BAPCPA Decisions of the Southern District of Georgia
DESCRIPTION |
CASE NAME |
JUDGE |
DATE |
| Debtor's motion to strike Auditor's Report identifying a "material misstatement" of more than $1,000.00 is denied; even where Debtor's disposable income remained negative under either calculation. The auditor's report is merely a report. | Kelton |
SDB |
filed 5-13-2008 |
Temporary waiver
of credit counseling requirement under § 109(h)(3) – Mistake
by paralegal resulting in untimely filing of credit counseling certificate
was not exigent circumstance meriting 30-day waiver of credit counseling
requirement where the debtor did not request or receive credit counseling
pre-petition and where the debtor’s motion did not describe any circumstances
that prevented the debtor from obtaining credit counseling pre-petition.
Because an individual may not be a debtor under the Bankruptcy Code without
complying with § 109(h), the debtor’s case was dismissed. |
4-28-2008 |
||
Payment of child support
arrearage and attorney's fees in chapter 13's. (1) §1326(b)(1) requires §507(a)(2) claims to be paid before or at the time of each payment to creditors; (2) equal monthly payments of §1325(a)(5)(B)(iii) start at confirmation. |
Williams |
SDB |
filed 3-28-2008 |
Turner |
SDB |
filed 3-17-2008 |
|
§ 1326(a) pre-confirmation
adequate protection payments. Upon conversion from chapter 13 to chapter
7 creditor was entitled to pre-confirmation adequate protection payments. |
Hampton |
SDB |
filed 2-22-2008 |
§ 1325(a)(*)
“hanging paragraph” does not bar a creditor holding a 910 claim
from seeking an unsecured deficiency claim following the liquidation of
the motor vehicle: Creditor filed a motion objecting to the confirmation
of the Debtor’s chapter 13 plan on the ground that the plan improperly
provided for the surrender of a motor vehicle in full satisfaction of the
creditor’s 910 claim. Nothing in the hanging paragraph prevents the
creditor from pursuing an unsecured deficiency claim after the foreclosure
sale of the vehicle following surrender. After the sale of the vehicle,
the creditor may seek to have its previously allowed secured claim reconsidered
as a general unsecured claim under § 502(j). |
Hickox |
JSD |
filed 2-22-2008 |
Extension
of exclusivity period under 11 U.S.C. § 1121(d) - The unresolved
contingency of whether the Debtor In Possession would be able to assume
the lease for its place of business constituted sufficient cause for extension
of the time during which only the Debtor In Possession could file a plan
of reorganization under chapter 11. |
Sportman's Link |
JSD |
filed 12-3-2007 |
Extension of
stay under 11 U.S.C. § 362(c)(3) – Debtor whose prior chapter
12 case was dismissed within one year of filing his present chapter 11 case
must comply with the requirements of § 362(c)(3)(B) in order to obtain
an extension of the automatic stay. Because Debtor’s previous case
was filed under chapter 12, presumption of bad faith filing under §
362(c)(3)(C) did not arise, and Debtor must prove by only a preponderance
of the evidence that his current chapter 11 case was filed in good faith.
Applying the test in In re Phoenix Piccadilly, 849 F.2d 1393 (11th Cir.
