Collier Bankruptcy Case Update February-18-02
A Weekly Update of Bankruptcy and Debtor/Creditor Matters
Collier Bankruptcy Case Update
The following case summaries appear in the Collier Bankruptcy Case Update, which is published by Matthew Bender & Company Inc., one of the LEXIS Publishing Companies.
February 18, 2002
CASES IN THIS ISSUE
(scroll down to read the full summary)
- 1st Cir.
§ 365(b) Debtor did not have to cure to assume lease.
In re Bankvest Capital Corp. (Bankr. D. Mass.)
§ 1322(b)(2) Debtors could not modify security interest on their residence.
Beckston Invs. Ltd. v. Smith (In re Smith) (Bankr. D.N.H.)
§ 362(b)(2) Debtor failed to show that his continued incarceration was intended to force him to use property of the estate to pay his prepetition support obligations in violation of the automatic stay.
In re Bezoza (Bankr. S.D.N.Y.)
§ 547(c)(2) Trustee could not avoid transfers via Ponzi scheme.
Daly v. Parete (In re Carrozzella & Richardson) (Bankr. D. Conn.)
§ 547(c)(2) Transfer made via Ponzi scheme was avoided.
Daly v. Mayo (In re Carrozzella & Richardson) (Bankr. D. Conn.)
§ 523(a)(2)(A) Creditor failed to prove debtor made knowingly false representations.
Commer. Money Ctr., Inc. v. Sacco (In re Sacco) (Bankr. W.D. Pa.)
§ 302(b) Bankruptcy court refused to substantively consolidate bankruptcy estates where spouse had separate liabilities and assets.
In re Harris (Bankr. D. Md.)
§ 507(a)(7) Portion of former wife’s claim entitled to priority as claim in nature of alimony, maintenance or support.
Brunson v. Austin (In re Austin) (Bankr. E.D. Va.)
§ 523(a)(4) Funds taken from employer by debtor were nondischargeable due to embezzlement.
KMK Factoring, L.L.C. v. McKnew (In re McKnew) (Bankr. E.D. Va.)
§ 523(a)(15) Marital obligation was not excepted from debtor’s discharge.
Evans v. Evans (In re Evans) (Bankr. D.S.C.)
§ 541(a)(1) Court rejected chapter 7 debtor’s claim that stock option was not property of his estate.
In re Dibiase (Bankr. W.D. Tex.)
28 U.S.C. § 157(b) Court of Appeals denied nondebtor defendant’s motions for stay pending appeal of district court orders entered in cases that nondebtor removed from state court.
Arnold v. Garlock, Inc. (5th Cir.)
§ 329(a) Court of Appeals held that attorney’s failure to disclose additional billing was basis for disgorgement.
Henderson v. Kisseberth (In re Kisseberth) (6th Cir.)
§ 1322(b)(5) Mortgage lender was not entitled to attorney’s fees payable via chapter 13 plan.
Dollar Bank v. Petroff (In re Petroff) (B.A.P. 6th Cir.)
§ 364(d) Request for replacement security interest by secured creditors upheld.
Official Comm. of Unsecured Creditors of Qualitech Steel Corp. v. Bank Group
(In re Qualitech Steel Corp.) (7th Cir.)
§ 522(b)(2)(A) Settlement proceeds not allocated to the debtor’s retirement fund were not exempt from debtor’s bankruptcy estate. In re Weinhoeft (7th Cir.) 023015
Rule 1009(a) The bankruptcy court’s denial of the debtor’s motion to amend his schedules was not an abuse of discretion.
Kaelin v. Bassett (In re Kaelin) (B.A.P. 8th Cir.)
Rule 9024 Debtor’s request for relief from an order entered three years earlier was properly denied.
Martin v. Sanford (In re Martin) (B.A.P. 8th Cir.)
§ 522(b)(2)(A) Debtors were entitled to exemption in paycheck funds deposited in their bank account.
In re Platt (Bankr. D. Or.)
§ 523(a)(2)(A) Purchasers alleging fraud did not have standing to challenge dischargeability.
Coleman v. Miller (In re Miller) (D. Kan.)
Rule 8002(c) Motion to extend time to file appeal was denied.
Cavazos v. Mid State Trust II (In re Hillsborough Holdings Corp.) (Bankr. M.D. Fla.)
