if any, that the Beaches would be expected to repay such a large sum. See, e.g., In re Whittaker, 177 B.R. 360, 365 (Bankr. N.D. Fla. 1994) (oral agreement to repay a loan "when [financially] able" was contingent on debtor becoming able to pay). There is no statutory obligation for the Beaches to pay Iron Horse. See In re Mazzeo, 131 F.3d at 303 (statutory obligations to pay are generally noncontingent). Based on the information before the Court, the only basis debtors would be obligated to repay the alleged loan debt is if the state court decided, presumably under a rule of equity, that debtors were obliged to do so.7 As such, the alleged loan debt is contingent on the state court's determination that the Beaches are obligated to pay the debt. Id. ("[C]ontingency involves the nature or origin of liability. . . . [L]iability does not mean the same as judgment or remedy, but only a condition of being obligated to answer for a claim."). ...

"To hold otherwise would inappropriately put debtors' eligibility solely in Iron Horse's control. Courts repeatedly caution against predicating eligibility "upon the mere demands of creditors," In re Lambert, 43 B.R. at 919, or relying "unquestionably on a creditor's proof of claim," In re Adams, 373 B.R. at 121. Iron Horse argues that to rule against it would instead put total control of eligibility into the Beaches' hands. Doc. 13 at 8. I disagree. The basis for excluding the alleged loan debt is not solely because the Beaches dispute the debt. Instead, Iron Horse itself did not provide enough facts to support the assertion that the Beaches are obligated to pay it, even when its claim is only facially reviewed. "
11 U.S.C. § 109(e)
Davis v CarringtonN.D. IN2/14/2024The court allowed the Debtor to avoid a judicial lien under 11 U.S.C. § 522(f) on property held as tenants by the entirety. The court held that a judicial lien doesn't affix to real estate because the Debtor's sole ownership of the property is contingent and under Indiana law the lien doesn't affix until the property is transferred in Debtor's name alone.

Pre-petition, the creditor filed a judgment lien. In 2017 the Debtor filed a chapter 13 bankruptcy and ultimately claimed an exemption in his real estate as being held as tenancy by the entireties. The creditor filed a secured claim and the Debtor objected to the claim arguing it was unsecured. On a different appeal, the district court held that the Debtor " had an individual future contingent interest in the Property, to which the Davis lien had attached. The Court remanded the matter back to the Bankruptcy Court for further findings on whether the Debtor's future contingent interest in the Property was exempt, or whether the Davis Judicial Lien could be avoided. " On remand, the Debtor converted the case to a chapter 7 and then filed a motion to avoid the lien.

The district court reversed the previous opinion.

"But there is an easy reason why this approach does not work. Indiana judgment lien law establishes "[a]ll final judgments for the recovery of money or costs in the circuit court and other courts of record of general original jurisdiction in Indiana, whether state or federal, constitute a lien upon real estate and chattels real liable to execution in the county where the judgment has been duly entered and indexed in the judgment [*10] docket as provided by law . . . ." I.C. 34-55-9-2 (emphasis added). This is the point - a future contingent interest in a property held as tenants by the entirety is not a lien "liable to execution" because there is really nothing to execute upon.

"It is well established that the Entireties Exemption in Indiana prevents a judgment against one spouse from affixing as a lien to property held as tenants by entirety. In re Paeplow, 972 F.2d 730, 733 (7th Cir. 1992) (creditors "cannot execute on entirety property without first obtaining a judgment against both spouses"); Enloe v. Franklin Bank & Trust Co., 445 N.E.2d 1005, 1009 (Ind. Ct. App. 1983) (finding in Indiana "[a]n estate by the entireties is immune to seizure for the satisfaction of the individual debt of either spouse."). ...

"This [*12] fundamental misunderstanding is further demonstrated by the recent case of Warsco v. Creditmax Collection Agency, Inc., 56 F.4th 1134 (7th Cir. 2023). While Warsco is not squarely on point, and I think I would have to hesitate as qualifying it as controlling authority issued after Judge Brady's opinion, it does give additional credence to my resounding feeling that Judge Brady's decision was incorrect. Warsco dealt with the admittedly different factual scenario of a garnishment order and whether in the bankruptcy context that state court garnishment order issued more than 90 days before the debtor filed his bankruptcy petition was an avoidable preference payment. Frankly, I find the terse Warsco opinion a little cryptic, but the Seventh Circuit seems to hold that under federal law, the date of "transfer" is the time when the money passes to the creditor's control and that only the date of payment matters when defining a transfer under section 547. Id. The Debtor in this case argues that similarly, the date of the affixing of a judicial lien is the date when the entireties tenancy is broken and the property is transferred into a debtor's individual name or to the debtor as a tenant in common. [DE 18 at 15.] The lien does not attach with the recording of the judgment, [*13] it is the transfer date, or when the entireties is severed, that matters. Id. I understand the Debtor's analogy, but because Warsco is so different factually, I do not put as much stock in that case as the Debtor does. Nevertheless, due to the reasons I expounded on before, I do find that Judge Brady erred when she held that the Debtor's future contingent interest in the Property was a secured claim."
11 U.S.C. § 522(f)
Ovation v PerezW.D. TX2/12/24The court agreed that a tax-lien creditor is not solely bound by 11 U.S.C. § 505 and must comply with 11 U.S.C. §506(b) and Fed. R. Bankr. P. 2016 to recover post-petition attorney fees and costs after bankruptcy-court approval. Further, the court held that the tax lien can ultimately be discharged upon completion of the chapter 13 plan. The court also found that the creditor failed to comply with all of the requirements in Bankruptcy Rule 8014 and had done so in other appeals. "Due to this improper presentation of appellate argument, it is difficult for this Court to determine what specific error Ovation contends the Bankruptcy Court committed. For this reason, this appeal could be dismissed for inadequate briefing. See id. Again, upon review, it appears Ovation omitted this critical briefing requirement in other appeals."

"Perez filed an Amended Plan on September 15, 2022, in which she continued to treat the Note and tax lien owed to Ovation as a secured claim to be paid in full; however, she revised the amount of debt and interest rate to $34,667.38 and 14%, respectively, as reflected in Ovation's Proof of Claim. ECF No. 9-2, pp. 91-99. Following Trustee Viegelahn's responses, Ovation then filed an Amended Objection to confirmation of the Plan ("Amended Objection") presenting new arguments. BKC ECF No. 26; ECF No. 9-2, pp. 227-237. In this Amended Objection, Ovation argued the Second Amended Debtor's Plan should not be confirmed because: (1) Trustee Viegelahn was required to file a written objection to confirmation to be heard at the hearing; (2) related to this first argument, the Bankruptcy Court's Standing Order, which requires only creditors to file written objection, is invalid; (3) Perez failed to maintain insurance; (4) Trustee Viegelahn improperly insisted the Plan require Ovation to release its lien upon full payment and discharge of the original debt because an adversary proceeding is required to release its lien and because its post-petition attorney fees and costs should also be secured by its lien on the Property; (5) Ovation may accrue attorney fees post-petition pursuant to Bankruptcy Code §506(b), but does not have to file applications or motions for payment of these fees; (6) determination of post-petition fees is Perez's burden under §505; and (7) its statutory lien passes through bankruptcy unaffected even for undisclosed and unapproved post-petition attorney fees and costs. ECF No. 9-2, pp. 227-237.

"In response, Trustee Viegelahn argued: (1) she was not required to file a written objection; (2) determination of reasonableness of post-petition fees is a matter of federal law; (3) Ovation improperly sought to invalidate the standard provision of the form plan required to be filed by all Chapter 13 debtors in the Western District of Texas; (4) §506(b) requires the filing of an application by an oversecured creditor for any post-petition fees, costs or charges; (5) the Plan (or Order Confirming Plan) should include a provision that requires Ovation to file periodic application(s) for post-petition attorney fees, costs, or charges during the term of the Plan for the Bankruptcy Court's determination of reasonability. Id. at pp. 227-245. ...

"On January 25, 2023, the Bankruptcy Court issued an Order overruling Ovation's Amended Objections to Confirmation of the Amended Plan. In re Perez, 648 B.R. 833 (Bankr. W.D. Tex. 2023) (Order also found at ECF No. 9-2, pp. 371-379). In this Order, the bankruptcy court held: (1) Trustee Viegelahn was not required to file written objection to be heard at the hearing for confirmation of Perez's Plan; (2) Ovation's remedy to obtain payment of post-petition attorney fees and costs was to file a motion or application for attorney fees and costs pursuant to Bankruptcy Code §506(b), which governs determination of secured status; (3) Bankruptcy Code §505, governing determination of tax liability, did not govern Ovation's claim for post-petition attorney fees and costs, but applied only to Ovation's security interest in Perez's property; and (4) Bankruptcy Rule 2016, which required filing disclosure of compensation or fee application, applied to Ovation's claim for post-petition attorney fees and costs. [*6] In re Perez, 648 B.R. at 833 (synopsis). The Bankruptcy Court scheduled a hearing for plan confirmation for February 16, 2023, and stated, because it denied Ovation's objections and reset confirmation, "the Trustee may propose the manner in which Ovation must make periodic disclosures" of its post-petition attorney fees and costs. Id. at p. 838, n.8. The Bankruptcy Court further ordered "Ovation is precluded from raising these arguments again at plan confirmation." Id. at 847.

Section 505

"Ovation argues that, as a statutory tax lien holder, the only provision of the Bankruptcy Code that applies to its collection of its post-petition attorney fees and costs is 11 U.S.C. §505. Because only §505 applies to statutory tax lien holders, the bankruptcy court erred by requiring Ovation to file an application under 11 U.S.C. §506(b) and Fed. R. Bankr. P. 2016 to recover post-petition attorney fees and costs after bankruptcy-court approval.

"Ovation attempted to avoid bankruptcy-court oversight and determination of reasonability of its requested attorney fees in other appeals. (Citations omitted.) In those cases, however, Ovation argued that by requiring it to comply with procedures for prosecuting its post-confirmation claims, the Chapter 13 Plan violated its rights as a statutory tax lien holder. Id. Simply, Ovation argued it was not subject to the requirements of §506(b) and Fed. R. Bankr. P. 2016. The bankruptcy court and/or appellate district court rejected Ovation's basis and reasoning in these previous cases.

"As a new path to obtain a favorable finding that it need not file applications for payment of attorney fees and costs and obtain a reasonable-determination from the Bankruptcy court, Ovation argues for the first time in this case that it is not subject to Bankruptcy Code §506, but, instead, its status as an oversecured statutory tax lien creditor falls under Bankruptcy Code §505 because its post-petition attorney fees and costs qualify as an "addition to tax" as used in that statute. In re Perez, 648 B.R. at 839-40. ...

"To begin this analysis, the parties do not dispute Ovation holds a statutory tax lien on Perez's property, and it is an oversecured creditor, which entitles it to post-petition attorney fees and costs. ECF No. 9-2, p. 112; see 11 USC §506(b). As an oversecured creditor, Ovation seeks to pursue postpetition attorney fees and costs outside of bankruptcy-court scrutiny under §505(a)(1), which states: "... the court may determine the amount or legality of any tax, any fine or penalty relating to a tax, or any addition to tax, whether or not previously assessed, whether or not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction." 11 U.S.C. §505. In comparison, §506(b) of the Bankruptcy Code states the holder of an oversecured claim shall be allowed "interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose." 11 U.S.C. §506(b). In this respect, §506(b) operates in conjunction with Bankruptcy Rule 2016, which mandates the holder of a claim upon a bankruptcy petitioner's assets must file an application with the court itemizing all fees, expenses, and charges incurred after the petition is filed and prior to confirmation. (Citations omitted.)

"The Fifth Circuit recognizes the applicability of §506(b) to attorney fees and costs incurred post-petition and pre-confirmation. In re 804 Cong., L.L.C., 756 F.3d 368, 373 (5th Cir. 2014). This requirement serves to allow bankruptcy-court scrutiny of oversecured creditors' requests for post-petition fees, expenses, and interest to maximize equality among creditors. Id. Courts require oversecured [*18] creditors to prove their claims meet §506(b)'s reasonableness requirements and the burden is on the creditor to show entitlement and reasonableness. In re 804 Cong., 756 F.3d at 373; In re Padilla, 379 B.R. at 654 (citing In re Tate, 253 B.R. 653, 666 n. 8 (Bankr. W.D. N.C. 2000)). If a party seeking such postpetition fees and costs did not file applications, it would be "'impossible to determine the charges' reasonableness under §506(b)' and violate the spirit of disclosure embodied in the Bankruptcy Code." In re Jack Kline Co., Inc., 440 B.R. at 733 (quoting Sanchez v. Ameriquest Mortg. Co. (In re Sanchez), 372 B.R. 289, 305 (Bankr. S.D. Tex. 2007)).

"Following this longstanding precedence of the applicability of §506(b) and Bankruptcy Rule 2016 to these facts, upon de novo review, this Court finds the bankruptcy court correctly applied the law and required Ovation, as an oversecured creditor, to file application for payment of its postpetition attorney fees and costs. In re Perez, 648 B.R. at 844 (discussing In re 804 Congress, 756 F.3d 368). Further, Ovation provides no caselaw that supports its position that only §505 applies to it as an oversecured creditor or that its postpetition attorney fees and costs qualify as "additions to tax" under that provision, and this Court finds none. ...

"Upon this de novo review this Court concludes the bankruptcy court's legal conclusions are correct as applied to the undisputed facts. Bankruptcy Code §505 does not apply to Ovation as it pertains to any recovery of postpetition attorney fees or costs. Rather, to obtain post-petition attorney fees and costs, Bankruptcy Code §506(b) applies, and Ovation must comply with the requirements of Fed. R. Bankr. P. 2016. The Court affirms the bankruptcy court's determination on this legal issue."

Termination of Lien Upon Discharge

"A lien on property securing a debt may be extinguished in two ways that are relevant to this case1 : (1) a debtor provides for, and pays in full, the underlying debt under a confirmed plan; and (2) by operation of § 506(d) of the Bankruptcy Code. See In re Kleibrink, 2007 U.S. Dist. LEXIS 63974, 2007 WL 2438359, at *5. Under the first method, when a debtor satisfies all payments due a creditor under a Chapter 13 confirmed plan, the bankruptcy court must discharge [*24] the debt, with certain exceptions specified in Bankruptcy Code 11 U.S.C. § 1328(a). Such a discharge operates as an injunction against the commencement or continuation of any action to collect, recover, or offset any discharged debt as a personal liability of the debtor. 11 U.S.C. § 524(a)(2). Because a lien exists only to secure the debt, which is then discharged, "it is not that the lien is extinguished, but rather, the underlying debt is paid such that the lien secures nothing and is therefore discharged. In re Kleibrink, 2007 U.S. Dist. LEXIS 63974, 2007 WL 2438359, at *5; In re Allen, 122 Fed. App'x. 96, 97 (5th Cir. 2004); see also In re Stovall, 256 B.R. at 493. Thus, liens do not survive bankruptcy where the debt is provided for in the plan and is paid in full. Id. However, if the debt is not paid in full under the Plan, the lien remains intact and passes through bankruptcy unaffected. Id.

"Following this distinction, the bankruptcy court did not err, as Ovation contends, by overruling its objection to confirmation of the Plan and treating its claim as a "paid in full" claim which can be discharged should Perez provide full payment, which would, then, extinguish Ovation's tax lien. Ovation chose to participate in the bankruptcy proceeding and did file a Proof of Claim."
11 U.S.C. § 505
11 U.S.C. § 506
Rule 2016
In re Dugar9th Cir BAP2/9/24The court granted the Debtor's motion for summary judgment and dismissed an adversary proceeding to hold the debt non-dischargeable under 11 U.S.C. §§ 727(a)(2), (a)(3), (a)(4), and (a)(5). In the opinion the court discussed several issues that may be relevant to consumer bankruptcy debtors. These issues include: 1) whether the court erred when it granted the Debtor relief from his deemed admissions when he initially failed to properly respond to the Plaintiffs' request for admissions and 2) whether the court erred in finding that Plaintiffs had failed to state a claim for non-dischargeability.

Relief from RFA:

"Under Civil Rule 36(b), the court may grant relief from matters deemed admitted under Civil Rule 36(a)(3) when "(1) the presentation of the merits of the [*16] action will be subserved, and (2) the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits." Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (cleaned up). The first part of this test is met when the admissions would effectively preclude trial on the merits. Id. at 622. Under part two, the party relying on the deemed admission must prove prejudice. Id. Prejudice in this context is more than the inconvenience of having to present evidence at trial and persuade the trier of fact as to the truth of the party's allegations. Id. Instead, prejudice for purposes of Civil Rule 36(b) focuses on any difficulties the adverse party might face in marshalling and presenting evidence to support its positions as a direct result of the sudden withdrawal of the deemed admissions. Id. The trial court also may take into account other factors, including the cause of any delay, the good faith of the party seeking relief, the relative strength of that parties' positions on the merits, and whether the failure of the party seeking relief to properly or timely respond to the request for admission was the result of inadvertence or a more culpable state of mind. Id. at 625; Arias v. Robinson, 2022 WL 36915, at *4 (D. Nev. Jan. 4, 2022).

"The Bjornbaks have failed to demonstrate an abuse of discretion or reversible error in the decision to grant Dugar relief from the deemed admissions. The bankruptcy court explained in detail how the deemed admissions would prevent Dugar from presenting facts central to his defense. It also considered the respective conduct of the parties regarding the RFAs, noting that the Bjornbaks never advised Dugar of the effect of a failure to timely or properly respond to the RFAs and never requested that he simply sign them. When the issue was raised Dugar promptly submitted a new, signed version of his RFA responses.

"Nor did the Bjornbaks demonstrate any prejudice. First and foremost, Dugar did respond to the requests although he emailed them to the Bjornbaks and did not sign them. Similarly, they complain that Dugar never served on them his opposition to their motion to deem facts admitted. On this record, these were technical violations, which did not prejudice or adversely affect the Bjornbaks. Dugar promptly provided signed responses after the Bjornbaks first raised the issue in their motion to deem facts admitted. Similarly, they were made aware of Dugar's opposition and substance of his arguments from [*18] the OSC entered by the court. The Bjornbaks do not dispute that they received the OSC and were able to fully present their arguments against granting relief from the deemed admissions. At most, these circumstances suggest harmless error. We must ignore harmless error. See Van Zandt v. Mbunda (In re Mbunda), 484 B.R. 344, 355 (9th Cir. BAP 2012). Moreover, no trial date had been set. The Bjornbaks were afforded ample time to take discovery and had done so. And to the extent that Dugar modified his RFA responses, the court was clear that it would provide the Bjornbaks with an opportunity to further depose Dugar if they desired to do so."

Failure to Prove Non-Dischargeability

"Section 727(a)(2):

"Under § 727(a)(2), the bankruptcy court must deny the debtor a discharge when "the debtor, with intent to hinder, delay or defraud a creditor . . . has transferred, removed, destroyed, mutilated, or concealed . . . (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition."

"To prevail on their § 727(a)(2) claim, the Bjornbaks needed to prove: "(1) a disposition of property, such as transfer or concealment, and (2) a subjective intent on the debtor's part to hinder, delay or defraud a creditor through the act [of] disposing of the property." In re Retz, 606 F.3d at 1200 (quoting [*21] Hughes v. Lawson (In re Lawson), 122 F.3d 1237, 1240 (9th Cir. 1997)). In addition, the Bjornbaks needed to show that Dugar disposed of "property of the debtor" within a year before the bankruptcy was filed. § 727(a)(2)(A); In re Lawson, 122 F.3d at 1240. Alternatively, the Bjornbaks could have shown that Dugar disposed of "property of the estate, after the date of the filing of the petition." § 727(a)(2)(B); see also In re Retz, 606 F.3d at 1203 ("§ 727(a)(2)(B) specifically governs transfers of property belonging to the estate.").

"The Bjornbaks apparently concede that many of the alleged property dispositions they originally complained of fall outside the temporal limits of § 727(a)(2). ...

"Section 727(a)(3).

"Under § 727(a)(3), the bankruptcy court must deny the debtor a discharge when "the debtor has concealed, destroyed, mutilated, falsified, [*23] or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor's financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case[.]" "The statute does not require absolute completeness in making or keeping records. Rather, the debtor 'must present sufficient written evidence which will enable his creditors reasonably to ascertain his present financial condition and to follow his business transactions for a reasonable period in the past.'" Caneva v. Sun Cmtys. Operating Ltd. P'ship (In re Caneva), 550 F.3d 755, 761 (9th Cir. 2008) (quoting Rhoades v. Wikle, 453 F.2d 51, 53 (9th Cir. 1971)).

"A prima facie case under § 727(a)(3) requires the plaintiff to prove that: (1) the debtor failed to "maintain and preserve" sufficient records; and (2) the inadequacy of kept records prevented interested parties from learning about debtor's current financial condition or his material business affairs for a "reasonable period" before the bankruptcy filing. Id. If the plaintiff presents a prima facie case, then the burden shifts to the debtor to show that under all the surrounding circumstances, his or her failure to keep adequate records was justified. Id. at 761-63; Nevett v. U.S. Tr. (In re Nevett), 2021 WL 2769799, at *7 (9th Cir. BAP July 1, 2021).

"The bankruptcy court held that the Bjornbaks failed to present sufficient evidence to satisfy either element of their prima facie case. ...

"Section 727(a)(4).

"In relevant part, § 727(a)(4)(A) requires the bankruptcy court to deny the debtor a discharge when the debtor "knowingly and fraudulently" makes a false oath "in or in connection with" the bankruptcy. [*26] To prevail on their § 727(a)(4) claim, the Bjornbaks needed to prove that: "(1) the debtor made a false oath in connection with the case; (2) the oath related to a material fact; (3) the oath was made knowingly; and (4) the oath was made fraudulently." In re Retz, 606 F.3d at 1197 (quoting Roberts v. Erhard (In re Roberts), 331 B.R. 876, 882 (9th Cir. BAP 2005)). "A false statement or an omission in the debtor's bankruptcy schedules or statement of financial affairs can constitute a false oath." Id. at 1196 (quoting Khalil v. Devs. Sur. & Indem. Co. (In re Khalil), 379 B.R. 163, 172 (9th Cir. BAP 2007), aff'd & adopted, 578 F.3d 1167, 1168 (9th Cir. 2009)). However, "[a] discharge cannot be denied when items are omitted from the schedules by honest mistake." In re Khalil, 379 B.R. at 175 (cleaned up).

"Here, the bankruptcy court acknowledged that Dugar's schedules and statement of financial affairs contained several misstatements and omissions. ... In addition, the court acknowledged four omitted creditors. ...

