In In re Lawson, Ch. 13 Case No. 13-73476-WLH (click here for .pdf of opinion) the issue was whether a settlement agreement between the Debtor and his former spouse, whereby the Debtor retained (via quit claim deed) the marital home and agreed to make the loan payments, was a nondischargeable domestic support obligation pursuant to 11 U.S.C. §523(a)(5) and 11 U.S.C. §1328(a) or a dischargeable property division. Like many in his situation, the Debtor tried to refinance and sell the house to pay off the loans but was unable to do so. When he could not make the payments, he filed a Chapter 13 petition and his plan that provided for surrender of the house. His former spouse (who then bore the burden of the mortgage debt but no longer had ownership) then filed an adversary proceeding for a declaration that the Debtor’s obligation to pay the mortgage was a non-dischargeable support obligation. After a trial and a very fact-intensive analysis, Judge Hagenau ruled in favor of the Debtor and held that the debt was dischargeable. Continue Reading
In a July 2015 case the Chapter 7 Trustee sold a house that was underwater with three liens, and received a carve-out from the lender that held the second and third liens. The Debtors did not object to the sale, but to the Trustee’s Final Report because it did not allow for payment of their homestead exemptions from the carve-out funds. In re Diener, Case No. 11-83085-mhm (July 6, 2015). The house had a first priority loan of $227,000 and second and third liens (from the same lender) in the combined amount of $129,000. Presumably, the payments were not being made and the first lender was going to foreclose and wipe out the junior liens. The Trustee negotiated with the creditor holding the second and third liens and reached an agreement to sell the house and pay that creditor $9,000 from the sale proceeds. After the first lien was paid in full, closing costs were paid and the junior creditor was paid $9,000 it left about $25,000 for the Chapter 7 Estate. Debtors’ objection to the Final Report took the position that they were entitled to their $10,000 exemption from the proceeds even though there was no equity in the property and the funds were from the sale and carve-out. Continue Reading
In In re Cochran, Ch. 7 Case No. 13-43242, 2014 Bankr. LEXIS 1178 (Bankr. N.D. Ga. Feb. 10, 2014), the issue in the motion to avoid lien was whether funds paid into court pursuant to a Summons of Garnishment are property of the Bankruptcy estate after a case is filed. Judge Mary Grace Diehl held as follows:
- Garnished funds already disbursed to the creditor before the Chapter 7 case was filed are property of the creditor and the debtor and estate have no interest in those funds. See O.C.G.A. § 18-4-93. The exception is when the court improperly disburses the funds before the fifteen day objection period required by O.C.G.A. § 18-4-89, in which case the debtor still retains an interest in the funds until the 15 days has run. Although the debtor argued that he could avoid the disbursement as a preferential transfer and exempt the funds, no avoidance action had been filed and the Judge declined to rule on that issue.
- Garnished funds not disbursed by Court, but subject to Order of Disbursement. Where the state court had entered pre-petition orders of disbursement, but the funds had not yet been disbursed, the debtor still had the right to file a traverse and other parties who asserted a higher priority lien could also contest disbursement. See O.C.G.A. § 18-4-93, § 18-4-95. Therefore, the debtor still had an interest in the funds not yet disbursed and, therefore, they were property of the Chapter 7 estate. The lien could be avoided pursuant to §522(b)(1).
It follows that funds held by the state court that are not the subject of an order of disbursement are also property of the estate. See also In re Williams, 460 B.R. 915 (Bankr. N.D. Ga. 2011)(J. Drake)(debtor retained an interest in the garnished funds until at least the time for filing a traverse has expired, and creditor’s lien could be avoided).
In Howell v. U.S. Foods, Inc., Ch. 7 Case No. 11-13160, Adv. Proc. No. 13-1054, 2014 Bankr. LEXIS 681 (Bankr. N.D. Ga. Feb. 5, 2014) (click here for .pdf of Order), the individual debtor owned and managed a restaurant incorporated as Bilbo’s Bar-B-Que, Inc. However, the Trustee alleged that the Debtor operated the business as a sole proprietorship known as “Bilbo’s BBQ.” During the 90 day preference period, payments were made to U.S. Foods by checks which identified the drawer as “Bilbo’s BBQ.” The account agreement states that the account is owned by a “Corporation-For Profit,” with another individual identified as the “Owner/Signer” and Debtor as the “Non-Individual Owner.” The Trustee filed a complaint against U.S. Foods to recover the alleged preferential transfers, contending that because Debtor operated the business as a sole proprietorship rather than a corporate entity, the payments were a transfer of an “interest in the debtor” in property and on account of an antecedent debt owed by the Debtor. U.S. Foods filed a motion to dismiss for failure to state a claim, contending “that the corporation is distinct and separate from the Debtor and that the complaint is ‘devoid’ of any justification for attributing the corporation’s debts and asset transfers to the Debtor.” Judge Drake granted the Motion. Continue Reading
In In re Mooney, Ch. 7 Case No. 13-10835, 503 B.R. 916, 2014 Bankr. LEXIS 29 (Bankr. M.D. Ga. January 3, 2014), the issue before the Court was whether a health savings account (“HSA”) is exempt. Judge Walker held that an HSA is not exempt under Georgia state exemptions, even though Georgia has enacted legislation to encourage the establishment of HSAs (O.C.G.A. §33-51-02). The Debtor argued that her HSA was exempt pursuant to O.C.G.A. §44-13-100(a)(2)(C) & (E), which provides for the exemption of:
(2) The debtor’s right to receive: … (C) A disability, illness, or unemployment benefit; … (E) A payment under a pension, annuity, or similar plan or contract on account of illness … to the extent reasonably necessary for the support of the debtor and any dependent of the debtor[.]