Collier Bankruptcy Case Summaries
Debtor did not have to cure to assume lease. Bankr. D. Mass. The creditors and debtor entered agreements whereby the debtor would lease computer equipment to the creditors. The debtor delivered all but 20 of the 190 items it had agreed to lease. After the debtor filed its chapter 11 petition, the trustee attempted to assume the leases. The creditors requested cure costs, alleging that the breach was such that it could not be cured, and that as a result, the debtor was required to cure the default in order to assume the leases. To the extent that the default could be cured, the creditors argued, damages could be paid as a result of the failure to deliver the 20 items. The bankruptcy court held that, for the purposes of section 365(b)(2)(D), the failure to deliver certain items was a quintessential example of a nonmonetary default and, as such, there were no cure claims to be satisfied before assumption and assignment of the leases. At best there were only viable claims for the damages that demonstrably flowed from the failure to deliver all items.In re Bankvest Capital Corp., 2001 Bankr. LEXIS 1639, 270 B.R. 541 (Bankr. D. Mass. December 11, 2001) (Rosenthal, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 3:365.05
Debtors could not modify security interest on their residence. Bankr. D.N.H. The debtors were caretakers on real property purchased by the creditor, who thereafter sold the property to the debtors and took back a note and mortgage for the purchase price. The creditor also financed the debtors’ purchase of a landscaping business by purchasing the business’s equipment and leasing it back to the business. When the debtors were unable to stay current on both the mortgage and lease payments, they executed a new note, along with a mortgage on their residence, in the amount of $236,200, representing amounts owed on both previous obligations. No releases of the prior mortgages or lease were executed. The debtors again fell behind, the creditor commenced foreclosure, and the debtors filed a chapter 13 petition. The creditor filed motions for relief from the automatic stay with regard to the debtor’s residence, as well as the business equipment subject to the lease. The bankruptcy court denied the motion with respect to the equipment, holding that the lease, along with the security interest it conferred, terminated upon execution of the new note. But the court found that the creditor’s valid security interest in the residence was not properly provided for in the debtor’s proposed plan, which interest, being on the debtors’ principal residence, could not be modified, as mandated by section 1322(b)(2). The court gave the debtors an opportunity to amend their plan.Beckston Invs. Ltd. v. Smith (In re Smith), 2001 Bankr. LEXIS 1630, – B.R. – (Bankr. D.N.H. November 28, 2001) (Vaughn, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 8:1322.06
Debtor failed to show that his continued incarceration was intended to force him to use property of the estate to pay his prepetition support obligations in violation of the automatic stay. Bankr. S.D.N.Y. The chapter 11 debtor filed a motion seeking relief on the ground that his continued confinement, based upon his failure to pay spousal and child support, violated the automatic stay. Although the debtor had little money in his own name, he managed to maintain an extravagant lifestyle using corporate credit cards, funds liberally provided by corporate affiliates and his father, and trust funds taken from his daughters’ custodial bank accounts. The debtor, a medical doctor, operated through a professional corporation which generated substantial annual fees. After the state (New York) court determined that the debtor was able to pay his support obligations but willfully failed to do so, it committed him to the department of corrections for contempt. Although the debtor was sentenced to a specific term, he could have avoided his sentence by paying his obligations in full. The bankruptcy court denied the debtor’s requested relief, holding that because the automatic stay did not apply to the collection of support obligations from nonestate property, the use of contempt in order to coerce the debtor to pay the debts with nonestate property was permissible. The Code did not prohibit the debtor from being forced to use nonestate property to pay his prepetition support obligations. The court noted that there was no reason to ignore the corporate niceties and disturb the financial structure that had previously insulated the debtor from his creditors in order to protect the nonestate assets.In re Bezoza, 2002 Bankr. LEXIS 5, 271 B.R. 46 (Bankr. S.D.N.Y. January 3, 2002) (Bernstein, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 3:362.05