"The bankruptcy court specifically found credible Dugar's explanations for each of these omissions. The court also found that some of his omissions were inadvertent (like with the Mini Cooper and the Dorado lawsuit), and it found that others were based on his honest [*28] and subjective belief that there was nothing that required disclosure, like with the CSLB order and his involvement with CPB and IHD. Based on these findings, the court ultimately found that when Dugar signed his petition, schedules, and statement of financial affairs, he believed them to be true and correct. This, in turn led the court to hold that § 727(a)(4) did not support denying Dugar his discharge. ...

"Section 727(a)(5).

"Under § 727(a)(5), the bankruptcy court must deny the debtor a discharge when "the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor's liabilities." As the Ninth Circuit has explained, a claim under § 727(a)(5) requires the plaintiff to prove:

"(1) debtor at one time, not too remote from the bankruptcy petition date, owned identifiable assets; (2) on the date the bankruptcy petition was filed or order of relief granted, the [*30] debtor no longer owned the assets; and (3) the bankruptcy pleadings or statement of affairs do not reflect an adequate explanation for the disposition of the assets.

"In re Retz, 606 F.3d at 1205 (quoting Olympic Coast Inv., Inc. v. Wright (In re Wright), 364 B.R. 51, 79 (Bankr. D. Mont. 2007)). If the plaintiff makes a prima facie case by establishing these elements, then the debtor must come forward with admissible evidence explaining the disposition of the "missing" assets. Id. "Whether a debtor has satisfactorily explained a loss of assets is a question of fact for the bankruptcy court, overturned only for clear error."11 Id.
Here, the bankruptcy court focused almost exclusively on the assets Dugar derived from FHR. The court relied on the same facts that supported its § 727(a)(3) analysis, specifically the multiple heart attacks and heart surgeries in 2014 and 2015, the loss of his contractor's license, and the failure of his business by 2016. The court similarly credited Dugar's testimony that he thereafter did not work and earned no income in 2017, 2018, and 2019. The court ultimately found that these facts satisfactorily explained why Dugar had little or no assets at the time of his bankruptcy filing. The record supports the bankruptcy court's findings."
11 U.S.C. §§ 727(a)(2), (a)(3), (a)(4), and (a)(5)
In re Lamonda8th Cir. BAP2/5/24The bankruptcy court made a mistake in upholding the trustee's objection and rejecting the debtor's ex-wife's demand for $80,000 in delinquent child support. This error occurred because the claim arose post-petition but pre-conversion under 11 U.S.C.S. § 1307. Hence, it had to be regarded as originating just before the petition date under 11 U.S.C.S. § 348.

The Debtor was involved in a divorce when he originally filed a chapter 7 bankruptcy. During the chapter 7 case, the divorce court awarded the ex-spouse of the Debtor $2,000 of child support per month. This case was subsequently converted to a chapter 13 and then back to a chapter 7. The ex-spouse filed a claim for $80,000 for post-petition unpaid child support. The trustee's objection to the claim was granted and the ex-spouse appeals.

"The Trustee objected to Natalia LaMonda's claim, arguing that claims for postpetition domestic support are disallowed under 11 U.S.C. § 502(b)(5), and any "purported lien is post-petition and, therefore, not enforceable." Doc. 236. In her response, Natalia LaMonda asserted that her claim, which arose after the order for relief but before conversion under section 1307, should be treated as a prepetition claim under section 348(d). The Trustee filed a reply arguing that section 348(d) does not apply to Natalia LaMonda's claim because the state court entered the judgment ordering child support during the initial Chapter 7 case before it was converted to a case under Chapter 13. ...

"Allowed unsecured claims for domestic support obligations receive first priority status in the distribution of estate assets for the sum owed, as of the petition date, to a spouse, former spouse or child. 11 U.S.C. § 507(a)(1)(A). Reinforcing the importance of the petition date, section 502 provides that claims for domestic support obligations that are excepted from discharge under section 523(a)(5) are not allowed to the extent that the claim is unmatured on the petition date. 11 U.S.C. § 502(b)(5). Section 348(d) provides an exception, which allows certain claims that arise postpetition to receive the same treatment as prepetition claims under specific circumstances. ... Section 348(a) clarifies that, except for circumstances not applicable here, conversion "does [*4] not effect a change in the date of the filing of the petition, the commencement of the case, or the order for relief." 11 U.S.C. § 348(a). ...

"Rejecting Natalia LaMonda's argument that her unpaid child support claim should be treated as a prepetition claim under section 348(d), the bankruptcy court found that "the claim for child support arose after the original order for relief under Chapter 7 and before the case was converted to Chapter 13 under section 706, not converted under sections 1112, 1208, or 1307 as [section 348(d)] provides." Transcript of Record at 4, In re LaMonda, No. 19-20781 (Bankr. W.D. Mo. Aug. 28, 2023) (Doc. 264). It was not persuaded by Natalia LaMonda's assertion that the conversion under section 1307 triggered the application of section 348(d) and rendered the first conversion irrelevant to the analysis. ...

"On appeal, Natalia LaMonda asserts that her claim for unpaid child support falls within the scope of section 348(d)—it arose after the order for relief but before this case was converted under section 1307. Natalia LaMonda argues that entry of the judgment awarding child support during the initial Chapter 7 case does not change the relevant facts or affect the analysis because her claim meets the criteria of the statute. Consequently, she maintains her claim should be treated as if it arose immediately before the petition date and allowed as a priority unsecured claim under section 502(a)(1)(A).

"She makes a compelling argument. Natalia LaMonda's claim for unmatured child support arose more than three months after the order for relief, which remains unchanged by the conversion. See 11 U.S.C. § 348(a). Her claim also arose several years before this case was converted under section 1307, and it is not a claim specified in section 503(b). Although the state court entered the judgment awarding her child support during the initial Chapter 7 case, section 348(d) does not limit the benefit of prepetition treatment to claims arising in a reorganization chapter. It also does not distinguish between one-conversion and two-conversion cases. Section 348 simply outlines the applicable time period: the claim against the estate or the debtor must arise after the order for relief but before conversion in a case that is converted under section 1112, 1208, or 1307 to be eligible to be treated as a prepetition claim. Natalia LaMonda's claim meets these criteria. ...

"The plain language of section 348(d) governs the outcome of this appeal. Natalia LaMonda's claim for unpaid child support arose after the order for relief and before this case was converted under section 1307. Consequently, her claim must be treated as if it arose immediately before the petition date. The bankruptcy court erred as a matter of law in concluding otherwise, sustaining the Trustee's objection and disallowing Natalia LaMond's claim."

11 U.S.C. §§ 348(a) & (d)
11 U.S.C. § 1307
In re ValdellonE.D. CA2/2/24The district court reversed the dismissal of Debtors' adversary complaint that the mortgage company failed to credit their mortgage and arrears payments during their chapter 13 plan.

The chapter 13 debtors completed their chapter 13 plan which provided for the cure of mortgage arrears. Following the chapter 13 trustee's notice of payment of mortgage arrears at the end of the case, the creditor responded that all arrears had been cured. Post-petition, the mortgage company continued to collect on amount owing. The mortgage company refused payments and began foreclosure proceedings. The Debtors filed an adversary in the bankruptcy court against the mortgage creditor.

"Specifically, on their first claim, Debtors alleged they cured the pre-petition arrearages and made all post-petition maintenance payments through September 1, 2019, but that Appellees misapplied their payments made directly after October 1, 2019 to discharged debts in violation of 11 U.S.C. § 524(i), which requires that creditors apply payments according to the bankruptcy plan. (Id. at 1657-61.) Further, Debtors alleged Appellees' post-plan monthly statements indicating a past-due balance and collection efforts violated the discharge order and discharge injunction under 11 U.S.C. § 524(a), which prohibits attempts to collect discharged debts. (Id.)"

The creditor filed a motion to dismiss and "argued that Debtors' claim under 11 U.S.C. § 524 was procedurally improper as relief could be sought only by way of a contempt motion in the bankruptcy case, not an adversary proceeding. (Id. at 1717; P. & A. (ECF No. 7-165) at 1735.) Appellees further argued that Debtors failed to allege (1) a violation of the discharge injunction under 11 U.S.C. § 524(a) because the Loan was not discharged but passed through bankruptcy unaffected, and (2) a failure to credit payments in accordance with the Plan under 11 U.S.C. § 524(i) because the payments Debtors argue were misapplied were made after the Plan was completed. (Mot. Dismiss at 1717; P. & A. at 1736-40.) Finally, Appellees argued that Debtors' state law claims (Counts 2 through 4) were either preempted by bankruptcy law or the Bankruptcy Court was without jurisdiction to hear them."

The bankruptcy court granted the motion to dismiss. "Turning to the substance of Debtors' Count 1, the Bankruptcy Court first reasoned that Appellees' collection of post-plan, pre-discharge payments (i.e., payments made after October 2019 and through May 2020) could not violate the discharge injunction under 11 U.S.C. § 524(a) because there was no discharge order or injunction to violate during that time. (Id. at 1785-86.) The Bankruptcy Court then found that Appellees' collection attempts after the discharge order was entered could not violate the discharge injunction under 11 U.S.C. § 524(a) because the Loan payments remained contractually due and were not discharged in the bankruptcy. (Id. at 1786.) Accordingly, Debtors' sole remaining claim for a violation of the discharge injunction was Appellees' alleged failure to credit payments received under the Plan as required by 11 U.S.C. § 524(i). (Id.) However, the Bankruptcy Court found that Debtors' allegations concerned payments made in October 2019 and later, not payments made under the Plan. (Id. at 1786-87.) Therefore, even accepting all factual allegations as true, the Bankruptcy Court concluded that [*9] Debtors had not stated a claim and, as Debtors did not request leave to amend, dismissed the FAC with prejudice."

Section 524(a) - Automatic Stay Violation

"Debtors challenge the Bankruptcy Court's holding that Debtors failed to sufficiently allege Appellees' post-plan collection of mortgage payments from Debtors violated the discharge injunction under 11 U.S.C. § 524(a) because (1) from October 2019 through May 2020 there was no discharge order and (2) after June 2020 the Loan was not discharged in the bankruptcy. ...

"There are, however, three statutory provisions that, considered together, remove home mortgages from the discharge provisions of Chapter 13. First, section 1322(b)(2), the "anti-modification" provision, prohibits a Chapter 13 plan from modifying the rights of the holders of claims secured by home mortgages.... Section 1322(b)(2)'s broad prohibition of modifications to mortgage agreements is limited, however, by section 1322(b)(5), which permits certain narrow modifications. Section 1322(b)(5), irrespective of the terms of the mortgage contract, allows modification of home mortgages for the purpose of enabling debtors to cure mortgage arrearages and maintain current payments through a Chapter 13 plan. (Citation omitted.) Thus, section 1322(b)(5) gives debtors the opportunity to keep their homes by curing defaults and maintaining payments under the Chapter 13 plan.

"Section 1322(b)(5) allows mortgage payments to be cured and maintained but does not provide a discharge mechanism. Among other debts, section 1328(a) excepts any debt "provided for under section 1322(b)(5)" from discharge. 11 U.S.C. § 1328(a)(1). Bankruptcy treatises explain that 11 U.S.C. § 1322(b)(5) "does not enable the debtor to modify the terms of the debt, except to 'spread out' payment of the arrearages for a 'reasonable time.' i.e., the debtor must continue making payments as they come due under the original loan terms during the life of the plan and thereafter until fully paid." (Citations omitted).

"The Loan is a home mortgage debt treated under 11 U.S.C. § 1322(b)(5) in the Plan. As such, the Court agrees with the Bankruptcy Court that the Loan was not discharged on June 1, 2020, and payments on the Loan remained contractually due. Thus, Appellees' efforts to collect on the Loan did not violate the discharge injunction under 11 U.S.C. § 524(a)."

Section 524(i)

"Debtors also challenge the Bankruptcy Court's holding that Debtors failed to allege Appellees misapplied payments received "under the plan" pursuant to 11 U.S.C. § 524(i) because Debtors' claim was predicated on payments made to Appellees starting in October 2019, i.e., after the Plan payments ended. ...

"Thus, there are two requirements to establish a violation of section 524(i): (1) a willful failure to credit payments received under a confirmed plan and (2) material injury to the debtor.

"Nothing in the language of section 524(i) restricts its application to discharged debts. (Citations omitted.) Thus, although long-term mortgage debts are not typically discharged in bankruptcy, if a creditor willfully fails to properly credit mortgage payments under a confirmed plan, section 524(i) treats such conduct as a violation of the discharge injunction. ...

"'Deeming willful misapplication of plan payments a violation of the discharge injunction under § 524(i) does not impermissibly modify home mortgage lenders' rights in violation of § 1322(b)(2); it simply enforces the plan provisions and ensures that the completion of the plan will actually result in a fresh start for the debtor.' (Citations omitted.) "Section 524(i) is a response to decisions in which courts questioned whether they had the ability to remedy a creditor's failure to credit payments properly" and clarifies "that a failure to properly credit plan payments that results in a post-discharge assertion that the debtor is in default is not simply a matter for state courts to resolve, but rather a critical issue that must be resolved by the bankruptcy court to ensure that the provisions and purposes of a plan are effectuated." 4 Collier on Bankruptcy ¶ 524.08 (Richard Levin & Henry J. Sommer eds., 16th ed. 2019). ...

"The Court agrees with the Bankruptcy Court that the post-plan payments were not payments made "under the plan." In reviewing the plain language of the Plan, it is clear that the Plan provided for payments to be made by the Chapter 13 trustee directly to Appellees in order to cure and maintain the Loan, but there is no provision dictating the payments to be made by Debtors after the Plan's end. ...

"However, Debtors' arguments and evidence cited in the FAC, as expounded on in their appellate briefings, also clearly raise concerns over Appellees' application of payments received from the trustee under the Plan. Debtors allege that they completed their Plan payments, yet the statements sent to them immediately after the Plan payments ended indicated significant arrears. ...

"Appellees argue the payments made by the trustee were not misapplied. (Appellees' Br. at 26-27.) Rather, Appellees argued at the hearing that there were outstanding amounts due when the Plan finished because Claim 9-1 and the Debtors' confirmed Chapter 13 bankruptcy plans underreported the pre-petition arrears and monthly Loan payments, so Debtors were underpaying throughout the bankruptcy. (See also Reply Supp. Mot. Dismiss [*20] at 1773-74 ("Defendants applied the amounts received to the appropriate post-petition monthly payments and acknowledged they received from the trustee all payments the trustee was supposed to make under the Plan, but that nonetheless left a sizeable amount due when the bankruptcy ended.").) This alleged underreporting appears to stem, at least in part, from the fact that Debtors' first bankruptcy plan reported monthly payments at $1,784.42 (see First Plan at 81), an amount that was not raised until Appellees filed their first Notice of Mortgage Payment Change over two years later (see ECF No. 7-94 (Oct. 28, 2016).)

"Appellees' arguments do not sway the Court in their favor. First, the Court notes that if the pre-petition arrearage amount was underreported, then Appellees would have needed to allocate more than $19,140.48, the arrearage amount listed in Claim 9-1, towards pre-petition arrears while the Plan was in place in order to report a "summary of amounts past due before bankruptcy filing" at "a current balance of $0.00" on September 16, 2019. (See FAC at 1651; see also Ex. 23 in Support of Compl. (ECF No. 7-110) at 1083.) The September 16, 2019 statement itself confirms this, as [*21] it states $20,623.04 was paid during the bankruptcy towards pre-petition arrears. (Ex. 23 in Support of Compl. at 1083.) Debtors did not begin sending payments directly to Appellees until October 2019, after the September statement confirmed that the pre-petition arrears had been paid off. (FAC at 1649-50.) This indicates the trustee's payments under the Plan may have been misapplied as portions of the payments intended to keep the Loan current during the bankruptcy were instead applied towards arrears. (See Debtors' Br. at 21.)

"To make matters worse, Appellees also failed to properly inform Debtors they were underpaying during the bankruptcy. The terms of the Plan provided for the cure of arrearages on the Loan and maintenance payments to keep the Loan current. (See Second Mod. Plan at 243.) The Plan clearly stated that if "the amount specified in the plan is incorrect, the Class 1 creditor may demand the correct amount in its proof of claim", and if "a Class 1 creditor files a proof of claim or a notice of payment change pursuant to Fed. R. Bankr. P. 3002.1(b) demanding a higher or lower post-petition monthly payment, the plan payment shall be adjusted accordingly." (Id. at 242.) Thus, if the arrearage and [*22] monthly Loan payments were underreported, Appellees were given a clear opportunity to petition for an adjustment to those amounts during the bankruptcy. Indeed, the record shows that Appellees did exactly that, filing no less than seven Notice of Mortgage Payment Changes before Debtors were granted a discharge on June 1, 2020. (See ECF Nos. 7-94 (Oct. 28, 2016), 7-95 (Jan. 25, 2017), 7-96 (May 3, 2017), 7-97 (Jan. 26, 2018), 7-98 (Apr. 5, 2018), 7-99 (Mar. 31, 2019), 7-102 (Apr. 21, 2020).) Given this, it is astounding that Appellees now assert "[j]ust because [we] were bound to accept insufficient payments while the Plan was in effect does not mean that the other amounts due and owing simply disappeared." (Reply Supp. Mot. Dismiss at 1773-74.) Appellees were not bound to accept insufficient payments. They could have filed an amended proof of claim, but failed to do so, and failed to file any notice of payment change until two years after Debtors filed for bankruptcy. Thus, the fault for any underpayment lies with Appellees, not Debtors.

"Finally, and perhaps most egregiously, at the end of the bankruptcy Appellees responded to the trustee's Notice of Final Cure and acknowledged that [*23] Debtors "have paid in full amount required to cure the prepetition default on the creditor's claim" and were current on the Loan. (Notice Final Cure; Resp. to Notice Final Cure.) Thus, Appellees argument now that they were underpaid while the Plan was in place directly contradicts their own Response to Notice of Final Cure, and ignores settled law that the terms of a confirmed Chapter 13 plan "bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." 11 U.S.C. § 1327(a); see also Max Recovery v. Than (In re Than), 215 B.R. 430, 435 (9th Cir. BAP 1997) ("Another way of looking at the binding effect of confirmation is that the plan is a contract between the debtor and the debtor's creditors."). Appellees were and are bound by the Plan, the terms of which cured Debtors pre-petition arrearages and positioned Debtors to exit bankruptcy current on their Loan. (See Second Mod. Plan at 242-43 ("All arrears on Class 1 claims shall be paid in full by Trustee . . . [o]ther than to cure of arrears, this plan does not modify Class 1 claims.").)

"In sum, the evidence shows that Appellees were aware of the Plan's terms, and were aware that they could [*24] file an amended proof of claim or notice of payment change, but instead allocated $20,623.04 of Plan payments towards pre-petition arrears despite clear provisions that only $19,140.48 was to be paid, thereby misapplying payments intended to keep the Loan current. This indicates that Appellees' misapplication of payments was likely willful. See In re Ridley, 572 B.R. 352, 361-2 (Bankr. E.D. Okla. May 31, 2017) (explaining the "requirement of willfulness is simply an intent to commit the act; it does not require a specific intent to violate the Code or plan provisions" and "only requires a showing that the creditor intended to credit payments improperly"); 4 Collier on Bankruptcy ¶ 524.08 (Richard Levin & Henry J. Sommer eds., 16th ed.) ("Absent a creditor's proof that the improper crediting was a mistake in conflict with the creditor's normal procedures, the creditor should be presumed to have intended its acts.").

"Finally, Debtors have alleged that this willful misapplication of Plan payments caused them harm in the form of additional fees, costs, and expenses. (FAC at 1660-62.)

"Thus, the Court holds that Debtors' allegations are sufficient to find that Debtors may have a cause of action under section (i) for the misapplication of payments made by the trustee under the Plan. Indeed, [*25] this is:

[O]ne of the classic situations that led to the adoption of § 524(i): a chapter 13 debtor makes all the required payments on long-term debt required through the life of his confirmed plan, receives a discharge, and is then told that his mortgage is in default, he owes additional charges, and is threatened with foreclosure. Often, this is the same scenario that drove him to bankruptcy in the first place. Section 524(i) presents a remedy for such cases.

In re Ridley, 572 B.R. at 361. Numerous courts construing section 524(i) have applied it in similar situations to the one at hand, where a debtor successfully completed a Chapter 13 case, but a long-term home mortgage creditor refused to acknowledge that the loan was current. See id. at 366 (finding a mortgagor violated section 524(i) when a debtor completed all plan payments, thereby curing his default, and was discharged by the bankruptcy court, yet the mortgagor "continued to report him in default, added unexplained charges, sent numerous statements and made phone calls to [debtor] notifying him that his mortgage was in default"); In re Pompa, 2012 Bankr. LEXIS 3051, 2012 WL 2571156, at *1-2, 7-8 (finding that creditors actions violated section 524(i) when debtors allegedly cured all arrears on their mortgage through a Chapter 13 plan, were deemed current by the bankruptcy court, and were granted [*26] a discharge, but the creditor subsequently alleged they were delinquent on their mortgage payments and threatened foreclosure because the creditor misapplied payments and improperly charged them undisclosed fees during the pendency of their Chapter 13 plan); In re Houston, No. 3:13-bk-7435-PMG, 2018 Bankr. LEXIS 4289, 2018 WL 11206276, at *2-4 (Bankr. M.D. Fla. May 15, 2018) (declining to dismiss debtors' section 524(i) claim when they alleged that "their confirmed Plan provided for payment of the regular mortgage amounts and for payment of the prepetition arrearage," "that they complied with the Plan in all respects and the Court entered a Discharge," "that the payments were misapplied during the plan period," and that the creditor "asserted that the mortgage was in default at the time of Discharge and threatened to foreclose on their home").

"The Bankruptcy Court has not yet considered Debtors' allegations that payments made by the trustee under the Plan were misapplied and should give rise to a section 524(i) claim. While the Bankruptcy Court dismissed Debtors' section 524(i) claim with prejudice, as discussed below, the Court will grant Debtors leave to amend so that the Bankruptcy Court may consider their arguments in the first instance."
11 U.S.C. §§ 524(a) & 524(i)
In re LandonBankr. N.D.OK1/30/24In a non-dischargeability proceeding, the judgment debt for defamation issued by a Massachusetts trial court failed to meet the criteria for nondischargeability outlined in 11 U.S.C.S. § 523(a)(6). This was because the debtor did not act with willful and malicious intent; rather, she genuinely believed her statements were truthful at the time of utterance. The court observed that although the debtor's behavior may have amounted to recklessness, meeting the threshold for defamation under state law, it did not reach the level of willfulness as required by § 523(a)(6). Consequently, the debt was discharged. Conversely, the judgment debt for sanctions issued by an Oklahoma district court was exempted from discharge under § 523(a)(6) due to its characterization as a willful and malicious injury.

"[C]reditor Christopher W. Kanaga ("Kanaga") holds a judgment from the Massachusetts Trial Court, Barnstable Superior Court Department (the "Barnstable Court"), Civil Action No. 1572-00335, against Sheldon E. Landon ("Defendant") for defamation, based on a 2015 Facebook post (the "Defamatory Post"). ...

