DISMISSAL FOR FAILURE TO FILE RETURNS MANDATORY UPON
MOTION
In re McCluney, Case No. 06-21175
June 2007, Judge Somers
The Court sustained a motion to dismiss by the IRS for failure to file pre petition tax returns as required under the new 1308 provision. This is not an “automatic dismissal” provision, but once the motion was filed, Judge Somers [...]
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Category Archives: Court Rulings
Bankruptcy Dismissed for No Tax Returns
Gap Insurance, Warranty Not PMSI
“TRANSFORMATION” RULE AND NEGATIVE EQUITY DISCUSSED; GAP
INSURANCE, SERVICE CONTRACT NOT PART OF COLLATERAL
In re Miller, Case No 08-40935
December 2008, Judge Karlin
Debtor sought, and was permitted, to pay only the cost of the car, rather than cost plus other charges. Court did not rule on whether certain fees not adequately addressed by either side were part [...]
Negative Equity
NEGATIVE EQUITY ISSUE NOT RULED UPON IN 1327 CASE
In re Kuhasz, Case No. 07-20282
November 2008, Judge Somers
Court noted split within the district. Judge Karlin excluded negative equity from PMSI claim in In re Padgett, 389 BR 203, while Judge Nugent included it. In re Ford 387 BR 14827 but declined to rule on the issue [...]
What Is Business Use of Vehicle?
BUSINESS USE MUST BE “SIGNIFICANT” TO ESCAPE 910 FULL PAYMENT
In re Wilson, Case No. 06-40637
December 2006, Judge Karlin
Debtor sought to avoid the full payment requirement of the 910 car loan provision. Debtors were using the vehicles in question for personal and business use, as they served as foster parents. The court followed Lowder and Bolze. [...]
Creditor Gets Deficiency Claim After Collateral Surrender
10th CIRCUIT ‘RULES’
In re Rule, Case No. 06-22145
July, 2008, Judge Berger
Judge Berger followed In re Ballard 526 F. 3d 634 (10th Cir. 2008), in finding that a 910 car loan may have a deficiency balance after sale of the vehicle.
Cramdown of Daughter’s Car Bad Faith
CAR OWNED BY CHILD CAN BE CRAMMED DOWN BUT NOT GOOD FAITH
In re Lewis, Case No. 06-20027
August 2006, Judge Somers
The vehicle the debtors proposed to cramdown in the plan was found to belong to the daughter, even though titled to debtors. Daughter made the payments. However, the Court found that the plan was not filed [...]
910 Car Claims Get Interest
SURRENDER IN FULL SATISFACTION OF 910 AND PAYMENT IN FULL
WITH NOT INTEREST NOT ALLOWED
In re McClay, Case No. 07-20106
October 2008, Judge Berger
910 vehicle case. Plan provided for payment of full debt with no interest and option to surrender in full satisfaction. This was found to be an attempt to modify prospectively and Court opined that [...]
How Much Is My Attorney Paid to Defend Dismissal?
WICHITA NO LOOK FEE FOR DEFENDING MOTIONS TO DISMISS MAY BE $350.00
In re Kiser, Case No. 06-11453
January 2009, Judge Nugent
Debtor filed a motion to modify plan to increase monthly payment and to pay attorney fees of $500.00. Court allowed $400.00. Judge Nugent quoted Judge Karlin in Beck in supporting its conclusion that a presumptive fee [...]
How Much are Chapter 13 Bankruptcy Fees in Topeka?
13 ATTORNEY FEES IN TOPEKA
In re Beck, Case No. 06-40774
February 2007, Judge Karlin
This case should be read in conjunction with the later rendered Professional Fee and Expense Guidelines in Bankruptcy Cases of Judge Karlin. Based upon 330, the evidence and the Johnson factors, the presumptive fee for below the line debtors is $2800 and $3300 [...]
How Much Are Chapter 13 Bankruptcy Fees in Wichita?
13 ATTORNEY FEES IN WICHITA
In re Mayer, Case No. 06-10013
October 2006, Judge Nugent
This is Judge Nugent’s fee decision. The “presumptive” fee in Wichita is $2500, without prejudice to fee applications, based upon the language of 330, testimony and the various factors recited.
Digest by: Jan Hamilton, Trustee
What Is Personal Use of Vehicle for 910 Claim?
PERSONAL VS. BUSINESS USE FOR 910 CAR CLAIMS
In re Lowder, Case No. 05-44802
August 2006, Judge Karlin
Creditor objected to confirmation as debtor sought to avoid the 910 car loan restriction by arguing that she used the car to get to and from work and, therefore, not “personal”. Debtor contended that Toyota is entitled to no interest. [...]
Is Force Placed Insurance Part of 910 Vehicle Claim?
COST OF FORCED PLACED INSURANCE IS PART OF PMSI FOR 910 VEHICLE
In re Townsend, Case No 07-20956
April 2008, Judge Somers
Noting that BAPCPA does not define PMSI but that the phrase is a term of art under the UCC, the Court found that under Missouri law, 9-103 governs and forced place insurance falls within the Missouri [...]
Reconversion Fails, No Discharge Bankruptcy Dismissed
CONVERSION CONFUSION
In re Fry, Case No. 04-16887
October 2008 Judge Nugent
Debtor converted from 13 to 7 and then learned she was not eligible for a 7 and attempted to converted back to 13. Case dismissed as an “end run” around 7 discharge.
Digest by: Jan Hamilton, Trustee
What If Debtor Destroys Collateral?
INTENTIONAL DESTRUCTION OF COLLATERAL?
In re Murrow, Case No. 07-41061
March 2008, Judge Karlin
Creditor was give an additional time to amend its complaint. Debtor took the 5th but the intimation of the discussion in the decision is that debtor likely intentionally destroyed the vehicle but insufficient facts were alleged.
Digest by: Jan Hamilton, Trustee
No Counseling for Involuntary Bankruptcy
INVOLUNTARY DEBTOR NOT REQUIRED TO OBTAIN PRE PETITION
COUNSELING
In re Sims, Case No. 08-41668
January 2009, Judge Karlin
109(h) pre petition counseling requirements do not apply to an involuntary debtor.
Digest by: Jan Hamilton, Trustee
Tax Refunds to Attorney Fees then Bankruptcy Trustee
TAX REFUND ASSIGNMENTS AND CHAPTER 7
In re: Sydmark, Case No. 06-41218
In re: Black-Watkins, Case No. 05-42439
June, 2008, Judge Karlin
Lamie v. US and Redmond v. Lentz, Hodes and Wagers redux. Assignment of a tax refund does not divest the estate of an interest in them, even though UCC1 was filed. In a Chapter 7 case, refunds, [...]
Debtor May Be Converted to 7 with No Discharge
DEBTORS MAY BE CONVERTED TO 7 EVEN THOUGH NOT ELIGIBLE FOR
7 DISCHARGE
In re Rogers, Case No. 08-21487
January 2009, Judge Somers
In a case in which assets may be liquidated, a 13 may be converted to a 7 even though debtors may not be eligible for a 7 discharge.
Digest by: Jan Hamilton, Trustee
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Jill Michaux & Mark Neis
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Bankruptcy Law Office
Neis & Michaux, P.A.
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