Trustee could not avoid transfers via Ponzi scheme. Bankr. D. Conn. The debtor, a law firm, had an involuntary chapter 7 petition filed against it. Many individuals had placed personal funds with the debtor in an arrangement resembling a Ponzi scheme, whereby funds placed with the debtor were secretly and illicitly used to pay returns and principal to earlier depositors. One individual deposited a total of $20,000 between 1981 and 1987, in exchange for which the debtor promised to repay the principal on demand and pay interest on the balance at an annual rate of 15 percent. Commencing in 1981, the individual received periodic interest payments, eventually receiving a total of $16,542.11. In 1992, the individual withdrew the principal. Approximately $22,283 was received by the individual within four years of the petition date. The chapter 7 trustee commenced an action against the individual based on section 542(a), seeking turnover of the funds. The trustee argued that the transfers were fraudulent under state (Connecticut) law, having been made without reasonably equivalent value in exchange, and that they were made in furtherance of a Ponzi scheme. The bankruptcy court ruled for the individual. The court reasoned that (1) the fraudulent transfer argument failed, because the individual did not receive anything more than what was agreed to as early as 1981, and because the illegality of the transaction did not deprive it of value; and (2) the trustee did not demonstrate that the transfers were comprised of funds to which fraud victims held an interest, either by legal title or as trust beneficiaries. The funds belonged to the debtor, regardless of the method of their acquisition.Daly v. Parete (In re Carrozzella & Richardson), 2001 Bankr. LEXIS 1631, – B.R. – (Bankr. D. Conn. December 17, 2001) (Dabrowski, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 5:542.02
Creditor’s motion to withdraw the reference to the bankruptcy court was denied. S.D.N.Y. The secured creditor filed a motion requesting the district court to withdraw, either in whole or in part, the order of reference to the bankruptcy court in the related chapter 11 debtors’ cases. The creditor had previously moved the bankruptcy court to vacate the automatic stay, arguing that its collateral was decreasing in value. The bankruptcy court denied the creditor’s request to order the debtors to place the alleged daily diminution in value in an escrow account, pending final resolution of the motion. The creditor argued that bringing the matter before the district court was appropriate because the bankruptcy court’s failure to act resulted in the continued diminution of the value of its collateral. The district court denied the creditor’s motion, holding that withdrawal of the reference was not warranted. The court noted that withdrawal of the reference would waste judicial resources and would add to the delay in adjudication of the dispute. The matter at issue was a core proceeding and the bankruptcy court was already familiar with the debtors’ cases (citing Collier on Bankruptcy, 15th Ed. Revised).Afco Credit Corp. v. Iridium LLC, 2001 U.S. Dist. LEXIS 21720, – B.R. – (S.D.N.Y. December 21, 2001) (McKenna, D.J.).
Collier on Bankruptcy, 15th Ed. Revised 1:3.04
Creditor failed to prove debtor made knowingly false representations. Bankr. W.D. Pa. The creditor leased two trucks to the debtor by written agreement. After the debtor filed a chapter 7 petition, the creditor commenced an adversary proceeding, seeking to have the obligation declared nondischargeable pursuant to section 523(a)(2)(A). The creditor asserted that the debtor had made a knowingly false representation with regard to his ability to make payments under the lease. Specifically, the creditor argued that the debtor’s representation that he would maintain the two trucks, that payment would be made via a corporate bank account and that he intended to repay the lease obligation were knowingly false representations. Those allegations were undisputed by the debtor. The bankruptcy court ruled for the debtor, holding that the creditor failed to preponderantly prove that any of the debtor’s representations were knowingly false. As such, the creditor’s cause of action under section 523(a)(2)(A) was insufficiently supported by the evidence. Commer. Money Ctr., Inc. v. Sacco (In re Sacco), 2001 Bankr. LEXIS 1596, 270 B.R. 382 (Bankr. W.D. Pa. December 11, 2001) (McCullough, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 4:523.08
Bankruptcy court refused to substantively consolidate bankruptcy estates where spouse had separate liabilities and assets. Bankr. D. Md. The bankruptcy court joined four cases for the purpose of dealing with them in one opinion because they shared common issues of fact and law. In each of the cases, the debtors, who were spouses, filed chapter 7 petitions. Also, in each case, certain claims were filed against only one of the spouses. Further, in each case, the spouse against whom the claims were not made was a legatee under a will. The trustee filed objections to the payment of the creditors of one spouse from the other spouse’s bankruptcy estate (which contained the legacy proceeds). In reviewing the law, the court distinguished between administrative consolidation and substantive consolidation. Administrative consolidation permits one trustee to administer two cases together. However, the two estates remain separate and the rights of creditors are not enlarged so as to reach the estate of the joint debtor. In contrast, substantive consolidation results in the creation of a single estate and all creditors of equal status are allowed to share equally in the consolidated pool of assets. The filing by a husband and wife of a joint petition under section 302 does not result in the automatic substantive consolidation of the debtors’ estates, and the decision of whether to substantively consolidate the cases is within the sole discretion of the bankruptcy court. In making its determination regarding substantive consolidation, the court considered whether either of the spouses had requested such consolidation. It also considered whether there was a substantial identity between the assets, liabilities and handing of the financial affairs between the debtor spouses, and whether harm would result from permitting or denying consolidation. After reviewing these factors, the court found that, in each of the cases, there was not substantial identity between the debtor spouses’ estates and that there also was not a substantial commingling of assets and liabilities. Since, in each case, one spouse had a significant asset that belonged to him or her alone, and since each spouse owed individual debts, the circumstances did not support substantive consolidation of the spouses’ estates. Accordingly, the trustee’s objections to the claims made in each of the cases were sustained.In re Harris, 2001 Bankr. LEXIS 1638, – B.R. – (Bankr. D. Md. October 12, 2001) (Schneider, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 2:302.06
Portion of former wife’s claim entitled to priority as claim in nature of alimony, maintenance or support. Bankr. E.D. Va. The debtor’s former wife objected to confirmation of the debtor’s chapter 13 plan because it failed to provide for full payment of her asserted priority claim. The former wife asserted that her claim, which arose out of the parties’ property settlement and separation agreement, was entitled to priority status under section 507(a)(7) as a claim in the nature of alimony, maintenance or support. The debtor disputed the priority status of the former wife’s claim. The bankruptcy court noted the need to determine the parties’ intent with respect to the obligations contained in the property settlement and separation agreement, and considered the following factors: (1) whether there was any evidence of overreaching at the time the agreement was executed; (2) the language and substance of the agreement; (3) the parties’ financial circumstances at the time of the agreement; and (4) the role of the obligation at the time of the agreement. Based on consideration of the relevant factors, the court held that the debtor’s obligation under the property settlement and separation agreement to pay certain credit card bills and consolidation loans was in the nature of support, and former wife’s claim based on this obligation was entitled to priority under section 507(a)(7). Since the debtor’s plan failed to provide for full payment of this portion of the former wife’s claim, plan confirmation had to be denied. The court also found that a portion of the wife’s claim that related to the debtor’s obligation to pay a percentage of proceeds, if any, from the settlement of a personal injury lawsuit was not in the nature of support and not entitled to payment in full as a priority claim.Brunson v. Austin (In re Austin), 2001 Bankr. LEXIS 1652, 271 B.R. 97 (Bankr. E.D. Va. June 4, 2001) (St. John, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 4:507.09
Funds taken from employer by debtor were nondischargeable due to embezzlement. Bankr. E.D. Va. After the debtor and two of his friends opened a franchise that was in the business of factoring real estate agent commissions, the debtor was hired as the franchise’s business manager. Because of the nature of the business, capital for the company was separated into two accounts, one for general business operations and one for conducting the franchise’s factoring business. The parties’ business plan called for the debtor to be paid $10,000 per month as salary as long as the initial venture capital existed, or as long as the company’s net profits could fund such a salary. The parties also agreed that any funds borrowed by the company would be used to purchase commission receivables and would not be used to pay any operating expenses. In contradiction of the agreement, the debtor withdrew funds from the factoring account and paid himself significantly more than had been agreed upon. The debtor also used company funds to pay his personal expenses. After the debtor filed for bankruptcy protection, the franchise and the lending company filed nondischargeability complaints against the debtor. In assessing whether the debt owed by the debtor was nondischargeable pursuant to section 523(a)(4), the court found that the funds had been entrusted to the debtor and that he had wrongfully misappropriated them. As such, the court found that the debtor’s acts constituted embezzlement and warranted denial of the discharge of indebtedness he owed to the franchise.KMK Factoring, L.L.C. v. McKnew (In re McKnew), 2001 Bankr. LEXIS 1628, 270 B.R. 593 (Bankr. E.D. Va. November 2, 2001) (St. John, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 4:523.11
