Keywords: Chapter 13 plan . Chapter 13 Plan Modification .
Chapter 13: Plan provisions, Miscellaneous issues15 Cases , IssueID 69 |
||||||||||||
Topic Description:Sometimes debtors want to propose extra contractual rights regarding disclosure of how the creditor is applying payments or timing of payments. Creditors often object. Here are cases that discuss various plan proposals. Lines of Cases:
|
||||||||||||
It is not bad faith to exclude Social Security payments from plan because BK code speicifically says you may do so.
Debtor can be required to conform to courts model plan, and amend it with his own provisions. Cannot propose completely own plan. Court can require such compliance with local rules.
Effecive date of modified plan, for purposes of property valuation, is the date of modification, not the date of the original plan. Debtors modified plan to reflect what creditors might hope to recover in a Chapter 7 liquidation, as of the date of modification.
Tax refunds must be committed to Chapter 13 plan. Good discussion of what eepenses are allowed and are not.
Lower court should not have confirmed a chapter 13 plan that required the release of a lien prior to its full payment.
Debtor has right to possession of car that was repossessed before the bankruptcy filing but had not yet been sold. A majority of courts have held that Ch.13 debtors are entitled to possession if they can post adequate protection of the asset.
Proposed Chapter 20 plan was not in good faith where, had the debtors not filed a Chapter 7 that wiped out their credit card debt, the subsequent chapter 13 could have paid the unsecured creditors $316 per month. Court said this was a bad faith manipulation of the process.
The trustee objected to confirmation of the debtor's plan because debtors had not listed their unemployment benefits in their Current Monthly Income. The court said this overruled the objection because even if debtors had included the unemployment income, debtors still would have been under the state's median income.
When debtors demanded full accounting of fees and expenses on their mortgage payments, creditor replied with an avalanche of discovery requests. and excessive litigation in an effort to make things too expensive for the debtor to proceed. The court said, "All that was ever sought was an explanation for the charges asserted by the defendant. Rather than cooperate, the defendant engaged in litigation and discovery tactics that increased the costs to obtain answers. The plaintiffs would never be able to match the defendant's financial resources and inevitably would have to abandon the cause and their home." The court granted a default judgment and attorneys fees to the debtor (plaintiff).
The court denied debtor's request for an extension of the 30-day stay because debtors waited until the 29th day of the stay to ask.
The court explained, "Had the debtor filed the petition earlier, a hearing on the debtor's application could have been held and the application determined prior to the expiration of the 30 day period. The debtor's delay in seeking this relief in effect could result in an extension of the automatic stay not based on the merits but solely because the debtor's calculated timing. Moreover, hearing and deciding the application in this 24-hour period would have denied due process to all parties that would have been affected by the granting of the relief sought."
Debtor tried to amend his Chapter 13 plan without also amending his means test deductions.
The court said, "Pursuant to [Section 1325(b) and 707(b)(2)], the court must look at a debtor's stated intentions of record as they exist on the date of confirmation to determine what expenses are 'reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor during the Chapter 13 plan."
The court sustained the Trustee's objection to confirmation of this new plan.
In filing a Chapter 13 plan, debtor proposed restrictions on the lender who held his delinquent mortgage including gaining permission from the court before charging fees or changing the interest rate. The court held for the creditor-lender denying confirmation the plan because of these restrictions
The court dismissed the debtors case because debtor was not allowed to favor plan payments over paying post-petition federal taxes. http://www.miwb.uscourts.gov/Opinions/pdfs/in%20re%20mcgryder.pdf
It is not bad faith to exclude Social Security payments from plan because BK code speicifically says you may do so.
Debtor can be required to conform to courts model plan, and amend it with his own provisions. Cannot propose completely own plan. Court can require such compliance with local rules.
Effecive date of modified plan, for purposes of property valuation, is the date of modification, not the date of the original plan. Debtors modified plan to reflect what creditors might hope to recover in a Chapter 7 liquidation, as of the date of modification.
Tax refunds must be committed to Chapter 13 plan. Good discussion of what eepenses are allowed and are not.
Lower court should not have confirmed a chapter 13 plan that required the release of a lien prior to its full payment.
Debtor has right to possession of car that was repossessed before the bankruptcy filing but had not yet been sold. A majority of courts have held that Ch.13 debtors are entitled to possession if they can post adequate protection of the asset.
Proposed Chapter 20 plan was not in good faith where, had the debtors not filed a Chapter 7 that wiped out their credit card debt, the subsequent chapter 13 could have paid the unsecured creditors $316 per month. Court said this was a bad faith manipulation of the process.
The trustee objected to confirmation of the debtor's plan because debtors had not listed their unemployment benefits in their Current Monthly Income. The court said this overruled the objection because even if debtors had included the unemployment income, debtors still would have been under the state's median income.
When debtors demanded full accounting of fees and expenses on their mortgage payments, creditor replied with an avalanche of discovery requests. and excessive litigation in an effort to make things too expensive for the debtor to proceed. The court said, "All that was ever sought was an explanation for the charges asserted by the defendant. Rather than cooperate, the defendant engaged in litigation and discovery tactics that increased the costs to obtain answers. The plaintiffs would never be able to match the defendant's financial resources and inevitably would have to abandon the cause and their home." The court granted a default judgment and attorneys fees to the debtor (plaintiff).
The court denied debtor's request for an extension of the 30-day stay because debtors waited until the 29th day of the stay to ask.
The court explained, "Had the debtor filed the petition earlier, a hearing on the debtor's application could have been held and the application determined prior to the expiration of the 30 day period. The debtor's delay in seeking this relief in effect could result in an extension of the automatic stay not based on the merits but solely because the debtor's calculated timing. Moreover, hearing and deciding the application in this 24-hour period would have denied due process to all parties that would have been affected by the granting of the relief sought."
Debtor tried to amend his Chapter 13 plan without also amending his means test deductions.
The court said, "Pursuant to [Section 1325(b) and 707(b)(2)], the court must look at a debtor's stated intentions of record as they exist on the date of confirmation to determine what expenses are 'reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor during the Chapter 13 plan."
The court sustained the Trustee's objection to confirmation of this new plan.
In filing a Chapter 13 plan, debtor proposed restrictions on the lender who held his delinquent mortgage including gaining permission from the court before charging fees or changing the interest rate. The court held for the creditor-lender denying confirmation the plan because of these restrictions
The court dismissed the debtors case because debtor was not allowed to favor plan payments over paying post-petition federal taxes. http://www.miwb.uscourts.gov/Opinions/pdfs/in%20re%20mcgryder.pdf
All Cases A to Z
If you're not familiar with what "case law" is, and how to use it, check out Chapter 7 of Nolo's LegalResearch: How to Find and Understand the Law for a guide to how to read through a case to get the parts that matter.
Also, you need to be familiar with the concept of "jurisdiction." Here are some helpful links:
When you read a case, check to make sure that the case's decision applies to your local district. Do this by looking at which court has decided the case -- either the U.S. Supreme Court, a court of appeal (listed here in large type), or a district court (listed in small type). Your local district court judge is not bound to follow the opinion of judges from other district courts, but often they look to these cases for advice. Your local district, however, is bound to follow decisions in cases from it governing circuit court. You'll see fairly few Supreme Court case here, but those cases are also binding on all districts."
NO! NO! NO! This is a start for your research. New cases are constantly being decided. I update this when I have time. This is only a fraction of the actual published opinions out there. Dozens of cases are handed down nationwide every week. I catalog interesting ones when I have time. They are meant to serve as a starting point for your research -- NOT as a comprehensive listing of the current state of the law.