Opinions

 

The NCMB offers a database of opinions for the years 2000 onward, listed by year and judge. For a more detailed search, enter the keyword or case number in the search box above.

In re Griffin 01/04/2017
(Judge Benjamin A. Kahn)

Debtor executed an agreement with a creditor to reaffirm a debt on a 2016 Chevrolet Equinox in the amount of $34,016.49. The vehicle had a retail value according to NADA of $20,550.00. The proposed monthly payments were to be approximately $600.00 of Debtor's combined monthly income of approximately $1,800.00. Debtor's schedules, including the proposed reaffirmation agreement, displayed a negative net monthly income of $337.20. Debtor provided no substantive explanation in support of reaffirmation regarding his ability to stay current on his obligations, aside from essentially "spending less." The requisite certification to be signed by counsel for debtors in support of reaffirmation agreements was signed in the name of counsel with whom Debtor testified he had never spoken. Having serious concerns about the affidavit signed by counsel, the Court ordered Debtor's counsel to appear and show cause as to why the declaration in support of the reaffirmation agreement should not be stricken, the reaffirmation agreement disapproved, and why sanctions should not be imposed for violation of Bankruptcy Rule 9011.

Reaffirmation, Published Yes
In re Daniel (16-80216) 12/09/2016
(Judge Lena M. James)

Prior to filing, the Debtor failed to pay his HOA dues, a foreclosure sale was completed on Debtor's residence, and forced sheriff's eviction was scheduled. The day before the scheduled eviction, the debtor purchased a new vehicle on credit in the morning to avoid a higher interest rate in bankruptcy, and then filed his Chapter 13 case later in the afternoon. Debtor then sought to use a fraudulent transfer adversary proceeding to claw back his house from the purchaser from the completed sale. Debtor was unable to confirm a plan due to bad faith, and the Trustee moved for dismissal for inability to confirm a plan. In granting the Motion, the court ruled that Debtor had abused the provisions, purpose, and spirit of the Bankruptcy Code, and no proposable plan could overcome a lack of eligibility for plan confirmation due to those abuses.

Dismissal, Published No

Debtors sought to reopen their Chapter 13 after completing their plan and receiving their discharge almost three years prior, to challenge the validity of their mortgagor's Deed of Trust. During the case, the Debtors never objected to the mortgagor's proof of claim, the mortgage was paid through the plan, and the Debtors relied on the mortgage to lien strip a junior mortgage. Since the plan was closed, the mortgagor has made several attempts at foreclosure, leading to substantial state and federal litigation and administrative actions. The court ruled that the mortgagor would be prejudiced by reopening the case, that laches applied in precluding the reopening of the case, and that state court was the appropriate forum to address the Debtors' claims. Motion denied.

Reopenings, Published No

The Court denied the Bankruptcy Administrator's request to dismiss case with a permanent bar from refiling.  The Court nevertheless found that section 349 grants authority to bar a refiling for a period exceeding 180 days.  In light of the Debtor's history as a serial filer, her violation of prior orders of the Court, and her submission of false evidence to the Court (forged credit counseling certificate), the Court dismissed the Debtor's case with a one year bar from refiling a Chapter 13 petition.

Dismissal, Published No
In re Lev 12/01/2016
(Judge Benjamin A. Kahn)

Motion by trustee sought turnover of certain severance payments the Debtor had received and was continuing to receive post-petition.  The Debtor received these payments as part of a severance agreement entered into pre-petition.  Debtor argued that the payments received post-petition should not be property of the estate and were akin to wages or salary that could be excluded from the estate pursuant to Section 541(a)(6).  The Court found that the severance payments were property of the estate because they were sufficiently rooted in the pre-petition past and that the services performed to become entitled to these payments had been substantially, if not fully, rendered pre-petition.  Debtor was therefore ordered to turnover any severance proceeds to the trustee.

Property of the Estate, Published No

Debtor sought reconsideration of the order dismissing her Chapter 13 case with prejudice and requested the court to set aside dismissal or amend the order to remove the 180-day bar from refiling. The court found that the Debtor did not satisfy the requirements of Rule 60(b)(6), and did not establish grounds for the Plan to be modified to remove the 180 day bar.  Concerns regarding a mortgage and escrow payment should have been met with a claim objection rather than a decision to cease plan payments. Motion Denied.

Reconsider/Amend, Published No

The Court found that an oversecured creditor was entitled to pre- and post-petition interest at the contract default rate.  With respect to post-petition interest, the Court found that the Trustee had failed to rebut the presumption that the contract rate should apply.  The Court also found that adequate protection payments made by the debtor while the case was administratively consolidated should be credited to debt at issue.  To determine the appropriateness of a request for post-petition attorneys' fees, the court looked to the underlying loan documents.

Claims, Published No

Plaintiff/Trustee filed two motions in limine to exclude any evidence at trial that the Defendant failed to disclose as required in discovery. Declining to impose a harsher or lesser sanction for Defendant's failure to respond to discovery as required by the rules of civil procedure, the Court granted Plaintiff's motions pursuant to Rule 37 and determined that it would exclude any evidence of solvency or valuation offered by the Defendant at trial to the extent such evidence contradicted or supplemented Debtor's schedules.

Discovery, Published No

Former business associate of the Debtor obtained a default judgment against the Debtor in Connecticut state court prior to the petition date, and filed an adversary proceeding to assert nondischargeability pursuant 523(a)(2)(A) and 523(a)(4). The Debtor failed to answer or otherwise plead, and after re-issuing summons, the plaintiff obtained a default judgment in the proceeding. The Debtor motioned to vacate the default judgment and entry of default pursuant to Rule 60(b)(4) and (6) on the grounds that the Debtor was never served despite plaintiff's attempts. The Court ruled that the Debtor's Motion was timely; that the Debtor could assert meritorious defenses, and that the Connecticut judgment was did not collaterally estop the Debtor from opposing the claims in the current proceeding; that no party was unfairly prejudiced by vacating the default judgment; that the Debtor was never properly served pursuant to Bankruptcy Rule 7004; and that entry of default could be set aside.

Default Judgment, Published Yes

Court reconsidered interlocutory order, sua sponte, to clarify that Pricing Confirmation Documents, not Sales Settlement Sheets, constituted forward contracts under section 546(e)

Preferences, Published No

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