Marital obligation was not excepted from debtor’s discharge. Bankr. D.S.C. The chapter 7 debtor’s former husband filed an adversary proceeding seeking the nondischargeability of certain marital obligations of the debtor. The prepetition divorce court order mandated that the debtor sell or refinance the marital home and pay her former spouse an amount equal to his equity in the home and other marital property. The debtor was subsequently unable to sell the home and her former husband moved into the house and continued to pay both mortgages. The former spouse argued that the debtor had the ability to pay the debt because she only worked weekends and should have been required to work additional hours during the week. The debtor asserted that her income was at least equal to that which she could receive if she worked during the week because she was paid a premium for working on the weekend. The bankruptcy court declared the debt dischargeable, holding that the debtor proved by a preponderance of the evidence that she did not have the ability to pay the debt in question from income or property not reasonably necessary for the maintenance or support of herself or her dependents. The court concluded that the debtor was not underemployed and was not required under the spirit of section 523(a)(15)(A) to work additional hours, because that would have been tantamount to requiring her to work overtime.Evans v. Evans (In re Evans), 2001 Bankr. LEXIS 1683, – B.R. – (Bankr. D.S.C. January 3, 2001) (Bishop, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 4:523.21
Court rejected chapter 7 debtor’s claim that stock option was not property of his estate. Bankr. W.D. Tex. The chapter 7 debtor claimed an exemption for an employee stock option under the section 522(d)(5) 'wild card' exemption. The debtor conceded that he had already used up the value of the wild card exemption on other assets, but argued that he could still claim the option as exempt because the value of the option, which had 'not vested' on the date of his bankruptcy filing, was zero. The trustee argued that based on her reading of the limited case law on the treatment of stock options in bankruptcy, she was entitled to 54.9 percent of the first quarter of the option, exercised the first year of the option agreement, and a declining percentage of the option for the following years through year four of the contract. The cases relied upon by the trustee provided for the allocation of a debtor’s stock options between the estate and the debtor, based on a formula that calculated the percentage of the option attributable to a debtor’s prepetition and postpetition work. The bankruptcy court sustained the trustee’s objection and rejected the debtor’s argument that the option was not property of his chapter 7 estate as of the date of his bankruptcy filing. The court concluded that the debtor’s argument was flawed because, as a matter of contract construction, his nonqualified stock option agreement made no provision for 'vesting,' and the option was property of the estate as of the date of filing under applicable state (Texas) law. The court also flatly rejected the reasoning of the cases that used 'vesting' as a basis for allocating property rights between the estate and the debtor. The court stated that the reasoning of these cases was flawed at its core, and confused the operation of a condition precedent (the debtor’s continued employment) with the operation of a condition subsequent (termination of employment).In re Dibiase, 2001 Bankr. LEXIS 1658, REPORTER='B.R.' PAGE='673'> 270 B.R. 673 (Bankr. W.D. Tex. November 6, 2001) (Clark, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 5:541.07
Court of Appeals denied nondebtor defendant’s motions for stay pending appeal of district court orders entered in cases that nondebtor removed from state court. 5th Cir. A nondebtor, as an entity in the business of either producing or making use of asbestos, was named as one of several defendants in 37 personal injury and wrongful death cases filed in state (Texas) courts. After a codefendant filed a chapter 11 petition, the nondebtor defendant removed all of the state court cases to federal court. The nondebtor defendant asserted that its contribution claim against the codefendant provided a basis for 'related to' federal jurisdiction under 28 U.S.C. § 1334(b). In response, the plaintiffs in the removed proceedings moved to dismiss the debtor defendant and to sever any remaining claims against the debtor. Additionally, the plaintiffs asked the district court to exercise mandatory or discretionary abstention or to remand for lack of subject matter jurisdiction or for equitable reasons. In each case, the district judge ruled for the plaintiff and either dismissed the debtor as a defendant or remanded the remainder of the case to state court, or both. The nondebtor defendant filed emergency motions to stay the district court’s orders pending its appeal. The Court of Appeals for the Fifth Circuit implemented temporary stays in each case to provide sufficient time to consider the debtor’s motions. The Court of Appeals then held that the nondebtor defendant did not have a valid claim for contribution against the debtor or its associated business upon which to predicate 'related to' jurisdiction under 28 U.S.C. § 1334(b), and failed to otherwise establish the elements necessary to obtain a discretionary stay pending appeal; thus, no formal stay pending appeal should issue. The court denied the nondebtor’s motion to stay the district court orders pending appeal, and dissolved the temporary stays.Arnold v. Garlock, Inc. 2001 U.S. App. LEXIS 27375, – F.3d – (5th Cir. December 28, 2001) (Parker, C.J.).
