Home Archives for Judge Berger

Bankruptcy Dismissed for No Tax Returns

Posted on January 18, 2010 Written by

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.

Filed Under: Court Rulings, Filing Bankruptcy Tagged: , , , , , , , ,

Negative Equity

Posted on January 17, 2010 Written by

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.

Filed Under: Chapter 13, Court Rulings, Vehicles Tagged: , , , , , , , , , , , ,

Creditor Gets Deficiency Claim After Collateral Surrender

Posted on January 16, 2010 Written by

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…]

Filed Under: Chapter 13, Court Rulings, Vehicles Tagged: , , , , , , , , , , , , ,

910 Car Claims Get Interest

Posted on January 15, 2010 Written by

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…]

Filed Under: Chapter 13, Court Rulings, Vehicles Tagged: , , , , , , , , , , , , , , , , , , , , , ,

What Is Personal Use of Vehicle for 910 Claim?

Posted on January 13, 2010 Written by

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”.

Filed Under: Chapter 13, Court Rulings, Vehicles Tagged: , , , , , , , , , ,

Who Gets Paid Out of Chapter 13 Pool?

Posted on December 18, 2009 Written by

WHAT GETS PAID OUT OF THE B22C POOL?
In re Puetz, Case No 0620756
June 2007, Judge Berger

B22C presumptively shows debtors projected disposable income, schedules I and J no longer determine plan payment for above median debtor, but, rather, demonstrate feasibility unless there are special circumstances justifying adjustments to B22C. This is not the plan payment but is what goes to “unsecured creditors”, which are general unsecured claims, anticipated attorney fees but not Chapter 13 Trustee fees or priority claims as these are already netted out in the B22C calculations. Contributions and 401(k) loan repayments are not included in calculating disposable income.

Digest by:  Jan Hamilton, Trustee

Filed Under: Chapter 13, Court Rulings, Means Test Tagged: , , , , , , , , , ,

My Income Is Above Median, How Long Will My Chapter 13 Plan Run?

Posted on December 17, 2009 Written by

B22C CONTROLS, OR IF DEBTOR USES I AND J, MUST HAVE A FIVE YEAR PLAN
In re Beckerle, Case No.06-20572
April 2007, Judge Berger

ACP is a time frame of either 3 or 5 years and not a multiplier. B22C is a starting place in determining projected disposable income to be received in the 5-year period. A negative number on B22C indicates the plan is not feasible. Debtor can’t have it both ways. If the debtor relies upon I and J to prove feasibility, then the debtor must commit to a 5-year program.

Digest by:  Jan Hamilton, Trustee

Filed Under: Chapter 13, Court Rulings, Filing Bankruptcy Tagged: , , , , , , , , , , ,

13 Plan Length Figured as of Bankruptcy Filing Date

Posted on December 17, 2009 Written by

ACP IS FIXED BUT PLAN PAYMENT IS NOT
In re Anderson, Case No. 06-20664
April 2007, Judge Berger

Applicable Commitment Period is determined as of the date of filing, but the amount of the plan payment is determined as of the effective date of the plan under 1325(b). Again, the Court noted that the trustee is not required to object.

Digest by:  Jan Hamilton, Trustee

Filed Under: Chapter 13, Court Rulings Tagged: , , , , , , ,

Chapter 13 Payment Amount Can Change, But Not Plan Length

Posted on December 16, 2009 Written by

APPLICABLE COMMITMENT PERIOD IS FIXED AS DATE OF FILING
In re Moore, Case No. 06-20031
April 2007, Judge Berger

Debtors’ circumstances changed post petition pre confirmation. Although this does not change the ACP, it can change the amount to be paid to creditors. The ACP is locked in as of the date of filing. The Court noted that 1325(b)(1) only comes into play if the trustee objects, and the trustee has the discretion to object or not.

Digest by:  Jan Hamilton, Trustee

Filed Under: Chapter 13, Court Rulings Tagged: , , , , , , , ,

My Income Is Below Median, How Long Do I Pay My Chapter 13 Payments?

Posted on December 13, 2009 Written by
BELOW THE LINE DEBTOR MUST RUN 36 MONTHS
In re Pohl, Case No. 06-41236
May 2007, Judge Karlin
The Court determined that a below the line debtor’s case must “run” 36 months, unless it
pays off all claims in full, citing 1325(b)(4). Below the line disposable income
determined by Schedule J, since the bottom half of B22C does not get filled out by a BMI
debtor. ACP is temporal and not a multiplier. Judge Karlin cited, with approval, Judge
Somers’ decision, In re Daniel and Judge Berger’s decisions, In re Beckerle and In re
Anderson on the ACP issue.

BELOW THE LINE DEBTOR MUST RUN 36 MONTHS
In re Pohl, Case No. 06-41236
May 2007, Judge Karlin

The Court determined that a below the line debtor’s case must “run” 36 months, unless it pays off all claims in full, citing 1325(b)(4). Below the line disposable income determined by Schedule J, since the bottom half of B22C does not get filled out by a BMI debtor. ACP is temporal and not a multiplier. Judge Karlin cited, with approval, Judge Somers’ decision, In re Daniel and Judge Berger’s decisions, In re Beckerle and In re Anderson on the ACP issue.

Source:  Jan Hamilton, Trustee

Filed Under: Chapter 13, Court Rulings, Means Test Tagged: , , , , , , , , , , , , , , , ,
Verified by MonsterInsights