"From the perspective of Kanaga, this is an open and shut case. The defamatory remarks about Kanaga in the Defamatory Post were not written in a vacuum. The Defamatory Post was a long and meandering screed, of which the statements referring to Kanaga were just a small part. The larger post focused on an unnamed "cult," the escape of Defendant's husband, David Manuel ("Manuel"), from the so-called cult, and the cult's continued pursuit of Defendant's inheritance from Manuel's probate estate. In both the Barnstable Court litigation and here, Defendant denies writing the Defamatory Post, but, as discussed in Landon I and supra, this Court is bound by the jury's factual finding that she did so. Acknowledging this factual hurdle, Defendant insists the Defamatory Post was made as a private message to a limited audience of her 514 "friends" on Facebook. In an additional effort to separate herself from responsibility for the Defamatory Post, Defendant testified she was ill and under mild sedation at the time it was made. ...

Analysis:

"Kanaga bases his claim of non-dischargeability on § 523(a)(6) of the Bankruptcy Code, which provides:

(a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt —

(6) for willful and malicious injury by the debtor to another entity or the property of another entity.28

Since this Court issued its opinion in Landon I, the United States Bankruptcy Appellate Panel of the Tenth Circuit has issued guidance on the interpretation of § 523(a)(6) as follows:
[P]roof of a "willful and malicious injury" under § 523(a)(6) requires proof of two distinct elements — the injury must be both "willful" and "malicious."

. . . .

For an injury to be "willful," there must be a deliberate or intentional injury, not merely "a deliberate or intentional act that leads to injury." "[T]he (a)(6) formulation triggers in the lawyer's mind [*17] the category 'intentional torts,' as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend 'the consequences of an act,' not simply the act itself." A willful injury may be established by direct evidence that the debtor acted with the specific intent to harm a creditor or the creditor's property, or by indirect evidence that the debtor desired to cause the injury or believed the injury was substantially certain to occur. This is a subjective standard.

. . . .

For an injury to be "malicious," "evidence of the debtor's motives, including any claimed justification or excuse, must be examined to determine whether the requisite 'malice' in addition to 'willfulness' is present." "[A]ll the surrounding circumstances, including any justification or excuse offered by the debtor, are relevant to determine whether the debtor acted with a culpable state of mind vis-a-vis the actual injury caused the creditor." A willful and malicious injury requires more than negligence or recklessness. Six circuit courts have defined the "malicious" element to require an act taken in conscious disregard of one's duties and without just cause or excuse, even in the absence of personal hatred, spite or ill-will, or wrongful and without just cause or excuse. These definitions are similar to the pre-Geiger definition of "malicious" adopted by the Tenth Circuit in In re Pasek. . . . For an injury to be "malicious," therefore, the debtor's actions must be wrongful.

"This statement affirms the Court's conclusion in Landon I that willfulness and maliciousness must be analyzed as separate prongs under § 523(a)(6), and provides additional guidance on how to do so.Following Kawaauhau v. Geiger,31 in order for conduct to be willful under § 523(a)(6), "the debtor must desire . . . [to cause] the consequences of his act or . . . believe [that] the consequences are substantially certain to result from it."32 In the Tenth Circuit, "malicious intent [may] be demonstrated by evidence that the debtor had knowledge of the creditor's rights and that, with that knowledge, proceeded to take action in violation of those rights."33 "[P]ersonal animus is not a requirement for malicious injury."34 For an injury to be malicious, the debtor must be conscious that their actions are wrongful.35 "Libel and defamation claims are nondischargeable under § 523(a)(6) when the statements [*19] were made with actual knowledge of their falsity."36 Therefore, defamation can constitute a "willful and malicious injury" where a debtor knew (or was substantially certain) that the published statements were false.37 "Mere reckless disregard for the truth or falsity of the statement, which can support a libel verdict, is not a willful and malicious injury for purposes of § 523(a)(6)."38 Note that the actual truth of the offending statement is not an available defense to Defendant at this point in the litigation.39 That ship metaphorically sailed upon the entry of the Defamation Judgment, where the jury found the statements to be false. At this juncture, the Court is only concerned with what the Defendant knew at the time she wrote the Defamatory Post.

A court's determination under § 523(a)(6) requires a subjective assessment of the debtor's knowledge and motives, including any claimed justification or excuse.40 "The subjective standard correctly focuses on the debtor's state of mind and precludes application of § 523(a)(6)'s nondischargeability provision short of the debtor's actual knowledge that harm to the creditor was substantially certain."41 In conducting such [*20] an inquiry, a court is not limited to self-serving statements from the debtor; "[i]n addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action."42 "A totality of the circumstances inquiry is fact specific and hinges on the credibility of witnesses."43

"The United States Supreme Court, in Counterman v. Colorado,44 recently offered a primer on the various mental states used to evaluate the subjective mindset required to trigger a speaker's culpability for their actions in a criminal context:

The law of mens rea offers three basic choices. Purpose is the most culpable level in the standard mental-state hierarchy, and the hardest to prove. A person acts purposefully when he "consciously desires" a result—so here, when he wants his words to be received as threats. United States v. Bailey, 444 U.S. 394, 404, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Next down, though not often distinguished from purpose, is knowledge. Ibid. A person acts knowingly when "he is aware that [a] result is practically certain to follow"—so here, when he knows to a practical certainty that others will take his words as threats. Ibid. (internal quotation [*21] marks omitted). A greater gap separates those two from recklessness. A person acts recklessly, in the most common formulation, when he "consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another." Voisine v. United States, 579 U.S. 686, 691, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016) (internal quotation marks omitted). That standard involves insufficient concern with risk, rather than awareness of impending harm. See Borden v. United States, 593 U. S.___, ___, 141 S.Ct. 1817, 1823-1824, 210 L.Ed.2d 63 (2021) (plurality opinion). But still, recklessness is morally culpable conduct, involving a "deliberate decision to endanger another." Voisine, 579 U.S. at 694, 136 S.Ct. 2272.45

"This inquiry is meant to balance a speaker's right of protected speech under the First Amendment, while discouraging unprotected speech, such as defamation.46 Using Counterman as a guide, the question before the Court is: did Defendant know or was she substantially certain that the statements in the Defamatory Post were false (willful), such that injury to Kanaga was desired or practically certain to occur (malicious)? ...

"As noted supra, the evidence before the Court overwhelmingly leads to the conclusion that Defendant sincerely believed each and every allegation made about Kanaga in the Defamatory Post. While the Barnstable Court jury found those statements to be false, Kanaga has provided no evidence that Defendant ever entertained doubts about their veracity. ...

Willfulness

"Kanaga argues that the element of willfulness has been established by a finding of the Barnstable Court that the statements in the Defamatory Post were "defamation per se."54 To the extent Kanaga is arguing this Court is collaterally estopped from making a determination regarding willfulness, the Court finds that issue was never properly presented or supported.55

"Even if Kanaga had properly presented the underlying documents from the Barnstable Court to support a finding of willfulness, the Court would still have rejected his claim.56 HN13 Under Massachusetts law, certain types of defamatory statements are actionable without proof of economic loss, and are labeled defamation per se.57 These include statements that charge a plaintiff with a crime and statements that may prejudice their profession or business.58 Economic harm is presumed by such statements, if they are indeed proved to be false, without any additional evidentiary showing. When statements are found to be defamatory per se, the intent of the tortfeasor is not a factor. When faced with a state court finding of defamation per se, a bankruptcy court must still find subjective knowledge of falsity by the debtor to meet the threshold of § 523(a)(6). ...

"Were this issue properly raised, the Court would have agreed with the Sixth Circuit's analysis that a state court finding of defamation per se, i.e., presumed injury, is not enough to find willfulness under § 523(a)(6).60 HN15 Where, as here, a state formulation of defamation per se is focused on a plaintiff's burden of proof of harm and does not address the subjective intent of the tortfeasor, it will not satisfy the elements of § 523(a)(6). ...

Malicousness

"A malice inquiry requires an assessment of the debtor's motives, including any claimed justification or excuse.61 First, the Court must find the Defendant's actions to be wrongful.62 That is satisfied here by the publication of false and defamatory statements, as found by the Barnstable Court jury.63 "But wrongful injuries are not malicious unless the Debtor also knew them to be false when he made them; otherwise there can be no 'conscious disregard of duty,' as the cases require."64 In this context, malice means the publication of knowingly false statements, such that the author desires or is practically certain to injure their target.

"What becomes clear from Defendant's testimony and the documentary evidence introduced in this proceeding is that Defendant genuinely believed in the statements she made about Kanaga at the time of the Defamatory Post. She did not intend to—or even understand that she was—making false or defamatory statements. ...

"As the United States Supreme Court has noted, the States have substantial latitude to determine and enforce legal remedies for the publication of defamatory falsehoods that are injurious to the reputation of a private individual.77 This includes imposing liability on a speaker upon a finding of at least negligence, as occurred in this case.78 If a State wants to impose liability based on presumed or punitive damages, it must raise the bar to require a showing of reckless behavior, which also occurred in this case.79 But nondischargeability under § 523(a)(6) requires yet another step—to a knowing or purposeful state of mind.80 Kanaga has not met this burden. As a result, his debt will be discharged in the Defendant's underlying bankruptcy case."
11 U.S.C. § 523(a)(6)
In re Gilani5th Cir1/30/24The court held that the Rooker-Feldman doctrine prevented the Debtor from relitigating the issue whether 11 U.S.C. § 523(a)(7) excepted his debt from discharge after a state court held that it did.
In 2009 the State of Nevada commenced a criminal action against the Debtor, charging him with multiple felonies including issuance of a check without sufficient funds. In 2011 the Debtor filed a chapter 7 bankruptcy listing the creditor. On June 1, 2011 the court entered a discharge order. On June 3, 2013 the Debtor entered into a written plea agreement regarding the charges.
“In the 2013 plea agreement, Gilani pled guilty to passing thirty checks with the intent to defraud between August and October 2008, totaling $735,000, made payable to various hotels and casinos in Las Vegas, including Wynn, when he had insufficient money or credit. The agreement included a stipulation "to stay adjudication" for five years and that, if Gilani paid $100,000 during that time period, he could "withdraw his plea to the felony and enter a plea to a gross misdemeanor (Attempt NSF)." …
“The state court documents in the record on appeal show that Gilani was unable to pay $100,000 within five years, and that in December 2019, he requested two more years to pay the amount. The record does not indicate whether Gilani ultimately paid a total of $100,000. But, on September 4, 2020, the state court rendered judgment convicting Gilani only of a gross misdemeanor charge and sentenced him to one day in a detention center with one day credit for time served. Additionally, the judgment of conviction ordered substantial amounts of restitution payable to the various hotels and casinos listed in the indictment. As relevant here, the judgment ordered restitution by Gilani payable to Wynn in the amount of $218,123.83.
“On January 21, 2022, Wynn filed a petition in state court to enforce the restitution ordered in the September 4, 2020 judgment, pursuant to Nevada Revised Statute § 176.275. That statute provides that "[a]n independent action to enforce a judgment which requires a defendant to pay restitution may be commenced at any time."2 Gilani opposed Wynn's petition, arguing that Wynn was seeking to enforce "casino markers" that were discharged in his 2011 bankruptcy proceeding. Gilani further asserted that "[t]he automatic stay" imposed by the bankruptcy court was "still in place" and that Wynn, although notified of the bankruptcy proceeding, had never filed an adversary proceeding to dispute the discharge of the gambling debts.
“On February 18, 2022, over Gilani's opposition, the state district court granted Wynn's petition to enforce the judgment requiring Gilani to pay restitution to Wynn in the amount of $218,123.83. In doing so, the court relied on the Supreme Court's decision in Kelly v. Robinson, in which the Court held that 11 U.S.C. § 523(a)(7) of the Bankruptcy Code "preserves from discharge any condition a state criminal court imposes as part of a criminal sentence." The court determined that therefore Gilani could not legally claim that his criminal restitution imposed as part of his criminal sentence was discharged in the 2011 bankruptcy proceedings. The court further noted that Gilani entered into the plea agreement two years after the bankruptcy filing and discharge; therefore, the restitution obligation noted in the plea agreement was not encompassed by the bankruptcy automatic stay or permanent injunction.
“Gilani did not seek state appellate review of the judgment. Instead, on March 2, 2022, he filed a motion to reopen his bankruptcy proceeding for the purpose of filing a motion to enforce the permanent injunction he contended the bankruptcy court authorized in its order of discharge. Gilani asserted that Wynn was attempting to collect on an obligation that had been discharged and, in doing so, Wynn was violating the permanent injunction. …
Rooker-Feldman
“Gilani additionally argues that the Rooker-Feldman doctrine does not apply because the state-court judgment is void, and the doctrine does not prohibit review of void judgments. He asserts the state-court judgment is void under 11 U.S.C. § 524(a)(1) of the Bankruptcy Code, which provides that a bankruptcy discharge "voids any judgment at any time obtained to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged." But, in this case, the state court specifically determined that the restitution payable to Wynn fell under § 523(a)(7) of the Bankruptcy Code, which excepts restitution orders from bankruptcy discharge orders.12
“As the district court properly noted, it does not matter whether a federal district or appellate court agrees or disagrees with the state-court judgment herein because even if the state court erred, "the judgment is not void [and must] be reviewed and corrected by the appropriate state appellate court."13 In effect, Gilani's "void judgment" argument challenges the merits of the state-court judgment, which we are precluded from reviewing. Therefore, Gilani's argument has no merit.”
11 U.S.C. § 523(a)(7)
Rooker-Feldman
In re KelleyBankr. E.D. TN1/25/2024The Debtor's transfer of real estate to a trust for the benefit of their children, done without receiving any value in return, reduced the assets available to creditors and therefore could be reversed. A transfer made pursuant to a noncollusive divorce decree entered by a state court is NOT immune from avoidance as constructively fraudulent.The plaintiff successfully met the burden of proof by showing that the debtor did not obtain a fair equivalent value for the transfer. Additionally, the plaintiff was entitled to seek the reversal of the transfer under 11 U.S.C.S. § 544(b).

"In the complaint initiating this adversary proceeding the chapter 7 trustee seeks to avoid as constructively fraudulent a prepetition transfer of the debtor's interest in real property to an irrevocable trust established in connection with a divorce proceeding. The co-trustees of the trust, the debtor and his ex-wife, deny that the transfer is avoidable. ...

"Under Section 544(b) of the Bankruptcy Code, a trustee may avoid a transfer of property that is avoidable under applicable nonbankruptcy law by a creditor who has an allowable unsecured claim. That section enables the trustee to step into the shoes of a creditor to pursue avoidance actions on behalf of the bankruptcy estate. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 B.R. 896, 907 (Bankr. N.D. Ga. 2013).

"In the complaint, the plaintiff identifies Synovus Bank as the creditor with an unsecured claim that may avoid the debtor's transfer of the Real Property pursuant to Georgia's Uniform Voidable Transactions Act. Ga. Code Ann. §§ 18-2-70 et. seq. ("UVTA"). ...

"A transfer may be avoided as constructively fraudulent under Section 18-2-75(a) of the UVTA only if the trustee establishes that the debtor did not receive "reasonably equivalent value in exchange for the transfer." "The purpose of voiding transfers unsupported by 'reasonably equivalent value' is to protect creditors against the depletion of a bankrupt's estate." Senior Transeastern Lenders v. Off. Comm. of Unsecured Creditors (In re TOUSA, Inc.), 680 F.3d 1298, 1311 (11th Cir. 2012) (citation omitted); Walker v. Treadwell (In re Treadwell), 699 F.2d 1050, 1051 (11th Cir. 1983) (citation omitted) ("[T]he object of [the Bankruptcy Code's fraudulent conveyance provision] is to prevent the debtor from depleting the resources available to creditors through gratuitous transfers of the debtor's property.").

"Whether a debtor received reasonably equivalent value requires application of a three-part test: "1) whether the debtor received value; 2) whether the value received was in exchange for the property transferred; and 3) whether the value was reasonably equivalent to the value of the property transferred." Mann v. Brown (In re Knight), 473 B.R. 847, 850 (Bankr. N.D. Ga. 2012) (citation omitted). Consideration of only the first two parts of that test is determinative in this case.

"A debtor receives value if "property is transferred, or an antecedent debt is secured or satisfied." Ga. Code. Ann. § 18-2-73(a). The defendant points to the fact that, under the consent divorce decree, the debtor received various items of marital personal property and $5,000.00 cash. He also notes that his ex-wife assumed responsibility to satisfy certain antecedent debts, including debts secured by properties she was awarded by the divorce decree. That consideration would constitute "value" as defined by the UVTA. However, the value received by the debtor was in exchange for the debtor's transfer of his interest in marital property to his ex-wife.

"The Real Property was transferred to the trust for the benefit of the Kelleys' children. The defendant has not identified any value given "in exchange for" the transfer of the Real Property to the children. The consent divorce decree does not reference any property received or any antecedent debt secured or satisfied in exchange for that transfer. The Kelleys' children certainly would not have received any portion of their parents' property had the state court been called upon to make an equitable division of the marital assets in a fully contested divorce proceeding. Payson v. Payson, 274 Ga. 231, 552 S.E.2d 839, 841 (2001) (emphasis added) (citation omitted) ("The equitable division of property is an allocation to the parties of the assets acquired during the marriage, based on the parties' respective equitable interests."). The fact that the transfer of the Real Property was consummated pursuant to a consensual divorce decree does not change the obvious fact that it was nothing more than a gratuitous transfer by the Kelleys solely for the benefit of their children."

HN13 A gift, even a gift to one's children, may be subject to avoidance by a trustee. See, e.g., In re Treadwell, 699 F.2d at 1051. The transfer of the Real Property depleted the assets of both the debtor and his former spouse, and neither received any value in exchange to restore their respective estates. The defendant has pointed to nothing in the record and has proffered no evidence in the form of affidavits, deposition transcripts, [*19] or otherwise to suggest to the contrary.
11 U.S.C.S. § 544(b)
In re McCroreyBankr. ID1/24/2024Following the approval of the debtors' Chapter 13 plan, any funds from a pre-petition claim that were received by the bankruptcy estate after the plan was confirmed, all plan payments were made, and a discharge was granted, became the property of the debtors. The plan did not include a clause that allowed the trustee to take control of and manage assets acquired after the plan was confirmed. Consequently, even though the trustee and the debtors had reached an agreement to allocate these funds to the unsecured creditors, the bankruptcy court was unable to sanction this arrangement. This was because 11 U.S.C.S. § 105 did not offer a legal means to endorse such an agreement, as treating these funds as a contribution from the debtor to the plan would necessitate a change to the plan, which is not allowed under 11 U.S.C.S. § 1329(a).

"As agreed by Debtors and Trustee, and pursuant to the Bankruptcy Code, the funds are the result of a pre-petition claim and as such, are property of the bankruptcy estate. §§ 541(a)(1) & 1306(a)(1). The question is how they may be paid to creditors at this late date.

"If the funds are viewed as a payment by Debtors into the plan, the plan would require modification; however pursuant to § 1329(c), modification is not possible after Debtors have completed all 60 months of payments. Section 1329(a) provides that a confirmed plan may be modified "[a]t any time after confirmation of the plan, but before the completion of payments under such plan[.]" (emphasis added). Courts have strictly enforced this provision. See Danielson v. Flores (In re Flores), 735 F.3d 855, 859 (9th Cir. 2013) (en banc) (plan modification must occur before the completion of payments under the plan); In re Profit, 283 B.R. 567, 573 (9th Cir. BAP 2002) ("Under § 1329(a), a chapter 13 plan cannot be modified in any respect after payments are completed."). Trustee does not seek to modify the plan, and the parties have not agreed to modification in their proposed stipulated order.

"On the other hand, if the funds are viewed as an asset "recovered" by the Trustee when Wells Fargo mailed it to her, a modification may not be required. The Court turns to the terms of the confirmed plan, by which both Trustee and Debtors are bound. HN2 A plan is a contract between the debtor and the debtor's creditors. Derham-Burk v. Mrdutt (In re Mrdutt), 600 B.R. 72, 76-77 (9th Cir. BAP 2019) ("The order confirming a chapter 13 plan, upon becoming final, represents a binding determination of the rights and liabilities of the parties as specified by the plan."); In re Alonso, 570 B.R. 622, 629-30 (Bankr. D. Idaho 2017) ("[O]nce confirmed, the terms of a chapter 13 plan bind not only creditors and the trustee, but also the debtors."). While the plan provides for no payments to unsecured creditors, it does provide in Part 5 that "[a]llowed nonpriority unsecured claims that are not separately classified will be paid, pro rata from, the funds remaining after disbursements have been made to all other creditors provided for in this plan." Doc. No. 53. Presumably, it is under this provision that Trustee intends to distribute the funds from Wells Fargo to unsecured creditors.

"There is a separate provision of the plan that curtails such an action under these facts, however. Under Part 7, property of the estate vests in Debtors at plan confirmation. Id. As such, even though §§ 541(a) and 1306(a)(1) decree that the Wells Fargo funds are estate property, confirmation of the plan on January 3, 2019 vested them in Debtors. ...

"The Court cannot locate any authority in the Bankruptcy Code or the confirmed plan to permit Trustee to distribute the Wells Fargo funds to Debtors' creditors. In short, under these particular circumstances, when all 60 months of plan payments have been made, the trustee has filed a notice that the plan has been completed and recommended entry of the discharge, and the discharge has in fact been entered, and finally that there is no plan provision permitting Trustee to recover and administer post-confirmation assets, the Court can discern no authority for Trustee to administer these funds. ...

Section 105 Doesn't Allow The Court to Approve the Agreement Between the Trustee and Debtor

"While Debtors and Trustee have agreed to this arrangement, the Court still must approve their agreement. Because it cannot rely on a Bankruptcy Code section or plan provision, it would have to do so as an exercise of its equitable powers under § 105(a). HN3 To this end, the Supreme Court has observed:

It is hornbook law that § 105(a) "does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code." Section 105(a) confers authority to "carry out" the provisions of the Code, but it is quite impossible to do that by taking action that the Code prohibits. That is simply an application of the axiom that a statute's general permission to take actions of a certain type must yield to a specific prohibition found elsewhere.

Law v. Siegel, 571 U.S. 415, 421, 134 S. Ct. 1188, 1194, 188 L. Ed. 2d 146 (2014) (internal citations omitted). As such, under these facts, the Court declines to exercise its discretion to approve the arrangement agreed to by the parties, and instead directs Trustee to remit the Wells Fargo funds to Debtors"
11 U.S.C.S. § 105
11 U.S.C.S. § 1329(a)
In re Smith-Freeman et alBankr. W.D. PA1/24/2024In a chapter 7 attorney's fee bifurcation situation, the court held that the cost of the factoring fee of $283.58, paid to the attorney's lender Fresh Start Funding, could not be passed along to be paid by the debtors.