Collier on Bankruptcy, 15th Ed. Revised
Court of Appeals held that attorney’s failure to disclose additional billing was basis for disgorgement. 6th Cir. The debtors owned two jewelry stores, one of which was destroyed by fire in 1994. They were unable to collect insurance for the damage because a state (Ohio) court determined that they had intentionally caused the fire. Four days before that ruling, the debtors retained an attorney with regard to their financial condition, and two months later the debtors filed a chapter 7 petition. They attorney included a compensation statement with the filings, pursuant to section 329(a), disclosing that he had been paid a $1,500 retainer and would be billing $100 per hour. During the two months between his hiring and the petition filing, the attorney billed $5,420 in legal fees but did not disclose this fact in the statement. The debtors claimed they were unaware of these prepetition charges. The attorney represented that these fees were incurred in preparing the petition, preserving the appeal of the state court’s insurance judgment and handling other general matters. The United States trustee assigned to the debtor’s case decided that an appeal of the insurance ruling could be favorable. In order to finance the appeal, the debtors borrowed the cost of the appellate transcript from relatives, which funds were transferred to the attorney with the express understanding that the relatives were to be reimbursed in the event of any recovery in the appeal. The attorney eventually recorded billable hours for total fees of $15,100. Although settlement of the appeal resulted in some financial recovery, the attorney did not reimburse the relatives but instead applied those sums to his unpaid fees. In addition, the debtors paid $5,100 directly to the attorney, who did not disclose to the bankruptcy court these subsequent payments or the retention of the transcript fee. After the chapter 7 case was closed, the attorney filed suit against the debtors for the $3,212 balance of unpaid fees. The debtors responded by filing a motion to reopen their bankruptcy case. Meanwhile, one of the relatives sued the attorney in state court to recover the transcript fee. After the debtors moved to reopen, the attorney filed an application for fees in the amount of $15,100, disclosing the payments made and the transcript fee that had been applied. The court expressed uncertainty about its jurisdiction over the relative’s claim for recovery of the transcript funds, but ordered the attorney to disgorge $9,600, including the transcript funds. Those funds were allocated to the estate and the balance went to the debtors. The court also ordered a forfeiture of the unpaid balance that the attorney sought in the state court action, which had been removed to the bankruptcy court, on the basis of excessiveness. The attorney appealed. The district court affirmed, later modifying its order to reallocate the transcript funds to the debtors rather than to the estate. This second appeal followed. The attorney argued that the court had lacked jurisdiction over the transcript funds, that his due process rights had been violated, and that the court had abused its discretion in finding that the fees were excessive. The Court of Appeals for the Sixth Circuit affirmed, holding that (1) the bankruptcy court was empowered to order disgorgement of the transcript funds based on its jurisdiction over attorney’s fees charged in connection with the chapter 7 case; (2) due process had not been violated, because the court had put the attorney on notice that it intended to exercise jurisdiction over the full amount of the fees; (3) even if the court had not determined that the fees were excessive, the disgorgement would still be within its discretion pursuant to section 329(a), because the attorney’s disclosure was incomplete and no supplemental disclosures reflecting the additional billing were ever filed.Henderson v. Kisseberth (In re Kisseberth), 2001 U.S. App. LEXIS 26412, 273 F.3d 714 (6th Cir. October 24, 2001) (Gilman, C.J.).
Collier on Bankruptcy, 15th Ed. Revised 3:329.03
Mortgage lender was not entitled to attorney’s fees payable via chapter 13 plan. B.A.P. 6th Cir. The mortgage creditor commenced a foreclosure action against the debtor in state (Ohio) court. The debtor then filed a chapter 13 petition. The creditor filed a proof of claim that included the sum of $975 for attorney’s fees incurred in the foreclosure action. The debtor objected to that portion of the claim, and the creditor objected to confirmation of the debtor’s proposed plan, since it did not provide for payment of the attorney’s fees. The bankruptcy court held that the creditor was not entitled to the attorney’s fees, finding that (1) state law prohibited the court from awarding them; (2) the creditor failed to show that the loan was guaranteed by any United States agency; and (3) federal law did not preempt state law, which rendered illegal any provision requiring payment of attorney’s fees to the creditor. On appeal, the creditor filed a mortgage insurance certificate to demonstrate that the loan was insured by FHA, and thereby sought to invoke the federal regulation that allowed for payment of attorney’s fees, preempting state law. The B.A.P. for the Sixth Circuit affirmed, holding that the law and public policy of the state voided a contract provision for attorney’s fees between a professional lender and a borrower. The B.A.P. also disregarded the production of the insurance certificate, holding that because the bankruptcy court did not know whether the loan was federally insured, it could not determine whether any federal regulation applied to the loan. If no regulation applied, then no conflict existed between federal regulations and state law. Dollar Bank v. Petroff (In re Petroff), 2001 Bankr. LEXIS 1594, – B.R. – (B.A.P. 6th Cir. July 25, 2001) (Cook, B.A.P.J.).
Collier on Bankruptcy, 15th Ed. Revised 8:1322.09
Settlement proceeds not allocated to the debtor’s retirement fund were not exempt from debtor’s bankruptcy estate. 7th Cir. When the debtor filed for bankruptcy, one of the assets of his estate was a wrongful-discharge suit against his former employer. When the suit finally settled, the settlement proceeds were paid in cash to the trustee in bankruptcy. The debtor claimed that $40,000 of the settlement proceeds were exempt because the funds represented the value of pension contributions that the debtor’s employer would have made had the debtor’s employment continued. In arguing for the exemption, the debtor relied on a section of the Illinois Pension Code that prevented alienation of retirement plan funds if the plan was intended in good faith to qualify as a retirement plan. However, at the time of his bankruptcy, the debtor had no retirement plan with his employer and the settlement agreement contained no provisions regarding the allocation of the funds. In affirming the decisions of the bankruptcy court and the district court, the circuit court emphasized that the funds, in fact, had not been placed in or allocated toward a retirement fund and, thus, the debtor could not shield the funds from his creditors.In re Weinhoeft, 2001 U.S. App. LEXIS 27000, 275 F.3d 604 (7th Cir. December 21, 2001) (Easterbrook).