1984), Judge Dalis concluded that Debtor’s chapter 11 petition was
filed in good faith as to the creditors affected by the stay, which had
already been extended by an order entered before the issuance of the opinion. |
McKinnon |
JSD |
filed 9-24-2007 |
Imposition
of Stay. Repeat-Filers. 11 U.S.C. § 362(c)(3)and (4). - Motion
to Impose Stay denied in Debtor’s third case. To overcome the presumption
of bad faith and obtain a stay, Debtor had to establish good faith in the
present case by proving three separate elements. (1) Substantial change;
(2) feasibility; and (3) confirmability. The first two are purely objective
tests and must be separately proven, not just included within a “totality
of circumstances” analysis. The third incorporates pre-BAPCPA precedent
under § 1325, has both objective and subjective elements, and is analyzed
in light of the “totality of circumstances.” Debtor must first
establish the objective elements before the Court is required to examine
Debtor’s subjective state of mind. Because Debtor did not prove there
had been a “substantial change” by clear and convincing evidence
the subjective test never became relevant |
Thornes |
LWD |
filed 9-26-2007 |
§ 362(b)(2)(C)/DSO - Child Support Services was not bound under § 1327 by the provisions
of the debtor’s plan and thus could maintain an income deduction order
for a DSO post-confirmation when the Debtor’s proof of claim classified
the DSO as an unsecured nonpriority claim and where the plan did not provide
for any payment. |
Vasquez |
JSD |
filed 8-28-2007 |
Means Test §
707(b)(2)(A) & (B): “Special Circumstances” exception
to presumption of abuse is to be strictly construed. It does not cover situations
which might be generally viewed as unfair or unfortunate, but only those
which cause higher household expenses or adjustments of income “for
which there is no reasonable alternative.” |
Lightsey |
LWD |
filed 7/26/2007 |
Clerk of Court immunity/time
limit for filing payment advices - The Clerk of Court was protected
by derived judicial immunity, and regardless, did not engage in the unauthorized
practice of law by entering an order of dismissal for failure to timely
file payment advices as required by 11 US.C. § 521(a)(1)(B)(iv). In
addition, Interim Rule 1007(c) was valid, because a 15-day time limit for
filing payment advices does not modify any substantive right under §
521(i). |
Carroll |
JSD |
filed 7/5/2007 |
Ch. 13 trustee
immunity/ attys fees – Motion dismissed because trustee was protected
from suit by derived judicial immunity. On issues raised by the motion,
HELD that (1) Periodic payments in equal monthly amounts to a secured creditor
as required under § 1325(a)(5)(B)(iii)(I) must begin in the first disbursement
following confirmation. (2) Pre-confirmation adequate protection payments
under § 1326(a)(1)(C) apply to the principal of the allowed secured
claim. (3) Adequate protection during the period of the plan under §
1325(a)(5)(B)(iii)(II) is provided by payment in equal monthly amounts to
pay in full the allowed secured claim over the life of the plan at an interest
rate that provides the creditor the value of the claim as of the date of
the filing of the petition, provided that the principal reduction achieved
by the equal monthly payment is sufficient to offset any depreciation in
the collateral. (4) The interest required to give a secured creditor the
present value of its allowed claim begins to accrue on the date of confirmation.
(5) In addition to principal, periodic payments in equal monthly amounts
to secured creditors may include only interest that has accrued before the
date of the periodic payment and that is due on the date of the periodic
payment. |
Denton |
JSD |
filed 6/12/2007 |
1328(f) Order -
Holding the look-back period runs from the date of the filing of the previous
chapter 13 petition to the date of filing of the current chapter 13 petition. |
Wynn |
SDB |
filed 3/8/2007 |
910/"Acquired for
personal use of debtor." Although Debtor currently drives the vehicle
he established the vehicle was purchased for his non-debtor, now estranged,
wife. |
Grant |
SDB |
filed 3/2/2007 |
§ 1325(a)(*) "hanging
paragraph" - Claim for vehicle debt was not covered by the "hanging
paragraph" of Section 1325(a)(*) and thus could be modified under Section
506 when Debtor established that the truck was purchased for the use of
his non-debtor wife; it replaced two cars that were traded in, one of which
was primarily used by his non-debtor wife; and Debtor primarily used another
vehicle. |
Chaney |
JSD |
filed 2/7/2007 |
§ 362(b)(2)(C)/DSO - Section 362(b)(2)(C) provides for post-petition collection of child support
arrearages through income deduction orders. Accordingly, such income deduction
orders do not violate the automatic stay. |
Denton |
JSD |
filed 1/30/2007 |
§362(c)(3)(A) /
"Action Taken" Order - This matter initially came before the
Court upon Debtor's "Motion to Continue Stay Pursuant to 11 USC §362
(c) (3) (B) as to ALL Creditors." |
James |
SDB |
filed 1/17/2007 |
Order Denying
Motion To Extend The Stay - 362(c)(3) and 362(c)(4) stay extensions |
Hall |
SDB |
filed 12/22/2006 |
Denial of motion to
amend Ch. 7 schedules - By motion, Larry J. Batten and Brenda A. Batten
("Debtors") seek to amend the schedules in their Chapter 7 case
to reflect a tort claim that arose the same month Debtors received a discharge.