"Bifurcated fee agreements split an attorney's total fee into two components: pre-petition work and post-petition work. Attorneys often structure these agreements such that they perform very little work under the pre-petition agreement and perform the bulk of the work necessary to help a debtor complete a bankruptcy case under the post-petition agreement in exchange for a (presumably) nondischargeable fee. (Citations omitted.)

"Presumably, debtors enter into these bifurcated fee agreements for one simple reason—they cannot afford to pay attorney fees up front and want to pay the attorney fees over time after a bankruptcy case has been filed.

"Attorneys enter into bifurcated fee agreements because it provides for an avenue of payment in the bankruptcy context for two reasons. First, they structure their engagement this way because attorneys (and other professionals) cannot be compensated from [*28] estate property in chapter 7 cases, and therefore they have to look to the debtor for payment if no third-party (such as a family member) is willing to pay the fees. See Lamie v. United States Trustee, 540 U.S. 526, 537, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004). Second, because attorney fees owed under a pre-petition engagement agreement are generally eligible for discharge in bankruptcy, legal counsel un-bundle their services so that fees for services provided after a bankruptcy filing may be incurred and paid without violating the discharge injunction against the collection of prepetition debts under 11 U.S.C. § 524. See, e.g., Rittenhouse v. Eisen, 404 F.3d 395, 397 (6th Cir. 2005). ...

Alleged Upcharge & Reasonable Fees

"The third and most significant contention by the U.S. Trustee is that the fees earned by Mr. Shepherd contain an excessive "upcharge" for his post-petition services. Here, the U.S. Trustee contends that the total fees charged by Mr. Shepherd are unreasonable in light of both his statements in the record and the work actually performed in each of the Cases. ...

"Regardless of the U.S. Trustee's position, the Court has an independent duty to examine the reasonableness of Mr. Shepherd's fees. In this context, the Court notes that of the $1,708.58 in fees actually charged in each of the cases, $283.58 was a pass-through factoring charge incurred by Mr. Shepherd. It is this factoring fee which the U.S. Trustee contends is part of an impermissible "upcharge."

"The Post-Filing Agreement acknowledges the pass-through nature of this expense when it states that Fresh Start Funding "also charges the Law Firm a fee equal to 19.9% of the Pay Over Time Balance that the Law Firm passes on to you, as described above." See Post-Filing Agreement at ¶C.2. This "19.9%" sum is equal to $283.58 and is calculated by multiplying the $1,425 flat fee by 0.199.

"The essential question presented by this pass-through charge is whether it is the sort of law firm overhead that can be passed along to the debtors in each of the Cases. This Court concludes that the factoring fee cannot be foisted upon the debtors. ...

"The record here reflects that the bifurcation factoring fees charged by Mr. Shepherd are nothing but a coy device by which Mr. Shepherd forces his clients to pay financing fees to Mr. Shepherd's lender—after all, per Mr. Shepherd, he "shouldn't have to wait on [his] money." Hr'g Tr. 62:12. Thus, the pass-through charges are actually traceable to the capital structure of his firm, which includes monetization of receivables. It is in substance payment of overhead incident to the overall operation of the law practice, and is not a necessary component to direct attorney work that Mr. Shepherd does for the affected clients (because none of the cases were "emergencies" and Mr. Shepherd could have required his clients to save up the requisite funds to pay the attorney fees before commencing the cases or, alternatively, Mr. Shepherd could have simply not factored the post-petition fees paid by his clients).

"Accordingly, the Court finds that the agreement and practice of imposing the factoring fee of $283.58 is unreasonable in all of the Cases. (Citations omitted.)"

"
11 U.S.C.S. § 329(b)
11 U.S.C.S. § 330
Fed. R. Bankr. P. 2016
In re MilesBankr. E.D. KY1/24/2024The court sanctioned a creditor under 11 U.S.C. § 523(d) for filing a non-dischargeability action against the debtor under 11 U.S.C. § 523(a)(2)(A) for a $2,000 credit card debt. The court held that "charges incurred or payments not made are not sufficient in and of themselves" to support a nondischargeability action under § 523(a)(2)(A)." Futher the court held that "the notion that a debtor's failure to answer a creditor's collection calls or pursue its (unpublished) hardship programs somehow bears on a debtor's fraudulent intent at the time charges are incurred is, at best, without merit and, at worst, frivolous." Further the court found it was probative that the creditor failed to attend the meeting of creditors or conduct a 2004 examination. Finally, Plaintiff refused to dismiss the case once the facts were known because the debtor demanded that the creditor pay his attorneys fees. So instead, the creditor continued the litigation and trial.

"Considering the totality of the circumstances and the relevant factors, Plaintiff failed to meet its burden to prove Debtor's intent to deceive Plaintiff, an essential element of its claim under § 523(a)(2)(A).

"V. Debtor is entitled to attorney's fees and costs pursuant to § 523(d).

"Debtor asks the Court to award him his costs and attorney's fees for defending this action. Section 523(d) provides:

If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney's fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust.

11 U.S.C. § 523(d). Congress enacted this provision "to discourage creditors from commencing exception to discharge actions in the hopes of obtaining a settlement from an honest consumer debtor anxious to save attorney's fees because such practices impair the debtor's fresh start." Firstbanks v. Goss (In re Goss), 149 B.R. 460, 462 (Bankr. E.D. Mich. 1992).

"Here, Plaintiff brought a nondischargeability action under § 523(a)(2)(A), the November Charges are consumer debts, and the Court has found those debts dischargeable. Therefore, "the burden then shifts to [Plaintiff] to prove either that its position was substantially justified or that special circumstances exist that would make an award of costs and attorney fees unjust." Swartz v. Strausbaugh (In re Strausbaugh), 376 B.R. 631, 636 (Bankr. S.D. Ohio 2007) (citations and quotation marks omitted). This Court has explained:

[t]o be substantially justified a creditor's position must be reasonable in both law and fact. This has been expressed as a three-part test: (1) a reasonable basis in law for the theory propounded; (2) a reasonable basis in truth for the facts alleged; and (3) a reasonable connection between the facts alleged and the legal theory advanced. Further, a determination of substantial justification should turn on a totality of the circumstances. This analysis permits a trial court to examine a number of factors, including, but not limited to, whether the creditor attended the 341 meeting or conducted an examination under Rule 2004, as well as the extent of its pre-trial investigation.

Bank of America v. Miller (In re Miller), 250 B.R. 294, 296 (Bankr. E.D. Ky. 2000) (citations omitted). Applying this test, Debtor is entitled to recover his costs of defense from Plaintiff.

"First, this Court previously explained "[a]llegations that focus on charges incurred or payments not made are not sufficient in and of themselves" to support a nondischargeability action under § 523(a)(2)(A). Id. Such allegations essentially are all Plaintiff focused on here. Plaintiff based its case on an accounting of Debtor's charges on the Credit Card over eleven days in November 2022 and his subsequent payments to creditors other than Plaintiff. Creditors are "well advised to consider whether they can offer [other] facts which can support a finding of fraud pursuant to the standards set out in . . . Rembert [.]" Id. Moreover, the notion that a debtor's failure to answer a creditor's collection calls or pursue its (unpublished) hardship programs somehow bears on a debtor's fraudulent intent at the time charges are incurred is, at best, without merit and, at worst, frivolous.

"Second, as in Miller, the Complaint's allegations derived from information in Debtor's petition and Plaintiff's own records. Plaintiff made no attempt to procure information through a Rule 2004 examination or by attending the § 341 meeting. "While the failure to attend the [§] 341 meeting or schedule a Rule 2004 examination is not 'dispositive' it is 'probative.'" Id. at 297 (citation omitted). Had Plaintiff done so before filing this action, it would have obtained the material facts contained in Debtor's two-page affidavit (which detailed Debtor's health issues and the unanticipated vehicle and veterinary expenses comprising about two-thirds of the November Charges). Performing a minimal investigation prior to filing suit may have caused Plaintiff to make a better decision. Instead, it litigated through trial the non-dischargeability of a $2,000 credit card debt without evidence of luxury purchases and after receiving uncontested evidence about Debtor's unexpected expenses and significant health issues resulting in three months of sharply reduced income.

"Lastly, once a creditor knows it cannot "controvert the facts set out in [a debtor's] supporting affidavit, it [is] not substantially justified in going on." Id. Here, during closing argument, Plaintiff's counsel stated it offered to dismiss the action after reviewing Debtor's affidavit but did not do so because Debtor insisted Plaintiff pay his legal fees and costs. Notwithstanding Debtor's position, Plaintiff proceeded to increase costs further by litigating Debtor's motion for summary judgment, moving for leave to file its own belated dispositive motion, and trying this case. Plaintiff both failed to conduct a proper and required pre-filing investigation and compounded its errors through its post-filing litigation conduct."

Plaintiff has failed to meet its burden to show its position was substantially justified or special circumstances exist making it unjust to award Debtor his costs and attorney's fees. Considering the totality of circumstances, Debtor will be awarded his reasonable attorney's fees and costs under § 523(d).
11 U.S.C. § 523(a)(2)(A)
11 U.S.C. § 523(d)
In re Teter6th Cir1/3/24The court denied the debtor's request for attorneys fees from the United States Trustee under the Equal Access to Justice Act (EAJA) after the UST withdrew a motion to dismiss debtor's case.

"Today's case involves a request for attorneys' fees under the EAJA during a bankruptcy proceeding. The EAJA empowers "a court" to award prevailing parties fees and costs incurred "in any civil action" that is "brought by or against the United States in any court having jurisdiction of that action." 28 U.S.C. § 2412(d)(1)(A). By way of background, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (plurality op.), the Supreme Court struck down parts of the then-existing bankruptcy system. Congress responded by erecting the system that remains in place today. See Wellness Int'l Network, Ltd. v. Sharif, 575 U.S. 665, 669-71 (2015) (discussing historical amendments to the bankruptcy system). In this modern regime, bankruptcy courts are officers of the district courts, meaning the former can adjudicate certain cases that are referred to those courts. Id. at 670. When that happens, the bankruptcy court's "statutory authority depends on whether Congress has classified the matter as a 'core proceeding' or a 'non-core proceeding.'" Id. (alterations adopted) (quoting 28 U.S.C. §§ 157(b)(2), (b)(4)). A core proceeding is "one that either invokes a substantive right created by federal bankruptcy law or one which could not exist outside of the bankruptcy." In re Bavelis, 773 F.3d 148, 156 (6th Cir. 2014) (cleaned up). Congress has provided a non-exhaustive list of examples. See 28 U.S.C. § 157(b)(2). Non-core proceedings, conversely, include causes of action that (1) are not identified in § 157(b)(2), (2) existed before the filing of the bankruptcy case, (3) would exist independent of the Bankruptcy Code, or (4) are not significantly affected by the filing of the bankruptcy petition. Bavelis, 773 F.3d at 156. For core proceedings, "Congress gave bankruptcy courts the power to 'hear and determine' core proceedings and to 'enter appropriate orders [*5] and judgments,' subject to appellate review by the district court." Wellness Int'l, 575 U.S. at 670 (citing 28 U.S.C. § 157(b)). For non-core proceedings, on the other hand, a bankruptcy court enjoys authority over the matter only to the extent that the parties consent to the court's jurisdiction. Id. at 671 (citing 28 U.S.C. § 157(c)(2)).

"How do attorneys' fees requests under the EAJA fare in this dichotomy? The federal courts are not of one mind. Some describe EAJA fees requests as core proceedings, while others treat them as non-core proceedings. ... Were we to agree with those courts that treat the issue as a core proceeding, the bankruptcy court fairly asserted jurisdiction. Wellness Int'l, 575 U.S. at 670; 28 U.S.C. § 157(b). But we would say the same in this instance even if we were to treat the matter as a non-core proceeding.

"That is because no party objected to the bankruptcy court's jurisdiction. Teter consented to the bankruptcy court's adjudication of her fees request by filing her motion with that court. In response, the Trustee has never argued that the bankruptcy court lacked jurisdiction to assess such fees. True, parties ordinarily cannot waive federal jurisdictional defects. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). But things work slightly differently in bankruptcy court. See Wellness Int'l, 575 U.S. at 683-84. For non-core proceedings, again, bankruptcy courts have jurisdiction only where the parties have so consented. But "[n]othing in the Constitution requires that consent to adjudication by a bankruptcy court be express." Id. at 683. And by continuing to litigate Teter's EAJA request without objection, the Trustee in effect consented to the bankruptcy court's handling of the matter, making it a valid exercise of that court's jurisdiction. ...

"Our inquiry here is limited. At Teter's direction, we examine whether the EAJA's "civil action" requirement has been satisfied in a very specific context: a motion to dismiss a bankruptcy case filed by the United States Trustee in accordance with 11 U.S.C. § 707(b). Whether, for example, a bankruptcy case itself constitutes a civil action for purposes of the EAJA is not a point pressed by Teter. Cf. In re Sisk, 973 F.3d 945, 947 (9th Cir. 2020) ("[U]ncontested bankruptcy cases do not clearly constitute civil action[s] brought by or against the United States within the meaning of the EAJA." (citation and quotation marks omitted)).

"Our analysis is informed by principles of sovereign immunity. In "render[ing] the United States liable for attorney's fees for which it would not otherwise be liable," the EAJA "amounts to a partial waiver of sovereign immunity." Ardestani v. INS, 502 U.S. 129, 137 (1991). Although the EAJA waives sovereign immunity in some respects, such waivers "must be strictly construed in favor of the United States." Id. To honor that understanding, we read any textual ambiguity in favor of immunity, because "the Government's consent to be sued is never enlarged beyond what a fair reading of the text requires." FAA v. Cooper, 566 U.S. 284, 290 (2012). And, in the end, we agree with the bankruptcy court that the EAJA could be read to exclude § 707(b) motions to dismiss, leaving fees unavailable to a party like Teter. ...

"...At day's end, if there is something special about bankruptcy motions to dismiss that makes them civil actions, Congress did not make that sufficiently clear....

"All things considered, it is at the very least plausible to conclude that a § 707(b) motion to dismiss does not initiate its own civil action. The absence of an express waiver by Congress of sovereign immunity therefore bars us from lifting the veil of immunity protecting the United States Trustee. Accordingly, Teter is unable to avail herself of the EAJA. See Ardestani, 502 U.S. at 137."
28 U.S.C. § 2412(d)(1)(A)
In re Frantz9th Cir BAP12/29/23The court reversed the bankruptcy court's imposition of sanctions on a debtor's attorney who certified that the debtors had completed their plan payments even though the debtors were delinquent in their direct monthly mortgage payments. Debtors' counsel argued that the law in the 9th Circuit was not settled concerning the issue of whether direct mortgage payments are "plan payments" under 11 U.S.C. § 1328.

The court reviewed the standards for imposing sanctions under Rule 9011.

"However, the Ninth Circuit has urged restraint when imposing Civil Rule 11 sanctions: "[F]orceful and effective representation often will call for innovative arguments. For this reason, sanctions should be reserved for the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose." Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997) (cleaned up). ...

"The Ninth Circuit has reversed sanctions where a "plausible, good faith argument can be made by a competent attorney to the contrary." Zaldivar v. City of L.A., 780 F.2d 823, 833 (9th Cir. 1986), abrogated on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990). It stated that, "[i]f, judged by an objective standard, a reasonable basis for the position exists in both law and in fact at the time that the position is adopted, then sanctions should not be imposed." Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir. 1986). It directed that, when imposing Civil Rule 11 sanctions, the court must "look[ [*20] ] to whether or not a basis in law or fact exists . . . . [S]anctions should not have been imposed where a 'plausible good faith argument can be made.'" Id. at 1541 (quoting Zaldivar, 780 F.2d at 832).

"In this case, Ms. Doling declared to the bankruptcy court that the Debtors had completed the chapter 13 plan. This statement implicitly represented that the Debtors had made all of their "payments under the plan." § 1328(a). The bankruptcy court could not sanction Ms. Doling if her position had a plausible, good faith legal basis, even if she did not explicitly argue that basis when she filed the Doling Declaration. ...

"But the court's finding of her intent presupposes that her statement was false: in other words, that the Debtors had not made all of the "payments under the plan." This statement in turn presupposes that the direct payments to the mortgagee were "payments under the plan." The question of whether direct payments are "payments under the plan" is a pure question of law.... we hold that, as a matter of law, there was a reasonable legal basis for her argument, so the bankruptcy court erred in sanctioning her under the authorities on which it relied.

"Rule 9011(b) incorporates a reasonableness standard which focuses on whether a competent attorney admitted to practice before the involved court could believe in like circumstances that his actions were legally and factually justified." In re Nakhuda, 544 B.R. at 899. Additionally, when the court imposes sanctions on its own initiative, it must "apply a higher standard 'akin to contempt' . . . ." Id. ...

"... Additionally, the Ninth Circuit has recognized that, for purposes of Rule 9011, a BAP decision cannot be the basis for sanctioning a party for seeking a contrary result in a district where the underlying issue is unresolved. See Bank of Maui v. Est. Analysis, Inc., 904 F.2d 470, 472 (9th Cir. 1990) ("Whether a BAP decision is controlling authority for the circuit as a whole has not been decided by this court. . . . We need not and do not decide the authoritative effect of a BAP decision because, for the purposes of Bankruptcy Rule 9011, its binding effect is so uncertain that it cannot be the basis for sanctioning a party for seeking a contrary result in a district where the underlying issue has never been resolved."). Therefore, notwithstanding Mrdutt, competent counsel could make a nonfrivolous argument that the bankruptcy court should adopt the minority view."
11 U.S.C. § 1328
Rule 9011
In re MolinaBankr. E.D. NY12/28/23The court dismissed the trustee's adversary proceeding seeking to avoid and recover tuition payments made to Defendant by the Debtor for his three minor children for the 2020-2021 school year totaling $163,639.97.

"n considering whether the non-conclusory factual allegations in the Complaint are sufficient to state a claim for relief under Rule 8(a)(2) and, for those causes of action alleging actual fraud, meet the particularity requirements of Rule 9(b), the Court must first address a threshold question: Does the Complaint contain any well-pleaded assertion of a transfer of an interest of the Debtor in property as required for the avoidance and recovery of a fraudulent transfer under §§ 544(b), 548(a)(1) and 550, and for the avoidance and recovery of a preference under §§ 547(b) and 550? For the following reasons, and as discussed more fully below, the Court concludes that it does not. The Complaint fails to proffer sufficient non-conclusory facts to plausibly suggest a transfer of an interest of the Debtor in property. Generalized assertions, standing alone, do not suffice. Twombly, 550 U.S. at 557. The Trustee's unjust enrichment claim suffers the same fate. To succeed on such claim, the Trustee must establish, inter alia, that The Dalton School was enriched at the Debtor's expense. Absent a well-pleaded assertion of a transfer of an interest of the Debtor in property, the Complaint falls short of alleging facts from which the Court may reasonably infer that the tuition payments [*15] were made at the expense of the Debtor.
11 U.S.C. § 544(b)
11 U.S.C. § 547(b)
11 U.S.C. § 548(a)(1)
11 U.S.C. § 550
FRCP 12(b)(6)
In re GallagherBankr. E.D. NY12/28/23The court denied the debtor's objection to claim seeking to reduce a priority claim to the amount of funds available to pay that claim.

"...the Amended Claim asserts an unsecured priority claim for a domestic support obligation under § 507(a)(1)(A) in the amount of $272,862.62, consisting of $224,021.49 for child support and child support addon expense arrears, $43,241.13 for spousal support and $5,600 for legal fees. In support of the total amount due, the Amended Claim, inter alia, references a judgment entered in the parties' matrimonial action and filed on June 2, 2017 ("June 2017 Judgment") awarding child support arrears to Claimant in the amount of $105,487.53, plus interest from April 5, 2017 in the amount of $1,508.62 for a total of $106,996.15. ...

"...At the hearing, the debtor conceded that the Amended Claim is for a priority nondischargeable domestic support obligation and did not challenge the amounts set forth in the Amended Claim or how the amount was calculated. Rather, the debtor argues that the Amended Claim must be partially disallowed because the trustee has approximately $44,000 to distribute to Claimant and the amount subject to collection by the SCU is slightly more than $44,000. For this reason, the debtor maintained that the Amended Claim must be reduced to the amount of the available distribution. ...

"As the objecting party, the debtor has the burden of coming forward with sufficient evidence (i) to rebut the validity or amount of the claim asserted or (ii) to show the claim should be disallowed. Here, the debtor does not deny that the Amended Claim is for unpaid child support, child support add-ons, spousal support and legal fees, and that the claim constitutes a domestic support obligation entitled to priority pursuant to § 507(a)(1)(A). While the debtor raises for the first time in his Reply that he doesn't owe Claimant any "add ons" or maintenance, the debtor offers no evidence to demonstrate that he has satisfied the debt or that the calculation set forth in the Amended Claim is incorrect. Indeed, the debtor's pleadings could hardly be characterized as [*13] an objection to the allowance of the Amended Claim or to its the validity when his arguments are simply 1) limit the Amended Claim to the amount available for distribution and 2) make the payments to a third party.

"As to the first argument, the debtor offers no legal authority for partially disallowing and reducing Claimant's $272,862.62 claim to the $44,305.03 in outstanding child support arrears simply because there are insufficient funds in the estate to pay the Amended Claim in full. Availability of funds for distribution has no bearing on the validity, priority, and amount of a creditor's claim, and the debtor offers no statutory or case authority to support his position. ...

"...Thus, the debtor's Objection seeks to improperly use the bankruptcy claims process to expunge the remainder of the Amended Claim in excess of $44,000, and thus, forestall Claimant's ability to enforce her nondischargeable domestic support obligation outside of bankruptcy. As this Court has noted, if the debtor wants to modify amounts owed to Claimant for spousal maintenance and child support, the state court that issued those judgments in favor of Claimant is the proper forum for that request.

"The debtor's second argument that all distributions of the sale proceeds on account of the domestic support claim must be paid directly to SCU is not only legally and factually unsupported but, as discussed above, is grounded on a misrepresentation as to what is set forth in the state court judgments and orders. ...

"Having carefully considered the submissions and arguments of the parties, the Court concludes that the debtor failed to meet his burden of coming forward to rebut the validity, priority or amount of the Amended Claim and failed to demonstrate that the SCU is the proper recipient of the trustee's proposed distribution on the Amended Claim."
11 U.S.C. § 507(a)(1)(A)
In re Richards9th Cir BAP12/27/23The court ruled that a debtor does not have standing to appeal the disallowance of a claim (filed by her father) when her estate is insolvent.