Collier on Bankruptcy, 15th Ed. Revised 4:522.10
Request for replacement security interest by secured creditors upheld. 7th Cir. The debtor, a newly formed steel corporation, never became fully operational before filing for chapter 11 protection. The debtor’s plan called for liquidating its assets, and the debtor sought financing to continue plant operations pending the sale of its business. Unable to secure financing elsewhere, the debtor sought financing from its secured creditors. Some of the debtor’s secured creditors agreed to provide postpetition financing conditioned on their receiving a superpriority interest. Prepetition secured creditors who chose not to provide postpetition financing did not oppose the postpetition financing, as long as they were given a replacement lien in any funds recovered by the debtor in any of its preference avoidance actions. After notice and a hearing, the bankruptcy court approved the debtor’s postpetition financing with supersecurity to the participating creditors, and granted the nonparticipating secured creditors a replacement security interest in the debtor’s preference-avoidance action funds to the extent necessary to maintain their financial position. After the debtor’s operating assets were sold for less than the amount of the secured claims, the nonparticipating secured creditors sought to invoke the provision allowing them first access to funds recovered in the debtor’s preference actions. Over the unsecured creditors’ objections, the bankruptcy court granted the motion for a substitute security interest in the preference funds, and the district court affirmed. On appeal, the Court of Appeals for the Seventh Circuit noted that the unsecured creditors had not sought a stay of the bankruptcy court’s financing order in order to appeal. The court also noted that they had not appealed the bankruptcy court’s financing order until after the sale of the debtor’s property. Since the unsecured creditors had not acted in a timely manner, they could not question whether the nonparticipating secured creditors were entitled to protection pursuant to section 364(d). The Court of Appeals then affirmed the lower courts’ rulings that the nonparticipating creditors were entitled to a replacement security interest in the funds obtained by the debtor’s preference avoidance actions. Official Comm. of Unsecured Creditors of Qualitech Steel Corp. v. Bank Group (In re Qualitech Steel Corp.), 2001 U.S. App. LEXIS 27001, – F.3d – (7th Cir. December 21, 2001) (Easterbrook, C.J.).
Collier on Bankruptcy, 15th Ed. Revised 3:364.05
The bankruptcy court’s denial of the debtor’s motion to amend his schedules was not an abuse of discretion. B.A.P. 8th Cir. The chapter 7 debtor appealed an order of the bankruptcy court that denied his motion to amend his list of property claimed as exempt. The creditors had obtained a substantial nondischargeable jury award for injuries suffered as a result of an accident caused by the debtor’s use of a motor vehicle while intoxicated, and they attempted to pursue a bad faith claim against the debtor’s liability insurer. The debtor entered into an agreement with the creditors providing that the bad faith claim against his insurer for its refusal to settle the creditor’s claim was nonexempt property and could be pursued by the trustee. After the trustee sought to expand the scope of his counsel’s employment to include the pursuit of a possible claim of legal malpractice against the debtor’s personal injury attorneys, the debtor filed a motion for leave to amend schedule C to exempt the legal malpractice claim. The debtor asserted that he wanted to exempt the claim for the sole purpose of preventing the creditors from suing his personal injury lawyers. The bankruptcy court found that the debtor did not propose to amend his schedules in good faith and denied the motion. The B.A.P. for the Eighth Circuit affirmed, holding that the bankruptcy court did not err in denying the debtor’s motion to amend his list of exempt property on the basis of bad faith. The stated purpose for seeking the exemption was not so that the debtor could pursue and benefit from it, but to allow him to abandon the asset in order to protect his personal injury attorneys from a potential claim. Because the exemption was contrary to the best interests of the debtor and his creditors, the motion to amend was not made in good faith.Kaelin v. Bassett (In re Kaelin), 2002 Bankr. LEXIS 3, 271 B.R. 316 (B.A.P. 8th Cir. January 2, 2002) (Dreher, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 9:1009.02
