OpinionsAnalyzing CERCLA's provisions for the cost of recovery and removal of environmental hazards at a contaminated site, there was no clear proof that the EPA viewed the site as an imminent threat, and the Court valued a claim filed by a co-debtor on behalf of the EPA in the amount of $75,000. In re Erma L. Averhart (July 2007) -- Judge J.E. Shapiro The court held that where a secured creditor files a proof of claim before confirmation, which is at odds with the debtor's plan as to rate of interest, and the secured creditor fails to object to confirmation, the interest rate in the confirmed plan is controlling. The court also decided that the secured creditor was not denied due process. The argument raised by the secured creditor that established past practice in the Eastern District of Wisconsin required finding that the confirmed plan must yield to the proof of claim was rejected. The court stated that the established past practice was not as firmly entrenched as secured creditor suggested. King, Trustee -v- Ernie von Schledorn, Inc. (In re McAlister) (July 2007) -- Judge J.E. Shapiro The court found that the refinancing lender did not perfect its security interest under Wis. Stat. § 342.19. The fact that the original certificate of title still had the lien of the fully paid original lender is no defense. The refinancing lender obtained a release from the original lender, and there was no assignment from the original lender to the refinancing lender. In re Vincent & Paquita Young, Case No. 03-31975 Published: In re Young, 370 B.R. 799 (July 2007) -- Judge M.D. McGarity Chapter 13 debtors sought to modify their confirmed plan, after experiencing significant medical expenses and a reduction in the debtor-husband's pay. The court sustained the trustee's objection to the modification, in part. The chapter 13 debtors were not allowed to retroactively modify their confirmed plan to retain one-half of their tax refunds previously committed to their creditors. Because the tax refunds were necessary for the maintenance and support of the debtors, they were allowed to prospectively retain their entire tax refunds. In re Lisa Perry, Case No. 06-26132 Published: In re Perry, 369 B.R. 402 (May 2007) -- Judge M.D. McGarity Chapter 13 debtor objected to her former landlord's proof of claim. The court sustained the objection, in part, finding the residential landlord's claim for prepetition and postpetition rent did not qualify as an administrative expense under sec. 503(b). In re Paul & Marsha Christensen, Case No. 03-32627 (May 2007) -- Judge M.D. McGarity Chapter 13 trustee was compelled to remit plan payments to the creditor holding a secured claim in the debtors' vehicle pending resolution of the motion for relief from the automatic stay. In re Brandenburg, No. 07-20244-svk (May 2007) -- Judge S.V. Kelley Debtor's mortgage payments on a Minnesota condominium that had been sold at a foreclosure sale two days before the petition could not be deducted on Line 42 of Form B22A as "scheduled as contractually due," due to the provisions of Minnesota foreclosure law. The same result may not occur under Wisconsin Law. Grice -v- WE Energies, et al (In re Grice) (April 2007) -- Judge J.E. Shapiro The debtor filed a Chapter 13 case and subsequently converted that case to Chapter 7, wherein she received a discharge . More than two years but less than four years later, the debtor filed a new Chapter 13 case. The court ruled that the four-year waiting period contained within 11 U.S.C. § 1328(f)(1) was applicable to this fact pattern (rather than the two-year waiting period contained within 11 U.S.C. § 1328(f)(2)). Accordingly, the court found that the debtor was ineligible to receive a discharge in the present bankruptcy case because four years had not elapsed since the filing of her prior bankruptcy case. In Re Walls 06-21228 (April 2007) -- Judge P. Pepper The appropriate way for a below-median-income debtor to secure for her own needs the entirety of any tax refund she may receive over the life of the Chapter 13 plan is not by writing such a provision in the plan. Rather, it is by asking the trustee, and if necessary the Court, to allow her to keep the refund for any particular year based on her need to retain for her support and maintenance. In re Brad & Leanna Westenberg, Case No. 03-21749 Published: In re Westenberg, 365 B.R. 895 (March 2007) -- Judge M.D. McGarity Following completion of the chapter 13 debtors' payments under their confirmed plan, the trustee moved to dismiss, on the ground that secured creditors had not been paid in full and the debtors could not feasibly satisfy the secured debts within the maximum five-year term. The court denied the motion, finding the debtors were entitled to a discharge under the confirmed plan, even though secured claims had not been paid in full, because creditors received adequate notice of their rights under the plan and plan clearly spelled out the longer amortization periods of the secured claims. |