The Court did not agree with the Debtor’s argument that the legislature must have intended on exempting HSAs and that the accounts fall within the exemption for “illness benefit.”
Despite Debtor’s argument that HSAs are clearly exempt, nothing in O.C.G.A. § 44-13-100(a)(2) expressly exempts HSAs. The Georgia Assembly has amended the exemption statute three times since the development of HSAs; none of the amendments included any direct or indirect references to HSAs. By contrast, at least six states–Florida, Mississippi, Oregon, Tennessee, Texas, and Virginia–expressly provide for the exemption of HSAs. Absent such an unequivocal expression of legislative intent, the Court must consider whether HSAs fall within one of the more general categories of property exempted by state law… Continue Reading
In In re Kulakowski, No. 12-15294, 2013 U.S. App. LEXIS 23110 (11th Cir. Nov. 15, 2013) (click here for .pdf of opinion), the issue was the extent to the Court could consider the income and expenses of the non-filing spouse in determining whether a Chapter 7 case could be dismissed for “substantial abuse” under 11 U.S.C. 707(b)(3)(B). The basic facts are as follows: Debtor and her spouse have been married for over 20 years. Debtor is unemployed, and they use her spouse’s income for their household expenses. They have always operated as one “financial unit,” with joint checking, joint tax returns and pooling their income and expenses. The spouse’s monthly take-home pay is $5,491, or $1,100 more than their household expenses. Most of the debtor’s debt was credit card debt, much of which was incurred for household expenses or the sole benefit of the spouse. The U.S. Trustee sought dismissal of the Chapter 7 case based on “substantial abuse.” The Bankruptcy Court dismissed the case, and the District Court affirmed. On appeal, the question before the 11th Circuit was the statutory interpretation of Section 707(b)(3)(B).
The Eleventh Circuit agreed with the dismissal of the case and analysis of the Bankruptcy Court. The court rejected the debtor’s argument that her spouse’s income could only be considered to the extent he contributed to household expenses in determining “current monthly income” under §101(10A). Continue Reading
In the case of In re Conner, Ch. 7 Case No. 09-42532, 2013 Bankr. LEXIS 4481 (Bankr. S.D. Ga. October 25, 2013), the issue was whether the Debtors could reopen their Chapter 7 case about three years after it was closed in order to enter into a reaffirmation agreement with Wells Fargo Home Mortgage. Debtors argued that Wells Fargo had offered to enter into a reaffirmation agreement in order to assist Debtors with a modification of their home loan. The Court declined to reopen the case, as any reaffirmation would be unenforceable pursuant to 11 U.S.C. §524(c)(1).
Reaffirmation agreements are unenforceable unless the “agreement was made before the granting of the discharge . . . .”11 U.S.C. § 524(c)(1).. “[B]ecause reaffirmation agreements are not favored, strict compliance with § 524(c) is mandated.” … For the purposes of § 524(c)(1), “a reaffirmation agreement is ‘made’ no earlier than the time when the requisite writing which embodies it has been fully executed by the debtor…”
No evidence has been produced establishing that a reaffirmation agreement was made prior to discharge, and indeed, Debtors’ counsel expressly stated that no agreement was made either in principle or in writing before the discharge. Therefore, as the reaffirmation agreement was not made prior to discharge, it cannot be enforceable under § 524(c). Because the reaffirmation agreement is unenforceable, reopening Debtors’ case would be futile. Accordingly, the Court finds that Debtors’ case may not be reopened.
In In re Brown, Ch. 13 Case No. 12-12316, 2013 Bankr. LEXIS 3696 (Bankr. S.D. Ga. Sept. 6, 2013), the Chapter 13 debtor deducted, on Line 57 of the Means Test, monthly student loan payments of $500 as a “deduction for special circumstances.” In her Chapter 13 plan, she proposed to make direct payments of $500 on her student loans and make a 1% distribution to unsecured creditors. The Chapter 13 Trustee objected to the plan on the grounds that the debtor was not contributing all of her disposable income to the plan. The Court sustained the objection.
Section 707(b)(2) states:
(B)(i) In any proceeding brought under this subsection, the presumption of abuse may only be rebutted by demonstrating special circumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circumstances that justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative.
Section 1325(b)(3) incorporates §707(b)(2) in Chapter 13 cases. The Court reviewed the split of authority in cases that addressed the issue of whether student loans could be deducted as special circumstances and held that such payments did not qualify for deduction on the Means Test.