Debtor’s request for relief from an order entered three years earlier was properly denied. B.A.P. 8th Cir. The chapter 7 debtor appealed an order of the bankruptcy court denying her motion, which sought relief from a prior order approving a settlement. The settlement which the debtor sought to attack had been signed by the debtor in 1996 and was approved in 1998. Her case was closed in 1999 and she sought relief from the order two years later. The bankruptcy court found that the debtor’s motion was untimely, since it was not made within a reasonable time and lacking in merit. The B.A.P. for the Eighth Circuit affirmed, holding that because the debtor’s motion was nothing more than an attempt to collaterally attack a final order, the bankruptcy court did not err in denying the requested relief. The debtor’s allegations did not provide grounds for relief from a three-year-old order, but merely demonstrated that she regretted agreeing to the settlement and alleged that she received bad advice.Martin v. Sanford (In re Martin), 2002 Bankr. LEXIS 2, 271 B.R. 333 (B.A.P. 8th Cir. January 2, 2002) (Kressel, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 10:9024
Debtors were entitled to exemption in paycheck funds deposited in their bank account. Bankr. D. Or. When the debtors filed their chapter 7 petition, they had funds in their bank account that consisted entirely of deposits of disposable earnings that were directly traceable to the wages paid to the debtor husband. The debtors claimed an exemption of 75 percent of the funds based on exemptions provided under state (Oregon) statutes. The trustee objected, arguing that the statutory language of Oregon’s exemption law only allowed for exemption of those funds if they had been subject to garnishment. He further contended that, since the debtors’ bank account funds had not been the subject of a garnishment, the funds should not be exempted from the debtors’ estate. After noting that a bankruptcy trustee functions in effect as the ultimate garnishing creditor, the court rejected the trustee’s argument and overruled the trustee’s objection to the debtors’ claimed exemption.In re Platt, 2001 Bankr. LEXIS 1619, 270 B.R. 773 (Bankr. D. Or. December 7, 2001) (Dunn, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 4:522.04, .09
Purchasers alleging fraud did not have standing to challenge dischargeability. D. Kan. The debtors entered negotiations to sell a dairy product company to the purchasers. Meanwhile, the company sought industrial revenue bonds to continue operations. The company was reformed and, as a result, one of the debtors and the purchasers comprised its new membership. In order to secure the bond issue, the debtor and purchasers, along with other parties, gave personal guarantees of the bond debt. The purchasers bought the industrial revenue bonds and later alleged that they relied upon a financial statement of the company that had been prepared by the debtor, which failed to reflect a debt of approximately $176,700. They also alleged that the debtor, as CEO of the company, had concealed invoices of about $192,000. When the debtors filed a chapter 7 petition, the purchasers filed an adversary proceeding, alleging that the debtors committed fraud, and asking that the court declare that the debt arising from the invoices was nondischargeable. The debtors requested dismissal of the complaint, arguing that the purchasers did not have standing because they were not creditors. The bankruptcy court agreed with the debtors and dismissed the complaint, finding that the purchasers were unable to make any showing that they were personally liable for the invoices. This appeal followed. The district court affirmed, holding that in order to challenge the dischargeability of a debt resulting from fraud or misrepresentation under section 523(a)(2)(A), the creditor to whom such a debt was owed was the only party with standing to make that challenge.Coleman v. Miller (In re Miller), 2001 U.S. Dist. LEXIS 20534, 270 B.R. 303 (D. Kan. November 29, 2001) (Rogers, D.J.).
Collier on Bankruptcy, 15th Ed. Revised 4:523.08
Motion to extend time to file appeal was denied. Bankr. M.D. Fla. The creditors were 296 individuals who were the plaintiffs in an adversary proceeding. The creditors filed a motion, seeking an extension of time to file an appeal, on October 10, 2001, one day after the deadline. Their counsel asserted that excusable neglect had caused the failure to file a timely appeal, stating that he did not read the decision until October 6, 2001, and that the earliest he could have filed a notice was on October 10, 2001, because of a federal holiday. The court denied the motion, holding that the only 'excuse' presented by counsel for the untimely filing was related to the demands of his work schedule and that counsel failed to provide any explanation for failing to act when he had received the decision and still had time to take action. Specifically, the court found that counsel could have filed the notice of appeal on October 9, 2001, particularly if counsel chose to avail himself of after-hours, facsimile filing procedures. Cavazos v. Mid State Trust II (In re Hillsborough Holdings Corp.), 2001 Bankr. LEXIS 1590, 270 B.R. 306 (Bankr. M.D. Fla. December 10, 2001) (Williamson, B.J.).
Collier on Bankruptcy, 15th Ed. Revised 10:8002.10