OpinionsChapter 7 debtors refinanced their 1996 Harley Davidson motorcycle prepetition. Perfection of the motorcycle was untimely during the preference period. The trustee filed a motion to turn over property for the benefit of the estate. The lien granted by the debtors to the bank was an avoidable preference and because the debtors had not made any payments to the trustee to satisfy the lien, the trustee was entitled to possession. In re Mark & Marlene Brewer, Case No. 03-33181, Debtors v. QC Financial Services, Inc., Adv. No. 03-2532 Published: In re Brewer, 313 B.R. 795 (August 2004) -- Judge M.D. McGarity Chapter 13 debtors brought an adversary proceeding to recover for the creditor's alleged violations of the automatic stay. The court granted the creditor's motion for summary judgment in part. The creditor's postpetition presentment of a check written prepetition was not a violation of the automatic stay. Genuine issues of fact precluded entry of summary judgment on whether the creditor's refusal to turn over proceeds of the transfer was an exercise of control over property of the estate. In re Gladney, No. 03-31411-svk (unpublished) (August 2004) -- Judge S.V. Kelley Trustee not allowed to unabandon property. In re Linda L. Middaugh, Case No. 02-32054 (July 2004) -- Judge M.D. McGarity Chapter 13 debtor had two loans with the Farmers Home Administration ("FHA"), which she obtained as part of a divorce settlement. One loan was subsequently paid in full. Debtor had not made payments on the second loan for over a year, as she thought the loan had been paid in full. The debtor objected to both the FHA's proof of claim and motion for relief from the automatic stay. The Court allowed the claim for the pre- and postpetition amounts and further allowed the filing of a supplemental claim for postpetition arrearages. The motion for relief was denied because the debtor had equity in the property and the property was necessary for effective reorganization, subject to the debtor maintaining current payments to the creditors and trustee. In re Pokrzywinski, 311 B.R. 846 (July 2004) -- Judge S.V. Kelley Simple interest, not add-on interest, is the proper method for calculating the amount of interest required on a Chapter 13 plan. In re Tracey Rene Turck, Case No. 03-34679 (July 2004) -- Judge M.D. McGarity The chapter 7 trustee filed a no asset report in November 2003, and the discharge was granted and case closed in January 2004. In March 2004, debtor's counsel advised the trustee that the debtor was to receive previously undisclosed state and federal tax refunds. The trustee filed a motion to reopen and a motion for turnover of property. The debtor objected, stating the majority of the refund was generated by earned income credit and child tax credit. The court found that both types of credit were property of the estate and as such, subject to turnover. In re Bouzek, 311 B.R. 239 (June 2004) -- Judge S.V. Kelley Wholesale (liquidation) value is the proper valuation for the redemption of collateral under Bankruptcy Code § 722. In re Childers, 311 B.R. 232 (June 2004) -- Judge S.V. Kelley Inability to pay does not establish the fraudulent intent necessary for the entry of a default judgment in a nondischargeability action for NSF checks. In re Howard, 311 B.R. 230 (June 2004) -- Judge S.V. Kelley The injunction provision of Bankruptcy Code § 109(g)(2) is permissive, rather than mandatory. See also Grossman v. Beal (In re Beal), 347 B.R. 87 (E.D. Wis. 2006). In re Guseck, 310 B.R. 400 (May 2004) -- Judge S.V. Kelley No need to reopen closed no-asset case to add unscheduled creditors to discharge "garden variety" debts. |