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Opinions


    In re Michael R. Luedtke, Case No. 05-45087 Published: In re Luedtke, 337 B.R. 918 (December 2005) -- Judge M.D. McGarity
    Chapter 7 debtor, an inmate at correctional facility that had filed his petition pro se, sought a determination that the petition was "filed" prior to the effective date of BAPCPA, so that he did not have to comply with the credit counseling requirement. The court found the "prison mailbox rule" applied to the filing of a bankruptcy petition; thus, the pro se prisoner's petition was deemed "filed" on that date he delivered the petition and related documents to prison authorities for forwarding to the bankruptcy clerk.

    In Re Harvey, 05-44655; In Re Ramirez, 05-44654; In Re Martin, 05-44653; In Re Stelmack, 05-44652; In Re Green, 05-44651; and, In Re Johnson, 05-44650 (December 2005) -- Judge P. Pepper
    Debtors' cases were filed electronically. They were not received by the clerk's office until the early minutes of October 17, 2005--the date the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was implemented. Debtors argued that the matters would have been filed on October 16--under the Bankruptcy Code--but for a problem with the Court's CM/ECF system. The Court held that documents submitted electronically are not "filed" until they are received by the clerk's office and the clerk's office issues a Notice of Filing. The Court further found that there was insufficient evidence to demonstrate a problem with the CM/ECF system. Accordingly, the Court denied the debtors' request to find that their cases were filed under the Bankruptcy Code.

    In re Mark & Marlene Brewer, Case No. 03-33181, Debtors v. QC Financial Services, Inc., Adv. No. 03-2532 (December 2005) -- Judge M.D. McGarity
    Damages assessed against defendant for violation of automatic stay.

    Car Care Center of Crystal Lake, LTD. -v- Gary E. Miller - (In re Gary E. Miller and Bonnie B. Miller) (November 2005) -- Judge J.E. Shapiro
    The court ruled that an adversary proceeding brought under 11 U.S.C. § 727(d)(1) must be brought within the jurisdictional time limitation set forth in 11 U.S.C. § 727(e).

    In Re Reed, 05-45739 (November 2005) -- Judge P. Pepper
    Debtors who request a "waiver" of the BAPCPA requirement of pre-filing credit briefing must both describe exigent circumstances and indicate that they tried to get the briefing but couldn't do so within five days of their request. Even when they meet both of these requirements, debtors do not receive a "waiver" of the credit briefing requirement, but must obtain a credit briefing within 30 days of the date of filing, with a possible 15-day extension for cause.

    In re Peggie Mae Bolton, Case No. 05-26436 (November 2005) -- Judge M.D. McGarity
    Because secured creditor did not give up its right to foreclose on the mortgage when it sought and obtained a personal judgment against the debtors, the debtor's objection to the creditor's proof of claim was overruled.

    In re John & Jennifer Engebregtsen, Case No. 05-27818 Published: In re Engebregtsen, 337 B.R. 677 (October 2005) -- Judge M.D. McGarity
    Chapter 13 debtors objected to the proof of claim filed by a creditor, based on the retail value of the vehicle securing it when the petition was filed. The court sustained the objection in part. For purposes of determining the creditor's secured claim, the value of the vehicle damaged in a postpetition accident was established at liquidation value as of the petition date.

    In re Art Unlimited, Case No. 02-23992, Neil McKloskey, Trustee v. Galva Foundry Co, Inc., Walter Nocito, & Wells Fargo Bank Wisconsin, Adv. No. 04-2098 (October 2005) -- Judge M.D. McGarity
    In preference adversary filed under sec. 547 and sec. 548, defendant transferee's motion for summary judgment was granted, in part, and denied, in part.

    In re Gertrude Walker, Case No. 04-23123 (October 2005) -- Judge M.D. McGarity
    Chapter 13 Trustee's objection to priority claim filed by debtor on behalf of city for unpaid municipal services was sustained.

    In re Dana Voelske, Case No. 03-28533, Glenn Givens, Jr., Trustee v. Franlkin Mortgage Funding Corp., Adv. No. 05-2327 (September 2005) -- Judge M.D. McGarity
    Debtor refinanced mortgage with defendant and subsequently filed for relief six days later. Defendant perfected mortgage twelve days after petition date. As mortgage was not perfected with the time allowed under sec. 547(e)(2)(A), the recording violated the automatic stay. Acts done in violation of the stay are void; therefore, the mortgage was unperfected at the time of filing.