While it is commendable to try and advance one’s education for career and personal advancement, the issue is whether these educational costs constitute “special circumstances” under the parameters established by Congress in §707(b)(2). There may be instances where a student loan constitutes a “special circumstance.” See In re Pageau, 383 B.R. 221 (Bankr. D.N.H. 2008) (“special circumstances” may be found where the student loan was necessitated by permanent injury, disability, or an employer closing or layoffs); see also In re Cribbs, 387 B.R. 324, 329 (Bankr. S.D. Ga. 2008) (finding that “special circumstances” must be similar to the examples set out in the statute, and finding special circumstances in the repayment of a 401(k) loan). However, under the facts of this case, the student loans do not qualify as a “special circumstance” warranting a deduction on her means test. There is nothing unique or special about Debtor’s student loans. She obtained her loans to better herself and to obtain promotions, but that does not make the loans special or unique. She was never layed off from work or forced to get an education in order to maintain her job. The fact that a bachelor’s degree may have later become a requirement does not make her loan a special circumstance. For these reasons, while Debtor’s pursuit of higher education is admirable, it is not a special circumstance under §707(b)(2)
The Court then addressed whether the debtor could make student loan payments outside the plan pursuant to §1322(b)(5), which allows a debtor to cure defaults and maintain payments on long term debts, or whether such a plan unfairly discriminates against other creditors under §1322(b)(1). Continue Reading
In the case of Hope v. Acorn Financial, Inc., Case No. 12-10709, 2013 U.S. App. LEXIS 19661 (11th Cir. September 26, 2013) (click here for .pdf of opinion) the Court addressed whether 11 U.S.C. §1327(a) binds the Chapter 13 Trustee to the terms of the plan, even though the Trustee is not mentioned in the statute. Section 1327(a) provides the following:
The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.
The specific question before the Court was “whether a confirmed Chapter 13 plan which gives a creditor a secured position is binding on a trustee who, aware of defects in that creditor’s security interest, does not assert any objections to, and affirmatively recommends confirmation of, the plan.” In June 2010, the debtor had purchased a vehicle and financed it through Acorn, but Acorn failed to properly perfect its security interest when it delivered its application for certificate of title to the Georgia Department of Revenue. A few weeks later the debtor filed a Chapter 13 petition, and Acorn subsequently perfected its security interest in the vehicle six days after the Bankruptcy petition was filed. The Bankruptcy Court found that the Trustee was aware of the defect more than 30 days before the confirmation hearing, but took action on Acorn’s claim. Meanwhile, the debtor proposed a Chapter 13 plan that treated Acorn as a secured creditor. The Chapter 13 Trustee recommended confirmation, and the plan was confirmed in September 2010. A few days later, the Trustee filed an adversary proceeding to avoid Acorn’s lien as a preferential transfer. The Bankruptcy Court granted summary judgement to Acorn, the District Court affirmed and the Trustee appealed to the Eleventh Circuit.
The Trustee argued that she was not bound by the plan because §1327(a) does not specifically include trustees as being bound. Continue Reading
Last week I was at a final hearing on fee applications on behalf of a Chapter 7 Trustee, in a case in which the debtor had failed to disclose a pre-petition personal injury case pending in another state. The defendants in that case ultimately founds out about the Bankruptcy case about a year after it was closed and the debtor received her discharge. They contacted the Trustee and the case was reopened more than a year after debtor’s discharge to administer the asset (the proceeds of the personal injury case settled by the Trustee). The Judge questioned why we had not pursued revocation of the debtor’s discharge based on the obvious failure to disclose the lawsuit, false schedules and other issues in the case. It was a good question and one that the Chapter 7 Trustee and United States Trustee had considered. Unfortunately, no matter how egregious or fraudulent the debtor’s conduct, the Bankruptcy Code has strict time limits for seeking revocation of a discharge. The case below is an example of the strict limitations periods.
In Underwood v. Brit & Sons Electrical Wholesale, Inc., Adv. P. No. 1305138, 2013 Bankr. LEXIS 3630 (Bankr. N.G.Ga. August 15, 2013) (click here for .pdf of opinion), the debtor filed a motion to reopen his no-asset Chapter 7 case to add a creditor. When the case was reopened, almost two years after it was initially closed, the debtor filed an adversary proceeding seeking a declaration that the debt to the defendant was discharged. The defendant/creditor filed a counterclaim to deny debtor’s discharge pursuant to 11 U.S.C. §727(d)(1) (discharge granted through fraud; creditor had no knowledge of fraud until after discharge). The debtor sought dismissal of the counterclaim as untimely under §727(e)(1) as it was brought after one year after the debtor was granted a discharge. In turn, the defendant argued that because it was not listed as a creditor in the schedules and had no notice of the bankruptcy case, the time in which to object to, or seek revocation of, the debtor’s discharge was equitably tolled.
The Court held that equitable tolling did not apply to toll the statute of limitations and the counterclaim was dismissed. Section 727(e) provides –