Skip to main content

Opinions


    In Re Farchmin, 05-45947 (February 2006) -- Judge P. Pepper
    In most cases, it is not necessary or appropriate to move the court to extend the time for filing tax returns under section 521 of BAPCPA. Section 521(e) requires certain tax returns to be provided to the trustee, and therefore the trustee is the person to whom requests to extend time should be addressed. Section 521(f) requires tax returns to be filed with the court only if the court, the U.S. Trustee, or a party in interests requests that they be filed. If such a request has been made by the U.S. Trustee or a party, debtors seeking an extension should confer with the party requesting the filing, and should indicate in the motion whether that party agrees to the extension of time.

    In Re Gray, No. 05-45793 (January 2006) -- Judge P. Pepper
    A debtor for whom the automatic stay terminates after 30 days under section 362(c)(3)(A) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 because she had a previous filing dismissed within the year preceding the current petition may seek to have the stay re-imposed under section 362(c)(4)(B), if her request is filed within 30 days of the date of the current petition, she provides adequate notice to the appropriate creditors, and she rebuts the presumption that the current filing was made in bad faith.

    In Re Berntsen, 05-45950 (January 2006) -- Judge P. Pepper
    Section 362(j) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 mandates that, upon the request of a party, the court shall issue a comfort order indicating that the 30-day stay has terminated in cases governed by section 362(c)(3) of the Act.

    In re Dennis Gerard Etzel, Case No. 05-24211, American Standard Ins. Co. v. Debtor, Adv. No. 05-2337 (December 2005) -- Judge M.D. McGarity
    Judgment for restitution was nondischargeable obligation pursuant to 11 U.S.C. s. 523(a)(7).

    In re Ronald & Deanne Schabel, Case No. 04-35733, Neil McKloskey, Trustee v. Henry & Diane Schabel, Adv. No. 05-2270 Published: In re Schabel, 338 B.R. 376 (December 2005) -- Judge M.D. McGarity
    Chapter 7 trustee brought an adversary proceeding to avoid, on a preference theory, loan payments that the debtors had made to their parents during the one-year preference period. The court granted summary judgment to the parents because the prepetition transfers met the requirements for the new value defense.

    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.