"Richards argues that she has standing to appeal because the POC 10-4 Order "affects her rights" and that she has a "legitimate interest" in the adversary proceeding. She offers no facts to support these assertions and cites only California cases. The Ninth Circuit has recently clarified the issue of standing in the bankruptcy context, reviewing the historical standard that to have standing a party must be a "person aggrieved." In Clifton Capital Group, LLC v. Sharp (In re E. Coast Foods, Inc.), 80 F.4th 901, 906 (9th Cir. 2023), as amended (Sept. 14, 2023), the Ninth Circuit reaffirmed that a person must establish Article III standing before the person aggrieved standard becomes relevant. HN8 To have Article III standing in federal court, a person must show that she has: "(1) suffered an 'injury in fact' that is concrete, particularized, and actual or imminent, (2) the injury is 'fairly traceable' to the defendant's conduct, and (3) the injury can be 'redressed by a favorable decision.'" Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).

"Richards has offered no facts to suggest that her "injury" is sufficient to meet the Article III factors set forth in East Coast Foods if for no other reason than that the disposition of this matter in a thoroughly insolvent estate cannot affect her economically in any material way. It is her burden to establish Article III standing and without that we lack subject matter jurisdiction to consider her appeal.

"We recognize that a chapter 7 debtor may have standing when it is likely there will be a surplus bankruptcy estate. Duckor Spradling & Metzger v. Baum Tr. (In re P.R.T.C., Inc.), 177 F.3d 774, 778 n.2 (9th Cir. 1999) ("Ordinarily, a debtor cannot challenge a bankruptcy court's order unless there is likely to be a surplus after bankruptcy."). The Trustee asserts that there is likely [*13] to be insufficient funds even to pay the administrative expense creditors in this case and Richards makes no attempt to dispute that assertion."
In re SheltonD. C.D.CA12/26/23The court dismissed an appeal based on Appellant's failure to provide a transcript to the district court when the appealled ruling was made on the record.

"Most crucially, Larson was required to "order in writing from the reporter . . . a transcript of such parts of the proceedings . . . as the [Appellant] considers necessary for the appeal, and file a copy of the order with the bankruptcy clerk," or take advantage of the alternatives provided under Rule 8009(b)-(d). Fed. R. Bankr. P. 8009. "When findings of fact and conclusions of law are made orally on the record, a transcript of those findings is mandatory for appellate review." Clinton, 449 B.R. at 83 (citation omitted). Otherwise, "[t]here is no other way for an appellate court to be able to fathom the trial court's action." In re McCarthy, 230 B.R. 414, 417 (9th Cir. BAP 1999) (citing Rule 8006, which requires that the record on appeal include, among other items, findings of fact and conclusions of law of the court). "Pro se litigants are not excused from complying with these rules." Clinton, 449 B.R. at 83.


"Here, the Court finds that Larsen has not provided a complete record for review, including a rule-compliant designation of the record and corresponding transcripts containing the relevant rulings below. Although Larson filed a document entitled "Designation of record" dated March 20, 2022,3 Larson did not designate any items to be included in the record in that filing, nor did he provide a transcript of the matters that are the subject of this appeal.4 Because the Bankruptcy Court made its findings and conclusions on the record and incorporated those findings in its written orders,5 the Court cannot conduct an informed, substantive review of Larsen's appeal without the underlying transcripts. See In re Hale, 2021 Bankr. LEXIS 2345, 2021 WL 3829307, at *1 (B.A.P. 9th Cir. Aug. 23, 2021). Accordingly, the Court DISMISSES this appeal for failure to provide an adequate record."

Fed. R. Bankr. P. 8009
In re JohnsonBankr. S.D. GA12/26/23The court ruled that the power of attorney used to file a chapter 7 bankruptcy petition for an incarcerated debtor was insufficient and dismissed the bankruptcy. The court also denied the debtor's motion for exemption or waiver of the credit counseling requirement based solely on his incarceration.

"The power of attorney Debtor's mother used to file the petition is insufficient as a matter of law. State law generally determines who has the authority to file a bankruptcy petition on behalf of another. See In re Kjellsen, 53 F.3d 944, 946 (8th Cir. 1995) ("state law determines who has the authority to file a bankruptcy petition on behalf of another."); In re Blanchard, 2001 Bankr. LEXIS 2054, 2001 WL 1825797 (Bankr. M.D. Fla. July 27, 2001) (determining whether guardians were properly authorized to file a bankruptcy petition on behalf of a debtor pursuant to the requirements listed in Florida's guardianship statute); Butner v. United States, 440 U.S. 48, 55, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979) ("Property interests are created and defined by state law."). ...

"In this case, Debtor's power of attorney remains deficient for several reasons. First, Debtor did not sign the power of attorney. Dckt. No. 33. At the hearing, Debtor's mother testified she signed the power of attorney with authority from her son. While she testified that she signed the power of attorney at his direction, she failed to establish it was in his presence. See O.C.G.A. §10-6B-5(a)(1). Furthermore, the power of attorney has not been properly attested as required by O.C.G.A. §10-6B-5(a)(2) and (3).3 For these reasons, the Court finds the power of attorney has not been properly executed or attested and therefore is invalid and the case is dismissed. ...

"Debtor requests a waiver from the §109(h) pre-petition credit counseling requirement because of his incarceration. To obtain a waiver based on exigency, Debtor must: submit a certification which describes the exigent circumstances meriting a waiver of the requirement; state that he requested the services but was unable to obtain it in time; and this explanation must be satisfactory to the Court. 11 U.S.C. §109(h)(3)(A)(i)-(iii). Debtor has provided no information regarding his efforts to obtain credit counseling pre-petition. [*9] This Court also agrees with the line of cases concluding that incarceration, by itself, does not constitute an exigent circumstance. See In re Wedig, 2021 Bankr. LEXIS 437, 2021 WL 717763 (Bankr. S.D. Iowa Feb. 5, 2021) (holding incarceration is not an exigent circumstance that warranted a temporary waiver of the credit counseling requirement); In re Larsen, 399 B.R. 634, 636 (Bankr. E.D. Wis. 2009) (same); In re Johnson, 2007 Bankr. LEXIS 3513, 2007 WL 2990563 (Bankr. D.D.C. Oct. 11, 2007) (same); In re McBride, 354 B.R. 95, 98 (Bankr. D.S.C. 2006) ("The assertion of [debtor's] incarceration has no bearing on the exigency of his need to file a petition for bankruptcy"); but see In re Patasnik, 425 B.R. 916 (Bankr. S.D. Fla. 2010) (granting debtor a temporary waiver of the credit counseling requirement pursuant to §109(h)(3)); In re Star, 341 B.R. 830 (Bankr. E.D. Va. 2006) (same); In re Walton, 2007 Bankr. LEXIS 1139, 2007 WL 980430 (Bankr. E.D. Mo. Mar. 5, 2007)(same). Therefore, Debtor is not entitled to a §109(h)(3) waiver of the credit counseling requirement.

"Similarly, with respect to Debtor's alleged disability, this District and others have previously heldHN4 incarceration is not a "disability" as defined under §109(h)(4). See In re Sarlak, No. 13-20129, 2013 Bankr. LEXIS 5729 (Bankr. S.D. Ga. Feb. 20, 2013) (denying motion for waiver of the credit counseling requirement because "incarceration does not amount to a disability under §109(h)(4)"); In re Conner, No. 12-60685 (Bankr. S.D. Ga. Dec. 14, 2012) (same); In re Cole, No. 12-60062 (Bankr. S.D. Ga. Feb. 8, 2012) (same); In re Donaldson, No. 12-60044 (Bankr. S.D. Ga. Feb. 8, 2012) (same); cf. In re Goodwin, 2009 Bankr. LEXIS 1362, 2009 WL 6499330 (Bankr. N.D. Ga. Mar. 12, 2009) (holding incarceration is not a "disability" as defined by §109(h)(4) that excuses a debtor's requirement to take the financial management course under §111). Section 109(h)(4) defines "disability" to mean "the debtor is so physically impaired as to be unable, after reasonable effort, to participate in [*10] an in person, telephone, or Internet briefing." 11 U.S.C. §109(h)(4). Incarceration, without more, does not qualify as a §109(h) disability. Goodwin, 2009 Bankr. LEXIS 1362, 2009 WL 6499330, at *1-*2; Larsen, 399 B.R. at 637 (same). In addition, the lack of access to printing machines, materials, and an inability to pay similarly does not meet the definition of "disability" under §109(h)(4), especially when credit counseling services are offered via telephone without the need for printed materials and are also offered free of cost.5
Furthermore, incarceration does not constitute an "incapacity" as defined by §109(h)(4). "Incapacity" is defined in §109(h)(4) as someone who is "impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities." 11 U.S.C. §109(h)(4). There is no evidence that the Debtor is incapable of realizing or making rational decisions with respect to his financial responsibilities. See In re Oliver, 2013 Bankr. LEXIS 1138, 2013 WL 1403336 (Bankr. S.D. Ga. Mar. 25, 2013) (denying motion to waive §109(h) credit counseling requirement because incarceration does not meet the definition of incapacity).

"For these reasons, even if the power of attorney is deemed valid, Debtor is not exempt from obtaining the mandatory pre-petition credit counseling required by §109(h) and therefore the Motion for Exemption is denied, [*11] and the case is dismissed. The Motion to Reconsider Dismissal also is denied; however, given the particular facts and circumstances of this case, the Court strikes the following language from the Dismissal Order: " with prejudice, barring refiling of a petition by the debtor(s) within 180 days of this order. Filing fee in the amount of $338.00 is due and owing"."
11 U.S.C. §109(h)(3)(A)(i)-(iii)
In re Solis-OconBankr. E.D. WI12/19/23The court granted the chapter 13 trustee's motion to vacate the discharge order based on the trustee's mistake in entering an incorrect amount on a proof of claim.

"The trustee asserts that he made a mistake in entering a creditor's claim into his computer system, and that he erroneously failed to pay that creditor before issuing a notice that the debtor had completed plan payments. ...

"The trustee's motion to vacate relied solely on Federal Rule of Civil Procedure 60(a), made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 9024. That rule provides: "The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." Fed. R. Civ. P. 60(a). The trustee argued that his employee had made [*4] a clerical mistake when entering the Mariner Finance claim into the software system, and that the Court should correct the mistake by vacating the discharge order.

"The debtor objected to the trustee's motion. The debtor argued that the discharge order does not contain any errors or mistakes, and that relief under Rule 60(a) is therefore unavailable. The debtor also argued that the only avenue for vacating a discharge order is under 11 U.S.C. § 1328(e), which requires fraud on behalf of the debtor. ...

"Here, the Court concludes that the equities of this case favor granting the trustee's motion to vacate the discharge order. The debtor did not make sufficient payments to the trustee to pay all unsecured creditors in full, so she has not completed "all payments under the plan" as required for a discharge under § 1328(a). The trustee brought his motion less than a month after the discharge order was entered, and the Court finds that the motion was "made within a reasonable time" as required by Rule 60(c)(1). See Fed. R. Civ. P. 60(c)(1). Moreover, the timing is such that there are several months remaining in the five-year period available to complete plan payments under 11 U.S.C. § 1322(d). Finally, vacating the discharge order will not adversely affect the debtor because she always expected she would need to pay all unsecured claims in full before receiving a discharge."
11 U.S.C. § 1328(a)
FRCP 60(b)(1)
In re Rivera9th Cir BAP12/17/23The court reduced the chapter 7 trustee’s attorney’s fees from $3,390 to $870 on the basis that the disallowed services were not reasonable or necessary and did not involve services beyond the trustee’s duties performed without legal counsel.

“The Bankruptcy Code requires the trustee to do his or her own work; this requirement sometimes creates a tension in small cases like these between the work that should be done by the trustee and that which genuinely requires the assistance of an attorney. Therefore, it is not surprising that the only meaningful review of the fees in small cases occurs at the end of the case, and may frequently be predicated on an objection, or the court's independent concern, that the services for which compensation is requested do not rise to the level of tasks for which the expertise of an attorney was required. …

“The UST's main objection to the fee application was that the services performed by Smith purportedly as the trustee's attorney were services which the trustee would generally undertake. Section 328(b) unambiguously requires that the fees awarded to an attorney representing a trustee in a bankruptcy case must not include any time for "performance of any of the trustee's duties that are generally performed by a trustee without the assistance of an attorney . . . for the estate."

“Section 704 sets forth the trustee's duties which include collecting and reducing to money the property of the estate, investigating the financial affairs of the debtor, examining the proofs of claim with a view toward objecting to allowance, and preparing the trustee's final account. The role of counsel for the trustee is to perform those tasks that require special expertise beyond that expected of an ordinary trustee. "Only when unique difficulties arise may compensation be provided for services which coincide or overlap with the trustee's duties and only to the extent of matters requiring legal expertise." Ferrette & Slater v. U.S. Tr. (In re Garcia), 335 B.R. 717, 725 (9th Cir. BAP 2005) (quotation marks and citation omitted). Attorneys must therefore present sufficient evidence including billing records with enough detail to establish that the services rendered went beyond the scope of the trustee's statutory duties and involve unique difficulties. Id. at 727. The cryptic descriptions in the billing statements provoked the court's concern about Smith's dual role in this case. Even the bankruptcy court's entreaties to Smith before the evidentiary hearing did not prompt Smith to adequately explain why the tasks required attorney expertise. Smith's failure to adequately explain the context of the time entries prevented the court from making the required findings in Smith's favor.”
11 U.S.C. §326
11 U.S.C. §328(b)
11 U.S.C. § 330
11 U.S.C. § 704
In re EvansBankr. NM12/12/23The court denied the debtor's motion to avoid judgement lien impairing the homestead exemption because the PMSI the creditor has on installed solar panels were not fixtures of the residence.

"Debtors' first amended plan includes a motion to avoid a judgment lien that allegedly impairs the Debtors' homestead exemption.1 To rule on the motion, the Court must first decide whether Debtors' house is encumbered by a purchase money security interest in a solar panel system installed on the roof of the house. If the solar panels and related equipment are fixtures, the answer likely is yes; otherwise, the answer is no. ...

"Whether the System is a fixture is a question of state law. See Flores de N.M., Inc. v. Banda Negra Int'l, Inc., 151 B.R. 571, 581 (Bankr. D.N.M. 1993) (whether an item has become a fixture is governed by state law).

"Under New Mexico law, the System was consumer goods when delivered to the House. Id. at 578-79 (goods include all things movable at the time a security interest attaches, while consumer goods are goods "used or bought for use primarily for personal, family or household purposes"). However, if the System was permanently affixed to the House, then for the purposes of the New Mexico Uniform Commercial Code, it would no longer be consumer goods, but instead would have become "fixtures." See NMSA § 55-9-102(41) (fixtures are "goods that have become so related to particular real property that an interest in them arises under real property law"); see also Flores, 151 B.R. at 578-79 (quoting the definition); In re Ryan, 360 B.R. 50, 51 (Bankr. W.D.N.Y. 2007) (once a specialty bathtub, a consumer good, was installed it became a fixture).

"To determine whether a particular good becomes a fixture under New Mexico law, [*8] three "guidelines" or "tests" are used:

This court has long recognized three guidelines in determining whether an article used in connection with realty is to be considered a fixture. These guidelines are (1) annexation, (2) adaptation and (3) intention. Garrison General Tire Service, Inc. v. Montgomery, 1965- NMSC 077, 75 N.M. 321, 404 P.2d 143; Patterson v. Chaney, 1918-NMSC-077, 24 N.M. 156, 173 P. 859, 6 A.L.R. 90; Post v. Miles, supra.

Boone v. Smith, 1968- NMSC 172, 79 N.M. 614, 616, 447 P.2d 23 (S. Ct. 1968); see also Giant Cab, Inc. v. CT Towing, Inc., 2019- NMCA 072, 453 P.3d 466, 470 (N.M. App. 2019) (citing Boone); Southwestern Public Serv. Co. v. Chaves County, 1973- NMSC 064, 85 N.M. 313, 316, 512 P.2d 73 (S. Ct. 1973) (citing Post v. Miles, 1893- NMSC 033, 7 N.M. 317, 34 P. 586 (S. Ct. 1893) and the three tests).

"Annexation. Annexation is the "act of attaching," and "the point at which a fixture becomes a part of the realty to which it is attached." Black's Law Dictionary, (10th Ed.). Easily removed goods generally are not considered annexed. (Citations omitted.) The stipulated facts show that the System is not permanently attached to the House. It could easily be removed without damaging the roof or other parts of the House. It is bolted on and could be unbolted. No annexation has taken place.

"Adaptation. Likewise, the System is not adapted or applied "to the use or purpose to which that part of the realty to which it is connected is appropriated." Garrison General Tire Service, Inc. v. Montgomery, 1965- NMSC 077, 75 N.M. 321, 324, 404 P.2d 143 (S. Ct. 1965). It is on the roof, but not part of [*9] the roof. The solar panels would function just as well if they were installed in a yard next to the house. A roof location often is chosen because it gets the solar panels out of the way and minimizes obstructions, but the panels are not part of the House or roof. Indeed, the roof would function better without the System. ...

"The Court finds and concludes that the System remains consumer goods. Assuming the System has been installed on the House, it did not become a fixture. ...

"In addition to being consistent with New Mexico and other law on fixtures, the ruling advances the laudable policy of reducing the cost of financing solar panel purchases and installation. To facilitate borrowing, it is helpful for solar panels and related equipment to remain consumer goods. If the panels and other equipment become fixtures, the lender could end up in a priority fight with the mortgage lender or could be prohibited from repossessing its collateral. Moreover, the lender would have to file a fixture filing to keep its perfected, first priority security interest, an additional expense and hassle. As consumer goods, Tech CU's purchase money security interest in the System was perfected when the security interest was granted. NMSA § 55-9-309. No financing statement was required. Had the System become a fixture, Tech CU would have been required to file a "fixture filing" (see NMSA § 55-9-102(40)), which must include the name and address of the debtor, a description of the collateral, the name and address of the secured party, and a description of the real property to which the System was affixed. NMSA § 55-9-502. It must be filed in the county where the real property is located. NMSA § 55-9-501(a)(1)(B).

"Finally, it would be poor policy to allow debtors to covenant with their lenders that purchased solar panels are consumer goods, while arguing to the bankruptcy court in § 522(f) motions [*14] that the panels are fixtures. Evans made his bed when he signed the Loan Agreement and Note. Now he must lie in it. See, e.g., Ryan Operations G.P v. Santiam-Midwest Lumber Co., 81 F.3d 355, 359 (3d Cir. 1996) ("a party to litigation will not be permitted to assume inconsistent or mutually contradictory positions with respect to the same matter in the same or a successive series of suits."). ...

"Because the System is not permanently affixed to the House and remains consumer goods after installation, Tech CU retained its perfected, purchase money security interest in the System. Tech CU's security interest never attached to the House, however. Its situation is similar to a lender financing furniture or appliances—it has a security interest in the goods financed but not the house where the goods are kept.

"Conclusion
The Court concludes that the System never became a fixture and has retained its character as consumer goods. Because of that, Tech CU's claim against Evans is not secured by the House or any portion of it. When determining the merits of Debtors' motion to avoid Rees' judgment lien against the House, the Court will disregard Tech CU's secured claim. The Court will enter a separate order."
11 U.S.C. § 522(f)
In re MorenoBankr. NM12/7/23The court ruled that a debtor who does not have a mortgage or rent expense but does have cell phone and seasonal fuel expenses that fall within the IRS Local Housing and Utilities Standard, is entitled to deduct from current monthly income the full amount of the IRS Local Housing and Utilities Standard. This includes the standard amount for a mortgage that she doesn't pay.

"Debtor contends that because she has an expense that falls within the category of Housing and Utilities under the IRS Local Standards, she is entitled to deduct the entire amount of the IRS Local Standard for Housing and Utilities. The Trustee points out that if Debtor is allowed a deduction for the entire IRS Local Standard for Housing and Utilities Standard, her monthly disposable income would be a negative $236.77; whereas, if no such deduction is allowed, her monthly disposable income would be a positive $1,567.23, which would be sufficient to pay non-priority unsecured creditors almost 100%. The Trustee reasons that the IRS Local Standard for Housing and Utilities is not applicable to Debtor because Debtor does not have a mortgage or rent expense, given the purpose of BAPCPA "to help ensure that debtors who can pay creditors do pay them." Ransom v. FIA Card Services, N.A., 562 U.S. 61, 64, 131 S. Ct. 716, 178 L. Ed. 2d 603 (2011) (citing H.R.Rep. No. 109-31, pt.1, p. 2 (2005)). ...

"Both Debtor and the Trustee rely on the Supreme Court's decision in Ransom v. FIA Card Services, N.A., 562 U.S.61, 131 S. Ct. 716, 178 L. Ed. 2d 603 (2011), which involved vehicle-related expenses. Unlike the IRS Local Standard for Housing and Utilities, the IRS divided its Local Transportation Standard into two categories, one called "Ownership Costs" and the other called "Operating Costs,"26 and specified separate amounts for each category. In Ransom, because the debtor owned his car outright, he did not make car loan or lease payments. Ransom, 562 U.S. at 64. Consequently, he did not have any expenses in the Ownership Costs category of the IRS Local Transportation [*19] Standard. Nevertheless, the debtor claimed deductions from current monthly income in the full amounts the IRS specified for both the "Ownership Costs" and "Operating Costs" categories of the Standard. Id. at 67. The Supreme Court determined that a debtor who owned his car outright may not take a deduction for Ownership Costs but was entitled to take a deduction for Operating Costs when calculating projected disposable income. Ransom, 562 U.S. at 64, 72.

"In interpreting § 707(b)(2)(A)(ii)(I), the Supreme Court focused on the word "applicable." Id. at 69. Based on the ordinary meaning of the term, the Supreme Court found that "an expense amount is 'applicable' within the plain meaning of the statute, when it is appropriate, relevant, suitable, or fit." Id. The Supreme Court reasoned that a debtor must "actually incur[ ] an expense in the relevant category" to qualify for the deduction in that category such that "[i]f a debtor will not have a particular kind of expense during his plan, an allowance to cover that cost is not 'reasonably necessary' within the meaning of the statute." Id. at 70-71. Because the debtor in Ransom did not have any expenses within the Ownership Costs category of the Transportation Standard, that category was not "applicable" to the debtor. Id. at 80. Thus, the debtor could not deduct the IRS Standard Ownership Costs amount because he did not have any expense in that category. Id.

"Here, Debtor does not have a mortgage expense. The Trustee reasons that such expense therefore is not "applicable" to the Debtor so that she cannot claim a deduction under the Housing and Utilities Standard, which includes a mortgage expense. Debtor does have cell phone and fuel expenses, which the IRS includes in the Housing and Utilities Standard in its definition of "Utilities." The problem with the Trustee's argument is that, unlike the IRS Standard for Transportation (at issue in Ransom), which divides the Transportation Standard into two categories: "Ownership Costs" and "Operating Costs," and specifies separate amounts for each category, the IRS did not separate the Local Standard for Housing and Utilities into two categories. The IRS separately defines "Housing" expenses and "Utilities" expenses but only specifies a single amount for the entire Local Standard for Housing and Utilities. Because the IRS Local Standard for Housing and Utilities is a singular amount and Debtor has expenses covered by the Housing and Utilities Standard, the Standard is applicable to Debtor. ...

