Kain v. Beneficial South Carolina Inc. (In re Kain)
Sep
02
2011
Ruling
Mortgage could not be treated as unsecured as it was treated as secured by confirmed plan.
Procedural posture
Debtors filed a complaint asking the court: (1) to find, under 11 U.S.C.S. § 506(d), that defendant creditor had no secured interest in certain property; (2) to order the creditor to cancel a mortgage upon entry of a discharge order; (3) to order the chapter 13 trustee to treat the creditor's claim as unsecured; and (4) for attorney's fees. An entry of default was recorded against the creditor. The debtors moved for a default judgment.
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Court
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Lindskog v. M&I Bank (In re Lindskog)
Apr
13
2011
Ruling
Debtor who received chapter 7 discharge and filed chapter 13 case within four years could not avoid wholly unsecured junior lien.
Procedural posture
Debtor filed this adversary proceeding in which she sought to avoid bank's second mortgage lien under the provisions of 11 U.S.C.S. § 506(d). The bank responded by filing its answer together with a motion to dismiss the adversary proceeding. The bank also filed a separate objection to confirmation of debtor's amended chapter 13 plan based on the same grounds it set forth in its motion to dismiss.
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Court
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Williams v. Montclair Prop. Owner Assn (In re Cook)
Nov
10
2010
Ruling
Chapter 13 debtor could strip off homeowners' association liens on property in which there was no equity.
Procedural posture
Chapter 13 debtors filed a complaint against defendant creditor seeking to strip off liens against their residence for unpaid homeowners association assessments pursuant to 11 U.S.C.S. § 506(d) on the ground that there was no equity in the property to which the liens could attach. The debtors moved for summary judgment.
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Court
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- 11 U.S.C.
In re Stewart
Oct
21
2010
Ruling
Creditor who failed to file proof of claim and object to treatment under plan not entitled to stay pending appeal.
Procedural posture
Movant, a secured creditor mortgagee, filed a motion for a stay pending appeal of a court order disallowing the creditor's claim to the extent it exceeded $715.91, and ordering it to reimburse the chapter 13 trustee $2,316.91 in overpayments, and credit the debtor's account $1,949.61. The creditor asserted that the debtor's plan failed to properly provide for the full payment of its secured debt.
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Court
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In re Hoffman
Jul
28
2010
Ruling
Chapter 7 debtors could not strip off wholly unsecured junior mortgages on homestead properties.
Procedural posture
Chapter 7 debtors each filed a motion to avoid a junior mortgage lien on their respective homesteads. In each case, the estimated market value of the debtors' respective home was less than the amount of their senior mortgage.
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Court
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In re Caliguri
Mar
16
2010
Ruling
Second lien could not be avoided in no-asset case where creditor had not filed a proof of claim.
Procedural posture
A chapter 7 bankruptcy debtor's real property was collateral for both first and second priority mortgages, and the debtor moved to avoid the second mortgage lien pursuant to 11 U.S.C.S. § 506(d) on the ground that the lien was wholly under-secured.
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Court
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Litto Loan Servicing LLP v. Eads (In re Eads)
Sep
18
2009
Ruling
Order discharging lien on debtor's property vacated due to improper service of original objection.
Procedural posture
Plaintiff L.L.P. filed an adversary proceeding against defendant chapter 7 debtor, seeking an order setting aside the court's order discharging a lien on the debtor's house. The debtor opposed the L.L.P.'s action and filed counterclaims alleging that the L.L.P. violated the automatic stay, was in contempt of the court's order sustaining the debtor's objection to a claim the L.L.P. filed, and intentionally inflicted emotional distress on her.
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Court
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In re Duncan
Dec
17
2008
Ruling
Debtor could not "strip off" second mortgage that was at least partially secured.
Procedural posture
Bankruptcy debtors asserted that a holder of a second mortgage against the debtors' residence was wholly unsecured because the value of the residence was less than the amount due on a first mortgage. The debtors moved to strip off the holder's second mortgage pursuant to 11 U.S.C.S. § 506(d).
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Court
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In re Jarvis
Jul
09
2008
Ruling
Debtor's ineligibility to receive discharge in chapter 13 case filed after chapter 7 discharge limited ability to modify payments to secured creditor.
Procedural posture
A debtor filed a voluntary petition under chapter 13 of the Bankruptcy Code. The case was before the bankruptcy court for decision on confirmation of the debtor's chapter 13 plan.
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Court
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In re Dendy
Apr
21
2008
Ruling
Mortgage for which there was no equity that creditor failed to release was void.
Procedural posture
The debtors filed for relief under chapter 13 of the Bankruptcy Code, a plan was confirmed, the debtors made their payments, and the debtors received a discharge. The debtors filed a motion for sanctions against a creditor and an assignee claiming that they had violated the discharge injunction by failing to release a second mortgage on the debtors' residence.
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Court
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