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…
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Tag Archive: Judge Somers
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…
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…
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…
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…
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,…
Surrendered Collateral Doesn’t Count on Bankruptcy Means Test?
22C EXPENSE NOT PERMITTED ON SURRENDERED COLLATERAL In re Miller, Case No. 07-22927 December 2008, Judge Somers This decision ties to the concepts enunciated in the various Lanning decisions, i.e., to what extent may post petition changes in circumstances be considered in determining what is to be paid by an above the line debtor. Digest…
Income and Expenses After Bankruptcy Change Chapter 13 Means Test
REITERATION THAT INCOME AND EXPENSE CHANGES MAY BE CONSIDERED POST PETITION IN 13. In re Tholl, Case No. 07-22677 December 2008, Judge Somers Court reviewed and followed the Melvin decision regarding changes of income and expenses after the filing of the chapter 13 bankruptcy but prior to confirmation of the chapter 13 bankruptcy plan.
Deviation from Bankruptcy Means Test for Expenses, Too
LANNING EXTENDED TO EXPENSE SIDE In re Melvin, Case No. 07-22352 December 2008 Judge Somers Court extended the Lanning analysis and found there was no binding precedent on the issue of whether actual of 22C expenses were mandated and found that 22C expenses may be deviated from also. This is consistent with dicta in Lanning,…
How Long Does Chapter 13 Last if My Income is Below Median?
BELOW MEDIAN MUST RUN 36 MONTHS, B22C IS TEMPORAL In re Daniel, Case No. 06-20714 December 2006, Judge Somers In a Below Median case, debtor’s income is determined by B22C and expenses by Schedule J and must “run” for 36 months (The Applicable Commitment Period) or pay 100% of all allowed unsecured claims. B22C is…
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