"However, even though dividing the Housing and Utilities Standard into "Mortgage or Rent Expenses" and "Insurance and Operating Expenses" with separate deductible limits for each category may further an overarching policy underlying BAPCPA—requiring debtors to pay unsecured creditors what they reasonably can afford to pay—it conflicts with § 707(b)(2)(A)(ii)(I) of the Bankruptcy Code, which requires above-median-income debtors to use the applicable monthly expense amounts specified under the IRS National and Local Standards. The IRS Local Standard for Housing and Utilities specifies "a single amount that is inclusive of all housing expenses," Currie, 537 B.R. at 889, without breaking the amount down into any categories.

"The Court therefore holds that Debtor, who does not have a mortgage or rent expense but does have cell phone and seasonal fuel expenses that fall within the IRS Local Housing and Utilities Standard, is entitled to deduct from current monthly income the full amount of the IRS Local Housing and Utilities Standard. See Currie, 537 B.R. at 894 (concluding that the debtor could deduct the entire IRS Housing and Utilities Standard despite the fact that the debtor's only housing-related expenses were for insurance and property taxes associated with property that had no mortgage indebtedness). ...

"The Court recognizes that allowing Debtor to deduct from current monthly income the full amount of the IRS Local Standard for Housing and Utilities when she does not actually incur any mortgage expenses might not be good bankruptcy policy. But the Court does not have discretion to deny the full deduction based solely on bankruptcy policy. The Bankruptcy Code entitles Debtor to deduct the full amount of the IRS Local Standard for Housing and Utilities from her current monthly income notwithstanding the fact that she has no mortgage expense because she does incur at least one expense covered by the Standard."
11 U.S.C. § 707(b)(2)(A)(ii)(I)
11 U.S.C. § 1325(b)(3)
In re Gallegos10th Cir BAP12/5/23Subsequent to the dismissal of a pending divorce action, the debtor's and trustee's interest in marital property vanished and was not property of the bankruptcy estate.

"In this case, a husband and wife started down the path to divorce, only to reconcile after the wife sought the protection of the bankruptcy court. The chapter 7 trustee then commenced an adversary proceeding claiming the debtor's reconciliation with her spouse and subsequent divorce proceeding dismissal resulted in an unauthorized postpetition transfer of property. ...

"Property of a bankruptcy estate consists of all (with some exceptions not applicable here) of the debtor's legal or equitable interests of the debtor in property at the commencement of a bankruptcy case. A bankruptcy trustee succeeds to the debtor's property interests, but only to the title and rights in the property the debtor had at the time the debtor filed the bankruptcy petition. Thus, when asserting rights of action related to a property interest, the trustee has no greater rights or control over an interest than the debtor. Simply put, the trustee's interest is limited in the same way as the debtor's.

"A bankruptcy court relies on state law to determine what property constitutes property of the bankruptcy estate. In Colorado, when a divorce petition is filed, "all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership . . . . However, a spouse's property "acquired prior to the marriage . . . shall be considered as marital property . . . to the extent that its present value exceeds its value at the time of the marriage or at the time of acquisition if acquired after the marriage." Thus, filing a divorce petition in Colorado creates for each spouse a vested equitable interest in the marital estate and a "species of common ownership" over the property therein. ... Thus, "where the divorce is pending when the bankruptcy petition is filed, the divorcing [spouses' respective property interests are vested but subject to subsequent definition. For that reason, what constitutes property of the [bankruptcy] estate is undefined." The undefined interest, which vests as part of the marital estate upon the filing of divorce action, is inchoate subject to entry of a property disposition order. Therefore, the vested interest of a spouse remains inchoate unless and until the divorce court issues a divorce decree or divides the marital estate. ...

"Finally, the Trustee contends that allowing such a transfer creates an "escape hatch" from § 549 avoidance actions and enables fraud. ...

"The filing of the Divorce Case created for the Debtor a vested, but inchoate, equitable interest in the marital estate, which included the Property. Because the Trustee cannot have a greater interest in the Property than the Debtor, the Trustee also had a vested, but inchoate, equitable right of undetermined value in the Property at the commencement of the Bankruptcy Case. While the Property appreciated in value from the time of the Appellees' marriage and so was properly included in the Appellees' marital estate, the Debtor's interest in the Property was never fully defined because no divorce decree or order of division of property was entered in the Divorce Case.31 Such an undefined, inchoate interest does not survive dismissal of the related divorce action. Accordingly, both the Debtor's and Trustee's interest in the Property vanished when the Divorce Case was dismissed. Since the Property was not property of the bankruptcy estate, the Bankruptcy Court had neither an obligation nor any reason to ascribe a value to the Property."
11 U.S.C. § 549
In re HopkinsD. NJ12/4/23The court ruled that when the order being appealed doesn't disclose the factual or legal basis of the court's opinion, then the appellant must order and submit a transcript of the proceeding. Failure to submit the transcript is grounds for dismissing the appeal.

"Pursuant to Bankruptcy Rule 8009(b), appellants must order "a transcript of such parts of the proceedings not already on file as the appellant considers necessary for the appeal [.]" Bankruptcy Rule 8009(b). Accordingly, dismissal of a bankruptcy appeal "is appropriate where the order being appealed from does not disclose the factual or legal basis of the bankruptcy judge's decision because the court may not 'conduct a meaningful review of the issue without reviewing the transcript.'" In re Olick, 466 B.R. 680, 695 (E.D. Pa. 2011), aff'd, 498 F. App'x 153 (3d Cir. 2012) (quoting In re Corio, No. 07-5864, 2008 WL 4372781, at *6 (D.N.J. Sept. 22, 2008)). ...

"Even if the Court were to focus on Hopkins's ethics contentions, the Court finds that "[Hopkins's] neglect to order transcripts prohibits this Court from conducting an 'informed, substantive appellate review'" of the appealed from orders, and therefore denial of his motion is warranted. Heine v. Wells Fargo Bank, NA, No. 20-10343, No. 20-10344, No. 20-10268,2020 WL 7417812, at *4 (D.N.J. Dec. 18, 2020), aff'd but criticized sub nom., In re Heine, No. 21-1531, 2022 WL 883938 (3d Cir. Mar. 24, 2022) (citations omitted) (dismissing appellant's motion because appellant failed to submit copies of relevant transcripts—which [*9] included the Bankruptcy Court's reasons for lifting the stay and denying reconsideration—for the court's consideration).

"In sum, without the transcripts, the Court is unable to review the Bankruptcy Court's legal or factual findings. See also Secivanovic, 2006 WL 2376922, at *2 (denying petitioner's motion because petitioner "made no attempt to demonstrate why leave to appeal should be granted"). The Court accordingly denies Hopkins's appeal in its entirety."
Rule 8009(b)
Cafe Hanah v SungBankr. N.D. IL12/4/23In a non-dischargeability proceeding under 11 U.S.C. § 523(a)(2)(A) using the false pretenses/representation claim, the court ruled that the creditor did not reasonably rely on the debtor's statements that construction inspections were completed. The creditor should and could have checked.

"Although Plaintiffs have not met their burden of proving that Sung made a false representation with reckless disregard for the truth, or that he intended to deceive them, the court will still consider the final factor — justifiable reliance. Whether a creditor justifiably relied on a defendant's representations is based on the facts and circumstances of each case and of the particular plaintiff. See Field v. Mans, 516 U.S. 59, 71-72, 116 S. Ct. 437, 133 L. Ed. 2d 351 (1995); Ojeda, 599 F.3d at 717. The creditor is "required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation." Field, 516 U.S. at 71 (quotation omitted). See Ojeda, 599 F.3d at 717.

"Baek testified that he visited the project frequently. Although he could not tell from a visit whether the Village had approved the rough inspections, it would have been simple enough to request a copy of the inspection report before handing over $61,500. In fact, Sung testified that he shared the inspection reports with Baek.3

"The court notes that Baek testified through an interpreter. There may have been miscommunications or misunderstandings due to language differences. But even if there were no such misunderstandings, Baek's failure to use "his opportunity to make a cursory examination or investigation" by requesting copies of the inspection reports, or reading the copies shared with him, means that he could not have justifiably relied on conversations he had with Sung in believing that the inspections resulted in approval."
11 U.S.C. § 523(a)(2)(A)
Ruiz v Ruiz10th Cir11/30/23The court held that it was not a violation of the automatic stay for a divorced non-filing spouse to petition the divorce court to credit his car payments against his support obligations under the exception found at 11 U.S.C. § 362(b)(2)(A)(ii).

"The filing of a bankruptcy petition automatically stays most litigation and collection proceedings, including "any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the [bankruptcy] case." 11 U.S.C. § 362(a)(6). But the stay does not apply to all proceedings. See id. § 362(b). As stated, in this case, the bankruptcy court applied an exception for "the commencement or continuation of a civil action or proceeding . . . for the establishment or modification of an order for domestic support obligations." Id. § 362(b)(2)(A)(ii).

"Ms. Ruiz argues that the proceeding at issue did not involve a "domestic support obligation," as that term is defined by the bankruptcy code. Under the code's definition, there are four parts to a "domestic support obligation." We quote only the portions relevant here. First, it must be "a debt . . . that is . . . owed to or recoverable by . . . a spouse, former spouse, or child of the debtor or such child's parent . . . ." 11 U.S.C. § 101(14A)(A). Second, the debt must be "in the nature of alimony, maintenance, or support . . . of such spouse, former spouse, or child of the debtor or such child's parent . . . ." Id. § 101(14A)(B). Third, the debt must be "established or subject to establishment . . . by reason of applicable provisions of . . . a separation agreement, divorce decree, or property settlement agreement [or] an order of a court of record." Id. § 101(14A)(C). And fourth, the debt is "not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily . . . for the purpose of collecting the debt." Id. § 101(14A)(D).

"Ms. Ruiz views the "debt" at issue as her obligation to repay Mr. Ruiz for the Car Loan. Under this view, although the "debt" (the Car Loan) would be "owed to" the "spouse [or] former spouse . . . of the debtor" (Mr. Ruiz), she argues that subsection (B) cannot be satisfied, because the "debt" is not in the nature of support or maintenance for Mr. Ruiz. See Taylor v. Taylor (In re Taylor), 737 F.3d 670, 679 (10th Cir. 2013) ("[P]ursuant to the plain language defining 'domestic support obligation,' the debt must be in the nature of support to the creditor-spouse[.]").

"Another way of looking at the case, however, is that the "debt" at issue is Mr. Ruiz's monthly support obligation. Under this rubric, the "debt" (the support obligation) is "owed to or recoverable by" a "child of the debtor or such child's parent" (the Ruizes' children or Ms. Ruiz). And that "debt" would be "in the nature of . . . maintenance[] or support . . . of such . . . child of the debtor or such child's parent," as required by subsection (B). ...

"Like the California Court of Appeal, we view the "debt" that was the subject of the state-court proceeding as the support obligation that Mr. Ruiz owed to Ms. Ruiz. Accordingly, Mr. Ruiz sought to modify a "debt" (the support obligation) "owed to or recoverable by" a "child of the debtor or such child's parent" (the Ruizes' children or Ms. Ruiz). And that "debt" was "in the nature of alimony, maintenance, or support . . . of such . . . child of the debtor or such child's parent." The support obligation was "established or subject to establishment" by the California court in the Ruizes' divorce proceeding. And nothing indicates the support obligation was assigned to a nongovernmental entity. Therefore, as a matter of statutory interpretation, the state-court proceeding to modify Mr. Ruiz's support obligation met the terms of § 362(b)(2)(A)(ii), and Ms. Ruiz failed to plead a plausible claim that Mr. Ruiz and Mr. Hardcastle violated the automatic stay."
11 U.S.C. § 362(b)(2)(A)(ii)
In re ToddBankr. S.D. MS11/30/23After the debtors filed their chapter 13 bankruptcy, one of the debtors suffered an injury from medical malpractice. After he was diagnosed with the injuries, the debtors amended schedules b and c to disclose the claim, listed their attorney and valued the claim as unknown. After receiving their discharge, the defendant moved to dismiss the state court lawsuit on judicial estoppel grounds for failure to disclose the claim.

""[Fifth Circuit] precedent is clear: Chapter 13 debtors must disclose post-petition causes of action." United States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 766 F. App'x 38, 42 (5th Cir. 2019) (collecting cases). When the Todds amended their Schedule A/B to show a "contingent post petition medical malpractice case," they disclosed their cause of action. And this disclosure was sufficient to put the Trustee on notice that they might file a lawsuit.

"A. When the Todds Scheduled the Cause of Action, They Disclosed the Claim.
Defendants' argument that the Todds were required to disclose the Lawsuit presupposes that a lawsuit and the underlying cause of action are separate "claims." They are not. ...

"As the Trustee recognizes, filing a lawsuit on a previously scheduled claim does not create a new "claim." See Tr's. Resp. to Mot. for Summ. J., Adv. ECF No. 41 at 2 (stating that "to the Trustee's thinking," the Lawsuit and the claim disclosed in the Amended Schedule A/B "are indistinguishable"). It follows that when the Todds scheduled a "contingent post petition medical malpractice case," they disclosed the "claim."

"Defendants cite no case that compels a different conclusion."
11 U.S.C. § 1306
In re CookeBankr. N.D. IL11/27/23The debtor's plan paying for a secured vehicle was confirmed. Post-confirmation, the vehicle was stolen. The debtor filed a motion to incur debt to replace the vehicle and also filed a modified plan to surrender the stolen vehicle. The trustee objected that aa post-petition modified plan cannot change a secured creditor's treatment unless the creditor affirmatively accepts it. The creditor did not file an objection to the plan.

"A chapter 13 plan nearly always requires payment over a period between three and five years. See 11 U.S.C. § 1322(d). Recognizing that life events can negatively affect a debtor's financial situation over that timeframe, HN1 the Bankruptcy Code provides a mechanism for the debtor to modify his plan. See 11 U.S.C. § 1329.3 This exception from the otherwise binding effect of a confirmed plan allows a debtor to adjust the plan's terms to accommodate his new situation.

"Section 1329(a) specifies four types of permitted modifications. See Germeraad v. Powers, 826 F.3d 962, 970 (7th Cir. 2016) ("modification is allowed only if it will modify the plan in one of the ways specified [*9] in § 1329(a)(1)-(4)"). If the proposed modification is one of the types permitted by § 1329(a), and the requirements of § 1329(b) are met, then the court has broad discretion on whether to grant the motion to modify the plan. See Matter of Witkowski, 16 F.3d 739, 746 (7th Cir. 1994) (modification is discretionary).

"The question before the court is whether Debtor's proposed modification falls within the four types of modifications permitted under § 1329(a). ...

"The proposed plan, containing a permitted modification, must also satisfy "[s]ections 1322(a), 1322(b), and 1323(c) of this title and the requirements of section 1325(a)" of title 11. 11 U.S.C. § 1329(b)(1). Therefore, if the proposed modification qualifies as one of the four permitted modifications in § 1329(a) and the plan satisfies the requirements in § 1329(b)(1), the court may approve it. ...

"1. Section 1329(a) permits surrender as a plan modification

"a. 11 U.S.C. § 1329(a)(1)
Section 1329(a) describes the four permitted modifications of a confirmed plan. A modification that will "increase or reduce the amount of payments on claims of a particular class provided for by the plan" is one of those four permitted modifications, pursuant to the [*14] express language of § 1329(a)(1).

"Secured creditors are treated in Part 3 of Official Form 113, the national form chapter 13 plan used in this district. Each secured creditor is in its own class, provided with unique rights in its collateral. HN5 Therefore, a reduction in the amount of payments to one or more secured creditors is a permitted modification under § 1329(a)(1). A chapter 13 debtor who proposes a plan modification that would surrender a secured creditor's collateral is not changing the creditor's claim. He is instead reducing the amount of payments "on the creditor's secured claim from the amount stated in the original plan down to zero, after surrender of the collateral." In re Leuellen, 322 B.R. 648, 654 (S.D. Ind. 2005).

"b. 11 U.S.C. § 1329(a)(3)
"Another type of modification that is expressly permitted by § 1329(a) is the alteration of "the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan[.]" 11 U.S.C. § 1329(a)(3). Modifying a plan to change the amount of payment to a secured creditor when it receives its collateral — or the insurance proceeds from its collateral — is permitted. This type of modification complies with § 1322(b)(8) and § 1325(a)(5), as required by § 1329(b).

"Section 1329(a)(3) does not distinguish between secured and unsecured creditors when it allows this type of modification. The Bankruptcy Code defines a "creditor" as an "entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor[.]" 11 U.S.C. § 101(10)(A). Congress could have chosen to limit this type of modification to unsecured creditors, just as it limited the power to seek modification to unsecured creditors, but it did not.

"2. Surrender satisfies § 1329(b)
Section 1329(b)(1) states that certain provisions of the Bankruptcy Code apply to modifications of a confirmed plan. Several of these provisions contemplate a modification that involves surrender of a secured creditor's collateral.

"a. 11 U.S.C. § 1322(b)(8)
Section 1322 governs the content of a chapter 13 plan, and subsection (b) provides that a plan may accomplish certain results. Found within § 1322(b) is subsection (b)(8), which states that the plan may "provide for the payment of all or part of a claim against the debtor from property of the estate or property of the debtor[.]" This subsection, which applies to proposed modifications, "contemplates surrender of collateral as a form of payment[.]" Leuellen, 322 B.R. at 652.

"b. 11 U.S.C. § 1325(a)(5)(C)
Another section of the Bankruptcy Code that is applicable to proposed modifications is § 1325(a). Found within § 1325(a) is subsection (a)(5), which provides three options for [*16] treatment of allowed secured claims. At least one of these options must be chosen in order to propose a plan that complies with § 1325(a). See Leuellen, 322 B.R. at 653 ("One of its three alternatives must be satisfied or there is no confirmation."). The third option, in § 1325(a)(5)(C), states that a plan shall be confirmed if "with respect to each allowed secured claim provided for by the plan ... the debtor surrenders the property securing such claim to such holder."

"Accordingly, Congress's explicit incorporation of section 1322(b) and section 1325(a) into the standards for post-confirmation modification under section 1329(a) makes clear that Chapter 13 debtors retain the option to seek court permission to modify a confirmed plan by surrendering collateral to pay a secured claim." Leuellen, 322 B.R. at 653.

"c. 11 U.S.C. § 1323(c)
Although § 1323(c) is part of a section titled "Modification of plan before confirmation," it is applicable to post-confirmation modifications through the operation of § 1329(b)(1). See In re Hutchison, 449 B.R. 403, 408 (Bankr. W.D. Mo. 2011) ("While by its terms, it refers only to modifications made before confirmation, it is also made applicable to post-confirmation modifications by specific reference in § 1329(b)(1)."). ... Therefore, a change in the rights of a holder of a secured claim through a plan modification is expressly contemplated by the Bankruptcy Code."

Ryniker v Sumec Textile2nd Circuit11/22/23The court ruled that the district court's grant of a motion to set aside a default judgment is not a final appealable order. Further, the court found unavailing the "collateral order doctrine" exception.

"First, as a general matter, five circuits have held that an order setting aside a judgment pursuant to Federal Rule of Civil Procedure 60(b) is not an appealable, final order. See Nat'l Passenger R.R. Corp. v. Maylie, 910 F.2d 1181, 1183 (3d Cir. 1990) ("When an order granting a Rule 60(b) motion merely vacates the judgment and leaves the case pending for further determination, the order is akin to an order granting a new trial and in most instances, is interlocutory and nonappealable." (citations omitted)); Joseph v. Off. of Consulate Gen. of Nigeria, 830 F.2d 1018, 1028 (9th Cir. 1987) ("A district court's grant of a motion to set aside a default is not an appealable final order, where the setting-aside paves the way for a trial on the merits." (collecting cases)); Parks By & Through Parks v. Collins, 761 F.2d 1101, 1104 (5th Cir. 1985) ("When an order granting a Rule 60(b) motion[] merely vacates the judgment and leaves the case pending for further determination, the order is akin to an order granting a new trial and is interlocutory and nonappealable." (internal quotation marks and omitted)); Kummer v. United States, 148 F.2d 191, 193 (6th Cir. 1945) ("The order setting aside the default against [one defendant] and allowing her to plead was procedural only, and did not dispose of the case on its merits or determine the litigation between the parties. It was not appealable." (citations omitted)); Arrington v. Duvoisin, 36 F.3d 1091, 1091 (4th Cir. 1994) (unpublished opinion) ("An order granting a motion to set aside a default judgment is not an appealable final order." (collecting cases)). We have not explicitly addressed this issue; however, we see no reason to reach a different conclusion. ...

"We find the Litigation Administrator's attempt to invoke the collateral order doctrine to be similarly unavailing. "The collateral order doctrine . . . is a judicially created exception to the final decision principle; it allows immediate appeal from orders that are collateral to the merits of the litigation and cannot be adequately reviewed after final judgment." Germain v. Conn. Nat'l Bank, 930 F.2d 1038, 1039-40 (2d Cir. 1991). An order is final under the collateral order doctrine if it "(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal from a final judgment." EM Ltd. v. Banco Cent. de la República Arg., 800 F.3d 78, 87 (2d Cir. 2015) (internal quotation marks and citation omitted). "In making this determination, we do not engage in an individualized jurisdictional inquiry. Rather, our focus is on the entire category to which a claim belongs." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009) (internal quotation marks and citations omitted). Here, there is no question that a district court's vacatur of a default judgment is reviewable on appeal from a final judgment. See, e.g., Johnson v. N.Y. Univ., 800 F. App'x 18, 19-20 (2d Cir. 2020) (summary order) (reviewing the district court's grant of a motion to vacate default judgment under Fed. R. Civ. P. 55(c) together with dismissal of the complaint); Sik Gaek, Inc. v. Yogi's II, Inc., 682 F. App'x 52, 55 (2d Cir. 2017) (summary order) (reviewing the district court's grant of a motion to set aside a notation of default, and subsequent denial of a motion for default judgment, together with its grant of summary judgment in favor of defendant). Therefore, notwithstanding the Litigation Administrator's practical concerns regarding his ability to effectuate service on Sumec and ultimately collect on any judgment, we see no basis to apply the collateral order doctrine to hear an appeal challenging the vacatur of a default judgment which can be reviewed, if necessary, upon the entry of a final judgment in the adversary proceeding."
Rule 9024
LVNV Funding v Myers9th Circuit11/21/23In reversing the BAP's decision, the court allowed a claim that failed to provide documentation necessary to enforce the claim under Nevada law. Since Rule 3001 allowing claims conflicts with Nevada law, the requirements of Rule 3001 prevail.

