In re Hudak
Oct
24
2008
Ruling
Plan requirement that creditor deem prepetition arrearage contractually current upon confirmation was not an impermissible modification.
Procedural posture
The debtor's fourth amended chapter 13 plan of reorganization was before the court. A limited objection thereto filed by her mortgage creditor asserted that certain provisions impermissibly modified the contractual deed of trust rights and lien claim in violation of 11 U.S.C.S. § 1322(b). The debtor argued that the creditor's future failure to comply with the specified language would violate the discharge injunction under 11 U.S.C.S. § 524(i).
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Court
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In re Latone
Oct
23
2008
Ruling
Deduction for 401(k) loan payments was not grounds for dismissal.
Procedural posture
The United States Trustee (UST) moved to have the debtor's case dismissed under the "totality of the circumstances" test of 11 U.S.C.S. § 707(b)(3). The UST argued that the debtor's case should be dismissed because he made payments on outstanding loans from his 26 U.S.C.S. § 401(k) plan (401(k) loans).
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Court
:
- 11 U.S.C.
In re Hudak
Oct
20
2008
Ruling
Confirmation of debtor's fourth amended chapter 13 plan denied due to impermissible modification of creditor's secured lien.
Procedural posture
A debtor filed a fourth amended chapter 13 plan of reorganization. A creditor filed a limited objection to the plan, alleging that certain provisions impermissibly modified its secured lien in contravention of 11 U.S.C.S. § 1322(b)(2) and were otherwise violative of 11 U.S.C.S. § 1322(b)(5). The creditor also alleged that 11 U.S.C.S. § 524(i) did not apply.
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Court
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In re Serda
Oct
17
2008
Ruling
Second lien on debtor's residence was partially secured based on creditor's appraisal which employed comparable sales of bank owned properties.
Procedural posture
A creditor held a second priority trust deed against a bankruptcy debtor's residence, and the debtor asserted that the value of the residence was less than the amount secured by the first priority trust deed and that the creditor's claim was thus unsecured. The debtor moved to value the residence.
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Court
:
- 11 U.S.C.
In re Fitzgerald
Oct
10
2008
Ruling
IRS Trust Fund Recovery penalty was personal to the debtors and had to be provided for in plan.
Procedural posture
Chapter 13 debtors objected to a proof of claim filed by the IRS, and the IRS objected to the confirmation of the debtors'plan under 11 U.S.C.S. § 1322(a)(2).
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Court
:
- 11 U.S.C.
Armstrong v. Lasalle Bank Natl Assn
Oct
08
2008
Ruling
Bank could not claim retroactive postpetition, postconfirmation interest payment change where notice was not timely filed.
Procedural posture
Creditor filed a notice of post-petition payment change which provided for multiple payment changes over a period of years on the debtor's mortgage. The debtor filed an objection to the notice as being late filed and untimely and requested a finding that the creditor was limited to the monthly payment as provided for in the amended chapter 13 plan.
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Court
:
- 11 U.S.C.
Boday v. Franklin Credit Mgmt. Corp. (In re Boday)
Oct
02
2008
Ruling
Mortgage creditor ordered to adjust records to reflect payments used by debtors to effect a cure.
Procedural posture
Chapter 13 debtors filed a complaint against a creditor, the holder of the debtors'mortgage, requesting that the court make a determination as to the amount due under its loan to the creditor, and requesting that the court award them damages, including attorney fees and punitive damages, for the creditor's failure to properly calculate the principal balance of their loan.
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Court
:
- 11 U.S.C.
In re McCullum
Sep
23
2008
Ruling
Intention to sell home did not entitle debtors to modify second mortgage nor did inclusion of fixtures and rents as additional security.
Procedural posture
Debtors filed a petition under chapter 13 of the Bankruptcy Code, and a bank that held a second mortgage on the debtors' residence filed a proof of secured claim in the amount of $ 66,547. The debtors filed a motion to value the bank's claim, contending that the claim should be split into a secured claim in the amount of $ 45,842, and an unsecured claim in the amount of $ 20,704, pursuant to 11 U.S.C.S. § 506(a). The bank opposed the motion.
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Court
:
- 11 U.S.C.
In re Baker
Sep
10
2008
Ruling
Confirmation denied due to improper bifurcation of secured claim.
Procedural posture
Debtors filed a petition under chapter 13 of the Bankruptcy Code and an amended plan for repaying their creditors. A creditor filed an objection of confirmation of the debtors'plan.
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Court
:
- 11 U.S.C.
In re Aldrich
Sep
04
2008
Ruling
Plan confirmation denied due to improper provisions concerning creditor rights.
Procedural posture
Mortgage creditor objected to confirmation of the chapter 13 plans in two chapter 13 cases. The matters were consolidated. The debtors' plans contained provisions that required court approval before the creditor assessed postpetition charges and fees.
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Court
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