Unpaid Tuition Dischargeable

The failure to pay tuition did not result in nondischargeable debt. So said the court in In re Oliver, No. 12-4185 (Bankr. S.D. Ind. Oct. 8, 2013). The college was ordered to release the former student’s transcript in a bankruptcy court contempt proceeding.

To read more about this case and find a copy of the opinion go to unpaid tuition balance not student loan.
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Bankruptcy Dismissed for No Tax Returns

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 reasoned that he had no other choice.

FAILURE TO FILE RETURNS CAN BE FIXED WITH 105
In re Novello, Case No. 06-21029
August 2007, Judge Berger

IRS motion to dismiss for failure to file tax returns under 1308 was denied because the tax returns are now filed. Alternative relief sought was to reopen the 341 meeting, which the Court granted. Debtors Motion to Ratify under 1325(a)(9) was granted. Although dismissal is mandatory, the debtor can ask for extensions under 1308(b) which is included by reference in 1307(e). The 341 was reopened under 105.

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 of the PMSI. Good discussion of the transformation rule and negative equity.

Digest by:  Jan Hamilton, Trustee

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 because the plan had been confirmed and the elements of 1329 had not been met.

NEGATIVE EQUITY ROLLED INTO LOAN IS NOT PMSI
In re Padgett, Case No. 07-41284
May, 2008 Judge Karlin

Car creditor objected to debtor’s attempt to avoid paying the negative equity in a 910 case. After analyzing the UCC as it exists in Kansas, the Court confirmed its opinion in Vega, but disagreed with Judge Nugent’s decision in Ford.

NEGATIVE EQUITY IS PMSI FOR PURPOSES OF 910 CAR LOANS
In re Ford, Case No. 07-11561
May 2008, Judge Nugent

Court held that negative equity in a trade in vehicle, financed by lender, is a part of the price of the collateral and constitutes value given to enable debtors to acquire collateral. The entire balance was found to be a “910” obligation under the hanging paragraph of 1325.

NEGATIVE EQUITY IS NOT PMSI
In re Kellerman, Case No. 06-22028
August 2007, Judge Berger

Pre petition payments are to allocated between refinanced negative equity and the PMSI portion of a 910 vehicle claim under 1325(a)’s hanging paragraph by reference to KSA 84-9-103(c). Under Kansas law, PMSI is the purchase price, not negative equity. Start with the vehicle’s cash purchase price and the apply pre petition payments in accordance with the parties written agreement. If no agreement or other manifested intent, the prepetition payments are applied first to unsecured negative equity and then to PMSI.

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. The Court adopted a “significant and material” approach and found that the vehicles were used “significantly” for personal purposes in finding that the vehicles were subject to the 910 paragraph.

Digest by:  Jan Hamilton, Trustee

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. [Read more…]

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 in good faith, citing Young and Flygare, and granted stay relief to the creditor.

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 1329 would have to be used. Court followed 10th Cir. In re Jones, 530 F3d 1284, (10th Cir. 2008). Debtor must pay interest. In re Ballard, 526 F3d 634 (10th Cir. 2008) holds that deficiency must be provided for if vehicle is surrendered. [Read more…]

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 of this nature may be appropriate.

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 for an above the line debtor with $400.00 allowed as additional fees for 363(c) motions, without prejudice to obtaining additional fees by way of a formal application or narrative explanation. Further, presumptive fees for motions ($150.00 plus postage) and responses ($200.00 plus postage) are also established.

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. Creditor sought the Till rate.  Judge Karlin restated her position from Vega. Additionally, she found that these facts supported “personal” use and not a “business” use. Further, Till applies, in order to provide the creditor with the present value of its claim.

“PERSONAL USE” NOT THE SAME AS “PERSONAL, FAMILY OR
HOUSEHOLD”
In re Humphrey, Case No. 06-20783
October 2006, Judge Berger

Debtors attempted to cram down a 910 motor vehicle. The Court determined that “personal use” is not the same as “personal, family or household use” used elsewhere in the code. A vehicle acquired for the debtor’s spouse is not subject to 1325(a)(5)(B) and 506 applies. Cramdown allowed.

CAR PURCHASED FOR COMMON LAW WIFE IS PERSONAL, NOT BUSINESS
In re Bolze, Case No. 06-40036
August 2006, Judge Karlin

Creditor objected to plan that sought to escape the 910 hanging paragraph. The Court restated the rules established in Vega and Lowder. Debtor attempted to distinguish amongst “household”, “family” or “personal”. Basically, the Court said “personal” is not “business” and vice versa. Therefore, a car purchased for Mr. Bolze’s common law wife was “personal”.

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 definition of PMSI.

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

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