"The BAP held (and the Debtors conceded) that LVNV's proof of claim complied with Fed. R. Bankr. P. 3001 and was therefore entitled to prima facie validity. But the BAP concluded that LVNV's claim must be disallowed under 11 U.S.C. § 502(b)(1) because the documentation LVNV provided was insufficient to enforce the debt under Nevada law, in that the proof of claim did not comply with Nevada procedural requirements set out in Nev. Rev. Stat. §§ 97A.160 and 97A.165 (collectively, the "Nevada laws"). The BAP erred in this holding, because the principles of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), dictate that federal procedural law—Rule 3001, in particular—governs the requirements for a proof of claim.

"Under Erie principles, federal bankruptcy courts apply federal procedural law and state substantive law. See Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 450, 127 S. Ct. 1199, 167 L. Ed. 2d 178 (2007). To determine whether a state law applies in a federal action, "we decide whether the state law conflicts with a valid [federal procedural rule]." Martin v. Pierce Cnty., 34 F.4th 1125, 1128 (9th Cir. 2022). A federal procedural rule is valid if it "is a 'general rule[] of practice and procedure' that does 'not abridge, enlarge or modify any substantive right' and is 'procedural in the ordinary use of the term.'" Id. at 1128-29 (citation omitted).

"Here, Rule 3001 clearly controls over the Nevada laws. The Nevada laws conflict with this federal rule because the two give different answers to the same question: What must a creditor provide in support of a proof of claim on an open-end credit card account? See Rule 3001(c)(3); Nev. Rev. Stat. § 97A.160. Furthermore, Rule 3001 is a valid procedural rule. There is a strong presumption that federal rules of procedure have been properly promulgated under the applicable enabling statute and do not impinge on substantive rights. See Hanna v. Plumer, 380 U.S. 460, 471, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965). And Rule 3001, in particular, is a typical procedural rule: it does no more than set out the procedural requirements for a proof of claim, see Rule 3001(a)-(e), and specify when a properly executed proof of claim constitutes prima facie evidence of its validity and amount, see Rule 3001(f)-(g). Consequently, Rule 3001 prevails over the Nevada laws, meaning that the Nevada laws are not "applicable law" that can render a claim "unenforceable" under 11 U.S.C. § 502(b)(1). Thus LVNV's failure to comply with Nev. Rev. Stat. §§ 97A.160 and 97A.165 is not a ground for disallowing its proof of claim."
11 U.S.C. § 502(b)(1)
Rule 3001
Paulsen v OlsenD. N.D. IL11/20/23The court made two rulings affirming the bankruptcy court's determination that the debtor's exemption based on tenancy by the entirety should be disallowed. First, the court expressed concern about the number of arguments made in the brief and quoted United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). Second the court found that under Illinois law, a transfer of an ownership interest in real estate to a tenancy by the entireties can be defeated if the transfer was made solely to protect the property from ongoing collection.

"The Court counts at least eight assignments of error—not including those packed into the Pandora's box of repeated arguments, sub-arguments, and sub-sub-arguments. The Court attempts to address each of the Paulsens' alleged assignments of error in turn. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). ...

"As the Paulsens allude, the "badges of fraud" analysis is "not to be used to avoid a transfer" under 735 ILCS 5/12-112. Premier Prop. Mgmt., Inc. v. Chavez, 191 Ill. 2d 101, 728 N.E.2d 476, 482, 245 Ill. Dec. 394 (Ill. 2000). The "tenancy by the entirety provision," 735 ILCS 5/12-112, "expressly includes its own standard to be used when a creditor challenges a transfer to that estate." Id. at 481. The "sole intent" standard is "substantially different" from the "actual intent" standard in that it "provides greater protections from creditors for transfers of property to tenancy by the entirety." Id. at 482. What's more, "if property is transferred to tenancy by the entirety to place it beyond the reach of the creditors of one spouse and to accomplish some other legitimate purpose, the transfer is not avoidable." Id. Critically, that same transfer "would be avoidable under the actual intent standard, which only requires an actual intent to defraud a creditor." Id.

"The complaint alleges that the transfer of the Paulsens' interests in the residential property was "made by [Mr. Paulsen] with the sole intent to avoid the payment of debt which existed" at the time of the transfer "which was beyond [Mr. Paulsen's] ability to pay as it became due." Dkt. 12-1 at 13-14. This allegation alone is sufficient to state a plausible claim to relief. See RBS Citizens, N.A. v. Gammonley, No. 12 C 8659, 2015 U.S. Dist. LEXIS 2775, at *19-20 (N.D. Ill. Mar. 6, 2015) ("Plaintiff alleges that 'the transfer . . . into a tenancy by the entirety was designed with the sole intent to avoid any creditors pursuant to 735 ILCS 5/12-112.' . . . This is sufficient to withstand a motion to dismiss.")."
In re ByrneBankr. ME11/20/23The court dismissed a chapter 13 bankruptcy under 11 U.S.C. § 1307(c) with a five month bar on refiling for missing an installment payment on her filing fee under 11 U.S.C. § 349(a). The court found that the "the debtor does not understand the importance of (or is not interested in) disclosing the true extent of her financial affairs in connection with a bankruptcy case."

"In general, every petition must be accompanied by the filing fee for commencing the case. Fed. R. Bankr. P. 1006(a). In this case, the debtor made an oral motion to pay the filing fee in installments under Fed. R. Bankr. P. 1006(b)(1). That motion was granted after a hearing on August 10, 2023. The order granting the motion set a schedule for the installment payments and specifically cautioned as follows:

If the debtor misses any of the deadlines set forth in this order, this case will be dismissed without further notice or hearing under 11 U.S.C. § 1307(c) and the Court will impose a ban on the filing of a subsequent bankruptcy petition by the debtor under 11 U.S.C. § 349(a).

[Dkt. No. 10]. This warning should not have come as a surprise to the debtor: similar warnings were given to the debtor during the hearing on August 10. See [Dkt. No. 7]. The debtor made her first two installment payments, but has not made the third, which was due on November 6. She has not asked for additional time to make that payment.

"This chapter 13 case is hereby dismissed for cause under 11 U.S.C. § 1307(c). This dismissal is with prejudice to the debtor's right to commence a voluntary case under any chapter of the United States Bankruptcy Code in any court through and including April 20, 2024. See 11 U.S.C. § 349(a). This five-month ban on future filings is being imposed because the debtor's performance in connection with this case and another recent attempt to obtain chapter 13 relief has been woefully deficient. In neither case has the debtor shown a good faith effort to perform the duties imposed by law on an individual who seeks a chapter 13 discharge. Chapter 13 is complex, and the debtor has attempted to navigate the process without the benefit of counsel. That said, the debtor has been given as much in the way of explanation and latitude as any litigant can reasonably expect from any court. Based on a review of the filings in this case and in the debtor's prior case — Case No. 22-10117 - and based on the representations made by the debtor in multiple hearings in both cases, the Court is left with the definite and firm conviction that the debtor does not understand the importance of (or is not interested in) disclosing the true extent of her financial affairs in connection with a bankruptcy case.
11 U.S.C. § 349(a)
11 U.S.C. § 1307©
In re Vien Thi Ho9th Circuit BAP11/17/23The court affirmed the bankruptcy court's dismissal of an action for violation of the automatic stay when the chapter 7 debtor filed bankruptcy one day before the creditor filed a state court libel complaint and did not list the creditor in her schedules. The court addressed the following issues: Did the bankruptcy court abuse its discretion by dismissing Debtor's adversary complaint? Did the bankruptcy court err by denying leave to amend the adversary complaint?

"Debtor's complaint is nearly devoid of factual allegations and thus, dismissal was unquestionably appropriate. While the complaint is replete with legal conclusions, the only real fact Debtor alleges is that Ms. Roshanian filed and maintained the Libel Action after the petition date. Not only does Debtor fail to make any argument relevant to the stay violation claim, but her own admissions—and the court's prior findings of fact—foreclose any possibility of a willful stay violation.

"Section 362(a)(1) prohibits the commencement or continuation of a judicial action against a debtor to recover a prepetition claim. A creditor commits a willful violation of the automatic stay if she knows of the stay and her actions that violate the stay are intentional. Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210, 1215 (9th Cir. 2002).

"Filing and maintaining the Libel Action is a clear violation of the stay, but Debtor did not allege that Appellees had notice of the stay, and the court specifically found they did not have notice until July 7, 2022. Thus, Appellees' actions were not a willful violation of the stay. ...

"Pursuant to Civil Rule 15, made applicable by Rule 7015, leave to amend a complaint should be freely given when justice so requires. The court "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). "This policy is 'to [*13] be applied with extreme liberality,'" Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (per curiam) (quoting Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)), and the rule favoring liberal application "is particularly important for the pro se litigant," Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).

"In determining whether to grant leave to amend, the bankruptcy court should consider several factors including: (1) undue delay; (2) bad faith or dilatory motive by the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; and (5) futility of amendment. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (citing Foman, 371 U.S. at 182). The consideration of prejudice to the opposing party carries the greatest weight. Eminence Cap., LLC, 316 F.3d at 1052. "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id. (citation omitted).

"Debtor does not make any cogent argument why the court abused its discretion in denying leave to amend. She cites the Foman factors, but she does not address how the court abused its discretion by determining that amendment would be futile or that it would prejudice Appellees. Moreover, we find no abuse of discretion."
11 U.S.C. §§ 362(a) &(k)
Rule 7015
Johnson v Bankers Healthcare Grp9th Circuit11/16/23In affirming the non-dischargeability of the underlying debt under 11 U.S.C. §§ 523(a)(2)(A) & (B), the court refused to hear the appellant's argument on the damage award on appeal because it was not raised below and no exceptions applied.

"We turn to Dr. Johnson's argument that the bankruptcy court erred in its award of damages to BHG. Dr. Johnson did not "specifically and distinctly" raise this argument below. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Thus, he has waived the argument by not raising it with the BAP. See In re Burnett, 435 F.3d 971, 975-76 (9th Cir. 2006) (HN6 "Absent exceptional circumstances, issues not raised before the BAP are waived."). While we have recognized three exceptions to the general waiver rule, none of them applies here because Dr. Johnson failed to explain why he did not raise the issue before the BAP, there is no evidence that a change in law provided a new ground for this appeal, and this issue is not a purely legal one. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). We decline to address Dr. Johnson's damages argument."
11 U.S.C. §§ 523(a)(2)(A) & (B)
In re Kane


Kane - Appellants Brief

Kane - Appellees Brief

Kane - Appellants Reply Brief
9th Circuit11/15/23The court affirmed the bankruptcy court's denial of a motion to convert the chapter 7 to a chapter 11 case. The court held it was not an abuse of discretion to consider the debtor's post-petition income when deciding whether to convert the case.

"South River first argues that the bankruptcy court erred by considering Kane’s interest in his post-petition income because that interest runs contrary to the goals and policies of the Bankruptcy Code. But Chapter 7 explicitly allows debtors to keep their post-petition income to further the goals of the Bankruptcy Code. Chapter 7 “allows a debtor to make a clean break from his financial past, but at a steep price: prompt liquidation of the debtor’s assets.” Harris v. Viegelahn, 575 U.S. 510, 513 (2015). In exchange for that “steep price,” the debtor’s post-petition earnings are shielded from creditors, enabling the debtor “to make the ‘fresh start’ the Bankruptcy Code aims to facilitate.” Id. at 518 (quoting Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007)). It was therefore not an abuse of discretion to consider Kane’s interest in his post-petition earnings when deciding whether to convert the case.

"South River also argues that the revisions to the Bankruptcy Code in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) reflect an “expectation that a debtor will pay a portion of disposable income to creditors.” But BAPCPA’s relevant revisions to Chapter 7 apply only to debtors with primarily consumer debts, and South River conceded that Kane did not fall into that category. Because the relevant provisions of BAPCPA did not apply to Kane, there was no need for the bankruptcy court to address them. "
11 U.S.C. § 706(b)
In re Thurman-Prior


Thurman - Motion to Dismiss

Thurman - Brief in Response to Motion to Dismiss
Bankr. W.D. MI11/14/23The court held that an incorrectly listed creditor may file an untimely non-dischargeability complaint under 11 U.S.C. § 523(a)(2) through 11 U.S.C. § 523(a)(3).

Prior to filing the debtor owed the Michigan Department of Health and Human Services for an overpayment. The debtor identified the creditor as the State of Michigan and included an address found on the last demand letter. Subsequent to the 60 day deadline to file a dischageability complaint based on fraud, the creditor filed an adversary proceeding to determine that the debt was non-dischargeable under Section 523(a)(3). The debtor filed a motion to dismiss.

"In general, § 523(c) requires creditors seeking to except debts from discharge under § 523(a)(2), (4), or (6) to obtain a nondischargeability determination from the bankruptcy court by filing an adversary proceeding. 11 U.S.C. § 523(c); see also Fed. R. Bankr. P. 7001(6). Bankruptcy Rule 4007(c) governs the time for bringing such a request. In chapter 13 cases, it provides that a complaint to determine the dischargeability of a debt under § 523(a)(2) or (4) must be filed "no later than 60 days after the first date set for the meeting of creditors under § 341(a)." Fed. R. Bankr. P. 4007(c). This time period may be extended "for cause," but only if a party in interest files a motion to extend prior to expiration of the 60-day period. Id. In this case, the 60-day period for filing a complaint to determine the dischargeability of debts under § 523(a)(2) or (4) expired on January [*11] 3, 2023. There is no question that the MDHHS failed to file its adversary complaint or a motion to extend prior to the deadline.

"If, however, the MDHHS lacked timely notice of the Debtor's bankruptcy case, as it has alleged, the debt it is owed may be excepted from discharge under § 523(a)(3). See In re Wilcox, 529 B.R. 231, 236 (Bankr. W.D. Mich. 2015); see also Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d Cir. 1995) ("Inadequate notice is a defect which precludes discharge of a claim in bankruptcy."). Section 523(a)(3) governs the claims of creditors who are omitted from the debtor's schedules....

"Pursuant to Bankruptcy Rule 4007(b), a complaint to determine the dischargeability of a debt under § 523(a)(3) "may be filed at any time." Fed. R. Bankr. P. 4007(b) (establishing the [*12] time frame for filing a complaint "other than under § 523(c)"); In re Wilcox, 529 B.R. at 236 n.6 ("A complaint to except a debt from discharge under § 523(a)(3) is a complaint 'other than under §523(c),' even if the debt is 'of a kind' described in § 523(a)(2), (a)(4), and (a)(6).") The rationale for this distinction is readily apparent, as it would not make sense "to hold creditors to a deadline of which they were not aware, especially given a debtor's duty - the first duty listed in the statute - to make them aware by filing a list of all creditors so that they may have notice of the proceedings in time to participate." In re Wilcox, 529 B.R. at 236 (citing 11 U.S.C. § 521(a)(1)(A)).

"In this proceeding, it is undisputed that the MDHHS lacked actual notice of the Debtor's bankruptcy filing prior to the deadline for filing a nondischargeability complaint because both the Notice of Chapter 13 Bankruptcy Case and the Chapter 13 Plan were served electronically on the MARCS Bankruptcy Unit, which is not affiliated with the MDHHS. ...

"For the foregoing reasons, the court concludes that the MDHHS did not receive adequate notice of the Debtor's bankruptcy case in time to file a timely nondischargeability complaint. As a result, the MDHHS may seek a determination that the debt it is owed is nondischargeable under § 523(a)(3). The Debtor's Motion to Dismiss the complaint as untimely is denied and a separate order shall be entered accordingly."
11 U.S.C. § 521(a)(1)(A)
11 U.S.C. § 523(a)(2)
11 U.S.C. § 523(a)(3)
11 U.S.C. § 523(c)
Rule 1007(a)(1)
In re Ky Emps Ret Sys


Ky Emps Petition for Writ of Mandamus
6th Circuit11/14/23The court denied an appellant's petition for writ of mandamus to direct the bankruptcy court to enter final judgment pursuant to an opinion and mandate in a parallel appeal.

""The traditional use of the writ in aid of appellate jurisdiction . . . has been to confine the court against which mandamus is sought to a lawful exercise of its prescribed jurisdiction." Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (cleaned up). Because "the writ is one of 'the most potent weapons in the judicial arsenal,'" reserved for only extraordinary causes, three conditions must be present before the petitioner can obtain relief. Id. (quoting Will v. United States, 389 U.S. 90, 107 (1967)). First, the petitioner cannot have adequate alternative means to obtain the relief it seeks—"a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process." Id. at 380-81. Second, the petitioner must show a "clear and indisputable" right to the relief sought. Id. at 381 (quoting Kerr v. U.S. Dist. Ct. for N.D. Cal., 426 U.S. 394, 403 (1976)). "Third, [*2] even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." Id.

"KERS has multiple adequate alternative means to obtain review of the bankruptcy court's order. To begin, KERS already has a pending interlocutory appeal before us from the district court's order denying leave to appeal. See In re Seven Cntys Servs., Inc., No. 23-5383 (6th Cir. 2023).

"We have rejected similar attempts in the past, denying protective mandamus petitions on the ground that a parallel direct appeal provides an adequate alternative means to relief. See, e.g., In re Harris Cnty., TX, No. 22-3493 (6th Cir. Dec. 13, 2022). And the Supreme Court has long held that mandamus should not be used to circumvent or accelerate the appeals process. See Ex parte Fahey, 332 U.S. 258, 260 (1947) ("[Common law writs] should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as a substitute for appeal.")."
In re Fletcher


Fletcher - Appellants Brief

Fletcher - Appellees Brief

Fletcher - Appellants Reply Brief
E.D. MI11/14/23The court ruled that a chapter 7 discharge is not an automatic bar to conversion to a chapter 13.

Prior to filing her chapter 7 bankruptcy, the debtor conveyed a one-half interest in her residence to her daughter. Post-discharge the debtor was concerned that the chapter 7 trustee would pursue the daughter for a fraudulent conveyance. The debtor filed a motion to set aside the discharge order and convert the case to a chapter 7.

"Under the Bankruptcy Code, a Chapter 7 debtor "may convert" to Chapter 13 "at any time" as long as the case has not previously been converted and the debtor qualifies as a Chapter 13 debtor. 11 U.S.C. § 706(a), (d). The Supreme Court has rejected [*4] the argument that the right to convert is absolute and held that the Bankruptcy Code does not limit the authority of the court to deny a motion to convert upon a showing of bad faith on the part of the debtor. Marrama v. Citizens Bank, 549 U.S. 365, 370-71, 127 S. Ct. 1105, 166 L. Ed. 2d 956 (2007). The Bankruptcy Court here did not reach the issues of bad faith or whether Appellant otherwise qualifies as a Chapter 13 debtor. Instead, it found that the previously issued discharge in Appellant's Chapter 7 case precluded conversion. As noted in the Bankruptcy Court's order denying Appellant's motion for reconsideration, this is consistent with a number of cases, including In re Alcantar, No. 19 B 24926, 2021 Bankr. LEXIS 2488 (Bankr. N.D. Ill. Sept. 10, 2021), that have reached this conclusion.1 (See ECF No. 5, PageID.118 (citing cases).) These cases assume that post-discharge, there are no remaining debts to be paid pursuant to a Chapter 13 plan. See, e.g., Alcantar, 2021 Bankr. LEXIS 2488 at *10. But there is another line of cases that has rejected this holding. See, e.g., Mason v. Young (In re Young), 237 F.3d 1168, 1173-74 (10th Cir. 2001); In re Oblinger, 288 B.R. 781, 785 (Bankr. N.D. Ohio 2003); In re Carter, 285 B.R. 61, 68 (Bankr. N.D. Ga. 2002); In re Mosby, 244 B.R. 79, 88 (Bankr. E.D. Va. 2000). ...

"The Court finds this analysis persuasive. This reasoning also refutes the notion that only non-dischargeable debt would be subject to any Chapter 13 plan. See In re Croghan, No. 21-10523, 2022 Bankr. LEXIS 3535, at *3-4 (Bankr. N.D. Ind. Aug. 31, 2022) (overruling an objection to a claim on the basis of a discharge entered prior to conversion from Chapter 7 to Chapter 13); In re Pike, 622 B.R. 898, 903 (Bankr. S.D. Ill. 2020) (same). And to the extent Appellee raises the issue of a potential abuse of the bankruptcy process, as the Mosby court reasoned, "the court is not without the means to deal with such attempts on a case by case basis."2 Mosby, 244 B.R. at 86. Thus, the Court finds that a Chapter 7 discharge is not an automatic bar to conversion to a Chapter 13 proceeding. This finding does not necessarily lead to a conclusion that Appellant is entitled to convert her case here. Instead, on remand, the Bankruptcy Court must consider whether Appellant qualifies as a Chapter 13 debtor. See Marrama, 549 U.S. at 374-76."
11 U.S.C. § 706
Purdy v Burnett


Purdy - Appellants Brief

Purdy - Appellees Brief

Purdy - Appellants Reply Brief
E.D. NC11/13/23The court affirmed the bankruptcy court's imposition of a ten and five year bar on refiling for the debtors. The debtors sought review, in part, on the length of time they were barred from refiling another bankruptcy.

"The Purdys contend that the bankruptcy [*10] court improperly dismissed their case with prejudice and improperly barred them from refiling bankruptcy for a period of time. See [D.E. 17] 22-23. "Unless the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed." 11 U.S.C. § 349(a). Except as provided in 11 U.S.C. § 109(g), dismissal of a case does not "prejudice the debtor with regard to the filing of a subsequent [bankruptcy] petition." See id. If a debtor's case "was dismissed by the court for willful failure of the debtor to abide by orders of the court," then the debtor may not refile for bankruptcy for 180 days. 11 U.S.C. § 109(g). This provision, however, "merely provides a minimum amount of time before a case may be refiled, not a maximum period of time for which the bankruptcy court may dismiss a case with prejudice when there is a dismissal for cause." Lerch v. Fed. Land Bank of St. Louis, 94 B.R. 998, 1001 (N.D. 111. 1989) (emphasis in original); see In re Tomlin, 105 F.3d 933, 939 (4th Cir. 1997); In re Stockwell, 579 B.R. 367, 373 (Bankr. E.D.N.C. 2017); In re Weaver, 222 B.R. 521, 523 n.1 (Bankr. E.D. Va. 1998); In re Robertson, 206 B.R. 826, 830-31 (Bankr E.D. Va. 1996); In re Jolly, 143 B.R. at 387.