Because the post confirmation, post conversion tort claim is not property
of the estate and because it is not a property interest covered by Bankruptcy
Rule 1007 (h), debtor's motion to amend their bankruptcy schedules is DENIED
as unnecessary and improper. This Court has jurisdiction to decide this
matter under 28 U.S.C. § 157 (b) (2) (A). |
Batten |
JSD |
filed 9/29/06 |
§ 1325(b) means
test - Means test issues: Section 1325(b) as amended by BAPCPA narrows
the scope of the good faith inquiry under Section 1325(a)(3). Incorporation
into BAPCPA of IRS Allowances for Other Necessary Expenses ("ONE deductions")
puts the burden on the debtor to establish that a ONE deduction is actual,
necessary, and reasonable. Income tax refunds are not income. |
Johnson |
JSD |
filed 7/21/06 |
910 Day Order -
These matters come before the Court on objections to confirmation filed
by Credit Union of Texas. These are core proceedings over which the Court
has jurisdiction pursuant to 28 U.S.C. 157 § (b) (2) (L). |
Johnson |
SDB |
filed 9/6/2006 |
Order - In the matter of Robinson, Smith, Rahn, White and Coursey, Memorandum
Opinion on Debtors' Applications for Waiver of the Chapter 7 Filing Fee
- Discusses factors for obtaining filing fee waiver under 28 U.S.C.
§ 1930(f)(1). |
Robinson and others |
LWD |
filed 7/20/2006 |
Reinstatement
of § 362 automatic stay - Automatic stay was re-instated under
Section 105 for first-time repeat filers when notice and hearing under 362(c)(3)(A)
could not be completed before the automatic stay terminated by operation
of law 30 days after the date the petition was filed. |
Whitaker |
JSD |
filed |
§ 1328(f)(1) - In this case debtor had filed and received a discharge in a previous case
and was not eligible to receive a discharge upon the successful completion
of the current Chapter 13 plan pursuant to § 1328(f)(1). The Trustee
argued that because the debtors were not eligible to receive a discharge,
they were ineligible for Chapter 13 relief. Alternatively, the Trustee argued
that the cases should have been dismissed under § 1307(c). Judge Dalis
rejected the Trustee’s arguments. He concluded that § 1328(f)
is not an eligibility provision. Further, under § 1325(a)(3), good
faith can be deduced by an examination of the various factors listed by
the Eleventh Circuit Court of Appeals in Kitchens v. Georgia Railroad Bank
& Trust Co. The availability of a discharge is a factor for consideration,
but its presence alone is not sufficient to demonstrate a lack of good faith
by the debtors. |
Lewis / Tobias |
JSD |
filed 3/27/2006 |
"910"
Claims - Debtors purchased a vehicle for personal use within 910 days
of filing a Chapter 13 bankruptcy case. Debtors argued that the phrase “section
506 shall not apply” means that “910" claims are not “allowed
secured claims” within the purview of § 1325. Judge Dalis rejected
the debtors’ argument. He concluded that the unnumbered paragraph
of § 1325(a) means only that the bifurcation discussed in § 506(a)
does not apply to these creditors’ claims. The unnumbered paragraph
does not alter the secured status of the claim. |
Brown / Leggett / Poarch |
JSD |
filed 3/27/2006 |
Order on Debtor's Motion
for Preliminary Injunction and Restraining Order - Discusses burden
of proof required to make a clear and convincing showing to obtain the imposition
of a stay under section 362(c)(3) and (4). |
Robinson |
LWD |
filed 12/29/2005 |
Order on Motion for Extension
of Automatic Stay - retroactivity issue in refiled cases. |
Butler |
LWD |
filed 11/15/2005 |
Order of dismissal/credit
counseling - By motion filed October 28, 2005 Barbara T. Clay the purported
debtor in this Chapter 13 case seeks an extension to obtain credit counseling
and budget analysis pursuant to 11 U.S.C. §109 (h) (3). The motion
is denied. |
Clay |
JSD |
filed 11/9/2005 |
Order on Amended
Emergency Motion for Extension of Automatic Stay - Discusses minimum
Notice and Hearing requirements for Motions to Extend Automatic Stay and ex parte actions to Impose Stay. |
Butler
|
LWD |
filed 10/31/2005 |
Debt Relief Agency Order - The issue before the Court is whether amendments to the Bankruptcy code,
which become effective today, regulating Debt Relief Agencies apply to attorneys
licensed to practice law who are members of the Bar of this Court. |
n/a |
LWD |
filed 10/17/2005 |
