OpinionsCo-debtor stay of § 1301 did not serve to stay enforcement of the debt because it was not a debt "of the debtor." Further, the stay did not protect the non-filing spouse from collection activities stemming from her own personal liability. Stanfield v. First Midwest Bank (In re Daniel and Sharon Stanfield) (June 2009) -- Judge J.E. Shapiro Debtors commenced an adversary proceeding seeking a determination that the Bank's mortgage was void because the debtor-husband did not sign the mortgage on a homestead that was collateral for a business loan. Wis. Stats. § 706.02 states that both married persons must join in a conveyance. The bank responded that the mortgage it held was valid due to the “substitute requirements” contained in the statute, which allow extrinsic documents to prove the validity of a mortgage so long as there is intent on the part of the non-signing spouse to mortgage his interest in the property. The court found that no such intent was present. The court also rejected the bank's argument that it would be inequitable to invalidate the mortgage, noting that the bank is a sophisticated entity and has the obligation to check the requirements of Wisconsin law. In re Nelsen, 404 B.R. 892 (April 2009) -- Judge S.V. Kelley Debtor's age and downturn in economy did not constitute "exceptional circumstances" to justify discharge of student loan. In re Timothy & LeAnn Truss, Case No. 08-21626 Published: In re Truss, 404 B.R. 329 (April 2009) -- Judge M.D. McGarity The chapter 13 trustee opposed confirmation of plan which treated student loan creditor as separately classified creditor, arguing it unfairly discriminated against the other unsecured creditors. The court overruled the trustee's objection, finding the specific provisions of sec. 1322(b)(5) for the cure of arrearages and maintenance of regular payments on long term indebtedness applied and superceded the general unfair discrimination provisions of sec. 1322(b)(1). Debtor v. Creative Loans, LLC, Et Al (In re Eradean Walker) (April 2009) -- Judge J.E. Shapiro The debtor, after filing a bankruptcy petition under chapter 13 and without obtaining court approval, entered into agreements, in which she believed she was refinancing the mortgages on her two residential properties. In reality, it was a scam and the agreements transferred her ownership interest in both properties, giving her only the right to occupy the properties as a tenant for a period of 1 year, with no option to re-purchase. The debtor, an elderly widow with a 9th grade education, commenced an adversary proceeding against defendants, seeking the return of her ownership interest in the properties. The court concluded that the debtor never understood what she was signing and found the transactions to have violated § 362(a)(3), as acts to obtain possession of property of the estate, and § 549(a), as a post-petition transfer not authorized by the court. In re Dionne, 402 B.R. 883 (April 2009) -- Judge S.V. Kelley In calculating disposable income, Chapter 13 debtors could deduct secured payments that were contractually due on the date of the petition, even though they intended to surrender the collateral. In re Landry, No. 08-C-947 (April 2009) -- Judge S.V. Kelley District Court opinion affirming the decision of the bankruptcy court. Credit card debt was dischargeable, given that creditor failed to prove fraud or false representation on the part of the debtor. In Re Gwaltney, 07-29919 (March 2009) -- Judge P. Pepper Debtor who obtained homestead property in violation of a due-on-sale clause does not impermissibly modify creditor's rights in violation of 11 U.S.C. section 1322(b)(2) in proposing to pay the arrearages on the mortgage debt through a Chapter 13 plan. In re Thongta, 401 B.R. 363 (March 2009) -- Judge S.V. Kelley Creditor's pursuit of Chapter 13 debtor's non-debtor spouse for auto accident claim violated stay when creditor docketed judgment that became a lien on property of the estate. In re Robert & Sandra Ecker, Case No. 07-29439, Fischer Construction, et al. v. Robert Ecker, Adv. No. 08-2059 Published: In re Ecker, 400 B.R. 669 (January 2009) -- Judge M.D. McGarity The plaintiffs in theft by contractor cause of action were entitled to judgment of nondischargeability under sec. 523(a)(4). The court found the services performed for the debtor's construction company fell within the provisions of both the old and new versions of Wis. Stat. sec. 779.02(5). |