"The bankruptcy court properly found that "a substantial temporal bar on filing subsequent petitions is appropriate." [D.E. 10-2] 19. The evidence established that Amanda Purdy intentionally devised a scheme to forge a letter from the Trustee to obtain [*11] a debt that she knew violated court orders. See id. Even if Marcus Purdy had no knowledge of Amanda Purdy's forgery, Marcus Purdy knew the court had explicitly denied the Purdys' requests to incur the debt, and he reaped the benefits of the Veterans United mortgage anyway. See id. The Trustee asked the bankruptcy court to bar the Purdys from refiling for bankruptcy for 15 years. See [D.E. 10-1] 25. Ultimately, the bankruptcy court barred Amanda Purdy from filing for bankruptcy for ten years and barred Marcus Purdy from filing for bankruptcy for five years. See [D.E. 10-2] 4. The record supports the bankruptcy court's finding of bad faith and that the Purdys egregiously abused the bankruptcy system. Accordingly, the court affirms the bankruptcy court's decision to bar the Purdys from refiling for bankruptcy for several years."
11 U.S.C. § 109(g)
In re Chen


Chen - Appellants Brief

Chen - Appellees Brief

Chen - Appellants Reply Brief
9th Circuit BAP11/13/23The court ruled that a chapter 13 plan may modify and bifurcate an undersecured lien secured by the debtor's principal residence pursuant to 11 U.S.C. § 1322(c)(2).

"...Mission Hen argued that the plan violated the anti-modification provision of § 1322(b)(2). It argued that a chapter 13 plan may not modify a lien secured only by a debtor's principal residence, including a claim that is undersecured. While § 1322(c)(2) allows a modification of a "payment of the claim" if the final payment falls within the plan term, Mission Hen argued that [*8] the statute allows for modification of only the payment term, not the claim itself. ...

"Mission Hen asserts that the reasoning of Nobelman v. American Savings Bank, 508 U.S. 324 (1993), prohibits the bankruptcy court from modifying anything other than the repayment terms of its claim. In Nobelman, the bankruptcy court denied confirmation of a chapter 13 plan that would have allowed the debtors to bifurcate the secured creditor's lien on their real property into unsecured and secured claims [*13] and to make payments on only the secured portion. ...

"Mission Hen's argument based on Nobelman fails. The Court's decision was founded on statutory interpretation. About a year after the Nobelman decision, Congress amended the statute by enacting current § 1322(c)(2). Congress undoubtedly has the power to overcome the Supreme Court's interpretation of a statute by amending the statute. Nobelman does not help us construe the amended statute. See In re Collier-Abbott, 616 B.R. 117, 122 (Bankr. E.D. Cal. 2020) ("When the Supreme Court issued its ruling in Nobelman, there was not, and there could not have been, consideration of the then yet to be enacted exception to 11 U.S.C. § 1322(b)(2) residence secured claim valuation limitation.").

"Although the Ninth Circuit has not squarely addressed whether § 1322(c)(2) permits the bifurcation and stripdown of an undersecured, soon-to-mature claim, the [*14] Fourth Circuit, Eleventh Circuit, and other courts have answered in the affirmative. ...

"Therefore, because Mission Hen's secured claim matures during the plan term, the plain language of § 1322(c)(2) allows the Debtors to bifurcate and cram down the Mission Hen claim.4 The bankruptcy court did not err in holding that Mission Hen's claim was not protected by the anti-modification provision."
11 U.S.C. § 1322(b)(2)
11 U.S.C. § 1322(c)(2)
Truong v Crandall


Truong Motion for Leave to Interlocutory Appeal

Truong Response to Motion

Truong Reply to Response to Motion
D. OR11/9/23The court ruled that the Business Judgment Rule applies to the rejection of a real estate purchase contract in a chapter 13 plan. Further, the court affirmed the bankruptcy court's ruling that debtor's second plan, which purported to provide reasons for the rejection, was barred by the law of the case doctrine.

In the debtor's first plan proposing to reject the executory contracts, he did not adequately explain the reasons for the rejection. "Under the "business judgment" rule, a bankruptcy court should approve rejection of an executory Contract unless the debtor's reasoning behind rejection "is so manifestly unreasonable that it could not be based on sound business judgment." Id. at 13 (quoting In re Pomona Valley Med. Grp., Inc., 476 F.3d 665, 670 (9th Cir. 2007)). The court found that Mr. Truong failed to offer any evidence that he was exercising sound business judgment and rejected his plan....

"There is no substantial ground for difference of opinion on whether the business judgment rule applies to the rejection of a real estate purchase contract in Chapter 13 because the circuits are not in dispute on this question and it is not a novel or difficult issue of first impression.

"Bankruptcy Code § 1322(b)(7) provides that a Chapter 13 plan may provide for the assumption, rejection, or assignment of any executory contract or unexpired lease "subject to section 365 of this title." 11 U.S.C. § 1322(b)(7). Section 365 authorizes a debtor to assume or reject an executory contract "subject to court approval." 11 U.S.C. § 365(a). The Supreme Court endorsed use of the business judgment rule under Section 365(a) as early as 1943. Grp. of Institutional Inv'rs v. Chicago, Milwaukee, St. Paul & Pac. R. Co., 318 U.S. 523, 550, 63 S. Ct. 727, 87 L. Ed. 959 (1943) ("[T]he question whether a lease should be rejected and if not on what terms it should be assumed is one of business judgment."). And when discussing whether a higher standard should apply to collective bargaining agreements, the Supreme Court has acknowledged that "the traditional 'business judgment' standard [is] applied by the courts [*11] to authorize rejection of the ordinary executory contract." N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 523, 104 S. Ct. 1188, 79 L. Ed. 2d 482 (1984). ...

"The law of the case doctrine expresses the practice of courts generally to refuse to reopen issues that have been decided. Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997), rev'd on other grounds. It is a jurisprudential doctrine which applies when the issue in question was decided either expressly, or by necessary implication in the previous disposition. Id., Thomas v. Bible, 983 F.2d at 154. The Ninth Circuit has held that the doctrine applies to interlocutory orders as it was created to avoid reconsideration of settled matters during a single continuing lawsuit. Pit River Home & Agric. Coop. Ass'n v. United States, 30 F.3d 1088, 1097 (9th Cir. 1994). Here, the bankruptcy court's decision to reject Mr. Truong's initial plan was an interlocutory [*13] decision.

The bankruptcy judge acknowledged, as I do here, the tension between the liberal standards for modification of Chapter 13 plans and the policy underlying the law of the case doctrine. Hearing Tr. [ECF 7] at 25. But the policy reasons underlying the doctrine as described in the Ninth Circuit are fully applicable to Chapter 13 bankruptcy proceedings. Id. at 27. Litigants in bankruptcy proceedings have the same interest in certainty as other litigants, and bankruptcy courts have the same interest in judicial economy. Other courts have invoked these policy reasons to support applying the law of the case in the context of an amended plan. E.g., In re Budd, No. 20-21419-ABA, 2022 Bankr. LEXIS 592, 2022 WL 660591, at *7 (D.N.J. Mar. 4, 2022) ("The Debtor had his day in court."). Therefore, the question of applicability of the law of the case doctrine here is not a novel or difficult issue of first impression.

"I further note that if I take up the second way of characterizing Mr. Truong's question, whether the bankruptcy judge erred in applying the doctrine in this case, there is still no ground for substantial difference of opinion. A court's decision whether to apply the doctrine is reviewed for abuse of discretion. Stacy v. Colvin, 825 F.3d 563, 568 (9th Cir. 2016). Here, the judge acknowledged the exceptions where the doctrine [*14] should not be applied. Hearing Tr. [ECF 7] at 27. The judge acknowledged that Mr. Truong presented new information but found it vague and hypothetical. Id at 18. Bearing the relevant standard in mind, a fair-minded jurist could not conclude that me [sic] judge abused his discretion."
11 U.S.C. § 365
11 U.S.C. § 1322(b)(7)
In re ParsonsBankr. W.D. TN11/9/23The court denied the chapter 7 pro se debtors' request to release unclaimed funds four years after their case was closed.

"Section 347(a) of the Bankruptcy Code addresses the disposition of unclaimed property in chapter 7 cases. ... Once unclaimed funds are deposited with the court, disposition of those funds is governed by Chapter 129 of title 28. ...

"Section 2042 of chapter 129 governs the withdrawal procedure for unclaimed funds deposited with a court. ...

""There are three requirements that a claimant must meet to withdraw funds held under these statutes." In re Bradford Prod., Inc., 375 B.R. 356, 358-59 (Bankr. E.D. Mich. 2007). "First, the claimant must file a petition." Id. at 359. "Second, there must be notice of the petition to the United States attorney." Id. "The third requirement is that the claimant must show that it is 'entitled to any such money' by providing 'full proof of the right thereto.'" Id. The Debtors in the case at bar failed to satisfy [*11] the second and third prongs of the Bradford test and, thus, their Application must be denied. ...

"In pursuing an application for payment of unclaimed funds, the movant carries the burden of proof and must demonstrate its entitlement to the funds by a preponderance of evidence. In re Transp. Grp., Inc., No. 93-30015, 2007 Bankr. LEXIS 667, 2007 WL 734817, at *2 (Bankr. W.D. Ky. Mar. 7, 2007). "Under statutory requirements and due process principles, the Court has the duty to protect the original claimant's property interest by making sure that unclaimed funds are disbursed to their true owner." In re Applications for Unclaimed Funds Submitted in Cases Listed on Exhibit "A", 341 B.R. 65, 69 (Bankr. N.D. Ga. 2005). ...

"Pursuant to 28 U.S.C. § 2041, "[t]he 'rightful owner' of unclaimed funds paid into the Court under § 347(a) is the holder of the proof of claim on account of which the trustee made the distribution." In re Applications for Unclaimed Funds Submitted in Cases Listed on Exhibit "A," 341 B.R. at 69."
11 U.S.C. § 347(a)
28 U.S.C. § 2041
28 U.S.C. § 2042
In re Stevenson


Stevenson - Obj to Confirmation

Stevenson - Response to Obj to Conf
Bankr. E.D. VA11/8/23The court held that even in the absence of in personam liability against the debtor, a mortgage creditor's claim against the debtor's inherited property is a claim and can be cured pursuant to 11 U.S.C. § 1322(b)(2).

"The question is whether Wesbanco's in rem rights against the Property constitute a "claim" as defined by section 101(5) of the Bankruptcy Code, which claim can properly be included in the Plan.

"The Fourth Circuit has not addressed this issue. Across the county, there is a split of authority as to whether a Chapter 13 plan may cure a defaulted secured claim when no privity of contract exists between the debtor and the creditor. The majority of courts apply the Supreme Court's broad interpretation of "claim" in Johnson v. Home State Bank, 501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991), to permit confirmation of Chapter 13 plans that cure arrears where there are only in rem rights and no contractual privity between the debtor and creditor. See, e.g., In re Curinton, 300 B.R. 78, 80 (Bankr. M.D. Fla. 2003); Bank of America, N.A. v. Garcia (In re Garcia), 276 B.R. 627 (Bankr. D. Ariz. 2002); In re Trapp, 260 B.R. 267 (Bankr. D.S.C. 2001); In re Allston, 206 B.R. 297 (Bankr. E.D.N.Y. 1997); In re Rutledge, 208 B.R. 624 (Bankr. E.D.N.Y. 1997); In re Hutcherson, 186 B.R. 546 (Bankr. N.D. Ga. 1995); Citicorp Mortgage, Inc. v. Lumpkin (In re Lumpkin), 144 B.R. 240 (Bankr. D. Conn. 1992)). On the other hand, a minority of courts interpret "claim" narrowly, such that a "claim" does not exist when there is no in personam liability. See, e.g., In re Parks, 227 B.R. 20 (Bankr. W.D.N.Y. 1998); Ulster Savings Bank v. Kizelnik (In re Kizelnik), 190 B.R. 171 (Bankr. S.D.N.Y. 1995); In re Threats, 159 B.R. 241 (Bankr. N.D. Ill. 1993).

"The Court finds Johnson to be instructive and will adopt the majority approach."
11 U.S.C. § 101(5)
11 U.S.C. § 1322(b)(2)
IRS v Wallace


IRS v Wallace - Motion for Leave to Take Interlocutory Appeal

IRS v Wallace - Response to Motion
C.D. IL11/7/23The court ruled that a dischargeability adversary brought by a chapter 7 debtor against the Internal Revenue Service is not a justiciable controversy unless the IRS has threatened to collect on the disputed debt.

"The IRS cites a string of cases indicating that "dischargeability [*13] actions brought by debtors against the United States before the IRS had staked out a position on the dischargeability of the subject federal tax debts and commenced (or threatened to commence) collection activity are not currently justiciable disputes." Doc. 3 at 13 (citing Hinton v. United States, JHL-09-6920, 2011 U.S. Dist. LEXIS 52103, 2011 WL 1838724 (N.D. Ill. May 12, 2011); Namai v. United States (In re Namai), MMH-20-44, 2023 Bankr. LEXIS 2080, 2023 WL 5422627 (Bankr. D. Md. Aug. 21, 2023); Erikson v. United States (In re Erikson), WS-12-5546, 2013 Bankr. LEXIS 2049, 2013 WL 2035875 (Bankr. E.D. Mich. May 10, 2013); Sheehan v. United States (In re Sheehan), AIH-09-1351, 2010 Bankr. LEXIS 3884, 2010 WL 4499326 (Bankr. N.D. Ohio. Oct. 29, 2010); Mlincek v. United States (In re Mlincek), 350 B.R. 764 (Bankr. N.D. Ohio. 2006).16 The Court has reviewed these cases and adopts their reasoning but refrains from rehashing the repeated analysis in its entirety. Instead, the Court notes that these decisions arising from debtor-initiated adversarial proceedings without imminent threat of an IRS collection are rooted in principles of justiciability. Whether a court abstained from presiding over a case or dismissed an adversarial complaint for lack of jurisdiction, the underlying principle remains the same: A debtor does not have carte blanche to bring an action under § 523(a)(1) to determine whether his tax debts are excepted from discharge, as there is no justiciable controversy unless the IRS has argued that the exception applies or has otherwise threatened to collect the debtor's tax debts. ...

"This Court is confident that, had the IRS threatened to collect Mr. Wallace's tax debt when he [*14] filed his Complaint, then he would have had standing to determine the extent of the dischargeability of his tax debts, as his injury (i.e., the IRS collection) would have most certainly been imminent and the case would have been ripe. Mathis v. Metro. Life Ins. Co., 12 F.4th 658, 663-64 (7th Cir. 2021) ("A case is ripe when it is not dependent on contingent future events that may not occur as anticipated, or indeed may not occur at all.") (quotation omitted).18 In this way, and in this case, the issues of standing and ripeness cannot help but bleed into one another and form a justiciable controversy. See Smith v. Wis. Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1141 (7th Cir. 1994) ("The doctrines of standing and ripeness are closely related, and in cases like this one perhaps overlap entirely."). And so, under such hypothetical facts, the Bankruptcy Court could have rightly found it had subject matter jurisdiction over the Complaint. See Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007) ("A case or controversy requires a claim that is ripe and a plaintiff who has standing.")."
11 U.S.C. § 523(a)(1)(c)
In re Powell


Powell - Emergency Motion for Stay
M.D. PA11/6/23The appellate court rejected debtor's argument that the bankruptcy court used the wrong standard of proof under the doctrine of "invited error". Debtor's counsel verbally stated that he had "a high burden to meet" under the clear and convincing standard.

"As an initial matter, even if the Court were to accept the argument that Judge Conway erred in applying the clear and convincing standard, as Powell had only one prior bankruptcy matter pending within one year of the underlying matter,4 any such error was invited by Powell. "The doctrine of invited error refers to an error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling."5 "That is to say, when a litigant takes an unequivocal position [below], he cannot on appeal assume a contrary position simply because the decision in retrospect was a tactical mistake, or perhaps a candid but regretted concession."6 In the underlying proceedings, Judge Conway explicitly asked Powell's attorney—the same attorney representing Powell on appeal before this Court—whether they were proceeding under 11 U.S.C. § 362(c); Powell's attorney agreed that they were, and stated that he understood [*3] he had "a high burden to meet" under the clear and convincing evidence standard.7 Powell's attorney then argued at length regarding the clear and convincing standard, and asserted that the evidence met that standard.8 As a consequence, Powell invited any purported error, and may not challenge on appeal the standard of proof required by Judge Conway."
11 U.S.C. § 362(c)
In re Sperry



Sperry - UST Motion to Dismiss

Sperry - Debtors Brief

Sperry - UST Supplemental Brief
Bankr. CT11/6/23The court granted the United States Trustee's motion to dismiss a chapter 7 case converted from chapter 13 under the totality of the circumstances. During the chapter 13 bankruptcy, the debtor had successfully modified his mortgage which eliminated a $104,000 mortgage arrearage and correspondingly a monthly cure payment of $1,745.86. After conversion the UST moved to dismiss based on the debtor's ability to pay unsecured creditors subsequent to the modification.

The court ruled that bad faith under means test is calculated at the time of the original filing unless there was a bad faith conversion. "Regarding the relevant date for the Means Test calculation, the conversion of a case from one chapter to another "does not effect a change [*11] in the date of the filing of the petition, the commencement of the case, or the order for relief." 11 U.S.C. § 348(a); ... A finding of bad faith in conversion would reset the relevant date for the Means Test from the "date of the filing of the petition, the commencement of the case, or the order for relief" to the conversion date. 11 U.S.C. § 348(f); 11 U.S.C. § 348(a)."

However, the court ruled it could examine the post-petition ability to pay unsecured creditors under the totality of circumstances test. "Although this Court's consideration of information on the debtor's financial situation after the petition date is not appropriate in calculating a debtor's Means Test, the Court is allowed to consider that information in its analysis of whether the granting of relief would be abusive under the totality of the circumstances test. ...

"Regarding whether the Debtor's disposable income permits the liquidation of his consumer debts with relative ease: This is emphatically true. The Debtor could pay the entirety of his unsecured claims under a Chapter 13 plan, amounting to some $25,842.00. Given the substantial increase in the Debtor's disposable income from curing the mortgage arrearage, this could likely be accomplished in less than two years. If the Debtor is allowed to proceed with his Chapter 7 Plan, these [*19] unsecured claims, taken together, would receive a distribution of $0. ...

"Therefore, in light of the Debtor's indisputable financial ability to pay a significant dollar amount or percentage of his unsecured debts, as well as the factors enumerated above, the Court finds that the Debtor's Chapter 7 case shall be dismissed within 10 days hereof unless reconverted to a Chapter 13 with consent of the Debtor."
11 U.S.C. § 348
11 U.S.C. § 707(b)
In re Oliver


Oliver - Appellants Brief

Oliver - Appellees Brief

Oliver - Appellants Reply Brief
9th Circuit11/2/23The court held the bankruptcy court did not abuse its discretion when it imposed terminating sanctions for discovery misconduct resulting in a complete denial of discharge."Before imposing terminating sanctions, the bankruptcy court considers five factors. See Conn. Gen. Life Ins. Co., 482 F.3d at 1096. The bankruptcy court properly balanced and provided reasons for all five factors. As to the fifth factor, the availability of less drastic sanctions, the bankruptcy court weighed Oliver's failure to comply with multiple court orders and monetary sanctions regarding his discovery misconduct and concluded that any "lesser sanction would be utterly useless."11 U.S.C. § 727
In re Fiedler


Fiedler - Order to Show Cause

Fiedler - Response to Order to Show Cause
Bankr. E.D. CA11/2/23The court sanctioned a creditor and its lawfirm for filing a frivolous boilerplate complaint objecting to discharge under 11 U.S.C. § 523(a)(2).

"This is a case of sue first and ask questions later. … The boilerplate Complaint alleged only two operative facts. First, Golden One made an unsecured loan of $9,000 on November 3, 2022, for the stated purpose of helping Defendant retire a $12,500 Wells Fargo credit card debt at 24.3% interest. Second, on December 20, 2022, the Defendant did not make the [*2] first payment when due. Those two facts, without more, were alleged to suffice to prove an intentional fraud perpetrated on November 3. ... Nevertheless, when it comes to commencing a legal action by filing a fraud Complaint, the existence of an early payment default fraud indicator may trigger an inquiry by a creditor but is not alone sufficient ground for a lawsuit in which the essential elements of fraud must be proved by preponderance of evidence. There still must be the "inquiry reasonable under the circumstances" and that is precisely what did not happen here. ... By any measure, there was not an "inquiry reasonable under the circumstances." ...

"A creditor who requests determination of dischargeability of a "consumer debt" under § 523(a)(2) that ultimately is discharged is liable for the debtor's costs and a reasonable attorney's fee for the proceeding if the court finds that the position of the creditor was not substantially justified, unless special circumstances would make the award unjust. 11 U.S.C. § 523(d). ... The law of the Ninth Circuit regarding § 523(d) was established by First Card v. Hunt (In re Hunt), 238 F.3d 1098 (9th Cir. 2001) ... The creditor plaintiff has the burden to prove its position was substantially justified, which entails demonstrating a reasonable basis in law and fact. ... Rocha's argument is not persuasive — or worse. ...

"What is reasonably necessary to deter repetition of the conduct in this instance is to impose a requirement of prefiling review by the undersigned judge of every complaint alleging nondischargeable debt before it is filed in the U.S. Bankruptcy Court for the Eastern District of California by Karel Rocha or the law firm of Prenovost, Normandin, Dawe & Rocha between now and June 30, 2025."
11 U.S.C. § 523(a)(2)
11 U.S.C. § 523(d)
In re Keith


Keith - Defendants Motion for Summary Judgment

Keith - Plaintiffs Response

Keith - Defendants Reply
Bankr. W.D. TX10/30/23The court granted debtor's motion for summary judgment on the non-dischargeability claim under 11 U.S.C. § 523(a)(2)(A) based on the allegation that the debtors failed to disclose outstanding debts when applying for loans. The court held that omissions regarding the debtors financial condition are not a basis for non-dischargeability under Section 523(a)(2)(A).

"Confining the limiting phrase only to oral or written statements and not omissions about the debtor's financial condition leads to an odd result. If a debtor signed the statement "I am not in arrears on any debts," a creditor (like Kapitus here) could later argue that the debtor both omitted [*11] information about financial condition (violating § 523(a)(2)(A)) and supplied false information about financial condition (violating § 523(a)(2)(B)). This is despite Congress's intent to segregate these two claims. H.R. Rep. 959-595 at 129-132 (1977). Kapitus's reading of § 523(a)(2)(A) flouts legislative history suggesting that such a reading would encourage less scrupulous creditors to rush debtors through the loan application process, allowing the creditor to later file a nondischargeability action against an unwitting debtor. See Appling, 138 S. Ct. at 1763-64 (describing how § 523(a)(2)(B) was enacted specifically to counter Congressionally alleged creditor abuse and manipulation). HN8 Thus, creditors who seek nondischargeability for statements respecting financial condition have a higher burden: they need to get it in writing. The provisions of §§ 523(a)(2)(A) and (B) are mutually exclusive and binary—a statement either respects a Debtor's financial condition, or it does not. ...

"All of the statements and omissions Kapitus alleges in support of its nondischargeability claim were made about Keith's or Coyote's financial condition. Pl.'s Compl. 17. Thus, Kapitus has not alleged an actionable nondischargeability claim under § 523(a)(2)(A). "

11 U.S.C. § 523(a)(2)(A)