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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, after subtraction of a flat fee, must be turned over to Trustee.
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:Â Jan Hamilton, Trustee
2016 APPLICATIONS BY CREDITORS
In re Loy, Case No. 07-41333
December 2007, Judge Karlin
This case contains a discussion of the various issues that are to be considered by court and counsel in the context of a 2016 application by a creditor. This same issues present themselves in proofs of claim issues pertaining to attorney fees.
Digest by:Â Jan Hamilton, Trustee
109(h) CREDIT COUNSELING NOT OBTAINED WITHIN 180 DAYS IS FATAL
In re Gaddis, Case No. 07-40476
June 2007, Judge Karlin
Chapter 7 case dismissed for failure to comply with 109(h), in that the credit counseling was not obtained within 180 days of the date of filing. No statutory exception was alleged. Debtor is simply not eligible to obtain title 11 relief if 109(h) is not complied with.
Digest by:Â Jan Hamilton, Trustee
FAILURE TO OBTAIN CREDIT COUNSELING—EXIGENT
CIRCUMSTANCES
In re Thomas, Case No. 06-10242
March 2006, Judge Nugent
Pro se case dismissed for failure to obtain credit counseling. Certificate of exigent circumstances which recites pending foreclosure insufficient, case dismissed. 109(h)(1).
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 by Jan Hamilton, Trustee.
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.
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, and Judge Nugent in In Re Hoss, 08-10365, and In re Arroyo, No. 07-12779. It may also be inconsistent with Judge Karlin in the bankruptcy court decision in Lanning.
Lanning has been appealed by the bankruptcy trustee and is currently pending in the U.S. Supreme Court. Oral argument is expected in March 2010.
Digest by:Â Jan Hamilton, Trustee
HOW EXACTLY DO WE DEDUCT ‘MARITAL ADJUSTMENTS’?
In re Dugan, Case No. 07-40899
August, 2008, Judge Karlin
Chapter 13 Trustee objections to debtor’s attempts to include a marital adjustment on Lines 13
and 19 for a non-filing spouse and a deduction for transportation expenses. Court
allowed, in theory, the marital deduction, but found it had not been supported with any
detail. Debtor was given time to provide documentation. Digest by Jan Hamilton Trustee.
A DEBTOR MUST USE THE STRIPPED/CRAMMED DOWN AMOUNT FOR
PURPOSES OF CURRENT MONTHLY INCOME (CMI) ON LINE 47 OF B22C
In re Hoss, Case No. 08-10365
In re Arroyo, Case No. 07-12779
August 2008, Judge Nugent
In above median income (AMI) cases, debtors sought to deduct contract payments, rather than the stripped off/crammed down amounts. The Court sustained the Chapter 13 Trustee’s objection to confirmation. This is a good analysis of the status of the law, as of the date of the issuance of the opinion. Judge Nugent applied the reasoning of Lanning, but on the expense side, rather than the income side, of the equation. He also disagreed with Judge Karlin’s decision in Allen, which would have reached an opposite result.
401(K) DISBURSEMENT PRE PETITION IS CURRENT MONTHLY INCOME BUT NOT PROJECTED DISPOSBLE INCOME
In re DeThample, Case No 07-11829
July 5, 2008, Judge Nugent
Under 1325(b)(1)(B), a singular, one time disbursement is “income†for purposes of
determining Current Monthly Income (CMI), but followed Judge Karlin’s Lanning decision in determining what constituted Projected Disposable Income (PDI). This is a good read of the status of the law in
this area of its date of issuance, according to a digest of the case by Jan Hamilton, Trustee.
MORE LINE BY LINES OF B22C
In re Hays, Case No 07-41285
April, 2008, Judge Karlin
13 Trustee objections to debtor’s attempts to claim living expenses for non-dependent debtors as well as for secured debt on a timeshare. Court followed Law and disallowed adult child expenses. The Court allowed the debt on the timeshare to be deducted. The decision is very thorough and is a recommended read.
Digest by:Â Jan Hamilton, Trustee
B22C CASE, LINE BY LINE…
In re Law, Case No. 07-40863
April 2008, Judge Karlin
Court sustained 13 Trustee’s objection to confirmation as debtor included: adult son in household size, tax levy on Line 33 and duplicated it on Line 49 and unencumbered vehicle on line 28. The decision is a good analysis of the status of B22C case law as of the date of the decision.
Digest by:Â Jan Hamilton, Trustee
OK FOR CHAPTER 13 DEBTORS TO TAKE B22C DEDUCTION FOR FULL PAYMENT
RATHER THAN CRAM DOWN AMOUNT
In re Allen, Case No. 07-41327
February 2008, Judge Karlin
Objected to confirmation on the basis that Debtor’s means test calculations erroneously included the full amount of the pre-petition car payments rather than the reduced or crammed-down amounts. In analyzing 1325(b)(1), the Court found that 707(b)(2)(A)(iii) applies and that Debtors need not only list the amounts they will actually pay through the plan. There is a split of authority on this important issue. This case was not appealed so no appellate decision is in the immediate future for the 10th Circuit. See the Hoss and Arroyo decision by Judge Nugent for the opposite result.
Digest by:Â Jan Hamilton, Trustee
CAR DEDUCTIONS ALLOWED EVEN THOUGH NO LIEN
In re Thomas, Case No 06-21108
In re Camacho, Case No. 06-20729
October 2007, Judge Berger
UST Motion To Dismiss under 707(b) for presumed abuse based upon totality of circumstances was denied. The Court concluded that the debtors are entitled to claim vehicle ownership for expenses, even though debtors did not have liens or leases on the vehicles. (See In Re Howell, 06-11652 for opposing view from Judge Nugent.). Judge Lungstrum subsequently reversed and remanded Thomas, 382 B.R. 793 (D. Kan. 2008).
Digest by:Â Jan Hamilton, Trustee
PLAN MAY NOT PROPOSE EARLY PAYOFF BUT 1329 MAY ALLOW POST
CONFIRMATION MODIFICATION
In re Kidd, et al, Case No. 06-41232
August 2007, Judge Karlin
The Court recognized changes in 1324(b)(4) and held that debtors may not propose an early pay off but may obtain the same in the right circumstances via 1329.
Digest by:Â Jan Hamilton, Trustee
